[Cite as Blanton v. Eskridge, 2017-Ohio-8991.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
GORDAN BLANTON, et al., :
: Case No. 16CA3783
Plaintiffs-Appellees, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
GLENN ESKRIDGE, et al., :
:
Defendants-Appellants. : Released: 12/11/17
_____________________________________________________________
APPEARANCES:
T. Kevin Blume, The Blume Law Firm, Wheelersburg, Ohio, for Appellants.
Robert R. Dever, Bannon, Howland & Dever Co., L.P.A., Portsmouth, Ohio,
for Appellees.
_____________________________________________________________
Per Curiam.
{¶1} Glenn and Donita Eskridge appeal from the trial court’s
judgment finding that Appellees, Gordan and Sandra Blanton, had
established an easement of necessity over a portion of the land owned by the
Eskridges. The Blanton and Eskridge properties are adjacent to one another
and are bordered on the west by State Route 52. The property currently
owned by the Blantons became landlocked in the 1960’s when the State of
Ohio appropriated approximately eight acres from the Blantons’
predecessors in interest and built a new limited access highway. On appeal,
Scioto App. No. 16CA3783 2
Appellants contend the trial court erred in finding that Appellees had
established an easement by necessity over their real property. Because we
conclude that Appellees failed to prove all of the required elements
necessary to establish an easement of necessity, Appellants’ sole assignment
of error is sustained. Accordingly, the judgment of the trial court is
reversed.
FACTS
{¶2} Appellees, Gordan and Sandra Blanton, filed an amended
complaint on December 9, 2015 claiming easements by both prescription
and necessity over a portion of land owned by Appellants, Glenn and Donita
Eskridge. Appellees and Appellants have property adjacent to one another
and both of their properties border on the west what is now U.S. Route 52,
which is a limited access highway that was constructed by the State of Ohio
in 1962. At the time the limited access highway was constructed, Appellees'
property was owned by Roy and Lula Ison. The record indicates that the
State of Ohio commenced appropriation proceedings against the Isons and
ultimately took approximately eight acres of their property for the
construction of the limited access highway. The Isons were compensated
approximately $2,000.00 for the land taken, and were compensated an
additional $12,900.00 for damage to the residue of their property.
Scioto App. No. 16CA3783 3
Thereafter, the property was transferred to Orville and Glenna Ison, who
sold the property to Appellees on December 2, 2011.
{¶3} Less than a year after Appellees purchased the property,
Appellants, through counsel, sent Appellees a cease and desist letter,
ordering Appellees to cease entering their property through Appellants'
property. The record reflects Appellees had been entering their property
through a strip of land on the western border of Appellants' property which
runs parallel to the limited access highway. It is this strip of land which
Appellees claim they have an easement, and which they contend consists of
an old roadbed historically used by their predecessors in interest to access
their land.
{¶4} The matter was tried to the court on July 22 and September 7,
2016. Appellee Gordan Blanton testified, along with other residents of the
area, including Bill Waddell and Kenny Dyer. Appellee's brother Bob
Blanton also testified. Most of the testimony that was offered related to the
alleged existence of an old roadway Appellees claimed ran over Appellants'
property. The witnesses all also testified that the only way to access
Appellees' property was to cross Appellants' property. Appellants presented
witnesses as well, including Appellant Glenn Eskridge and licensed
surveyor, Loren Purdom. Appellants introduced testimony and exhibits
Scioto App. No. 16CA3783 4
through Mr. Purdom indicating that the alleged roadway claimed to exist by
Appellees over Appellants' property does not exist and never existed
according to various maps and aerial photos ranging from 1930 to 2011, and
that the only access to Appellees' property was taken by the State of Ohio
during construction of the limited access highway in 1962. Appellants also
introduced testimony related to an easement they recently granted to Scioto
Water, Inc., to install a water line in the area in which Appellees' claim their
easement is located.
