[Cite as Hemmelgarn v. Huelskamp & Sons, Inc., 2019-Ohio-5298.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SHELBY COUNTY
JAMES R. HEMMELGARN,
PLAINTIFF-APPELLANT, CASE NO. 17-19-07
v.
HUELSKAMP & SONS, INC., OPINION
DEFENDANT-APPELLEE.
Appeal from Shelby County Common Pleas Court Trial Court No. 18CV000210
Judgment Affirmed
Date of Decision: December 23, 2019
APPEARANCES:
Jeremy M. Tomb for Appellant
Robert B. Fitzgerald and Stanley R. Evans for Appellee Case No. 17-19-07
SHAW, J.
{¶1} Plaintiff-appellant, James R. Hemmelgarn (“Hemmelgarn”), appeals
the May 23, 2019 judgment of the Shelby County Common Pleas Court finding in
favor of defendant-appellee, Huelskamp & Sons, Inc. (“HSI” and/or the
“Huelskamps”) regarding two easements on Hemmelgarn’s property.
Conveyance History of Tracts I and II
{¶2} In 1981, Hemmelgarn purchased land consisting of his current property
and Tract I and Tract II. In 1984, Hemmelgarn agreed to sell Tract I and Tract II to
Curtiss “Dutch” Henschen, a local farmer. Tract II is comprised of 24.502 acres
and does not have legal access to a pubic roadway. In other words, Tract II is
surrounded by other parcels that abut public roads, but Tract II itself is “landlocked.”
Tract II is situated directly east of Hemmelgarn’s property. As part of the
agreement, Hemmelgarn also sold Tract 1 to Henschen. Tract I is comprised of 0.64
acres is situated directly north of Hemmelgarn’s property. Tract I has access to
Knoop-Johnston Road, a public roadway.
{¶3} Tract I and Tract II are not contiguous. As a result, the 1984 deed
documenting the sale of Tract I and Tract II from Hemmelgarn (grantor) to
Henschen (grantee) included the following language:
The grantor also grants to the grantee the drive easement as shown on the plat recorded in Plat Vol. 19, Page 72. Plat recorded Vol. 19, Page 72.
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ALSO a 30’ easement along the north boundary line of Grantor connecting Tract I and Tract II above.
(Pl. Ex. 5, Def. Ex. A) (emphasis in original).
{¶4} In 1992, Tracts I and II were sold in a Sheriff’s sale to Bernard Steinke.
The 1992 deed contained identical language describing the easements over the
northeast corner of Hemmelgarn’s property. (Pl. Ex. 6, Def. Ex. B). Tracts I and II
were later conveyed via general warranty deed to Bernard Steinke’s son, Richard S.
Steinke, in 2010, and then again to Richard’s son, Richard D. Steinke in 2015. Both
the 2010 and 2015 deeds contained the same language describing the easements as
the original 1984 deed. (Pl. Exs. 7-8, Def. Exs. C-D).
{¶5} In April of 2017, HSI purchased Tracts I and II from Richard D.
Steinke. The 2017 deed contained the same easement language as the 1984, 1992,
2010, and 2015 deeds. HSI is a closely held Ohio corporation consisting of five
brothers and their mother by the family name of Huelskamp. Farming and livestock
production is the primary business of HSI. HSI and another entity owned by the
same individuals, Huelskamp Brothers Farm (“HBF”), own other parcels of land in
the area surrounding Tract I, Tract II, and Hemmelgarn’s property. After this
transfer, a dispute arose between the parties over HSI’s use of the easements and
this lawsuit was initiated by Hemmelgarn.
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Procedural History
{¶6} On October 31, 2018, Hemmelgarn filed a complaint against HSI
requesting injunctive and declaratory relief, and claiming civil trespass and
termination of easement by adverse possession and abandonment. HSI filed an
answer and counterclaims for quiet title relief regarding its rights to the easements—
specifically, a declaration that the deed entitles it to use of the easements.
Hemmelgarn filed an answer to HSI’s counterclaims.
{¶7} On March 28 and 29, 2019, a trial to the court was held. Numerous
witnesses testified for each party. Several exhibits were admitted, including all the
deeds related to the conveyance of Tracts I and II, the plat map, and several aerial
photographs of the area.
