[Cite as Roubanes v. Brown, 2012-Ohio-1933.]


                                      COURT OF APPEALS
                                    HOLMES COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT




WILLIAM ROUBANES                               :   JUDGES:
                                               :   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                     :   Hon. Sheila G. Farmer, J.
                                               :   Hon. John W. Wise, J.
-vs-                                           :
                                               :
NILO BROWN                                     :   Case No. 11CA019
                                               :
        Defendant-Appellant                    :   OPINION




CHARACTER OF PROCEEDING:                           Appeal from the Court of Common
                                                   Pleas, Case No. 10CV152



JUDGMENT:                                          Affirmed/Reversed in Part &
                                                   Remanded



DATE OF JUDGMENT:                                  May 1, 2012




APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

STEVEN J. SHROCK                                   GRANT A. MASON
SARAH B. BAKER                                     The Lincoln Building
225 North Market Street                            88 South Monroe Street
Wooster, OH 44691                                  Millersburg, OH 44654
Holmes County, Case No. 11CA019                                                          2

Farmer, J.

       {¶1}   In June of 1981, Richard and Fay Porter granted an easement to Roberta

Long so she could access her seventy-five acre parcel over their property.            The

easement was granted over the existing "Old Cabin Road."

       {¶2}   On February 14, 1984, the Porters sold their property to appellant, Nilo

Brown. Appellant constructed a driveway on the property. The driveway crossed the

easement, and then joined the easement for a short distance before diverting away.

       {¶3}   On January 29, 1991, the Estate of Roberta Long sold her seventy-five

acre parcel to Roman Miller. On April 19, 1991, Mr. Miller acquired a 1.5 acre tract

adjacent to the seventy-five acre parcel.     This acquisition gave Mr. Miller roadway

access to his property. However, appellant gave Mr. Miller permission to traverse the

driveway on a limited basis after notifying appellant of the intended use.

       {¶4}   On April 26, 1993, Mr. Miller sold his entire parcel to appellee, William

Roubanes. Appellee used the driveway for approximately fifteen to sixteen years. After

June 1, 2009, appellant notified appellee orally and via two letters to stop traversing the

driveway. Appellee continued to use the driveway.

       {¶5}   On November 5, 2010, appellee filed a complaint against appellant,

claiming easement by estoppel and easement by necessity.              Appellee sought a

declaration that the easement followed "Old Cabin Road," and sought a temporary

restraining order and a preliminary injunction. On same date, the parties resolved the

issues regarding the requested injunctive relief.

       {¶6}   On January 10, 2011, appellant filed an answer and a counterclaim,

alleging that appellee had trespassed upon his property.
Holmes County, Case No. 11CA019                                                         3


      {¶7}   A bench trial commenced on June 23, 2011. At the conclusion of the trial,

appellee dismissed his claim for easement by necessity. By decision and judgment

entry filed September 6, 2011, the trial court found in favor of appellee on his claim for

easement by estoppel, and permanently enjoined appellant from interfering with

appellee's use of the easement. The trial court filed a nunc pro tunc judgment entry on

September 22, 2011 to add Civ.R. 54(B) language.

      {¶8}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

      {¶9}   "THE TRIAL COURT ERRED AS A MATTER OF LAW BY FINDING

THAT ROUBANES HAD ESTABLISHED AN 'EASEMENT BY ESTOPPEL'."

                                            II

      {¶10} "THE      TRIAL     COURT       ERRED        BY   FINDING      THAT      THE

DEFENDANT/APPELLANT'S STATEMENTS CREATED ANYTHING OTHER THAN A

MERE LICENSE."

                                            III

      {¶11} "THE      TRIAL     COURT       ERRED        BY   FINDING      THAT      THE

PLAINTIFF/APPELLEE        HAD    PROVEN           THE   ELEMENTS    NECESSARY        FOR

INJUNCTIVE RELIEF."

