[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.


                                          -2-
Case No. 17-19-07


       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.




                                         -3-
Case No. 17-19-07


                                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.




                                         -4-
Case No. 17-19-07


         {¶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);

                                          -5-
Case No. 17-19-07


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


                                         -6-
Case No. 17-19-07


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.

(Pl. Ex. 5, Def. Ex. A) (emphasis in original).

       {¶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

                                         -7-
Case No. 17-19-07


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.




                                         -8-
Case No. 17-19-07


       {¶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

                                          -9-
Case No. 17-19-07


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.

                                                -10-
Case No. 17-19-07


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


                                        -11-
Case No. 17-19-07


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




                                       -12-
Case No. 17-19-07


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


                                        -13-
Case No. 17-19-07


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


                                        -14-
Case No. 17-19-07


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


                                        -15-
Case No. 17-19-07


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.


                                        -16-
Case No. 17-19-07


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


                                         -17-
Case No. 17-19-07


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



                                        -18-
Case No. 17-19-07


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.

                                                    -19-
Case No. 17-19-07


       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.



                                        -20-
Case No. 17-19-07


       {¶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.


                                        -21-
Case No. 17-19-07


(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.


                                       -22-
Case No. 17-19-07


                            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


                                       -23-
Case No. 17-19-07


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


                                          -24-
Case No. 17-19-07


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




                                        -25-
Case No. 17-19-07


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.

                                                            Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




                                           -26-