{¶8} On April 26 and May 23, 2019, the trial court issued decisions in favor
of HSI. Specifically, the trial court found that the deeds conveyed two easements
in two separate paragraphs, with the second easement located on a thirty-foot wide
strip along Hemmelgarn’s north property line connecting Tract I and Tract II. The
trial court further found that Hemmelgarn failed to substantiate his trespass claims
and failed to demonstrate that the express easements in the deed have been
extinguished by adverse possession or abandonment. The trial court also found in
favor of HSI on its counterclaims.
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{¶9} Hemmelgarn filed this appeal, asserting the following assignments of
error.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT IMPROPERLY INTERPRETED THE TWO DRIVE EASEMENTS BY REVISING AND CHANGING THE DRIVE EASEMENTS TO EXPAND THEIR LOCATION AND SCOPE.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT MISCONSTRUED THE FACTS AND MISCONSTRUED THE LAW ON THE USE OF EASEMENTS AND TRESPASS TO HOLD HEMMELGARN FAILED TO PROVE A CLAIM OF CIVIL TRESPASS.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT MISCONSTRUED OHIO LAW ON ADVERSE POSSESSION AND, OR ABANDONMENT OF AN EASEMENT TO HOLD THESE CLAIMS WERE NOT ESTABLISHED.
First Assignment of Error
{¶10} In his first assignment of error, Hemmelgarn argues that the trial court
improperly interpreted the two drive easements conveyed in the deeds. Specifically,
Hemmelgarn claims that the trial court in its decision expanded the scope and
location of the easements originally conveyed in the 1984 deed.
Express Easement
{¶11} An easement is the grant of a use on the land of another. Crane Hollow,
Inc. v. Marathon Ashland Pipeline, LLC, 138 Ohio App.3d 57, 66 (4th Dist.2000);
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Alban v. R.K. Co., 15 Ohio St.2d 229, 231 (1968). “An easement in or over the land
of another may be acquired only by grant, express or implied, or by prescription.”
Gulas v. Tirone, 184 Ohio App.3d 143, 2009-Ohio-5076, ¶ 23 (7th Dist.), citing
Trattar v. Rausch, 154 Ohio St. 286, 291 (1950), at paragraph two of the syllabus.
Once the determination is made that an easement is in existence, the focus must be
shifted to ascertaining what type of easement has been created.
{¶12} 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. Lakewood Homes v. BP
Oil, Inc., 3d Dist. No. Hancock 5-98-29, 1999-Ohio-851, citing Skivoloski v. East
Ohio Gas Company, 38 Ohio St.2d 244, 313 (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. 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
(1978).
{¶13} However, if there is no specific delineation of the easement, or if the
document is ambiguous, then the court must look to the surrounding circumstances
in order to determine the intent of the parties. Murray v. Lyon, 95 Ohio App.3d 215,
219 (9th Dist. 1994). The language of the easement, coupled with the surrounding
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circumstances, is the best indication of the extent and limitations of the easement.
Apel v. Katz, 83 Ohio St.3d 11, 17, 1998-Ohio-420.
Easement Language
{¶14} As previously discussed, the language contained in the 1984 and the
subsequent deeds states the following:
The grantor also grants to the grantee the drive easement as shown on the plat recorded in Plat Vol. 19, Page 72. Plat recorded in Vol. 19, Page 72.
ALSO a 30’ easement along the north boundary line of Grantor connecting Tract I and Tract II above.
{¶15} The parties do not dispute that the plat map referenced in the deed
(Vol. 19 Page 72) depicts an L-shaped easement in the northeast corner of
Hemmelgarn’s property. Within this L-shaped demarcation, the plat map notates a
“30’ Drive Easement” and a “50’ Drive Easement.” (See Pl. Ex. 10). The crux of
the parties’ dispute is the interpretation of the second paragraph containing the
language “ALSO a 30’ easement along the north boundary line of Grantor
connecting Tract I and Tract II above.” (Pl. Ex. 5, Def. Ex. A) (emphasis in original).
