[Cite as Miller v. Romanauski,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100120

MATTHEW D. MILLER, ET AL. PLAINTIFFS-APPELLEES

vs.

CLARENCE D. ROMANAUSKI, ET AL. DEFENDANTS

[APPEAL BY KAREN AND LOREN STRAKA DEFENDANTS-APPELLANTS]

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-04-549932

BEFORE: E.T. Gallagher, J., Boyle, A.J., and Celebrezze, J.

RELEASED AND JOURNALIZED: April 10, 2014 ATTORNEY FOR APPELLANTS

For Loren Straka, et al.

Avery S. Friedman Avery Friedman & Associates 701 The City Club Building 850 Euclid Avenue Cleveland, Ohio 44114

For Clarence D. Romanauski

Clarence D. Romanauski, pro se 25937 John Road Olmsted Township, Ohio 44138

FOR APPELLEES

For Christopher Foran

Michael J. Sikora, III Macallister A. West Sikora Law, L.L.C. 8532 Mentor Avenue Mentor, Ohio 44060

For Justin Abramovich

Michael J. Sikora, III Sikora Law, L.L.C. 8532 Mentor Avenue Mentor, Ohio 44060

For Sandy A. Babak

Sandy A. Babak, pro se 25937 John Road Olmsted Township, Ohio 44138

For John H. Barnhart

John H. Barnhart, pro se 11962 South Maxwell Hill Road Littleton, Colorado 80127-9604

For Betty J. and Frank X. Bechtel

Betty J. Bechtel, pro se Frank X. Bechtel, pro se 2325 Quail Hollow Lane Sandusky, Ohio 44870-6082

For Gerald Dahlke

Gerald Dahlke, pro se 25894 Fernhall Road Olmsted Township, Ohio 44138

For Charlotte Dailey

Charlotte Dailey, pro se 25755 John Road Olmsted Township, Ohio 44138

For Rubin DeJesus

Rubin DeJesus, pro se 25915 John Road Olmsted Township, Ohio 44138

For John G., Loy G., and Susan M. Gnandt

John G. Gnandt, pro se Loy G. Gnandt, pro se Susan M. Gnandt, pro se 25873 Fernhall Road Olmsted Township, Ohio 44138

For John E. Kaufman

John E. Kaufman, pro se 25755 John Road Olmsted Township, Ohio 44138 For Brigina Kizzen

Brigina Kizzen, pro se 25916 Fernhall Road Olmsted Township, Ohio 44138

For Grant Lenart

Grant Lenart, pro se 25915 John Road Olmsted Township, Ohio 44138

For Charles A. and Jacqueline Miller

Charles A. Miller, pro se Jacqueline Miller, pro se 25889 Fernhall Road Olmsted Township, Ohio 44138

For Matthew D. Miller

Jonathan D. Clark Stumphauzer O’Toole McLaughlin McGlamery & Loughman Co., L.P.A. 5455 Detroit Road Sheffield Village, Ohio 44054

For John Pedaci, III and Sandra R. Pedaci

John Pedaci, III, pro se Sandra R. Pedaci, pro se 23073 Royalton Road Columbia Station, Ohio 44028

For Henry and Hilda Ruhr

Henry Ruhr, pro se Hilda Ruhr, pro se 25887 Fernhall Road Olmsted Township, Ohio 44138

For Karen and Robert Schilling Karen Schilling, pro se Robert Schilling, pro se 25803 John Road Olmsted Township, Ohio 44138

For Loretta Toth

Loretta Toth, pro se 25914 Fernhall Road Olmsted Township, Ohio 44138

For Ronald Wallace

Ronald Wallace, pro se 9959 Riverhead Drive San Diego, California 92129-3225

EILEEN T. GALLAGHER, J.: {¶1} Defendants-appellants, Karen and Loren Straka (“the Strakas”), appeal a

declaratory judgment that declared the existence of an easement on their property. We

find no merit to the appeal and affirm.

