[Cite as Delaware Golf Club, L.L.C. v. Dornoch Estates Homeowners Assn., Inc., 2020-Ohio-880.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
DELAWARE GOLF CLUB, LLC : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellant : Hon. John W. Wise, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 19 CAE 04 0027 : DORNOCH ESTATES : HOMEOWNERS ASSOCIATION, INC., : ET AL. : : : Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 16 CVH 08 0532
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: March 5, 2020
APPEARANCES:
For Plaintiff-Appellant: For Defendants-Appellees:
KARL H. SCHNEIDER D. WESLEY NEWHOUSE TODD A. LONG MICHEL JENDRETZKY 21 E. State St., Suite 1700 3366 Riverside Dr., Suite 103 Columbus, OH 43215 Columbus, OH 43221
GREGORY H. MELIC 1160 Dublin Rd., Suite 400 Columbus, OH 43215 Delaware County, Case No. 19 CAE 04 0027 2
Delaney, J.
{¶1} Plaintiff-Appellant Delaware Golf Club, LLC appeals the March 5, 2019
judgment entry of the Delaware County Court of Common Pleas.
FACTS AND PROCEDURAL HISTORY
Agreement and Easement
{¶2} Defendant-Appellee Dornoch Estates Homeowners Association, Inc. is a
not-for-profit corporation managing Dornoch Estates, a planned unit development in
Delaware County. Dornoch Estates consists of approximately 393 single-family homes.
Plaintiff-Appellant Delaware Golf Club, LLC, operates an 18-hole golf course, located
adjacent and contiguous to Dornoch Estates.
{¶3} In September 1997, Dornoch Estates obtained a “Permit to Install No. 01-
7240” from the Ohio Environmental Protection Agency for the installation and operation
of a wastewater treatment plant to serve the subdivision and the golf course. The permit
applied to a wastewater disposal system designed to serve an average daily hydraulic
flow of no more than 120,000 gallons. The engineering report submitted with the permit
application stated that an irrigation pumping station would pump the reclaimed water to
irrigate turf grasses on the golf course. The report stated that 144 total acres were
available for irrigation and 76 acres were required for irrigation.
{¶4} The operator of the wastewater treatment plant was Defendant-Appellee
Scott Jamison dba Jamison Environmental.
{¶5} In April 2007, Dornoch Estates entered into an “Agreement and Easement”
with Dornoch Development Ltd., the Golf Club’s predecessor-in-interest, regarding the Delaware County, Case No. 19 CAE 04 0027 3
wastewater treatment plant. The dominant estate was Dornoch Estates and the servient
estate was the golf course property. The Agreement and Easement state in pertinent part:
A. [Golf Club] (Grantor) is the owner of real estate located at 3329
Columbus Pike, Delaware, Ohio, situated on the acreage described in
“Exhibit A”, attached hereto “the Real Estate”, which property currently
consists of the entire eighteen (18) hole golf course and real property and
components related to its use as a golf course, and which property
surrounds the sewage treatment plant owned and operated by the
Association (Grantee) on the 1.016 acre tract described in “Exhibit B”
attached;
B. The clean, treated wastewater from the Association’s (Grantee’s) facility
is a partial resource for irrigation of the Real Estate; and
C. The Real Estate is an essential resource to the Association’s (Grantee’s)
facility, providing a safe and sanitary means for disposal of the clean water
outflow from the Association’s (Grantee’s) facility; and
D. The Association’s (Grantee’s) facility is designed to prevent intrusion of
the facility’s outflow into the nearby Olentangy River, and its design and
operations have been approved by the Ohio Environmental Protection
Agency; and
Agreement and Grant
NOW, THEREFORE, in consideration of their mutual promises, the parties
agree as follows: Delaware County, Case No. 19 CAE 04 0027 4
1. Development (Grantor) hereby grants to Association (Grantee) an
easement upon the Real Estate described in Exhibit “A” for the purpose of
disposing clean, treated, outflow from Association’s (Grantee’s) treatment
facility * * * which clean water shall be piped into the Real Estate lake, and,
when needed, to the adjacent retention basin, * * *, to be distributed through
the Real Estate irrigation system.
***
3. This easement includes and Development (Grantor) agrees to accept the
Association’s (Grantee’s) entire outflow of clean, treated water * * * as
permitted by the Permit to Install No. 01-7240 originally issued effective
September 29, 1997. * * *
4. Development (Grantor) shall have the right to relocate on the Real Estate
at Development’s (Grantor’s) cost with the consent of the Huntington
National Bank, if it still possesses mortgages on the Real Estate, the
pipelines originally installed for Association (Grantee) as needed to
accommodate Development’s (Grantor’s) use of its property. * * * Nor shall
such a relocation have a detrimental effect on spreading the clean water
outflow to all portions of the Real Estate.
