[Cite as Bosky Group, L.L.C. v. Columbus & Ohio River RR. Co., 2017-Ohio-8292.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
BOSKY GROUP, LLC, : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff - Appellee : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, J. -vs- : : COLUMBUS & OHIO RIVER RAILROAD : Case No. CT2017-0027 COMPANY, et al., : : Defendants - Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. 2013-0161
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 19, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ROBERT J. MANN PHILIP F. DOWNEY MARY SPAHIA-CARDUCCI JONATHAN P. CORWIN Mann & Carducci Co., LPA DANIEL E. SHUEY 1335 Dublin Rd., Suite 212-A Vorys, Sater, Seymour and Pease LLP Columbus, Ohio 43215 P.O. Box 1008, 52 East Gay Street Columbus, Ohio 43216-1008 Muskingum County, Case No. CT2017-0027 2
Baldwin, J.
{¶1} Defendant-appellant The Columbus & Ohio River Railroad Company
appeals from the March 29, 2017 Judgment Entry of the Muskingum County Court of
Common Pleas granting the Motion for Summary Judgment filed by plaintiff-appellee
Bosky Group, LLC and denying the Motion for Summary Judgment filed by defendant-
appellant.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellee Bosky has been the owner since 2006 of approximately 43.7 acres
of real property (Parcel No. 66-20-09-10-000) located in Muskingum County, Ohio. This
property shall, hereafter, be referred to as the “subject property” and is located near the
Village of New Concord, Ohio. The northern boundary of the subject property has frontage
along US 40/22. Appellee also owns a 92.37 parcel contiguous to the subject property
and two other small parcels. While Rix Mills Road is to the east of the parcels, Homestead
Drive is to the west. Appellant The Columbus & Ohio River Rail Road Company (“CUOH”)
operates a railway line that runs along the north end of the subject property and is to the
south of and parallel to US 40/22.
{¶3} Appellee is the successor in title and traces his title in the subject property
back to grantor Samuel Cummins. As evidenced by an instrument signed in 1852 and
recorded on February 16, 1899, Cummins granted the Central Ohio Railroad Company,
appellant’s predecessor, a right to locate a railroad across the northern boundary of the
subject property. The instrument provides, in relevant part, as follows:
In consideration of one hundred eighty dollars to me paid by the
Central Ohio Rail Road Company, I Samuel Cummins of Union Township Muskingum County, Case No. CT2017-0027 3
Muskingum County Ohio do hereby grant and release to said Company the
right to enter upon any lands I own which lie on the line of said Company’s
road… and to hold and use a strip of said land…for the purposes of a rail
road…not exceeding one hundred feet in width…The said Company to
construct two good crossings over said rail road track one between my
house and barn near to the point where my road now passes from the
National road to my barn, the other at some point towards the east boundary
line of my land convenient for the purpose….”
{¶4} Cummins’ property was later subdivided. To the west of the subject property
is a parcel owned by David L. Green that was originally part of the Cummins property that
currently has a railroad crossing. There is not a crossing on the eastern 43.7 acres, which
has been owned by appellee since 2006, and appellee contends such land is legally
landlocked. There is no road connecting to the subject property. Appellee wants to
develop the subject property for commercial, residential and other purposes.
{¶5} After appellant declined to construct a crossing that will enable appellee to
develop its property, appellee filed a complaint against appellant for declaratory judgment,
specific performance, breach of contract and estoppel on April 8, 2016. Appellant filed a
Motion for Summary Judgment on November 30, 2016 and appellee filed a Motion for
Summary Judgment on December 14, 2016. Appellant, on February 3, 2017, filed a
motion seeking to strike evidence submitted by appellee in support of its Motion for
Summary Judgment on the basis that the evidence was untimely and otherwise improper.
{¶6} Pursuant to a Decision filed on March 14, 2017, the trial court granted
appellee’s Motion for Summary Judgment while denying that filed by appellant. The trial Muskingum County, Case No. CT2017-0027 4
court directed counsel for appellee to prepare the final entry. A final Judgment Entry was
filed on March 29, 2017.
{¶7} Appellant now appeals from the trial court’s March 29 2017 Judgment Entry,
raising the following assignments of error on appeal:
{¶8} I., II. THE TRIAL COURT ERRED BY GRANTING BOSKY’S MOTION FOR
SUMMARY JUDGMENT AND DENYING CUOH’S MOTION FOR SUMMARY
JUDGMENT.
