[Cite as Delaware Golf Club, L.L.C. v. Dornoch Estates Homeowners Assn., Inc., 2020-Ohio-880.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 DELAWARE GOLF CLUB, LLC                              :    JUDGES:
                                                      :
                                                      :    Hon. William B. Hoffman, P.J.
        Plaintiff-Appellant                           :    Hon. John W. Wise, J.
                                                      :    Hon. Patricia A. Delaney, J.
 -vs-                                                 :
                                                      :    Case No. 19 CAE 04 0027
                                                      :
 DORNOCH ESTATES                                      :
 HOMEOWNERS ASSOCIATION, INC.,                        :
 ET AL.                                               :
                                                      :
                                                      :
        Defendants-Appellees                          :    OPINION


CHARACTER OF PROCEEDING:                                  Appeal from the Delaware County Court
                                                          of Common Pleas, Case No. 16 CVH 08
                                                          0532

JUDGMENT:                                                 AFFIRMED



DATE OF JUDGMENT ENTRY:                                   March 5, 2020



APPEARANCES:

 For Plaintiff-Appellant:                                  For Defendants-Appellees:

 KARL H. SCHNEIDER                                         D. WESLEY NEWHOUSE
 TODD A. LONG                                              MICHEL JENDRETZKY
 21 E. State St., Suite 1700                               3366 Riverside Dr., Suite 103
 Columbus, OH 43215                                        Columbus, OH 43221

                                                           GREGORY H. MELIC
                                                           1160 Dublin Rd., Suite 400
                                                           Columbus, OH 43215
Delaware County, Case No. 19 CAE 04 0027                                              2


Delaney, J.

       {¶1} Plaintiff-Appellant Delaware Golf Club, LLC appeals the March 5, 2019

judgment entry of the Delaware County Court of Common Pleas.

                         FACTS AND PROCEDURAL HISTORY

                                Agreement and Easement

       {¶2} Defendant-Appellee Dornoch Estates Homeowners Association, Inc. is a

not-for-profit corporation managing Dornoch Estates, a planned unit development in

Delaware County. Dornoch Estates consists of approximately 393 single-family homes.

Plaintiff-Appellant Delaware Golf Club, LLC, operates an 18-hole golf course, located

adjacent and contiguous to Dornoch Estates.

       {¶3} In September 1997, Dornoch Estates obtained a “Permit to Install No. 01-

7240” from the Ohio Environmental Protection Agency for the installation and operation

of a wastewater treatment plant to serve the subdivision and the golf course. The permit

applied to a wastewater disposal system designed to serve an average daily hydraulic

flow of no more than 120,000 gallons. The engineering report submitted with the permit

application stated that an irrigation pumping station would pump the reclaimed water to

irrigate turf grasses on the golf course. The report stated that 144 total acres were

available for irrigation and 76 acres were required for irrigation.

       {¶4} The operator of the wastewater treatment plant was Defendant-Appellee

Scott Jamison dba Jamison Environmental.

       {¶5} In April 2007, Dornoch Estates entered into an “Agreement and Easement”

with Dornoch Development Ltd., the Golf Club’s predecessor-in-interest, regarding the
Delaware County, Case No. 19 CAE 04 0027                                              3


wastewater treatment plant. The dominant estate was Dornoch Estates and the servient

estate was the golf course property. The Agreement and Easement state in pertinent part:

      A. [Golf Club] (Grantor) is the owner of real estate located at 3329

      Columbus Pike, Delaware, Ohio, situated on the acreage described in

      “Exhibit A”, attached hereto “the Real Estate”, which property currently

      consists of the entire eighteen (18) hole golf course and real property and

      components related to its use as a golf course, and which property

      surrounds the sewage treatment plant owned and operated by the

      Association (Grantee) on the 1.016 acre tract described in “Exhibit B”

      attached;

      B. The clean, treated wastewater from the Association’s (Grantee’s) facility

      is a partial resource for irrigation of the Real Estate; and

      C. The Real Estate is an essential resource to the Association’s (Grantee’s)

      facility, providing a safe and sanitary means for disposal of the clean water

      outflow from the Association’s (Grantee’s) facility; and

      D. The Association’s (Grantee’s) facility is designed to prevent intrusion of

      the facility’s outflow into the nearby Olentangy River, and its design and

      operations have been approved by the Ohio Environmental Protection

      Agency; and

                                 Agreement and Grant

      NOW, THEREFORE, in consideration of their mutual promises, the parties

      agree as follows:
Delaware County, Case No. 19 CAE 04 0027                                                4


      1. Development (Grantor) hereby grants to Association (Grantee) an

      easement upon the Real Estate described in Exhibit “A” for the purpose of

      disposing clean, treated, outflow from Association’s (Grantee’s) treatment

      facility * * * which clean water shall be piped into the Real Estate lake, and,

      when needed, to the adjacent retention basin, * * *, to be distributed through

      the Real Estate irrigation system.

