Berry v. Bowling

[Cite as Berry v. Bowling, 2019-Ohio-898.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY

PATRICIA L. BERRY, :
: Case No. 18CA1068
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
RONALD D. BOWLING, ET AL., :
:
Defendants-Appellants. : Released: 03/11/19

APPEARANCES:

David E. Grimes, West Union, Ohio, for Appellants.

Dana N. Whalen, West Union, Ohio, for Appellee.

McFarland, J.

{¶1} Ronald D. Bowling and Janeile Bowling appeal the June 18, 2018

judgment entry of the Adams County Common Pleas Court. In the judgment entry,

which granted permanent easement, Appellants challenge various findings and

orders of the court.

{¶2} Having reviewed the record, we affirm the trial court’s decision.

Accordingly, we find no merit to Appellants’ assignments of error and all are

hereby overruled.
Adams App. No. 18CA1068 2

FACTS

{¶3} The following facts are contained in the record. Dean and Sandra

Purnhagen were the owners of real estate in Meigs Township in Adams County.

There is a gravel road from S.R. 781 to what was once their residence. An

unnamed tributary of Turkey Creek flows through the Purnhagen property.

{¶4} In 1992, Appellants entered into a land installment contract with the

Purnhagens to purchase a portion of Purnhagens’ property which is subject of this

action. Appellants’ land contract is Joint Exhibit 2. The land contract contains a

written legal description of the property, including a thirty-foot wide easement for

ingress/egress that was reserved by the Purnhagens along the existing gravel road.

This easement was required to keep the Purnhagens from being landlocked.

Therefore, the Purnhagens held the dominant property and Appellants, as

purchasers, held the servient estate. Through the land contract’s description,

Appellants had notice of the easement along the gravel road.

{¶5} In 1995, Mrs. Purnhagen executed a deed, Joint Exhibit 1, to Appellee

for her property which is also subject of this action. Appellee is the current owner

of the dominant property.

{¶6} The parties’ properties have been surveyed several times. Gerald

Wallingford prepared a survey in 1992, and a plat was prepared from Mr.

Wallingford’s survey. In 1993, Robert Sattefrield prepared a survey. In 2012,
Adams App. No. 18CA1068 3

McCarty and Associates prepared a survey. The surveys subsequent to Mr.

Wallingford’s 1992 survey all contained the same legal description of the

easement, also subject of this appeal.

{¶7} Various issues with regard to the easement arose between the parties.

Appellee asserts that Appellants were parking vehicles within the easement. It was

also alleged that debris had been placed on the roadway. The gravel road had

narrowed due to erosion of the creek bank. The parties blame each other for the

erosion of the creek bank. It was also asserted that there was a risk of danger for

vehicles traveling the easement.

{¶8} On January 19, 2012, Appellee filed a Complaint for Injunction. On

February 7, 2012, the matter came before the trial court on Appellee’s Motion for

Preliminary Injunction which the court subsequently granted. On March 1, 2012,

Appellants filed an Answer and Counterclaim. On September 10, 2012,

Appellants filed an Amended Counterclaim.

{¶9} The matter eventually proceeded to a bench trial which took place on

February 7 and 8, 2013 and on September 3, 2013. On the first day, Appellee

testified, along with her companion Al Mitchum, about the difficulties they had

experienced with the neighbors and the use of the easement. David Osborne, a

construction contractor, testified about flooding in the area during recent years and

its effect on the subject properties. He also testified about his installation of a
Adams App. No. 18CA1068 4

culvert in the creek in 2010 on behalf of Appellee. Brenda Osborne, his wife, also

testified about flooding in the area, debris she saw on the gravel roadway, and

difficulties her workers had passing Appellants’ part of the property in order to

access Appellee’s property.

{¶10} Also on February 7, 2013, Mr. Wallingford testified that his initial

survey drawing in 1992 depicting the easement was incorrect due to improper

calculation. He explained that the day prior to trial, he went to the property again

and returned to the office and reviewed his notes. The original metes and bounds of

the easement were correct. However, the bearing calculated in 1992 was incorrect,

resulting in an incorrect legal description and an incorrect plat in 1992.

