[Cite as Ogle v. Ohio Power Co.,

.]

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

Charles R. Ogle, et al., : : Plaintiffs-Appellants, : : Case No. 11CA27 v. : : DECISION AND Ohio Power Company, et al, : JUDGMENT ENTRY : Defendants-Appellees. : Filed: October 23, 2012 ______________________________________________________________________

APPEARANCES:

Charles R. Ogle and Melanie A. Ogle, Rockbridge, Ohio, pro se Appellants.

Brian L. Buzby and Daniel B. Miller, Porter, Wright, Morris & Arthur, LLP, Columbus, Ohio, for Appellee Ohio Power Company.

Christopher T. Cline, Blaugrund, Herbert, Kessler, Miller, Myers & Postalakis, Worthington, Ohio, for Appellees, Christpoher T. Cline, Teresa Jo Gubsch and Margaret Ann Plahuta. ______________________________________________________________________

Kline, J.:

{¶1} Charles R. Ogle and Melanie A. Ogle (collectively, the “Ogles”) appeal the

judgment of the Hocking County Court of Common Pleas, which granted summary

judgment in favor of Ohio Power Company (hereinafter “Ohio Power”). The Ogles

contend that an Ohio Power telecommunications tower near the Ogles’ property

constitutes a nuisance. Because there is no genuine issue of material fact that the

telecommunications tower constitutes a nuisance, we disagree. Accordingly, we affirm

the judgment of the trial court.

I. Hocking App. No. 11CA27 2

{¶2} In October 2007, the Ogles filed a complaint seeking to enjoin Ohio Power

from constructing a telecommunications tower (hereinafter the “Tower”) on property

owned by Christopher T. Cline, Teresa Jo Gubsch, and Margaret Ann Plahuta

(hereinafter, we will refer to this property as the “Cline Property”).1 The Ogles own

property adjacent to the Cline Property.

{¶3} The trial court granted Ohio Power’s motion to dismiss the Ogles’ claim.

We determined, however, that the Ogles’ complaint sufficiently alleges a private

nuisance claim, and we reversed the trial court’s judgment. Ogle v. Ohio Power Co.,

,

,

(4th Dist.).

{¶4} In October 2008, Ohio Power constructed the Tower on the Cline

Property. Eventually, Ohio Power moved for summary judgment on the Ogles’ nuisance

claim. The trial court then granted Ohio Power’s motion and dismissed the Ogles’

complaint.

{¶5} The Ogles appeal and assert the following assignments of error: I. “THE

TRIAL COURT ERRED IN FINDING DEFENDANTS’ MOTIONS FOR SUMMARY

JUDGMENT MERITORIOUS AND DISMISSING PLAINTIFFS’ COMPLAINT.” II. “THE

TRIAL COURT ERRED IN APPLYING SCHOENBERGER V. DAVIS (JUNE 23, 1983),

CUYAHOGA APP. NO. 45611 REGARDING A DRIVEWAY WHICH IN SCOPE AND

EFFECT IS MAGNIFICENTLY SET APART FROM A 350-FOOT ELECTROMAGNETIC

MICROWAVE TOWER.” III. “THE TRIAL COURT ERRED IN CITING A CALIFORNIA

CASE OLIVER V. AT&T WIRELESS SERVICE (1999), 76 CAL.APP.4TH 521

REGARDING A CELLULAR TOWER SUBJECT TO THE FEDERAL

1 The owners of the Cline Property are also defendants/appellees, and they have joined in and adopted Ohio Power’s filings in this case. Hocking App. No. 11CA27 3

TELECOMMUNICATIONS ACT OF 1996.” IV. “THE TRIAL COURT ERRED IN

CONCLUDING THAT ‘NO SUCH EVIDENCE OF NEGLIGENCE EXISTS HEREIN’, IN

THAT THE PLAINTIFFS WERE NOT REQUIRED TO COME FORWARD WITH

EVIDENCE TO SUPPORT THEIR CLAIMS OTHER THAN IN THEIR RESPONSE TO

DISCOVERY.” V. “THE TRIAL COURT ERRED IN MISAPPLYING ADAMS V.

