[Cite as Hawkins v. Creech,

.]

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

SHIRLEY A. HAWKINS, ET AL., : : Plaintiffs-Appellees, : Case No. 12CA938 : vs. : : DECISION AND JUDGMENT FRANK RAY CREECH : ENTRY : Defendant-Appellant. : Released: 03/19/13 _____________________________________________________________ APPEARANCES:

Jon C. Hapner, Hapner & Hapner, Hillsboro, Ohio, for Appellant.

Dana N. Whalen, West Union, Ohio, for Appellees. _____________________________________________________________

McFarland, P.J.

{¶ 1} Defendant-Appellant Frank Ray Creech appeals the judgment

of the Adams County Common Pleas Court granting a permanent injunction

to Plaintiffs-Appellees Shirley Hawkins, Janet Shroyer, and Virginia Dyer.

Having reviewed the record and the pertinent law, we affirm the judgment of

the trial court.

FACTS

{¶ 2} Appellees and Appellant are four of nine children who, after

the death of their mother Iva Creech in 2004, inherited an approximately

100- acre farm located in Adams County. Mrs. Creech’s children had Adams App. No. 12CA938 2

several family meetings after her death, at which they discussed how the

farm property would be divided.

{¶ 3} The family chose Appellee Shirley Hawkins and another sister,

Kathy Black, to meet with a surveyor and discuss the property division.

They took a list of issues discussed at the family meeting. Pursuant to the

property division, one brother received the mother’s house and barn area.

The remaining eight family members received vacant land in equal tracts of

12.193 acres. Appellees and another sister who is not a party to these

proceedings received interior lots. An easement was necessary to give the

interior lot owners access to Creech Road, a public township road. The

easement was 50- foot wide and gave access to Creech Road through

Appellant’s lot. The certificates of transfer for the interior lots contain the

following language:

Also hereby conveyed is the above-described 50.00 foot wide easement for ingress, egress, and utility placement from said Creech Road to the above described 12.193 acre tract.

{¶ 4} Sometime in 2009, Appellees began improving the easement

by installing a culvert and dropping gravel, at a width of approximately ten

feet, down the center of the easement. Various disputes arose regarding the

rights of Appellees, as dominant easement holders, and Appellee, as a

servient easement holder. A complaint for declaratory judgment and Adams App. No. 12CA938 3

injunction was filed on July 14, 2010. By preliminary injunction granted

October 12, 2010, Appellant was enjoined from placing anything upon the

easement, but was permitted to plant crops. Appellees were permitted to

repair the culverts and maintain the easement as needed. In December 2011,

the trial court granted a permanent injunction, further restricting Appellant’s

agricultural activities. In its decision, the trial court noted the easement

became effective in 2006 and paraphrased Appellees’ testimony that “the

dominant estate holders are still learning what improvements to the roadway

are necessary to effectuate reasonable use of the easement for ingress and

egress, as well as utility placement.”

{¶ 5} Appellant filed a timely notice of appeal.

ASSIGNMENT OF ERROR

I. THE TRIAL COURT ERRED IN EXTENDING THE RIGHTS OF THE DOMINANT OWNERS OF THE EASEMENT OVER THE SERVIENT TENANT.

A. STANDARD OF REVIEW

{¶ 6} The decision to grant the equitable remedy of injunction rests

in the sound discretion of the trial court. See Garano v. Ohio,

,

(1988); Myers v. Wild Wilderness Raceway, L.L.C.,

,

,

, Fn 5 (4th Dist.).

Trial courts retain broad discretion to fashion the terms of an injunction. Adams App. No. 12CA938 4

D&J Co. v. Stuart,

,

(6th Dist.

2001); Restivo v. Fifth Third Bank of Northwestern Ohio, N.A.,

,

(6th Dist. 1996); Cullen v. Milligan,

,

(10th Dist. 1992); Myers, ¶ 25.

{¶ 7} Generally, an abuse of discretion is much more than an error of

law or judgment; rather, it implies that a trial court’s attitude is

unreasonable, arbitrary, or unconscionable. See Landis v. Grange Mut. Ins.