{¶11} Once he discovered the mistake, Mr. Wallingford spent the rest of

that day revising the plat and legal description and received approval at the tax

map office. The significance of the mistake was that the easement originally

depicted did not follow the existing gravel road, but instead passed into the creek

in the northern portion of the property. Mr. Wallingford prepared a corrected

survey which resulted in the easement following the existing gravel road. This

survey is designated as Plaintiff’s Exhibit 31.1

{¶12} Appellants’ counsel objected to presentation of Exhibit 31. Counsel

explained that for at least six months he had maintained that there was something

1
Subsequent surveys by Robert Satterfield in 1993 and by McCarty and Associates in 2012 contained the same
erroneous depiction of the easement.
Adams App. No. 18CA1068 5

wrong with the easement as it appeared to go into the creek. Counsel

acknowledged that the information was newly discovered to Appellee’s counsel as

well, but asserted that Appellants were possibly prejudiced because he would have

to change trial strategy. The court decided to reserve ruling on the admissibility of

the exhibit.

{¶13} Mr. Wallingford’s testimony continued but he admitted uncertainty

about whether he could say the existing gravel roadway was within the easement.

He was dismissed to return to the property for further measurements and

calculations. On the second day of trial, Mr. Wallingford testified the existing

gravel roadway was within the thirty-foot easement. When Appellee rested,

Appellants counsel continued the objection to Exhibit 31 but his objection was

overruled.

{¶14} On the second and third days of trial, Appellants Mr. and Mrs.

Bowling testified, along with Michael McCarty, a surveyor retained on their

behalf. Mr. McCarty agreed in his testimony that the easement as previously

shown on the 1992 survey and plat was incorrect.

{¶15} There was also testimony about two significant flood events

involving the properties owned by Appellants and Appellee. In both 1997 and in

2010 there were two rain events within a period of days which caused significant
Adams App. No. 18CA1068 6

flooding. There was no expert testimony at trial as to the severity of the events,

and the testimony was inconsistent as to exact dates.

{¶16} David Osborne, a neighboring property owner, testified he installed a

new 60-inch culvert for Appellee to replace a previous culvert, fixed holes where

the gravel had “washed out,” and lined the creek bed with large rocks to slow the

water down near Appellee’s house. Mrs. Osborne, who assisted in his work,

testified her workers had difficulty getting equipment up the roadway past

Appellants’ home, specifically near the former location of a bridge. She testified

there was debris, consisting of wood and rocks, on the roadway. Mrs. Osborne

indicated her belief that the debris was placed there by Mr. Bowling.

{¶17} The evidence at trial further demonstrated that there had been

multiple bridges and culverts installed between the gravel road and Appellants’

residence. The photographic exhibits at trial demonstrated that the creek erosion

was presently encroaching into the easement. There was conflicting testimony

regarding the effects of logging trucks on the road.

{¶18} On June 8, 2018, the trial court issued its Judgment Entry. Without

explicitly stating as such, the trial court granted a permanent injunction to

Appellee. Pertinent to this appeal, the 13-page entry also contained the following

orders:

1. “Plaintiff and Defendant shall take necessary steps to update any legal
descriptions, deeds, plats, or other documents that relied upon the
Adams App. No. 18CA1068 7

incorrect 1992 survey to reflect the corrected survey as set forth in
Plaintiff’s Exhibit 31 with regards to the easement. Each party shall
be responsible for their own costs to correct their own legal
documents. If the signature of the other party is necessary to
accomplish the correction, they shall do so within 30 days of being
notified that their signature is necessary.”

***

5. “Within a reasonable period of time from the issuance of this
decision, Plaintiff and Defendant shall share equally in the cost of
repairing the creek bed bank area as shown in Plaintiff’s Exhibit 18,
20 and other exhibits wo that the creek bank is restored to a condition
where it will not encroach upon the easement (as shown in Exhibit
31).”