                                           IV

      {¶12} "THE TRIAL COURT ERRED BY GRANTING THE PLAINTIFF AN

EASEMENT WITH GREATER RIGHTS THAN EXISTED BY EITHER THE CONDUCT

OF THE PARTIES OR OF THE ORIGINAL 1983 WRITTEN EASEMENT."
Holmes County, Case No. 11CA019                                                         4


                                             V

       {¶13} "THE TRIAL CURT ERRED IN NOT FINDING IN FAVOR OF THE

DEFENDANT/APPELLANT ON HIS CLAIM FOR TRESPASS."

                                        I, II, III, IV

       {¶14} Appellant claims the trial court erred in determining there existed an

easement by estoppel. Appellant's claims raise two issues: 1) whether the doctrine of

easement by estoppel exists in Ohio and 2) if so, whether the facts in this case establish

an easement by estoppel.

       {¶15} The first issue is a question of law which this court reviews de novo.

       {¶16} In Renner v. Johnson (1965), 2 Ohio St.2d 195, the Supreme Court of

Ohio accepted the proposition that an implied easement can exist in Ohio, but denied its

enforcement against a bona fide purchaser because the easement was not apparent.

Prior to Renner, the Supreme Court of Ohio in Yeager v. Tuning (1908), 79 Ohio St.

121, recognized that a parol license to use the land of another was revocable at the

option of the licensor.

       {¶17} The reasoning in Renner broadens Ohio's approach and permits an

easement by estoppel. The essential elements to establish an implied easement are as

follows:

       {¶18} "The essential elements required to establish an implied easement have

been set forth by this court in a number of prior opinions. In Ciski v. Wentworth, supra,

[(1930), 122 Ohio St. 487] the court held in paragraph one of the syllabus:

       {¶19} " 'While implied grants of easements are not favored, being in derogation

of the rule that written instruments shall speak for themselves, the same may arise
Holmes County, Case No. 11CA019                                                       5


when the following elements appear: (1) A severance of the unity of ownership in an

estate; (2) that before the separation takes place, the use which gives rise to the

easement shall have been so long continued and obvious or manifest as to show that it

was meant to be permanent; (3) that the easement shall be reasonably necessary to the

beneficial enjoyment of the land granted or retained; (4) that the servitude shall be

continuous as distinguished from a temporary or occasional use only.'

      {¶20} "An implied easement must be 'apparent, continually used, and

reasonably necessary to the use and enjoyment of the land.' Baker v. Rice (1897), 56

Ohio St. 463, 47 N.E. 653, syllabus. It is necessary for the advocate to prove that his

client's property is 'visibly dependent' upon the alleged easement. Natl. Exchange Bank

v. Cunningham (1889), 46 Ohio St. 575, 22 N.E. 924, paragraph one of the syllabus.

Finally, the use which serves as the basis for an implied easement upon the severance

of ownership must be 'continuous, apparent, permanent and necessary.' Trattar, supra,

[v. Rausch (1950), 154 Ohio St. 286] at paragraph five of the syllabus." Campbell v.

Great Miami Aerie No. 2309, Fraternal Order of Eagles (1984), 15 Ohio St.3d 79, 80-81.

      {¶21} It is within these frameworks that various courts of appeals have

recognized easements by estoppel:

      {¶22} "In granting the McCumberses an easement by estoppel over the

Pucketts' driveway, the trial court relied on Restatement of the Law 3d, Property (2000)

143, Section 2.10(1), entitled, 'Servitudes Created by Estoppel,' which states:

      {¶23} " 'If injustice can be avoided only by establishment of a servitude, the

owner or occupier of land is estopped to deny the existence of a servitude burdening

the land when:
Holmes County, Case No. 11CA019                                                         6


       {¶24} " '(1) the owner or occupier permitted another to use that land under

circumstances in which it was reasonable to foresee that the user would substantially

change position believing that the permission would not be revoked, and the user did

substantially change position in reasonable reliance on the belief.'