Co.,

,

(1998); Malone v. Courtyard

by Marriott L.P.,

,

(1996); Myers,

at 26. When applying the abuse of discretion standard, appellate courts must

not substitute their judgment for that of the trial court. State ex rel. Duncan

v. Chippewa Twp. Trustees,

,

(1995); In re Jane Doe 1,

,

(1991); Myers, 26. Indeed to establish an abuse of discretion, the result must

be so palpably and grossly violative of fact or logic that it evidences not the

exercise of will but the perversity of will, not the exercise of judgment, but

the defiance of judgment, not the exercise of reason but instead passion or

bias. See Nakoff v. Fairview Gen.Hosp,

,

(1996); Adams v. Adams, 4th Dist. No. 05CA63,

,

, at ¶ 6; Myers at 26. Adams App. No. 12CA938 5

{¶ 8} An easement is an interest in the land of another, created by

prescription or express or implied grant, that entitles the owner of the

easement, in the dominant estate, to a limited use of the land in which the

interest exists, the servient estate. Alban v. R.K. Co.,

,

(1968); Yeager v. Tuning,

, 124, 86

N.E.657 (1908); Crane Hollow, Inc. v. Marathon Ashland Pipe Line,

L.L.C.,

,

(4th Dist. 2000); Esteph v.

Grumm,

,

,

(4th Dist.). When an easement exists by an express grant, the extent and

limitations upon the dominant estate’s use of the land depend upon the

language in the grant.

; Crane

;

.

{¶ 9} “It has long been the rule in Ohio that although the owner of

the dominate estate may not increase the burden or materially enlarge his

right over the serviant estate, changes in the use of the easement are

permitted to the extent they result from normal growth and development of

the dominate land, and are a proper and reasonable use of the easement, Erie

Railroad Company v. S.H. Kleinman Realty Company,

,

(1915). An easement holder may not increase the burden upon the

serviant estate by engaging in a new and additional use of the easement, Adams App. No. 12CA938 6

Centel Cable Television Company of Ohio, Inc. v. Cook,

,

(1991). However, in the absence of specific language to

the contrary, the easement holder may vary the mode of enjoyment and use

of the easement if by doing so he can more freely exercise the purpose for

which the grant was made, Ohio Oil Gathering Corp. II v. Shrimplin, (July

23, 1990), Coshocton App. No. 89-90, citations deleted.” Myers v. McCoy,

4th Dist. No. 2004CAE07059, 2005 Ohio-2171,

, ¶ 21.

Generally, the court should presume the parties contemplated normal

development would result in some changes in the mode of use of the

easement, even if the parties had not anticipated the specific change which

occurs. Myers, at ¶ 21.

B. LEGAL ANALYSIS

{¶ 10} The parties do not dispute the trial court’s finding the

easement was an express grant and the dimensions and use are

unambiguous. In its decision, the trial court quoted the above-referenced

language from Myers v. McCoy and concluded there was no abuse of the use

of the easement and the use had simply expanded from the natural

development and use of the property. The permanent injunction fashioned by

the trial court, contained certain restrictions summarized as follows:

1) No fences permitted to be constructed on the easement, with the exception of an “H” brace currently situated; Adams App. No. 12CA938 7

2) No cattle permitted on the easement;

3) No gates permitted placed on the easement, unless by agreement of parties; and,

4) No cultivation of crops and plowing permitted.

{¶ 11} Appellant disputes the portion of the decision forbidding

Appellant to plow, cultivate, fence, or gate the easement outside of the

roadway area. Appellant argues the trial court has abused its discretion when

it fails or refuses to properly apply the law, further arguing that the Myers

case does not reflect the law in Ohio. Based upon our review of the record,

we agree with the trial court’s decision.

{¶ 12} The Fifth Appellate District in Myers relied on the language in

Erie Railroad Co. v. S.H. Kleinman Realty Co.,

,

, (1915) which held at the second paragraph of the syllabus: “[s]uch

easement is not limited in its use to the original use of the lands, but expands

and fluctuates to meet the growth, development and changed condition of

such lands.”