{¶2} Plaintiffs, Matthew and Laura Miller (“the Millers”),1 filed this declaratory

judgment action against numerous defendants asserting claims to an easement for ingress

and egress to their property located at 25879 Fernhall Road in Olmsted Falls. The

Strakas live and have lived at 25827 John Road in Olmsted Falls since January 1, 1973.

This parcel is known as sublot 51 in the Hall Acres Inc. subdivision (“Hall Acres

subdivision”). Since March 18, 1991, the Strakas have also owned an adjoining parcel to

sublot 51, known as sublot 50. Both of the Strakas’ properties front John Road and abut

Fernhall Road. The rear and south portions of the Strakas’ lots contain a portion of land

known as Fernhall Road and constitute the land at issue in this case.

{¶3} In December 2003, the Millers became the owners of property located at

25879 Fernhall Road (“the Miller property”). This property is known as sublots 12 and

13 in the Hall Acres subdivision. Fernhall Road is an undedicated strip of gravel and

asphalt, that provides access to more than eight homes on Fernhall Road, including the

Miller property. John Road is a public, dedicated road by which the Strakas access their

properties.

{¶4} The Hall Acres subdivision was originally owned by John and Minnie Hall

(“the Halls”). The Halls executed a deed conveying 44.80 acres of real property located

Linda and Christopher Foran were substituted as plaintiffs during the trial court 1

proceedings and are the appellees in this appeal. in Olmsted Township (“the Hall Acres property”) to Hall Acres Inc. by virtue of a

warranty deed, which was recorded on July 29, 1926, in Volume 3409, page 44 in the

Cuyahoga County Recorder’s Office. Hall Acres Inc. created a subdivision from the

Hall Acres property, which was surveyed and platted by the Henry G. Reitz Engineering

Company (“Reitz Engineering”) on or about May 25, 1927. The plat, which was not

recorded, proposed a number of sublots bisected by two 50-foot roads designated on the

plat as Thornbrook Boulevard and Fernhall Road. The platting shows that the only

means of access to lots 12 through 20 would be via Thornbrook Boulevard and Fernhall

Road. The legal description contained in the deed describes all of the land depicted on

the plat.

{¶5} In 1927, Hall Acres Inc. conveyed the Hall Acres property to H. Frederick

Smith by warranty deed (“Hall Acres deed”), which was duly recorded in the Cuyahoga

County Recorder’s Office on June 11, 1927. In the early 1930s, H. Frederick Smith

subdivided the Hall Acres property into a number of sublots bisected by a 50-foot road

shown on the plat as Thornbrook Boulevard and Fernhall Road. In each of the deeds he

executed conveying title to the properties (“the Smith deeds”), H. Frederick Smith

reserved 25 feet of real property for the construction of Fernhall Road and Thornbrook

Boulevard in accordance with the plat. The legal description of each of the Smith deeds

used the centerline of Fernhall Road, proposed, and Thornbrook Boulevard, proposed, as

boundaries for the lots and reserved 25 feet of real property for Fernhall Road and

Thornbrook Boulevard. Fernhall Road and Thornbrook Boulevard were thereafter

constructed out of gravel and asphalt on the reserved portion of each property. {¶6} H. Frederick Smith conveyed sublot 51 to John Bitten in 1932 and conveyed

lot 50 to Archie Cameron in 1941. The legal descriptions of the properties in both deeds,

which were duly recorded, define the property boundaries as “subject to all legal

highways and 25 feet off the south side thereof for Fernhall Road, proposed.” The first

deed conveying the Millers’ lots includes this same language. Some of the deeds

executed in subsequent conveyances of various sublots omitted the “subject to * * * 25

feet off the south side thereof for Fernhall Road” language. Instead, these deeds refer to

the unrecorded survey of the plat prepared by Reitz Engineering in their legal property

descriptions. For example, the legal description in the deed for the conveyance of sublot

51 to the Strakas in 1973 describes the dimensions of the sublot and adds that the property

is “further known as Sub Lot 51, in the Hall Acres Inc., proposed, according to a survey,

dated May 25, 1927, made by the Henry G. Reitz, Engineering Company, be the same

more or less, but subject to all legal highways.”