Hemmelgarn’s Position
{¶16} It is Hemmelgarn’s position that the easements conveyed in the deeds
are limited to the L-shaped area shown on the plat map. Under his view, the first
easement conveyed is set off thirty feet from his northern property line and is only
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thirty feet in width. According to Hemmelgarn, this first easement creates the longer
portion of the L-shape. The eastern portion of the first easement abuts the western
boundary of Tract II, but does not connect to Tract I. Therefore, Hemmelgarn’s
interpretation of the easement language also leaves a thirty-foot wide strip of land
that Hemmelgarn asserts is not subject to use by anyone other then him between
Hemmelgarn’s northern property line running parallel to and along the entire length
of the first easement. The second easement conveyed in the deed, according to
Hemmelgarn, is merely a thirty-foot by fifty-foot section of land that constitutes the
shorter perpendicular portion of the L-shape easement on the plat map and connects
the first easement to the shared property line between Hemmelgarn and Tract I.
HSI’s Position
{¶17} For its part, HSI contends that the first easement conveyed by the deed
is the entire L-shaped drive easement. According to HSI, the second easement in
the deed references the additional thirty-foot wide strip of land running along
Hemmelgarn’s northern property line and parallel to the entire longer portion of the
L-shape platted first drive easement. This second easement directly connects the
southeast corner of Tract I to the northwest corner of Tract II. Under HSI’s view,
the entire area of the two easements combined forms a 60 foot by 410 foot rectangle
along the northeast corner of Hemmelgarn’s property.
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{¶18} Notably, at trial, both parties presented expert testimony to support
their respective positions on the scope, size, and location of the easements conveyed
by easement language in the deeds.
Trial Court’s Decision
{¶19} After hearing the evidence presented at trial, the trial court found in
favor of HSI in its interpretation of the easement language. Specifically, the trial
court made the following finding regarding the location and scope of the easements
conveyed in the deeds in its decision.
The deed has two paragraphs addressing easements. The first paragraph conveys, “the drive easement as shown on the plat recorded in Plat Volume 19, Page 72….” The plat is a drawing of an area L shaped clearly marked as “drive easement.” The plat labels one part of the drive easement at [sic] fifty (50) feet and another part of the drive easement as thirty (30) feet.
The second paragraph conveys, “a thirty-foot easement along the north boundary line of grantor connecting Tract I and Tract II.” Although the second paragraph does not specify the purpose of the easement, the evidence is clear that the intentions of the parties was to provide a means of access from Tract I to Tract II. It is significant to this court that the second paragraph starts with the word “ALSO.” To this court that clearly indicates an additional easement beyond the drive easement depicted in Plat Volume 19, Page 72.
(Doc. No. 88 at 1-2).
{¶20} In rendering its decision, the trial court found the first paragraph of the
easement language clearly conveyed the “L-shaped” drive easement depicted in the
plat map incorporated by reference in the deed. However, the trial court determined
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that the conveyance in the second paragraph was more ambiguously stated.
Therefore, the trial court properly considered the extensive evidence regarding the
intended purpose and use of the easements to assist in determining the scope of the
second easement conveyed in paragraph two. “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. A reviewing court will not disturb the
trial court’s decision if it is supported by competent, credible evidence. As such, the
proper standard of review is manifest weight of the evidence.” Cliffs & Creeks,
L.L.C. v. Swallie, 7th Dist. Belmont No. 17 BE 0039, 2018-Ohio-5410, ¶ 12
(internal citations omitted).
Evidence Regarding the Purpose of the Easement
{¶21} It is undisputed by the parties that the purpose of both easements is to
provide Tract II with access to Knoop-Johnston Road through Tract I. At trial,
Hemmelgarn recalled his discussions with Henschen regarding the original
transaction.1 According to Hemmelgarn, Henschen had expressed a desire to farm
Tract II. Hemmelgarn agreed to also sell Tract I to Henschen because at the time
Knoop-Johnston Road was the best way to access Tract II with farm equipment due
to Jackson Road, the parallel running road to the east, having a covered bridge that
was not conducive to the passage of heavy equipment. Hemmelgarn further
1 The record indicates that Henschen died in 2006. Hemmelgarn estimated that Henschen paid him $1,125 per acre for the purchase of Tracts I and II.