8. Development (Grantor) covenants that it will detain, distribute, and apply
the Association’s (Grantee’s) entire outflow upon the Real Estate as
presently configured in compliance with the requirements of the Ohio Delaware County, Case No. 19 CAE 04 0027 5
Environmental Protection Agency and the Permit to Install associated with
the facilities accommodated hereby.
After-Easement Developments
{¶6} In November 2012, Dornoch Estates submitted a “Land Application
Management Plan” to the OEPA for approval. The LAMP provided that “[t]he portion of
the course that is irrigated consists of approximately 144 acres, as described in Section
3.2 of this Plan.” The LAMP was approved by OEPA on December 5, 2013, “subject to
the condition of compliance with all applicable laws, rules, regulations and all the
conditions below and in Part I and/or Part II of this permit.” Dornoch Estates did not notify
the Golf Club that the 2012 LAMP was submitted or approved on December 5, 2013.
{¶7} The Golf Club became aware that violations had occurred at the wastewater
treatment plant. The OEPA issued notices of violations for noncompliance to Dornoch
Estates in 2014 and 2015. The violations showed that improperly treated wastewater had
been discharged from the treatment plant and into the Golf Club’s lakes and retention
basin, then onto the golf course through the irrigation system. Dornoch Estates did not
notify the Golf Club of the violations.
{¶8} In addition to the Agreement and Easement, Dornoch Estates allowed the
Golf Club to transport freshwater from a golf course surface pond (storm water pond) to
the pond that receives the treated wastewater (irrigation pond) through pipes that were
designed to transport wastewater. The parties operated under the arrangement since
2007, until Dornoch Estates began denying the Golf Club access to the pumps in 2016.
In 2017, the Golf Club purchased and installed a new pump. Dornoch Estates then Delaware County, Case No. 19 CAE 04 0027 6
permitted the Golf Club to resume transporting fresh water through the wastewater
treatment facility pipes.
{¶9} When the Golf Club became aware of the LAMP in early 2016, it requested
that Dornoch Estates submit an amendment to the LAMP reflecting that the portion of the
property that was irrigated consisted of only 76 acres, not 144 acres as represented in
the LAMP. Dornoch Estates refused.
{¶10} On January 20, 2016, the Golf Club presented a concept plan to the City of
Delaware for the development of a portion of the golf course for mixed
residential/commercial use. The plan proposed a phase of development that would
reduce the irrigation area from the wastewater treatment plant to 76 acres.
{¶11} In July 2016, the Golf Club became aware that a retaining wall on the
property of Dornoch Estates and adjacent to a golf cart path had collapsed. Dornoch
Estates had constructed the retaining wall to accommodate the installation of a road in
the subdivision. Dornoch Estates would not repair or replace the retaining wall.
Civil Action
{¶12} On August 30, 2016, the Golf Club filed a complaint with request for
permanent injunction against Dornoch Estates and Jamison (hereinafter “Dornoch
Estates”) in the Delaware County Court of Common Pleas. The Golf Club requested six
claims for relief: (1) permanent injunction to prevent Dornoch Estates from committing
additional violations and discharging untreated wastewater on the golf course property;
(2) termination and/or modification of the “Agreement and Easement” and LAMP; (3)
fraudulent concealment and fraud by omission; (4) negligence; (5) trespass; and (6)
declaratory judgment and request for mandamus based on the collapsed retaining wall. Delaware County, Case No. 19 CAE 04 0027 7
The majority of the Golf Club’s claims, and pertinent to this appeal, related to the required
amount of acreage for irrigation of the treated wastewater. The Golf Club argued only 76
acres were required for irrigation.
{¶13} Dornoch Estates filed its answer and counterclaim on September 13, 2016.
In its counterclaim, Dornoch Estates argued the Golf Club engaged in abuse of process
by filing its lawsuit to pressure the parties to terminate and/or amend the Agreement and
Easement to reduce the acreage required to 76 acres so that the Golf Club could proceed
with its development plans.
Amended Complaints
{¶14} On September 14, 2016, the Golf Club filed its first amended complaint with
request for permanent injunction. The Golf Club added a seventh claim, requesting a
permanent injunction preventing Dornoch Estates from restricting access to water from
the storm water pond. The Golf Club also filed a motion for temporary restraining order
and preliminary injunction, which the trial court denied on September 20, 2016.
