Dar Jen Farms, Inc. v. Ohio Power Co.

2023 Ohio 4612

• Court: Ohio Court of Appeals
• Decided: December 14, 2023
• Docket: CT2023-0053
• Status: Published

Opinion

[Cite as Dar Jen Farms, Inc. v. Ohio Power Co., 2023-Ohio-4612.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

DAR JEN FARMS, INC., ET AL., JUDGES: Hon. William B. Hoffman, P.J. Plaintiffs-Appellants Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. CT2023-0053 OHIO POWER COMPANY

Defendant-Appellee OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Muskingum County Court of Common Pleas, Case No. CH2019- 0288

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 14, 2023

APPEARANCES:

For Plaintiffs-Appellants For Defendant-Appellee

BRENT A. STUBBINS MOLLY S. CRABTREE KYLE S. WITUCKY Porter Wright Morris & Arthur, LLP GRANT J. STUBBINS 41 South High Street, Suite #2900 CARTER A. BROWN Columbus, Ohio 43215 Stubbins, Watson, Bryan & Witucky, Co., L.P.A. 59 North Fourth Street P.O. Box 488 Zanesville, Ohio 43702-0488 Muskingum County, Case No. CT2023-0053 2

Hoffman, P.J. {¶1} Plaintiff-appellants Dar Jen Farms, Inc. (hereinafter “Dar Jen”) and William

A. Jennings (hereinafter “Jennings”) appeal the summary judgment entered by the

Muskingum County Common Pleas Court dismissing their complaint for declaratory

judgment against Defendant-appellee Ohio Power Company.

STATEMENT OF THE FACTS AND CASE

{¶2} Dar Jen owns real property in Muskingum County. Jennings is the majority

stockholder of Dar Jen. Appellee owns a right-of-way and easement across the property

owned by Dar Jen pursuant to a written easement signed by Dar Jen’s predecessor in

interest on September 24, 1947.

{¶3} The easement grants Appellee rights relating to the construction, operation,

and maintenance of transmission lines on Appellants’ property including the right to

“construct, erect, operate, and maintain a line of poles and wires for the purpose of

transmitting electric or other power.” The easement does not restrict the height or

placement of the poles.

{¶4} Appellee has maintained an electric transmission line and related

equipment across the property since the 1940’s. Twenty years after Appellee obtained

the easement and installed its first equipment, Jennings built an airport on the property

with the runway facing the existing utility poles. Jennings has not used the airport

personally since 2007, and could only identify a handful of times the airport had been

used by others in the past decade. The only use of the airport since 2016, was by a

helicopter, not an airplane. Jennings does not presently own an airplane.

{¶5} In 2017, Appellee planned to upgrade the aging power line across the

property as a part of a rebuilding project in Muskingum and Coshocton Counties. Part of Muskingum County, Case No. CT2023-0053 3

the upgrade included the installation of taller utility poles on Dar Jen’s property. The

upgrade increased the height of the power lines from 34 to 98 feet, and included fiber

optic lines. Appellee initially discussed obtaining a supplemental easement with Jennings

to move the existing lines. After Jennings sought $120,000 for the supplemental

easement, citing concerns about the airport, Appellee decided to install new poles entirely

within the existing easement.

{¶6} On October 10, 2019, Appellants filed the instant action seeking declaratory

judgment Appellee had exceeded the scope of its easement. Appellants sought a

preliminary injunction to restrain Appellee from installing poles within the easement, as

well as damages and fees. Appellants also filed a motion for a temporary restraining

order. The trial court denied both the preliminary injunction and the temporary restraining

order. Appellee completed installation of the new poles in August, 2020, while the instant

action was pending.

{¶7} On May 2, 2022, Appellee filed a motion for summary judgment. Appellee

argued the only remaining claim was the claim for declaratory judgment. Appellee argued

the claim for monetary damages was precluded by Ohio’s eminent domain statute, and

Appellants could only obtain monetary damages if they had filed a writ of mandamus to

compel Appellee to commence eminent domain proceedings, which Appellants had not

filed. On June 2, 2022, Appellants attempted to file a petition for mandamus, and on June

3, 2022, Appellants filed a motion to amend their complaint to include the petition for

mandamus. Appellee filed a motion to strike Appellants’ petition.

