[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State ex rel. Wasserman v. Fremont, Slip Opinion No. 2014-Ohio-2962.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.


                         SLIP OPINION NO. 2014-OHIO-2962
      THE STATE EX REL. WASSERMAN ET AL., APPELLEES, v. THE CITY OF
                           FREMONT ET AL., APPELLANTS.
   [Until this opinion appears in the Ohio Official Reports advance sheets,
              it may be cited as State ex rel. Wasserman v. Fremont,
                         Slip Opinion No. 2014-Ohio-2962.]
Mandamus—Alleged unconstitutional taking of real property—Easement over city
        property for drainage of relators’ farmland—City charged with violating
        easement by unilaterally rerouting drainage tiles, allegedly causing
        improper drainage and damage to relators’ land—Relators failed to show
        violation of easement as city retained right to change route of drainage
        tiles—Writ to compel city to commence appropriation proceedings denied.
     (No. 2013-0535—Submitted February 25, 2014—Decided July 8, 2014.)
             APPEAL from the Court of Appeals for Sandusky County,
                            No. S-10-031, 2013-Ohio-762.
                               _____________________
                            SUPREME COURT OF OHIO




        Per Curiam.
        {¶ 1} In this appeal of an action in mandamus alleging an
unconstitutional taking, we deny the motion for oral argument and reverse the
judgment of the Sixth District Court of Appeals.
        {¶ 2} Relators-appellees,   Stanley and Kathryn        Wasserman, own
farmland in Sandusky County, Ohio.          They are successors in interest to an
easement created in 1915 for the purpose of draining what is now their farmland
over land now owned by respondent-appellant city of Fremont.
        {¶ 3} The Wassermans and Fremont cooperated in replacing an old
drainage tile with two eight-inch plastic drainage tiles across the easement in
2005.   A tile is a tube or pipe used to drain land.       However, in 2009, in
preparation for constructing a reservoir, Fremont replaced the two eight-inch tiles
on its property with a single 12-inch drainage pipe. In laying the pipe, the city
rerouted the pathway of the drainage system so that it bordered the project site
rather than ran through it. Although the Wassermans apparently knew about the
new pipe, they were not consulted about its installation or the reroute. They sued
in mandamus, alleging an unconstitutional taking.
        {¶ 4} The court of appeals held that Fremont had violated the easement
by unilaterally replacing the eight-inch tiles and rerouting the drainage pathway.
That court also held that the increase, if any, of water accumulation on the
Wassermans’ land is relevant to damages only; an increase in flooding is not
evidence that a taking occurred.
        {¶ 5} We find that the express easement language gave the owner of the
original servient estate the right to determine the lines by which the drainage
system should run through the land. The easement extends to the heirs and
assigns of the original parties, and as Fremont is now the owner of the servient
estate, it has the right to determine those lines. The current system continues to




                                        2
                                January Term, 2014




serve the original purpose of the easement: draining the Wassermans’ land. We
therefore reverse.
                                       Facts
       {¶ 6} In 2002, Fremont purchased 146 acres of land for construction of a
reservoir. This purchase made Fremont subject to a drainage easement in favor of
the Wassermans’ property dating back to October 15, 1915. The easement gave
the Wassermans, through their predecessor in interest, the right to construct and
maintain a 12-inch “field tile drain” through the land owned by the city’s
predecessor in interest to a certain discharge point into Minnow Creek.
       {¶ 7} When Fremont bought the land, a 12-inch clay drainage tile
originated on the Wassermans’ land, ran through the Fremont property, and
discharged into the creek. Historically, the Wasserman property has had problems
with flooding, especially after a heavy rain. The easement provided for the use of
tile to drain water from the Wasserman property through the Fremont property.
       {¶ 8} Sometime between 2002 and 2005, the Wassermans constructed a
lift station on their property to further assist with drainage by pumping excess
water into the 12-inch tile. Even after installation of the lift station, storm water
commonly accumulated on the property after a heavy rain.
       {¶ 9} In 2005, in cooperation with the Wassermans, Fremont shared the
cost of replacing the existing 12-inch clay tile with two plastic eight-inch tiles,
placed in the same location. Fremont paid $3,824.01 for its share of replacing the
tile. The Wassermans were involved in this transaction and opted to use two
eight-inch corrugated tiles to allow for more cover between the tile and the soil
surface to protect the tile from heavy equipment operated on Fremont’s property.
Even after this replacement, storm water continued to accumulate on the
Wasserman property after a heavy rain.
       {¶ 10} In 2009, Fremont decided that in order to accommodate the
reservoir project, the drainage pathway had to be rerouted.          Fremont’s city