{¶19} Also, pertinent to this appeal, the trial court made the following

findings of Fact at page 5:

“There were two significant flood events involving both properties.
In both 1997 and 2010 there were two rain events within a period of
days that caused significant flooding. There was no expert testimony
as to whether these events could be considered twenty-five, fifty, or
one hundred-year floods. Testimony was inconsistent as to the exact
dates, but fairly consistent regarding the severity of the events. * * *
Despite his denials, the Court finds that Mr. Bowling likely placed the
debris and other materials in the roadway within the easement. Of
significance is his failure to provide an explanation for how the debris
was placed on top of the freshly graded road after the 2010 flood.
* * * There was no credible testimony or evidence that the erosion to
the creek or damage to the bridge was caused by the culvert or any
specific action of the Plaintiff. The erosion of the creek was as likely
to be caused by the actions of Mr. Bowling as anything else.”
The trial court also made these observations and orders at Page 9:

“The Defendant sought various orders, including, * * *. For an order
prohibiting Plaintiff from diverting water onto the easement,
waterway, and/or Defendant’s property; Defendant failed to establish
that Plaintiff diverted any surface water or that any diversion
Adams App. No. 18CA1068 8

accelerated the water causing damage to the servient estate. Based
upon the facts and testimony the request for order shall be denied.”

Also,

“There was some testimony during trial that Mr. Bowling that that
Mrs. Berry was ‘trespassing’ on his land due to the ‘legal’ easement
that went through the creek. Based upon the new survey depicted in
Exhibit 31. Ms. Berry would not be traveling on Mr. Bowling’s
property by utilizing the gravel driveway.”

{¶20} This timely appeal followed.

ASSIGNMENTS OF ERROR

“I. THE TRIAL COURT ERRED IN ORDERING THE PARTIES
TO UPDATE THE LEGAL DESCRIPTION IN THEIR DEEDS TO
REFLECT THE CORRECTED SURVEY.

II. THE TRIAL COURT ERRED IN ORDERING THE PARTIES TO
EQUALLY SHARE IN THE EXPENSES OF CLEARING,
MAINTAINING, AND IMPROVING THE EASEMENT.

III. THE TRIAL COURT ERRED IN NOT FINDING PLAINTIFF
CAUSED FLOODING TO DEFENDANTS’ PROPERTY.

IV. THE TRIAL COURT ERRED IN NOT FINDING PLAINTIFF
TRESPASSED ON DEFENDANTS’ PROPERTY.”

STANDARD OF REVIEW

{¶21} A party to an easement may invoke the equitable jurisdiction of a

court by seeking an injunction to enforce his or her rights pursuant to the easement.

Mays v. Moran, 4th Dist. Ross Nos. 97CA2385 and 97CA2386, 1991 WL 181400,

*9, citing Murray v. Lyon, 95 Ohio App.3d 215, 221,642 N.E.2d 41, (9th
Adams App. No. 18CA1068 9

Dist.1994). Trial courts retain broad discretion to fashion the terms of an

injunction. Adkins v. Boetcher, 4th Dist. Ross No. 08CA3060, 2010-Ohio-554, at

¶ 35. (Internal citations omitted.)

{¶22} Here, Appellants do not challenge the grant of the permanent

injunction. Rather, they challenge various orders and findings relating to the

injunction and contained within the appealed from judgment entry.

{¶23} Once a party invokes the trial court's equitable jurisdiction, the court

possesses discretionary authority to weigh the parties' competing interests and

exact an equitable division of their property rights. Ohio Power Co. v. Bauer, 60

Ohio App.3d 57, 59-60, 573 N.E.2d 780 (5th Dist.1989). A determination

rendered pursuant to the court's equity jurisdiction will not be reversed absent an

abuse of discretion. Southers v. Rapp 4th Dist. Ross No. 97CA2296, 1998 WL

100409, (Mar. 4, 1998). A finding that a trial court abused its discretion implies

that the court acted unreasonably, arbitrarily, or unconscionably. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the abuse of discretion

standard, a reviewing court may not substitute its judgment for that of the trial

court. Berk v. Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990). We are

mindful, however, that no court has the authority, within its discretion, to commit

an error of law. State v. Landrum, 4th Dist. Ross No. 17CA3607, 2018-Ohio-1280,

at ¶ 10; State v. Boone, 2017-Ohio-843, 85 N.E.3d 1227, (10th Dist.), ¶ 9, citing
Adams App. No. 18CA1068 10

State v. Moncrief, 10th Dist. No. 13AP-391, 2013-Ohio-4571, ¶ 7. See also 2–J

Supply Co. Inc. V. Garrett & Parker, LLC, 4th Dist. Highland No. 13CA29, 2015-

Ohio-2757, ¶ 9.

