[Cite as Safran Family Trust v. Hughes Property Mgt., 2018-Ohio-438.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                    OTTAWA COUNTY


Safran Family Trust                                       Court of Appeals No. OT-17-020

        Appellee                                          Trial Court No. 15CV296

v.

Hughes Property Management                                DECISION AND JUDGMENT

        Appellant                                         Decided: February 2, 2018

                                                *****

        Richard R. Gillum, for appellee.

        Howard C. Whitcomb, III, for appellant.

                                                *****

        JENSEN, J.

        {¶ 1} Appellant, Hughes Property Management, appeals the judgment of the

Ottawa County Court of Common Pleas, following a bench trial, which granted

easements over appellant’s land in favor of appellee, Safran Family Trust. For the

reasons that follow, we affirm.
                         I. Facts and Procedural Background

       {¶ 2} For ease of discussion, we note at the outset that Ken Hughes owns Hughes

Property Management, and we will refer to them individually or in the collective as

appellant. Likewise, we note that John and Janet Safran are the trustees and beneficiaries

of the Safran Family Trust, and we will refer to them as appellees.

       {¶ 3} On September 28, 2015, appellees initiated the present matter by filing a

seven-count complaint in which they sought implied easements by necessity, estoppel,

and implication for both ingress and egress and for access to water and sewer.

       {¶ 4} The matter proceeded to a bench trial at which the following facts were

adduced. The property in question was part of the Avalon on the Bay Subdivision, and

was initially owned by the Gough Trust. Appellees have maintained a trailer on Lot 1 on

the southeastern corner of the Gough Trust property since 1986. Lot 1 is landlocked,

with Lot 2 bordering it on the west, and Lot 3 bordering both Lots 1 and 2 on the north.

To the east is additional property not owned by the Gough Trust, and not relevant to this

appeal. To the south is the Sandusky Bay.

       {¶ 5} In 2006, appellees purchased Lot 1 from the Gough Trust. After purchasing

the land from the Goughs, and in reliance on promises made regarding the conveyance of

easements, appellees purchased and constructed a new double-wide mobile home on the

lot, costing over $140,000. In particular, the Goughs agreed to convey an easement

across Lot 2 for ingress and egress. The recorded easement, however, designated a 15-

foot strip of land along the southern border of Lot 2, which is submerged in the Sandusky




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Bay. Nevertheless, appellees continued to use a gravel U-shaped drive across Lot 2 from

Bayview Drive as they had always done. In addition, appellees and the Goughs agreed

that appellees would arrange for separate billing for water and sewer with the Ottawa

County Sanitary Engineer’s office. At the time, appellees received water from a

community pump station through a pipe that was partially below ground and partially

above ground. Later, that source was shut off, and appellees received water from another

neighbor. When the county demanded that appellees discontinue receiving water from a

neighbor, appellees installed a water tank. As for sewer service, the sewer line for

appellees’ mobile home runs east to west, and is partially on the southern portion of Lot 3

and the northern portion of Lot 2.

       {¶ 6} Towards the end of 2012, the Gough Trust sought to sell the rest of its

property in Avalon on the Bay, including Lots 2 and 3. On October 19, 2012, the Gough

Trust entered into an agreement with Howard Hanna Real Estate Services to be its agent

for the sale. On the “Exclusive Right to Sell Agreement,” the Goughs disclosed that the

property was encumbered by an easement for the owner of Lot 1 to get to his property,

and by an easement for the owner of Lot 1 to tie into the county’s water lines. Notably, a

written easement for water and sewer lines was executed on October 24, 2012, granting

appellees access across Lot 2. However, that easement was never recorded.