{¶9} III. THE TRIAL COURT’S JUDGMENT ENTRY IMPROPERLY EXCEEDS
THE RIGHTS GRANTED BY THE CUMMINS INSTRUMENT AND/OR THE RELIEF
REQUESTED BY BOSKY.
{¶10} IV. THE TRIAL COURT ERRED BY NOT GRANTING CUOH’S MOTION
TO STRIKE.
I, II
{¶11} Appellant, in its first two assignments of error, argues that the trial court
erred in granting appellee’s Motion for Summary Judgment while denying that filed by
{¶12} Civil Rule 56(C) states, in pertinent part, as follows:
Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in
the action, show that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. No evidence or
stipulation may be considered except as stated in this rule. Muskingum County, Case No. CT2017-0027 5
{¶13} A trial court should not enter a summary judgment if it appears a material
fact is genuinely disputed, nor if, construing the allegations most favorably towards the
non-moving party, reasonable minds could draw different conclusions from the
undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311
(1981). When reviewing a trial court's decision to grant summary judgment, an appellate
court applies the same standard used by the trial court. Smiddy v. The Wedding Party,
Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). This means we review the matter de
novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000–Ohio–186, 738 N.E.2d 1243.
{¶14} The party moving for summary judgment bears the initial burden of
informing the trial court of the basis of the motion and identifying the portions of the record
which demonstrate the absence of a genuine issue of fact on a material element of the
non-moving party's claim. Dresher v. Burt, 75 Ohio St.3d 280, 1996–Ohio–107, 662
N.E.2d 264. Once the moving party meets its initial burden, the burden shifts to the
nonmoving party to set forth specific facts demonstrating a genuine issue of material fact
does exist. Id. The non-moving party may not rest upon the allegations and denials in the
pleadings, but instead must submit some evidentiary materials showing a genuine dispute
over material facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791 (12th
Dist.1991).
{¶15} At issue in the case sub judice is whether or not the promise, contained in
the Cummins instrument, to construct two crossings is binding on appellant. Appellant
contends that it is not because Samuel Cummins and the Central Ohio Rail Road
Company, who were parties to the original agreement, did not intend for the crossing
obligation contained in the Cummins instrument to “run with the land.” Appellant notes Muskingum County, Case No. CT2017-0027 6
that the Cummins instrument did not use words of inheritance and did not expressly
provide that the right to use the crossing would be for the benefit of the Cummins, their
heirs, and assigns.
{¶16} Thus, we must determine whether or not the easement to cross the railroad
that was contained in the Cummins instrument runs with the land. An easement is a
property interest in the land of another that allows the owner of the easement “a limited
use of the land in which the interest exists.” Colburn v. Maynard, 111 Ohio App.3d 246,
253, 675 N.E.2d 1333 (4th Dist. 1996). Easements may be appurtenant or in gross.
Warren v. Brenner, 89 Ohio App. 188, 192, 101 N.E.2d 157 (9th Dist. 1950). An easement
appurtenant requires a dominant tenement to which the benefit of the easement attaches
and a servient tenement upon which the obligation or burden rests. Id. Easements
appurtenant “run with the land.” An easement in gross, on the other hand, is a right held
by an individual, exists independent of any ownership of land, and is not transferrable to
subsequent owners. DeShon v. Parker, 49 Ohio App.2d 366, 367, 361 N.E.2d 457 (9th
Dist. 1974). An easement may be created by any one of four methods: by grant,
implication, prescription, or estoppel. Kamenar RR. Salvage, Inc. v. Ohio Edison Co. , 79
Ohio App.3d 685, 689, 607 N.E.2d 1108 (3rd Dist. 1992). An easement may be created
or may arise expressly by grant, or by exception or reservation in a deed. See National
Exchange Bank v. Cunningham, 46 Ohio St. 575, 22 N.E. 924 (1889).