{¶8} Following a hearing, the trial court granted Appellee’s motion for summary

judgment, dismissing Appellants’ complaint. The trial court also struck Appellants’ petition Muskingum County, Case No. CT2023-0053 4

for a writ of mandamus and overruled Appellants’ motion to amend their complaint. It is

from the June 20, 2023 judgment of the trial court Appellants prosecute their appeal,

assigning as error:

I. THE TRIAL COURT ERRED BY GRANTING SUMMARY

JUDGMENT.

II. THE TRIAL COURT ERRED BY FAILING TO GRANT

APPELLANTS’ PETITION FOR WRIT OF MANDAMUS AND

APPELLANTS’ MOTION FOR LEAVE TO AMEND THE COMPLAINT.

I.

{¶9} In their first assignment of error, Appellants argue the trial court erred in

entering summary judgment in favor of Appellee.

{¶10} Summary judgment proceedings present the appellate court with the unique

opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v.

The Wedding Party, Inc., 30 Ohio St.3d 35, 36 (1987). As such, we must refer to Civ. R.

56(C) which provides in pertinent part:

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 as to any material fact and

that the moving party is entitled to judgment as a matter of law. No evidence Muskingum County, Case No. CT2023-0053 5

or stipulation may be considered except as stated in this rule. A summary

judgment shall not be rendered unless it appears from the evidence or

stipulation, and only from the evidence or stipulation, that reasonable minds

can come to but one conclusion and that conclusion is adverse to the party

against whom the motion for summary judgment is made, that party being

entitled to have the evidence or stipulation construed most strongly in the

party’s favor.

{¶11} Pursuant to the above rule, a trial court may not enter summary judgment if

it appears a material fact is genuinely disputed. The party moving for summary judgment

bears the initial burden of informing the trial court of the basis for its motion and identifying

those portions of the record demonstrating the absence of a genuine issue of material

fact. The moving party may not make a conclusory assertion the non-moving party has

no evidence to prove its case. The moving party must specifically point to some evidence

which demonstrates the moving party cannot support its claim. If the moving party

satisfies this requirement, the burden shifts to the non-moving party to set forth specific

facts demonstrating there is a genuine issue of material fact for trial. Vahila v. Hall, 77

Ohio St.3d 421, 429, 1997-Ohio-259, citing Dresher v. Burt, 75 Ohio St.3d 280, 1996-

Ohio-107.

{¶12} Appellants first argue the trial court erred in granting summary judgment

without “weighing the equities” between the parties in accordance with this Court’s

decision in Ohio Power C. v. Bauer, 60 Ohio App. 3d 57, 573.E.2d 780 (5th Dist. Perry

1989). In the syllabus, this Court held: Muskingum County, Case No. CT2023-0053 6

1. Where the grant of access in an easement to a power company

for maintenance and control of power lines and towers is indefinite, global,

and allows access over the entire dominant property, a court of equity has

jurisdiction to monitor the competing interests of the dominant and servient

estates and to grant appropriate relief to both interests. In exercising this

equity jurisdiction, the court may only be reversed upon a showing of abuse

of discretion.

2. An easement grants such rights as are necessary to the

reasonable enjoyment thereof, leaving to the owner of the fee the right to

use the property in any manner not inconsistent with the reasonable use of

the easement.

{¶13} In Bauer, the power company sued the landowner for denying it access to

an easement on the property, invoking the equitable jurisdiction of the court. The trial

court issued the injunction against the landowner, later finding the landowner in contempt

for continuing to deny the power company access to its easement. The trial court set

forth restrictions on both parties regarding access to the easement. Ohio Power

appealed, arguing the trial court was without jurisdiction to impose restrictions on its

access to the easement. This Court affirmed, finding the trial court had jurisdiction to

balance the rights of the parties in fashioning an equitable remedy where the grant of

access was “indefinite, global, and allows access over the entire dominant property.” Id.

at syllabus 1. In so doing, we noted this was not a case where the intention of the parties

was apparent from the four corners of the easement. Id. at 60. Muskingum County, Case No. CT2023-0053 7