{¶ 13} In Erie, the plaintiff’s southerly parcel of land was separated

from an access highway by defendant’s railroad and the northerly parcel of

plaintiff’s land which abutted the access highway. The plaintiff planned to

develop the south parcel of land and the railroad objected to the proposed Adams App. No. 12CA938 8

increased use of a 15 foot easement crossing the railroad tracks. The

Supreme Court of Ohio explained the rationale of its holding in the second

paragraph of the syllabus, stating: “[t]he policy of the law as to easements

should be one that encourages the growth and development of lands.” Erie,

pp. 99-100.

{¶ 14} The Erie case has not been overruled and is a correct

statement of the law in Ohio. We have previously found the holding in Erie

to be applicable in Prince v. Edgington, 4th Dist. No. 949,

,

(Aug. 11, 1983), at * 3 and *4, (wherein the appellate court affirmed the trial

court’s judgment that the use of an easement by necessity could be increased

to meet appellees proposed use for the real estate). See also Heiner v.

Kelley, 4th Dist. No. 98CA7,

, (July 23, 1999), at *11 and

*12, (citing Erie in its decision that appellees/cross-appellants did not

extinguish their easement through overburdening or misuse.) Upon review

of the facts contained in the record herein, we also find Myers to be

persuasive authority.

{¶ 15} In this matter, the trial court heard three days of testimony for

and against granting the permanent injunction. The trial court reviewed

photograph exhibits of the easement and surrounding land. To paraphrase,

Appellant contended his understanding of the easement was that his sisters Adams App. No. 12CA938 9

had a 50-foot right- of- way and he could use whatever portion they were not

using. He specifically testified “you got an easement, you pick your spot

you want to travel on.” Appellant emphasized that Appellees picked the

location and width of the easement and he had no imput on the matter. He

acknowledged he was present at the family meetings, but also testified the

easement’s location was not discussed with the family as it should have

been.

{¶ 16} By contrast, the trial court heard the testimony of Appellees’

various witnesses that Appellant was present at the family meetings. Kathy

Black testified although he did not go with her to meet the surveyor, he was

present when it was voted that Appellee Shirley Hawkins and she would go.

The trial court admitted an exhibit containing typewritten notes of the family

meeting regarding “talking points” to be discussed with the surveyor. From

the record, it appears likely that Appellant had some imput on the matter.

{¶ 17} Appellees testified the roadway was placed by dropping

gravel approximately ten feet down the center of the easement. Virginia

Dyer specifically testified they were not sure where the utility companies

were going to place the utilities, so the roadway was placed in the center in

order to accommodate both sides of the easement. The plain language of the

easement indicates Appellees are entitled to use the entire strip of land. Adams App. No. 12CA938 10

When an easement is created by an express grant, the extent and limitations

of the use of the easement depend upon the language of the grant. Alban, at

232; Skaggs v. Miller, 4th Dist. No. 95CA2381,

, (May 17,

1996), at *3. Here, the plain language of the easement, contained in the

certificates of transfer for the interior lots, states: “Also hereby conveyed is

the above-described 50.00 foot wide easement for ingress, egress, and utility

placement from said Creech Road to the above described 12.193 acre tract.”

Although Appellees chose to create a ten-foot wide gravel roadway, they

ostensibly could have chosen to make the roadway much larger, or even the

entire 50.00 feet. The language used in the grant evidenced a clear intention

to grant a 50.00 foot easement to Appellees for ingress, egress, and

placement of utilities. They have not attempted to use the entire 50.00 feet

for other activities. There was no language in the easement to suggest that

the easement area outside of the roadway portion was to be treated any

differently than the remainder of the easement. See Shikner v. Stewart, 6th

Dist. No. OT-09-015,

,

, ¶ 34. There is no

evidence in the record that Appellees have intended to surrender or abandon

the portion of the easement outside of the roadway for placement of utilities

to Appellant for planting crops or grazing cattle. See Snyder v. Monroe

Township Trustees,

,

(2nd. Dist. 1996), Adams App. No. 12CA938 11

* 457 and *458( non-use of easement did not evince intent to abandon

easement); Lake White Comm. Assoc. Inc. v. Lucas, 4th Dist. No. 432,

, (Dec. 13, 1990), *4, (Appellants were under no duty to make

use of the easement in order to retain their right to title.)

