[Cite as Sherck v. Bremke,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

KARL E. SHERCK, et al. C.A. No. 11CA010078

Appellees

v. APPEAL FROM JUDGMENT ENTERED IN THE JOHN R. BREMKE, et al. COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellants CASE No. 10CV169023

DECISION AND JOURNAL ENTRY

Dated: August 6, 2012

DICKINSON, Judge.

INTRODUCTION

{¶1} For a number of years, Karl and Connie Sherck accessed property that they owned

by passing through land owned by John and Kimberly Bremke. When they began increasing the

frequency with which they used the route, however, the Bremkes erected a fence to keep them

off the Bremkes’ property. The Shercks sued the Bremkes seeking a declaration that they have

an easement to pass over the Bremkes’ property. The Bremkes counterclaimed, requesting that

the trial court enjoin the Shercks from entering their land. Following discovery, the Shercks

moved for summary judgment and the Bremkes moved for partial summary judgment. The court

granted judgment to the Shercks, concluding that, under Section 723.08 of the Ohio Revised

Code, they have an easement over the part of the Bremkes’ property that at one time had been

dedicated to public use. The Bremkes have appealed, arguing that the court incorrectly granted

the Shercks’ motion for summary judgment and incorrectly denied the Bremkes’ motion for 2

partial summary judgment. We reverse because the trial court incorrectly analyzed whether it

was reasonably necessary for the Shercks to have an easement over the Bremkes’ land under

present conditions instead of the conditions that existed at the time that the City abandoned its

interest in the land dedicated to public use.

BACKGROUND

{¶2} In March 1956, Charles and Martha Thomas submitted to Amherst a plat for

approximately 22 acres of land in that city. In the plat, they “dedicate[d] to public use the

following roads . . . Leavitt Road, Butternut Drive, Park Avenue, Edgewood Drive, and Fairlain

Drive[.]” The plat was recorded on September 19, 1956.

{¶3} All of the roads proposed and dedicated in the plat were constructed except

Fairlain Drive. The only part of Fairlain that was improved was a short section leading to the

driveway of a lot on the corner of Butternut and Fairlain. That lot is now owned by the Bremkes.

{¶4} In 1981, the Shercks bought two lots along the unconstructed part of Fairlain

Drive that were adjacent to the lot the Bremkes now own. The two lots bought by the Shercks

also partially abutted property that they already owned along Park Avenue. According to the

Shercks, after they purchased the lots, they constructed a garage on them to house and repair

antique cars. They also planted a garden. The Shercks testified that, although the lots connect to

their Park Avenue property, they have always accessed them by passing through the lot at the

corner of Butternut and Fairlain. According to Mr. Sherck, there is not enough room to drive

from their Park Avenue property to their other lots without damaging the house that is on the

Park Avenue property. 3

{¶5} After the Shercks purchased the lots along Fairlain, they and several of the other

property owners along the undeveloped road petitioned the City to vacate and remove Fairlain

Drive from its list of dedicated streets. In 1982, the City passed an ordinance vacating the road.

{¶6} In 1999, the Bremkes purchased the lot at the corner of Butternut and Fairlain

Drive. According to Mr. Bremke, after he purchased the lot, Mr. Sherck visited him to discuss

the Shercks’ access to their two lots along the vacated road. In his affidavit, Mr. Bremke

asserted that he gave the Shercks a revocable license to continue using his property to drive their

classic vehicles to and from the garage they had built. He revoked the license and constructed

the fence, however, when he learned that they had begun using the route for other purposes.

VACATION OF STREET

{¶7} The Bremkes’ first assignment of error is that the trial court incorrectly

determined that Section 723.08 of the Ohio Revised Code applies to the facts of this case. Under

Section 723.08, “[t]he order of a legislative authority of a municipal corporation vacating or

narrowing a street or alley which has been dedicated to public use by the proprietor thereof,

shall, to the extent to which it is vacated or narrowed, operate as a revocation of the acceptance

thereof by the legislative authority, but the right of way and easement therein of any lot owner

shall not be impaired by such order.” According to the Bremkes, Section 723.08 only applies to

streets that have been “accepted” by a municipality and there is a genuine issue of material fact

regarding whether Amherst ever accepted Fairlain Drive. They have argued, therefore, that the

trial court incorrectly determined on summary judgment that the Shercks have an easement

pursuant to Section 723.08.

