Harvest Land Co-Op, Inc. v. Sandlin, Ca2007-07-161 (10-20-2008)

Citation: 2008 Ohio 5417Docket: No. CA2007-07-161.

Court: Ohio Court of Appeals; October 20, 2008; Ohio; State Appellate Court

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Sally A. Mills, the defendant-appellant, is appealing a declaratory judgment from the Butler County Court of Common Pleas that deemed an easement in favor of Harvest Land Co-op, Inc. abandoned. The easement, located behind Mills’ property at 374 South "D" Street, provided essential vehicular access to a detached garage. Harvest Land discovered the easement while preparing to sell its property, which is adjacent to Mills’ and previously belonged to the Martin Mason Brewing Company, who had deeded a public alley to the city of Hamilton. After the brewery's demolition, Harvest Land covered the alley, resulting in overgrowth that obscured the easement.

Mills contends that her predecessors had not intended to abandon the easement, despite its lack of maintenance. She expressed her intent to restore the property, including rebuilding the garage, at the time of her purchase in 2003. Harvest Land initiated a quiet title action to declare the easement abandoned and obtained summary judgment from the trial court, which was initially reversed by the appellate court due to genuine issues regarding abandonment. On remand, the trial court ruled the easement abandoned, leading to Mills' appeal, where she asserts the court erred in declaring abandonment without sufficient evidence of intent from her predecessors.

In her assignment of error, Mills argues the record lacks proof of an intention to abandon the easement. The appellate court indicated it would not overturn the trial court's findings unless they were against the manifest weight of the evidence and emphasized the trial court's ability to assess witness credibility. The definition of an easement is provided, noting that the servient estate owner retains usage rights not conflicting with the dominant estate's limited use.

Easements can be established through express grant, implication, or prescription, and an express easement without a duration limit can be terminated in various ways. The duration may be defined by the creating instrument, permanent, or until terminated by actions of the parties or legal operation. Termination can occur upon fulfillment of the easement's purpose or a change in property use. Abandonment of an easement is a factual determination, requiring a preponderance of evidence to demonstrate abandonment. To prove abandonment, the servient estate must show both nonuse and intent to abandon.

In the case at hand, previous rulings indicated a dispute over the easement's maintenance was central. A heavily overgrown easement could suggest intent to abandon, while a clear easement might imply the opposite. The trial court was instructed to consider all evidence related to abandonment, not just limited aspects, as established in prior rulings. Although nonuse was undisputed, the key issue remained the intent to abandon, which must be shown through unequivocal acts indicating a desire to terminate the easement. Mere nonuse is insufficient; intent must be demonstrated through decisive actions inconsistent with continued enjoyment of the easement. Various acts can establish this intent.

The trial court determined that the former owners of a property failed to maintain a garage, which was in ruins when the defendant purchased the residence. The garage's dilapidated condition was characterized by a collapsed roof and only foundation walls remaining, with large trees and brush overgrown in the area, rendering access impractical. Evidence indicated that Mills' predecessors intended to abandon the easement, as they neglected it by allowing vegetation to overgrow and did not clear it, leading to the conclusion that the easement was no longer intended for ingress and egress to the garage.

Mr. Hilsmier claimed he discussed his intent to use the easement with a governmental body, but neither he nor his wife took any action to assert this intent. The appellant argued that the trial court's findings reflected passive nonuse rather than abandonment, contending that the standard for proving abandonment was not met. In contrast, Harvest Land argued that the extensive disrepair indicated a clear intent to abandon, citing testimony from Douglas Vizedom, who noted the easement's overgrown state since 1968, and Todd Turner, a land surveyor, who corroborated the significant overgrowth.

The trial court placed weight on the overgrowth and determined that the state of disrepair evidenced a lack of intent to maintain the easement. It found that the predecessors did not demonstrate any desire to use or improve the easement. However, legal principles indicate that an easement cannot be abandoned solely by nonuse, and allowing vegetation to grow is not definitive proof of abandonment. The review concluded that the trial court's findings lacked competent evidence to support an intent to abandon, as the evidence primarily reflected neglect rather than an affirmative act of abandonment by the predecessors in interest.

The trial court determined that the appellant's predecessor did not show a desire to use the easement; however, ownership of an express easement does not require active use or demonstration of intent to retain rights. The density of vegetation mentioned by the court is insufficient to indicate abandonment. Unlike previous cases, such as Reed v. Reed, where a decisive act nullified an easement's purpose, no similar actions were present in this case. In Crane Hollow v. Marathon Ashland Pipe Line, the court ruled that non-use and physical disrepair did not equate to abandonment, as Marathon's actions indicated an intent to maintain the easement. Similarly, in Erie Metroparks Bd. of Commrs. v. Key Trust Co. of Ohio, a mere regulatory filing was deemed insufficient evidence of abandonment. The current case lacks evidence of intent to abandon, as passive non-use and the presence of foliage do not demonstrate such intent. Harvest Land's planting of grass over the easement does not negate its purpose or impede access. Therefore, the trial court's judgment was found to be against the manifest weight of the evidence, leading to its reversal and remand for further proceedings. The city of Hamilton will vacate the alley based on the case's outcome.

An easement was established through an express grant for access to the South "D" Street properties. The trial court held a de novo trial, disregarding evidence from prior summary judgment proceedings. During the trial, conflicting testimonies emerged regarding the overgrowth in the easement. The court arranged a scene visit, which occurred shortly after the appellant and friends cleared brush, changing the easement's condition. The appellant claimed that only small saplings existed and that she could navigate through the thicket to reach a dilapidated garage, even driving close to it. In contrast, Thomas Hilsmier, a former property owner, testified that no trees were in the easement and that he could easily drive onto the garage slab. Surveyor Todd Turner provided a different perspective, stating that significant overgrowth existed, requiring a machete to create a path, and cited trees with diameters of 15 to 20 inches. The trial court recognized these discrepancies in testimony about the overgrowth density.