       {¶ 7} In January 2013, appellant entered into negotiations with the Gough Trust to

purchase the property. On January 3, 2013, appellant received and initialed the “Vacant

Land Seller’s Description of the Property,” which indicated that there were “encroachments,




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easements, shared driveways, party walls, or similar conditions that may affect title to the

property,” and which referred appellant to the “Disclosures on Seller’s Agreement.” Tomi

Johnson, the Gough Trust’s real estate agent, testified that she believes the seller’s

disclosures regarding the easements were transmitted to appellant, and the purchase

agreement offered by appellant also indicated that appellant had received the “Residential

Property Disclosure Form.” Furthermore, the purchase agreement signed by appellant on

January 3, 2013, included an Addendum A, stating that appellant’s offer was contingent

upon “Accepted written agreement with Mr. and Mrs. John Safran regarding the easements

for water and sewer lines and driveway location.” Appellant’s real estate agent, Mary Kay

Michel, who is also appellant’s sister, testified that the contingency written in Addendum A

was in her handwriting. Subsequently, the contingency was crossed out, and appellant

initialed the crossed-out contingency on January 15, 2013. The parties dispute who crossed

out the contingencies and when he or she did it.

       {¶ 8} Appellant testified that a title search was conducted before closing, and

revealed only that the property was encumbered by the easement for ingress and egress,

which appellant determined was located underwater. Appellant further testified that he

had no knowledge of the easement regarding sewer and water access, and that he did not

receive the seller’s disclosure of that easement. In addition, he testified that when he

received the draft of the purchase agreement to sign on January 3, 2013, the

contingencies in Addendum A were already crossed off. Ultimately, the sale was

completed.




4.
       {¶ 9} Following the sale, appellant and appellees had at least one conversation

about where appellees could locate their water line. John Safran testified that appellant

told him they would figure it out when appellant began constructing his home. Appellant

testified that he was unsure what to do because he did not think that an easement existed.

Relevant to the location of the water and sewer lines, Steve Lange of the Ottawa County

Sanitary Engineer’s Office testified that the county’s sewer lines terminate near Bayview

Drive at a manhole approximately on the boundary between Lots 2 and 3, and the

county’s water line terminates at a fire hydrant approximately 20 feet to the north of the

manhole, located on Lot 3. He testified that the county could not extend the sewer lines

to the south because of the potential for infiltration from Lake Erie. However, he stated

that a 15-foot easement running east to west across the northern boundary of Lot 3 would

be adequate for providing water and sewer access to appellee’s mobile home on Lot 1.

       {¶ 10} After the trial, the court entered its judgment granting the easements. The

court found that appellant had knowledge of the easement issues at the time of the

purchase. Thus, the trial court granted appellees an easement by necessity and/or

estoppel for access at the present location of the graveled U-shaped drive. In addition,

the trial court granted appellees a sewer easement by implication and estoppel where the

sewer line is currently located. Finally, the trial court granted an easement by implication

and estoppel for a water line.




5.
                                II. Assignments of Error

       {¶ 11} Appellant has timely appealed the trial court’s judgment, and now asserts

three assignments of error for our review:

              I. The trial court abused its discretion by ordering an easement

       across Lot 2 of defendant-appellant’s property, thereby unjustly enriching

       the plaintiff-appellee to defendant-appellant’s financial detriment.

              II. In finding that plaintiff-appellee had satisfied the elements of

       easement by necessity and/or by estoppel, the trial court essentially

       rewarded plaintiff-appellee for its failure to properly record the easement

       and providing notice to future innocent purchasers, including the defendant-

       appellant.

              III. In granting an easement to plaintiff-appellees, the trial court

       violated the defendant-appellant’s right, as guaranteed by Article 1, Section

       19 of the Ohio Constitution, to the inviolate enjoyment of its property.

                                       III. Analysis

       {¶ 12} Appellant’s first and second assignments of error are interrelated, thus we

will address them together. Appellant contends that the trial court abused its discretion

when it granted easements for access and for water and sewer. However, we review a

trial court’s decision following a bench trial for being against the manifest weight of the

evidence. See Terry v. Kellstone, Inc., 6th Dist. Erie No. E-12-061, 2013-Ohio-4419,




6.
¶ 12; Kennedy v. Collins, 5th Dist. Perry No. 12-CA-0017, 2013-Ohio-2304, ¶ 6-18

(applying manifest weight to the trial court’s finding that no implied easement existed).