{¶17} While Ohio law no longer requires the use of words of inheritance to create
or convey interests in land, this Court must apply Ohio law as it existed in 1852, the time
the instrument was created. See Merrill Lynch Mortgage Lending, Inc. v. Wheeling & Lake
Erie Ry. Co., 9th Dist. Summit No. 24943, 2010-Ohio-1827 at paragraph 13. As noted by Muskingum County, Case No. CT2017-0027 7
appellant, at such time, Ohio law made a distinction between a reservation and an
exception. Id. The court in the Merrill Lynch case stated as follows at paragraphs 17-19:
A “reservation” created a new right that did not exist at the time the
grantor owned the property, while an “exception” involved the grantor
merely retaining part of what he already owned. See Gill v. Fletcher (1906),
74 Ohio St. 295, 303-304, 78 N.E. 433. If the language of the deed was
deemed to constitute an “exception,” words of inheritance were not
necessary for the grantor to retain a property right that he could convey to
future owners, for the grantor merely retained a portion of his former estate.
Id.; Hall v. Hall (1910), 106 Me. 389, 76 A. 705, 706. On the other hand,
because a “reservation” was considered to create a new property interest,
which was essentially transferred back to the grantor from the property he
conveyed, a reservation required words of inheritance to create an interest
that would be alienable by the grantor. Id.; Embleton v. McMechen (1924),
110 Ohio St. 18, 25, 143 N.E. 177.
A grantor could retain an easement either by reserving it or by
excepting it from the grant of land. Determining whether the grantor had
excepted the easement or reserved it, however, was not necessarily
resolved by resorting to the language of the deed or dictionary definitions of
the terms “reservation” or “exception.” As one court observed, “the
distinction between an ‘exception’ and a ‘reservation’ is frequently quite
obscure and uncertain, and has not always been observed.” Chappell v.
New York, N.H. & H.R. Co. (1892), 62 Conn. 195, 24 A. 997, 999. “Whether Muskingum County, Case No. CT2017-0027 8
a given clause creates a reservation or an exception is not so much a
question of words as of intention to be gathered from all the circumstances
of the case[.]” Hall v. Hall, supra.
In Gill v. Fletcher, 74 Ohio St. 295, 78 N.E. 433, at syllabus, the Ohio
Supreme Court similarly emphasized that there is no magic deed language
that will determine whether the interest retained by the grantor is an
exception or a reservation. Instead, it is the intent of the parties that is
dispositive. “Whether the language used in a deed creates a reservation or
exception from the grant depends upon the intention of the parties as
evinced by a construction of the whole instrument in the light of the
circumstances of each case.” Id. If the language and surrounding
circumstances demonstrate that the grantor intended to retain more than
“an immediate privilege which should expire with his own life” but instead
intended to except “an absolute and inheritable” right, then the clause will
be deemed to be an exception, which required no words of inheritance to
preserve a perpetual interest. See id. at 304, 78 N.E. 433.
{¶18} The court, in the Merrill Lynch case, noted that the Ohio Supreme Court, in
Junction R.R. Co. v. Ruggles, 7 Ohio St. 1, 1857 WL 1 (1857), recognized that technical
deed language was not dispositive of the nature of an easement, and explicitly recognized
the perpetual nature of the attachment of railroad tracks to property. The issue in Ruggles
was whether or not, in the absence of word of inheritance, an easement for a railroad ran
with the land. The Ohio Supreme Court noted that the railroad was annexed to real estate
and that the railroad was “expected to be of perpetual duration.” Id at. 8. As noted by the Muskingum County, Case No. CT2017-0027 9
court in Merrill Lynch at paragraph 21, “[d]espite the lack of any words of inheritance in
the language creating the railroad's easement, the court made a presumption, absent any
language to the contrary, that the parties creating the easement for the railroad to run its
tracks across the landowner's property must have intended that the easement would be
of a perpetual nature. Id.”
{¶19} The court, in Merrill Lynch applied the above law in considering whether or
not an 1890 deed that was recorded in 1893 created an express easement appurtenant
that ran with subsequent transfers of the land. The deed in such case, which was
between the Longs and a railroad, provided as follows:
Said Railroad Co. agrees to furnish and maintain one good grade
crossing, properly planked. Said crossing to be located where the grantor
may designate.
Said Railroad Co. agrees to fence strip of land and without using
barbed wire.
{¶20} After the railroad gave notice that it intended to close the crossing, the
owner of the landlocked property, who was a successor in title to the Longs, argued that
it had the legal right to continue using the crossing over the railroad's tracks. The railroad
contended, in part, that any easement created by the deed was personal to the Longs
and did not run with conveyances of the land and that the easement had been
extinguished over the years due to the increased burden on the crossing. After the trial
court granted summary judgment in the landowner’s favor, the railroad appealed.
