Kubin v. Reineck

• Decision Date: 21 April 1952
• Citation: 113 N.E.2d 914,93 Ohio App. 320
• Parties: , 51 O.O. 68 KUBIN et al. v. REINECK.
• Court: Ohio Court of Appeals

Page 320

93 Ohio App. 320

113 N.E.2d 914, 51 O.O. 68

KUBIN et al. v. REINECK.

Court of Appeals of Ohio, Huron County.

April 21, 1952.

Syllabus by the Court.

1. An easement for a public road granted the Director of Highways carries with it and vests such director with 'the powers and privileges incident to such right.'

2. Section 1178-2, General Code, and related sections, cloths the Director of Highways, in the exercise of a sound discretion, with authority to employ and use land over which the state owns an easement, in any manner as will, in the judgment of such director, better provide facility of travel and efficient enjoyment of the highway system.

3. One who pursuant to a valid permit issued by the Director of Highways enters upon land and does certain grading and other work specified in such permit is not a trespasser and can not be compelled to respond in damages.

4. Generally, in the absence of ambiguity or conflicting evidence as to the terms of a written instrument, it is the duty of the court to construe the instrument and to determine the effects of its provisions as a matter of law.

5. If the terms of such instrument are ambiguous and indefinite and there is conflicting evidence as to the meaning thereof, a question requiring submission to a jury under proper instructions is presented.

6. In so submitting such question, it is prejudicial error to permit the instructions to assume such form that they embrace a substantial construction of such instrument.

Miller & Miller, Norwalk, for appellants.

Carpenter & Carpenter, Norwalk, for appellee.

SAVORD, Judge.

This is an appeal on questions of law from a judgment of the Common Pleas Court. The parties are designated herein as they stood in the trial court.

The record discloses that plaintiffs are the owners of approximately three-fourths of an acre of land located about two and one-half miles west of Norwalk, Ohio, extending approximately 265 feet along the south side of route No. 20 and lying between what has been referred to as new route No. 20 and old route No. 20, the parcel being almost triangular in shape. The plaintiffs acquired the property in January 1946 from one George M. West, who on September 6, 1940, had granted 'a perpetual easement and right of way for public highway and road purposes in, upon and over the lands * * *,' to the state of Ohio. The easement included the entire triangular parcel. The defendant is the owner of approximately three and one-half acres of land located immediately to the east of the land of plaintiffs and about 1949 erected upon his property a substantial building employed for tavern purposes.

In their petition, the plaintiffs allege that on or about July 1, 1949, and on divers days thereafter the defendant 'unlawfully with force broke and entered' the land of plaintiffs, cut down and carried away fruit, cedar, and shade trees, grapevines, asparagus patches, roses, and lilacs, dug up and carried away topsoil, dirt, sand and gravel from an acre of ground, and converted and disposed of the same to his own use, leaving the land barren, in waste and exposed to erosion, all to the damage of plaintiffs.

In his answer, after entering a general denial of all allegations contained in the petition of plaintiffs, defendant alleges that the state of Ohio, through its highway department, having acquired a perpetual easement over certain land, including that described in the petition, in order to construct a four-lane highway now known as United States route No. 20 and an approach road from the Ridge road (formerly known as United States route No. 20), thereafter proceeded to construct such road and the approach road thereto; that when the highways were completed, an embankment remained on the real estate described in the petition, interfering with the vision of operators of motor vehicles when entering the four-lane highway from the approach road and when entering the approach raod from the four-lane highway; that as the owner of the land located immediately to the east he constructed a business building thereon; that having graded his land, defendant secured permission from the state highway department to grade that portion of the land lying within the triangle bounded by old route No. 20, new route No. 20 and the property of defendant; and that defendant removed an embankment located thereon and graded and seeded thetriangular plot of land so as to improve the view of operators of motor vehicles using said highways, thereby eliminating potential hazards.

Following submission, the jury returned a verdict in favor of the defendant, and, thereafter, a motion for new trial, duly filed by plaintiffs, was overruled and judgment entered on the verdict.

In prosecuting this review, plaintiffs submit three assignments of error, namely:

(1) The court erred in overruling plaintiffs' demurrer to defendant's second defense.

(2) The verdict and judgment are against the manifest weight of the evidence and contrary to law.

(3) The court erred in its charge to the jury.

The record clearly established that new route No. 20 is a 'limited access' highway. Defendant, deeming additional entryways to his property necessary, filed an application with the Director of Highways, seeking authority to establish such entryways.

Thereafter, on May 26, 1949, the director granted defendant permission to do the following:

'(1) Construct a 40-foot drive to a business place with an appropriate median strip over the existing 8-inch tile in the ditch line along the south side of U.S. Route 20 at a point approximately .8 miles west of the Norwalk city limits.

'(2) Also to construct a new catch basin at the west edge of the above drive for storm water only.

'(3) Also to construct a 50-foot drive to business place on to access road between present U.S. Route 20 and S. R. No. 61 as per attached plan. No drainage structure necessary for said drive.

'(4) Also to grade area to elevation 3 feet above U. S. Route No. 20 pavement for improved site condition. Area to be seeded to grass upon completion of grading.'

The italic in the above detailed provision is ours and indulged for the purpose of emphasizing the provision around which this case centers. It is the claim of the defendant that all he did was done pursuant to and in strict compliance with the provisions of such permit.

Assuming that the permit by its expressions comprehended the grading of the triangular parcel of land owned by plaintiffs subject to the easement of the state, as well as the land owned by the defendant, the question arises whether defendant had authority to do that which he admittedly did. Surely such right could be only of a nature and character as derived from a grant of authority conferred by the highway director, acting in his official...