[Cite as White v. Emmons,

.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY

MICHAEL WHITE, et al., : Plaintiffs-Appellants, Case No. 11CA3438 : vs. : BRENDA EMMONS et. al., DECISION AND JUDGMENT ENTRY :

Defendants-Appellees. _________________________________________________________________

APPEARANCES:

COUNSEL FOR APPELLANTS: Marie Moraleja Hoover, and R. Tracy Hoover, 621 Seventh Street, Portsmouth, Ohio 45662

COUNSEL FOR APPELLEES, Lynn Alan Grimshaw, 8055 Hayport Road, BRENDA, JEFFREY & Wheelersburg, Ohio 45694 CHARLES EMMONS, JR.:

COUNSEL FOR APPELLEES, James Scott Smith, 538 Sixth Street, ALBERT & JOANNA HYLAND: Portsmouth, Ohio 45662

CIVIL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED: 4-30-12

ABELE, P.J.

{¶ 1} This is an appeal from a Scioto County Common Pleas Court judgment in favor of

Brenda Emmons, Jeffrey Emmons and Charles Emmons, Jr. and Albert and Joanna Hyland,

defendants below and appellees herein, on the claims brought against them by Michael and

Beulah White, plaintiffs below and appellants herein. SCIOTO, 11CA3438 2

{¶ 2} Appellants assign the following error for review:

“THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT DECIDED AND ORDERED THAT THE APPELLEES ESTABLISHED AN EASEMENT BY PRESCRIPTION AND AN EASEMENT BY ESTOPPEL OVER APPELLANT’S PROPERTY.” (Footnote omitted.)

{¶ 3} The parties are contiguous landowners. The center of the dispute is a strip of

land known as “Lute Road” that crosses appellants’ property and appellees use to access their

land from Conley Road. Appellants commenced the instant action and alleged that appellees’

use of “Lute Road” amounted to trespass over their property.1 Appellants asked, inter alia, that

title to that area be quieted in their favor and for $25,000 in damages. Appellees denied liability.

{¶ 4} Appellees also filed counterclaims that alleged various theories by which either

they, or their predecessors in title, established an easement over “Lute Road.” They asked the

trial court to recognize, or “establish,” the easements over the servient estate, together with

$25,000 in damages as well as a permanent injunction that bars appellants from interfering with

the easement's use. Appellants denied liability arising from the counterclaims.

{¶ 5} At the bench trial appellants both testified that when they purchased the land in

1981, Lute Road did not exist. Also, two friends who accompanied Appellant Michael White on

hunting trips at the property also testified they did not see any roadway. Still, appellants’

acknowledged that (1) their deed referred to Lute Road in the property description, and (2) their

own surveyor, Mike Crabtree, identified Lute Road from a map dated 1917.2 Appellees,

1 The Hylands were not originally part of this action. Allen and Kelly Wooten were named defendants in the first complaint, but in 2008, sold their interest in the property to the Hylands who then became parties. 2 It appears from the trial transcript that references to Lute Road appear only in appellants’ chain of title, not in the SCIOTO, 11CA3438 3

however, called a number of witnesses who testified that Lute Road existed for almost a century

and in the same location it now exists.

{¶ 6} Despite many references to the right-of-way as a “road” or “roadway,” both in

deeds and witness testimony, the trial court found no evidence in the chains of title to establish

that an express easement was granted over appellants’ property. As to claims of easement by

necessity, the court found that the evidence adduced at trial did not support such a claim for any

of the appellees. The court did, however, find that the Hylands established an easement by

adverse possession as the evidence adduced at trial showed continual use of Lute Road by the

Hylands’ predecessors in title “for over sixty years.” No such use was established as to the

Emmons’s property, the trial court ruled, thus they could not establish an easement by

prescription. Nevertheless, evidence was adduced at trial to show that appellants either

encouraged, or at least permitted, both sets of appellees to expend monies to maintain Lute Road

and appellants communicated back and forth with the parties in such a way as to represent to

appellees, or their predecessors in title, they had an easement over appellants’ property. The

court concluded that this evidence was sufficient to establish an easement by estoppel over the

servient estate for both the Emmonses and Hylands.

