[Cite as Yowonske v. MDB Constr. Co.,

.]

STATE OF OHIO, BELMONT COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

THEODORE YOWONSKE, et al. ) CASE NO. 09 BE 10 ) PLAINTIFFS-APPELLEES ) ) VS. ) OPINION ) MDB CONSTRUCTION COMPANY, ) INC., et al. ) ) DEFENDANTS-APPELLANTS )

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 06 CV 45

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiffs-Appellees: Atty. Richard A. Myser Fregiato, Myser & Davies 320 Howard Street Bridgeport, Ohio 43912

For Defendants-Appellants: Atty. John A. Vavra 132 West Main Street P.O. Box 430 St. Clairsville, Ohio 44950

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: September 2, 2010 WAITE, J. -2-

{¶1} Appellants MDB Construction Co., LLC (“MDB Construction”), and

Craig M. Spierings appeal the decision of the Belmont County Court of Common

Pleas awarding judgment to Appellees Theodore Yowonske and Dale Malinzak, in a

dispute over an easement. The parties own neighboring properties in Belmont and

Monroe Counties. The two properties had previously been part of a much larger

parcel owned by Powhatan Mining Company, and the parties in this case acquired

their various interests at different times starting in 1993. Appellees acquired their

property first, and their deed contains language describing an easement to access

public roads. Aerial photos showed that the easement across Appellants’ property

existed in 1989 while the Monroe and Belmont County properties were still under

unified ownership. Appellants acquired their property in Belmont County in 2003,

and they initially allowed Appellees to continue to use the easement. Then, in 2004,

they blocked Appellees from using it and bulldozed over part of the easement.

Appellees filed suit for declaratory judgment in order to determine whether they

possessed an express or implied easement over Appellants’ property. The case

went to trial, and the court determined that all the elements of an implied easement

were proven. The court granted declaratory judgment and an injunction in favor of

Appellees.

{¶2} Appellants are challenging the manifest weight of the evidence on

appeal. To establish an implied easement, Appellees were required to prove at trial

that the easement was continuous, apparent, permanent and necessary. See Ciski

v. Wentworth (1930),

,

, syllabus. Appellees showed -3-

that the easement existed prior to the division of the property, it had been

continuously used by themselves and their predecessors in interest, the easement

had been clearly evident on the property since at least 1989, and that there was no

other means for them to access a public road except through Appellants’ property.

The record supports the existence of an implied easement through prior use, and the

judgment of the trial court is affirmed.

Case History

{¶3} In 1906, Joseph Pew purchased real property abutting State Route 7

along the border of Belmont and Monroe Counties in Ohio. In 1943, the Pew Family

conveyed over 6,000 acres of their property in Belmont and Monroe Counties to the

Powhatan Mining Company. (Plaintiffs’ Exh. 6, Deed, Volume 343, Page 338,

Belmont County Records of Deeds.) The Powhatan Mining Company merged into

the North American Mining Company in 1959. (Plaintiffs’ Exh. 7.) The North

American Mining Company changed its name to the Bellaire Corporation in 1988.

(Plaintiffs’ Exh. 8.)

{¶4} In 1991, the Bellaire Corporation conveyed approximately 130 acres of

land in Monroe County to Gary and Penny Midcap. (Plaintiffs’ Exh. 2, Deed, Volume

205, Page 467, Monroe County Recorder’s Office.) This land was located in

Switzerland Township, Monroe County, near the Ohio River and State Route 7. The

northern border of this property was the Belmont-Monroe County line. The deed

contained a clause conveying, “a right of way and easement for ingress and egress in -4-

and over existing ways and lanes across Grantor’s lands * * *.” (Plaintiffs’ Exh. 2, p.

2.)

{¶5} The Midcaps conveyed their Monroe County property to Appellees Dale

Malinzak and Theodore Yowonske on March 6, 1993. (Plaintiffs’ Exh. 1, Deed,

Volume 210, Page 36, Monroe County Recorder’s Office.) The deed contained the

same easement language contained in the Midcaps’ 1991 deed conveying, “a right of

way and easement for ingress and egress in and over existing ways and lanes

across Grantor’s lands * * *.” (Plaintiffs’ Exh. 1, p. 2.) Appellee Yowonske later

conveyed his entire interest in the property to Appellee Malinzak.

{¶6} On July 23, 2003, the Bellaire Corporation conveyed 24.513 acres in

York Township, Belmont County to Appellant MDB Construction. (Plaintiffs’ Exh. 4,

Deed, Volume 790, Page 577, Belmont County Records of Deeds.) This property

abuts Appellees’ property in Monroe County to the south and Township Road 516 to

the north (also known as German Hill Road). The deed to this property stated that it

was “subject to * * * all mining rights, leases, covenants, conditions, exceptions,

reservations, restrictions, easements, the rights-of-ways of Township Road 516 and

all other legal highways, and all limitations and other matters now of record or that

would be revealed by an inspection of the above described premises * * *.”

