Nusekabel v. Cincinnati Public School Employees Credit Union, Inc.

• Decision Date: 26 December 1997
• Docket Number: No. C-970069,C-970069
• Citation: 708 N.E.2d 1015,125 Ohio App.3d 427
• Parties: NUSEKABEL et al., Appellees, v. CINCINNATI PUBLIC SCHOOL EMPLOYEES CREDIT UNION, INC. et al., Appellants. *
• Court: Ohio Court of Appeals

Page 427

125 Ohio App.3d 427

708 N.E.2d 1015

NUSEKABEL et al., Appellees, v. CINCINNATI PUBLIC SCHOOL EMPLOYEES CREDIT UNION, INC. et al., Appellants. ^*

No. C-970069.

Court of Appeals of Ohio First District, Hamilton County.

Decided Dec. 26, 1997.

John W. Hauck, Cincinnati, for appellees.

Kircher, Robinson, Newman & Welch, and Thomas J. Kircher, Cincinnati, for appellant Cincinnati Public School Employees Credit Union, Inc.

Furnier, Thomas, Rosenberg & Herfel, L.L.P., and Gary L. Herfel, Cincinnati, for appellant Carlisle Crane & Excavation Co.

Fay D. Dupuis, City Solicitor, and Stephen J. Fagel, Cincinnati, for appellant city of Cincinnati.

PAINTER, Presiding Judge.

In this case, the city of Cincinnati's failed attempt to create a subway system in the 1920s haunts a present-day real-estate tangle. Inattention by later parties has created a further mess concerning a parking lot for a building that was built before the automobile's invention. And the trial court's well-intentioned action has woven a further and worse tangle. We must cut the knot.

I. The History

In September 1988, Edward and Carol Nusekabel, the plaintiffs-appellees, acquired title to 1009 Marshall Avenue, on which an apartment building extends the property's entire forty-foot width in an east-west direction along Marshall. The property measures approximately one hundred fifty feet north to south. Behind the apartment building is a parking lot, which was used continuously by the building's tenants and previous owners since at least 1959--automobiles having come into use after the building's construction. Because the building occupies the entire frontage of the lot on Marshall Avenue, the parking lot behind the building is landlocked, unless access can be gained over property belonging to someone else--a fact not creating problems before cars.

Before the Nusekabels bought the property, they did not investigate the land records and just assumed that a right of way or easement existed over the neighboring property because for years the building's tenants and previous owners had driven over a concrete roadway and gravel path to reach the parking lot from Marshall Avenue. Defendant-appellant city of Cincinnati owned this neighboring property, to the Nusekabels' west, since 1921, when the city acquired it for a doomed and never-completed subway project.

In 1986, the city conveyed a triangular piece of this property to defendant-appellant Carlisle Crane and Excavation Company. This triangular piece of property shares almost all the Nusekabels' western border. Viewed on the recorder's plat, the remaining property, which is still owned by the city, appears to border the Nusekabels' property only on Marshall Avenue.

Evidently, Carlisle developed the property for defendant-appellant Cincinnati Public School Employees Credit Union, to which Carlisle sold the property in 1987. The credit union used this property for a new office building and constructed an access driveway from the building to Marshall Avenue over some of the land that had been used as access to the apartment building's parking lot. The credit union put up asphalt curbs on the driveway and shrubs along the easterly border of the driveway, prohibiting the apartment building's tenants and owners from reaching their parking lot.

Before the credit union blocked this access, the apartment building's tenants and prior owners had reached the parking lot via a concrete roadway that was partially on property now owned by the credit union and partially on property still owned by the city, and that adjoined Marshall Avenue. This concrete roadway connected to a gravel path that traversed the property now owned by the credit union and led into the apartment building's parking lot.

The apartment building's prior owners called the concrete roadway "Cormany Street," but on the recorder's plat it appears as "Cormany Avenue." Cormany Avenue is a dead-end parcel that does not border the Nusekabels' property, but runs along the city's southern border and part of the credit union's southern border and is accessible only from the east by Stephens Street, which is no longer in existence. From an aerial photograph dated 1966, it appears that a concrete road did indeed run from Marshall Avenue, over what is now property owned by both the city and the credit union and also on the parcel platted as Cormany Avenue.