{¶5} In their post-trial brief filed with the trial court, Appellees
abandoned their argument that they had established a prescriptive easement
and instead only claimed they had established an easement of necessity over
the land of Appellants, by virtue of their landlocked status. The trial court
ultimately agreed with Appellees, and granted judgment in favor of
Appellees. In its entry, the trial court found as follows:
"The Court finds it's necessary that there be an easement of
necessity over the land owned by the Eskridges. When Mr.
Eskridge bought his land, it was reasonably foreseeable that
there would be some access across his land for ingress and
egress."
It is from this order that Appellants now bring their timely appeal, setting
forth one assignment of error for our review.
Scioto App. No. 16CA3783 5
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ERRED IN FINDING THAT THE
BLANTON’S [SIC] HAD ESTABLISHED AN EASEMENT BY
NECESSITY OVER THE ESKRIDGE’S REAL PROPERTY.”
LEGAL ANALYSIS
{¶6} In their sole assignment of error, Appellants contend the trial
court erred in finding that Appellees had established an easement by
necessity over Appellants’ real property. Specifically, Appellants argue that
the trial court made no factual findings to support the claim of an easement
by necessity and that Appellees failed to establish all the elements necessary
to establish an easement by necessity, most importantly the first element,
which requires severance of unity of ownership. We agree.
{¶7} The plaintiff bears the burden of proving an easement by clear
and convincing evidence. See Cadwallader v. Scovanner, 178 Ohio App.3d
26, 2008-Ohio-4166, 896 N.E.2d 748, ¶ 55; Vance v. Roa, 4th Dist.
Lawrence No. 99CA23, 2000 WL 1283075 (Sept. 7, 2000). “Clear and
convincing evidence” is evidence that will produce in the factfinder's mind a
firm belief or conviction as to the facts sought to be established. State v.
Eppinger, 91 Ohio St.3d 158, 164, 743 N.E.2d 881 (2001); State v. Schiebel,
55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990). It is considered a higher degree
of proof than a mere preponderance of the evidence, the standard generally
Scioto App. No. 16CA3783 6
used in civil cases, but it is less stringent than the “beyond a reasonable
doubt” standard used in criminal trials. The standard of review for weight-
of-the-evidence issues, even where the burden of proof is clear and
convincing evidence, retains its focus upon the existence of “some
competent, credible evidence.” Id. at 74.
{¶8} As set forth above, Appellees’ complaint and amended
complaint both alleged they had acquired a prescriptive easement as well as
an easement by necessity over Appellants’ land. However, in their post-trial
brief submitted to the trial court, it appears Appellees abandoned their claim
of a prescriptive easement and instead only alleged they had established an
easement of necessity. The trial court found Appellees had established an
easement of necessity and made no findings regarding a prescriptive
easement. Likewise, on appeal, Appellees simply contend they possess an
easement of necessity and make no argument related to a prescriptive
easement. As such, we limit our analysis to the question of whether
Appellees established the elements required for an easement of necessity.
{¶9} As this Court explained in Fitzpatrick v. Palmer, 186 Ohio
App.3d 80, 2009-Ohio-6008, 926 N.E.2d 651, ¶ 22, “[a]n easement is an
interest in the land of another that entitles the owner of the easement to a
limited use of the land in which the interest exists.” Citing Parrett v. Penn
Scioto App. No. 16CA3783 7
Cent. Corp., 4th Dist. Pickaway No. 86CA17, 1987 WL 14754 (July 27,
1987); citing Szaraz v. Consol. RR. Corp., 10 Ohio App.3d 89, 460 N.E.2d
1133 (9th Dist.1983). Easements may be created by specific grant,
prescription, or by implication that may arise from the particular set of facts
and circumstances. Fitzpatrick at ¶ 22; citing Campbell v. Great Miami
Aerie No. 2309, Fraternal Order of Eagles, 15 Ohio St.3d 79, 80, 472
N.E.2d 711 (1984); citing Yeager v. Tuning, 79 Ohio St. 121, 86 N.E. 657
(1908); Ciski v. Wentworth, 122 Ohio St. 487, 172 N.E. 276 (1930); and
Trattar v. Rausch, 154 Ohio St. 286, 95 N.E.2d 685 (1950).