(Plaintiffs’ Exh. 4, p. 4.)

{¶7} On March 3, 2005, MDB Construction conveyed 5.144 acres of the

aforementioned 24.513 acres to Appellant Craig M. Spierings. (Plaintiffs’ Exh. 5,

Deed, Volume 806, Page 362, Belmont County Records of Deeds.) -5-

{¶8} On January 31, 2006, Appellees filed a declaratory action complaint in

the Belmont County Court of Common Pleas against Appellants MDB Construction

and Mr. Spierings. Appellees alleged that they had either an express or an implied

easement across Appellants’ property. The case proceeded to a bench trial on

February 17, 2009.

{¶9} Appellee Yowonske testified regarding the existence and use of the

easement. The easement, which consisted of a dirt and gravel driveway, extended

from Township Road 516 on the northern border of Appellant MDB Construction’s

property, and extended south across both of Appellants’ properties. It continued into

Monroe County and across Mr. Yowonske’s property. Yowonske testified that he

used his property primarily for hunting as an investment, and that his sole access to

the property was by way of the easement across Appellants’ property. He testified

that there was no access from State Route 7, which abutted part of his property,

because of the steepness of the hilly terrain. A 60 to 80 foot cliff ran against his

border with State Route 7.

{¶10} Mr. Yowonske used the easement road from 1993 to 2003 in

cooperation with the prior owners. Access to the easement was gained through a

locked gate, and Mr. Yowonske, along with others, had their own locks that they

would use to enter and exit the easement. In 2003, MDB Construction acquired the

Belmont County property that is the subject easement now in dispute. Although Mr.

Marvin Brown, the owner of MDB Construction, initially acknowledged Mr.

Yowonske’s right to use the easement, in 2004 he cut Mr. Yowonske’s lock from the -6-

gate and refused any further permission to use the easement, leading to the present

litigation. Mr. Brown also bulldozed part of the easement roadway near Mr.

Yowonske’s property to further prevent him from using it.

{¶11} Licensed surveyor Michael Austen testified for the plaintiffs. He

testified he created a survey plat map in 2005 for Mr. Brown that identified a dirt road

extending from Township Road 516, winding south through the property owned by

MDB Construction, then going through Mr. Spierings property and extending to

Monroe County and Appellees’ property. He also testified that an aerial photo from

1989 (Plaintiffs’ Exh. 13) clearly showed the same dirt roadway reflected on the 2005

plat map. He testified that the dirt roadway was the only practical vehicular access

from Appellees’ property to a public road. He also testified that a person might be

able to climb up the steep hill from State Route 7 to Appellees’ property on foot, but

that a vehicle could not traverse the hill.

{¶12} Mr. Brown testified that he purchased his property in Belmont County in

2003, intending to build a hunting cabin. He has since built his residence on the

property. His driveway and access to the property is the same dirt and gravel

roadway that Appellees are claiming as an easement. Mr. Brown testified that many

others use his driveway, including Verizon and Alltel to access a cellular tower;

American Electric Power; Gary and Laura Lehman (to access their property to the

west of Mr. Brown’s property); Powhatan Point Cable Company; and North American

Coal Company. (2/17/09 Tr., pp. 100, 104-106, 135.) He accesses the property

through a locked gate, similar to the manner in which everyone else who uses the -7-

driveway has access. He originally permitted Mr. Yowonske to use the gate and the

dirt road, but in 2004, he wanted to limit those who were using his driveway since he

was building his home on the property.

{¶13} The parties submitted into evidence the various deeds compiling the

chain of title relevant to this case, along with the 1989 aerial photograph and the

2005 plat map.

{¶14} The trial court issued its judgment on March 10, 2009. The trial court

declared that there was an easement by implication across Appellants’ property, and

that there were no alternate routes of ingress and egress to a public road except

through the easement. The court noted that Appellees’ property was not “technically

landlocked,” but that Appellees did not have vehicular access to large portions of

their property. The court found that such access was intended by the prior owners

and was permanent in nature. The court found that the easement was reasonably

necessary to the beneficial enjoyment of the land granted to Appellees. The court

also found the servitude to be continuous rather than temporary or occasional. The

court cited Ciski v. Wentworth in its judgment, and found that all the required

elements of Ciski had been met. The court granted declaratory judgment and a

permanent injunction, but failed to award any monetary damages. This appeal

followed on April 9, 2009.

ASSIGNMENT OF ERROR

{¶15} “THE DECISION OF THE TRIAL COURT FINDING THAT THE

APPELLEES HAVE A PERMANENT EASEMENT BY IMPLICATION OVER AND -8-

ACROSS THE PROPERTY OF THE APPELLANTS IS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.”