{¶7} The Strakas have vehicular access to their properties from John Road, an

improved road that runs parallel to and north of Fernhall Road. It is undisputed that the

residents of Fernhall Road can only access their property from the undedicated Fernhall

Road. It is also undisputed that the Millers and other residents of Fernhall Road have

been openly using some portion of the land that is legally described as Fernhall Road,

proposed, since the original subdivided lots were conveyed. The Strakas dispute the

exact location of the continued access.

{¶8} The subdivision depicted in the original plat was never completed, and for

years Fernhall Road was a single-lane, one-way access road. In 2003 or 2004, the Strakas objected to the widening of the existing Fernhall Road, which resulted from

dumping additional gravel on the road. The Strakas allegedly sought to stop the mail

from being delivered and the trash from being collected from houses on Fernhall Road.

Consequently, the Millers filed a complaint, which was subsequently amended, seeking a

declaration that properties located along Fernhall Road, including the Strakas, are subject

to a non-exclusive easement for ingress and egress.

{¶9} In their second amended complaint (“the complaint”), the Millers alleged they

have a right to access their property from Fernhall Road by virtue of an express easement

by reservation. They also alleged that the non-exclusive easement was an easement by

prescription, an easement by necessity, and a common law dedication of Fernhall Road

and Thornbrook Boulevard. In 2006, the court granted the Millers’ default judgments

against 22 property owners and stated in its journal entries that the court would determine

the legal description of the easement upon resolution of the remaining claims.

{¶10} In March 2008, the Millers filed a motion for summary judgment.

Meanwhile, defendants, William and Mary Smith (“the Smiths”), obtained relief from the

default judgment against them and filed an answer. In their answer, the Smiths asserted

a cross-claim, counterclaim, and third-party complaint, alleging that when H. Frederick

Smith subdivided the Halls Acres property in the 1930s, he reserved 25 feet of real

property for the construction of Fernhall Road and/or Thornbrook Boulevard in the titles

to each of the subdivided lots. The Smiths also sought a declaratory judgment that the

interests of the Strakas and the Millers in their properties are subject to a non-exclusive

easement of ingress and egress. The Smiths also filed a motion for summary judgment. {¶11} The trial court granted the Millers and the Smiths’ motions for summary

judgment. In its journal entry, the court declared that an easement exists that allows

ingress and egress for the properties in the Hall Acres subdivision on two alternative

grounds: (1) express easement by reservation, and (2) implied easement by necessity.

Following an evidentiary hearing, the court determined the exact location and dimensions

of the easement and found that the easement is a total of 12 feet wide; six feet on either

side of the centerline. The court further ordered the Millers to “cause a legal description

of said easement to be prepared using all proper legal descriptions and recorded upon all

subject properties.”

{¶12} The Strakas filed a notice of appeal, which was dismissed for lack of a final

appealable order. While the case was on remand to the trial court, Christopher and Linda

Foran (“the Forans”) were substituted as plaintiffs in lieu of the Millers after they took

possession of the Millers’ property. On March 1, 2013, a plat identifying the precise

location of the easement was recorded with the Cuyahoga County recorder, and the plat

was assigned Instrument No. 201303010647 (“Easement plat”). The Easement plat and

legal description specifying the exact boundaries of the easement were attached to an

order filed by the trial court on July 21, 2013, which was also filed with the county

recorder. In the July 21, 2013 entry, the trial court issued its final entry concluding that

there were no further pending claims. The Strakas now appeal the summary judgment

and raise six assignments of error, which we discuss out of order for the sake of economy.

Standard of Review {¶13} We review an appeal from summary judgment de novo. Grafton v. Ohio

Edison Co.,

,

(1996). The party moving for

summary judgment bears the burden of demonstrating the absence of a genuine issue of

material fact as to the essential element of the case with evidence of the type listed in

Civ.R. 56(C). Dresher v. Burt,

,

(1996). Once

the moving party demonstrates entitlement to summary judgment, the burden shifts to the

nonmoving party to produce evidence related to any issue on which the party bears the

burden of production at trial. Civ.R. 56(E). Summary judgment is appropriate when,

after construing the evidence in a light most favorable to the party against whom the

motion is made, reasonable minds can only reach a conclusion that is adverse to the

nonmoving party. Zivich v. Mentor Soccer Club,

, 369-370,

(1998).