      ***

      3. This easement includes and Development (Grantor) agrees to accept the

      Association’s (Grantee’s) entire outflow of clean, treated water * * * as

      permitted by the Permit to Install No. 01-7240 originally issued effective

      September 29, 1997. * * *

      4. Development (Grantor) shall have the right to relocate on the Real Estate

      at Development’s (Grantor’s) cost with the consent of the Huntington

      National Bank, if it still possesses mortgages on the Real Estate, the

      pipelines originally installed for Association (Grantee) as needed to

      accommodate Development’s (Grantor’s) use of its property. * * * Nor shall

      such a relocation have a detrimental effect on spreading the clean water

      outflow to all portions of the Real Estate.

      ***

      8. Development (Grantor) covenants that it will detain, distribute, and apply

      the Association’s (Grantee’s) entire outflow upon the Real Estate as

      presently configured in compliance with the requirements of the Ohio
Delaware County, Case No. 19 CAE 04 0027                                                   5


       Environmental Protection Agency and the Permit to Install associated with

       the facilities accommodated hereby.

                             After-Easement Developments

       {¶6} In November 2012, Dornoch Estates submitted a “Land Application

Management Plan” to the OEPA for approval. The LAMP provided that “[t]he portion of

the course that is irrigated consists of approximately 144 acres, as described in Section

3.2 of this Plan.” The LAMP was approved by OEPA on December 5, 2013, “subject to

the condition of compliance with all applicable laws, rules, regulations and all the

conditions below and in Part I and/or Part II of this permit.” Dornoch Estates did not notify

the Golf Club that the 2012 LAMP was submitted or approved on December 5, 2013.

       {¶7} The Golf Club became aware that violations had occurred at the wastewater

treatment plant. The OEPA issued notices of violations for noncompliance to Dornoch

Estates in 2014 and 2015. The violations showed that improperly treated wastewater had

been discharged from the treatment plant and into the Golf Club’s lakes and retention

basin, then onto the golf course through the irrigation system. Dornoch Estates did not

notify the Golf Club of the violations.

       {¶8} In addition to the Agreement and Easement, Dornoch Estates allowed the

Golf Club to transport freshwater from a golf course surface pond (storm water pond) to

the pond that receives the treated wastewater (irrigation pond) through pipes that were

designed to transport wastewater. The parties operated under the arrangement since

2007, until Dornoch Estates began denying the Golf Club access to the pumps in 2016.

In 2017, the Golf Club purchased and installed a new pump. Dornoch Estates then
Delaware County, Case No. 19 CAE 04 0027                                             6


permitted the Golf Club to resume transporting fresh water through the wastewater

treatment facility pipes.

       {¶9} When the Golf Club became aware of the LAMP in early 2016, it requested

that Dornoch Estates submit an amendment to the LAMP reflecting that the portion of the

property that was irrigated consisted of only 76 acres, not 144 acres as represented in

the LAMP. Dornoch Estates refused.

       {¶10} On January 20, 2016, the Golf Club presented a concept plan to the City of

Delaware for the development of a portion of the golf course for mixed

residential/commercial use. The plan proposed a phase of development that would

reduce the irrigation area from the wastewater treatment plant to 76 acres.

       {¶11} In July 2016, the Golf Club became aware that a retaining wall on the

property of Dornoch Estates and adjacent to a golf cart path had collapsed. Dornoch

Estates had constructed the retaining wall to accommodate the installation of a road in

the subdivision. Dornoch Estates would not repair or replace the retaining wall.

                                      Civil Action

       {¶12} On August 30, 2016, the Golf Club filed a complaint with request for

permanent injunction against Dornoch Estates and Jamison (hereinafter “Dornoch

Estates”) in the Delaware County Court of Common Pleas. The Golf Club requested six

claims for relief: (1) permanent injunction to prevent Dornoch Estates from committing

additional violations and discharging untreated wastewater on the golf course property;

(2) termination and/or modification of the “Agreement and Easement” and LAMP; (3)

fraudulent concealment and fraud by omission; (4) negligence; (5) trespass; and (6)

declaratory judgment and request for mandamus based on the collapsed retaining wall.
Delaware County, Case No. 19 CAE 04 0027                                                   7


The majority of the Golf Club’s claims, and pertinent to this appeal, related to the required

amount of acreage for irrigation of the treated wastewater. The Golf Club argued only 76

acres were required for irrigation.

       {¶13} Dornoch Estates filed its answer and counterclaim on September 13, 2016.

In its counterclaim, Dornoch Estates argued the Golf Club engaged in abuse of process

by filing its lawsuit to pressure the parties to terminate and/or amend the Agreement and

Easement to reduce the acreage required to 76 acres so that the Golf Club could proceed

with its development plans.

