dissenting.
{¶ 24} I respectfully disagree with the majority’s conclusion that questions of fact remain regarding the use and acquiescence of the easement. In the trial court, appellants moved for summary judgment, arguing that no questions of fact remained with respect to the established easement of 20 feet from the southerly border of the original plat. Specifically, appellants argued that “past use, location of mature trees, the fact that the easement holder cannot increase the burden upon the servient estate for a new use, and the original intent of the parties” all established a 20-foot easement.
{¶ 25} In support of their motion and their memorandum opposing appellee’s motion, appellants offered one affidavit. In it, one homeowner stated that her “property has large mature trees and other landscaping between the front of’ her dwelling and Strimple Avenue. She has owned her property since 1978, and “the trees were mature” at that time. She also states that the pipeline is within five feet of the southern border of her property and that “[t]he trees are not within the right of way granted to” appellee.
{¶ 26} The remaining factual issue, according to the majority, is appellee’s use of the easement and its acquiescence in an easement of less than the 50 feet it proposes. The affidavit offers no evidence on that issue. Appellants do not, for example, provide evidence that appellee has a history of trimming a smaller area than that requested. Compare Ashland Pipe Line Co. v. Lett (Apr. 11, 1990), 5th Dist. No. CA-942, 1990 WL 52505 (concluding that subsequent use of the property showed that the utility did not intend to use the full 50 feet, in part because clearance of 25 feet was evident). And as to use of the easement on or near the other plaintiffs’ properties, we know nothing at all.
{¶ 27} But even if we were to infer that appellee has taken no action to trim trees on the affiant’s property or to otherwise enforce the easement since 1978, that should not be enough to defeat summary judgment. The fact that appellee “did nothing, without more, is not fatal. Although the terms of an easement may be determined by subsequent use and acquiescence, they can be determined in different ways as well.” Andrews v. Columbia Gas Transm. Corp. (C.A.6, 2008), 544 F.3d 618, 625.
{¶ 28} Here, appellee offered unrebutted evidence that a 50-foot easement was reasonably necessary or convenient to inspect, maintain, and operate the pipeline. Although appellants stated in their motion that “[a]n aircraft flying at an altitude of 150 feet * * * would not have any trouble spotting an opening of only a few feet to detect any type of seepage to the surface,” appellants offered no support for that assertion. Nor did they offer evidence to show that the trees in affiant’s yard, or on the other plaintiffs’ properties, would not interfere with repair of the pipeline, should repair become necessary.
*741{¶ 29} For all these reasons and the reasons stated in the trial court opinion, I would conclude that appellee has a 50-foot easement and affirm the judgment of the trial court. Therefore, I dissent from the majority’s contrary conclusion.