       {¶ 13} The standard of review for manifest weight is the same in a civil case as it

is in a criminal case. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972

N.E.2d 517, ¶ 17. Under a manifest weight standard of review, we are “guided by a

presumption” that the fact-finder’s findings are correct. Seasons Coal Co. v. Cleveland,

10 Ohio St.3d 77, 79-80, 461 N.E.2d 1273 (1984). When reviewing for manifest weight,

       The court, reviewing the entire record, weighs the evidence and all

       reasonable inferences, considers the credibility of witnesses and determines

       whether in resolving conflicts in the evidence, the [trier of fact] clearly lost

       its way and created such a manifest miscarriage of justice that the

       [decision] must be reversed and a new trial ordered. The discretionary

       power to grant a new trial should be exercised only in the exceptional case

       in which the evidence weighs heavily against the conviction. State v. Lang,

       129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, quoting State

       v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

       {¶ 14} “[A]n easement may be created by specific grant, prescription, or

implication which may arise from the particular set of facts and circumstances.”

Campbell v. Great Miami Aerie No. 2309, Fraternal Order of Eagles, 15 Ohio St.3d 79,

80, 472 N.E.2d 711 (1984). Here, the trial court granted an access easement by necessity




7.
and/or estoppel, and granted an easement for water and sewer by implication and/or

estoppel.

       {¶ 15} “An implied easement is based upon the theory that whenever one conveys

property, he or she includes in the conveyance whatever is necessary for its beneficial use

and enjoyment and retains whatever is necessary for the use and enjoyment of the land

retained.” Arkes v. Gregg, 10th Dist. Franklin No. 05AP-202, 2005-Ohio-6369, ¶ 11.

Implied easements are not favored in the law, “being in derogation of the rule that written

instruments shall speak for themselves.” Ciski v. Wentworth, 122 Ohio St. 487, 172 N.E.

276 (1930), paragraph one of the syllabus. Nonetheless, an easement by implication may

arise where 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. Id.

       {¶ 16} “An implied easement may be implied either by prior use or by necessity.”

Yowonske v. MDB Constr. Co., 7th Dist. Belmont No. 09 BE 10, 2010-Ohio-4185, ¶ 20,

citing Cadwallader v. Scovanner, 178 Ohio App.3d 26, 2008-Ohio-4166, 896 N.E.2d

748, ¶ 14 (12th Dist.). However, if the plaintiff is attempting to establish an implied




8.
easement by necessity, the plaintiff must show that the easement is strictly necessary

under the third prong, rather than reasonably necessary. Tiller v. Hinton, 19 Ohio St.3d

66, 69, 482 N.E.2d 946 (1985).

       {¶ 17} In contrast to implied easements, an easement by estoppel arises when “an

owner of property misleads or causes another in any way to change the other’s position to

his or her prejudice.” Kienzle v. Myers, 167 Ohio App.3d 78, 2006-Ohio-2765, 853

N.E.2d 1203, ¶ 20 (6th Dist.), citing Monroe Bowling Lanes v. Woodsfield Livestock

Sales, 17 Ohio App.2d 146, 149, 244 N.E.2d 762 (7th Dist.1969). “Where an owner of

land, without objection, permits another to expend money in reliance upon a supposed

easement, when in justice and equity the former ought to have disclaimed his conflicting

rights, he is estopped to deny the easement.” Id.

       {¶ 18} In its first assignment of error, appellant challenges several findings of the

trial court. First appellant contests the trial court’s finding that neither party knew that

the recorded access easement designated land that was submerged. Appellant contends

that appellees were aware of the recorded easement’s deficiency, yet took no action to

correct the issue. However, appellant does not argue how appellees’ knowledge of the

submerged easement undermines the conclusion that access across the graveled U-turn on

Lot 2 is necessary to enter Lot 1. Thus, we find that this argument is not meritorious in

demonstrating that the trial court’s grant of an implied easement by necessity for ingress

and egress is against the manifest weight of the evidence.