                                  Amended Complaints

       {¶14} On September 14, 2016, the Golf Club filed its first amended complaint with

request for permanent injunction. The Golf Club added a seventh claim, requesting a

permanent injunction preventing Dornoch Estates from restricting access to water from

the storm water pond. The Golf Club also filed a motion for temporary restraining order

and preliminary injunction, which the trial court denied on September 20, 2016.

       {¶15} The Golf Club filed a motion for leave to file a second amended complaint

on October 4, 2016. Based on the trial court’s denial of its motion for temporary restraining

order and preliminary injunction, the Golf Club argued it suffered monetary damages for

the actions of Jamison and Dornoch Estates in limiting its access to the water in the storm

water pond. It raised four new claims: (7) breach of contract and tortious interference with

contractual relations; (8) breach of implied contract and tortious interference with

contractual relations; (9) breach of implied easement and tortious interference with

implied easement; and (10) request for permanent injunction to enjoin Dornoch Estates
Delaware County, Case No. 19 CAE 04 0027                                                 8


from restricting access to the water in the storm water pond. The trial court granted the

motion and the second amended complaint was filed on October 24, 2016.

       {¶16} On January 3, 2017, Dornoch Estates filed a motion for partial judgment on

the pleadings pursuant to Civ.R. 12(C). It argued the trial court should dismiss all of the

Golf Club’s claims in the second amended complaint, except for the fifth and sixth causes

of action, which sought damages for Dornoch Estates’ alleged trespass by discharging

untreated wastewater on to the golf course and declaratory judgment and injunction

regarding the collapsed retaining wall. Dornoch Estates next filed a motion to dismiss the

Golf Club’s second amended complaint, except the sixth cause of action, for lack of

subject matter jurisdiction. Dornoch Estates argued the trial court lacked subject matter

jurisdiction over the majority of the Golf Club’s claims because the exclusive remedy for

addressing alleged violations of Ohio’s water pollution laws was through the

administrative procedures set forth in R.C. Chapter 3745.

       {¶17} On May 1, 2017, the Golf Club filed a motion for leave to file a third amended

complaint pursuant to Civ.R. 15(A). The main purpose of the third amended complaint

was to assert two new claims. The eleventh claim related to an alleged sanitary sewer

overflow that occurred on March 20, 2017 and caused damage to the golf course property.

The twelfth claim set forth a specific request for declaratory judgment and reformation of

the Agreement and Easement related to the amount of acreage required on the golf

course for irrigation purposes. Dornoch Estates filed a memorandum contra and the Golf

Club replied.

       {¶18} On August 8, 2017, the trial court issued two judgment entries, the first

granting in part and denying in part Dornoch Estates’ motion for partial judgment on the
Delaware County, Case No. 19 CAE 04 0027                                                  9


pleadings and motion to dismiss for lack of subject matter jurisdiction and the second

denying the Golf Club’s motion for leave to file a third amended complaint.

       {¶19} The trial court first dismissed the Golf Club’s first claim for a permanent

injunction enjoining Dornoch Estates from committing additional violations and

discharging any untreated wastewater onto the golf course and the Golf Club’s second

claim to the extent that it sought a modification of the LAMP. The trial court next granted

the motion for partial judgment on the pleadings on the Golf Club’s second claim that the

Agreement and Easement should be modified to include additional terms. The trial court

found it was without authority to modify the Agreement and Easement. The trial court

further found Dornoch Estates was entitled to judgment on the pleadings as to the third,

fourth, seventh, eighth, and ninth claims. The Golf Club’s fifth (trespass), sixth

(declaratory judgment and request for mandamus based on the collapsed retaining wall),

and tenth (request for permanent injunction enjoining Dornoch Estates from restricting

access to water in the storm water pond) claims in the second amended complaint

remained pending before the trial court.

       {¶20} The trial court denied the Golf Club’s motion for leave to file a third

amended complaint. The trial court denied the Golf Club’s motion because it did not

establish that its proposed additional claims were supported by law. The Golf Club’s

claims in the proposed third amended complaint were similar to those raised in the second

amended complaint and dismissed by the trial court.