{¶15} The Golf Club filed a motion for leave to file a second amended complaint
on October 4, 2016. Based on the trial court’s denial of its motion for temporary restraining
order and preliminary injunction, the Golf Club argued it suffered monetary damages for
the actions of Jamison and Dornoch Estates in limiting its access to the water in the storm
water pond. It raised four new claims: (7) breach of contract and tortious interference with
contractual relations; (8) breach of implied contract and tortious interference with
contractual relations; (9) breach of implied easement and tortious interference with
implied easement; and (10) request for permanent injunction to enjoin Dornoch Estates Delaware County, Case No. 19 CAE 04 0027 8
from restricting access to the water in the storm water pond. The trial court granted the
motion and the second amended complaint was filed on October 24, 2016.
{¶16} On January 3, 2017, Dornoch Estates filed a motion for partial judgment on
the pleadings pursuant to Civ.R. 12(C). It argued the trial court should dismiss all of the
Golf Club’s claims in the second amended complaint, except for the fifth and sixth causes
of action, which sought damages for Dornoch Estates’ alleged trespass by discharging
untreated wastewater on to the golf course and declaratory judgment and injunction
regarding the collapsed retaining wall. Dornoch Estates next filed a motion to dismiss the
Golf Club’s second amended complaint, except the sixth cause of action, for lack of
subject matter jurisdiction. Dornoch Estates argued the trial court lacked subject matter
jurisdiction over the majority of the Golf Club’s claims because the exclusive remedy for
addressing alleged violations of Ohio’s water pollution laws was through the
administrative procedures set forth in R.C. Chapter 3745.
{¶17} On May 1, 2017, the Golf Club filed a motion for leave to file a third amended
complaint pursuant to Civ.R. 15(A). The main purpose of the third amended complaint
was to assert two new claims. The eleventh claim related to an alleged sanitary sewer
overflow that occurred on March 20, 2017 and caused damage to the golf course property.
The twelfth claim set forth a specific request for declaratory judgment and reformation of
the Agreement and Easement related to the amount of acreage required on the golf
course for irrigation purposes. Dornoch Estates filed a memorandum contra and the Golf
Club replied.
{¶18} On August 8, 2017, the trial court issued two judgment entries, the first
granting in part and denying in part Dornoch Estates’ motion for partial judgment on the Delaware County, Case No. 19 CAE 04 0027 9
pleadings and motion to dismiss for lack of subject matter jurisdiction and the second
denying the Golf Club’s motion for leave to file a third amended complaint.
{¶19} The trial court first dismissed the Golf Club’s first claim for a permanent
injunction enjoining Dornoch Estates from committing additional violations and
discharging any untreated wastewater onto the golf course and the Golf Club’s second
claim to the extent that it sought a modification of the LAMP. The trial court next granted
the motion for partial judgment on the pleadings on the Golf Club’s second claim that the
Agreement and Easement should be modified to include additional terms. The trial court
found it was without authority to modify the Agreement and Easement. The trial court
further found Dornoch Estates was entitled to judgment on the pleadings as to the third,
fourth, seventh, eighth, and ninth claims. The Golf Club’s fifth (trespass), sixth
(declaratory judgment and request for mandamus based on the collapsed retaining wall),
and tenth (request for permanent injunction enjoining Dornoch Estates from restricting
access to water in the storm water pond) claims in the second amended complaint
remained pending before the trial court.
{¶20} The trial court denied the Golf Club’s motion for leave to file a third
amended complaint. The trial court denied the Golf Club’s motion because it did not
establish that its proposed additional claims were supported by law. The Golf Club’s
claims in the proposed third amended complaint were similar to those raised in the second
amended complaint and dismissed by the trial court.
{¶21} The Golf Club filed a motion for reconsideration of the trial court’s August 8,
2017 judgment entry denying its motion for leave to file a third amended complaint. The
motion specifically requested the trial court reconsider its denial of the request for Delaware County, Case No. 19 CAE 04 0027 10
declaratory judgment and reformation of the Agreement and Easement. Alternatively, the
Golf Club requested leave to add a claim for declaratory judgment that it had the right to
use its property in any manner that was not prohibited by the easement and did not
unreasonably interfere in the use of the easement. Upon examination of the Golf Club’s
more thoroughly argued motion, the trial court permitted the Golf Club to amend its
complaint. As to its argument that it should be permitted to add a claim for declaratory
judgment that it had the right to use its property in any manner, the trial court stated:
Having determined that a court cannot redefine the dimensions of the
agreement and easement, it is unclear to the Court what clarity will come
from a declaration that Plaintiff can use its property in any manner not
prohibited by law and in ways that do not unreasonably interfere with the
easement. If Plaintiff believes, however, that such a declaration is
necessary, the Court will allow Plaintiff to assert the claim in its amended
complaint.
