Kamenar R.R. Salvage, Inc. v. Ohio Edison Co.

• Decision Date: 30 April 1992
• Docket Number: No. 14-91-41,14-91-41
• Citation: 79 Ohio App.3d 685,607 N.E.2d 1108
• Parties: KAMENAR RAILROAD SALVAGE, INC., Appellant, v. OHIO EDISON COMPANY et al., Appellees.
• Court: Ohio Court of Appeals

Page 685

79 Ohio App.3d 685

607 N.E.2d 1108

KAMENAR RAILROAD SALVAGE, INC., Appellant, v. OHIO EDISON COMPANY et al., Appellees.

No. 14-91-41.

Court of Appeals of Ohio, Third District, Union County.

Decided April 30, 1992.

Liggett-Pelanda Co., L.P.A., and Kevin Pelanda, Marysville, for appellant.

Arter & Hadden and William A. Adams, Columbus, for appellee Dayton Power & Light Co.

Vorys, Sater, Seymour & Pease, William G. Porter II and Barry R. White, Columbus, for appellee Ohio Edison Co.

Porter, Wright, Morris & Arthur, D. Michael Miller, Charles J. Kurtz and Mark S. Stemm, Columbus, and Canizzaro, Frazer & Bridges, Don Frazer, Marysville, for appellee Ohio Power Co.

HADLEY, Presiding Judge.

Plaintiff-appellant, Kamenar Railroad Salvage Co., Inc. ("Kamenar"), appeals from judgments filed by the Union County Court of Common Pleas which granted summary judgment to defendants-appellees, Ohio Edison Company ("Ohio Edison"), Dayton Power & Light Company ("Dayton Power &amp Light"), and Ohio Power Company ("Ohio Power"), and dismissed appellant's complaint.

In October 1986, Kamenar obtained all of the right, title and interest of a right-of-way by quitclaim deed from Consolidated Rail Corporation ("ConRail"). That quitclaim deed contained the following relevant language:

"UNDER and SUBJECT, however, to * * * (3) any easements or agreements of record or otherwise affecting the land hereby conveyed, and to the state of facts which a personal inspection or accurate survey would disclose, and to any pipes, wires, poles, cables, culverts, drainage courses or systems and their appurtenances now existing and remaining in, on, under, over, across and through the herein conveyed premises, together with the right to maintain, repair, renew, replace, use and remove same."

The trial court found that Kamenar's president, James Kamenar, knew and had actual notice there were power lines on the property when he obtained the quitclaim deed from ConRail.

Those power lines were constructed and maintained by appellees in this case, as a result of separate agreements between each of the appellees and one of appellant's predecessors. In 1946, ConRail's predecessor, the Pennsylvania Railroad Company ("Pennsylvania"), entered into an "Agreement" with Ohio Edison, which permitted Dayton Power & Light to construct, operate, and maintain wires, cables and appurtenances across Pennsylvania's right-of-way. In 1952, Pennsylvania entered into a similar agreement with Ohio Edison. And in 1958, Pennsylvania entered into a "Master Wire Crossing Agreement" with Ohio Power, which was similar in substance to the two previous agreements that Pennsylvania had with Ohio Edison and Dayton Power & Light.

After Kamenar took possession of the right-of-way, it demanded that appellees vacate the premises. The appellees refused. After all parties moved for summary judgment, the trial court, by separate judgment entries, dismissed appellant's complaint and granted summary judgment to all appellees. ¹ It is from these judgment entries that appellant asserts two assignments of error, which will be combined.

Assignment of Error No. 1

"The trial court erred in dismissing by summary judgment plaintiff-appellant's complaint to eject defendant[s]-appellees on the grounds that plaintiff-deed to the premises conveyed an easement to appellees where there was no evidence that plaintiff-appellant's grantor intended to convey an easement, appellee's [sic] were not a party to, or mentioned in, the deed, and the deed contained no language conveying an interest to appellees."

Assignment of Error No. 2

"The trial court erred in not granting plaintiff-appellant's motion for summary judgment to eject defendant[s]-appellees from his [sic] land where the uncontroverted evidentiary material before the court showed appellees had no legal or equitable interest in, or right to remain on, plaintiff-appellant's land."

Appellant's main contention is that the agreements between the utility companies and Pennsylvania constituted mere licenses, and were therefore revocable at the will of appellant. Appellees contend that these agreements constitute easements and, therefore, they run with the land and cannot be extinguished at the will of appellant.

It is important to note that appellant received the right-of-way by a quitclaim deed from ConRail. Quitclaim deeds are different from other deeds, such as warranty deeds.