GORRELL (1927), 28 OHIO APP. 55 TO THIS CASE.” VI. “THE TRIAL COURT

ERRED IN SEPARATING OUT THE ISSUE OF PROPERTY VALUE AS

INSUFFICIENT TO CONSTITUTE A NUISANCE.” VII. “THE TRIAL COURT ERRED IN

CONCLUDING ‘INAPPLICABILITY’ OF PLAINTIFFS’ NUISANCE PER SE AND

NUISANCE ACCIDENS ARGUMENTS, WITH CITATIONS, OF A 350-FOOT

ELECTROMAGNETIC MICROWAVE TOWER LOCATED NEAR AND VISIBLE FROM

PLAINTIFFS’ RESIDENCE AND MOST OF THEIR PROPERTY, TO BE ABSENT OF

GENUINE FACTUAL ISSUES.” VIII. “THE COURT ERRED IN GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ‘FOR THE REASONS

STATED HEREIN, AS WELL AS THOSE PERSUASIVELY ARGUED BY

DEFENDANTS IN THEIR BRIEFS’ WITHOUT RECAPITULATING ANY PARTICULAR

PERSUASIVE REASONS MADE BY DEFENDANTS.” IX. “THE COURT ERRED IN

NOT VIEWING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN A LIGHT

MOST FAVORABLE TO THE PARTY OPPOSING THE MOTION.” And X. “THE TRIAL

COURT ERRED IN FINDING THAT ‘(1) THERE ARE NO GENUINE ISSUES OF

MATERIAL FACT, (2) DEFENDANTS ARE ENTITLED TO JUDGMENT AS A MATTER

OF LAW, AND (3) REASONABLE MINDS, VIEWING THE EVIDENCE MOST

FAVORABLY TO PLAINTIFFS, COULD FIND ONLY FOR DEFENDANTS.’” Hocking App. No. 11CA27 4

II.

{¶6} In all of their assignments of error, the Ogles essentially argue that the trial

court erred in granting Ohio Power’s motion for summary judgment. Therefore, we will

consider all of the Ogles’ assignments of error together.

{¶7} “Because this case was decided upon summary judgment, we review this

matter de novo, governed by the standard set forth in Civ.R. 56.” Comer v. Risko,

,

,

, ¶ 8. Summary judgment is

appropriate only when the following have been established: (1) that there is no genuine

issue as to any material fact; (2) that the moving party is entitled to judgment as a

matter of law; and (3) that reasonable minds can come to only one conclusion, and that

conclusion is adverse to the nonmoving party. Civ.R. 56(C). Accord Bostic v. Connor,

,

(1988); Grimes v. Grimes, 4th Dist. No.

08CA35,

, ¶ 14. In ruling on a motion for summary judgment, the court

must construe the record and all inferences therefrom in the opposing party’s favor.

Doe v. First United Methodist Church,

,

(1994).

{¶8} The burden of showing that no genuine issue of material fact exists falls

upon the party who moves for summary judgment. Dresher v. Burt,

,

(1996). However, once the movant supports his or her motion with

appropriate evidentiary materials, the nonmoving party “may not rest upon the mere

allegations or denials of the party’s pleadings, but the party’s response, by affidavit or

as otherwise provided in [Civ.R. 56], must set forth specific facts showing that there is a

genuine issue for trial.” Civ.R. 56(E). Accord

. Hocking App. No. 11CA27 5

{¶9} “In reviewing whether an entry of summary judgment is appropriate, an

appellate court must independently review the record and the inferences that can be

drawn from it to determine if the opposing party can possibly prevail.”

.

“Accordingly, we afford no deference to the trial court’s decision in answering that legal

question.” Morehead v. Conley,

,

(4th

Dist. 1991). Accord

.

{¶10} The Ogles have alleged a private nuisance claim against Ohio Power. “A

‘private nuisance’ is ‘a nontrespassory invasion of another’s interest in the private use

and enjoyment of land.’” Ogle,

,

,

, quoting Brown v. Scioto Cty. Commrs.,

,

(4th Dist. 1993). There are two types of private nuisance claims – a qualified

nuisance and an absolute nuisance. Adams v. Pitorak & Coenen Invests., Ltd., 11 Dist.

