[Cite as Dalliance Real Estate, Inc. v. Covert, 2013-Ohio-4963.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                       GEAUGA COUNTY, OHIO


DALLIANCE REAL ESTATE, INC., et al.                       :        OPINION

                 Plaintiffs-Appellees,                    :
                                                                   CASE NO. 2013-G-3139
        - vs -                                            :

TIMOTHY COVERT,                                           :

                 Defendant-Appellant.                     :


Civil Appeal from the Geauga County Court of Common Pleas, Case No. 08M000069.

Judgment: Reversed and remanded.


A. Pearce Leary, 401 South Street, Building 4-A, Chardon, OH 44024 (For Plaintiffs-
Appellees).

John W. Shryock, John Shryock Co., L.P.A., 30601 Euclid Avenue, Wickliffe, OH
44092 (For Defendant-Appellant).



DIANE V. GRENDELL, J.

        {¶1}     Defendant-appellant, Timothy Covert, appeals from the Decision and

Judgment Entry of the Geauga County Court of Common Pleas, entering judgment in

favor of plaintiffs-appellees, Dalliance Real Estate and Margaret Lahner, on their

Complaint. The issue to be determined by this court is whether an easement or a

license existed when two parties signed an agreement stating that the buyer of a

property had “perpetual” use of a driveway located on the seller’s adjoining property and

the buyer acted to improve the driveway and used it for several years. For the following
reasons, we reverse the decision of the trial court and remand for further proceedings

consistent with this opinion.

       {¶2}   Margaret Lahner and Timothy Covert entered into an Agreement of

Purchase and Sale on August 15, 2003, in which Covert agreed to purchase one acre of

real property from Lahner, located at 8829 Mayfield Road, in Geauga, Ohio, which was

adjacent to another parcel owned by Lahner, located at 8825 Mayfield Road. The

property at 8825 Mayfield was subsequently deeded to Dalliance Real Estate, which is

owned by Lahner, a psychologist who operated her office on that property.

       {¶3}   On January 18, 2008, Dalliance Real Estate and Lahner filed a Complaint

against Covert, raising several claims.     Count One raised a claim for Quiet Title,

asserting that Covert “has or may claim to have an interest” in a portion of property

located at 8825 Mayfield Road, owned by Dalliance. Counts Two and Three raised

claims for Ejectment and Trespass, asserting that Covert entered onto the property of

Lahner and performed certain work, including the addition of electric lines and stone

walls. Count Four requested an injunction to prevent further trespass. Count Five, for

Breach of Contract, related to the use of a well located on Dalliance’s property.

       {¶4}   On March 24, 2008, Covert filed his Answer and Counterclaim, raising six

counterclaims. He raised a claim for Breach of Contract, and asserted that he was

being denied his right to access the driveway located on Lahner’s property, which he

was entitled to use under an easement provided for in the Agreement of Purchase and

Sale and the Deed. He also claimed Detrimental Reliance, based on improvements he

made along the easement.        He asked for Declaratory Judgment as to his rights

regarding the easement.




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      {¶5}   Following motions by both parties for restraining orders/injunctions, the

court issued an Order for Preliminary Injunction on August 14, 2008, preventing Covert

from interfering with Dalliance’s property and also requiring Dalliance/Lahner to restore

water service to Covert.

      {¶6}   A trial was held on February 7 and April 9, 2010.         At trial, Attorney

Matthew Dolan testified that he had represented both Covert and Lahner in the sale of

the property. Pursuant to the Agreement of Purchase and Sale, prepared by Dolan and

signed by Covert and Lahner on August 15, 2003, a condition to closing was that “Buyer

and Seller shall have executed an easement agreement for the mutual use of the

driveway on the Property, a copy of which is attached hereto and marked as Exhibit ‘C.’”

Pursuant to Lahner’s testimony, no such exhibit was attached on the date she signed

the Agreement.

      {¶7}   According to the testimony and exhibits, on September 9, 2003, Attorney

Dolan sent letters to Covert and Lahner, advising them that a license agreement was

enclosed and would replace an easement agreement previously signed by the parties.

This agreement contained provisions that it was irrevocable, non-assignable, and was

personal to Lahner and Covert. On September 19, 2003, another letter was sent to the

parties, stating that Dolan had prepared a new Easement Agreement, “wherein Lahner

would grant Covert a perpetual easement for ingress and egress to Covert’s property,”

which would run with the land. On September 23, 2003, a third letter was sent to the

parties, stating that the driveway agreement would be a license, which would be non-

revocable.

      {¶8}   The Deed, which granted the 8829 Mayfield Road property to Covert, was




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signed on September 25, 2003.          Attached to the Deed was a separate, untitled

document, which was also signed by both parties and prepared by Dolan. It stated that

it was a “license agreement,” and provided, inter alia, the following: “Lahner hereby

grants, gives, and conveys a perpetual license and right-of-way over the License Parcel

(defined below) to Covert and his tenants, servants, visitors, invitees, and licensees,”

the parties would split the cost of maintenance expenses for the driveway, neither party

should obstruct the access of the other, and the agreement “shall be deemed perpetual,

shall run with the respective parcels of the parties hereto and shall inure to the benefit of

and be binding upon the parties * * * and their respective successors, transferees and

assigns forever.” It does not describe the specific location of the driveway, although it

refers to an “Exhibit B” providing the description, which was not attached. It does state

that the driveway was “partially located on Lahner’s premises.”

