[Cite as Pinkerton v. Salyers, 2015-Ohio-377.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                       ROSS COUNTY

DAVID PINKERTON,                                 :   Case No. 13CA3388

        Plaintiff-Appellee/                      :
        Cross-Appellant,
                                                 :
        v.                                           DECISION AND
                                                 :   JUDGMENT ENTRY
JOHN L. SALYERS, JR.,
ET AL.,                                          :

        Defendants-Appellants                    :   RELEASED: 1/29/2015
        Cross-Appellees.

                                            APPEARANCES:

William S. Cole, Cole, Kirby & Associates, L.L.C., Jackson, Ohio, for appellants/cross-
appellees.

Thomas M. Spetnagel, Law Offices of Thomas M. Spetnagel, Chillicothe, Ohio, for
appellee/cross-appellant.
Harsha, J.
        {¶1}     David Pinkerton filed an action to quiet title in his property and for a

judgment declaring that David A. Salyers, trustee, and others had no easement across

his property to the Salyers’ adjacent land. After the Salyers answered and

counterclaimed, the trial court found that the Salyers had established a private

easement by prescription and estoppel across Pinkerton’s property. The trial court

determined that the easement was 10-feet wide and that it was restricted to the Salyers’

use for farming, hunting, and other agricultural purposes. The Salyers appealed from

the trial court’s limitations on the easement, and Pinkerton cross-appealed from the

declaration of the easement.
Ross App. No. 13CA3388                                                                     2


       {¶2}   In Pinkerton’s cross-appeal he asserts that the trial court erred in granting

the Salyers a prescriptive easement because the Salyers failed to prove their use of the

property was adverse. We reject Pinkerton’s claim that the judgment is against the

manifest weight of the evidence because the record contains evidence that the Salyers

used the access road without permission from Pinkerton and his predecessors in

interest. Under these circumstances, the trial court did not clearly lose its way and

create such a manifest miscarriage of justice that its judgment must be reversed.

       {¶3}   In his second assignment of error Pinkerton contends that the judgment

entitling the Salyers to an easement by estoppel is against the manifest weight of the

evidence. Pinkerton’s contention is meritless because Pinkerton’s predecessors in

interest permitted the Salyers to spend money to gravel the access without objection,

thereby estopping Pinkerton from denying the easement.

       {¶4}   In their appeal the Salyers argue in their first assignment of error that the

trial court erred in limiting their use of the easement solely for the historical purposes of

hunting, farming, and agriculture. They claim that their use of the easement should be

unlimited, as long as it is reasonable. However, prescriptive easements and easements

by estoppel are disfavored because they result in forfeiture of land without

compensation. Moreover, such an easement holder may not increase the burden upon

the servient estate by engaging in a new and additional use of the easement. The trial

court did not abuse its discretion in restricting the use of the easement to its primary

historical uses for hunting, farming, and agricultural purposes.

       {¶5}   In their second assignment of error the Salyers claim that “the trial court

erred by limiting the use of that easement to Defendants.” However, the private
Ross App. No. 13CA3388                                                                     3


easement necessarily includes the right of guests and invitees of the Salyers to

reasonable use of the easement. Thus, the trial court did not abuse its discretion in

limiting the easement.

       {¶6}   We affirm the judgment of the trial court.

                                         I. FACTS

       {¶7}   In 2010 Pinkerton purchased an 82.25-acre tract (82-acre tract) of real

property on Mount Tabor Road in Huntington Township, Ross County, Ohio. David A.

Salyers, trustee of the John L. Salyers, Jr. and Alma L. Salyers revocable living trusts,

has owned the 46.191-acre tract (46-acre tract) of real property since his parents, the

trust beneficiaries, transferred it to him in 1998. The Salyers’ property is adjacent to

and northwest of Pinkerton’s property, which abuts Mount Tabor Road.