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engineer proposed that the two eight-inch tiles be replaced with a single 12-inch
high-density polyethylene smooth-walled drainage pipe, which would have 12
percent more drainage capacity than the two 8-inch tiles. The new pipe would be
connected to the old tiles at the same point at which the two eight-inch pipes had
been connected, but it would be rerouted to skirt the edge of the project site rather
than go through it. The beginning and ending elevations of the drainage pipe
remained the same. The point of discharge into Minnow Creek, according to
Fremont, is now “a few feet” from where the eight-inch tiles had discharged.
According to the Wassermans, the pipe was installed 100 to 500 feet north of
where the two eight-inch tiles had been located.
        {¶ 11} On May 26, 2009, Fremont hired Unilliance, Inc. to replace the
tiles. On May 28, while the eight-inch tiles were still in place, about three inches
of rain fell, causing many areas to flood, including the Wassermans’ property and
surrounding fields.
        {¶ 12} On June 1, 2009, Unilliance began to replace the eight-inch plastic
tiles with the 12-inch pipe. Rick Galford, the project superintendent for the
replacement, was on site that day and saw the exposed eight-inch tiles and
concluded that they were intact and functioning properly. Because Fremont was
constructing a reservoir, it no longer needed to drain its property. The old tiles
were removed from the city’s property, and the new pipe now exclusively drains
the Wasserman property. Fremont paid for the new drainage pipe and relocation
costs entirely.
        {¶ 13} While Stanley Wasserman was present on the project site on
several occasions in mid-May and early June 2009, he was apparently not there
when the new pipe was being installed, nor did he object to the installation of the
pipe. On June 19, 2009, Fremont paid Unilliance $17,855 for the replacement of
the two eight-inch tiles with the 12-inch pipe and installation of a catch basin.




                                          4
                               January Term, 2014




       {¶ 14} Fremont asserts that throughout the installation of the new pipe it
made sure that it maintained and preserved the integrity of the Wassermans’
easement. It constructed a catch basin at the connection point to allow the flow of
water from the Wassermans’ property to be monitored. Fremont asserts that the
12-inch pipe has been working properly to drain storm water from the Wasserman
property across Fremont’s property. The project manager states that he personally
observed the water discharging into the creek after a heavy rain, consistent with
the water flow into the catch basin. He has observed the 12-inch pipe working
properly to drain water on several occasions.
       {¶ 15} On the other hand, the Wassermans’ witness states that because of
the new arrangement, “the ability of the Wassermans to drain their property has
been significantly diminished.”
       {¶ 16} The Wassermans filed a petition for a writ of mandamus on June
25, 2010, naming Fremont and its mayor (collectively, “Fremont”) as
respondents. The Wassermans alleged that in May 2009, the excavation process
for the reservoir permanently damaged their eight-inch tiles, resulting in improper
drainage of their property. Moreover, they alleged that due to Fremont’s posting
of “no trespassing” signs, they have been denied access to the Fremont property to
repair and maintain the tiles as provided by the 1915 easement. On the basis that
these actions constitute a taking of their property, the Wassermans requested that
Fremont be compelled to commence eminent-domain proceedings to compensate
them for their loss.
       {¶ 17} The parties filed merit briefs, and the court of appeals held that the
Wassermans were entitled to a writ ordering Fremont to file an eminent-domain
action to determine whether a taking had actually occurred and, if so, how much
compensation is due. State ex rel. Wasserman v. Fremont, 6th Dist. Sandusky
No. S-10-031, 2011-Ohio-1269.        Fremont appealed, and we held that the
Wassermans had to establish, rather than just allege, a taking before being able to