{¶14} We find Bauer does not require the trial court to balance the competing

interests of the parties, but rather allows the trial court to balance the rights and interests

of the parties in exercising its equitable jurisdiction where the intention of the parties is

not apparent from the four corners of the easement. Unlike Bauer, the instant case is not

before this Court on appeal from the fashioning of injunctive relief, but rather is limited to

the question of whether the trial court erred in granting summary judgment on Appellants’

claim the new power lines exceed the scope of the four corners of the easement. Also,

unlike Bauer, the easement to Appellee did not allow access over the entire property of

Appellants and the scope of the easement was definite. We find Bauer is limited to its

unique facts and inapplicable to the instant case. We find the trial court did not err in

granting summary judgment without balancing the equities in between the parties as this

Court allowed in Bauer.

{¶15} Appellants also argue the trial court erred in granting summary judgment

because the 1947 easement did not allow for fiber optic lines, and by including fiber optic

lines on the poles, Appellee exceeded the scope of the easement. Appellants argue

Appellee admitted the terms “electric power” and “any other power” as used in the

easement are vague and ambiguous, and therefore summary judgment was

inappropriate.

{¶16} The easement allows Appellee to “place, erect, maintain, inspect, add to the

number of, and relocate at will, poles, crossarms or fixtures, and string wires and cables,

adding thereto from time to time, across, through or over the above described premises.”

The stated purpose of the easement is to allow Appellee to “construct, erect, operate and

maintain a line of poles and wires for the purpose of transmitting electric or other power, Muskingum County, Case No. CT2023-0053 8

including telegraph or telephone wires” on the property. Motion for Summary Judgment,

Ex. A.

{¶17} Appellants argue fiber optic lines are not lines which transmit electric or

other power, and are not telegraph or telephone wires. The clear language of the

easement provides telegraph or telephone wires are simply examples of the types of

wires which could be included on the poles, and not an exhaustive list. The use of the

word “including” implies what follows is a partial, not an exhaustive, listing of what is

subsumed within the stated category. See, e.g., In re Hartman, 2 Ohio St.3d 154, 156,

443 N.E.2d 516, 517 (1983). We find although the stated purpose of the easement is to

allow Appellee to string wires on poles for the purpose of transmitting electric or other

power, the plain language of the easement does not restrict the lines to power lines,

telephone lines, or telegraph wires. Further, the language of the easement following the

stated purpose, which sets forth Appellee’s rights pursuant to the easement, does not

restrict the type of cable which can be strung on the poles. We find pursuant to the plain

language of the easement, fiber optic lines were not restricted from being strung on poles

validly constructed under the terms of the easement.

{¶18} Appellants cite this Court to two cases in which the courts concluded an

expansion in technology exceeded the scope of an easement. In Corder v. Ohio Edison

Co., 2022-Ohio-4818, 205 N.E. 3d 616 (7th Dist. Harrison), the court held the phrase

“trim, cut, and remove,” as used in a utility easement, did not permit the utility to use

herbicides to control vegetation. The court found the language used in the easement was

ambiguous, and there was nothing in the record to prove the easement was created with

the intention herbicides would be used. Id. at ¶4. We find Corder is distinguishable from Muskingum County, Case No. CT2023-0053 9

the instant case, as the language in the easement in the case sub judice unambiguously

allows the stringing of wires and cables on poles constructed within the easement,

including a fiber optic cable. In addition, while the use of herbicides changes the nature

of the activity on the property from the removal of vegetation by cutting or trimming, there

is nothing in the record in the instant case to suggest the fiber optic wires have any

adverse effect on the property which is different from the stringing of electric or telephone

wires on the poles. Appellants’ complaint about the new poles was the height of the poles

interfering with the airport, not with the type of wires strung on the poles.

{¶19} Appellants also cite to Graham v. Drydock Coal Co., 76 Ohio St. 3d 311,

667 N.E.2d 949, 1996-Ohio-393, in which the Ohio Supreme Court held a deed which

severs a mineral estate from a surface estate and grants or reserves the right to use the

surface for coal mining, with language specifically applicable to deep-mining techniques,

does not grant the right to use strip mining. We find Graham does not support Appellants’

argument the change in technology to fiber optic wires exceeds the scope of the

easement. The Graham court specifically found the language in the deed referred to

deep-mining techniques, not to strip mining, and whether the deed was drafted before or

after the advent of strip mining, the deed did not reserve to the mineral owner the right to

use strip mining methods. Id. at 319. Thus, the Graham holding was not based on new

technology exceeding the scope of the deed language, but on the specific language of

the deed itself. The language in the easement in the instant case does not specifically

preclude fiber optic lines.

