[Cite as Whitehair v. Stiers, 2016-Ohio-348.]


                                        COURT OF APPEALS
                                    GUERNSEY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



JACK WHITEHAIR                                  :    JUDGES:
                                                :    Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellant                     :    Hon. W. Scott Gwin, J.
                                                :    Hon. William B. Hoffman, J.
-vs-                                            :
                                                :
JOSH STIERS, ET AL.                             :    Case No. 15-CA-18
                                                :
        Defendants-Appellees                    :    OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 13-CV-482




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    January 29, 2016




APPEARANCES:

For Plaintiff-Appellant                              For Defendants-Appellees

FREDERICK A. SEALOVER                                RYAN H. LINN
45 North Fourth Street                               50 North Fourth Street
P.O. Box 2910                                        P.O. Box 1030
Zanesville, OH 43702-2910                            Zanesville, OH 43702-1030
Guernsey County, Case No. 15-CA-18                                                     2

Farmer, P.J.

      {¶1}     On August 15, 2013, appellees, Josh and Jenny Stiers, granted appellant,

Jack Whitehair, and his late wife Joan, a twenty-five foot right of way for ingress and

egress over their driveway and extending beyond their driveway and down an

embankment to a forty acre parcel owned by appellant.1 The right of way was the result

of a settlement between the parties of a prior action, Guernsey Case No. 12CV284. The

right of way was recorded on August 21, 2013 at Vol. 506, Page 2692 of the Official

Records of Guernsey County, Ohio.

      {¶2}     On September 15, 2013, appellant met with a contractor to discuss laying

gravel on the right of way so it could be passable in adverse weather. Appellee Josh

Stiers appeared and informed appellant he could not do so and an argument ensued.

      {¶3}     On or about October 11, 2013, appellant notified appellees that licensees,

hunters from New York, would be using the right of way. On October 12, 2013, appellee

Josh Stiers refused permission for the hunters to enter the right of way.

      {¶4}     On October 18, 2013, appellant and his late wife filed a complaint against

appellees, claiming breach of the peace for the two incidents on September 15, and

October 12, 2013, and material interference with their use of the right of way on those

same dates. They also sought a preliminary and permanent injunction to enforce the right

of way.

      {¶5}     On November 14, 2013, the complaint was amended to change "licensees"

to "invitees." On May 16, 2014, the complaint was again amended to add a claim for

declaratory judgment.



Mrs. Whitehair passed away on September 19, 2014.
1
Guernsey County, Case No. 15-CA-18                                                        3


       {¶6}   A bench trial was held on June 1, 2015. By findings of fact, conclusions of

law, and judgment entry filed June 4, 2015, the trial court determined the placing of gravel

over the right of way "would be an improvement, not repairing and placing the Right of

Way in to as good condition as it was prior to the damage or need for maintenance," as

at the time of the right of way recording, "there was no gravel on the Right of Way";

therefore, appellees did not breach the peace or materially interfere with appellant's use

of the right of way on September 15, 2013. As for the October 12, 2013 incident, the trial

court found appellant's notice to appellees "was sufficient reasonable notice at the time,"

but appellant "suffered no monetary damages." The trial court awarded appellant $1.00

"for interference with, and denial of access to, the Right of Way." The trial court granted

a permanent injunction requiring the parties to comply with the right of way agreement,

and ordered that a reasonable notice to appellees must be in writing and sent by ordinary

mail seven days prior to the date hunters would be accessing the right of way.

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

consideration. Assignments of error are as follows:

                                             I

       {¶8}   "THE TRIAL COURT ERRED BY FINDING THAT LAYING A BASE OF

SHALE AND GRAVEL ON THE PLAINTIFF-APPELLANT'S RIGHT-OF-WAY TO BE AN

IMPROVEMENT, RATHER THAN REPAIR."

                                             II

       {¶9}   "THE TRIAL COURT ERRED BY FINDING THAT A BREACH OF THE

PEACE AND MATERIAL INTERFERENCE WITH THE PLAINTIFF-APPELLANT'S USE

OF HIS RIGHT OF WAY ON SEPTEMBER 15, 2013 [DID NOT OCCUR]."
Guernsey County, Case No. 15-CA-18                                                           4


       {¶10} Appellant's two assignments of error challenge the determination made by

the trial court based upon the evidence presented.

       {¶11} On review for manifest weight, the standard in a civil case is identical to the

standard in a criminal case: a reviewing court is to examine the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of witnesses and

determine "whether in resolving conflicts in the evidence, the jury [or finder of fact] clearly

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

be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d 172, 175 (1st

Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52; Eastley v.