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compel an eminent-domain action. State ex rel. Wasserman v. Fremont, 131 Ohio
St.3d 52, 2012-Ohio-27, 960 N.E.2d 449.
       {¶ 18} On remand, the parties submitted evidence in support of their
positions. The court of appeals ruled on February 13, 2013, that a taking had
occurred when Fremont unilaterally removed the two eight-inch drainage tiles and
destroyed the pathway of the 1915 easement to construct the reservoir. The court
granted the writ and ordered Fremont to commence eminent-domain proceedings.
Fremont appealed.
                                 Legal Analysis
Oral argument
       {¶ 19} Fremont has moved for oral argument.
       {¶ 20} In cases in which oral argument is not mandatory—such as cases
originating in this court or direct appeals from cases originating in a court of
appeals—we have discretion to grant oral argument, and “ ‘in exercising this
discretion, we consider whether the case involves a matter of great public
importance, complex issues of law or fact, a substantial constitutional issue, or a
conflict among courts of appeals.’ ” State ex rel. Jean–Baptiste v. Kirsch, 134
Ohio St.3d 421, 2012-Ohio-5697, 983 N.E.2d 302, ¶ 10, quoting State ex rel.
Davis v. Pub. Emps. Retirement Bd., 111 Ohio St.3d 118, 2006-Ohio-5339, 855
N.E.2d 444, ¶ 15.
       {¶ 21} Although, as Fremont points out, this case involves the
constitutional issue of a taking of property, we find that the parties’ briefs and
evidence are sufficient to resolve the issues raised in this appeal. State ex rel.
Swanson v. Maier, 137 Ohio St.3d 400, 2013-Ohio-4767, 999 N.E.2d 639, ¶ 19.
Therefore, we deny oral argument and proceed to the merits.
Mandamus
       {¶ 22} “ ‘Mandamus is the appropriate action to compel public authorities
to institute appropriation proceedings where an involuntary taking of private



                                        6
                                January Term, 2014




property is alleged.’ ” State ex rel. Gilbert v. Cincinnati, 125 Ohio St.3d 385,
2010-Ohio-1473, 928 N.E.2d 706, ¶ 14, quoting State ex rel. Shemo v. Mayfield
Hts., 95 Ohio St.3d 59, 63, 765 N.E.2d 345 (2002). To be entitled to a writ, the
Wassermans must establish a clear legal right to compel Fremont to start an
eminent-domain action, a legal duty on the part of Fremont to start such an action,
and the lack of an adequate remedy in the ordinary course of law. Gilbert at ¶ 15,
citing State ex rel. Shelly Materials, Inc. v. Clark Cty. Bd. of Commrs., 115 Ohio
St.3d 337, 2007-Ohio-5022, 875 N.E.2d 59, ¶ 15.
          {¶ 23} Moreover, “[t]he Wassermans must establish their entitlement to
the writ by clear and convincing evidence.” State ex rel. Wasserman v. Fremont,
131 Ohio St.3d 52, 2012-Ohio-27, 960 N.E.2d 449, ¶ 4, citing State ex rel. Doner
v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235, paragraph three
of the syllabus.
The Wassermans are not entitled to a writ ordering an eminent-domain
action
          {¶ 24} The court of appeals held that a taking had occurred because
Fremont had unilaterally destroyed and rerouted the original pathway of the 1915
drainage easement. Fremont appealed this holding.
          {¶ 25} The court of appeals held that its conclusion that a taking had
occurred had nothing to do with the fact that Fremont replaced the two eight-inch
tiles with the single 12-inch pipe, stating that “[s]uch actions, and any subsequent
increase in water accumulation on [the Wassermans’] land as a result, go to the
issue of damages and not whether a taking occurred.” 2013-Ohio-762, at ¶ 23.
The Wassermans did not cross-appeal this holding. Therefore, the Wassermans
have relinquished any argument that excess water on their land itself constituted a
taking.
          {¶ 26} The court of appeals also held that the evidence supporting the
taking does not include the no-trespassing signs placed by Fremont at the entrance