(February 26, 2018 Judgment Entry). The trial court also allowed the Golf Course to
amend the complaint to assert a claim for breach of the Agreement and Easement for the
sanitary sewer overflow. The third amended complaint was filed on March 7, 2018.
{¶22} On May 31, 2018, the parties filed an agreed judgment entry that dismissed
the Golf Club’s sanitary sewer overflow claim.
Summary Judgment
{¶23} The Golf Club filed a motion for partial summary judgment on June 6, 2018.
Dornoch Estates filed a motion for summary judgment on July 16, 2018. Delaware County, Case No. 19 CAE 04 0027 11
{¶24} On November 6, 2018, the Golf Club filed a motion for the trial court to
dismiss without prejudice pursuant to Civ.R. 41(A)(2) its request for declaratory judgment
regarding the collapsed retaining wall. The Golf Club argued the claim was moot because
the local government determined it would replace the retaining wall. Dornoch Estates
opposed the motion.
{¶25} On December 7, 2018, the trial court issued its judgment entry that ruled
upon the Golf Club’s motion for partial summary judgment and motion to dismiss one
claim and Dornoch Estates’ motion for summary judgment. The Golf Club’s remaining
claims before the trial court were: (1) breaches of the Agreement and Easement as to
alleged violations of the OEPA requirements; (2) trespass; (3) declaratory judgment and
request for mandatory injunction related to the collapsed retaining wall; (4) breach of
contract related to the Golf Club’s access to the storm water pond; (5) breach of implied
contract related to the Golf Club’s access to the storm water pond; (6) breach of implied
easement related to the Golf Club’s access to the storm water pond; (7) permanent
injunction to enjoin Dornoch Estates from restricting access to the storm water pond; and
(8) declaratory judgment regarding the Agreement and Easement and the Golf Club’s
right to use the property in any manner that was not prohibited by the easement and did
not unreasonably interfere in the use of the easement. The counterclaim for abuse of
process brought by Dornoch Estates also remained.
{¶26} The Golf Club argued it was entitled to judgment as a matter of law on its
claims for breach of the Agreement and Easement and trespass and Dornoch Estates’
claim for abuse of process. Dornoch Estates moved for summary judgment on all of the Delaware County, Case No. 19 CAE 04 0027 12
Golf Club’s remaining claims, except for the Golf Club’s request for declaratory judgment
regarding the Agreement and Easement and its rights to use the property.
{¶27} The trial court granted summary judgment in favor of Dornoch Estates on
the Golf Club’s claims for (1) declaratory judgment as to the collapsed retaining wall, also
denying the Golf Club’s motion to dismiss that claim; (2) breach of the Agreement and
Easement as they related to violations of the OEPA requirements; and (3) permanent
injunction to enjoin Dornoch Estates from restricting access to the storm water pond. The
trial court found in favor of the Golf Club on its claim for trespass, awarding the Golf Club
nominal damages in the amount of $150.00. Finally, the trial court determined there were
genuine issues of material fact on Dornoch Estates’ claim for abuse of process and the
Golf Club’s claims for breach of contract, breach of implied contract, and breach of implied
easement related to the storm water pond access. The matter was set for a bench trial
on the remaining claims.
Bench Trial
{¶28} In January 2019, the parties presented the remaining claims to the trial court
at a three-day bench trial. 11 witnesses and numerous exhibits were presented. The
following matters were before the trial court: (1) declaratory judgment regarding the
Agreement and Easement and the Golf Club’s right to use the property in any manner
that was not prohibited by the easement and did not unreasonably interfere in the use of
the easement; (2) breach of contract related to the Golf Club’s access to the storm water
pond; (3) breach of implied contract related to the Golf Club’s access to the storm water
pond; (4) breach of implied easement related to the Golf Club’s access to the storm water
pond; and (5) Dornoch Estates’ claim for abuse of process. Delaware County, Case No. 19 CAE 04 0027 13
{¶29} The trial court ruled on the remaining claims via judgment entry filed March
5, 2019. The trial court first found the Golf Club established Dornoch Estates breached
the contract when it did not allow the Golf Club to access the storm water pond. It awarded
the Golf Club $54,627.75 in damages. Because the Golf Club requested the same relief
in its claims for breach of implied contract and breach of implied easement, the trial court
found those claims moot. The trial court next found that the Golf Club was not entitled to
declaratory judgment that would alter the terms of the Agreement and Easement. In its
arguments, the Golf Club asserted that a minimum of 76 acres of land was needed to
fulfill the purpose of the easement, supported by scientific evidence presented at trial.