{¶10} Appellees’ claim they possess an easement of necessity over
Appellants’ land. An easement of necessity is an “implied grant.” Scrivner
v. Lore, 4th Dist. Scioto No. 98CA2568, 1999 WL 253551, *4. “ ‘An
implied easement or way of necessity is based upon the theory that without it
the grantor or grantee, as the case may be, cannot make use of his land.’ ”
Palmer at ¶ 35; quoting 17 American Jurisprudence 961, Section 48; Trattar
v. Rausch, 154 Ohio St. 286, 293, 95 N.E.2d 685 (1950). However,
“ ‘[e]asements implied of necessity are not favored because, like implied
easements generally, they are “in derogation of the rule that written
instruments shall speak for themselves.” ’ ” Palmer at ¶ 35; quoting Tiller v.
Hinton, 19 Ohio St.3d 66, 69, 482 N.E.2d 946 (1985); quoting Ciski v.
Scioto App. No. 16CA3783 8
Wentworth, supra, at paragraph one of the syllabus. Further, as we observed
in Palmer, it has been stated that “ ‘necessity does not itself create a right of
way, but is said to furnish evidence of the grantor’s intention to convey a
right of way and, therefore, raises an implication of grant.’ ” Palmer at ¶ 35;
quoting American Jurisprudence and Trattar, supra.
{¶11} “[S]tringent requirements must be met before an encumbrance
upon land will be implied.” Tiller at 70–71. In order to establish an
easement of necessity, Appellees were required to present clear and
convincing evidence on each of the following elements: “(1) that there is a
severance of the unity of ownership in an estate, (2) that before the
separation takes place, the use that gives rise to the easement must have been
so long continued and obvious or manifest as to show that it was meant to be
permanent, (3) that the easement is [strictly] necessary to the beneficial
enjoyment of the land granted or retained, and (4) that the servitude is
continuous as distinguished from a temporary or occasional use only.”
Cadwallader v. Scovanner, supra, at ¶ 15; citing Campbell v. Great Miami
Aerie No. 2309, Fraternal Order of Eagles, supra; see also Tiller at 69;
Trattar at paragraph eight of the syllabus; Ciski at the syllabus; Vance v.
Roa, supra. (stating easements that arise from necessity require a plaintiff to
Scioto App. No. 16CA3783 9
prove “[c]ommon ownership of both the dominant and servient estate[s]”).1
Further, “[i]t is a well settled rule that a use must be continuous, apparent,
permanent and necessary to be the basis of an implied easement upon the
severance of the ownership of an estate.” Trattar at 292.
{¶12} With regard to the severance of the unity of ownership
element, or unity of title requirement as it is also referred, this Court has
noted as follows in Watson v. Neff, 4th Dist. Jackson No. 08CA12, 2009-
Ohio-2062, ¶ 14:
“The unity of title requirement accords with the principles of
implied easements. Implied easements are easements read into a
deed. ‘An implied easement is based upon the theory that
whenever one conveys property he includes in the conveyance
whatever is necessary for its beneficial use and enjoyment and
retains whatever is necessary for the use and enjoyment of the
land retained.’ Trattar, supra, at 291, 95 N.E.2d 685. In other
words, implied easements are those easements that a reasonable
grantor and grantee would have expected in the conveyance,
and a court will read the implied easement into a deed where
the elements of that implied easement exist. However, if there is
no unity of title, there is no grantor who may give an easement
to the grantee. It does not matter whether a reasonable grantor
would have conveyed an easement or a reasonable grantee
would have expected to receive an easement. A grantor simply
cannot convey what is not possessed.”