       {¶25} " 'Normally, the change in position that triggers the application of the rule

stated in [Section 2.10(1)] is an investment in improvements either to the servient estate

or to the other land of the investor.***Failure to object to an investment made in

improvements to land by another may give rise to an estoppel against the owner or

occupier of the land, if the owner or occupier knows or reasonably should know that the

investment is being made on the basis of a mistaken belief that the investor has a

nonrevokable right to use the land.' (Emphasis added.) Restatement of the Law 3d,

Property (Servitudes) (2000), Section 2.10, Comment e." McCumbers v. Puckett, 183

Ohio App.3d 762, 2009-Ohio-4465, ¶18-21.

       {¶26} "Where an owner of land without objection allows another to spend money

in reliance on a supposed easement, when in justice and equity the land owner ought to

have disclaimed his conflicting rights, the owner is estopped to deny the existence of

the easement. Monroe Bowling Lanes [v. Woodsfield Livestock Sales (1969)], 17 Ohio

App.2d [146], at syllabus 2. An easement by estoppel may not be claimed by one who

has not been misled or caused to change his position to his prejudice. Id., at 149. By

failing to object to the planting of the trees, Warren did not mislead the Schindlers nor

cause them to plant the trees in reliance on a supposed easement. The limits of the

easement were expressly set out in the purchasing agreement and deed. The trial court
Holmes County, Case No. 11CA019                                                             7

did not err in failing to find an easement by estoppel." Schindler v. Warren (May 28,

1991), Stark App. No. CA-8253.

       {¶27} "In Bruce & Ely, The Law of Easements and Licenses in Land (1988),

Section 6.01, a summation of the law of easements by estoppel is stated as follows:

       {¶28} "***

       {¶29} "    'One   claiming    an   easement      by   estoppel   must   establish   (1)

misrepresentation or fraudulent failure to speak and (2) reasonable detrimental reliance.

Claimants alleging misrepresentation not only must prove that the alleged statements

were   made      but   also   must   establish   that   those   statements     were   actually

misrepresentations. Showing reliance presents additional problems. An easement by

estoppel claimant cannot rely on an assertion that may be checked easily in the public

records or that is contrary to information in the claimant's possession. Moreover, the

claimant must change position personally; proof of reliance by third parties does not

suffice. Finally, what constitutes reliance depends on the facts and the circumstances

of the particular case. Locating improvements on the dominant estate in order to take

advantage of the represented easement has been held to satisfy the reliance

requirement. Expending money to repair or improve a servient estate also evinces

reliance.

       {¶30} " 'Courts are reluctant to find an easement by estoppel on the basis of

"mere passive acquiescence."         Nonetheless, under certain circumstances, equity

imposes an obligation to disclose information regarding the existence or location of an

easement. Such a duty may be found when the servient estate owner observes the

claimant improving the servient estate, but not usually when the servient estate owner
Holmes County, Case No. 11CA019                                                        8


stands by while the claimant improves his own property, the alleged dominant estate.

Furthermore, there is authority that an obligation to speak does not arise when a

claimant is already in possession of the relevant information.' (Footnotes omitted.)"

Maloney v. Patterson (1989), 63 Ohio St.3d 405, 410.

      {¶31} We therefore conclude the doctrine of easement by estoppel is recognized

in Ohio under the following conditions: 1) it is apparent and not hidden to a third party

purchaser (Renner, Campbell, Maloney); 2) it would be reasonably foreseeable that the

user of land under certain circumstances would substantially change his position

(Maloney, McCumbers, Schindler); 3) the person seeking to establish the easement

expends some proof of improving the property which is subject to the easement

(McCumbers, Maloney); and 4) there has been a representation by the servient estate

that an easement exists (Maloney).

      {¶32} Having resolved that the theory of easement by estoppel does exist under

certain circumstances, we must now resolve whether the facts in this case establish an

easement.

      {¶33} A judgment supported by some competent, credible evidence will not be

reversed by a reviewing court as against the manifest weight of the evidence. C.E.

Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. A reviewing court must

not substitute its judgment for that of the trial court where there exists some competent

and credible evidence supporting the judgment rendered by the trial court. Myers v.

Garson, 66 Ohio St.3d 610, 1993-Ohio-9.