LEGAL ANALYSIS

ASSIGNMENT OF ERROR ONE

{¶24} Appellants assert the trial court erred in ordering the parties to update

the legal description in their deeds to reflect Wallingford’s corrected survey.

Within this assignment of error, they raise the issue of whether the easement in this

case is an expressed easement or is it an easement implied by necessity.

Essentially, the court’s order to correct and update the legal descriptions in the

parties’ deeds, plats, or other documents is an order for reformation of instruments.

{¶25} Equity allows reformation of a written instrument when, due to a

mutual mistake on the part of the original parties to the instrument, the instrument

does not evince the parties' actual intention. Patton v. Ditmyer, 4th Dist. Athens

No. 05CA12, 05CA21, and 05CA22, 2006-Ohio-7107, at ¶ 27. See Mason v.

Swartz, 76 Ohio App.3d 43, 50, 600 N.E.2d 1121 (1991). “The purpose of

reformation is to cause an instrument to express the intent of the parties as to the

contents thereof * * *.” Delfino v. Paul Davies Chevrolet, Inc., 2 Ohio St.2d 282,

286, 209 N.E.2d 194, (1965). “[R]eformation of a contract is appropriate where

the written agreement does not accurately reflect the true understanding of the
Adams App. No. 18CA1068 11

parties, and it is used to effectuate their true intent.” Concrete Wall Co. v. Brook

Park 8th Dist. Cuyahoga Nos. 34054, 34090, 34171, (Feb. 26, 1976), at *3, citing

Greenfield v. Aetna Cas. Ins. Co., 75 Ohio App. 122, 61 N.E.2d 226 (1944). “The

purpose of reformation is not to make a new agreement but to give effect to the one

actually made by the parties, which is not accurately reflected in the written

agreement.” Concrete Wall Co, supra, at *3.

{¶26} A person seeking reformation of a written instrument must prove by

clear and convincing evidence that the mistake regarding the instrument was

mutual. Patton, supra, at ¶ 28. See Stewart v. Gordon, 60 Ohio St. 170, 53 N.E.

797 (1899), paragraph one of the syllabus; Justarr Corp. v. Buckeye Union Ins.

Co., 102 Ohio App.3d 222, 225, 656 N.E.2d 1345 (1995). A “mutual mistake”

means “ ‘a common mistake by all the parties to the contract.’ ” Lukacevic v.

Daniels, 8th Dist. Cuyahoga No. CV-16-89484, 2019-Ohio-102, at ¶ 23, quoting

Wells Fargo Bank Minnesota v. Mowery, 187 Ohio App.3d 268, 2010-Ohio-1650,

931 N.E.2d 1121, ¶ 24 (4th Dist.2010), quoting Huber v. Knock, 1st Dist. Hamilton

No. C-080071, 2008-Ohio-5900, at ¶ 6. Clear and convincing evidence is the

degree of evidence necessary to elicit in the mind of the trier of fact a firm belief or

conviction as to the allegations to be established. See In re Haynes, 25 Ohio St.3d

101, 104, 495 N.E.2d 23 (1986).
Adams App. No. 18CA1068 12

{¶27} Because reformation, at its core, is an equitable remedy, “[i]ts

application thus ‘depends upon the facts and circumstances of each case

* * *.’ ”ABN AMRO [Mtge.] Group, Inc. v. Kangah, 126 Ohio St.3d 425, 2010-

Ohio-3779, 934 N.E.2d 924, ¶ 11. (Internal citations omitted.) Therefore, the

concept of negligence in the reformation context is “far from being a static concept

subject to mechanical application, [but rather] is one that requires careful

consideration of the facts to determine if the party seeking reformation of a deed is,

both in light of personal action taken and as a matter of equity, entitled to such

relief.” 27 Williston on Contracts, Section 70:49. Courts should carefully consider

the unique equities of each situation when determining whether a party is entitled

to have a written instrument reformed. Natl. City Real Estate Servs., L.L.C. v.