The Nusekabels filed suit, claiming that they were entitled to a prescriptive easement over the parcels owned by the city and the credit union. The Nusekabels and the building's tenants were blocked from the parking lot, and also, of course, could not take the subway. The trial court granted summary judgment to the Nusekabels and proceeded to give them what amounts to an unrecordable parcel of property, which still does not abut theirs and gives them no more than they had--which was nothing--but undoubtedly clouds the city's and the credit union's titles to their properties.

The defendants-appellants bring two assignments of error. The supporting legal arguments for each party are fundamentally the same, the only question among them being who would be liable for a judgment based on the property transfers that were subject to warranties in the relevant deeds. Our disposition of this case renders that question moot.

II. The "Vacation" of Cormany Avenue

In the first assignment, the defendants-appellants assert that the trial court erred in granting summary judgment to the Nusekabels. We agree.

Appellate courts perform a de novo review of a summary judgment. ¹ Under Civ.R. 56(C), a motion for summary judgment is properly granted if the court, upon viewing the evidence in a light most favorable to the party against whom the motion is made, determines that (1) there are no genuine issues as to any material fact, (2) the movant is entitled to a judgment as a matter of law, and (3) the evidence is such that reasonable minds can come to but one conclusion and that conclusion is adverse to the opposing party. ² Our review entails a determination of whether the trial court properly granted summary judgment to the Nusekabels, entitling them to one half of Cormany Avenue.

The trial court determined that a prescriptive easement could not be acquired on municipal streets and alleys. But the court then concluded, even though the Nusekabels' evidence supporting summary judgment was to the contrary, that before the city sold the property to Carlisle, Cormany Avenue was a street open and dedicated to public use that extended to Marshall Avenue. Again from whole cloth, the trial court concluded that the city had vacated Cormany Avenue. The trial court then granted half of the fee simple for Cormany Avenue to the Nusekabels, thus providing them with access to their parking lot.

The trial court apparently wished to fashion an equitable remedy allowing the Nusekabels to use their parking lot, but in the process it jettisoned all the applicable facts and law. First, the trial court determined that Cormany Avenue extended to Marshall Avenue, although, on a plat submitted as evidence, Cormany Avenue bordered the city's and the credit union's properties on its northern border and did not extend to Marshall Avenue. Whether Cormany Avenue was a street dedicated to public use was a factual question improperly decided by the trial court--especially because the Nusekabels actually argued that the street was not open or dedicated to public use. Undisputedly, the city did not statutorily dedicate Cormany Ave. The question, necessarily turning on the facts, would be whether a common-law dedication of the concrete roadway extending to Marshall Avenue had occurred. Cormany Avenue's exact boundaries were thus still factual questions improperly decided on summary judgment.

But most important, and ignored by the trial court, Cormany Avenue, even if it extended to Marshall Avenue and was subject to common-law dedication, would not have bordered the Nusekabels' property. This is clear not only from the plat, but from the affidavits of the apartment building's former owners, Gene and Elizabeth Mueller, and from Edward Nusekabel's deposition. Gene Mueller indicated that Cormany Avenue did not border the Nusekabels' property, stating that "there was access from the side road [Cormany Avenue] to the parking lot behind 1009 Marshall Avenue for this purpose. The access road was gravel." Elizabeth Mueller also stated in her affidavit that a gravel road connected Cormany Avenue with the parking lot: "The connecting road from the side street [Cormany Avenue] to our parking lot, crossing the lot line, was gravel." And Edward Nusekabel affirmed this by stating that when he visited the property in the early 1980s, he got to the parking lot by driving on Cormany Avenue and a path from Cormany Avenue: "It was a little bit of everything. It was a little blacktop, a little concrete, a little gravel, and a little grass. It was just a path."

The Muellers' and Nusekabel's statements, combined with the plat, clearly show that even if Cormany Avenue in fact extended to Marshall, it did not border the Nusekabels' property. The property now owned by the credit union was between the Nusekabels' property and what was purportedly Cormany Avenue, and the gravel road connecting Cormany and the parking lot traversed this property now owned by the credit union.

The trial court erred in granting half of the fee simple for Cormany Avenue (the precise meaning of which is beyond the comprehension of both the parties and this court) to the Nusekabels, even if the evidence supported a common-law dedication of Cormany Avenue and the city had in fact vacated it. There was no fee to grant because the Nusekabels' property did not share an extended border with Cormany Avenue, even if Cormany Avenue in fact extended to Marshall Avenue.

If a city vacates a street or alley, it cannot extinguish the rights of ingress and egress for property owners abutting the...