{¶21} The Court, in Merrill Lynch held that “[a]s it was clearly the intention of the
parties that the easement created in the 1890 deed would be perpetual in nature, it was Muskingum County, Case No. CT2017-0027 10
unnecessary that its exception from the Longs' conveyance to the Railroad be supported
by any words of inheritance.” Id at paragraph 29. The court noted that “[w]ithout a
crossing, the northern portion of the Longs' property would be inaccessible and would be
rendered useless. Moreover, as observed by the Supreme Court in Ruggles, once the
tracks were affixed to the property and the railroad line was in operation, it was essentially
part of the real estate and the intention was that it would continue to operate indefinitely.
The parties certainly intended that the Railroad would continue to exist, as would a need
to cross it, beyond the lifetime of the Longs.“ Id at paragraph 29.
{¶22} Applying the above case law to the case sub judice, we find that the trial
court did not err in finding that the right to a crossing runs perpetually with the land in this
case. Nothing in the Cummins instrument stated that the crossing was limited in who
could access it or in duration. There was evidence before the trial court that a railroad
crossing exists on the property owned by David Green and has been in use for over 100
years. Moreover, without a crossing, the subject property is legally landlocked and
incapable of being developed. The Public Utilities Commission of Ohio, which inspected
the subject property on March 25, 2008, concluded in a report as follows:
[t]he 40 acre parcel has no right of way or easement onto it. I found
no easy way to gain access to the property without installing a new highway
rail grade crossing off of US 22. The only way to gain access off of Rix Mills
Road is to obtain an easement from the current property owners who
operate a warehousing facility. Access off of Homestead Road would not
be feasible due to the low clearance of the railroad bridge and the fact that Muskingum County, Case No. CT2017-0027 11
it would hinder emergency personal (sic) from gaining access due to an
emergency.”
{¶23} The report recommended that appellee obtain a public highway rail
grade crossing by pursuing legal means. The Muskingum County Engineer, in an
August 31, 2009 letter to appellee, stated that the Homestead Drive access was
“extremely limited due to a railroad underpass that will not allow more than one car
through at one time and has low clearance…..All other points of the property are
landlocked.” Moreover, Christopher Frank, appellant’s representative, testified
during his deposition that he had a role in deciding whether a crossing should be
granted or denied and that he had recommended to appellant that it provide a
crossing.
{¶24} Appellant, in its brief, maintains that there was admissible evidence
demonstrating that a second crossing was constructed on the Cummins property and
that, therefore, all crossing obligations under the Cummins instrument were met.
Appellant specifically points to an October 9, 1930 Valuation Map as showing that there
was a second crossing over that portion of the railroad track that crosses what is now the
subject property. However, at his deposition, Christopher Frank testified that he did not
know who created the maps and that he was unsure if one of the roads indicated on the
map ever existed. In contrast, appellee presented 1941 and 1950 aerial photographs,
right of way plans and a February 12, 2016 soil testing report stating that there was no
”existing evidence of a former grade crossing along the north boundary” of appellee’s
property. All show that there was no crossing on the subject property. Moreover, Frank,
during his deposition, admitted that a 1987 Valuation Map does not show a crossing on Muskingum County, Case No. CT2017-0027 12
the subject property and, in fact, does not show a crossing on the Green property even
though it is undisputed that such a crossing exists and has existed for decades. The
Valuation Maps are, therefore, unreliable and lacking in evidentiary value.
{¶25} Appellant next argues that any right to a crossing over the subject property
that may have existed under the Cummins instrument has been abandoned. Appellant
emphasizes that the relevant crossing was not used for a period of more than 164 years.
However, mere non-use of an easement, for a period however long, will not amount to
abandonment. Wyatt v. Ohio Dept. of Transportation, 87 Ohio App.3d 1, 5, 621 N.E.2d
822 (11th Dist. 1993). “[T]here must be a relinquishment of possession with an intent to
terminate the easement.” Id. (Citations omitted). Intent to abandon must be shown by
“unequivocal and decisive acts” which are inconsistent with continued use and enjoyment.
Snyder v. Monroe Township Trustees, et al., 110 Ohio App.3d 443,458, 674 N.E.2d 741
(2nd Dist. 1996).