Frazier, 2018-Ohio-982, 96 N.E.3d 311, ¶ 32 (4th Dist.).

{¶28} Case law reflects that the legal description contained in a deed is

subject to reformation. Foley v. Lipka, 4th Dist. Highland No. 673, 1988 WL

118701, (Nov. 3, 1988), at *3; Davis v. Cassady, 4th Dist. Ross No. 1303, 1987

WL 8438, (Mar. 23, 1987) at *2; Clayton v. Freet, 10 Ohio St. 544, 1860 WL 13,

paragraph one of the syllabus.

{¶29} We pause to acknowledge that neither Appellee nor Appellants raised

issues of reformation or mutual mistake in the pleadings. And, the parties never

moved to amend the pleadings to conform to the evidence adduced at trial.
Adams App. No. 18CA1068 13

However, the court has the ability to sua sponte consider an unpleaded issue so

long as the decision to do so complies with Civ.R. 15(B). Textiles, Inc. v. Design

Wise, Inc., 12th Dist. Madison Nos. CA2009-08-015 and CA2009-08-018, 2010-

Ohio-1524, at ¶ 17; Hogan v. Hogan, 12th Dist. Warren Nos. CA2007-12-137,

CA2007-12-141, 2008-Ohio-6571 (affirming sua sponte recognition of mutual

mistake because the affirmative defense was fully litigated, although never

included in the pleadings).

{¶30} Here, the record reflects that the issue was litigated without

objection.2 While Appellants objected to admission of Plaintiff’s Exhibit 31, the

corrected survey, and the court reserved ruling on the issue, counsel had the ability

to cross-examine Mr. Wallingford about his correction. The three-day trial began

on February 7 and 8, 2013. The defense’s case was continued into a third day

which did not occur until approximately 7 months later in September, 2013, when

Appellants’ introduced the testimony of their own expert surveyor, Mr. McCarty.

Based on the above, it appears Appellants had the fair opportunity to address any

issues of reformation or mutual mistake.

2
“Under Civ.R 15(B), implied consent is not established merely because evidence bearing directly on an unpleaded
issue was introduced without objection; it must appear that the parties understood the evidence was aimed at the
unpleaded issues. * * * Various factors to be considered in determining whether the parties impliedly consented to
litigate an issue include: whether they recognized that an unpleaded issue entered the case; whether the opposing
party had a fair opportunity to address the tendered issue or would offer additional evidence if the case were to be
tried on a different theory; and, whether the witnesses were subjected to extensive cross-examination on the issue.”
Textiles, Inc., at ¶ 18, quoting State ex rel. Evans v. Bainbridge Twp. Trustees, 5 Ohio St.3d 41, 448 N.E.2d 1159,
(1983), paragraphs one and two of the syllabus.
Adams App. No. 18CA1068 14

{¶31} Turning to consideration of Appellants’ argument against reformation

of the instruments in this matter, we look to an older Fourth District case. In Foley

v. Lipka, supra, Foley, the appellee, was executrix and sole devisee of an estate in

Highland County. In 1986, Foley filed an action to reform the title to certain real

estate she had inherited, (real estate known as the “Van Horn property”), averring

that her deed contained an erroneous description of the property as the result of the

mutual mistake of the original parties to the deed and asserting a claim for adverse

possession. The Lipkas denied her claim for adverse possession and further denied

that the deed in issue contained an erroneous description of the property as the

result of the mutual mistake of the original parties to the deed. The gist of the

parties’ dispute was not the amount of property Foley was entitled to have but

rather the location of the property lines.

