[Cite as Roubanes v. Brown, 2012-Ohio-1933.]
COURT OF APPEALS
HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
WILLIAM ROUBANES : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. John W. Wise, J.
-vs- :
:
NILO BROWN : Case No. 11CA019
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 10CV152
JUDGMENT: Affirmed/Reversed in Part &
Remanded
DATE OF JUDGMENT: May 1, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
STEVEN J. SHROCK GRANT A. MASON
SARAH B. BAKER The Lincoln Building
225 North Market Street 88 South Monroe Street
Wooster, OH 44691 Millersburg, OH 44654
Holmes County, Case No. 11CA019 2
Farmer, J.
{¶1} In June of 1981, Richard and Fay Porter granted an easement to Roberta
Long so she could access her seventy-five acre parcel over their property. The
easement was granted over the existing "Old Cabin Road."
{¶2} On February 14, 1984, the Porters sold their property to appellant, Nilo
Brown. Appellant constructed a driveway on the property. The driveway crossed the
easement, and then joined the easement for a short distance before diverting away.
{¶3} On January 29, 1991, the Estate of Roberta Long sold her seventy-five
acre parcel to Roman Miller. On April 19, 1991, Mr. Miller acquired a 1.5 acre tract
adjacent to the seventy-five acre parcel. This acquisition gave Mr. Miller roadway
access to his property. However, appellant gave Mr. Miller permission to traverse the
driveway on a limited basis after notifying appellant of the intended use.
{¶4} On April 26, 1993, Mr. Miller sold his entire parcel to appellee, William
Roubanes. Appellee used the driveway for approximately fifteen to sixteen years. After
June 1, 2009, appellant notified appellee orally and via two letters to stop traversing the
driveway. Appellee continued to use the driveway.
{¶5} On November 5, 2010, appellee filed a complaint against appellant,
claiming easement by estoppel and easement by necessity. Appellee sought a
declaration that the easement followed "Old Cabin Road," and sought a temporary
restraining order and a preliminary injunction. On same date, the parties resolved the
issues regarding the requested injunctive relief.
{¶6} On January 10, 2011, appellant filed an answer and a counterclaim,
alleging that appellee had trespassed upon his property.
Holmes County, Case No. 11CA019 3
{¶7} A bench trial commenced on June 23, 2011. At the conclusion of the trial,
appellee dismissed his claim for easement by necessity. By decision and judgment
entry filed September 6, 2011, the trial court found in favor of appellee on his claim for
easement by estoppel, and permanently enjoined appellant from interfering with
appellee's use of the easement. The trial court filed a nunc pro tunc judgment entry on
September 22, 2011 to add Civ.R. 54(B) language.
{¶8} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶9} "THE TRIAL COURT ERRED AS A MATTER OF LAW BY FINDING
THAT ROUBANES HAD ESTABLISHED AN 'EASEMENT BY ESTOPPEL'."
II
{¶10} "THE TRIAL COURT ERRED BY FINDING THAT THE
DEFENDANT/APPELLANT'S STATEMENTS CREATED ANYTHING OTHER THAN A
MERE LICENSE."
III
{¶11} "THE TRIAL COURT ERRED BY FINDING THAT THE
PLAINTIFF/APPELLEE HAD PROVEN THE ELEMENTS NECESSARY FOR
INJUNCTIVE RELIEF."
IV
{¶12} "THE TRIAL COURT ERRED BY GRANTING THE PLAINTIFF AN
EASEMENT WITH GREATER RIGHTS THAN EXISTED BY EITHER THE CONDUCT
OF THE PARTIES OR OF THE ORIGINAL 1983 WRITTEN EASEMENT."
Holmes County, Case No. 11CA019 4
V
{¶13} "THE TRIAL CURT ERRED IN NOT FINDING IN FAVOR OF THE
DEFENDANT/APPELLANT ON HIS CLAIM FOR TRESPASS."
I, II, III, IV
{¶14} Appellant claims the trial court erred in determining there existed an
easement by estoppel. Appellant's claims raise two issues: 1) whether the doctrine of
easement by estoppel exists in Ohio and 2) if so, whether the facts in this case establish
an easement by estoppel.
{¶15} The first issue is a question of law which this court reviews de novo.
{¶16} In Renner v. Johnson (1965), 2 Ohio St.2d 195, the Supreme Court of
Ohio accepted the proposition that an implied easement can exist in Ohio, but denied its
enforcement against a bona fide purchaser because the easement was not apparent.
Prior to Renner, the Supreme Court of Ohio in Yeager v. Tuning (1908), 79 Ohio St.
121, recognized that a parol license to use the land of another was revocable at the
option of the licensor.