      {¶34} The undisputed facts are that a written easement existed over appellant's

property to the benefit of the adjacent parcel owner and was referred to as the "Old
Holmes County, Case No. 11CA019                                                        9


Cabin Road." Appellant had constructed part of a driveway on the easement because

Old Cabin Road was not functional for him to obtain access to his home. T. at 56. After

appellee purchased his parcel, he spoke with appellant about using the driveway and

appellant permitted appellee to use the driveway for limited purposes. T. at 67. There

is no evidence that appellee did anything to improve the driveway or extend any

expense on the driveway. Appellee purchased his parcel in 1993 and never used the

Old Cabin Road easement, just appellant's driveway. It was not until 2009 that the

controversy over the use of the driveway arose. T. at 60. Admittedly, since appellant's

purchase of his property in 1984, only a portion of the Old Cabin Road easement was

used. T. at 63.

       {¶35} From the facts presented, appellant granted appellee a license to use the

driveway some of which included the Old Cabin Road easement. However, as noted by

the Yeager court at 122, "[a] license is a personal, revocable and non-assignable

privilege, conferred either by writing or parol, to do one or more acts upon land without

possessing any interest therein."

       {¶36} Appellee was not induced to purchase the parcel based upon the license

because it was not granted until after the purchase.      Appellee did not present any

evidence of expending any funds or making any improvements to the driveway.

Appellant testified he alone improved the driveway on his property. Appellee clearly

had a prescriptive easement by deed via Old Cabin Road; however, he chose

appellant's newer driveway for access. Therefore, we conclude the trial court erred in

finding an easement by estoppel under the facts sub judice and erred in granting the

injunction.
Holmes County, Case No. 11CA019                                                        10


      {¶37} Assignments of Error I, II, III, and IV are granted.

                                            V

      {¶38} Appellant claims the trial court erred in failing to find appellee trespassed

upon his property. We disagree.

      {¶39} "A trespasser is one who unauthorizedly goes upon the private premises

of another without invitation or inducement, express or implied, but purely for his own

purposes or convenience; and where no mutuality of interest exists between him or the

owner or occupant." Allstate Fire Insurance Co. v. Singler (1968), 14 Ohio St.2d 27, 29.

      {¶40} In letters dated June 24, 2009 and May 10, 2010 sent to appellee by

appellant's attorneys, appellee was told to stop using the driveway and to remove his

mailbox from appellant's property, respectively. Plaintiff's Exhibits 7 and 8. Appellee

continued to use the driveway. T. at 26. Appellant admitted appellee's alleged trespass

encompassed the prescriptive easement on Old Cabin Road. Appellant was unable to

enumerate the number of times the alleged trespass occurred after the letters. T. at 71.

In fact, appellee attempted to settle the matter with appellant. T. at 72. Appellant

presented no damages as a result of the alleged use of his driveway in its entirety.

      {¶41} We conclude there can be no injury without damages therefore, the claim

for trespass was not established.

      {¶42} Assignment of Error V is denied.
Holmes County, Case No. 11CA019                                                      11


      {¶43} The judgment of the Court of Common Pleas of Holmes County, Ohio is

hereby affirmed in part and reversed in part.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.




                                                s/ Sheila G. Farmer_______________



                                                s/ William B. Hoffman_____________



                                                _s/ John W. Wise   _______________

                                                             JUDGES

SGF/sg 313
[Cite as Roubanes v. Brown, 2012-Ohio-1933.]


                  IN THE COURT OF APPEALS FOR HOLMES COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT




WILLIAM ROUBANES                                 :
                                                 :
        Plaintiff-Appellee                       :
                                                 :
-vs-                                             :        JUDGMENT ENTRY
                                                 :
NILO BROWN                                       :
                                                 :
        Defendant-Appellant                      :        CASE NO. 11CA019




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Holmes County, Ohio is affirmed in part and

reversed in part, and the matter is remanded to said court for further proceedings

consistent with this opinion.          Costs to be divided equally between appellant and

appellee.




                                                 s/ Sheila G. Farmer_______________



                                                 s/ William B. Hoffman_____________



                                                 _s/ John W. Wise   _______________

                                                              JUDGES