{¶32} At trial, a professional surveyor testified that he had performed a

mortgage loan inspection of the Van Horn property in 1985 and in the course of

doing so, had discovered a discrepancy between the description of the property in

the deed and the property in the possession of the Van Horns. The surveyor

testified it was possible that “the surveyor took the property out of the wrong tract

since there were no tax maps available in Highland County in 1958.” The surveyor

further testified that it was obvious that the survey matched up with a 1958 survey

“fairly well” except for the erroneous description. The trial court concluded that
Adams App. No. 18CA1068 15

Foley was entitled to reformation of the deed to reflect the clear intent of the

parties. The court ordered a reformation of the deed to reflect the proper

description.

{¶33} On appeal, Lipkas asserted that Foley failed to prove by clear and

convincing evidence that the land described in the Van Horn deed was the result of

a mutual mistake by the original parties to the instrument. However, our court

noted that the testimony at trial, the course of dealing between the parties, and the

conduct of the parties supported by clear and convincing evidence the finding by

the court that a mutual mistake occurred in the original conveyance in 1948. We

also emphasized the testimony of the expert witness, the surveyor, who testified

that the discrepancy was a mistake common to surveys at that time due to the lack

of tax maps.

{¶34} In Castle v. Daniels, 16 Ohio App.3d 209, 475 N.E.2d 149, (2nd

Dist.1984), the court concluded that reformation of the deed was appropriate when

the evidence showed that the parties were mutually mistaken as to the property

conveyed. In Castle, the appellees conveyed a lot to the appellants by warranty

deed. The deed described the property conveyed as the entire lot, which included a

hay field in the northeast corner of the lot upon which sat a barn. The appellees

asserted that the parties did not intend the real estate transaction to include the hay

field and barn. The deed also described property that was owned by a third party,
Adams App. No. 18CA1068 16

Lucy McClung. The appellants conceded that the parties did not intend her

property to be part of the transaction.

{¶35} The record included a survey plat which showed that the hay field

and barn were not part of the lot, and neither was McClung's property. Testimony

existed that the appellants were aware of the lot boundaries. The appellees stated

that they showed the appellants the boundaries before closing the real estate

transaction.

{¶36} The appellate court affirmed the trial court's judgment reforming the

deed based upon mutual mistake. The appellate court observed that the evidence

showed that the parties were mutually mistaken as to the land that the deed

conveyed. The court also recognized that the appellants disputed that a mutual

mistake occurred, but stated at ¶ 32:

“ ‘[T]he mere fact that the parties at the time of trial testify differently
as to what their agreement was does not necessarily mean that there
was no agreement between them, nor does it necessarily mean that
they were not mutually mistaken concerning the expression of their
agreement in the instrument; in this respect, it has been pointed out
that if the fact alone that the parties testify differently at the trial
would prevent a finding that there was an agreement between the
parties, a court could never determine whether there was a contract in
a lawsuit where the parties disagree and testify differently.’ 13 Ohio
Jurisprudence 3d (1979) 363, Cancellation, etc. of Instruments,
Section 76.” Id. at 212.

{¶37} In this case, Appellants also dispute that a mutual mistake occurred.

We disagree. The court’s decision noted as follows: “Despite the Defendant’s
Adams App. No. 18CA1068 17

interrogatory response that he did not learn of the error in the survey drawing until

2010, his testimony indicated that he learned about the error in 1997, yet took no

action to correct it.” It is obvious that both parties relied on an erroneous

description in the documents they executed with Mrs. Purnhagen. Appellants were

mistaken about the error in the survey drawing at the time they entered the land

contract in 1992 and it is also obvious Appellee, who received a general warranty

deed from Mrs. Purnhagen in 1995, only learned about the erroneous description

during the course of the litigation which ensued in 2012.

{¶38} The trial court found:

“Because the original metes and bounds were correct, and the updated
survey merely reflects the correction of an error, there is no
requirement to determine whether an implied easement exists. The
width and location of the easement remain 30’wide along the existing
roadway as originally described, and the Defendant was on notice
therefore of the actual location and width of the easement. It is
equitable to all concerned to correct such errors.”