       {¶21} The Golf Club filed a motion for reconsideration of the trial court’s August 8,

2017 judgment entry denying its motion for leave to file a third amended complaint. The

motion specifically requested the trial court reconsider its denial of the request for
Delaware County, Case No. 19 CAE 04 0027                                                    10


declaratory judgment and reformation of the Agreement and Easement. Alternatively, the

Golf Club requested leave to add a claim for declaratory judgment that it had the right to

use its property in any manner that was not prohibited by the easement and did not

unreasonably interfere in the use of the easement. Upon examination of the Golf Club’s

more thoroughly argued motion, the trial court permitted the Golf Club to amend its

complaint. As to its argument that it should be permitted to add a claim for declaratory

judgment that it had the right to use its property in any manner, the trial court stated:

       Having determined that a court cannot redefine the dimensions of the

       agreement and easement, it is unclear to the Court what clarity will come

       from a declaration that Plaintiff can use its property in any manner not

       prohibited by law and in ways that do not unreasonably interfere with the

       easement. If Plaintiff believes, however, that such a declaration is

       necessary, the Court will allow Plaintiff to assert the claim in its amended

       complaint.

(February 26, 2018 Judgment Entry). The trial court also allowed the Golf Course to

amend the complaint to assert a claim for breach of the Agreement and Easement for the

sanitary sewer overflow. The third amended complaint was filed on March 7, 2018.

       {¶22} On May 31, 2018, the parties filed an agreed judgment entry that dismissed

the Golf Club’s sanitary sewer overflow claim.

                                   Summary Judgment

       {¶23} The Golf Club filed a motion for partial summary judgment on June 6, 2018.

Dornoch Estates filed a motion for summary judgment on July 16, 2018.
Delaware County, Case No. 19 CAE 04 0027                                               11


       {¶24} On November 6, 2018, the Golf Club filed a motion for the trial court to

dismiss without prejudice pursuant to Civ.R. 41(A)(2) its request for declaratory judgment

regarding the collapsed retaining wall. The Golf Club argued the claim was moot because

the local government determined it would replace the retaining wall. Dornoch Estates

opposed the motion.

       {¶25} On December 7, 2018, the trial court issued its judgment entry that ruled

upon the Golf Club’s motion for partial summary judgment and motion to dismiss one

claim and Dornoch Estates’ motion for summary judgment. The Golf Club’s remaining

claims before the trial court were: (1) breaches of the Agreement and Easement as to

alleged violations of the OEPA requirements; (2) trespass; (3) declaratory judgment and

request for mandatory injunction related to the collapsed retaining wall; (4) breach of

contract related to the Golf Club’s access to the storm water pond; (5) breach of implied

contract related to the Golf Club’s access to the storm water pond; (6) breach of implied

easement related to the Golf Club’s access to the storm water pond; (7) permanent

injunction to enjoin Dornoch Estates from restricting access to the storm water pond; and

(8) declaratory judgment regarding the Agreement and Easement and the Golf Club’s

right to use the property in any manner that was not prohibited by the easement and did

not unreasonably interfere in the use of the easement. The counterclaim for abuse of

process brought by Dornoch Estates also remained.

       {¶26} The Golf Club argued it was entitled to judgment as a matter of law on its

claims for breach of the Agreement and Easement and trespass and Dornoch Estates’

claim for abuse of process. Dornoch Estates moved for summary judgment on all of the
Delaware County, Case No. 19 CAE 04 0027                                                  12


Golf Club’s remaining claims, except for the Golf Club’s request for declaratory judgment

regarding the Agreement and Easement and its rights to use the property.

       {¶27} The trial court granted summary judgment in favor of Dornoch Estates on

the Golf Club’s claims for (1) declaratory judgment as to the collapsed retaining wall, also

denying the Golf Club’s motion to dismiss that claim; (2) breach of the Agreement and

Easement as they related to violations of the OEPA requirements; and (3) permanent

injunction to enjoin Dornoch Estates from restricting access to the storm water pond. The

trial court found in favor of the Golf Club on its claim for trespass, awarding the Golf Club

nominal damages in the amount of $150.00. Finally, the trial court determined there were

genuine issues of material fact on Dornoch Estates’ claim for abuse of process and the

Golf Club’s claims for breach of contract, breach of implied contract, and breach of implied

easement related to the storm water pond access. The matter was set for a bench trial

on the remaining claims.

                                       Bench Trial

       {¶28} In January 2019, the parties presented the remaining claims to the trial court

at a three-day bench trial. 11 witnesses and numerous exhibits were presented. The

following matters were before the trial court: (1) declaratory judgment regarding the

Agreement and Easement and the Golf Club’s right to use the property in any manner

that was not prohibited by the easement and did not unreasonably interfere in the use of

the easement; (2) breach of contract related to the Golf Club’s access to the storm water

pond; (3) breach of implied contract related to the Golf Club’s access to the storm water

pond; (4) breach of implied easement related to the Golf Club’s access to the storm water

pond; and (5) Dornoch Estates’ claim for abuse of process.
Delaware County, Case No. 19 CAE 04 0027                                                   13


       {¶29} The trial court ruled on the remaining claims via judgment entry filed March

5, 2019. The trial court first found the Golf Club established Dornoch Estates breached

the contract when it did not allow the Golf Club to access the storm water pond. It awarded

the Golf Club $54,627.75 in damages. Because the Golf Club requested the same relief

in its claims for breach of implied contract and breach of implied easement, the trial court

found those claims moot. The trial court next found that the Golf Club was not entitled to

declaratory judgment that would alter the terms of the Agreement and Easement. In its

arguments, the Golf Club asserted that a minimum of 76 acres of land was needed to

fulfill the purpose of the easement, supported by scientific evidence presented at trial.