{¶8} Under Section 711.06 of the Ohio Revised Code, anyone who desires to subdivide

lots in a municipal corporation “shall make an accurate plat of such subdivision.” Eggert v. 4

Puleo,

(1993) (quoting R.C. 711.06). “Th[e] plat must be subscribed and

acknowledged, and ‘shall be recorded in the office of the county recorder.’”

(quoting R.C.

711.06). “The method of approval varies depending upon the circumstances.”

. “Upon

recording, . . . the plat shall thereupon be a sufficient conveyance to vest in the municipal

corporation the fee of the parcel of land designated or intended for streets . . . or other public

uses, to be held in the corporate name in trust to and for the uses and purposes set forth in the

instrument.” R.C. 711.07; Eggert,

, at paragraph one of the syllabus. In this

case, the parties agree that the Thomases’ plat designated five streets for public use and that it

was properly recorded. Under Section 711.07, upon recording, the City gained a vested fee

interest in each of the five streets dedicated to public use in the plat. Eggert,

,

at paragraph one of the syllabus.

{¶9} After a municipality approves a proposed plat and allows it to be recorded, “the

fee of land designated for public use passes, and the developer becomes bound to proceed

according to the plan set forth in the approved and recorded plat. For example, the developer

must construct the streets as they appear in the plat. However, the approval and recording of the

plat also have important consequences for the municipal corporation. The municipal corporation

itself becomes bound, in that it must be prepared to accept the street as a public street if the

developer complies with the conditions imposed by the municipal corporation and satisfactorily

builds the proposed street in accordance with the approved and recorded plat.” Eggert v. Puleo,

(1993).

{¶10} The Ohio Supreme Court has held that, if a municipality has a fee interest in a

roadway, abutting land owners have an equitable easement to use the roadway. Callen v.

Columbus Edison Elec. Light Co.,

, 174-75 (1902). Those abutting owners also 5

have a reversionary interest in the land should the city ever abandon it. State, ex rel. Bedard v.

Village of Lockbourne,

(10th Dist. 1990); Grabnic v. Doskocil, 11th

Dist. No. 2002-P-0116,

. “The rule is well established in Ohio that upon

the vacation of a street the fee thereto does not revert to the original dedicator but accretes to the

abutting-lot owners, subject only to such rights as other such owners may have in the street as a

necessary means of access to their property.” Greenberg v. L. I. Snodgrass Co.,

, 357 (1954); R.C. 723.08.

{¶11} The Bremkes have argued that the provision of Section 723.08 that preserves “the

right of way and easement . . . of any lot owner” does not apply in this case because, according to

them, Section 723.08 only applies to streets that were previously accepted by the City. Section

723.04 of the Ohio Revised Code specifically provides municipal corporations authority to

vacate “a street or alley” in response to a petition by a person owning a lot in the vicinity of that

street or alley.

{¶12} Most of the cases involving vacation of a street under Section 723.04 involve

streets that were not only approved, but also accepted by a municipality. The distinction

between a street dedicated to public use that has been approved and a street dedicated to public

use that has been accepted is important. According to the Ohio Supreme Court, “[e]ven though

the municipal corporation holds the fee of the land upon which the street is to be built upon

approval and recording of the plat, the land is still in the care and control of the developer until

the street is completed in accordance with specifications set forth in the plat. The proposed street

does not become a public street until the street is accepted by the municipal corporation. It is at

that point, upon acceptance, that the care, supervision, and control of the street become the

responsibility of the municipal corporation. . . . Prior to acceptance by the municipal corporation, 6

the street is not a public street, but is only a proposed public street.” Eggert v. Puleo,

(1993).

{¶13} There are two ways that an approved street can become an accepted street under

the Ohio Revised Code. First, a municipality can accept a street that has been dedicated to

public use by ordinance. R.C. 723.03. Second, if the street is part of a plat and has been

“constructed in accordance with the specifications set forth on the approved plat” and “is in good

repair,” the city engineer may put an “endorse[ment] on the approved plat” and the endorsement

“shall constitute an acceptance of the street for public use.” R.C. 711.09.1.

{¶14} In this case, the Shercks did not present uncontroverted evidence that the City

accepted Fairlain Drive as a public street either by ordinance or endorsement. The question,

therefore, is whether a City can “vacate” a street that it has approved but not accepted or

whether, alternatively, Section 723.04 applies only to accepted “public streets.”