{¶ 7} The trial court's entry did not make reference to appellees’ demands for

compensatory damages or permanent injunction against appellants. The court did, however, find

“no just cause for delay.” We dismissed an appeal taken from that judgment for lack of

jurisdiction because the trial court did not rule on all of the remedies appellees requested. White

v. Emmons, Scioto App. No. 10CA3340,

, at ¶¶8&10.

chains of any of the appellees. SCIOTO, 11CA3438 4

{¶ 8} On July 11, 2011, the trial court entered a second judgment and found no evidence

to support an award for money damages to “defendants.”3 The court then issued a permanent

injunction that bars appellants from interfering with appellees’ rights to use the roadway.4 This

appeal followed.

{¶ 9} In their assignment of error, appellants assert that the trial court erred “as a matter

of law” in finding that appellees established their respective easements. We disagree. To the

extent appellants argue that the trial court misinterpreted the law, we review its decision de novo.

In other words, we afford no deference whatsoever to the trial court and instead conduct our

own, independent review. See State v. Browning,

,

,

; State v. Poole,

,

,

,

at ¶18. For the most part, however, the arguments in appellants’ brief argue that the trial court

misinterpreted the evidence. To the extent appellants challenge the trial court as trier of fact, we

will not reverse the decision if supported by some competent, credible evidence. See Shemo v.

Mayfield Hts. (2000),

,

; C.E. Morris Co. v. Foley Constr.

Co. (1978),

,

, at the syllabus. This standard of review is

highly deferential and even “some” evidence is sufficient to support the trial court's judgment and

to prevent a reversal. Barkley v. Barkley (1997),

,

;

Willman v. Cole, Adams App. No. 01 CA725,

, at ¶24. When a court reviews a

3 The July 11, 2011 judgment explicitly discusses the monetary damages the Hylands requested, but did not mention the $25,000 in damages sought by the Emmons’ in their January 9, 2009 counterclaim. Still, we interpret the court’s generalized use of the term “defendants,” in the entry as resolving all of the demands for damages appellees advanced. 4 The trial court issued a nunc pro tunc judgment to same effect on August 12, 2011. SCIOTO, 11CA3438 5

decision that establishes the existence of an easement, this is the standard typically applied. See

e.g. McCumbers v. Puckett,

,

,

, at ¶13;

Cadwallader v. Scovanner,

,

,

, at ¶9.

{¶ 10} Quite frankly, the easiest method to resolve this case, both on appeal and in the

trial court, would be to find an easement by prescription. The uncontroverted evidence at trial is

that no dedicated easement exists over appellants’ land. However, abundant evidence also

revealed that Lute Road existed as early as 1917 and continued in its same location until today.

Many witnesses testified that Lute Road existed, and was used, far longer than the period

necessary to establish a prescriptive easement. David Wilson, a former township trustee,

testified that he is sixty three years old and Lute Road had “always been there and it was there

before I was even born probably.” Seventy eight year old Ray Lute testified that his family

moved to the area in 1939 and used Lute Road to access that farm until 1953 when they

presumably left the area. Carolyn Hobbs’s family bought the Lute property and continued to use

Lute Road to access their land during the 1970s, 1980s and 1990s. James McClary confirmed

this when he testified that he was “positive” the road was there into the 2000s. Appellee Joanna

Hyland affirmed that she and her husband used Lute Road to access their home since their 2008

purchase. She further affirmed that no other access exists to her home.

{¶ 11} The elements of a prescriptive easement claim are similar to those for adverse

possession. In other words, those who seek the easement must demonstrate, by clear and

convincing evidence, the open, notorious, adverse, and continuous use of the easement for a

twenty-one year period. Dunn v. Ransom, Pike App. No. 10CA806,

; SCIOTO, 11CA3438 6

also see e.g.

; McDowell v. Zachowicz, Ashtabula App. No.

2010–A–0033,

, at ¶15. In light of the testimony we previously discussed, we

conclude that more than sufficient evidence established the use of Lute Road for twenty-one

years, and indeed, even much longer than the stated time requirement.