"Further, a quit-claim deed transfers only those rights which a grantor has at the time of the conveyance. Jonke v. Rubin (1959), 170 Ohio St. 41 [9 O.O.2d 387, 162 N.E.2d 116], at paragraph one of the syllabus. These rights include both adverse and beneficial equities existing at the time of conveyance. Maher v. Cleveland Union Stockyards Co. (1936), 55 Ohio App. 412 [9 O.O. 112, 9 N.E.2d 995], at paragraph five of the syllabus. A quit-claim deed does not warrant that the grantor has a free and clear or good title. See R.C. 5302.11. In fact, a conveyance by quit-claim deed puts the grantee on notice that there may be defects in the title. Cook v. Dinsmore (1891), 5 Ohio C.C. 385, 393-394 [3 Ohio C.D. 189] * * *." Finomore v. Epstein (1984), 18 Ohio App.3d 88, 90-91, 18 OBR 403, 406, 481 N.E.2d 1193, 1196.

Since a grantee's rights are the same as those of his grantor, appellee takes subject to whatever rights ConRail had against the three utility companies. We therefore turn to the agreements between Pennsylvania and appellees to discern whether appellant takes subject to easements or licenses.

An easement can be created by grant, implication, prescription, or estoppel. 36 Ohio Jurisprudence 3d (1982), Easements and Licenses, Section 18. If a party is contending that an easement is created expressly, it is necessary that a grant be included in the language of a deed, lease, or the like. Id. at Section 20. Further, an express grant of an easement must meet the statutory requirements of R.C. 5301.01. Id. at Section 21; R.C. 5301.01. There are no particular words that are required to create an easement however, the words that are used in an agreement and the circumstances must be examined to determine whether an agreement creates an easement. See Hinman v. Barnes (1946), 146 Ohio St. 497, 32 O.O. 564, 66 N.E.2d 911.

Although we could find that the language of the agreements between Pennsylvania and appellees rise to the level of being easements, as they indicate that Pennsylvania wished to convey an interest in the land as opposed to a mere privilege for appellees to use the land, we cannot find that these were express easements because they failed to comply with the formal requirements of R.C. 5301.01. This statute requires that the deed or mortgage which conveys an interest in real property be witnessed and acknowledged. In all three of these agreements, there was no compliance with the acknowledgment requirement of R.C. 5301.01. Because the three agreements failed to comply with the formal requirements, they cannot be grants of express easements. See Hout v. Hout (1870), 20 Ohio St. 119.

The second way an easement can be created, by implication, requires that there be four elements present before such a conclusion can be reached. First, there must be severance of the unity of ownership of an estate. Second, before the severance of ownership, the use must have been so continued and obvious to show that it was meant to be permanent. Third, that the easement is reasonably necessary to the enjoyment of the land. Finally, that the servitude be continuous, as opposed to being temporary or for occasional use only. Ciski v. Wentworth (1930), 122 Ohio St. 487, 172 N.E. 276, paragraph one of the syllabus. The agreements and circumstances in the case sub judice fail to be implied easements by the fact, at the very least, that the first element was not met. There was no severance of title where one parcel was necessary or beneficial to another parcel. Therefore, there can be no implied easements herein.

The third way an easement can be created, by estoppel, requires that the party claiming such an easement must have been misled or was caused to change his position to his prejudice. Monroe Bowling Lanes v. Woodsfield Livestock Sales (1969), 17 Ohio App.2d 146, 149, 46 O.O.2d 208, 210-211, 244 N.E.2d 762, 764-765. Appellees have made no such claim here that they have been misled or prejudiced.

Finally, an easement can be created by prescription if there has been adverse possession for twenty-one years. Id. at 152, 46 O.O.2d at 212, 244 N.E.2d at 766. However, when a party has been given permission to use another's land, "it cannot ripen into an easement by prescription no matter how long continued." Id. at 152, 46 O.O.2d at 212, 244 N.E.2d at 766. Since appellees were permissively on Pennsylvania and ConRail's land, there can be no easement created by prescription.

We must next address the issue of whether or not these agreements were licenses. There are two types of licenses; a mere privilege to do an act upon another's land, without possessing any interest therein and which may be revocable, ² and licenses coupled with an interest, which make them, generally, irrevocable and, as the name implies, there is more than mere permission, there is an interest in the land. 36 Ohio Jurisprudence 3d, supra, at 528, Section 117; 25 American Jurisprudence 2d (1966), Easements and Licenses, Section 129.

Licenses coupled with an interest can be, in effect, easements which either have not complied with the formalities necessary to create an easement or easements by parol agreement. This is because there is not merely permission to do the act, but a right to do the act. If so construed...