Dornoch Estates alternatively relied on the unambiguous terms of the Agreement and

Easement, arguing the easement applied to the entire golf course property. The trial court

agreed the evidence presented showed that the treated wastewater could be safely

discharged onto a land area less than 144 acres. The trial court found it was bound by

the unambiguous terms of the Agreement and Easement, which stated that the easement

applied to the entire 18-hole golf course. Finally, the trial court found the evidence did not

support Dornoch Estates’ claim for abuse of process.

                                          Appeal

       {¶30} The Golf Club filed a notice of appeal on April 4, 2019.

       {¶31} On April 16, 2019, Dornoch Estates filed a motion for leave to file a delayed

appeal and notice of cross appeal. The Golf Club responded to the motion and Dornoch

Estates replied. We denied the motion for leave to file a delayed appeal on May 6, 2019.

       {¶32} On May 17, 2019, Dornoch Estates filed a motion to deem its cross appeal

timely filed. On May 21, 2019, Dornoch Estates filed a motion for extension of time to file
Delaware County, Case No. 19 CAE 04 0027                                                 14


its brief on cross appeal. The Golf Club responded to both motions in opposition. On May

29, 2019, we granted Dornoch Estates an extension to file their brief on cross appeal on

or before June 17, 2019. Dornoch Estates filed its brief on cross appeal on June 17, 2019.

        {¶33} On June 27, 2019, however, we issued a nunc pro tunc judgment entry

removing the words “cross appeal” from our judgment entry granting Dornoch Estates’

extension to file its brief. We issued a second judgment entry denying Dornoch Estates’

motion to deem the cross appeal timely filed. The Golf Club thereafter filed a motion to

strike the June 17, 2019 brief. On July 15, 2019, we granted the Golf Club’s motion to

strike the June 17, 2019 cross appeal brief. Dornoch Estates filed an appeal with the Ohio

Supreme Court of our July 15, 2019 judgment entry. The Ohio Supreme Court declined

to accept jurisdiction. On November 6, 2019, we denied a pending motion for

reconsideration of our June 27, 2019 judgment entry.

        {¶34} Accordingly, the only appeal before this Court is the appeal filed by the Golf

Club.

                                ASSIGNMENT OF ERROR

        {¶35} The Golf Club raises one Assignment of Error:

        {¶36} “THE TRIAL COURT ERRED WHEN IT FAILED TO PROVIDE

DECLARTORY         RELIEF.    JUDGMENT       ENTRY      ANNOUNCING        THE    VERDICT

FOLLOWING THE JANUARY 2019 TRIAL AT 5-11 (MAR. 5, 2019) (“ORDER”); THIRD

AMENDED COMPLAINT WITH REQUEST FOR PERMANENT INJUNCTIVE RELIEF AT

¶ 67-80.”
Delaware County, Case No. 19 CAE 04 0027                                                   15


                                        ANALYSIS

       {¶37} The Golf Club argues the trial court erred when it found in favor of Dornoch

Estates on its request for declaratory judgment concerning the Golf Club’s use of the golf

course property and the interpretation of the Agreement and Easement. We disagree.

                                   Standard of Review

       {¶38} We review a trial court’s determination of matters of law in a declaratory

judgment action under a de novo standard of review. Arnott v. Arnott, 132 Ohio St.3d 401,

2012-Ohio-3208, 972 N.E.2d 586, ¶ 13. 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. Cliffs and Creeks, LLC. v. Swallie, 2018-Ohio-5410, 128

N.E.3d 825, ¶ 12 (7th Dist.). The trial court as the trier of fact, however, has the advantage

of observing the witnesses at trial and assessing their credibility. As to our consideration

of the trial court’s findings of fact, we defer to the trial court. Brown v. Brown, 2017-Ohio-

8938, 102 N.E.3d 72, ¶ 20 (3rd Dist.). A reviewing court will not disturb the trial court’s

decision if it is supported by competent, credible evidence. Cliffs and Creeks, 2018-Ohio-

5410, ¶ 12 citing Bayes v. Toledo Edison Co., 6th Dist. Nos. L–03–1177, L–03–1194,

2004-Ohio-5752, 2004 WL 2426234, ¶ 69; Gans v. Andrulis, 11th Dist. No. 99-P-0118,