{¶39} Contrary to Appellants' assertion, the trial court did not err in

ordering reformation of the parties’ documents with regard to the incorrect 1992

legal description of the easement. It is the function of the trial court to assess the

credibility of the various witnesses and not the function of a reviewing court to

substitute its judgment in that respect. Castle, supra, at p. 212. We have reviewed

the record in its entirety, which consisted of three large volumes of testimony and

approximately 42 photographic and documentary exhibits.
Adams App. No. 18CA1068 18

{¶40} We agree with the trial court’s decision that found clear and

convincing evidence to support reformation of the parties’ deeds, plats, or other

documents that rely upon the incorrect 1992 survey to reflect the corrected survey

as set forth in Plaintiff’s Exhibit 31 with regards to the easement. It is axiomatic in

Ohio that judgments supported by some competent, credible evidence going to all

the essential elements of the case will not be reversed as being against the manifest

weight of evidence. Foley, supra, at *4; C.E. Morris Co. v. Foley Construction

Co., 54 Ohio St.2d 279 (1978); Burr v. Stark Cty. Bd. of Commrs., 23 Ohio St.3d

69 (1986); State Auto Mut. Ins. Co. v. Cawley, 33 Ohio App.3d 160 (1986).

{¶41} Based on the foregoing, we find no merit to Appellants’ first

assignment of error and it is hereby overruled.

ASSIGNMENT OF ERROR TWO

{¶42} Appellants assert the trial court erred in ordering the parties to

equally share in the expenses of clearing, maintaining, and improving the

easement. The trial court ordered as follows:

“There was testimony that the parties had previously shared in the
expenses of maintaining the easement. The Court has found that the
actions of the Defendant are also a cause of the erosion. Therefore, it
would be equitable that both parties share in the cost of repairing the
creek bank in a manner as set forth in Plaintiff’s Exhibit 30 * * *.”

Appellee responds that there is competent, credible evidence of the parties’ history

of shared maintenance expense and joint use of the easement to support the trial
Adams App. No. 18CA1068 19

court’s decision. Appellee points to the testimony of Al Mitchum and Ronald

Bowling. We agree with Appellee.

{¶43} In this case, Al Mitchum testified that he saw Appellant Ronald

Bowling using a Bobcat after one of the floods. Mitchum asked him what he was

doing and his testimony is as follows:

“I stopped him and asked him what are you doing? He said he was
straightening up that uh, fixing that, that he was fixing that, fixing the
drain, fixing the brook, he was fixing it. * * * I yelled at Mr. Bowling
uh, I already paid those guys to do that job, please don’t do it.
* * * Mr. Bowling said that well they didn’t do a good job and you
wasted your money * * *.”

{¶44} Mr. Mitchum continued:

“I just got in my car and left because I don’t want to argue with him.
* * * I give him credit, he has cleaned that mess up pretty much
so * * *.”

{¶45} Later, Ronald Bowling, while testifying about Plaintiff’s

Exhibit 21, explained:

“This is the debris that was left over from uh, the second 2010 flood.
* * * I told Al that he needs to clean up his mess * * * and Osborne’s
came in with a Bobcat, my son seen them, and they pushed all of the
debris over to the creek bank and also in the creek further restricting
the creek again.”

{¶46} Appellant Bowling further testified as follows:

“When I bought a plow for my four-wheeler, I went up when I
scraped my part of the road, I also scraped there’s [sic.] so they could
get out on I think three different occasions.”

{¶47} We agree that this testimony alone reflects the parties’ history
Adams App. No. 18CA1068 20

of shared maintenance and expense regarding the easement. The trial court

had competent credible evidence in support of his decision to order shared

expenses in maintenance of the easement and creek bank. As such,

Appellants’ argument is without merit. We hereby overrule the second

assignment of error.

ASSIGNMENT OF ERROR THREE

{¶48} Appellants assert the trial court erred in not finding that Appellee

caused flooding to Appellants’ property. Appellants assert that Appellee

unlawfully obstructed or impeded the passage of water from the creek thereby

causing damage. However, Appellee responds that the trial court had competent,

credible evidence to support its determination that Berry did not cause flooding to

Bowlings’ property. Appellee points to the testimony of various witnesses, among

them, Michael McCarty, Appellants’ expert.

