United States v. Stankovich
| Decision Date | 30 March 2012 |
| Docket Number | No. 1:10CV00021.,1:10CV00021. |
| Citation | 867 F.Supp.2d 901 |
| Parties | UNITED STATES of America, Plaintiff, v. Helen STANKOVICH, Defendant. |
| Court | U.S. District Court — Northern District of Ohio |
OPINION TEXT STARTS HERE
Ayako Sato, Rachel K. Bowen, U.S. Department of Justice, Washington, DC, for Plaintiff.
David N. Haring, Brown Bemiller Murray McIntyre & Haring, Mansfield, OH, for Defendant.
Plaintiff United States of America (“U.S.A.”) filed the present action for declaratory and injunctive relief against Defendant Helen Stankovich (“Stankovich”), requiring Stankovich to remove all structures and “fill material” from her real property over which U.S.A. owns flowage easement rights, and permanently enjoin Stankovich from locating any additional structures upon such land. ECF No. 1.
This case arises from very unfortunate circumstances. The details follow, but, in general, it suffices to say that after using property, which is indisputably located on a land subject to a U.S.A. easement, in a certain way for approximately fifty years, the property owner, Stankovich, has been told, not only that she must remove the improvements to the property, but also that the removal must be done at her cost. Understandably, both sides have strongly held positions. Plaintiff, U.S.A., among other things, is concerned about the risk of damage claims that may be brought by Stankovich against U.S.A. for losses incurred as a result of Stankovich's alleged unlawful use of property. ECF No. 1 at 3, ¶ 8. Defendant, the property owner Stankovich, would like to continue using her and its improvements as she has over the past fifty years without removing-at her cost or not-any of the improvements at issue. To press their positions, each party has filed motions for summary judgment seeking relief in her or its favor, respectively, against the opposing party. Hence, the Court, herein, resolves cross-motions for summary judgment.
To wit, pursuant to Fed.R.Civ.P. 56(c), Stankovich seeks judgment in her favor on U.S.A.'s claims for declaratory and injunctive relief ( ECF No. 25 ). U.S.A. filed an opposition ( ECF No. 29 ): to which Stankovich has replied ( ECF No. 30 ). In parallel fashion, U.S.A. seeks summary judgment in its favor on its own claims ( ECF No. 27 ). Stankovich has opposed the motion ( ECF No. 28 ). and U.S.A. has filed a reply ( ECF No. 31 ). For the reasons discussed below, the motions for summary judgment are denied.
The Muskingum Watershed Conservancy District (“MWCD”), was established to provide flood control and water conservation to the Muskingum River Basin, and, to that end, acquired a flood easement for use in the operation of the Charles Mill Dam over land now owned by Stankovich.2ECF Nos. 24 at 1; 27–1 at 10. The MWCD was originally responsible for managing the reservoirs and dams in nineteen Ohio counties that make up the Muskingum Watershed Area. ECF No. 27–1 at 7–8. To date, the MWCD's responsibility has been turned over to the U.S. Army Corps of Engineers. ECF No. 27–1 at 7–8.
In 1938, the MWCD filed for record the Flood Easement in the Richland County Recorder's Office. In pertinent part, the Flood Easement states:
It is therefore ordered, adjudged and decreed that the title of Muskingum Watershed Conservancy District in and to the above described property be and the same is hereby confirmed and that it be admitted into immediate possession thereof. For a more particular description of the rights and privileges embraced herein and of the building and other restrictions which may be exercised and enforced by the District reference is here made to the specifications regarding the same contained and set forth in said Appraisal Record.
ECF Nos. 25–4; 27–4.
As part of the acquisition of the Flood Easement, the MWCD prepared an Appraisal Record. The MWCD provided $3,296.00 in exchange for the right to flood Stankovich's land and impose certain building restrictions. ECF Nos. 25–4; 27–4. According to the Appraisal Record, the consideration was paid:
for the right to back water over said tract by the erection and operation of the dams as provided in the Official Plan with the spillways of the heights and at the elevations proposed in the Official Plan ... with the right of the District to require the removal of all existing buildings used for dwellings that have their first floor elevations five feet or more lower then the spillway elevation of the reservoir in which the building is located and the right to require the removal of all other buildings that have their first floor elevations ten feet or more lower than said spillway elevation, and with the express understanding that no new buildings shall be built below said spillway elevation except by permission of the District....
ECF Nos. 25–5; 27–6.
To date, the parties are unable to locate a copy of the Appraisal Record in the official records of the Clerk of Courts for the Common Pleas Court of Tuscarawas County, Ohio or otherwise confirm that a copy of the...
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