{¶16} Appellate review of the manifest weight of the evidence in a civil case is

much more deferential to the trial court’s judgment than in a criminal case. State v.

Wilson,

,

,

, ¶26. In C.E. Morris

Co. v. Foley Constr. Co. (1978),

,

, at the syllabus,

the Ohio Supreme Court set forth the standard of review for civil manifest weight of

the evidence cases, stating, “[j]udgments supported by some competent, credible

evidence going to all the essential elements of the case will not be reversed by a

reviewing court as being against the manifest weight of the evidence.” An appellate

court must presume that the findings of the trial judge in a bench trial are correct

since the trial judge had an opportunity “to view the witnesses and observe their

demeanor, gestures and voice inflections, and use these observations in weighing

the credibility of the proffered testimony.” Seasons Coal Co., Inc. v. Cleveland

(1984),

,

.

{¶17} Appellants are challenging the manifest weight of the evidence

establishing an implied easement across their property. An easement, in its most

fundamental form, is the grant of a use on the land of another. Alban v. R.K. Co.

(1968),

,

,

. Implied easements

are based upon the principle that when an individual conveys property, he also

conveys whatever is necessary for the use and enjoyment of that property. Deyling

v. Flowers (1983),

,

, syllabus, citing Trattar v. -9-

Rausch (1950),

,

,

, syllabus. Implied

easements are disfavored in the law as being contrary to the rule that written

documents speak for themselves. Campbell v. Great Miami Aerie No. 2309,

Fraternal Order of Eagles (1984),

, 15 OBR 182,

.

{¶18} “It 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.”

,

,

.

{¶19} To establish an easement by implication, the plaintiff must 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 reasonably 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.

,

, at syllabus;

see also Cadwallader v. Scovanner,

,

,

;

, 15 OBR 182,

.

{¶20} An implied easement may by implied either by prior use or by necessity.

Cadwallader at ¶14. If the plaintiff is attempting to establish an implied easement by -10-

prior use, he must show that the easement was reasonably necessary, as stated in

the third element above.

. If the plaintiff is attempting to

establish an implied easement by necessity, the plaintiff must show that the

easement is strictly necessary rather than reasonably necessary. Tiller v. Hinton

(1985),

, 19 OBR 63,

; Wheeler v. McBride,

,

,

.

{¶21} Appellees argue on appeal that the trial court found both an express

and an implied easement, and that Appellants cannot prevail in this appeal unless

they undermine both aspects of the trial court’s judgment. Appellee’s argument is not

correct. The trial court did not find an express easement existed, here. Furthermore,

if the trial court had declared both an express and an implied easement, this would

have amounted to an error, since they are mutually exclusive. “[B]ecause easements

of necessity are implied by law to provide a right of way over land which could have

been effectuated by an express grant but was not, one may not simultaneously have

an easement over another's land both by express grant and an easement implied of

necessity.” (Emphasis omitted.)

, 19 OBR 63,

. Thus, the only issue on appeal is whether the record supports the

existence of an implied easement.

{¶22} The first of the four Ciski elements for establishing an implied easement

is that there was a severance of a prior unified estate. The record clearly reflects the

prior unity of title and reveals the subsequent severance of that title leading to the

present dispute. Joseph Pew owned the unified property in 1906. The property -11-

abutted State Route 7 in Monroe and Belmont Counties. The Pew Family conveyed

the property to the Powhatan Mining Company in 1943. The Powhatan Mining

Company merged into the North American Mining Company in 1959. The North

American Mining Company changed its name to the Bellaire Corporation in 1988.

Ultimately, the Bellaire Corporation was the unified owner of the Belmont and Monroe

County properties prior to the split of property leading to the dispute in this appeal.

{¶23} The first split of the property that is relevant to this case occurred in

1991, when the Bellaire Corporation conveyed 130 acres of Monroe County property

to the plaintiffs’ predecessors in interest, Gary and Penny Midcap. The Midcaps

conveyed their Monroe County property to Appellees in 1993. While this case was

pending, Appellee Yowonske conveyed his entire interest in the property to Appellee

Malinzak.

{¶24} The second relevant split of the property occurred in 2003, when the

Bellaire Corporation conveyed 24.513 acres of Belmont County property to Appellant

MDB Construction. MDB Construction later conveyed 5.144 acres of that property to

Appellant Spierings in 2005, and the Spierings’ property also abuts Appellees’

property on the Monroe County line. The easement in dispute runs partially through

the Spierings’ property.