{¶26} Appellant asserts that appellee’s predecessors used the subject property
for agricultural purposes by accessing the property from Rix Mills Road and/or
Homestead Drive and that this is evidence that the right to a crossing was abandoned.
However, we concur with appellee that this is “hardly evidence of a clearly manifested
intention to abandon the right to a crossing onto US 40/22.” Moreover, the need to
access US 40/22 by means of such a crossing did not arise until appellee, who intended
to develop the property for commercial and other purposes, purchased the same. See
Lone Star Steakhouse & Saloon of Ohio, Inc. v. Ryska, 11th Dist. Lake No. 2003–L–192,
2005–Ohio–3398, ¶ 58. We find that the right to a crossing was not abandoned. Muskingum County, Case No. CT2017-0027 13
{¶27} Appellant further maintains that any right to a crossing over the subject
property that may have existed under the Cummins instrument has been lost by adverse
possession. According to appellant, the railroad has adversely possessed the railroad
crossing right by not permitting a crossing over its tracks for 164 years when it allegedly
had an obligation to do so.
{¶28} Adverse possession focuses on the acts of the one claiming prescriptive
ownership and requires proof of exclusive possession and open, notorious, continuous,
and adverse use for a period of 21 years. Grace v. Koch, 81 Ohio St.3d 577, 692 N.E.2d
1009, syllabus (1998). To prevail on a claim for adverse possession, a claimant must
establish these factors by clear and convincing evidence. Grace v. Koch at 580, 692
N.E.2d 1009. A party who fails to prove any of the elements fails to acquire title through
adverse possession. Grace v. Koch at 579, 692 N.E.2d 1009. “If a claimant's use of the
disputed property is either by permission or accommodation for the owner, then it is not
‘adverse,’ for purposes of establishing adverse possession.” Coleman v. Penndel Co.
(1997), 123 Ohio App.3d 125, 703 N.E.2d 821, paragraph three of the syllabus. In the
case sub judice, appellant’s use of the rail line over the subject property was permitted
by and in accordance with express grant contained in the Cummins instrument and was
not adverse. Adverse possession, therefore, is not applicable.
{¶29} Based on the foregoing, we find that the trial court did not err in granting
appellee’s Motion for Summary Judgment while denying that filed by appellant.
{¶30} Appellant’s first and second assignments of error are, therefore, overruled. Muskingum County, Case No. CT2017-0027 14
III
{¶31} Appellant, in its third assignment of error, argues that the trial court, in its
March 29, 2017 Judgment Entry, improperly ordered appellant to perform obligations
beyond mere construction of a crossing and that the court’s Judgment Entry improperly
exceeded the rights granted by the Cummins instrument and/or the relief requested by
appellee.
{¶32} The trial court, in its March 29, 2017 Judgment Entry, stated, in relevant
part, as follows:
Defendant is obligated, and shall construct, at its own cost, an at
grade railroad crossing in alignment with the curb cut granted to Plaintiff by
the Ohio Department of Transportation (“ODOT”). The crossing shall be at
least 36 feet in width, and otherwise built to standards applicable for high-
density traffic, including semi-truck traffic, and as otherwise necessary to
handle traffic projections as set forth in the Traffic Impact Study submitted
in this case. This includes that Defendant shall, at its own cost, provide all
crossing safety and warning devices and features for such crossing as
appropriate in accordance with the topographical profile, speed and number
of daily train traffic, and volume of vehicular traffic anticipated pursuant to
the Traffic Impact Study submitted in this case, and to further include any
traffic signal pre-emption at US 40/22 as appropriate and/or as required or
recommended by ODOT or any other agency or authority with jurisdiction.
The crossing construction shall begin no later than 30 days after start of
construction of the access road to which the crossing will connect. Muskingum County, Case No. CT2017-0027 15
Defendant shall further permit, without interference or charge, any water,
sewer, utilities or other improvements required to go under or above the
crossing. If the roadway to which the crossing connects is designated as a
public road, Defendant shall, at its own costs, provide and modify any safety
and warning devices and equipment as may be required by any agency or
authority having jurisdiction over such matters. Defendant shall maintain,
at its own costs, the crossing (whether private or public), and safety and
warning devices, and equipment.