Dornoch Estates alternatively relied on the unambiguous terms of the Agreement and
Easement, arguing the easement applied to the entire golf course property. The trial court
agreed the evidence presented showed that the treated wastewater could be safely
discharged onto a land area less than 144 acres. The trial court found it was bound by
the unambiguous terms of the Agreement and Easement, which stated that the easement
applied to the entire 18-hole golf course. Finally, the trial court found the evidence did not
support Dornoch Estates’ claim for abuse of process.
Appeal
{¶30} The Golf Club filed a notice of appeal on April 4, 2019.
{¶31} On April 16, 2019, Dornoch Estates filed a motion for leave to file a delayed
appeal and notice of cross appeal. The Golf Club responded to the motion and Dornoch
Estates replied. We denied the motion for leave to file a delayed appeal on May 6, 2019.
{¶32} On May 17, 2019, Dornoch Estates filed a motion to deem its cross appeal
timely filed. On May 21, 2019, Dornoch Estates filed a motion for extension of time to file Delaware County, Case No. 19 CAE 04 0027 14
its brief on cross appeal. The Golf Club responded to both motions in opposition. On May
29, 2019, we granted Dornoch Estates an extension to file their brief on cross appeal on
or before June 17, 2019. Dornoch Estates filed its brief on cross appeal on June 17, 2019.
{¶33} On June 27, 2019, however, we issued a nunc pro tunc judgment entry
removing the words “cross appeal” from our judgment entry granting Dornoch Estates’
extension to file its brief. We issued a second judgment entry denying Dornoch Estates’
motion to deem the cross appeal timely filed. The Golf Club thereafter filed a motion to
strike the June 17, 2019 brief. On July 15, 2019, we granted the Golf Club’s motion to
strike the June 17, 2019 cross appeal brief. Dornoch Estates filed an appeal with the Ohio
Supreme Court of our July 15, 2019 judgment entry. The Ohio Supreme Court declined
to accept jurisdiction. On November 6, 2019, we denied a pending motion for
reconsideration of our June 27, 2019 judgment entry.
{¶34} Accordingly, the only appeal before this Court is the appeal filed by the Golf
Club.
ASSIGNMENT OF ERROR
{¶35} The Golf Club raises one Assignment of Error:
{¶36} “THE TRIAL COURT ERRED WHEN IT FAILED TO PROVIDE
DECLARTORY RELIEF. JUDGMENT ENTRY ANNOUNCING THE VERDICT
FOLLOWING THE JANUARY 2019 TRIAL AT 5-11 (MAR. 5, 2019) (“ORDER”); THIRD
AMENDED COMPLAINT WITH REQUEST FOR PERMANENT INJUNCTIVE RELIEF AT
¶ 67-80.” Delaware County, Case No. 19 CAE 04 0027 15
ANALYSIS
{¶37} The Golf Club argues the trial court erred when it found in favor of Dornoch
Estates on its request for declaratory judgment concerning the Golf Club’s use of the golf
course property and the interpretation of the Agreement and Easement. We disagree.
Standard of Review
{¶38} We review a trial court’s determination of matters of law in a declaratory
judgment action under a de novo standard of review. Arnott v. Arnott, 132 Ohio St.3d 401,
2012-Ohio-3208, 972 N.E.2d 586, ¶ 13. Ohio appellate courts have held that when the
trial court uses extrinsic evidence to determine the dimensions or scope of an easement,
an issue of fact is presented. Cliffs and Creeks, LLC. v. Swallie, 2018-Ohio-5410, 128
N.E.3d 825, ¶ 12 (7th Dist.). The trial court as the trier of fact, however, has the advantage
of observing the witnesses at trial and assessing their credibility. As to our consideration
of the trial court’s findings of fact, we defer to the trial court. Brown v. Brown, 2017-Ohio-
8938, 102 N.E.3d 72, ¶ 20 (3rd Dist.). A reviewing court will not disturb the trial court’s
decision if it is supported by competent, credible evidence. Cliffs and Creeks, 2018-Ohio-
5410, ¶ 12 citing Bayes v. Toledo Edison Co., 6th Dist. Nos. L–03–1177, L–03–1194,
2004-Ohio-5752, 2004 WL 2426234, ¶ 69; Gans v. Andrulis, 11th Dist. No. 99-P-0118,
2001 WL 530490, *4-5 (May 18, 2001); Munchmeyer v. Burfield, 4th Dist. No. 95CA7,
1996 WL 142579, *3 (Mar. 26, 1996); Murray v. Lyon, 95 Ohio App.3d 215, 219, 642
N.E.2d 41 (9th Dist.1994). See also Andrews v. Columbia Gas Transmission Corp., 544
F.3d 618, 624 (6th Cir.2008). Delaware County, Case No. 19 CAE 04 0027 16
Express Easement
{¶39} An easement has been defined as an interest in the land of another created
by prescription or express or implied grant, which entitles the owner of the easement to a
limited use of the land in which the interest exists. Myers v. McCoy, 5th Dist. Delaware
No. 2004CAE07059, 2005-Ohio-2171, 2005 WL 1038871, ¶ 16 citing Alban v. R.K.