{¶15} As previously noted, Section 723.03 of the Ohio Revised Code identifies one way

in which a street that has been dedicated to public use becomes a “public street” that the

municipality is required to maintain. While Section 723.03 draws a distinction between “public

streets” and other streets, Section 723.04 only uses the term “street.” Because use of Section

723.04 is not limited to “public streets,” even though that phrase is used elsewhere in Chapter

723, we conclude that it applies to any street in which a municipality has a fee interest, not just

“public streets” for which the municipality has accepted a duty of maintenance.

{¶16} It is rational for a municipality to be able to vacate its interest in a street even

though it has not accepted responsibility to maintain the street. As explained earlier, a

municipality receives a fee interest in a street dedicated to public use as soon as a plat is

recorded. R.C. 711.07. This may be long before the street satisfies the conditions for 7

acceptance. See 711.09.1. Allowing a municipality to vacate its fee in a street before the street

is accepted relieves the municipality of the possibility that it will in the future become

responsible for the care, supervision, and control of the street. See

(providing that a street is

accepted when the city engineer endorses the plat). The vacation process under Section 723.04

provides municipalities with a clear procedure for giving up their title to streets that have been

dedicated to public use.

{¶17} The language of Section 723.08 does not dictate a different result. Although

Section 723.08 provides that an order vacating a road “operate[s] as a revocation of the

acceptance [of the street],” that language merely explains one of the effects of vacating a street.

That is, if the street is a public street, vacating the street operates as a revocation of the

acceptance. Section 723.08 does not mean that the only streets that may be vacated are those

that have been accepted by a municipality. R.C. 723.08.

{¶18} The Bremkes have cited Halstead v. Ohio One Corp., 7th Dist. No. 06-MA-64,

, for the proposition that “a proper dedication [of a street] cannot be established

unless specific evidence is presented showing both the intent of the private owner to dedicate the

land and the municipality’s actual acceptance of the land.” Id. at ¶ 21. Noting that Section

723.08 only applies to streets that have been dedicated to public use, they have argued that it

follows that Section 723.08 also only applies to streets that have been accepted. Halstead,

however, did not involve platted land. If a street is not dedicated for public use as part of a plat

under Chapter 711, the only way a municipality can gain a fee interest in the street is if “the

dedication is accepted and confirmed by an ordinance specifically passed for such purpose.”

R.C. 723.03. In this case, however, the City obtained a fee interest in Fairlain Drive when the

plat was recorded in 1956. The City did not have to accept the dedication to public use by 8

ordinance to gain title to the street as in Halstead. Halstead,

(citing

Becker v. Youngstown,

(7th Dist. 1936)). Accordingly, we conclude that

Halstead is distinguishable.

{¶19} Because Section 723.08 applies to any street that has been dedicated to public use,

the trial court correctly concluded that Section 723.08 could apply to the facts of this case. The

Bremkes’ first assignment of error is overruled.

REASONABLY NECESSARY

{¶20} The Bremkes’ second assignment of error is that the trial court incorrectly granted

summary judgment to the Shercks because a genuine issue of material fact exists regarding

whether the Shercks have an easement in their property under Section 723.08 of the Ohio

Revised Code. They have argued that questions of fact exist regarding whether it is reasonably

necessary for the Shercks to use their property for ingress and egress when they own other land

that abuts their Fairlain Drive property.

{¶21} Under Section 723.08, if a municipality vacates a street that has been dedicated to

public use, the municipality’s order does not impair “the right of way and easement” of other

property owners. R.C. 723.08. In Butzer v. Johns,

(9th Dist. 1979), this

Court explained that, “[if] a street is vacated and the land reverts to the abutting lot owners,

certain rights to an easement may inhere in property owners whose land abuts the vacated area, if

access to their own property is affected by the vacation.”