{¶17} The reasoning in Renner broadens Ohio's approach and permits an
easement by estoppel. The essential elements to establish an implied easement are as
follows:
{¶18} "The essential elements required to establish an implied easement have
been set forth by this court in a number of prior opinions. In Ciski v. Wentworth, supra,
[(1930), 122 Ohio St. 487] the court held in paragraph one of the syllabus:
{¶19} " 'While implied grants of easements are not favored, being in derogation
of the rule that written instruments shall speak for themselves, the same may arise
Holmes County, Case No. 11CA019 5
when the following elements appear: (1) A severance of the unity of ownership in an
estate; (2) that before the separation takes place, the use which gives rise to the
easement shall have been so long continued and obvious or manifest as to show that it
was meant to be permanent; (3) that the easement shall be reasonably necessary to the
beneficial enjoyment of the land granted or retained; (4) that the servitude shall be
continuous as distinguished from a temporary or occasional use only.'
{¶20} "An implied easement must be 'apparent, continually used, and
reasonably necessary to the use and enjoyment of the land.' Baker v. Rice (1897), 56
Ohio St. 463, 47 N.E. 653, syllabus. It is necessary for the advocate to prove that his
client's property is 'visibly dependent' upon the alleged easement. Natl. Exchange Bank
v. Cunningham (1889), 46 Ohio St. 575, 22 N.E. 924, paragraph one of the syllabus.
Finally, the use which serves as the basis for an implied easement upon the severance
of ownership must be 'continuous, apparent, permanent and necessary.' Trattar, supra,
[v. Rausch (1950), 154 Ohio St. 286] at paragraph five of the syllabus." Campbell v.
Great Miami Aerie No. 2309, Fraternal Order of Eagles (1984), 15 Ohio St.3d 79, 80-81.
{¶21} It is within these frameworks that various courts of appeals have
recognized easements by estoppel:
{¶22} "In granting the McCumberses an easement by estoppel over the
Pucketts' driveway, the trial court relied on Restatement of the Law 3d, Property (2000)
143, Section 2.10(1), entitled, 'Servitudes Created by Estoppel,' which states:
{¶23} " 'If injustice can be avoided only by establishment of a servitude, the
owner or occupier of land is estopped to deny the existence of a servitude burdening
the land when:
Holmes County, Case No. 11CA019 6
{¶24} " '(1) the owner or occupier permitted another to use that land under
circumstances in which it was reasonable to foresee that the user would substantially
change position believing that the permission would not be revoked, and the user did
substantially change position in reasonable reliance on the belief.'
{¶25} " 'Normally, the change in position that triggers the application of the rule
stated in [Section 2.10(1)] is an investment in improvements either to the servient estate
or to the other land of the investor.***Failure to object to an investment made in
improvements to land by another may give rise to an estoppel against the owner or
occupier of the land, if the owner or occupier knows or reasonably should know that the
investment is being made on the basis of a mistaken belief that the investor has a
nonrevokable right to use the land.' (Emphasis added.) Restatement of the Law 3d,
Property (Servitudes) (2000), Section 2.10, Comment e." McCumbers v. Puckett, 183
Ohio App.3d 762, 2009-Ohio-4465, ¶18-21.
{¶26} "Where an owner of land without objection allows another to spend money
in reliance on a supposed easement, when in justice and equity the land owner ought to
have disclaimed his conflicting rights, the owner is estopped to deny the existence of
the easement. Monroe Bowling Lanes [v. Woodsfield Livestock Sales (1969)], 17 Ohio
App.2d [146], at syllabus 2. An easement by estoppel may not be claimed by one who
has not been misled or caused to change his position to his prejudice. Id., at 149. By
failing to object to the planting of the trees, Warren did not mislead the Schindlers nor
cause them to plant the trees in reliance on a supposed easement. The limits of the
easement were expressly set out in the purchasing agreement and deed. The trial court
Holmes County, Case No. 11CA019 7
did not err in failing to find an easement by estoppel." Schindler v. Warren (May 28,
1991), Stark App. No. CA-8253.
{¶27} "In Bruce & Ely, The Law of Easements and Licenses in Land (1988),
Section 6.01, a summation of the law of easements by estoppel is stated as follows:
{¶28} "***
{¶29} " 'One claiming an easement by estoppel must establish (1)
misrepresentation or fraudulent failure to speak and (2) reasonable detrimental reliance.
Claimants alleging misrepresentation not only must prove that the alleged statements
were made but also must establish that those statements were actually
misrepresentations. Showing reliance presents additional problems. An easement by
estoppel claimant cannot rely on an assertion that may be checked easily in the public
records or that is contrary to information in the claimant's possession. Moreover, the
claimant must change position personally; proof of reliance by third parties does not
suffice. Finally, what constitutes reliance depends on the facts and the circumstances
of the particular case. Locating improvements on the dominant estate in order to take
advantage of the represented easement has been held to satisfy the reliance
requirement. Expending money to repair or improve a servient estate also evinces
reliance.
{¶30} " 'Courts are reluctant to find an easement by estoppel on the basis of
"mere passive acquiescence." Nonetheless, under certain circumstances, equity
imposes an obligation to disclose information regarding the existence or location of an
easement. Such a duty may be found when the servient estate owner observes the
claimant improving the servient estate, but not usually when the servient estate owner
Holmes County, Case No. 11CA019 8
stands by while the claimant improves his own property, the alleged dominant estate.
Furthermore, there is authority that an obligation to speak does not arise when a
claimant is already in possession of the relevant information.' (Footnotes omitted.)"