       {¶8}   In March 2012, Pinkerton filed a complaint in the Ross County Court of

Common Pleas against the Salyers. He requested that the court quiet title to his

property by declaring that the Salyers had no interest in his 82-acre property, including

any claimed right-of-way across his property to access their 46-acre tract. He also

sought damages for the Salyers’ trespass on his property relating to their installation of

a gate and posting of signs for their use of the right-of-way. In their counterclaim the

Salyers alleged that they had an easement by prescription, an implied easement, an

easement by necessity, and an easement by estoppel over Pinkerton’s property. They

requested a court order establishing their right to cross Pinkerton’s property and

permanently enjoining Pinkerton from obstructing their access. A bench trial produced

the evidence that follows.
Ross App. No. 13CA3388                                                                   4


       {¶9}   John L. Salyers, Jr.’s parents purchased the property, as well as a

neighboring 52-acre tract that abutted Mount Tabor Road, in 1939. According to

Salyers they purchased the property from the Walkers, who showed him and his father

the access road from Mount Tabor Road across the 82-acre tract to their 46-acre tract.

He noted that “[w]hen we bought the place, the people sa[id] this is the right [of] way to

that piece of property.” But he did not dispute that the record showed his parents

bought the property from the Moores, not the Walkers. He did not agree that someone

who owned the property before Pinkerton specifically gave him permission to use the

access road; instead, he testified that “since nobody stopped me I had permission.”

       {¶10} The Salyers and their invitees, including friends, neighbors, and workers,

have used the path from Mount Tabor Road across Pinkerton’s property to the 46-acre

tract since John Salyers, Jr.’s parents purchased it in 1939. This stopped when

Pinkerton precluded them from doing so in 2012. The Salyers and their invitees have

used the right-of-way across the Pinkerton property to get to their property by horses,

four-wheelers, tractors, trucks, campers, and walking, primarily for farming and hunting.

Although John Salyers, Jr.’s parents attempted to transfer the 46-acre tract to him in

1945 and the adjacent 52-acre tract to his nephew George in 1964, the attached deeds

were mistakenly switched. Nevertheless, during this period, John Salyers, Jr. controlled

the 46-acre tract, maintained it, and paid taxes on it. The mistake was eventually

corrected in 1990, when the appropriate deeds were given to him and his nephew.

       {¶11} John Salyers, Jr. maintained the roadway by mowing it and spending

$1,400 to gravel it before Mead bought the Pinkerton property in 1986. A title search of

the parties’ properties revealed no express written easement from Pinkerton or his
Ross App. No. 13CA3388                                                                    5


predecessors to the Salyers or their predecessors. However, aerial photographs

confirmed the existence of the right-of-way across the Pinkerton property from Mount

Tabor Road to the Salyers’ 46-acre tract as far back as 1938 and continuing through

2011. Neighbor Alvin Wade noted that the roadway was apparent 30 years ago. And

according to neighbor Matt Hopkins, he could access the Salyers’ property by driving

his tractor over the roadway across Pinkerton’s property without any trouble because

the road had a “hard bottom” on it. Neighbor Dean Arrowood described it as a “pretty

good road.”

       {¶12} In 1986, when Mead purchased the Pinkerton property for forestry

operations, it contacted John Salyers, Jr. to ask him for his permission to put posts and

a cable across the right-of-way. John Salyers, Jr. used a lock for the cable to access

the right-of-way. For the last 26 years, the Salyers have not actively farmed their 46-

acre tract because it is in the Conservation Reserve Program, a government set-aside

program that requires him to mow the field every half-year. They still hunt on their

property and maintain food plots for the deer. When Pinkerton bought the 82-acre tract

in 2010, both he and the Salyers had their own locks and either could let the cable down

to access the right-of-way to the Salyers’ 46-acre tract. In 2011, Pinkerton told John

Salyers, Jr. that he and neighbor Dennis Garman could use the roadway to get to the

Salyers’ field and hunt, but in 2012, Pinkerton denied the Salyers access to the road.

Without use of the right-of-way across Pinkerton’s property, the Salyers cannot access

their 46-acre property. No one had ever stopped the Salyers and their invitees from

using the road until Pinkerton did in 2012.
Ross App. No. 13CA3388                                                                  6


       {¶13} After some procedural wrangling, the trial court entered judgment finding

that the Salyers had established a private easement by prescription and estoppel

across Pinkerton’s property to theirs. The trial court also determined that the easement

was 10-feet wide from Mount Tabor Road to the Salyers’ tract, restricted the easement

to the Salyers’ private use and limited it to farming, hunting and other agricultural

purposes only. This appeal and cross-appeal followed.