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explained that when he sold the land to Henschen he purposefully did not include
the portion of his property connecting Tract I and Tract II because he wanted to
maintain a wooded boundary and a square property line.
{¶22} Hemmelgarn maintained that the easements were meant to be
temporary and limited to Henschen’s use only because Henschen had intended to
purchase additional property adjoining Tract II so that the parcel would no longer
be “landlocked.” Despite this assertion, Hemmelgarn acknowledged at trial that this
limitation and exclusive use to Henschen was not specified in the language in the
deed that he signed in 1984, and that he never attempted to have the deed amended
while Henschen owned the property. Hemmelgarn also recalled being present at the
Sheriff’s sale in 1992. Hemmelgarn stated that he bid on the property but was outbid
by Bernard Steinke. However, Hemmelgarn admitted that he did not raise any
issues about the easements at the Sheriff’s sale.
Evidence Regarding the Use of the Easements
{¶23} Throughout the trial Hemmelgarn maintained that the easements were
not used after Henschen was no longer the owner of Tracts I and II. He testified
that the area, where he believed the easements to be, was impassible to farming
equipment because it was overgrown with trees and only wide enough for small
recreational vehicles. Hemmelgarn stated that he placed large concrete drainage
pipes, a compost pile, and other impediments at the east end of the easements near
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the boundary with Tract II. Hemmelgarn claimed that after HSI purchased Tracts I
and II in 2017, the Huelskamps began to trespass along the northern boundary of
his property, outside of the area where he believed easements to be located.
{¶24} Hemmelgarn also presented the testimony of his daughter, Sara
Graves, who testified that prior to 2017 the Hemmelgarn family were the only
people who used and maintained the easements and Tract I. Sara’s testimony was
consistent with her father’s that the only people they saw in the easement area were
the occasional poacher who was immediately asked to leave by Hemmelgarn.
However, Sara acknowledged that she moved away from the property in 2003 when
the Hemmelgarn family moved closer to Sidney. After that point, the property was
primarily used for Hemmelgarn’s business. Luke Vondenhueval, an employee of
Hemmelgarn’s since 2013, stated that he also never observed anyone using the
easement area prior to 2017. He recalled that Hemmelgarn regularly maintained
Tract I and prevented people from accessing the easement area.
{¶25} This testimony was contradicted by the testimony of Jeromy Griewe.
Jeromy Griewe testified that he rented Tract II from Henschen in the early 1990’s
and then again when the Steinkes became the owners. He stated that Tract II has
approximately 16.5 tillable acres. Griewe recalled using the easements for decades
on a seasonal basis transporting farm equipment to plant and harvest crops. In
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between planting and harvesting, Griewe also used the easements once a week to
inspect the growth of his crops on Tract II.
{¶26} Griewe explained that the easements, which he also referred to as “the
lane,” simply “went with renting the property.” (Tr. at 322). He described the area
of the easements as situated on 30-foot wide strip along Hemmelgarn’s northern
property line. Griewe further claimed that he was “instructed” to maintain the
easements as part of the rent. (Id.). As a result, he mowed the easements two to
three times a year. Griewe claimed to be the only person who mowed the “lane”
and recalled an incident in 2003 when he was confronted by Hemmelgarn who asked
him to stop mowing the easements. However, Griewe stated that he continued to
mow the easements as soon as Hemmelgarn left the vicinity. Griewe stated that he
then continued to mow the easements for several years.