2001 WL 530490, *4-5 (May 18, 2001); Munchmeyer v. Burfield, 4th Dist. No. 95CA7,

1996 WL 142579, *3 (Mar. 26, 1996); Murray v. Lyon, 95 Ohio App.3d 215, 219, 642

N.E.2d 41 (9th Dist.1994). See also Andrews v. Columbia Gas Transmission Corp., 544

F.3d 618, 624 (6th Cir.2008).
Delaware County, Case No. 19 CAE 04 0027                                                16


                                   Express Easement

       {¶39} An easement has been defined as an interest in the land of another created

by prescription or express or implied grant, which entitles the owner of the easement to a

limited use of the land in which the interest exists. Myers v. McCoy, 5th Dist. Delaware

No. 2004CAE07059, 2005-Ohio-2171, 2005 WL 1038871, ¶ 16 citing Alban v. R.K.

Company, 15 Ohio St.2d 229, 198, 239 N.E.2d 22 (1968). The owner of the easement is

referred to as the dominant estate (Dornoch Estates) and the land in which the interest

exists is called the servient estate (Golf Club). Id. When an easement is granted by an

express grant, the extent and limitations upon the dominate estate's use of the land

depends upon the language of the granting instrument. Id. The easement at issue here

is an express easement as stated in the Agreement and Easement.

       {¶40} The grant of an easement includes the grant of all things necessary for the

dominant estate to use and enjoy the easement. Myers v. McCoy, 5th Dist. Delaware No.

2004CAE07059, 2005-Ohio-2171, 2005 WL 1038871, ¶ 17 citing Day, Williams &

Company v. RR. Company, 41 Ohio St.3d 392 (1884). Thus, in determining the nature

and extent of an easement, the court must construe the easement in a manner permitting

the dominant estate to carry out its purpose. Alban, supra.

       {¶41} 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. Hemmelgarn v. Huelskamp & Sons, Inc.,

3rd Dist. Shelby No. 17-19-07, 2019-Ohio-5298, 2019 WL 7049679, ¶¶ 12-13 citing

Lakewood Homes v. BP Oil, Inc., 3rd Dist. No. Hancock 5-98-29, 1999 WL 693152 (Aug.

26, 1999), citing Skivolocki v. East Ohio Gas Company, 38 Ohio St.2d 244, 313, 313
Delaware County, Case No. 19 CAE 04 0027                                                   17


N.E.2d 374 (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.

       {¶42} 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, 374 N.E.2d 146 (1978). A court abuses

its discretion if it alters an established easement or requires a party to accept an altered

easement in substitution of the original. Myers, 2005-Ohio-2171, ¶18 citing Munchmeyer

v. Burfield, 4th Dist. Washington No. 95–CA–7, 1996 WL 142579 (Mar. 26, 1996),

citations deleted.

       {¶43} If there is no specific delineation of the easement, or if the document is

ambiguous, the court must then look to the circumstances surrounding the transaction in

order to determine the intent of the parties. Hemmelgarn, 2019-Ohio-5298, ¶ 13 citing

Murray v. Lyon, 95 Ohio App.3d 215, 219, 642 N.E.2d 41 (9th Dist. 1994). The language

of the easement, coupled with the surrounding circumstances, is the best indication of the

extent and limitations of the easement. Apel v. Katz, 83 Ohio St.3d 11, 17, 697 N.E.2d

600 (1998).

              Interpretation of the Terms of the Agreement and Easement

       {¶44} The trial court succinctly summarized the parties’ arguments in its March 5,

2019 judgment entry:

       Their disagreement about [the Agreement and Easement] is the crux of this

       case. * * * [T]he golf club has asked that I at least flesh out the parties’

       agreement-related rights and obligations in light of the evidence presented

       at trial. In the golf club’s view, just 76 acres of land is needed to fulfill the
Delaware County, Case No. 19 CAE 04 0027                                               18


       purpose of the easement, and the golf club has presented some evidence

       supporting that view. Dornoch in turn contends that the 2007 agreement –

       and in particular, the easement granted to Dornoch in the first paragraph of

       that agreement – applies to the entire golf course operated by the plaintiff

       golf club. (The golf course is variously described in documents presented

       at trial as 126 acres or 144 acres in size.) Dornoch opposes any lessening

       of the acreage to which its easement applies.

(Mar. 5, 2019 Judgment Entry).

       {¶45} At trial, Michael Sapp of the OEPA testified on behalf of the Golf Club. Sapp

had been involved in the development of the wastewater treatment plant since 1997. He

testified to the Permit to Install issued in 1997 and the appended engineering report.