                             II. ASSIGNMENTS OF ERROR

       {¶14} In their appeal, the Salyers assign the following errors:

       1. After finding Defendants have an easement across Plaintiff’s property,
          the trial court erred in limiting Defendants’ use of said easement solely
          for hunting, farming and agricultural purposes.

       2. After finding Defendants have an easement across Plaintiff’s property,
          the trial court erred in limiting the use of that easement to Defendants.

       {¶15} In his cross-appeal, Pinkerton assigns the following errors:

       1. The lower court erred in granting cross-appellees a prescriptive
          easement.

       2. The lower court erred in granting cross-appellees an easement by
          estoppel.

                      III. EASEMENTS & STANDARD OF REVIEW

       {¶16} “An easement is ‘the grant of a use on the land of another.’ ” State ex rel.

Wasserman v. Fremont, 140 Ohio St.3d 471, 2014-Ohio-2962, 20 N.E.2d 664, ¶ 28,

quoting Alban v. R.K. Co., 15 Ohio St.2d 229, 231-232, 239 N.E.2d 22 (1968). This

appeal involves “easements appurtenant,” which are “easements that typically benefit

and/or burden two separate parcels of land, i.e., the dominant tenement (the land

benefited) and the servient tenement (the land encumbered by the easement).” Dunn v.

Ransom, 4th Dist. Pike No. 10CA806, 2011-Ohio-4253, ¶ 29. “An easement may be
Ross App. No. 13CA3388                                                                    7


created by specific grant, prescription, or implication that may arise from the particular

set of facts and circumstances.” Fitzpatrick v. Palmer, 186 Ohio App.3d 80, 2009-Ohio-

6008, 926 N.E.2d 651, ¶ 22 (4th Dist.). Adverse possession, in general, and easements

by prescription and estoppel are disfavored because they result in forfeiture of land

without compensation. See Grave v. Koch, 81 Ohio St.3d. 577, 580, 692 N.E.2d 1009

(1998).

       {¶17} When there is no specific grant of an easement, the recognition of an

easement is disfavored and the party claiming an easement must establish its creation

by clear and convincing evidence. Fitzpatrick. at ¶ 23, 25-26 (person who claims an

easement by prescription bears the burden to establish it by clear and convincing

evidence); Gnomes Knoll Farm, Inc. v. Aurora Inn Operating Partnership, L.P., 11th

Dist. Geauga No. 93-G-1780, 1994 WL 321576, *9 (June 30, 1994) (applying the same

“stringent standard” to a claim of easement by estoppel). Clear and convincing

evidence is “that measure or degree of proof which is more than a mere ‘preponderance

of the evidence,’ but not to the extent of such certainty as is required ‘beyond a

reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of

facts a firm belief or conviction as to the facts sought to be established.” State ex rel.

Husted v. Brunner, 123 Ohio St.3d 288, 2009-Ohio-5327, 915 N.E.2d 1215, ¶ 18,

quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of

the syllabus.

       {¶18} Pinkerton’s cross-appeal challenges the trial court’s determination that the

Salyers established the presence of an easement by prescription and by estoppel by

the requisite clear and convincing evidence. In determining whether a trial court based
Ross App. No. 13CA3388                                                                     8


its decision upon clear and convincing evidence, “a reviewing court will examine the

record to determine whether the trier of facts had sufficient evidence before it to satisfy

the requisite degree of proof.” State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54

(1990). Accord In re Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985), citing

Cross (“Once the clear and convincing standard has been met to the satisfaction of the

[trial] court, the reviewing court must examine the record and determine if the trier of

fact had sufficient evidence before it to satisfy this burden of proof.”). When an

appellate court reviews whether a trial court’s decision is against the manifest weight of

the evidence, the court weighs the evidence and all reasonable inferences, considers

the credibility of witnesses and determines whether in resolving conflicts in the

evidence, the factfinder clearly lost its way and created such a manifest miscarriage of

justice that the judgment must be reversed. Eastley v. Volkman, 132 Ohio St.3d 328,