{¶27} In addition to Griewe, the Huelskamps provided testimony regarding
their familiarity and use of the easement area since the mid-1980s. Mike Huelskamp
recalled that his father farmed Tract II in the 1970’s. Mike remembered in the mid-
1980s observing Henschen clear the land in the thirty-foot wide strip along the
northern boundary of Hemmelgarn’s property line connecting Tracts I and II. John
Huelskamp, Mike’s brother, testified to first using the easements in 1985 or 1986,
and continuing to use the easements until this litigation began. John explained that
his family farmed land adjacent to Tract II and transported farm equipment through
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the easements and Tract I during seasonal planting and harvesting. John stated that
Henschen had given his family permission to use Tract I and the easements because
of the Knoop-Johnston Road access. He reiterated the difficulty at the time
transporting farm equipment in the area because of the covered bridge on Jackson
Road and a dangerous curve on State Route 29. John’s testimony regarding the
Huelskamp’s use of the easements was corroborated by the testimony of his son,
Scott, who owned a farm on Knoop-Johnston Road across from Tract I. Scott
testified that he had been using the easements and Tract I to access his family’s land
since the 1990’s, mainly seasonally for planting and harvesting. Scott testified that
in that time no one had ever told him that the easements could not be used by his
family.
{¶28} The parties also presented testimony regarding an incident in 2009
when the Huelskamps removed a fence line and a row of trees along the easement
area. Scott and John Huelskamp claimed that the trees provided too much shade
over their crops on the adjacent parcel. Both Scott and John recalled asking Griewe
for permission before they removed the fence and trees with bulldozers. Scott
testified that he thought Griewe was the landowner at the time. At trial, Griewe
remembered the Huelskamps asking for his permission and claimed he told them to
talk to the Steinkes. Scott recalled that no one prevented him or his father from
removing the trees. However, when Hemmelgarn discovered the removal of the
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trees he called the Sheriff regarding the incident but no further legal action was
taken. Scott recalled having a conversation with Hemmelgarn “a couple of weeks”
after the incident, but that Hemmelgarn had not discussed the easement with him
since then. (Tr. at 436).
HSI’s Purchase of Tract II
{¶29} Mike Huelskamp provided testimony regarding HSI’s purchase of
Tracts I and II for $160,000 in April of 2017. He stated that Tracts I and II, and the
accompanying easements, were offered as a “packaged deal,” and that if HSI was
only offered Tract II, it would have paid considerably less for the parcel. (Tr. at
515). He explained the value of having access to Tract II from Knoop-Johnston
Road to HSI—specifically that it provided legal access to a public road without
having to drive their equipment on tillable farmland, compacting the soil and
reducing their crop yields.
{¶30} Both John and Scott Huelskamp testified to the additional value that
Tract I and the easements provided Tract II because of their livestock program. John
explained that one of the reasons HSI decided to purchase the land was because
Tract I is situated across from Scott’s farm where the livestock program is located.
Tract I and the easements gave HSI convenient access to Tract II, which provided
HSI with a place to haul excess livestock manure. John further described the use of
Tract II, “[a]nd also we grow crops and stuff on it. Like, if we put wheat on it and
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stuff, we can haul straw back over to Scott’s house and so forth. So it just works
into the livestock program.” (Tr. at 468).
Discussion
{¶31} Based on the foregoing testimony we conclude that the record supports
the trial court’s determination that the language of the deed granting “ALSO a 30’
easement along the north boundary line of Grantor connecting Tract I and Tract II
above” conveyed a thirty-foot easement running along the north boundary of the
Hemmelgarn’s property connecting Tract I and Tract II. The evidence at trial, which
in addition to testimony included several aerial photos depicting the cleared drive
path and terrain of the easement area over the course of several years, establishes
that this portion of the easement was in continual, and apparently uninterrupted, use
since its creation in the mid-1980s for the purpose of transporting farming
equipment from Knoop-Johnston Road.
{¶32} Aside from the evidence of the customary use of the easement over
multiple decades, we are also persuaded by the fact that the location of the second
easement, as determined by the trial court, more closely aligns with the language
describing the second easement in the deed. For instance, under Hemmelgarn’s
interpretation of the easement only a small portion of the platted L-shaped drive
easement runs along his northern boundary. Moreover, Hemmelgarn’s argued
location of the second easement does not directly connect Tract I with Tract II.
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Instead, it connects Tract I with the first easement which is contiguous to Tract II.
On the other hand, under the trial court’s interpretation, the second easement not
only runs the entire length along Hemmelgarn’s northern boundary, but it also
directly connects Tract I and Tract II without the use of another easement over
Hemmelgarn’s land.