In fact, it has been said that “ ‘[p]rior unity of ownership of both the
dominant and servient estate is the sine qua non for establishing an easement
1
We note that the trial court did not apply this test, or any test, in its determination that Appellees had
established an easement of necessity over Appellants' property.
Scioto App. No. 16CA3783 10
by necessity.’ ” Moore v. Lighthizer, 5th Dist. Muskingham No. 01CA8,
2001-Ohio-1909, *2; citing Scrivner v. Lore, supra, at *4. Ultimately, in
Watson, this Court chose "to follow the longstanding requirement that we
stated in Vance[,]" which held "that a plaintiff must prove unity of title to
establish an easement by necessity." Watson at ¶ 15.
{¶13} Here, Appellees presented no evidence of unity of title between
their property and Appellants’ property. The only comment Appellees made
with regard to the chain of title is that both Appellants’ and Appellees’
property originated from the French Grant.2 On the other hand, Appellants
introduced chains of title for each property demonstrating no common
ownership of the properties as far back as 1930. Further, Appellants
presented the testimony of Loren Purdom, a land surveyor licensed in the
State of Ohio, who stated that there was no unity of title between
Appellants’ and Appellees’ properties. Thus, Appellees presented no
evidence proving the first element required in order to establish an easement
of necessity.
{¶14} Further, assuming arguendo that both properties originating as
part of the French Grant somehow satisfies the unity of title requirement,
which Appellees subtly imply but do not even expressly argue, there is no
2
"The French Grant was one of the many land divisions established in the late eighteenth century in what is
now Ohio." www.ohiohistorycentral.org.
Scioto App. No. 16CA3783 11
evidence that the Blantons’ property was landlocked at the time it was
originally subdivided out of the French Grant. Instead, evidence produced at
trial demonstrates the opposite, revealing that Blanton’s predecessor’s in
interest enjoyed direct access to their property via State Route 52, prior to
the construction of limited access U.S. Route 52. A similar situation was
before the court in Moore v. Lighthizer, supra, and we find it to be
instruction as applied to the facts presently before us.
{¶15} At the time original tracts in Moore were split, the property at
issue was not landlocked. Id. at *1. However, when the State of Ohio built
Interstate 70 in 1965, the property became landlocked. Based upon these
facts, and finding that at least a portion of the property at issue did share
unity of title with another property in which an easement was sought across,
the Moore court found that the “strict necessity” required to justify creation
of an easement of necessity must exist at the time the severance of the
original tract occurs.” Id. at *4. Otherwise, as the court stated, “a
landowner’s property may become subject to an easement by necessity, at
any time, and not as the result of the current property owner’s actions.” Id.
{¶16} Here, there is no evidence of unity of title between Appellants’
and Appellees’ properties. Further, if tracing the properties at issue back to
the French Grant satisfies the unity of title element, there is evidence that
Scioto App. No. 16CA3783 12
Appellees’ property did not become landlocked until 1962 when the State of
Ohio appropriated a portion of Appellees’ predecessor’s property for
construction of the new limited access U.S. Route 52 highway. It appears
this was not a problem at first, as apparently the neighboring property
owners must have allowed some access through their property. However,
when the current parties came into possession of the properties, access was
denied by Appellees.
{¶17} This Court was presented with nearly identical facts in Watson
v. Neff, supra. In that case, Watson’s property became landlocked as a result
of the State of Ohio appropriating land from Watson’s predecessor in
interest in order to change U.S. Route 35 to a limited access highway.
Watson at ¶ 3. The State paid Watson’s predecessor for the limitation of
access to his property.3 Id. When Watson came into possession of the
property he attempted to claim an easement by necessity over land owned by
Neff. The trial court, however, found in favor of the Neffs. Id. at ¶ 5. This
Court affirmed the decision of the trial court on appeal, holding “that a
plaintiff must prove unity of title to establish an easement by necessity.” Id.
at ¶ 15. In reaching our decision, we reasoned that “[n]either the State of
3
As set forth above, Appellants introduced evidence at trial demonstrating that Appellees' predecessors in
interest were also compensated by the State of Ohio when the limited access highway was built. Records
introduced into evidence showed that Appellees' predecessors, the Isons, were paid approximately
$2,000.00 for the approximate eight acres that were actually taken for purposes of the highway
construction, and were also paid an additional $12,900.00 for damage to the residue of their property.