{¶33} Appellant argues that the Cummins instrument did not address water,
sewer, utilities or other improvements and traffic signals and that appellee did not request
such relief in his complaint. Appellant also argues that there was no language in the
Cummins instrument requiring it to “maintain” the crossing and requiring it to “modify”
safety and warning equipment as circumstances change over time.
{¶34} However, as noted by the court in the Merrill Lynch case, “changes in the
use of an easement are permitted to the extent that they result from the normal growth
and development of the dominant land, and are, therefore, a proper and reasonable use
of the easement.” Id at paragraph 36, citing Erie RR. Co. v. S.H. Kleinman Realty Co., 92
Ohio St. 96, 110 N.E. 527 (1915); Mark Ten Mining & Consulting, Inc. v. Rawson (Nov.
25, 1992), 7th Dist. No. 91-C-77, at 2.
{¶35} While appellant, in this matter, contends that there was no such evidence
in this case, we find that there was evidence presented to the trial court that, over time,
the area in which the subject property is located has changed for agricultural to
commercial and industrial. David Radecke, appellee’s Managing Member, in a Muskingum County, Case No. CT2017-0027 16
supplemental affidavit that was attached to its reply to appellant’s memorandum in
opposition to appellee’s Motion for Summary Judgment, stated, in relevant part, as
follows:
4. The curb cut and access grant from ODOT permitting three 12’
lanes, (ingress, egress, and a turn lane) for the Subject Property is
necessary for the development of the Subject Property and is consistent
with growth and development trends which have occurred over the past 150
years, including in and around the Subject Property. The property
contiguous and to the immediate east of the Subject Property is zoned
Industrial in the Village of New Concord and contains a 700,000+ sq. ft. NFI
Distribution Center, which has semi-trucks going in and out of the property
on a regular basis. The Subject Property is also zoned Industrial in the
Village of New Concord. The Traffic Impact Study of Harry Matter/Civil
Design Associates, Inc., further sets forth the high volume of peak hour
traffic that currently drives past the locations of the ODOT access grant/curb
cut for the Subject Property, and for which the railroad crossing is sought,
and such traffic volume demonstrates a single lane farm crossing is not
adequate for development and growth trends over the past 150 years as
currently exists. I further testified in deposition as to the projected and
anticipated potential uses for the Subject Property, as cited to the Court in
Plaintiff’s filings and which therefore will not be set forth here again, but a
single lane farm crossing would be inadequate for such development, and
would be inconsistent and contrary to the growth and development trends Muskingum County, Case No. CT2017-0027 17
as indicated by the actual use and development on the adjoining property
and the Subject Property’s zoning, as well as the projected and anticipated
potential uses for the Subject Property, including those identified in
Resolutions and communications from the Village of New Concord, which
are also in the record before the Court.
{¶36} The Village Administrator for the Village of New Concord, in a February 17,
2017 letter/affidavit, stated that appellee’s property was zoned industrial and that the
warehouse property directly to the east was also zoned industrial. There was evidence
presented to the trial court in the form of a Traffic Impact Study that, during peak traffic
times, over 500 vehicles per hour drove past the location of an ODOT access grant/curb
cut for subject property. Moreover, the Village of New Concord, in a Resolution passed
on February 14, 2011, indicated that a grade crossing was necessary to put the subject
property into ”productive use, with the intent of creating economic activity and bring jobs
to the Village of New Concord and Muskingum County.” We find, based on the foregoing,
that the trial court did not err in finding that appellee was entitled to a crossing sufficient
to satisfy modern growth and demand.
{¶37} With respect to bringing utilities to the subject property, the general rule is
that the servient tenant may “use (his) land for any purpose that does not interfere with
the easement.” Gibbons v. Ebding, 70 Ohio St. 298, 71 N.E. 720, 721 (1904). Thus,
appellee, as owner of the subject property, has the right to bring utilities over or under the
railroad provided that doing so does not interfere with appellant’s easement rights and
use in the railroad. When, during his deposition, Christopher Frank was asked whether Muskingum County, Case No. CT2017-0027 18
there would be any operational impacts to the railroad if there was a high-volume or low-
volume crossing, he indicated that there was not.
{¶38} Based on the foregoing, appellant’s third assignment of error is overruled.
IV
{¶39} Appellant, in its fourth assignment of error, contends that the trial court erred
by not granting its Motion to Strike.