{¶33} This notwithstanding, testimony presented by multiple witnesses,
including those testifying on Hemmelgarn’s behalf, established that part of the
platted L-shaped “drive easement” contained a ten to twenty foot “drop-off on a
cliff,” making that part of the easement not traversable with an ATV, let alone large
farm equipment. (Tr. at 75) The presence of this steep, uneven terrain reasonably
justified the conveyance of an additional easement, other than what was designated
specifically as a “drive easement,” along the northern boundary of Hemmelgarn’s
property where the terrain was more stable to transport farm equipment and still
provided access from Knoop-Johnston Road.
{¶34} Based on the evidence presented at trial which demonstrates the
purpose of the easement, the continued use of the thirty-foot strip along
Hemmelgarn’s northern boundary as a cleared drive path to achieve that purpose,
the consistency of the trial court’s interpretation of the location of the second
easement with the language contained in the deed, and the evidence regarding the
terrain in this area, we find that the trial court’s interpretation regarding the scope
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of the second easement is supported by manifest weight of the evidence.
Accordingly, the first assignment of error is overruled.
Second Assignment of Error
{¶35} In his second assignment of error, Hemmelgarn argues that the trial
court erred in finding that he failed to prove his claim for trespass against HSI. “
‘A common-law tort in trespass upon real property occurs when a person, without
authority or privilege, physically invades or unlawfully enters the private premises
of another whereby damages directly ensue * * *.’ ” (Citation omitted.) Apel v.
Katz, 83 Ohio St.3d 11, 19 (1998).
{¶36} The trial court observed in its decision that:
Much of Hemmelgarn’s trespass complaint centers on the use of the 30 foot strip running along the north boundary of the Hemmelgarn property. Clearly, from the testimony and from the photographs that strip was used for access to Tract II. All of the evidence presented was that the easements were used to provide access to Tract II. Hemmelgarn largely relies on his contention that there was no easement along the north boundary line to support his claim for trespass. This court has found otherwise.
(Doc. No. 88 at 5). As stated in our resolution of the first assignment of error, we
concur with the trial court’s finding that the easements conveyed in the deed
included the 30 feet by 360 feet strip along Hemmelgarn’s northern property line
connecting Tract I and Tract II. The evidence established that this is the area of the
easement that was most frequently used by the Huelskamps. Accordingly, we find
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no merit to Hemmelgarn’s claim for trespass insofar as he relies on a finding that
no easement existed in that area.2
{¶37} Aside from these contentions, Hemmelgarn also asserts a claim for
trespass based upon the Huelskamps’ use of the easements between 1985-2017 to
access their own property adjoining Tracts I and II with the permission of Henschen,
the Steinkes, and Griewe, all of whom owned and/or leased Tracts I and II during
that time. Hemmelgarn further claims that HSI continued to commit trespass after
it purchased Tracts I and II, because it used the easements to access other farmland
adjoining Tracts I and II.
{¶38} In its decision the trial court reached the following conclusion with
respect to Hemmelgarn’s trespass claim based upon the Huelskamps’ use of the
easement prior to HSI becoming the easement holder:
Hemmelgarn also argues that the use of the easement is limited to the grantee. The cases cited by Hemmelgarn address assignments of title to another party. That is not the case here. This court disagrees that the use of the easement is limited to only the titled owners. If that were true, then arguably anyone using the easement to access Tract II unless it was Henschen, or Steinkes, or ultimately Huelskamp, would be in violation of the easement conveyance. If that were true, tenant farmers, including Griewe, could not use the easement to access Tract II. Certainly, an owner of an easement has the right to allow others for his benefit to use the easement. See Fruth Fanns v. Village of Holgate, 442 F. Supp 2d 4 70, 4 77 (N .D. Ohio 2006), “The owner of the dominate [sic]tenement is not the only person who can use an access easement to his or her property ... An easement-holder has the
2 Moreover, we also concur with the trial court’s conclusion that the statute of limitations has passed for a trespass claim with regard to the 2009 removal of the fence line and trees in the easement area.
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right to receive guests and invitees… Thus, others may use the easement to access (the property), but their use of the easement must be reasonable and comply with basic principles governing the use of easements.”
(Doc. No. 88 at 6).