Company, 15 Ohio St.2d 229, 198, 239 N.E.2d 22 (1968). The owner of the easement is
referred to as the dominant estate (Dornoch Estates) and the land in which the interest
exists is called the servient estate (Golf Club). Id. When an easement is granted by an
express grant, the extent and limitations upon the dominate estate's use of the land
depends upon the language of the granting instrument. Id. The easement at issue here
is an express easement as stated in the Agreement and Easement.
{¶40} The grant of an easement includes the grant of all things necessary for the
dominant estate to use and enjoy the easement. Myers v. McCoy, 5th Dist. Delaware No.
2004CAE07059, 2005-Ohio-2171, 2005 WL 1038871, ¶ 17 citing Day, Williams &
Company v. RR. Company, 41 Ohio St.3d 392 (1884). Thus, in determining the nature
and extent of an easement, the court must construe the easement in a manner permitting
the dominant estate to carry out its purpose. Alban, supra.
{¶41} When interpreting the terms of a written easement, the court must follow
the ordinary rules of contract construction so as to carry out the intent of the parties as
demonstrated by the language in the contract. Hemmelgarn v. Huelskamp & Sons, Inc.,
3rd Dist. Shelby No. 17-19-07, 2019-Ohio-5298, 2019 WL 7049679, ¶¶ 12-13 citing
Lakewood Homes v. BP Oil, Inc., 3rd Dist. No. Hancock 5-98-29, 1999 WL 693152 (Aug.
26, 1999), citing Skivolocki v. East Ohio Gas Company, 38 Ohio St.2d 244, 313, 313 Delaware County, Case No. 19 CAE 04 0027 17
N.E.2d 374 (1974), syllabus, paragraph one. If the question is the scope of an easement,
the court must look to the language of the easement to determine the extent.
{¶42} When the terms of an easement are clear and unambiguous, a court cannot
create new terms by finding an intent not expressed in the language used. See Alexander
v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 246, 374 N.E.2d 146 (1978). A court abuses
its discretion if it alters an established easement or requires a party to accept an altered
easement in substitution of the original. Myers, 2005-Ohio-2171, ¶18 citing Munchmeyer
v. Burfield, 4th Dist. Washington No. 95–CA–7, 1996 WL 142579 (Mar. 26, 1996),
citations deleted.
{¶43} If there is no specific delineation of the easement, or if the document is
ambiguous, the court must then look to the circumstances surrounding the transaction in
order to determine the intent of the parties. Hemmelgarn, 2019-Ohio-5298, ¶ 13 citing
Murray v. Lyon, 95 Ohio App.3d 215, 219, 642 N.E.2d 41 (9th Dist. 1994). The language
of the easement, coupled with the surrounding circumstances, is the best indication of the
extent and limitations of the easement. Apel v. Katz, 83 Ohio St.3d 11, 17, 697 N.E.2d
600 (1998).
Interpretation of the Terms of the Agreement and Easement
{¶44} The trial court succinctly summarized the parties’ arguments in its March 5,
2019 judgment entry:
Their disagreement about [the Agreement and Easement] is the crux of this
case. * * * [T]he golf club has asked that I at least flesh out the parties’
agreement-related rights and obligations in light of the evidence presented
at trial. In the golf club’s view, just 76 acres of land is needed to fulfill the Delaware County, Case No. 19 CAE 04 0027 18
purpose of the easement, and the golf club has presented some evidence
supporting that view. Dornoch in turn contends that the 2007 agreement –
and in particular, the easement granted to Dornoch in the first paragraph of
that agreement – applies to the entire golf course operated by the plaintiff
golf club. (The golf course is variously described in documents presented
at trial as 126 acres or 144 acres in size.) Dornoch opposes any lessening
of the acreage to which its easement applies.
(Mar. 5, 2019 Judgment Entry).
{¶45} At trial, Michael Sapp of the OEPA testified on behalf of the Golf Club. Sapp
had been involved in the development of the wastewater treatment plant since 1997. He
testified to the Permit to Install issued in 1997 and the appended engineering report.