Express Easement by Reservation

{¶14} In the second assignment of error, the Strakas argue the trial court erred in

declaring the existence of an express easement by reservation. They contend the trial

court erroneously applied implied easement by estoppel principles to find that an express

easement existed.

{¶15} 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 to a limited use of

another’s land in which the interest exists. Alban v. R.K. Co.,

,

(1968). Easements may be appurtenant to the land or “in gross.”

Gateway Park, L.L.C. v. Ferrous Realty Ltd., 8th Dist. Cuyahoga No. 91082,

. An easement “in gross” has been defined as “an easement that is

not appurtenant to any estate in land or does not belong to any person by virtue of

ownership of estate in other land but is mere personal interest or right to use land of

another.” Mourray v. Evanoff, 6th Dist. Wood No. WD-96-042,

(May 23, 1997), quoting Black’s Law Dictionary 509 (6th Ed. Rev. 1990).

{¶16} By contrast, an easement appurtenant to the land “always implies an interest

in the land, * * * and constitutes a part of the real property, over or in which it is to be

enjoyed.” Warren v. Brenner,

,

(9th

Dist. 1950). An easement appurtenant requires a dominant estate to which the benefit of

the easement attaches and a servient estate upon which the obligation or burden rests.

Thus, easements appurtenant “run with the land,” as opposed to easements in gross,

which convey to another a personal privilege to use the land but expires with the party to

whom the privilege belongs. Gateway Park at ¶ 28, citing Warren v.

.

Once an easement appurtenant is established, it attaches to the dominant estate and passes

with every conveyance of that estate, even without mention of the easement in the

conveyance. Merrill Lynch Mtge. Lending Inc. v. Wheeling & Lake Erie Ry. Co., 9th

Dist. Summit No. 24943,

, ¶ 30, citing Shields v. Titus,

,

(1889).

{¶17} An easement may be created by any one of four methods (1) by grant; (2)

implication; (3) prescription; or (4) estoppel. Gateway Park at ¶ 29. In this case, the

court determined that the easement was expressly created by grant in the “root deeds”

conveying title to the first owners of subdivided property in the Hall Acres subdivision. The Strakas contend the “subject to” language contained in the root titles is a term of

qualification rather than of contract and does not sufficiently establish the grantor’s intent

to convey an easement. We disagree.

{¶18} In support of their argument, the Strakas cite Clark v. Butler, 4th Dist. Ross

No. 12CA3315,

, for the proposition that the “subject to” in the root

deeds is ambiguous. The legal description in the deed at issue in Clark stated: “The

4.890-acre tract conveyed herein is subject to an easement for the installation and

maintenance of a leach/sewage discharge pipeline granted herein from the adjacent 1.577

acre tract of land.” The Clark court found that although this language is a little

confusing, it did not rise to the level of ambiguity because the description expressly states

that the easement is granted “from” the 1.577 acre parcel.

{¶19} The Strakas argue Clark is distinguishable from the instant case because

unlike the language in the root deeds, the language in the Clark deeds identified the

easement as coming “from” the 1.577 acre parcel, the servient estate. However, the

Clark court also observed that Black’s Law Dictionary defines the term “subject to” as

“subordinate” and “subservient.” Id. at ¶ 9. It also adopted the trial court’s reasoning

that the word “‘subject’ connotes a servient estate.” Id. Therefore, Clark actually

stands for the proposition that the term “subject to” modifies the servient estate by virtue

of an easement.

{¶20} As previously stated, Hall Acres Inc. conveyed the Hall Acres property to H.