2012-Ohio-2179, 972 N.E.2d 517, ¶ 20 (clarifying that the same type of manifest-weight

analysis applies in civil and criminal cases); In re M.M., 4th Dist. Meigs No. 14CA6,

2014-Ohio-5111, ¶ 22 (applying this standard in a case that involved a burden of proof

of clear and convincing evidence). “Because the trial court is best able to view the

witnesses, observe their demeanor, gestures, and voice inflections, and use those

observations in weighing the credibility of the witnesses, a reviewing court will presume

that the trial court's findings of fact are accurate.” Cadwallader v. Scovanner, 178 Ohio

App.3d 26, 2008-Ohio-4166, 896 N.E.2d 748, ¶ 9 (12th Dist.), quoting Seasons Coal

Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984). We will reverse a

judgment as being against the manifest weight of the evidence only in the exceptional

case in which the evidence weighs heavily against the judgment. M.M. at ¶ 24.
Ross App. No. 13CA3388                                                                    9


       {¶19} The Salyers contest the trial court’s limitation of the easement to their

private use for farming, hunting, and other agricultural purposes. When no granting

instrument exists, a trial court must determine the parties’ intent and the purpose for the

easement from the historical facts, rather than a document. Thus, we apply a manifest-

weight standard to these issues. Dunn v. Ransom, 4th Dist. Pike No. 13CA837, 2013-

Ohio-5116, ¶ 9. But because easements created by prescription and estoppel are

equitable remedies, the trial court’s determination of the limits of the easement is vested

within its considerable discretion, and we will not reverse the determination absent an

abuse of that discretion. Id. at ¶ 10-11, citing Keish v. Russell, 4th Dist. Athens No.

98CA01, 1998 WL 574369, *1 (Sept. 10, 1998) (“In our view, a prescriptive easement is

essentially an equitable remedy. Accordingly, the trial court must be afforded broad

discretion in fashioning its remedy. Where one or more ways are available, the trial

court is entitled to use its discretion and select the most reasonable route under the

circumstances”); Arkes v. Gregg, 10th Dist. Franklin No. 05AP-202, 2005-Ohio-6369, ¶

27 (“Several courts * * * recognize the equitable remedy of estoppel to create an

easement”).

                                IV. LAW AND ANALYSIS

                                      A. Jurisdiction

       {¶20}   Before addressing the merits of the parties’ assignments of error, we

must determine whether this appeal and cross-appeal are properly before us. “ ‘An

appellate court can review only final orders, and without a final order, an appellate court

has no jurisdiction.’ ” State v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d

23, ¶ 28, quoting Supportive Solutions, L.L.C. v. Electronic Classroom of Tomorrow,
Ross App. No. 13CA3388                                                                    10


137 Ohio St.3d 23, 2013-Ohio-2410, 997 N.E.2d 490, ¶ 10. An order of a court is a final

appealable order only if the requirements of both R.C. 2505.02 and, if applicable, Civ.R.

54(B), are met. Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 541 N.E.2d

64 (1989), syllabus. The judgment appealed here, which grants an easement by

prescription and estoppel to the Salyers over Pinkerton’s property and determines the

usage and dimensional limitations of the easement, is a final order under R.C.

2505.02(B)(1) because it affected a substantial right and determined the action.

       {¶21} But Civ.R. 54(B) applies in cases involving multiple claims or multiple

parties. It requires the court to make an express determination that there is no just

reason for delay to make an order adjudicating fewer than all the claims or the rights of

fewer than all the parties appealable. State ex rel. Scruggs v. Sadler, 97 Ohio St.3d 78,

2002-Ohio-5315, 776 N.E.2d 101, ¶ 6-8. The trial court’s judgment did not expressly

resolve Pinkerton’s trespass claim or the Salyers’ implied-easement and easement-by-

necessity counterclaims, although the trial court and the parties appeared to resolve

them at the conclusion of the trial. See State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-

2966, 16 N.E.3d 588, ¶ 83, quoting Schenley v. Kauth, 160 Ohio St. 109, 113 N.E.2d

625 (1953), paragraph one of the syllabus (“ ‘A court of record speaks only though its

journal and not by oral pronouncement or mere written minute or memorandum’ ”). Nor

did the trial court make an express determination in its judgment that there was no just

reason for delay.