According to Sapp, the engineering report was a summary document the engineer

reviewing the Permit to Install gave to the supervisor for background and basic design for

the system. He stated that in the appended report, the engineer calculated pursuant to

Bulletin 860 that 76 acres of land were required to apply the treated wastewater based

on the design flow of the wastewater treatment plant. Bulletin 860 was a publication

developed by the Ohio State University Agriculture Extension Office that contained the

design standards the OEPA uses to review permits to install application for land

application systems. Based on the design flow of the wastewater treatment plant, 76

acres were required to apply treated wastewater and 144 acres were provided. The

intervening LAMP did not change the minimum requirements as calculated by Bulletin

860.
Delaware County, Case No. 19 CAE 04 0027                                                 19


       {¶46} Dornoch alternatively relied upon the language of the Agreement and

Easement that described the easement as applying to “the entire eighteen (18) golf

course” and referred to the Permit to Install and appended report which described the golf

course property as 144 and/or 126 acres. Sapp testified that the Permit to Install did not

refer to 76 acres or require 76 acres; the only reference to 76 acres was in the attached

engineering report. He also stated there were advantages to having more acres than the

minimum available because it better protected surface and ground water. Additional

acreage also provided operational flexibility.

       {¶47} The trial court ultimately found the terms of the Agreement and Easement

were clear and unambiguous as to the dimensions and nature of the easement. It found

that while the scientific evidence presented by the Golf Club supported its argument that

only 76 acres were necessary to safely discharge the treated wastewater, the terms of

the Agreement and Easement obligated the Golf Club to make the entire golf course

available to Dornoch for the purpose of the easement, to safely discharge the treated

wastewater. If it found that 76 acres were permissible under the Agreement and

Easement, the trial court stated it would be impermissibly modifying the clear language

of the easement. The trial court therefore found in favor of Dornoch Estates on the Golf

Club’s request for declaratory judgment.

       {¶48} In its appeal, the Golf Club maintains the trial court erroneously failed to

consider its request for declaratory judgment. Upon our review of the trial court’s March

5, 2019 judgment, we find the trial court considered the Golf Club’s request for declaratory

judgment and found in favor of Dornoch Estates as a matter of law. The trial court found

the Golf Club was not entitled to declaratory judgment that 76 acres for discharge of the
Delaware County, Case No. 19 CAE 04 0027                                               20


treated wastewater was permissible because the terms of the Agreement and Easement

required the use of the entire golf course property.

       {¶49} The Golf Club cites the following statement of law in support of its argument

that its planned development does not unreasonably interfere with the easement and the

easement does not expressly limit the Club’s right to develop the golf course property:

“Because all residual rights remain in the possessory or servient estate, the servient

landowner may make any use of his property that does not ‘unreasonably interfere’ with

easement holder's use of the easement, unless the easement agreement provides

otherwise. Watson v. Caldwell Hotel, LLC, 2017-Ohio-4007, 91 N.E.3d 179, ¶ 24 (7th

Dist.) citing Hunker v. Whitacre–Greer Fireproofing Co., 155 Ohio App.3d 325, 2003-

Ohio-6281, 801 N.E.2d 469, ¶ 30 (7th Dist.) citing 1 Restatement of the Law 3d, Property,

Section 4.9, at 581–582 (2000). The issue in this case is whether the “easement

agreement provides otherwise.”

       {¶50} The Agreement and Easement is an express easement and we use the

ordinary rules of contract construction so as to carry out the intent of the parties as

demonstrated by the language in the contract. The Agreement and Easement states the

purpose of the easement:

       A. [Golf Club] (Grantor) is the owner of real estate located at 3329

       Columbus Pike, Delaware, Ohio, situated on the acreage described in

       “Exhibit A”, attached hereto “the Real Estate”, which property currently

       consists of the entire eighteen (18) hole golf course and real property and

       components related to its use as a golf course, and which property

       surrounds the sewage treatment plant owned and operated by the
Delaware County, Case No. 19 CAE 04 0027                                                 21


       Association (Grantee) on the 1.016 acre tract described in “Exhibit B”

       attached;

       B. The clean, treated wastewater from the Association’s (Grantee’s) facility

       is a partial resource for irrigation of the Real Estate; and

       C. The Real Estate is an essential resource to the Association’s (Grantee’s)

       facility, providing a safe and sanitary means for disposal of the clean water

       outflow from the Association’s (Grantee’s) facility; and

       D. The Association’s (Grantee’s) facility is designed to prevent intrusion of

       the facility’s outflow into the nearby Olentangy River, and its design and

       operations have been approved by the Ohio Environmental Protection

       Agency; and

       {¶51} In order to effectuate the purpose of the easement, the parties agreed to

the following:

       1. Development (Grantor) hereby grants to Association (Grantee) an

       easement upon the Real Estate described in Exhibit “A” for the purpose of

       disposing clean, treated, outflow from Association’s (Grantee’s) treatment

       facility * * * which clean water shall be piped into the Real Estate lake, and,

       when needed, to the adjacent retention basin, * * *, to be distributed through

       the Real Estate irrigation system.