Frederick Smith when it executed the Hall Acres deed. H. Frederick Smith subdivided

the Hall Acres property into a number of sublots and conveyed titles to these sublots to various grantees. The legal description in each of the Smith deeds used the centerline of

Fernhall Road, proposed, and Thornbrook Boulevard, proposed, as boundaries for the

sublots and reserved 25 feet of real property in each sublot for Fernhall Road and

Thornbrook Boulevard. Furthermore, the Smith deeds expressly define the property

boundaries as “subject to all legal highways and 25 feet off the south side thereof for

Fernhall Road, proposed.”

{¶21} Therefore, we agree with the trial court that the “root deeds” expressly

created the Fernhall Road easement, which is an appurtenant easement that “runs with the

land,” even though it was expressly not stated in the Strakas’ deeds. See Merrill Lynch

Mtge. Lending Inc. v. Wheeling & Lake Erie Ry. Co., 9th Dist. Summit No. 24943,

, ¶ 30, citing Shields v. Titus,

,

(1889).

Accordingly, we overrule the second assignment of error.

Notice and Lack of Dedication

{¶22} In the third assignment of error, the Strakas argue the trial court erred in

declaring the existence of an express easement by reservation across their land because

the Strakas’ deed does not create an express easement by reservation. They contend that

the easement was never created by the root deeds because Fernhall Road was never

dedicated. They also contend that because they had no notice of the easement on their

property, the easement is unenforceable.

{¶23} The Strakas underscore the word “proposed” in the root deeds where they

state that the conveyances are “subject to” 25 feet “off the southerly side of Fernhall

Road, Proposed.” (Emphasis added.) They contend this language contemplates a 25-foot reservation off the south side of their property “in the event that Fernhall Road

becomes a dedicated road.” And since Fernhall Road has never become a dedicated

road, they contend the easement was never created.

{¶24} The Seventh District Court of Appeals addressed this same argument in

Burlenski v. Cheslock, 7th Dist. Belmont No. 1293,

(Aug.

21, 1979). In that case, the trial court granted plaintiffs a permanent injunction against

defendants enjoining them from building a fence to close off a private driveway that

provided the sole means of ingress and egress to and from the plaintiff’s premises. The

defendants argued they only gave plaintiffs permission to use the driveway temporarily

while they were building their home and that because the driveway was not necessary for

ingress and egress, there was no easement by necessity. In affirming the trial court’s

judgment, the Burlenski court determined that the easement arose from the express

language of the deed. In reaching this conclusion, the court explained:

[T]he deed expressly states that the north boundary of plaintiffs’ property is the south line of a proposed 40 foot street. The evidence in this case * * * established that the proposed 40-foot street was on a proposed plat prepared by defendants but which was never recorded and that plaintiffs built their house on the basis of their reliance on access to the existing driveway of defendants that abuts their property at the location of the proposed 40 foot street.

Thus, the fact that the easement existed in place of a proposed street rather than a

dedicated road had no bearing on the validity of the easement.

{¶25} In Burlenski, the easement was obviously intended to provide a means of

ingress and egress to homes built along the proposed 40-foot street of the proposed plat.

Indeed, no particular words are necessary to grant an easement if the manifest intention of the grantor was to grant an easement. Lake White Community Assn. v. Armour, 4th Dist.

Pike No. 394,

(Dec. 15, 1987), citing Mansfield v.

Richardson,

(9th Dist. 1926). Ohio courts have uniformly held that

“an implied easement for the purposes of a road can be established by virtue of the

original lots in a subdivision having been purchased with reference to a plat showing said

road.” Manifold v. Gaydos, 6th Dist. Ottawa No. OT-06-021,

,

citing Clagg v. Baycliffs Corp., 6th Dist. Ottawa No. OT-96-023,

(Mar. 7, 1997), aff’d, Clagg v. Baycliffs,

,

,

. See also Burlenski; Krzewinski v. Eaton Homes, Inc.,

,

(9th Dist. 1958); Finlaw v. Hunter,

,

(1st

Dist. 1949). Therefore, we find no merit to the Strakas’ argument that the easement was

never created because Fernhall Road was never dedicated.