Nos. 2009-G-2931 & 2009-G-2940,

, ¶ 36. The essence of an absolute

nuisance is that “no matter how careful one is, such activities are inherently injurious

and cannot be conducted without damaging someone else’s property or rights.”

. Thus, absolute nuisance is “based upon either intentional conduct or

abnormally dangerous conditions, and as such the rule of absolute liability applies.”

“Conversely, qualified nuisance is premised upon negligence. It consists of a lawful act

that is so negligently or carelessly done as to have created an unreasonable risk of

harm which in due course results in injury to another.”

{¶11} First, we conclude there is no genuine issue of fact to sustain a qualified

nuisance claim. The Ogles did not present any evidence that Ohio Power’s construction Hocking App. No. 11CA27 6

and operation of the Tower was done negligently or carelessly. Thus, there is no

evidence that the Tower constituted a qualified nuisance. See

.

{¶12} Next, we analyze whether the Ogles can show that the Tower constitutes

an absolute nuisance. “[A]n absolute nuisance requires intentional conduct on the part

of the defendant[.] Intentional, in this context, means not that a wrong or the existence

of a nuisance was intended but that the creator of [it] intended to bring about the

conditions which are in fact found to be a nuisance.” Angerman v. Burick, 9th Dist. No.

02CA0028,

, ¶ 10. The Ogles argue that the Tower is a nuisance

based on (1) health hazards caused by the Tower and (2) the unsightliness of the

Tower.

{¶13} There is no evidence to support the Ogles’ claim that the Tower is a

nuisance based on alleged health hazards. For example, the Ogles allege that the

Tower’s electromagnetic emissions pose an increased risk of cancer. However, the

Ogles have not come forward with any actual evidence showing that the Tower

constitutes a health hazard of any sort. Thus, there is no genuine issue of material fact

regarding whether the Tower is a nuisance based on the alleged health hazards.

{¶14} Additionally, the Ogles’ assertions that the Tower is unsightly are

insufficient to show that the Tower constitutes a nuisance. See Bohley v. Crofoot,

,

, *1 (9th Dist. 1929). In Bohley, the court held that

the unsightliness of a lawfully operated junkyard was, by itself, insufficient to constitute

a nuisance. Specifically, the court stated as follows:

The mere unsightliness of the junk upon defendant’s

premises violates no rights of the plaintiff, any more Hocking App. No. 11CA27 7

than an unsightly house or other building would; and a

court of equity cannot, at the instance of one

neighbor, control another neighbor in the use of his

own premises when such use in no way violates the

rights of said first neighbor; where no right has been

invaded, although one may have damaged another,

no liability has been incurred, and no redress, either

in law or in equity, is obtainable.

See also Schoenberger v. Davis, 8th Dist. No. 45611,

, *6 (June 23,

1983). Other jurisdictions have also found that “unsightliness, without more, does not

create an actionable nuisance.” Ness v. Albert,

(Mo.App. 1983); see

also Oliver v. AT&T Wireless Servs.,

(1999) (“The displeasing

height and shape of the new tower cannot, in and of itself, make it a nuisance to those

who sit on the other side of the property line.”); Oklejas v. Williams,

,

(1983).

{¶15} Finally, the Ogles argue that the Tower has caused a diminution in value

in their property. Even assuming that to be true, the only evidence that the Ogles have

presented to support their nuisance claim is that the Tower is unsightly. And

“unsightliness, without more, does not create an actionable nuisance.”

.

Consequently, because there is no evidence to support an actionable nuisance, the

Ogles cannot recover for the alleged diminution in value of their property.

{¶16} Accordingly, we conclude (1) that there is no genuine issue as to any

material fact regarding the Ogles’ nuisance claim; (2) that Ohio Power is entitled to Hocking App. No. 11CA27 8

judgment as a matter of law; and (3) that reasonable minds can come to only one

conclusion, and that conclusion is adverse to the Ogles. As a result, we overrule all of

the Ogles’ assignments of error and affirm the judgment of the trial court.

JUDGMENT AFFIRMED. Hocking App. No. 11CA27 9

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

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

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

Abele, P.J. and McFarland, J.: Concur in Judgment & Opinion.

For the Court

BY:_____________________________ Roger L. Kline, 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.