                                         7
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to the reservoir property, because the Wassermans “presented no evidence,
beyond speculation, that respondents intend to exclude them from entering onto
the property.” Id., fn. 2. The Wassermans did not cross-appeal this holding either.
They therefore are precluded from arguing that they cannot enter the property to
inspect and maintain the new 12-inch pipe.
       {¶ 27} Therefore, the question remaining here is a narrow one:           Did
Fremont violate the easement so as to effect a taking by rerouting the original
pathway of the 1915 easement, thereby justifying an eminent-domain action?
       {¶ 28} The answer to the question depends first on the language of the
original easement. An easement is “the grant of a use on the land of another.”
Alban v. R.K. Co., 15 Ohio St.2d 229, 231-232, 239 N.E.2d 22 (1968). When an
easement is created by an express grant, as here, the extent of and limitations on
the use of the land depend on the language in the grant. Id. at 232. When the terms
in an easement are clear and unambiguous, a court cannot create a new agreement
by finding an intent not expressed in the clear language employed by the parties.
See Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 246, 374 N.E.2d 146
(1978). The language of the easement, considered in light of the surrounding
circumstances, is the best indication of the extent and limitations of the easement.
Lakewood Homes, Inc. v. BP Oil, Inc., 3d Dist. Hancock No. 5-98-29, 2 (Aug. 26,
1999), citing Apel v. Katz, 83 Ohio St.3d 11, 17, 697 N.E.2d 600 (1998).
       {¶ 29} Neither side in this dispute focuses on the express language of the
easement in the briefs.        The Wassermans concentrate on Fremont’s alleged
“obliteration” of the easement when it destroyed the eight-inch drainage tiles and
rerouted the drainage lines.
       {¶ 30} Fremont relies not on the easement language, but on case law
permitting the rerouting of easements for ingress and egress to public roads.
Neither cited case relies on the language of the easement. State ex rel. Preschool
Dev., Ltd. v. Springboro, 99 Ohio St.3d 347, 2003-Ohio-3999, 792 N.E.2d 721;



                                          8
                               January Term, 2014




State ex rel. Noga v. Masheter, 42 Ohio St.2d 471, 330 N.E.2d 439 (1975).
Reference to the language of the easement in these cases was not necessary to
their resolution. Ingress and egress to the road in each case were simple matters
of access. Rerouting did not destroy the easement; access was retained, but by a
different path. Drainage is a more complicated proposition. Rerouting may have
destructive consequences.
       {¶ 31} Here, the easement has several express terms pertinent to the
dispute:


              [The Wassermans’ predecessor in interest] may construct
       and maintain a twelve (12) inch field tile drain from the west line
       of said lands of [Fremont’s predecessor in interest] through her
       said lands on lines and at a depth to be fixed by her or her agents,
       and emptying into [Minnow] creek at a point about fifty (50) feet
       south east of the point where said creek crosses said right of way
       and enters her lands; that of the cost of the tile and construction of
       such tile ditch the said [Fremont’s predecessor] shall pay $118.00
       and after the same has been constructed the cost of maintaining
       and keeping the same in repair and any damages arising to the
       lands of [Fremont’s predecessor] or to crops growing thereon from
       defects therein shall be borne and paid by the parties hereto as
       follows:
              [Wasserman predecessor] two-thirds (2/3) thereof.
              [Fremont predecessor] one-third (1/3) thereof.
              ***
              This contract shall extend to the heirs and assigns of the
       parties hereto and shall continue in force forever unless terminated
       as in herein before provided.