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179. In weighing the evidence, however, we

are always mindful of the presumption in favor of the trial court's factual findings. Eastley

at ¶ 21. "In a civil case, in which the burden of persuasion is only by a preponderance of

the evidence, rather than beyond a reasonable doubt, evidence must still exist on each

element (sufficiency) and the evidence on each element must satisfy the burden of

persuasion (weight)." Id. at ¶ 19.

       {¶12} In addition, the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182 (1990).

The trier of fact "has the best opportunity to view the demeanor, attitude, and credibility

of each witness, something that does not translate well on the written page." Davis v.

Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260.

                                               I

       {¶13} Appellant claims the trial court erred in determining the laying of gravel on

the right of way was an improvement rather than a repair. We disagree.
Guernsey County, Case No. 15-CA-18                                                        5


       {¶14} The subject right of way was granted to appellant and his late wife on August

15, 2013, for ingress and egress to their forty acre parcel. The right of way was the result

of a settlement between the parties of a prior action. The right of way was recorded on

August 21, 2013 at Vol. 506, Page 2692 of the Official Records of Guernsey County,

Ohio. The pertinent provision of the right of way states: "The actions of either Grantors

or Grantees cause damage or create the need for maintenance on the Right of Way, the

responsible party shall repair and place the Right of Way in to as good condition as it was

prior to the damage or need for maintenance."

       {¶15} In its June 4, 2015 decision, the trial court concluded the following at

Conclusions of Law Nos. 1 and 2:



              1. The Court concludes as a matter of law that adding a base of shale

       and gravel on the Right of Way would be an improvement, not repairing and

       placing the Right of Way in to as good condition as it was prior to the

       damage or need for maintenance. Although there may have been gravel

       on the Right of Way in the past, at the time the Right of Way Agreement

       was recorded, August 21, 2013, there was not gravel on the Right of Way.

       The Court must look at the conditions of the Right of Way at the time the

       Agreement was recorded.

              2. The Court concludes as a matter of law that as adding a base of

       shale and gravel on the Right of Way would be an improvement, not

       repairing and placing the Right of Way in to as good condition as it was prior

       to the damage or need for maintenance, Defendant did not breach the
Guernsey County, Case No. 15-CA-18                                                        6


       peace or materially interfere with Plaintiff's right to use the Right of Way on

       September 15, 2013.



       {¶16} The gravamen of this issue is the meaning of "maintenance" within the

parameters of the right of way agreement and the historical circumstances.

       {¶17} The testimony establishes a pathway for ingress and egress was graveled

from 1990 to 1995 for an oil company to access an oil well. T. at 55-57, 67, 102-104.

Appellees acquired the property in 2002/2003. T. at 143. By the time appellees granted

the right of way to appellant in August 2013, the gravel pathway beyond appellees'

driveway had eroded and was overgrown, and a gravel base was not visible and the

pathway was wet with ruts. T. at 29, 52-53, 57, 63, 68-69, 75, 80, 83-84, 89-90, 137, 144,

149-150, 156, 158, 162, 185. Appellant testified the pathway was not graveled in August

2013, he had never graveled it, and graveling had not been done since the 1990s. T. at

123, 126, 128. Appellant's exhibits included photographs demonstrating the pathway was

a rutted, grass pathway and at times muddy and wet. Plaintiff's Exhibits 4-10.

       {¶18} Because the language of the right of way is written in the present tense, we

concur with the trial court that the requirement that the right of way be repaired "in to as

good condition as it was prior to the damage or need for maintenance" refers to the

original condition of the right of way in August 2013. Nowhere in the right of way

agreement is there a provision permitting an improvement to the right of way.

       {¶19} A reading of the right of way agreement leads to the sole conclusion that

the agreement grants a very restrictive right of way. Therefore, the language must be
Guernsey County, Case No. 15-CA-18                                                        7


strictly construed. There is no doubt that using gravel to replenish the pathway is but an

improvement and not a technical repair.

       {¶20} Upon review, we find the trial court's analysis to be correct.

       {¶21} Assignment of Error I is denied.

                                             II

       {¶22} Appellant claims the trial court erred in determining a breach of the peace

and a material interference did not occur on September 15, 2013. We disagree.

       {¶23} On September 15, 2013, appellant and his contractor where on the right of

way to evaluate the pathway for graveling. T. at 99. A heated argument ensued between

appellant and appellee Josh Stiers over the right to gravel the right of way. Id. There

was no denial of access to appellant's property. The trial court's determination that a

breach of the peace and a material interference did not occur is substantially linked to the

findings in Assignment of Error I.

       {¶24} Upon review, we find the trial court did not err in its determination of the

September 15, 2013 incident.

       {¶25} Assignment of Error II is denied.
Guernsey County, Case No. 15-CA-18                                             8


      {¶26} The judgment of the Court of Common Pleas of Guernsey County, Ohio is

hereby affirmed.

By Farmer, P.J.

Gwin, J. and

Hoffman, J. concur.




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