According to Sapp, the engineering report was a summary document the engineer
reviewing the Permit to Install gave to the supervisor for background and basic design for
the system. He stated that in the appended report, the engineer calculated pursuant to
Bulletin 860 that 76 acres of land were required to apply the treated wastewater based
on the design flow of the wastewater treatment plant. Bulletin 860 was a publication
developed by the Ohio State University Agriculture Extension Office that contained the
design standards the OEPA uses to review permits to install application for land
application systems. Based on the design flow of the wastewater treatment plant, 76
acres were required to apply treated wastewater and 144 acres were provided. The
intervening LAMP did not change the minimum requirements as calculated by Bulletin
860. Delaware County, Case No. 19 CAE 04 0027 19
{¶46} Dornoch alternatively relied upon the language of the Agreement and
Easement that described the easement as applying to “the entire eighteen (18) golf
course” and referred to the Permit to Install and appended report which described the golf
course property as 144 and/or 126 acres. Sapp testified that the Permit to Install did not
refer to 76 acres or require 76 acres; the only reference to 76 acres was in the attached
engineering report. He also stated there were advantages to having more acres than the
minimum available because it better protected surface and ground water. Additional
acreage also provided operational flexibility.
{¶47} The trial court ultimately found the terms of the Agreement and Easement
were clear and unambiguous as to the dimensions and nature of the easement. It found
that while the scientific evidence presented by the Golf Club supported its argument that
only 76 acres were necessary to safely discharge the treated wastewater, the terms of
the Agreement and Easement obligated the Golf Club to make the entire golf course
available to Dornoch for the purpose of the easement, to safely discharge the treated
wastewater. If it found that 76 acres were permissible under the Agreement and
Easement, the trial court stated it would be impermissibly modifying the clear language
of the easement. The trial court therefore found in favor of Dornoch Estates on the Golf
Club’s request for declaratory judgment.
{¶48} In its appeal, the Golf Club maintains the trial court erroneously failed to
consider its request for declaratory judgment. Upon our review of the trial court’s March
5, 2019 judgment, we find the trial court considered the Golf Club’s request for declaratory
judgment and found in favor of Dornoch Estates as a matter of law. The trial court found
the Golf Club was not entitled to declaratory judgment that 76 acres for discharge of the Delaware County, Case No. 19 CAE 04 0027 20
treated wastewater was permissible because the terms of the Agreement and Easement
required the use of the entire golf course property.
{¶49} The Golf Club cites the following statement of law in support of its argument
that its planned development does not unreasonably interfere with the easement and the
easement does not expressly limit the Club’s right to develop the golf course property:
“Because all residual rights remain in the possessory or servient estate, the servient
landowner may make any use of his property that does not ‘unreasonably interfere’ with
easement holder's use of the easement, unless the easement agreement provides
otherwise. Watson v. Caldwell Hotel, LLC, 2017-Ohio-4007, 91 N.E.3d 179, ¶ 24 (7th
Dist.) citing Hunker v. Whitacre–Greer Fireproofing Co., 155 Ohio App.3d 325, 2003-
Ohio-6281, 801 N.E.2d 469, ¶ 30 (7th Dist.) citing 1 Restatement of the Law 3d, Property,
Section 4.9, at 581–582 (2000). The issue in this case is whether the “easement
agreement provides otherwise.”
{¶50} The Agreement and Easement is an express easement and we use the
ordinary rules of contract construction so as to carry out the intent of the parties as
demonstrated by the language in the contract. The Agreement and Easement states the
purpose of the easement:
A. [Golf Club] (Grantor) is the owner of real estate located at 3329
Columbus Pike, Delaware, Ohio, situated on the acreage described in
“Exhibit A”, attached hereto “the Real Estate”, which property currently
consists of the entire eighteen (18) hole golf course and real property and
components related to its use as a golf course, and which property
surrounds the sewage treatment plant owned and operated by the Delaware County, Case No. 19 CAE 04 0027 21
Association (Grantee) on the 1.016 acre tract described in “Exhibit B”
B. The clean, treated wastewater from the Association’s (Grantee’s) facility
C. The Real Estate is an essential resource to the Association’s (Grantee’s)
facility, providing a safe and sanitary means for disposal of the clean water
D. The Association’s (Grantee’s) facility is designed to prevent intrusion of
the facility’s outflow into the nearby Olentangy River, and its design and
operations have been approved by the Ohio Environmental Protection
{¶51} In order to effectuate the purpose of the easement, the parties agreed to
the following:
1. Development (Grantor) hereby grants to Association (Grantee) an
easement upon the Real Estate described in Exhibit “A” for the purpose of
disposing clean, treated, outflow from Association’s (Grantee’s) treatment
facility * * * which clean water shall be piped into the Real Estate lake, and,
when needed, to the adjacent retention basin, * * *, to be distributed through
3. This easement includes and Development (Grantor) agrees to accept the
Association’s (Grantee’s) entire outflow of clean, treated water * * * as Delaware County, Case No. 19 CAE 04 0027 22
permitted by the Permit to Install No. 01-7240 originally issued effective
8. Development (Grantor) covenants that it will detain, distribute, and apply
the Association’s (Grantee’s) entire outflow upon the Real Estate as
presently configured in compliance with the requirements of the Ohio
Environmental Protection Agency and the Permit to Install associated with
{¶52} The Permit to Install referred to in the Agreement and Easement was issued
by the OEPA to Dornoch Estates on September 29, 1997, for the installation and
operation of a wastewater treatment plant to serve the subdivision and the golf course.