                                         9
                             SUPREME COURT OF OHIO




       {¶ 32} The pertinent features of the easement are, first, that the
Wassermans’ predecessor had the right to “construct and maintain” a drainage
tile, but that Fremont’s predecessor had the right to determine the path of the
drainage tile “on lines and at a depth to be fixed by her.” Second, the end point of
the drainage tile was to empty into the creek about 50 feet southeast of where the
creek enters Fremont’s land. Finally, the easement “shall extend to the heirs and
assigns of the parties.”
       {¶ 33} Under the express terms of the agreement, Fremont’s predecessor
had the right to fix the line and depth of the original drainage tile. The question
here is whether the right to fix the line and depth means that the servient estate
holder retained the right to change that path or whether once set, the path was to
remain fixed. The terms of the easement are not clear on this point. An easement
should be interpreted to give effect to the language used in the instrument and to
carry out the purpose for which it was created. 1 Restatement of the Law 3d,
Property, Servitudes, Section 4.1 (2000). The purpose of the easement in this
case was and remains to drain water from the Wasserman property into Minnow
Creek. If the rerouted pipe still accomplishes that purpose, the rerouting does not
violate the purpose of the easement. Therefore, we hold that the right of
Fremont’s predecessor to fix the line and depth of the tile remained with the heirs
and assigns, and that right includes the right to reroute the line as long as the line
continues to fulfill its primary purpose, which is to drain the Wassermans’ land.
       {¶ 34} Despite complaints by the Wassermans to the contrary, the
evidence does not show that the new arrangement fails to drain the land. Fremont
provided the affidavit testimony of various engineers and others who worked on
the project rerouting the drainage. They testify that (1) the Wasserman property
was always prone to flooding during and after heavy rains, and in fact the
Wassermans had installed a lift station to force water from their land into the



                                         10
                                January Term, 2014




drainage tiles, (2) the new 12-inch pipe carries more water than the two eight-inch
pipes, and the 12-inch pipe is devoted exclusively to draining the Wassermans’
land instead of draining both properties as the previous arrangement had done,
and (3) on multiple inspections after installation, the 12-inch pipe was seen to be
functioning properly and discharging water from the Wasserman property.
       {¶ 35} The Wassermans provided photographs of Fremont’s construction
of the reservoir, photographs of the destroyed eight-inch tiles, and a photograph
“depicting the poor drainage on the Wassermans’ farmland during the City’s
reservoir construction.” The photographs of the flooded farm land were taken on
May 29, 2009, one day after a heavy three-inch rain, and before the eight-inch
tiles had been removed and replaced. If anything, these photographs show how
flood-prone the land is and how poorly the eight-inch tiles and the lift station were
working to drain the land. The Wassermans also provide photographs of the 12-
inch pipe partly submerged and discharging water.
       {¶ 36} None of this evidence proves that the new 12-inch pipe is draining
the land less well than the previous eight-inch tiles did, but only that the
Wassermans’ flood-prone land is still flood-prone, despite the lift station and
additional capacity from the 12-inch pipe. The main evidence they have that the
new arrangement is not draining their land as well as the eight-inch tiles is the
affidavit of Joseph Picciuto, a surveyor and estimator who had mapped the
installation of the original eight-inch tiles in 2005. He visited the reservoir
property once in 2012. He states that based on his experience, the 12-inch pipe is
not draining the land as well as the previous arrangement.
       {¶ 37} The Wassermans also submitted a handwritten document setting
out damage figures, asserting, for instance, that the lift-station pump had to work
more days in 2010 and 2011 than in previous years. If true, this assertion shows
only that the Wassermans had to pump more water from their land into the pipe,
not that the drain pipe itself was not working or could not accommodate the extra