       {¶22} Nevertheless, “ ‘even though all the claims or parties are not expressly

adjudicated by the trial court, if the effect of the judgment as to some of the claims is to

render moot the remaining claims or parties, then compliance with Civ.R. 54(B) is not
Ross App. No. 13CA3388                                                                  11

required to make the judgment final and appealable.’ ” State ex rel. A & D Ltd.

Partnership v. Keefe, 77 Ohio St.3d 50, 57, 671 N.E.2d 13 (1996), quoting Gen. Acc.

Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 21, 540 N.E.2d 266 (1989); see also

State ex rel. Whitehead v. Sandusky Cty. Bd. of Commrs., 133 Ohio St.3d 561, 2012-

Ohio-4837, 979 N.E.2d 1193, ¶ 14. Because it recognized the Salyers’ right-of-way

over Pinkerton’s property, and granted an easement by prescription and by estoppel,

the trial court in effect denied or rendered moot the parties’ remaining claims of trespass

and easement by implication and necessity. Thus, we have jurisdiction to address the

merits of the parties’ assignments of error.

                                     B. Cross-Appeal

                                1. Prescriptive Easement

       {¶23} Pinkerton asserts that the trial court’s determination that the Salyers have

a prescriptive easement is against the manifest weight of the evidence. “Ordinarily a

party seeking a prescriptive easement ‘must demonstrate clear and convincing

evidence of open, notorious, adverse, and continuous use of the easement for a 21-

year period.’ ” Queen v. Hanna, 2012-Ohio-6291, 985 N.E.2d 929, at ¶ 37 (4th Dist.),

quoting Dunn, 4th Dist. Pike No. 10CA806, 2011-Ohio-4253, at ¶ 77. Pinkerton does

not dispute that the Salyers established the open, notorious, and continuous use of the

easement for the 21-year period by the required clear and convincing evidence.

       {¶24} Instead, he claims that the Salyers did not establish that their use of the

access trail on the Pinkerton’s property was adverse. “Use of a claimed prescriptive

easement is ‘adverse’ when it is without the permission of, or inconsistent with the rights

of the true property owner.” Dunn at ¶ 91, citing Crawford v. Matthews, 4th Dist. Scioto
Ross App. No. 13CA3388                                                                    12


No. 97CA2555, 1998 WL 720734, *3 (Sept. 21, 1998). “Adversity or hostility does not

require there to be a heated dispute between the legal owner and prescriptive claimant.”

Dunn at ¶ 91. “Whether a use is adverse or permissive depends upon the facts of each

particular case.” Crawford at *3.

       {¶25} Pinkerton claims that John Salyers, Jr. admitted that his family’s use of the

trail was permissive and thus non-adverse when Salyers testified that people told him

and his parents about the right-of-way upon their purchase of the 46-acre tract. He also

relies on testimony by the Salyers’ neighbors and invitees that they assumed John

Salyers Jr. was authorized to use the right-of-way so as to permit them to use it. And

Pinkerton further cites Mead’s use of a locked gate to block access to the trail, while

allowing John Salyers, Jr. to use his lock and key to access the right-of-way.

       {¶26} None of the cited testimony indicates that Pinkerton’s predecessors in title

to the 82-acre tract gave the Salyers permission to cross it. Instead, the evidence can

reasonably be interpreted to mean that the owners of the Pinkerton tract recognized the

Salyers’ right to an easement over their property. Indeed, Mead contacted John

Salyers, Jr. to ask for his permission to put posts and a cable at the beginning of the

right-of-way; Salyers did not ask Mead for its permission to do so. John Salyers, Jr.’s

testimony that “because nobody stopped him, he had permission” implies that no one

gave him permission.

       {¶27} As one commentator has observed, “[a]dversity, when it comes to Ohio, is

not a difficult test.” Kuehnle and Levey, Ohio Real Estate Law, Section 26:15 (2014).