{¶39} Consistent with the trial court’s rationale, other courts have held that
an easement holder may grant use of the easement to guests and invitees as long as
their access and use remains reasonable and does not unduly burden the land upon
which the easement is located. See Pinkerton v. Salyers, 4th Dist. Ross No.
13CA3388, 2015-Ohio-377, ¶ 37, citing Barker v. Contini, 5th Dist. Tuscarawas
No. 93-AP-070050, *2 (Mar. 8, 1994); See also Fruh Farms, Ltd. v. Holgate, 442
F.Supp.2d 470, 477 (N.D.Ohio 2006). We also find it persuasive that the easement
language contained in the deed does not grant exclusive or limited use of the
easement to the easement holders.
{¶40} Moreover, the evidence at trial demonstrated that the Huelskamps’ use
of the easement during this time period was consistent with the overall purpose of
the easement, which is to provide access for farm equipment from Knoop-Johnston
Road. Given that HSI (and by proxy the Huelskamps) is now the easement holder
and owner of Tracts I and II, we find that the record supports the trial court’s
conclusion that Hemmelgarn failed to establish that HSI committed civil trespass in
this respect.
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{¶41} Hemmelgarn next argues that HSI has committed continuing trespass
since it became the easement holder by using the easements to access additional
property other than Tracts I and II. Initially, we note that “a cause of action in
trespass will not lie when the purported trespasser holds an easement to the property
on which he or she is purportedly trespassing.” Bayes v. Toledo Edison Co., 6th
Dist. Lucas Nos. L-03-1177, L-03-1194, 2004-Ohio-5752, ¶ 68. This
notwithstanding, it appears that Hemmelgarn in substance is contending that HSI’s
use of the easement to access more than the 24.502 acres on Tract II constitutes a
misuse of the easement by unreasonably expanding the use of the easement beyond
its intended purpose. The trial court resolved this issue in the following manner:
Hemmelgarn also argues that the easement was to be used only to access Tract II and that persons used the easement to access what is now the Huelskamp property to the north of Hemmelgarn’s in violation of the easement. There is some merit to that claim. The testimony and photographs show a track entering onto the easement that this court determines to provide access to Tract II and then an almost immediate turn north onto property now owned by Huelskamp.
However, it has been held that reasonable extensions of the use of an easement can be permitted where it does not create an undue burden on the servient estate. Profitt v. Plymesser, 12th Dist., 2001 WL 708884; Diemling v. Kimble, 5th Dist. No. 11AP12047, 2012 Ohio 3323, ¶ 10. Since the easement as determined by the court runs along the boundary line between Huelskamp and Hemmelgarn, the court finds it is not unreasonable that Huelskamp would turn directly on to the Huelskamp property instead of driving the length of the easement on to Tract II and then to the remainder of the Huelskamp properties.
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(Doc. No. 88 at 5).
{¶42} Hemmelgarn’s claim of HSI’s misuse of the easement is based solely
on the Huelskamps’ testimony at trial indicating that they occasionally used the
easements to access property adjoining Tract II. However, there is nothing in the
record to suggest that this practice by the Huelskamps unreasonably burdened the
easements or otherwise constituted misuse. Moreover, the testimony regarding the
Huelskamps’ use after they became the easement holders indicates that their use
was primarily to provide access to Tract II from Scott Huelskamp’s farm.
{¶43} Nevertheless, the evidence put forth by Hemmelgarn at trial attempted
to establish that prior to HSI purchasing the land in 2017 the easement area was
unused. The record demonstrates that Hemmelgarn filed the complaint initiating
this lawsuit not long after HSI became the owner of Tracts I and II. John Huelskamp
testified that after the litigation began he and Scott avoided using the easements
because they did not “want to irritate the situation.” (Tr. at 472). Simply put, the
record does not provide evidentiary support to substantiate Hemmelgarn’s claim on
appeal that the Huelskamps unreasonably overburdened the easements and therefore
committed an act of trespass.
{¶44} For all these reasons, we conclude that the trial court’s decision
finding Hemmelgarn failed to prove his trespass claims is supported by the record
and we overrule the second assignment of error.