. In Lord v. Wilson, 9th

Dist. No. 1354,

(Apr. 10, 1985), we clarified that, “in determining whether [an]

abutting landowner retains an easement in a vacated street . . . [t]he issue [is] whether continued

access through the vacated street was reasonably necessary for [the lot owner] at the time the

street was vacated.” Id. at *2. 9

{¶22} In this case, the trial court determined that Mr. Sherck’s affidavit and deposition

testimony established the “expense, inconvenience, and impracticability of the Shercks utilizing

another path” to access their lots. It, therefore, concluded that the Shercks retained an easement

in the vacated part of Fairlain Drive. The problem with the court’s decision is that it focused on

the Shercks’ present ability to access their lots instead of the conditions that existed at the time

the City vacated the street. Accordingly, we vacate the trial court’s decision and remand this

case so that the court can review, in the first instance, whether there is a genuine issue of material

fact regarding whether it was reasonably necessary for the Shercks to use the lot at the corner of

Butternut and Fairlain to access their Fairlain Drive lots at the time that the City vacated Fairlain

Drive. The Bremkes’ second assignment of error is sustained.

WAIVER

{¶23} The Bremkes’ third assignment of error is that the trial court incorrectly denied

their motion for partial summary judgment regarding whether the Shercks have waived their

right to claim an easement in their property. According to the Bremkes, the Shercks have

planted trees within the area vacated by the City that interfere with the easements of the other

owners of the lots along the vacated street. The Bremkes have argued that the Shercks may not

claim an easement in their property if they have infringed on the easements of others. The trial

court concluded that any actions that the Shercks have taken “on their own property cannot

reasonably be construed as a waiver as they involve no act related to the easement existing over

the Bremke property.”

{¶24} As we explained in addressing the previous assignment of error, “in determining

whether [an] abutting landowner retains an easement in a vacated street . . . [t]he issue [is]

whether continued access through the vacated street was reasonably necessary for [the lot owner] 10

at the time the street was vacated.” Lord v. Wilson, 9th Dist. No. 1354,

, * 2

(Apr. 10, 1985). Because whether the Shercks have an easement must be assessed based on the

circumstances at the time the City vacated Fairlain Drive, actions that the Shercks took

subsequent to its vacating the street are irrelevant. The Bremkes’ third assignment of error is

overruled.

LACHES

{¶25} The Bremkes’ fourth assignment of error is that the trial court incorrectly denied

their motion for partial summary judgment regarding whether the Shercks’ claim is barred under

the doctrine of laches. They have argued that the Shercks have done nothing to prevent the

owners of the other lots along Fairlain Drive from planting trees and otherwise impeding the

Shercks’ access across the other owners’ property.

{¶26} Laches is an equitable doctrine that is defined as “an omission to assert a right for

an unreasonable and unexplained length of time, under circumstances prejudicial to the adverse

party.” Perrine v. Perrine, 9th Dist. No. 22472,

(quoting Akron Gen.

Med. Ctr. v. Foutty, 9th Dist. No. 20152,

, *2 (Feb. 14, 2001)). “The elements

of laches are (1) unreasonable delay or lapse of time in asserting a right, (2) absence of an excuse

for such a delay, (3) knowledge—actual or constructive—of the injury or wrong, and (4)

prejudice to the other party.” Martin Marietta Magnesia Specialties L.L.C. v. Pub. Util.

Comm’n,

,

.

{¶27} The issue in this case is whether the Shercks have an easement in the Bremkes’

property. As the trial court noted, the Shercks filed their action only a couple of weeks after the

Bremkes impeded their access to their lots. The trial court correctly determined that there was 11

no genuine issue of material fact that the Shercks did not unreasonably delay their assertion of

their rights. The Bremkes’ fourth assignment of error is overruled.

CONCLUSION

{¶28} The trial court correctly determined that the Shercks may have an easement in the

Bremkes’ land under Section 723.08 of the Ohio Revised Code. It looked at the wrong time

period, however, when it analyzed whether it was reasonably necessary for the Shercks to have

an easement in the Bremkes’ land. The judgment of the Lorain County Common Pleas Court is

reversed, and this matter is remanded for the trial court to determine, in the first instance,

whether there is a genuine issue of material fact regarding whether it was reasonably necessary

for the Shercks to access their Fairlain Drive lots via the Bremke property at the time the City

vacated Fairlain Drive.

Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30. 12

Costs taxed to Appellees.

CLAIR E. DICKINSON FOR THE COURT

WHITMORE, P. J. BELFANCE, J. CONCUR.

APPEARANCES:

JEFFREY H. WEIR, II and JOSHUA E. LAMB, Attorneys at Law, for Appellants.

HOWARD T. LANE, and JAMES R. WHITE, Attorneys at Law, for Appellees.