[Cite as Blanton v. Eskridge, 2017-Ohio-8991.]


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

GORDAN BLANTON, et al.,          :
                                 :   Case No. 16CA3783
     Plaintiffs-Appellees,       :
                                 :
     vs.                         :   DECISION AND JUDGMENT
                                 :   ENTRY
GLENN ESKRIDGE, et al.,          :
                                 :
     Defendants-Appellants.      :   Released: 12/11/17
_____________________________________________________________
                           APPEARANCES:

T. Kevin Blume, The Blume Law Firm, Wheelersburg, Ohio, for Appellants.

Robert R. Dever, Bannon, Howland & Dever Co., L.P.A., Portsmouth, Ohio,
for Appellees.
_____________________________________________________________

Per Curiam.

        {¶1} Glenn and Donita Eskridge appeal from the trial court’s

judgment finding that Appellees, Gordan and Sandra Blanton, had

established an easement of necessity over a portion of the land owned by the

Eskridges. The Blanton and Eskridge properties are adjacent to one another

and are bordered on the west by State Route 52. The property currently

owned by the Blantons became landlocked in the 1960’s when the State of

Ohio appropriated approximately eight acres from the Blantons’

predecessors in interest and built a new limited access highway. On appeal,
Scioto App. No. 16CA3783                                                     2

Appellants contend the trial court erred in finding that Appellees had

established an easement by necessity over their real property. Because we

conclude that Appellees failed to prove all of the required elements

necessary to establish an easement of necessity, Appellants’ sole assignment

of error is sustained. Accordingly, the judgment of the trial court is

reversed.

                                   FACTS

      {¶2} Appellees, Gordan and Sandra Blanton, filed an amended

complaint on December 9, 2015 claiming easements by both prescription

and necessity over a portion of land owned by Appellants, Glenn and Donita

Eskridge. Appellees and Appellants have property adjacent to one another

and both of their properties border on the west what is now U.S. Route 52,

which is a limited access highway that was constructed by the State of Ohio

in 1962. At the time the limited access highway was constructed, Appellees'

property was owned by Roy and Lula Ison. The record indicates that the

State of Ohio commenced appropriation proceedings against the Isons and

ultimately took approximately eight acres of their property for the

construction of the limited access highway. The Isons were compensated

approximately $2,000.00 for the land taken, and were compensated an

additional $12,900.00 for damage to the residue of their property.
Scioto App. No. 16CA3783                                                        3

Thereafter, the property was transferred to Orville and Glenna Ison, who

sold the property to Appellees on December 2, 2011.

      {¶3} Less than a year after Appellees purchased the property,

Appellants, through counsel, sent Appellees a cease and desist letter,

ordering Appellees to cease entering their property through Appellants'

property. The record reflects Appellees had been entering their property

through a strip of land on the western border of Appellants' property which

runs parallel to the limited access highway. It is this strip of land which

Appellees claim they have an easement, and which they contend consists of

an old roadbed historically used by their predecessors in interest to access

their land.

      {¶4} The matter was tried to the court on July 22 and September 7,

2016. Appellee Gordan Blanton testified, along with other residents of the

area, including Bill Waddell and Kenny Dyer. Appellee's brother Bob

Blanton also testified. Most of the testimony that was offered related to the

alleged existence of an old roadway Appellees claimed ran over Appellants'

property. The witnesses all also testified that the only way to access

Appellees' property was to cross Appellants' property. Appellants presented

witnesses as well, including Appellant Glenn Eskridge and licensed

surveyor, Loren Purdom. Appellants introduced testimony and exhibits
Scioto App. No. 16CA3783                                                        4

through Mr. Purdom indicating that the alleged roadway claimed to exist by

Appellees over Appellants' property does not exist and never existed

according to various maps and aerial photos ranging from 1930 to 2011, and

that the only access to Appellees' property was taken by the State of Ohio

during construction of the limited access highway in 1962. Appellants also

introduced testimony related to an easement they recently granted to Scioto

Water, Inc., to install a water line in the area in which Appellees' claim their

easement is located.