The permit applied to a wastewater disposal system designed to serve an average daily
hydraulic flow of no more than 120,000 gallons. The engineering report, appended to the
Permit to Install, stated in pertinent part:
Irrigation: The average estimated irrigation season is 245 days. The
irrigation pumping station will be designed with a capacity of 1240 gpm. The
reclaimed water will be used to irrigate turf grasses on the golf course. 144
total acres are available for irrigation with an average weekly irrigation rate
of 0.32 inches per week. * * * The irrigation area required as calculated
using Bulletin 860 is 76 acres. * * *
Summary of WWRU System: The design of the WWRU system for the
Tartan Fields Golf Community adheres to the minimum requirements set
forth in Bulletin 860, Reuse of Reclaimed Wastewater Through Irrigation for Delaware County, Case No. 19 CAE 04 0027 23
Ohio Communities. The overall design has been generally conservative
with regards to storage time (139 days rather than 120 days) and the
amount of acreage available for WWRU application (76 acres required and
144 acres provided). This conservative approach should allow for good
flexibility in the overall operation of the WWRU system.
{¶53} The language of the Agreement and Easement describes the dimensions
of the easement necessary to effectuate the purpose of the easement to distribute the
treated wastewater and protect ground and surface water. First, the Agreement and
Easement describes the Golf Club property in Paragraph A as “situated on the acreage
described in “Exhibit A”, attached hereto ‘the Real Estate’, which property currently
consists of the entire eighteen (18) hole golf course and real property and components
related to its use as a golf course.” The Agreement and Easement describes the “Real
Estate” as an entire 18-hole golf course; it does not state the property in question is 76,
126, or 144 acres. Second, the “Real Estate”, the 18-hole golf course, was stated to be
necessary for the purpose of the easement to provide irrigation for the “Real Estate” and
a safe and sanitary means for disposal of the treated wastewater. Third, the Agreement
and Easement effectuates the purpose of the easement by granting Dornoch Estates an
easement upon the “Real Estate” described in Paragraph A, which stated the “Real
Estate” was an “entire eighteen (18) hole golf course.” Again, there is no reference in the
description of the easement as to the acreage, either 76 or 144 acres. Fourth, the Permit
to Install, noted in the Agreement and Easement, does not make any reference to acreage
necessary for land application of the treated wastewater. The appended engineering
report states that 76 acres is the calculated acreage required for land application of the Delaware County, Case No. 19 CAE 04 0027 24
treated wastewater, but it also states that 144 acres is provided, allowing for operational
flexibility. The 144 acres is the entire golf course property. The description of the property,
purpose of the easement, description of the easement, and the language of the permit to
install clearly set the dimensions of the easement as the “entire eighteen (18) hole golf
course.”
{¶54} The Golf Club argued before the trial court and on appeal that making 76
acres available to Dornoch Estates for the land application of its treated wastewater would
not unreasonably interfere with Dornoch’s use of the easement. The trial court, however,
found the Agreement and Easement unambiguously provided otherwise, requiring it to
deny the Golf Club’s request for declaratory judgment. Upon our de novo review of the
request for declaratory judgment based on the language of the Agreement and Easement,
we agree with the trial court that its unambiguous terms require the entire golf course
property as described by the Agreement and Easement be available to effectuate the
purpose of the Agreement and Easement. Any modification by the trial court of the
delineation of the easement as specified in the Agreement and Easement would be an
impermissible alteration of the terms by the trial court.
{¶55} The Golf Club’s sole Assignment of Error is overruled. Delaware County, Case No. 19 CAE 04 0027 25
CONCLUSION
{¶56} The judgment of the Delaware County Court of Common Pleas is affirmed.
By: Delaney, J.,
Hoffman, P.J. and
Wise, John, J., concur.