{¶20} Finally, Appellants argue Appellee admitted the terms “electric power” and

“any other power” as used in the easement were vague and ambiguous, thus precluding Muskingum County, Case No. CT2023-0053 10

summary judgment. Appellants contend Appellee conceded the terms were vague and

ambiguous in their responses to Appellants’ discovery request. However, upon reviewing

the record, we find Appellee merely objected to Appellants’ use of the terms in their

phrasing of requests for admissions in discovery requests as vague and ambiguous.

There is no evidence in the record Appellee admitted the terms as used in the easement

are vague and ambiguous.

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

II.

{¶22} In their second assignment of error, Appellants argue the trial court erred in

overruling their motion to amend their complaint to add a petition in mandamus for

eminent domain because at the time they filed their complaint in 2019, they did not know

fiber optic lines would be included on the poles, which had not yet been installed, and

such lines constitute an inverse taking because they are outside the scope of the

easement.

{¶23} Civ. R. 15(A) provides for amendment of pleadings as follows:

(A) Amendments. A party may amend its pleading once as a matter

of course within twenty-eight days after serving it or, if the pleading is one

to which a responsive pleading is required within twenty-eight days after

service of a responsive pleading or twenty-eight days after service of a

motion under Civ.R. 12(B), (E), or (F), whichever is earlier. In all other

cases, a party may amend its pleading only with the opposing party's written

consent or the court's leave. The court shall freely give leave when justice Muskingum County, Case No. CT2023-0053 11

so requires. Unless the court orders otherwise, any required response to an

amended pleading must be made within the time remaining to respond to

the original pleading or within fourteen days after service of the amended

pleading, whichever is later.

{¶24} “While the rule allows for liberal amendment, motions should be refused if

there is a showing of bad faith, undue delay, or undue prejudice to the opposing party.”

Howick v. Lakewood Village Ltd. Partnership, 3d Dist. Mercer No. 10-06-25, 2007-Ohio-

4370, 2007 WL 2410078, ¶ 37, citing Turner v. Cent. Local School Dist., 85 Ohio St.3d

95, 99, 706 N.E.2d 1261 (1999). A trial court's decision to grant or deny a motion for leave

to amend a pleading is discretionary and will not be reversed absent an abuse of

discretion. Id. at ¶ 37, citing State ex rel. Askew v. Goldhart, 75 Ohio St.3d 608, 610, 665

N.E.2d 200 (1996). “An abuse of discretion connotes a decision that is unreasonable,

arbitrary, or unconscionable.” Id.

{¶25} We find the trial court did not abuse its discretion in denying Appellants’

motion to amend the pleadings to add a petition for mandamus. Appellants did not file

their motion to amend until June 3, 2022. The instant action was filed in 2019. The

construction of the new poles was completed in August of 2020. Appellants filed their

motion to amend their complaint to add the petition for mandamus to require Appellee to

commence eminent domain proceedings only after Appellee argued in its motion for

summary judgment Appellants’ claim for monetary damages was precluded by their

failure to file a writ of mandamus to compel Appellee to commence eminent domain

proceedings. We find the trial court did not abuse its discretion in finding the motion to Muskingum County, Case No. CT2023-0053 12

amend the complaint was filed too late in the proceedings, several years after the

construction of the poles was completed.

{¶26} In addition, Appellants’ petition is based on their claim the addition of fiber

optic cables to the poles is outside the scope of the easement. Because we have found

the plain language of the easement allows fiber optic cables to be strung from the poles,

we find Appellants could not demonstrate a “taking” occurred by the stringing of fiber optic

cables on the poles.

{¶27} The second assignment of error is overruled. The judgment of the

Muskingum County Common Pleas Court is affirmed.

By: Hoffman, P.J. Wise, J. and Baldwin, J. concur