      {¶5} In their post-trial brief filed with the trial court, Appellees

abandoned their argument that they had established a prescriptive easement

and instead only claimed they had established an easement of necessity over

the land of Appellants, by virtue of their landlocked status. The trial court

ultimately agreed with Appellees, and granted judgment in favor of

Appellees. In its entry, the trial court found as follows:

      "The Court finds it's necessary that there be an easement of
      necessity over the land owned by the Eskridges. When Mr.
      Eskridge bought his land, it was reasonably foreseeable that
      there would be some access across his land for ingress and
      egress."

It is from this order that Appellants now bring their timely appeal, setting

forth one assignment of error for our review.
Scioto App. No. 16CA3783                                                       5

                         ASSIGNMENT OF ERROR

“I.   THE TRIAL COURT ERRED IN FINDING THAT THE
      BLANTON’S [SIC] HAD ESTABLISHED AN EASEMENT BY
      NECESSITY OVER THE ESKRIDGE’S REAL PROPERTY.”

                             LEGAL ANALYSIS

      {¶6} In their sole assignment of error, Appellants contend the trial

court erred in finding that Appellees had established an easement by

necessity over Appellants’ real property. Specifically, Appellants argue that

the trial court made no factual findings to support the claim of an easement

by necessity and that Appellees failed to establish all the elements necessary

to establish an easement by necessity, most importantly the first element,

which requires severance of unity of ownership. We agree.

      {¶7} The plaintiff bears the burden of proving an easement by clear

and convincing evidence. See Cadwallader v. Scovanner, 178 Ohio App.3d

26, 2008-Ohio-4166, 896 N.E.2d 748, ¶ 55; Vance v. Roa, 4th Dist.

Lawrence No. 99CA23, 2000 WL 1283075 (Sept. 7, 2000). “Clear and

convincing evidence” is evidence that will produce in the factfinder's mind a

firm belief or conviction as to the facts sought to be established. State v.

Eppinger, 91 Ohio St.3d 158, 164, 743 N.E.2d 881 (2001); State v. Schiebel,

55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990). It is considered a higher degree

of proof than a mere preponderance of the evidence, the standard generally
Scioto App. No. 16CA3783                                                        6

used in civil cases, but it is less stringent than the “beyond a reasonable

doubt” standard used in criminal trials. The standard of review for weight-

of-the-evidence issues, even where the burden of proof is clear and

convincing evidence, retains its focus upon the existence of “some

competent, credible evidence.” Id. at 74.

      {¶8} As set forth above, Appellees’ complaint and amended

complaint both alleged they had acquired a prescriptive easement as well as

an easement by necessity over Appellants’ land. However, in their post-trial

brief submitted to the trial court, it appears Appellees abandoned their claim

of a prescriptive easement and instead only alleged they had established an

easement of necessity. The trial court found Appellees had established an

easement of necessity and made no findings regarding a prescriptive

easement. Likewise, on appeal, Appellees simply contend they possess an

easement of necessity and make no argument related to a prescriptive

easement. As such, we limit our analysis to the question of whether

Appellees established the elements required for an easement of necessity.

      {¶9} As this Court explained in Fitzpatrick v. Palmer, 186 Ohio

App.3d 80, 2009-Ohio-6008, 926 N.E.2d 651, ¶ 22, “[a]n easement is an

interest in the land of another that entitles the owner of the easement to a

limited use of the land in which the interest exists.” Citing Parrett v. Penn
Scioto App. No. 16CA3783                                                      7

Cent. Corp., 4th Dist. Pickaway No. 86CA17, 1987 WL 14754 (July 27,

1987); citing Szaraz v. Consol. RR. Corp., 10 Ohio App.3d 89, 460 N.E.2d

1133 (9th Dist.1983). Easements may be created by specific grant,

prescription, or by implication that may arise from the particular set of facts

and circumstances. Fitzpatrick at ¶ 22; citing Campbell v. Great Miami

Aerie No. 2309, Fraternal Order of Eagles, 15 Ohio St.3d 79, 80, 472

N.E.2d 711 (1984); citing Yeager v. Tuning, 79 Ohio St. 121, 86 N.E. 657

(1908); Ciski v. Wentworth, 122 Ohio St. 487, 172 N.E. 276 (1930); and

Trattar v. Rausch, 154 Ohio St. 286, 95 N.E.2d 685 (1950).