{¶26} The Strakas also contend that although the easement was mentioned in the

root deeds, they did not have actual notice of the easement because the “25-feet”

language was not contained in their own deeds.

{¶27} Pursuant to R.C. 5301.25(A), a bona fide purchaser for value is bound by an

encumbrance upon land only if he has constructive or actual knowledge of the

encumbrance. Tiller v. Hinton,

,

(1985), syllabus.

However, a purchaser may be charged with constructive notice if the encumbrance was

recited in any deed in the chain of title to the property. Emrick v. Multicon Builders,

Inc.,

,

(Jan. 30, 1991), citing Tiller. See also

Thames v. Asia’s Janitorial Serv.,

,

(6th Dist. 1992); Morris v. Daniels,

, 416 (1880); Blake v. Graham,

,

583-584 (1856).

{¶28} The Strakas concede in their brief that they “do not dispute that the language

making their property ‘subject to twenty-five (25) feet off the southern side of Fernhall

Road, Proposed’ is contained in the root deeds to lots 50 and 51, and, therefore, is within

their chain of title.” Moreover, their deed to sublot 51 identifies their property as “Sub

Lot 51, in Hall Acres Inc., proposed, according to a survey, dated May 25, 1927, made by

the Henry G. Reitz Engineering Company.” Identical language exists in their deed to

sublot 50 thereby giving notice of a possible encumbrance identified in the plat or chain

of title. Thus, not only was the easement expressly provided for in the root deeds to

sublots 50 and 51, but the Strakas’ own deeds make reference to the original proposed

plat for a complete description of the properties. Therefore, the Strakas had constructive

notice of the express easement provided in the root deeds in the chain of title to their

properties and are bound by them.

{¶29} Accordingly, we overrule the third assignment of error.

Express or Implied Easement

{¶30} In the first assignment of error, the Strakas argue the trial court erred by

simultaneously declaring both an express easement by reservation and an implied

easement by necessity. They contend that Ohio law does not permit an easement to be

simultaneously characterized as both an express easement by reservation and an implied

easement by necessity. {¶31} In Tiller v. Hinton, the Ohio Supreme Court expressly held that “because

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

have been effectuated by 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.” Id. at 69. Further, “[e]asements implied of necessity are not favored

because, like implied easements generally, they are ‘in derogation of the rule that written

instruments shall speak for themselves.’” Id., quoting Ciski v. Wentworth,

,

(1930), paragraph one of the syllabus.

{¶32} Evidence in the record establishes the existence of an express easement that

was created by the root deeds to the Strakas’ properties, and since the Strakas had

constructive notice of the easement, the easement is binding on them. Therefore, the

circumstances do not support the court’s finding of an easement implied of necessity.

However, for the reasons that follow, we find this error harmless.

{¶33} The first assignment of error is overruled.

{¶34} Having determined that the Strakas are bound by an express easement for

purposes of ingress and egress and that an express easement cannot simultaneously exist

with an implied easement of necessity, the remaining three assigned errors, which relate

to the trial court’s finding of an implied easement of necessity, are moot.

{¶35} Finally, the Strakas suggest, without an expressly assigned error, that the

trial court erred in declaring the existence of the easement without identifying who will

bear the cost of maintenance of the easement and/or liability for injuries sustained on the

easement running through the Strakas’ land. However, no one raised these issues in the trial. Issues that could have been raised and resolved in the trial court cannot be raised

for the first time on appeal. Thompson v. Preferred Risk Mut. Ins. Co.,

,

(1987); Hous. Advocates, Inc. v. Am. Fire & Cas. Co., 8th Dist.

Cuyahoga Nos. 86444 and 87305,

. Therefore, issues not raised in

the trial court are forfeited on appeal. State v. Payne,

,

,

.

{¶36} Judgment affirmed.

It is ordered that appellees recover from appellants costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to the common pleas court 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.

EILEEN T. GALLAGHER, JUDGE

MARY J. BOYLE, A.J., and FRANK D. CELEBREZZE, JR., J., CONCUR