“Use of a right-of-way over another’s property to access one’s own land constitutes

adverse use.” McDowell v. Zachowicz, 11th Dist. Ashtabula No. 2010-A-0033, ¶ 28;
Ross App. No. 13CA3388                                                                    13

Pavey v. Vance, 56 Ohio St. 162, 46 N.E. 898 (1897), paragraph one of the syllabus

(“Where one uses a way over the land of another without permission as a way incident

to his own land, and continues to do so with the knowledge of the owner, such use is, of

itself, adverse, and evidence of a claim of right; and, where the owner of the servient

estate claims that the use was permissive, he has the burden of showing it”).

       {¶28} The record is replete with evidence that the Salyers used the right-of-way

across the Pinkerton property to access their property. Having established a prima

facie case that their use was adverse, it was then incumbent upon Pinkerton to show

that their use was instead permissive. Pavey at paragraph one of the syllabus; Harris v.

Dayton Power & Light, 2d Dist. Montgomery No. 25636, 2013-Ohio-5234, ¶ 13, quoting

Goldberger v. Bexley Properties, 5 Ohio St.3d 82, 84, 448 N.E.2d 1380 (1983) (“If the

claimant makes a prima facie case, then the burden shifts to the owner of the servient

property to show that the use was permissive and, therefore, not adverse”).

       {¶29} Finally, the fact that Pinkerton gave John Salyers, Jr. permission to use

the right-of-way to access his adjoining tract in 2011 is irrelevant because by that time,

the Salyers’ interest in the prescriptive easement had been perfected. Harris at ¶ 13,

citing Wood v. Village of Kipton, 160 Ohio App.3d 591, 2005–Ohio–1816, 828 N.E.2d

173, ¶ 22–24 (9th Dist.) (“once the claimant's use of the property has been open,

notorious, and adverse to the servient property owner for a continuous period of 21

years, it is irrelevant whether the servient property owner subsequently grants the

claimant permission to use the property”).

       {¶30} The trial court’s determination that the Salyers established that their use

was adverse to Pinkerton and his predecessors was not against the manifest weight of
Ross App. No. 13CA3388                                                                  14


the evidence. The trial court did not clearly lose its way and create such a manifest

miscarriage of justice so as to require reversal. We overrule Pinkerton’s first

assignment of error.

                                2. Easement by Estoppel

       {¶31} In his second assignment of error Pinkerton contends that the trial court

erred in granting the Salyers an easement by estoppel. Again Pinkerton claims that the

trial court’s judgment is against the manifest weight of the evidence. This contention is

also meritless.

       {¶32} A landowner cannot remain silent and permit another to spend money in

reliance on a purported easement, when in justice and equity the landowner should

have asserted his conflicting rights. If he fails to object, under these circumstances the

landowner is estopped to deny the easement. See Jenkins v. Guy, 4th Dist. Lawrence

No. 03CA34, 2004-Ohio-4254, ¶ 20, and cases cited therein; see also Restatement of

the Law, Property 3d (2000) 143 (“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 * * * 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 that belief”).

       {¶33} Pinkerton’s predecessors in interest permitted the Salyers to spend money

to gravel and maintain the easement over their 82-acre tract without objection. If

Pinkerton’s predecessors believed that the right-of-way was their property and that the

Salyers used it with mere license or permission, they had a duty to make that fact
Ross App. No. 13CA3388                                                                        15

known to the Salyers and their invitees through the years, but they did not. See White

v. Emmons, 4th Dist. Scioto No. 11CA3438, 2012-Ohio-2024, ¶ 16 (upholding a trial

court’s finding of an easement by estoppel under comparable circumstances). Under

these circumstances, the trial court’s determination that the Salyers had established an

easement by estoppel by clear and convincing evidence was not against the manifest

weight of the evidence. Moreover, even if it was erroneous, it could only be harmless

error in light of our affirmance of the grant of a prescriptive easement. We overrule

Pinkerton’s second assignment of error.

       {¶34} Pinkerton’s cross-appeal has no merit.