Maloney v. Patterson (1989), 63 Ohio St.3d 405, 410.
{¶31} We therefore conclude the doctrine of easement by estoppel is recognized
in Ohio under the following conditions: 1) it is apparent and not hidden to a third party
purchaser (Renner, Campbell, Maloney); 2) it would be reasonably foreseeable that the
user of land under certain circumstances would substantially change his position
(Maloney, McCumbers, Schindler); 3) the person seeking to establish the easement
expends some proof of improving the property which is subject to the easement
(McCumbers, Maloney); and 4) there has been a representation by the servient estate
that an easement exists (Maloney).
{¶32} Having resolved that the theory of easement by estoppel does exist under
certain circumstances, we must now resolve whether the facts in this case establish an
easement.
{¶33} A judgment supported by some competent, credible evidence will not be
reversed by a reviewing court as against the manifest weight of the evidence. C.E.
Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. A reviewing court must
not substitute its judgment for that of the trial court where there exists some competent
and credible evidence supporting the judgment rendered by the trial court. Myers v.
Garson, 66 Ohio St.3d 610, 1993-Ohio-9.
{¶34} The undisputed facts are that a written easement existed over appellant's
property to the benefit of the adjacent parcel owner and was referred to as the "Old
Holmes County, Case No. 11CA019 9
Cabin Road." Appellant had constructed part of a driveway on the easement because
Old Cabin Road was not functional for him to obtain access to his home. T. at 56. After
appellee purchased his parcel, he spoke with appellant about using the driveway and
appellant permitted appellee to use the driveway for limited purposes. T. at 67. There
is no evidence that appellee did anything to improve the driveway or extend any
expense on the driveway. Appellee purchased his parcel in 1993 and never used the
Old Cabin Road easement, just appellant's driveway. It was not until 2009 that the
controversy over the use of the driveway arose. T. at 60. Admittedly, since appellant's
purchase of his property in 1984, only a portion of the Old Cabin Road easement was
used. T. at 63.
{¶35} From the facts presented, appellant granted appellee a license to use the
driveway some of which included the Old Cabin Road easement. However, as noted by
the Yeager court at 122, "[a] license is a personal, revocable and non-assignable
privilege, conferred either by writing or parol, to do one or more acts upon land without
possessing any interest therein."
{¶36} Appellee was not induced to purchase the parcel based upon the license
because it was not granted until after the purchase. Appellee did not present any
evidence of expending any funds or making any improvements to the driveway.
Appellant testified he alone improved the driveway on his property. Appellee clearly
had a prescriptive easement by deed via Old Cabin Road; however, he chose
appellant's newer driveway for access. Therefore, we conclude the trial court erred in
finding an easement by estoppel under the facts sub judice and erred in granting the
injunction.
Holmes County, Case No. 11CA019 10
{¶37} Assignments of Error I, II, III, and IV are granted.
V
{¶38} Appellant claims the trial court erred in failing to find appellee trespassed
upon his property. We disagree.
{¶39} "A trespasser is one who unauthorizedly goes upon the private premises
of another without invitation or inducement, express or implied, but purely for his own
purposes or convenience; and where no mutuality of interest exists between him or the
owner or occupant." Allstate Fire Insurance Co. v. Singler (1968), 14 Ohio St.2d 27, 29.
{¶40} In letters dated June 24, 2009 and May 10, 2010 sent to appellee by
appellant's attorneys, appellee was told to stop using the driveway and to remove his
mailbox from appellant's property, respectively. Plaintiff's Exhibits 7 and 8. Appellee
continued to use the driveway. T. at 26. Appellant admitted appellee's alleged trespass
encompassed the prescriptive easement on Old Cabin Road. Appellant was unable to
enumerate the number of times the alleged trespass occurred after the letters. T. at 71.
In fact, appellee attempted to settle the matter with appellant. T. at 72. Appellant
presented no damages as a result of the alleged use of his driveway in its entirety.
{¶41} We conclude there can be no injury without damages therefore, the claim
for trespass was not established.
{¶42} Assignment of Error V is denied.
Holmes County, Case No. 11CA019 11
{¶43} The judgment of the Court of Common Pleas of Holmes County, Ohio is
hereby affirmed in part and reversed in part.
By Farmer, J.
Hoffman, P.J. and
Wise, J. concur.
s/ Sheila G. Farmer_______________
s/ William B. Hoffman_____________
_s/ John W. Wise _______________
JUDGES
SGF/sg 313
[Cite as Roubanes v. Brown, 2012-Ohio-1933.]
IN THE COURT OF APPEALS FOR HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
WILLIAM ROUBANES :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
NILO BROWN :
:
Defendant-Appellant : CASE NO. 11CA019
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Holmes County, Ohio is affirmed in part and
reversed in part, and the matter is remanded to said court for further proceedings
consistent with this opinion. Costs to be divided equally between appellant and
appellee.
s/ Sheila G. Farmer_______________
s/ William B. Hoffman_____________
_s/ John W. Wise _______________
JUDGES
Roubanes v. Brown
Combined Opinion