9.
       {¶ 19} Next, appellant argues that the trial court found that appellees had

expended $250,000 in reliance on the Goughs’ promises regarding the easements, when

the testimony indicated that appellees spent only $140,000. We find this discrepancy to

be meaningless, because even an expenditure of $140,000 would be sufficient to

demonstrate that appellees acted in reliance on the promises from the Goughs. Thus, this

argument is meritless.

       {¶ 20} Finally, appellant challenges the trial court’s finding that it had prior

knowledge of the easements when it purchased Lots 2 through 9 in 2013. This argument

relates to appellant’s position, taken throughout its first and second assignments of error,

that to the extent appellees have a claim for implied easements or easements by estoppel,

those easements have arisen based on the actions of the Gough Trust, not appellant. On

this reasoning, appellant concludes that because appellees failed to protect their interest

by acquiring and recording the easements, it is appellees who should suffer the

consequences from their lack of diligence, not appellant. Indeed, the Ohio Supreme

Court has recognized that the equitable right of an implied easement “is not enforceable

against a bona fide purchaser for value who has no actual or constructive notice of such

easement.” Renner v. Johnson, 2 Ohio St.2d 195, 207 N.E.2d 751 (1965), paragraph

three of the syllabus; see also R.C. 5301.25(A) (“Until so recorded or filed for record,

[written easements] are fraudulent insofar as they relate to a subsequent bona fide

purchaser having, at the time of purchase, no knowledge of the existence of that former

deed, land contract, or instrument.”).




10.
         {¶ 21} Here, however, the evidence demonstrates that appellant had prior

knowledge of the easements. The “Vacant Land Seller’s Description of the Property”

disclosed that there were easements or other encumbrances on the property that appellant

was buying, and referred appellant to the Seller’s Disclosures, which referenced the

access and water easements. The seller’s real estate agent testified that she believes the

disclosures were transmitted, and the purchase agreement offer signed by appellant

indicated that it had received the disclosures. Moreover, appellant’s own offer was made

contingent upon “Accepted written agreement with Mr. and Mrs. John Safran regarding

the easements for water and sewer lines and driveway location.” This contingency was

handwritten by appellant’s real estate agent. Regardless of when the contingency was

crossed out, we hold that its presence, combined with the other evidence relating to the

disclosure of the easements, supports the trial court’s finding that appellant had prior

knowledge of the easements at the time it purchased the property. Therefore, appellant is

not a bona fide purchaser, and the implied easements are enforceable.

         {¶ 22} Accordingly, appellant’s first and second assignments of error are not well-

taken.

         {¶ 23} Finally, in his third assignment of error, appellant argues that the trial

court’s grant of an easement to appellees violated its constitutional right to the inviolate

enjoyment of its property. Appellant concludes that the trial court’s judgment renders

Lot 2 useless for the purpose of constructing a lakeside home, and therefore the judgment

constitutes an uncompensated taking.




11.
       {¶ 24} Article I, Section 19 of the Ohio Constitution provides,

                Private property shall ever be held inviolate, but subservient to the

       public welfare. When taken in time of war or other public exigency,

       imperatively requiring its immediate seizure or for the purpose of making

       or repairing roads, which shall be open to the public, without charge, a

       compensation shall be made to the owner, in money, and in all other cases,

       where private property shall be taken for public use, a compensation

       therefor shall first be made in money, or first secured by a deposit of

       money; and such compensation shall be assessed by a jury, without

       deduction for benefits to any property of the owner.

       {¶ 25} Here, however, the property was not “taken for public use.” Rather, the

trial court settled a land dispute between two private entities. Therefore, Article I,

Section 19 does not apply.

       {¶ 26} Accordingly, appellant’s third assignment of error is not well-taken.

                                       IV. Conclusion

       {¶ 27} For the foregoing reasons, the judgment of the Ottawa County Court of

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24.


                                                                          Judgment affirmed.




12.
                                                               Safran Family Trust v.
                                                               Hughes Property Mgt.
                                                               C.A. No. OT-17-020




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
James D. Jensen, J.
                                               _______________________________
Christine E. Mayle, P.J.                                   JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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