{¶ 18} Appellant urges that the easement restrictions interfere with

his agricultural use of the land. Appellant also denied obstructing the

easement. He argued he could use the land outside the roadway in any way

not inconsistent with the easement. Appellant argues that Gibbons v.

Ebding,

,

(1904), governs:

“Thus, the owner of the servient estate may use the land for any

purpose that does not interfere with the easement. Absent language in

the deed or in the circumstances surrounding its creation or use, the

servient estate owner may put gates or bars across it unless they would

unreasonably interfere with its use.” Gibbons, paragraph two of the

syllabus; Mays v. Moran, 4th Dist. Nos. 97CA2385, 97CA2386,

, (March 18, 1999).

{¶ 19} Although Gibbons remains good law, the trial court herein

found that Appellant’s actions of cultivating and plowing unreasonably

interfered with Appellees’ use of the easement. Appellant denied plowing on

to the gravel or obstructing the driveway, yet he admitted plowing and Adams App. No. 12CA938 12

disking the easement and having a garden area in the easement. He

acknowledged the photographs showed clods of dirt on the gravel roadway.

Janet and Charlie Shroyer testified they came to the property approximately

twice a month to visit their cabin. Janet Shroyer testified Appellant’s

plowing and planting made it more difficult to get through the easement.

Shirley Hawkins testified Appellant had changed the contour of the land and

it had lost its natural drainage. Pictorial evidence also showed water lying on

the roadway. The trial court heard evidence from the various appellees’

witnesses that the current condition of the driveway made it difficult to pass;

that Appellant had already put up fence posts for a gate; and that the fence

posts restricted the easement. Two Appellees testified gates would be an

unreasonable burden on them. Although Appellant emphasizes historical

agricultural use of the easement area, Kathy Black, who testified she visits

almost every weekend, also testified that tobacco had not been planted in the

easement area for over ten years. She further testified that hay that had

grown in the area had come up on its own.

{¶ 20} These credibility issues are for the trier of fact to resolve.

Cole v. Complete Auto Transit, Inc.,

,

(1st Dist. 1997); Jacobs v. Jacobs, 4th Dist. No. 02CA2846,

,

, at ¶ 31; Myers, ¶ 16. The rationale for Adams App. No. 12CA938 13

deferring to the trier of fact on issues of witness credibility and evidence

weight is that the trier of fact is best situated to view the witnesses and to

observe their demeanor, gestures, and voice inflections and to use those

observations to weight credibility. Myers v. Garson,

,

(1993); Seasons Coal Co. v. Cleveland,

,

(1984); Myers, 16. The trier of fact may choose to

believe all, part, or none of the testimony of any witness who appears before

it. Rogers v. Hill,

,

(4th Dist.

1998); Stewart v. B.F. Goodrich Co.,

,

(4th Dist. 1993). Myers v. Wild Wilderness Raceway, L.L.C.,

. Based on the evidence and testimony presented by

Appellees, we do not find the trial court abused its discretion by finding

Appellant unreasonably interfered with the use of the easement and ordering

Appellant to refrain from plowing and cultivating the easement, placing

fences and gates on it, and grazing cattle there. The trial court pointed out

Appellant’s acknowledgement in his testimony that his plowing had

hindered the use of ingress and egress if users were required to depart the

gravel roadway in order to pass. The trial court found Appellant had created Adams App. No. 12CA938 14

a plowed furrow up against the edge of the gravel roadway and in doing so,

had created an unreasonable restriction.1

{¶ 21} Appellant also argued Appellees have never attempted to

place utilities on the property. The Shroyers testified they plan to retire to

the property and will need to have the utilities installed. Because of the

actions of Appellant, they have had to spend more money on the roadway

and culvert. Mrs. Shroyer testified she had gotten an estimate from the

electric company a couple of years ago. The inference can be drawn that

Appellees may have begun installation of utilities had they not had increased

associated expenses with the roadway and ensuing litigation. Again, the trial

court was in the best position to view the witnesses and assess the credibility

of their testimony with regard to the utility issue. The trial court noted the

easement was essentially five years old, and “five years is early in the

development of what the actual use needs to be and what it will be. Changes

are anticipated and they are contemplated.”