{¶40} On December 14, 2016, appellee filed a Motion for Summary Judgment
supported by the affidavit of Kyle Baldwin, a geologist and owner of Roxsol, LLC. On
February 3, 2017, appellee filed a memorandum in opposition to appellant’s Motion for
Summary Judgment. On the same date, appellee filed the supplemental affidavit of Harry
D. Matter, an employee and President of Civil Design Associates, Inc. Appellant, on
February 3, 2017, filed a Motion to Strike such evidence on the basis that it was untimely.
Appellant argued that appellee was untimely producing new opinions from both experts.
With respect to Matter, appellant argued that, as part of discovery, appellee submitted a
December 29, 2015 letter from Matter in which Matter opined that a crossing had existed
on the subject property and that, after the close of discovery, appellee submitted an
affidavit from Matter stating otherwise. With respect to Baldwin, appellant contended that
his February 12, 2016 letter report disclosing the results of soil tests performed on the
subject property were outside of the railroad right-of-way and that, after discovery was
closed, appellee, on November 11, 2016, submitted a new letter report from Baldwin
providing soil test results that were purportedly performed in the relevant area. Muskingum County, Case No. CT2017-0027 19
{¶41} While the trial court never expressly ruled on the Motion to Strike, we must
presume that the motion was implicitly overruled.” Swinehart v. Swinehart, 5th Dist.
Ashland No. 06–COA–020, 2007–Ohio–6174, ¶ 26.
{¶42} A trial court's decision to grant or deny a motion to strike an affidavit is
reviewed using an abuse of discretion standard. Early v. The Toledo Blade, 130 Ohio
App.3d 302, 318, 720 N.E.2d 107 (6th Dist.1998). An abuse of discretion connotes that
the lower court's attitude in reaching its judgment was unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983).
{¶43} The discovery cut-off in the case sub judice was October 31, 2016.
Appellee’s counsel, in an affidavit attached to appellees’ response to the Motion to Strike,
stated that, on April 26, 2016, he had submitted by mail to appellant’s counsel documents
including a December 29, 2015 letter and attachments from Matter and his Traffic Impact
Study and Baldwin’s February 12, 2016 letter and soil test results. He further stated that,
on May 4, 2016, he had emailed to appellant’s counsel appellee’s answers to appellant’s
interrogatories. Appellee, in the answers, stated that Kyle Baldwin, a geologist, and Harry
Matter, an engineer, were both expert witnesses. Appellee’s counsel, in his affidavit, also
stated that, on November 11, 2016, he had received Baldwin’s November 10, 2016 report
and attachments and forwarded the same to appellant’s counsel the same day.
{¶44} Thus, as noted by appellee, appellant was aware of the names of the above
witnesses and the subject matter upon which they would testify before the discovery cut-
off date. “[W]hen a complaining party knows the identity of the other party's expert, the
subject of his expertise and the general nature of his testimony, a party cannot complain Muskingum County, Case No. CT2017-0027 20
that they are ambushed.’ ” (Citations omitted.) Revilo Tyluka, LLC v. Simon Roofing &
Sheet Metal Corp., 193 Ohio App.3d 535, 952 N.E.2d 1181, 2011–Ohio–1922, ¶ 48 (8th
Dist.). Moreover, appellant did not request a scheduling order requiring the production of
expert reports and opinions or depose either expert.
{¶45} Moreover, with respect to Baldwin, appellant, in its May 5, 2016 responses
to appellee’s interrogatories, did not disclose exactly where it maintained a crossing
supposedly once existed on the subject property. It was not until after appellant’s
representative was deposed on September 19, 2016 and appellee received a copy of the
deposition transcript on October 13, 2016 that appellee discovered that Baldwin had
performed his testing using incorrect coordinates for the alleged crossing. Appellee then
had Baldwin conduct new soil testing using the proper location and update his findings.
As is stated above, Baldwin’s November 10, 2016 report was forwarded to appellant’s
counsel the next day.
{¶46} Based on the foregoing, we find that the trial court did not abuse its
discretion in denying the Motion to Strike. The trial court’s decision was not arbitrary,
unconscionable or unreasonable.
{¶47} Appellant’s fourth assignment of error is, therefore, overruled. Muskingum County, Case No. CT2017-0027 21
{¶48} Accordingly, the judgment of the Muskingum County Court of Common
Pleas is affirmed.
By: Baldwin, J.
Hoffman, P.J. and
Earle Wise, J. concur.