       {¶9}   Dolan testified that this license agreement was the result of discussions

between himself and the two parties, who were told that if they wanted an easement,

they would have to go before the Geauga Planning Commission. According to Dolan,

both parties informed him that they did not want to do so, which resulted in him drafting

the license agreement ultimately attached to the Deed.

       {¶10} Jared Spring from the Geauga County Recorder’s Office testified that the

license agreement was attached to the Deed and that this was recorded as one

instrument.

       {¶11} Covert testified that he believed that he would be able to use the driveway

on Lahner’s property for his lifetime, that it would be perpetual, and any owner after him

would also be allowed to use the easement. Due to this belief, he paved the driveway




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and erected lighting and other items around it. He also constructed several buildings for

his commercial business on his property, which were accessed using this driveway.

       {¶12} Lahner testified regarding the various drafts of the easement/license

agreement she received from Dolan prior to signing the Deed. She believed that a

license agreement received on September 9, 2003, was the same license agreement

that was attached to the Deed. She did not intend to give a perpetual right to use the

driveway to Covert, but only a right to use it while either he or she owned their

properties.

       {¶13} Lahner also explained that there was another driveway located solely on

Covert’s property which had been used in the past, which was gravel, and was partially

covered by grass. Covert explained that he was aware of an area, covered with grass,

located on the east side of his property, which, if used as a driveway, would require him

to drive over the septic system in his front yard.

       {¶14} The trial court made various factual findings, restating the facts and

testimony as described above, in its June 6, 2012 Decision. It also rendered a separate

Judgment Entry on the same date, summarizing its holdings. The court found that the

Agreement of Purchase was inaccurate, in that it misstated the address of the property

being sold and improperly stated that the driveway being used by both parties was on

Covert’s property, while it was actually on Lahner’s property. Further, although the

Purchase Agreement stated that there was an attached Easement Agreement, no such

document was attached.

       {¶15} The court found that “although there had once been a driveway across

[Covert’s] parcel ([8829] Mayfield Rd.) that provided access to the dwelling, use of that




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driveway had been discontinued and access to the dwelling was over and across a

gravel driveway located upon the larger parcel ([8825] Mayfield Road).”1

       {¶16} The court also found that, after the signing of the Agreement of Purchase,

a document titled Easement for Common Driveway was submitted for pre-approval by

the Geauga County Planning Commission, but it would not be approved without a

hearing before the Commission. The court found that, although the license agreement

referenced two exhibits, neither were attached or filed with the Geauga County

Recorder. The court found that, according to Spring’s testimony, the license agreement

would not have been recordable without being attached to the Deed, since it did not

have a title, contain a stamp that the Auditor approved it, or contain a legal description

of the area subject to the license.

       {¶17} The court found that “Covert and his employees have used the common

driveway for access to [8829] Mayfield since the transfer of title.” The court determined

that Covert caused that driveway to be paved and sealed without giving notice to

Lahner and built stone walls, an entrance, a sidewalk, and a pole lamp “within the

license area” on or about the driveway, without Lahner’s consent.

       {¶18} As for its pertinent legal holdings, the court concluded that Covert building

items on or near the driveway constituted trespass, ordered him to remove the items

from the property, and scheduled a future damages hearing.

       {¶19} Regarding the easement/license, the court held that the “purported

License Agreement executed by Covert and Lahner is neither a license nor an

easement” and, if they intended to create a license, there could be no requirement that


1. Although the court’s Decision refers to the properties as 8225 and 8229 Mayfield Road, they are
actually located at 8825 and 8829.


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such a license be perpetual or transferable. The court found that the parties “clearly

intended to create an easement” but did not obtain the proper approvals to record an

easement. The court held that the license agreement for the common driveway is “void”

and that Covert “shall be permitted to continue the use of that driveway until September

25, 2012; thereafter, Covert shall not be permitted to use the common driveway for

ingress or egress” to his property.

       {¶20} Covert filed his Notice of Appeal from the trial court’s Judgment Entry on

July 3, 2012. Since the trial court determined liability as to trespass but did not rule on

damages, this court dismissed the appeal for lack of a final appealable order. Dalliance

Real Estate, Inc. v. Covert, 11th Dist. Geauga No. 2012-G-3090, 2013-Ohio-538, ¶ 5.

       {¶21} On March 11, 2013, Dalliance Real Estate filed a Notice of Voluntary

Dismissal, dismissing the claim for damages. The Court ordered the claim dismissed

on March 15, 2013.

       {¶22} Covert raises the following assignments of error on appeal:

       {¶23} “[1.] The trial court erred [by] ordering that the document entitled license

agreement for a common driveway is void.

