                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 11a0258n.06

                                           No. 10-3111
                                                                                        FILED
                          UNITED STATES COURT OF APPEALS                             Apr 22, 2011
                               FOR THE SIXTH CIRCUIT                           LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                                 )
                                                          )
       Plaintiff-Appellee,                                )
                                                          )
v.                                                        )   ON APPEAL FROM THE UNITED
                                                          )   STATES DISTRICT COURT FOR
TRI-STATE GROUP, INC.,                                    )   THE NORTHERN DISTRICT OF
                                                          )   OHIO
       Defendant-Appellant.                               )
                                                          )
                                                          )



       Before: SUTTON and KETHLEDGE, Circuit Judges, HOOD, Senior District Judge.*

       KETHLEDGE, Circuit Judge. Sometimes something less than a building is a building

nonetheless. The United States owns an easement over Tri-State Group’s land. The easement

permits the government to exclude “buildings” from the property. The word “building” is not

defined in the easement itself. The government says the term should be interpreted to encompass

oil-storage tanks and separators. Tri-State disagrees. The district court agreed with the government,

and granted summary judgment in its favor. We affirm.

       Three-quarters of a century ago, the people in the Muskingum River Basin in Ohio faced two

problems. During rain storms, the rivers and tributaries overflowed and flooded the neighboring

towns; but in dry times, the water supply was insufficient to meet the needs of the growing

       *
        The Honorable Joseph M. Hood, Senior United States District Judge for the Eastern District
of Kentucky, sitting by designation.
No. 10-3111
United States v. Tri-State Group, Inc.

population. Their solution to both: a system of fourteen coordinated reservoirs, including the Bolivar

Dam.

       Bolivar is a dry dam, used only for water storage during flood conditions. When in use, the

reservoir fills to its spillway elevation, 962 feet above mean sea level (962' msl), with any excess

water passing through the dam’s outlet gates. The spillway elevation was selected to accommodate

the assumed-maximum-storm for the area. Thus, if the reservoir’s capacity is reduced—by

obstacles, for example—the likelihood of downstream flooding increases. To acquire the land

needed for the reservoir, the District purchased flowage-easement rights from the area property

owners. One of those easements is at issue here.

       The easement, now held by the United States, grants the government the right to “back water

up to and over” the property, to an elevation of 962' msl, and to require the removal of, and consent

before the construction of, any “building” within the easement. The land, now held by Tri-State,

contains two oil-storage tanks and separators. The United States sued Tri-State, seeking to compel

it to remove the tanks and separators. The parties agree that if those structures are buildings, they

are prohibited under the easement. So the sole legal question, on this undisputed factual record, is

whether the tanks and separators are buildings.

       The district court held they were and granted summary judgment to the United States,

ordering Tri-State to remove the tanks and separators. We review the court’s decision de novo. Int’l

Union v. Cummins, Inc., 434 F.3d 478, 483 (6th Cir. 2006).

       The parties agree that Ohio law governs this dispute. “In Ohio, as in most states, there is a

policy favoring the free and unrestricted use of land.” Univ. Hills, Inc. v. Patton, 427 F.2d 1094,

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United States v. Tri-State Group, Inc.

1099 (6th Cir. 1970). When the intent of the parties is clear, however, we must give effect to that

intent, even if it imposes restrictions on land use. See Brooks v. Orshoski, 717 N.E.2d 1137, 1140-41

(Ohio Ct. App. 1998).

        Ohio case law gives effect to the parties’ intent “at the time the contract was made.” Crane

Hollow, Inc. v. Marathon Ashland Pipe Line, LLC, 740 N.E.2d 328, 339 (Ohio Ct. App. 2000)

(internal quotation marks omitted). What matters here, therefore, is not what “building” means

today, but what it meant when the original parties signed their agreement in 1939.

        Tri-State’s own authority in its brief makes clear that “building” was broadly defined at that

time. In 1903, an Ohio court explained that: “‘In law, anything erected by art, and fixed upon or in

the soil, composed of different pieces connected together, and designed for permanent use in the

position in which it is so fixed, is a building.’” Univ. of Cincinnati v. Cincinnati, 1 Ohio N.P. (n.s.)

105, at *5 (Ohio Super. 1903) (emphasis in original) (quoting the Century Dictionary). And in 1936,

an Ohio court considered various definitions of “building,” including “a structure,” “that which is

built,” and “an edifice for any use.” Kern v. Murph, 6 Ohio Op. 223, at *2 (Ohio Com. Pl. 1936).

        The oil tanks and separators here easily fall within these broad definitions of “building.” The

term is therefore not ambiguous for purposes of this appeal.

        The district court’s judgment is affirmed.




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