       ***

       3. This easement includes and Development (Grantor) agrees to accept the

       Association’s (Grantee’s) entire outflow of clean, treated water * * * as
Delaware County, Case No. 19 CAE 04 0027                                                 22


       permitted by the Permit to Install No. 01-7240 originally issued effective

       September 29, 1997. * * *

       ***

       8. Development (Grantor) covenants that it will detain, distribute, and apply

       the Association’s (Grantee’s) entire outflow upon the Real Estate as

       presently configured in compliance with the requirements of the Ohio

       Environmental Protection Agency and the Permit to Install associated with

       the facilities accommodated hereby.

       {¶52} The Permit to Install referred to in the Agreement and Easement was issued

by the OEPA to Dornoch Estates on September 29, 1997, for the installation and

operation of a wastewater treatment plant to serve the subdivision and the golf course.

The permit applied to a wastewater disposal system designed to serve an average daily

hydraulic flow of no more than 120,000 gallons. The engineering report, appended to the

Permit to Install, stated in pertinent part:

       Irrigation: The average estimated irrigation season is 245 days. The

       irrigation pumping station will be designed with a capacity of 1240 gpm. The

       reclaimed water will be used to irrigate turf grasses on the golf course. 144

       total acres are available for irrigation with an average weekly irrigation rate

       of 0.32 inches per week. * * * The irrigation area required as calculated

       using Bulletin 860 is 76 acres. * * *

       Summary of WWRU System: The design of the WWRU system for the

       Tartan Fields Golf Community adheres to the minimum requirements set

       forth in Bulletin 860, Reuse of Reclaimed Wastewater Through Irrigation for
Delaware County, Case No. 19 CAE 04 0027                                                23


       Ohio Communities. The overall design has been generally conservative

       with regards to storage time (139 days rather than 120 days) and the

       amount of acreage available for WWRU application (76 acres required and

       144 acres provided). This conservative approach should allow for good

       flexibility in the overall operation of the WWRU system.

       {¶53} The language of the Agreement and Easement describes the dimensions

of the easement necessary to effectuate the purpose of the easement to distribute the

treated wastewater and protect ground and surface water. First, the Agreement and

Easement describes the Golf Club property in Paragraph A as “situated on the acreage

described in “Exhibit A”, attached hereto ‘the Real Estate’, which property currently

consists of the entire eighteen (18) hole golf course and real property and components

related to its use as a golf course.” The Agreement and Easement describes the “Real

Estate” as an entire 18-hole golf course; it does not state the property in question is 76,

126, or 144 acres. Second, the “Real Estate”, the 18-hole golf course, was stated to be

necessary for the purpose of the easement to provide irrigation for the “Real Estate” and

a safe and sanitary means for disposal of the treated wastewater. Third, the Agreement

and Easement effectuates the purpose of the easement by granting Dornoch Estates an

easement upon the “Real Estate” described in Paragraph A, which stated the “Real

Estate” was an “entire eighteen (18) hole golf course.” Again, there is no reference in the

description of the easement as to the acreage, either 76 or 144 acres. Fourth, the Permit

to Install, noted in the Agreement and Easement, does not make any reference to acreage

necessary for land application of the treated wastewater. The appended engineering

report states that 76 acres is the calculated acreage required for land application of the
Delaware County, Case No. 19 CAE 04 0027                                                    24


treated wastewater, but it also states that 144 acres is provided, allowing for operational

flexibility. The 144 acres is the entire golf course property. The description of the property,

purpose of the easement, description of the easement, and the language of the permit to

install clearly set the dimensions of the easement as the “entire eighteen (18) hole golf

course.”

       {¶54} The Golf Club argued before the trial court and on appeal that making 76

acres available to Dornoch Estates for the land application of its treated wastewater would

not unreasonably interfere with Dornoch’s use of the easement. The trial court, however,

found the Agreement and Easement unambiguously provided otherwise, requiring it to

deny the Golf Club’s request for declaratory judgment. Upon our de novo review of the

request for declaratory judgment based on the language of the Agreement and Easement,

we agree with the trial court that its unambiguous terms require the entire golf course

property as described by the Agreement and Easement be available to effectuate the

purpose of the Agreement and Easement. Any modification by the trial court of the

delineation of the easement as specified in the Agreement and Easement would be an

impermissible alteration of the terms by the trial court.

       {¶55} The Golf Club’s sole Assignment of Error is overruled.
Delaware County, Case No. 19 CAE 04 0027                                       25


                                 CONCLUSION

      {¶56} The judgment of the Delaware County Court of Common Pleas is affirmed.

By: Delaney, J.,

Hoffman, P.J. and

Wise, John, J., concur.