      {¶10} Appellees’ claim they possess an easement of necessity over

Appellants’ land. An easement of necessity is an “implied grant.” Scrivner

v. Lore, 4th Dist. Scioto No. 98CA2568, 1999 WL 253551, *4. “ ‘An

implied easement or way of necessity is based upon the theory that without it

the grantor or grantee, as the case may be, cannot make use of his land.’ ”

Palmer at ¶ 35; quoting 17 American Jurisprudence 961, Section 48; Trattar

v. Rausch, 154 Ohio St. 286, 293, 95 N.E.2d 685 (1950). However,

“ ‘[e]asements implied of necessity are not favored because, like implied

easements generally, they are “in derogation of the rule that written

instruments shall speak for themselves.” ’ ” Palmer at ¶ 35; quoting Tiller v.

Hinton, 19 Ohio St.3d 66, 69, 482 N.E.2d 946 (1985); quoting Ciski v.
Scioto App. No. 16CA3783                                                        8

Wentworth, supra, at paragraph one of the syllabus. Further, as we observed

in Palmer, it has been stated that “ ‘necessity does not itself create a right of

way, but is said to furnish evidence of the grantor’s intention to convey a

right of way and, therefore, raises an implication of grant.’ ” Palmer at ¶ 35;

quoting American Jurisprudence and Trattar, supra.

      {¶11} “[S]tringent requirements must be met before an encumbrance

upon land will be implied.” Tiller at 70–71. In order to establish an

easement of necessity, Appellees were required to present clear and

convincing evidence on each of the following elements: “(1) that there is a

severance of the unity of ownership in an estate, (2) that before the

separation takes place, the use that gives rise to the easement must have been

so long continued and obvious or manifest as to show that it was meant to be

permanent, (3) that the easement is [strictly] necessary to the beneficial

enjoyment of the land granted or retained, and (4) that the servitude is

continuous as distinguished from a temporary or occasional use only.”

Cadwallader v. Scovanner, supra, at ¶ 15; citing Campbell v. Great Miami

Aerie No. 2309, Fraternal Order of Eagles, supra; see also Tiller at 69;

Trattar at paragraph eight of the syllabus; Ciski at the syllabus; Vance v.

Roa, supra. (stating easements that arise from necessity require a plaintiff to
Scioto App. No. 16CA3783                                                                                      9

prove “[c]ommon ownership of both the dominant and servient estate[s]”).1

Further, “[i]t is a well settled rule that a use must be continuous, apparent,

permanent and necessary to be the basis of an implied easement upon the

severance of the ownership of an estate.” Trattar at 292.

         {¶12} With regard to the severance of the unity of ownership

element, or unity of title requirement as it is also referred, this Court has

noted as follows in Watson v. Neff, 4th Dist. Jackson No. 08CA12, 2009-

Ohio-2062, ¶ 14:

         “The unity of title requirement accords with the principles of
         implied easements. Implied easements are easements read into a
         deed. ‘An implied easement is based upon the theory that
         whenever one conveys property he 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.’ Trattar, supra, at 291, 95 N.E.2d 685. In other
         words, implied easements are those easements that a reasonable
         grantor and grantee would have expected in the conveyance,
         and a court will read the implied easement into a deed where
         the elements of that implied easement exist. However, if there is
         no unity of title, there is no grantor who may give an easement
         to the grantee. It does not matter whether a reasonable grantor
         would have conveyed an easement or a reasonable grantee
         would have expected to receive an easement. A grantor simply
         cannot convey what is not possessed.”