{¶ 12} We recognize that appellants (1) testified that they saw no evidence of a road

when they purchased the property, and (2) produced additional witnesses who also saw no

evidence of the road when they hunted on the land. Nevertheless, the trial court is in the best

position to view the witnesses, to observe their demeanor, gestures, and voice inflections and to

use those observations to weigh witness credibility. See Seasons Coal Co. v. Cleveland (1984),

,

; Jones v. Jones, Athens App. 07CA25,

. The trial court, sitting as the trier of fact, is free to believe all, part or none of the

testimony elicited from the witnesses who appeared before it. See generally, Mahajan v. State

Med. Bd. of Ohio, Franklin App. Nos. 11AP–421, 11AP–422,

, at ¶45;

Sandusky v. Nuesse, Erie App. No. E–10–039,

, at ¶70; Cireddu v. Clough, No.

2010-L-008,

, at ¶26. After our review of the evidence adduced at trial, we

conclude that sufficient evidence supports the trial court’s finding of a prescriptive easement in

favor of the Hylands.5

{¶ 13} Our review of the evidence also leads us to conclude that sufficient evidence

5 We are particularly inclined to give deference to the trial court because during the testimony the parties oftentimes referred to plat and aerial maps. Although counsel made frequent references to “Lute Road,” the transcript also makes reference to “the road,” “the lane” or the “driveway” and it is unclear to us whether the witnesses referred to Lute Road or to something else. Given that the trial court could both observe their testimony, as well as the map(s) to which they referred, we presume the court’s findings are correct. SCIOTO, 11CA3438 7

supports a finding of a prescriptive easement for the Emmonses. Appellee Charles Emmons, Jr.

testified that his father purchased property off Lute Road in 1939 (and he acquired it in 1992) and

had always used Lute Road to get from Conley Road to his farm. The trial court apparently

rejected that testimony, however, and did not find a prescriptive easement for these other

appellees. We respect that finding because we did not observe the witnesses. Nevertheless, the

trial court did find the existence of evidence sufficient to establish that the Emmons’s could

claim easements by estoppel and we believe that sufficient evidence supports that finding.

{¶ 14} An easement by estoppel may be found if a real estate owner misleads or causes

another, in any way, to change the other's position to his or her prejudice. See Johnson v.

Waterville Gas & Oil Co., Lucas App. No. No. L-08-1143,

, at ¶13; Jenkins v.

Guy, Lawrence App. No. 03CA34,

; Schmiehausen v. Zimmerman,

Ottawa App. No. OT-03-027, 2004-Ohio- 3148, at ¶21. The owner of the servient estate need

not perpetrate an actual fraud or misrepresentation to be estopped from denying an easement. If

that landowner, without objection, permits another to expend money in reliance upon the

existence of an alleged easement, when in justice and equity the former ought to have asserted

his conflicting rights, he is estopped to deny the easement. Jenkins, at ¶20; Nichols v. Shuff

(Mar. 20, 1986), Lawrence App. No. 1761.

{¶ 15} Joyce Galloway, who purchased land off of Lute Road in 1983 or 1984, affirmed

that her husband (now deceased) “took months” and “spent tens of thousands of dollars” to make

improvements to Lute Road. David Wilson testified that sometime in the 1990s, Jeff Emmons

paid him $25 per hour to do grading on Lute Road. Former defendant Allen Wooten testified

that he spent $1,430 to purchase gravel and lay it along Lute Road. More important, the witness SCIOTO, 11CA3438 8

related that while doing so, appellant “Mr. White came up and shook my hand and told me that

the road really needed this gravel[.]” Jeff Emmons also related that, on one occasion appellants

contacted him about a clogged ditch around Lute Road and he “went down to clean the leaves out

of the ditch.” The Hylands testified that they spent over $700 for gravel to improve Lute Road.

{¶ 16} If appellants truly believed that Lute Road was their property, and those that used

the road did so with a mere license, they had a duty to make that fact known to appellees and

others through the years. They did not. By acquiescing to various appellees expending time

and money on the road's upkeep over the years, the trial court could reasonably determine that

appellants should be estopped from challenging the claimed easement now, at this late date.

Thus, we find sufficient evidence to support the trial court’s finding of easements by estoppel.

{¶ 17} For all these reasons, we overrule appellant's assignment of error and affirm the

trial court's judgment.

JUDGMENT AFFIRMED.

JUDGMENT ENTRY

It is ordered that the judgment be affirmed and that appellees recover of appellants 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 Scioto County

Common Pleas Court to carry this judgment into execution. SCIOTO, 11CA3438 9

A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

Harsha, J. & McFarland, J.: Concur in Judgment & Opinion For the Court

BY: Peter B. Abele Presiding 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.