                                         11
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water. Moreover, there is no indication in the record of the total rainfall in those
years compared with previous years. Without that information, it is impossible to
know whether the extra pumping was caused by the change in the drainage
system or just excess rainfall and flooding.
        {¶ 38} In short, the testimony of at least two engineers connected with the
project is that the 12-inch pipe has more capacity than the two eight-inch tiles,
that it was installed properly, and that multiple inspections showed that it was
working properly after installation and rerouting. This cumulation of evidence
outweighs the statement of a surveyor who inspected the site only once after the
installation of the 12-inch pipe and opined that it does not work as well as the
eight-inch tiles.
        {¶ 39} Therefore, the Wassermans have failed to show by clear and
convincing evidence that the rerouting of the easement violated the terms of the
easement or interfered with the easement’s primary purpose: to drain the
Wasserman land.
        {¶ 40} The second pertinent feature of the express easement is that the tile
must empty into the creek “at a point about fifty (50) feet south east of the point
where said creek crosses said right of way and enters” what is now the Fremont
property. Thus, the easement specifies where the tile or pipe is to discharge water
into the creek. However, neither party has provided any evidence of exactly
where that point was in 1915 or is on the current landscape or whether the two
eight-inch tiles placed in 2005 discharged at or near that point. If the Wassermans
had shown that the eight-inch tiles discharged at the point described in the 1915
easement and that Fremont’s rerouting of the drainage pipe changed the discharge
point significantly, they might have had an argument for violation of the
easement. Without such a showing, however, the Wassermans have failed to
prove a violation of this term of the easement.




                                         12
                               January Term, 2014




       {¶ 41} We hold that Fremont did not violate the easement, as it retained
the right to change the route of the drainage tile as long as it continued to drain
the Wassermans’ land, and the Wassermans knew about the rerouting at the time
it was happening.
       {¶ 42} The Wassermans also assert a physical taking of their personal
property, that is, the eight-inch tiles that Fremont removed. When real property is
appropriated by eminent domain, damages for loss of personal property may be
recoverable in an appropriation proceeding if the personal property is so affixed to
the real property as to be considered a part thereof. Masheter v. Boehm, 37 Ohio
St.2d 68, 307 N.E.2d 533 (1974). But because we decide today that no taking has
occurred, no appropriation proceeding is required, and the loss is not recoverable.
While the Wassermans may have a cause of action against Fremont for the loss of
the tiles (for which they partially paid), the loss cannot be remedied through
appropriation in this case.
Conclusion
       {¶ 43} In sum, the Wassermans have failed to show by clear and
convincing evidence that a taking of their property has occurred. The servient
estate, now owned by Fremont, retained the right to fix the route of the drainage
easement, and therefore had the right to change it. We therefore reverse.
                                                                Judgment reversed.
       O’CONNOR, C.J., and LANZINGER, J., concur.
       KENNEDY and FRENCH, JJ., concur in judgment only.
       PFEIFER, O’DONNELL, and O’NEILL, JJ., dissent.
                              ____________________
       PFEIFER, J., dissenting.
       {¶ 44} The majority opinion states that “[t]he purpose of the easement in
this case was and remains to drain water from the Wasserman property into
Minnow Creek. If the rerouted pipe still accomplishes that purpose, the rerouting



                                        13
                              SUPREME COURT OF OHIO




does not violate the purpose of the easement.” Majority opinion at ¶ 33. But if
the rerouting causes the pipe to carry water less quickly, then the purpose of the
easement has been violated.
       {¶ 45} It is obvious that when all other factors (pressure, friction, etc.) are
the same, but the length of pipe is increased, the water will drain more slowly. In
my opinion, the rerouting has diminished the usefulness of the drainage, thereby
affecting the purpose of the easement.
       {¶ 46} I would affirm the judgment of the court of appeals. I dissent.
       O’DONNELL and O’NEILL, JJ., concur in the foregoing opinion.
                              ____________________
       Cheetwood, Davies, Ruck & Speweik, Ltd., Corey J. Speweik, and
Theresa A. Charters, for appellees.
       James F. Melle, Law Director, for appellants.
                          _________________________




                                         14