In fact, it has been said that “ ‘[p]rior unity of ownership of both the

dominant and servient estate is the sine qua non for establishing an easement


1
 We note that the trial court did not apply this test, or any test, in its determination that Appellees had
established an easement of necessity over Appellants' property.
Scioto App. No. 16CA3783                                                                               10

by necessity.’ ” Moore v. Lighthizer, 5th Dist. Muskingham No. 01CA8,

2001-Ohio-1909, *2; citing Scrivner v. Lore, supra, at *4. Ultimately, in

Watson, this Court chose "to follow the longstanding requirement that we

stated in Vance[,]" which held "that a plaintiff must prove unity of title to

establish an easement by necessity." Watson at ¶ 15.

        {¶13} Here, Appellees presented no evidence of unity of title between

their property and Appellants’ property. The only comment Appellees made

with regard to the chain of title is that both Appellants’ and Appellees’

property originated from the French Grant.2 On the other hand, Appellants

introduced chains of title for each property demonstrating no common

ownership of the properties as far back as 1930. Further, Appellants

presented the testimony of Loren Purdom, a land surveyor licensed in the

State of Ohio, who stated that there was no unity of title between

Appellants’ and Appellees’ properties. Thus, Appellees presented no

evidence proving the first element required in order to establish an easement

of necessity.

        {¶14} Further, assuming arguendo that both properties originating as

part of the French Grant somehow satisfies the unity of title requirement,

which Appellees subtly imply but do not even expressly argue, there is no

2
 "The French Grant was one of the many land divisions established in the late eighteenth century in what is
now Ohio." www.ohiohistorycentral.org.
Scioto App. No. 16CA3783                                                        11

evidence that the Blantons’ property was landlocked at the time it was

originally subdivided out of the French Grant. Instead, evidence produced at

trial demonstrates the opposite, revealing that Blanton’s predecessor’s in

interest enjoyed direct access to their property via State Route 52, prior to

the construction of limited access U.S. Route 52. A similar situation was

before the court in Moore v. Lighthizer, supra, and we find it to be

instruction as applied to the facts presently before us.

      {¶15} At the time original tracts in Moore were split, the property at

issue was not landlocked. Id. at *1. However, when the State of Ohio built

Interstate 70 in 1965, the property became landlocked. Based upon these

facts, and finding that at least a portion of the property at issue did share

unity of title with another property in which an easement was sought across,

the Moore court found that the “strict necessity” required to justify creation

of an easement of necessity must exist at the time the severance of the

original tract occurs.” Id. at *4. Otherwise, as the court stated, “a

landowner’s property may become subject to an easement by necessity, at

any time, and not as the result of the current property owner’s actions.” Id.

      {¶16} Here, there is no evidence of unity of title between Appellants’

and Appellees’ properties. Further, if tracing the properties at issue back to

the French Grant satisfies the unity of title element, there is evidence that
Scioto App. No. 16CA3783                                                                                 12

Appellees’ property did not become landlocked until 1962 when the State of

Ohio appropriated a portion of Appellees’ predecessor’s property for

construction of the new limited access U.S. Route 52 highway. It appears

this was not a problem at first, as apparently the neighboring property

owners must have allowed some access through their property. However,

when the current parties came into possession of the properties, access was

denied by Appellees.

         {¶17} This Court was presented with nearly identical facts in Watson

v. Neff, supra. In that case, Watson’s property became landlocked as a result

of the State of Ohio appropriating land from Watson’s predecessor in

interest in order to change U.S. Route 35 to a limited access highway.

Watson at ¶ 3. The State paid Watson’s predecessor for the limitation of

access to his property.3 Id. When Watson came into possession of the

property he attempted to claim an easement by necessity over land owned by

Neff. The trial court, however, found in favor of the Neffs. Id. at ¶ 5. This

Court affirmed the decision of the trial court on appeal, holding “that a

plaintiff must prove unity of title to establish an easement by necessity.” Id.

at ¶ 15. In reaching our decision, we reasoned that “[n]either the State of

3
  As set forth above, Appellants introduced evidence at trial demonstrating that Appellees' predecessors in
interest were also compensated by the State of Ohio when the limited access highway was built. Records
introduced into evidence showed that Appellees' predecessors, the Isons, were paid approximately
$2,000.00 for the approximate eight acres that were actually taken for purposes of the highway
construction, and were also paid an additional $12,900.00 for damage to the residue of their property.
Scioto App. No. 16CA3783                                                       13

Ohio nor Watson’s predecessor in interest could have conveyed the

easement because they never possessed the part of Neff’s land in question.”