{¶ 22} For the foregoing reasons, we overrule Appellant’s

assignment of error and affirm the judgment of the trial court.

JUDGMENT AFFIRMED.

1 The trial court also noted in granting the permanent injunction that the previous court order granting the preliminary injunction had been so liberally construed that crops had been planted to the very edge of the roadway. By way of explaining its difficult decision, the trial court noted that its ruling must be unambiguous with regard to cattle, gates, and fence in order to avoid future litigation. Adams App. No. 12CA938 15

Abele, J., Concurring in Part & Dissenting in Part:

{¶ 23} This case involves an easement for ingress, egress and utilities

created by an express grant (fifty foot metes and bounds description). It is

important to note that no other limiting language appears in the grant. The

owner of the servient estate retains the right to use his land in a manner

consistent with the purpose and use of the easement. Rueckel v. Texas

Eastern,

,

; Ayersville Water and Sewer

Dist. v. Geiger,

. Accordingly, the servient estate's owner

has no right, and may not in any manner, interfere with the reasonable and

proper use of the easement.

{¶ 24} After my review of the record, I fully agree with the trial court

and the principal opinion that in the case sub judice appellant unquestionably

interfered with the appellees' use and enjoyment of the easement.

Appellant's actions of, inter alia, plowing along the edge of the lane, erecting

gates and fences, planting crops on the edge of the lane and chasing away

dominant estate holders who attempted to mow and maintain the easement

obviously interfered with the use and enjoyment of the easement. This type

of activity must cease. My question, however, is whether a court may issue

a blanket prohibition against all activities that involve the use of the land,

within the fifty foot boundary, even when those activities do not interfere Adams App. No. 12CA938 16

with the use and enjoyment of the easement. The owners of the dominant

estate obviously have an interest in this land, but they do not own the land in

fee simple. Rather, they hold an easement or right to use this land for a

specific purpose.

{¶ 25} Once again, I note that the grant is silent with respect to any

prohibited activities, including fences, landscaping, crops, trees or even

structures. Accordingly, appellant should be permitted to use portions of the

easement in any manner he chooses as long as that use does not interfere

with the use and enjoyment of the easement. For example, erecting a fence

parallel to the lane that does not interfere with the use and enjoyment of the

easement should not be prohibited. In fact, owners of servient estates for

road and utility easements generally may engage in landscaping activities,

crop planting, gardening, fencing and even erecting certain structures as long

as their activities do not, in any manner, interfere with the use and

enjoyment of the easement.

{¶ 26} In this case I do have great sympathy for the parties and for

the trial court. The parties are siblings apparently at war over their rights

and obligation in land given to them by their mother. The trial court was

placed, as it often occurs, in the unenviable position of crafting a remedy to

resolve this dispute and, hopefully, deter future problems. These are Adams App. No. 12CA938 17

laudable goals, indeed. However, although I fully agree with the trial court

and the principal opinion that appellant unquestionably interfered with the

use and enjoyment of the easement, and that he must be prohibited from

doing so in the future, I believe that any restrictions on appellant's use of his

land must be narrowly tailored to permit him to use his land in any manner

that is not inconsistent with the use and enjoyment of the easement. Adams App. No. 12CA938 18

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and that the Appellees recover of Appellant 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 Adams County Common Pleas Court to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the date of this entry.

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

Harsha, J.: Concurs in Judgment and Opinion. Abele, J.: Concurs in Part and Dissents in Part with Opinion.

For the Court,

BY: _________________________ Matthew W. McFarland 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.