{¶25} The record fully establishes the original unity of the properties in

dispute, the split of the property, and the history of ownership up to and including the

present owners. Therefore, the first of the four Ciski elements is satisfied. -12-

{¶26} The second element is that, before the separation of the land takes

place, the use that gives rise to the easement must have been continued and

obvious or manifest as to show that it was meant to be permanent. Appellee

Yowonske testified that the access road across Appellants’ property that connected

to Township Road 516 existed and was in use when he purchased the property, and

was used by his predecessor in interest, Gary and Penny Midcap. (2/17/09 Tr., pp.

19-20.) He testified that the Midcaps and others used it to haul timber, among other

things. Marvin Brown, the owner of MDB Construction, testified that he was aware

that the Midcaps used the easement to access their property. (2/17/09 Tr., p. 145.)

The easement is specifically mentioned in the Midcaps’ deed, and it was this deed

that effected the splitting of the original unified property. The Midcaps’ deed contains

the following easement language:

{¶27} “Together with a right of way and easement for ingress and egress in

and over existing ways and lanes across Grantor’s lands described in the deed

recorded in Volume 343, at Page 338 in the Belmont County, Ohio, Record of Deeds,

extending from the above described premises to public roads or highways.”

(Plaintiffs’ Exh. 2, p. 2.)

{¶28} The reference to Volume 343, Page 338 of the Belmont County Deed

Records refers to the deed granting both the Belmont and Monroe County properties

from the Pew family to Powhatan Mining Company.

{¶29} Furthermore, Appellees introduced into evidence a 1989 aerial

photography map that shows the easement. (Plaintiffs’ Exh. 13.) Surveyor Michael -13-

Austen testified that the aerial photograph displays the easement as a dirt road, and

that this photograph predated the split of property in 1991 in which Appellees’

predecessors in interest acquired approximately 130 acres from Bellaire Corporation.

(2/17/09 Tr., pp. 69-70.) Surveyor Austen also testified regarding a plat map he

made for Appellants in 2005 that showed the exact contours of the easement that

appear in the 1989 aerial photograph. (Plaintiffs’ Exh. 11.) The juxtaposition of

Plaintiffs’ exhibits 11 and 13 illustrate quite plainly that the easement existed almost

unchanged from 1989 to 2005.

{¶30} Based on this evidence, the record supports the existence of the

easement road prior to and immediately after the split of the property.

{¶31} The third element establishing the implied easement is that the use of

the easement is reasonably necessary (in the case of an implied easement by prior

use), or strictly necessary (for an implied easement of necessity). The trial court

found that the easement was “reasonably necessary,” indicating that this was a

matter of an implied easement by prior use.

{¶32} Appellee Yowonske testified that the majority of his property consists of

steep hills. (2/17/09 Tr., p. 18.) He testified that he uses the property primarily for

hunting and for investment purposes. (2/17/09 Tr., p. 23.) He would use the property

between five and twenty times per year for hunting. He testified that the northern part

of the property is the best part for hunting. (2/17/09 Tr., p. 31.) He testified that, due

to the steepness of the terrain, he cannot access the northern part of his property

except by way of the easement road that goes through Appellants’ property and -14-

connects to Township Road 516. (2/17/09 Tr., pp. 30-31.) He testified that the only

road he ever used to access his property was the easement road from Township

Road 516 through Appellants’ property. (2/17/09 Tr., p. 23.)

{¶33} Surveyor Austen testified that the only public road bordering Appellees’

property was State Route 7, but that there was no feasible vehicular access to and

from State Route 7 due to the steepness of the terrain. (2/17/09 Tr., p. 63.) Mr.

Austen testified that vehicular traffic could only access Appellees’ property by way of

the easement that connects to Township Road 516. (2/17/09 Tr., p. 71.) This

evidence supports the trial court’s conclusion that the easement was reasonably

necessary for Appellees to have beneficial use of their property.

{¶34} The fourth element in order to establish an implied easement is that the

easement was in continuous use. The record fully supports that the Midcap family

(Appellees’ predecessors in interest), regularly used the easement to access the

property. Appellee Yowonske testified that he regularly used the easement to access

the property for hunting. Aerial photographs show the road in existence from at least

1989. Mr. Marvin Brown testified that he was completely aware that the Midcaps

used the easement for logging, and he personally invited Mr. Yowonske to continue

to use the easement the first time they met each other. (2/17/09 Tr., p. 106.) The

easement was stopped from being in continuous use only when Mr. Brown prevented

Mr. Yowonske from using it in 2004. Thus, the record supports that the fourth and

final Ciski element has been proven. -15-

{¶35} The evidence in this case fully supports the trial court’s conclusion that

there was an easement implied by prior use on Appellants’ property, and Appellants’

sole assignment of error is overruled. The judgment of the trial court is affirmed.

Donofrio, J., concurs.

DeGenaro, J., concurs.