                                         C. Appeal

                                     Use of Easement

       {¶35} In their appeal the Salyers claim that the trial court erred in limiting their

use of the easement solely for hunting, farming, and agricultural purposes. An

easement holder may not increase the burden upon the servient estate by engaging in a

new and additional use of the easement. Hawkins v. Creech, 4th Dist. Adams No.

12CA938, 2013-Ohio-1318, ¶ 9, citing Centel Cable Television Company of Ohio, Inc. v.

Cook, 58 Ohio St.3d 8, 567 N.E.2d 1010 (1991); Hurst v. Baker, 4th Dist. Gallia No.

99CA14, 2000 WL 1206533, *5 (Aug. 22, 2000) (“An owner of an easement has no right

to increase the burden of the easement or to materially enlarge it”). Because the

servitude created by adverse use arises from the failure of the landowner to take steps

to halt the adverse use, interpretation of the prescriptive servitude focuses on the

reasonable expectations of the landowner. The relevant inquiry is what a landowner in

the position of the owner of the servient estate should reasonably have expected to lose
Ross App. No. 13CA3388                                                                   16

by failing to interrupt the adverse use before the prescriptive period had run.’ ” Dunn,

4th Dist. Pike No. 13CA837, 2013-Ohio-5116, at ¶ 18, quoting 1 Restatement of the

Law 3d, Property (Servitudes), Section 4.1, Comment h, at 502.

       {¶36} The trial court did not act in an arbitrary, unconscionable, or unreasonable

manner in limiting the use of the easement to its historical, primary uses of hunting,

farming, and other agricultural purposes. The Salyers contend that they should be able

to use the easement to access their property for any reasonable purpose. But a purpose

that is not consistent with their historical uses in accessing their 46.191-acre tract

would, by definition, be unreasonable. Given that these equitable easements are not

favored because of their confiscatory nature, the trial court did not abuse its

considerable discretion in limiting the easement. We overrule the Salyers’ first

assignment of error.

       {¶37} The Salyers also contend that the trial court erred in limiting the easement

to their private use. The Salyers misunderstand the trial court’s ruling. “A private right-

of-way easement may be used by the owner of the dominant tenement and the owner’s

family, tenants, servants, guests, and those transacting business with the dominant

tenement.” See Fruh Farms, Ltd. v. Holgate, 442 F.Supp.2d 470, 477 (N.D.Ohio 2006),

and authorities cited there. Therefore, the owners of the dominant tenement are not the

only persons who can use an access easement to their property—guests and invitees

can also. Id., citing Barker v. Contini, 5th Dist. Tuscarawas No. 93-AP-070050, 1994

WL 75676, *2 (Mar. 8, 1994), and Clement v. Fishler, 28 Ohio App. 392, 393, 162 N.E.

706 (6th Dist. 1927). Consequently, the Salyers’ guests and invitees are entitled to use

Salyers’ easement for the purposes specified by the trial court as long as their access
Ross App. No. 13CA3388                                                                   17


and use remains reasonable and does not unduly burden the Pinkerton’s land. The trial

court’s designation that the easement be for their private use merely distinguished the

easement from a public easement that would be accessible by the general public. We

overrule their second assignment of error.

                                     V. CONCLUSION

         {¶38} The trial court’s declaration that the Salyers have an easement by

prescription and estoppel over Pinkerton’s property to access their property is not

against the manifest weight of the evidence. In addition, the trial court did not abuse its

discretion in limiting the easement to its historical uses and to the Salyers. Because

neither the appeal nor the cross appeal have merit, we affirm the judgment of the trial

court.

                                                                 JUDGMENT AFFIRMED.
Ross App. No. 13CA3388                                                                  18


                                     JUDGMENT ENTRY


      It is ordered that the JUDGMENT IS AFFIRMED and that Appellants/Cross-
Appellant shall pay the costs.

      The Court finds there were reasonable grounds for this appeal and cross-appeal.

      It is ordered that a special mandate issue out of this Court directing the Ross
County Court of Common Pleas to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the date of
this entry.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Abele, J. & McFarland, A.J.: Concur in Judgment and Opinion.



                                  For the Court




                                  BY: ________________________________
                                      William H. Harsha, Judge




                                NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