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Third Assignment of Error
{¶45} In his third assignment of error, Hemmelgarn argues that he is the
owner of Tract I and the easements by adverse possession, thereby terminating the
drive easements across his property. In the alternative, Hemmelgarn argues that the
easements have been terminated by abandonment for a lack of use by HSI’s
predecessors in interest—i.e., Henschen and the Steinkes.
Adverse Possession
{¶46} “It is well established in Ohio that to succeed in acquiring title by
adverse possession, the claimant must show exclusive possession that is open,
notorious, continuous, and adverse for 21 years.” Evanich v. Bridge, 119 Ohio St.3d
260, 2008-Ohio-3820, ¶ 7, citing Grace v. Koch, 81 Ohio St.3d 577, 579 (1998).
The party seeking title by adverse possession bears the burden of proving its
elements by clear and convincing evidence. Pottmeyer v. Douglas, 4th Dist.
Washington No. 10CA7, 2010–Ohio–5293, ¶¶ 22-23, citing Grace at syllabus. We
review an appeal of a ruling on an adverse possession claim under a manifest weight
of the evidence standard of review. Nolen v. Rase, 4th Dist. Scioto No. 13CA3536,
2013-Ohio-5680, ¶ 9.
{¶47} On appeal, Hemmelgarn maintains the trial court erred in finding that
he failed to prove that he exercised dominion and control of Tract I and the
easements to the exclusion of others for an uninterrupted 21 year period. In support
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of his position, Hemmelgarn highlights testimony from his witnesses at trial that he
was the only person who maintained Tract I and the easements prior to HSI’s
ownership in 2017. However, this testimony was contradicted by the testimony of
Jeromy Griewe and the Huelskamps who all testified to their continued use of Tract
I and the easements since Henschen acquired the land in 1984. Moreover, the
evidence at trial established that any attempts by Hemmelgarn to establish
ownership of the easement area went unnoticed by Griewe, the longtime tenant
farmer of Tract II, who also claimed to be the only person to mow the easements,
and by the Huelskamps who testified they were unaware that Hemmelgarn was the
owner of the servient estate subject to the easements when they sought permission
to remove the fence line and the trees in 2009.
{¶48} Accordingly, we conclude that the record supports the trial court’s
finding that Hemmelgarn failed to prove by clear and convincing evidence that he
exercised dominion and control of Tract I and the easements to the exclusion of
others for an uninterrupted 21 year period. Therefore, we conclude that the trial
court’s finding with regard to Hemmelgarn’s adverse possession claim is supported
by the manifest weight of the evidence.
Abandonment
{¶49} Alternatively, Hemmelgarn argues that Tract I and the easements were
abandoned by HSI’s predecessors in interest due to a lack of use. At the outset we
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note that the 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 (11th Dist. 1993). Rather, the intent to abandon must be present and shown by
“unequivocal and decisive acts” which are inconsistent with continued use and
enjoyment. Bosky Group, LLC v. Cols. Ohio River R.R. Co., 5th Dist. Muskingum
No. CT2017-0027, 2017-Ohio-8292, ¶ 25.
{¶50} As with his adverse possession claim, Hemmelgarn advances
substantially similar arguments in support of his claim that title to Tract I and the
right to use the easements had been abandoned by Henschen and the Steinkes and
therefore cannot be possessed by HSI. However, Hemmelgarn’s arguments
regarding abandonment fail for the same reasons. As noted by the trial court, “[n]o
evidence has been presented to demonstrate that Henschen or the subsequent titled
owners expressed an unequivocal act to demonstrate an intention to abandon the use
of the easement.” (Doc. No. 88 at 7).
{¶51} Jeromy Griewe testified that he rented the farmland on Tract II from
Henschen and the Steinkes beginning in the early 1990’s. Griewe testified that use
of Tract I and the easements “went with the rent” of Tract II. Griewe also testified
to his weekly use of Tract I and the easements for several decades to look after his
crops planted on Tract II. Accordingly, we conclude the trial court’s finding with
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regard to abandonment is supported by the record and we overrule the third
assignment of error.
{¶52} For all these reasons the assignments of error are overruled and the
judgment of the trial court is affirmed.
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
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