Id. at ¶ 17 (noting that “the State clearly did not intent to grant an easement

through the land it had appropriated because the State compensated

Watson’s predecessor in interest for the lack of access.”).

      {¶18} The facts in Watson are similar to the facts in Moore, supra,

with respect to property becoming landlocked, not as a result of severing one

parcel into two estates, but because of the State appropriating property for

the construction of limited access highways. The Moore court held “the

‘strict necessity’ needed to justify the creation of an easement by necessity

must exist at the time severance occurs[,]" and noted that no such strict

necessity existed at the time of severance, but rather the necessity arose

when the State appropriated a portion of Moore's property at a later date.

Moore at *4. Such was the case in Watson and Moore, and such is the case

here. “Where the land becomes landlocked as a result of the State of Ohio’s

appropriation of land, no such easement by necessity exists ‘[b]ecause an

easement that arises from necessity requires a plaintiff to prove common

ownership of the dominant and servient estates.’ ” Baldwin’s Oh. Prac. Real

Est. Section 26:11 Easements-Creation-Necessity (March 2017); quoting

Watson, supra.
Scioto App. No. 16CA3783                                                       14

      {¶19} At this point, we simultaneously note, and reject, Appellees'

assertion that the Cadwallader case stands for the proposition that "no one

can really be landlocked in the State of Ohio." Appellees misstate the

holding Cadwallader, and the above-cited cases directly refute such a

proposition. We further reject Appellees' contention that Appellants have

acknowledged there is a roadway and an easement by putting up a gate.

This argument distorts the evidence introduced at trial, which established

that the gate was installed by Scioto Water, Inc. at the entrance to their water

line easement, which runs over Appellants' property along the same route

Appellees claim an easement of necessity.

      {¶20} Based upon the foregoing, and applying the reasoning set forth

in both Watson and Moore, we hold that Appellees have not proven, by clear

and convincing evidence, the first element required in order to establish an

easement by necessity, which is severance of unity of ownership, or unity of

title. Aside from merely referencing that the properties at issue originated

with the French Grant, Appellees presented no evidence to show common

ownership of the properties at issue at any point. Further, as set forth above,

assuming arguendo that the properties’ origination from the French Grant

does, in some manner, satisfy the unity of title element, Appellees have

failed to demonstrate that there was strict necessity for an easement at the
Scioto App. No. 16CA3783                                                     15

time the properties were initially severed, or subdivided. Instead, the record

reflects that the Blanton’s predecessors in interest had access to their

property until 1962 when the State appropriated a portion of property for

construction of a limited access highway. Thus, even if it could be argued

unity of title was proven, the need for an easement by necessity did not exist

at the time of severance.

      {¶21} Because Appellees have failed to satisfy the first element

required to establish an easement of necessity, we need not address the

remaining elements, including whether Appellees might have other access to

the property via another route. As such, we conclude the trial court erred in

finding that Appellees had established an easement of necessity over

Appellants’ property. Accordingly, Appellants’ sole assignment of error is

sustained and the judgment of the trial court is reversed.

                                                 JUDGMENT REVERSED.
Scioto App. No. 16CA3783                                                       16

                           JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE REVERSED and that
Appellants recover costs from Appellees.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Scioto County Common Pleas Court 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.

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


                                       For the Court,

                                 BY: ______________________________
                                     William H. Harsha, Judge

                                 BY: ______________________________
                                     Peter B. Abele, Judge

                                 BY: ______________________________
                                     Matthew W. McFarland, 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.