{¶49} Brenda Osborne testified regarding the May 2010 flooding:

“It was horrendous. I’ve lived here all my whole life except for about
two or three years after I first got married. And in that whole time,
I’ve never seen nothing like it. There were places that I saw water
that night I’d never seen water before. And some of our rental homes,
there was two of them that got water in them. And where we had put
those, if we’d known it flooded like that, or course, you would’ve
never put a home there. And whenever they had, I don’t know if they
called it the 100-year flood or the 99-year flood whatever. They
didn’t even get flooded then.”

{¶50} Her testimony continued:
Adams App. No. 18CA1068 21

Q: When was that 99-year flood that you’re referring to?

A: I think it was like in 96 or 7, whenever the county had so much water
and stuff. It’s been several years back.

Q: So, this the one in May of 2010 was much worse than the one in
1997?

A: For us it was in our area.

{¶51} David Osborne also characterized the 2010 flood as extraordinary in

that it was “about 7 inches of rain maybe in a couple of hours. * * * Quite a bit of

water.” Osborne was thereafter hired to put in a new culvert and “fill up holes

where the gravel washed out.” Osborne also testified he lined the creek bed with

large rocks to slow down the flow of water. Osborne pointed out that Appellee’s

property was north of Appellants’. And, Osborne opined that the work he

performed at Appellee’s property did not alter the flow of water.

{¶52} Finally, Mr. McCarty, Appellants’ expert, testified as follows on

cross-examination:

Q: Does it really matter what’s going on upstream, with Mrs. Bowling?

A: With Mrs. Berry’s house?

Q: Uh, Mrs. Berry House.

A: Yes.

Q: Yes sir.

A: Uh, no, actually Ms. Berry’s house is not (inaudible) the Bowling
issued. [sic.]
Adams App. No. 18CA1068 22

{¶53} McCarty was shown Plaintiff’s Exhibit 29. He further testified on

cross examination:

Q: [T]his um, a view of the photo of the driveway going towards the
Bowling residence, the creek to the left-hand side of the photo. And
this is a photo that was taken after the floods in 2010.

A: That would be consistent with what I remember of the site.

Q: Okay. Did the size of the culvert at the Berry property have any
impact on what you see in this photo?

A: Probably not.

{¶54} The trial court’s decision stated:

“The Court finds that much of the damage caused by the 1997 and
2010 floods were an act of God. The Court cannot find, based upon
the evidence presented, that either the old culvert or the new culvert
on the Berry property caused the damage and erosion.”

{¶55} Given the above testimony, we find there was competent credible

evidence in the record to support the trial court’s findings and orders. We find no

merit to Appellants’ argument that the court failed to find Appellee responsible for

the damage to their property. Accordingly, we overrule the third assignment of

error.

ASSIGNMENT OF ERROR FOUR

{¶56} Appellants also argue that the trial court erred in not finding Appellee

trespassed on their property. They first assert that Appellee trespassed in effect by

diverting water from the creek. They also assert trespass when Appellee was
Adams App. No. 18CA1068 23

driving outside the metes and bounds description of the easement. Appellee

responds that if the trial court was correct in finding Berry did not cause flooding

onto Bowlings’ property, then the court was also correct in not finding Berry to

have trespassed by diverting water. Further, if the trial court was right in ordering

the correction of the easement description to correct the surveyor’s error, then

Berry did not trespass on Berry’s property by traversing over the driveway. As

such, the trial court’s failing to find Berry to have trespassed in this manner is not

in error.

{¶57} Appellee’s analysis is correct. Given our resolution of the above

assignments of error, we find no merit to Appellants’ arguments that the trial court

failed to find Appellee trespassed on their property diverting water their direction

or by driving on the easement. As such, we overrule the fourth assignment of error

and affirm the judgment of the trial court in all respects.

JUDGMENT AFFIRMED.
Adams App. No. 18CA1068 24

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellants.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the
Adams County Court of Common Pleas to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the date
of this entry.

A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.

Smith, J. & Hess, J.: Concur in Judgment and Opinion.

For the Court,

BY: __________________________________
Matthew W. McFarland, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.