Scioto App. No. 16CA3783 13
Ohio nor Watson’s predecessor in interest could have conveyed the
easement because they never possessed the part of Neff’s land in question.”
Id. at ¶ 17 (noting that “the State clearly did not intent to grant an easement
through the land it had appropriated because the State compensated
Watson’s predecessor in interest for the lack of access.”).
{¶18} The facts in Watson are similar to the facts in Moore, supra,
with respect to property becoming landlocked, not as a result of severing one
parcel into two estates, but because of the State appropriating property for
the construction of limited access highways. The Moore court held “the
‘strict necessity’ needed to justify the creation of an easement by necessity
must exist at the time severance occurs[,]" and noted that no such strict
necessity existed at the time of severance, but rather the necessity arose
when the State appropriated a portion of Moore's property at a later date.
Moore at *4. Such was the case in Watson and Moore, and such is the case
here. “Where the land becomes landlocked as a result of the State of Ohio’s
appropriation of land, no such easement by necessity exists ‘[b]ecause an
easement that arises from necessity requires a plaintiff to prove common
ownership of the dominant and servient estates.’ ” Baldwin’s Oh. Prac. Real
Est. Section 26:11 Easements-Creation-Necessity (March 2017); quoting
Watson, supra.
Scioto App. No. 16CA3783 14
{¶19} At this point, we simultaneously note, and reject, Appellees'
assertion that the Cadwallader case stands for the proposition that "no one
can really be landlocked in the State of Ohio." Appellees misstate the
holding Cadwallader, and the above-cited cases directly refute such a
proposition. We further reject Appellees' contention that Appellants have
acknowledged there is a roadway and an easement by putting up a gate.
This argument distorts the evidence introduced at trial, which established
that the gate was installed by Scioto Water, Inc. at the entrance to their water
line easement, which runs over Appellants' property along the same route
Appellees claim an easement of necessity.
{¶20} Based upon the foregoing, and applying the reasoning set forth
in both Watson and Moore, we hold that Appellees have not proven, by clear
and convincing evidence, the first element required in order to establish an
easement by necessity, which is severance of unity of ownership, or unity of
title. Aside from merely referencing that the properties at issue originated
with the French Grant, Appellees presented no evidence to show common
ownership of the properties at issue at any point. Further, as set forth above,
assuming arguendo that the properties’ origination from the French Grant
does, in some manner, satisfy the unity of title element, Appellees have
failed to demonstrate that there was strict necessity for an easement at the
Scioto App. No. 16CA3783 15
time the properties were initially severed, or subdivided. Instead, the record
reflects that the Blanton’s predecessors in interest had access to their
property until 1962 when the State appropriated a portion of property for
construction of a limited access highway. Thus, even if it could be argued
unity of title was proven, the need for an easement by necessity did not exist
at the time of severance.
{¶21} Because Appellees have failed to satisfy the first element
required to establish an easement of necessity, we need not address the
remaining elements, including whether Appellees might have other access to
the property via another route. As such, we conclude the trial court erred in
finding that Appellees had established an easement of necessity over
Appellants’ property. Accordingly, Appellants’ sole assignment of error is
sustained and the judgment of the trial court is reversed.
JUDGMENT REVERSED.
Scioto App. No. 16CA3783 16
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE REVERSED and that
Appellants recover costs from Appellees.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Scioto County Common Pleas Court 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.
Harsha, J., Abele, J., & McFarland, J.: Concur in Judgment and Opinion.
For the Court,
BY: ______________________________
William H. Harsha, Judge
BY: ______________________________
Peter B. Abele, Judge
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.
Blanton v. Eskridge
Combined Opinion