       {¶24} “[2.] The trial court erred in failing to enforce an express easement in

favor of appellant and against appellee regarding the use of the common driveway.

       {¶25} “[3.] The trial court erred in failing to find an implied easement in favor of

appellant and against appellee regarding the use of the common driveway.

       {¶26} “[4.] The trial court erred in failing to find an easement by estoppel in favor

of appellant and against appellee regarding the use of the common driveway.

       {¶27} “[5.] The trial court erred in determining that appellant has an easement of




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temporary duration over appellee’s property.”

      {¶28} Covert’s arguments generally relate to his assertion that the trial court

inappropriately determined that the signed license agreement, attached to the Deed and

recorded, was void and that no easement existed over the driveway, the court’s denial

of his request for declaratory judgment on this issue, and the finding in favor of

Dalliance and Lahner.

      {¶29} The standard of review applied to easements “is whether the trial court’s

judgment is supported by some competent, credible evidence going to all the essential

elements of the case.” (Citation omitted.) Sweet v. Caudill, 11th Dist. Portage No.

2004-P-0095, 2006-Ohio-1009, ¶ 12. “We presume the trial court’s findings of fact are

correct, since the trier of fact is charged with evaluating evidence and credibility.” Id.

Any questions of law related to an easement, however, are reviewed by this court de

novo, without deference to the trial court’s conclusion. Taylor Bldg. Corp. of Am. v.

Benfield, 117 Ohio St.3d 352, 2008-Ohio-938, 884 N.E.2d 12, ¶ 34.

      {¶30} In his first and second assignments of error, Covert argues that the trial

court erred in finding that the license agreement was void, since the agreement was an

express easement which granted a perpetual right of way to Covert and stated that it

would run with the parcels.    He also argues in his fourth assignment of error that

Lahner’s signature of the foregoing agreement and her acquiescence to his

improvements are the basis for a finding of easement by estoppel.

      {¶31} Dalliance and Lahner argue that the license agreement was void because

a license cannot be irrevocable and run with the land. They also assert that there is no

easement by estoppel, since Lahner did not mislead Covert into believing that he had




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an easement.

       {¶32} An “easement is an interest in the land of another which entitles the owner

of the easement to a limited use of the land in which the interest exists. * * * An

easement implies necessarily a fee in another, and it follows that it is a right, by reason

of such ownership, to use the land for a special purpose * * * not inconsistent with the

general property in the land of the owner of the fee, his property rights, however, to be

exercised in such way as to not unreasonably interfere with the special use for which

the easement was acquired.” (Citation omitted.) Ranallo v. First Energy Corp., 11th

Dist. Lake No. 2005-L-187, 2006-Ohio-6105, ¶ 36; Pence v. Darst, 62 Ohio App.3d 32,

37, 574 N.E.2d 548 (2nd Dist.1989) (“[i]n order to create an express easement, the

owner of the servient property must grant or convey to the owner of the dominant

property a right to use or benefit from his estate”).

       {¶33} In contrast, a license “is a privilege given to an individual to do an act upon

the land of another without possessing any interest therein and is usually terminable at

the will of the licensor.”      Cambridge Village Condominium Assn. v. Cambridge

Condominium Assn., 139 Ohio App.3d 328, 333, 743 N.E.2d 954 (11th Dist.2000), citing

Mosher v. Cook, 62 Ohio St.2d 316, 317, 405 N.E.2d 720 (1980). If the parties intend

for an agreement to be permanent, the license is said to be coupled with an interest.

Contract Crush and Screen Co. v. Neff Sand & Gravel, Inc., 11th Dist. Lake No. 96-L-

043, 1997 Ohio App. LEXIS 832, 8 (Mar. 7, 1997). “A license coupled with an interest

becomes irrevocable, meaning that it is no longer terminable at the will of the licensor,

and constitutes a right to do the act rather than a mere privilege to do it. * * * An

irrevocable license is said to be an easement rather than a license.” Cambridge Village




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at 333-334.

       {¶34} “Licenses coupled with an interest can be, in effect, easements which

either have not complied with the formalities necessary to create an easement or

easements by parol agreement. This is because there is not merely permission to do

the act, but a right to do the act. If so construed to be a right it takes on those qualities.

One such quality of a right is that it is not revocable. * * * Licenses coupled with an

interest have been found where an easement was not formed but yet the contract was

not revocable at the will of either party and the parties’ intention was that the contract

was to be permanent and perpetual.” (Citation omitted.) Kamenar RR. Salvage, Inc. v.

Ohio Edison Co., 79 Ohio App.3d 685, 691, 607 N.E.2d 1108 (3rd Dist.1992).

       {¶35} A review of the agreement attached to the Deed reveals that it contains no

language consistent with a conclusion that Covert’s ability to use the driveway was

terminable at the will of Lahner. The language of the agreement stated that it was

perpetual and should run with the parcels of land. Covert’s use of the driveway was

specifically referred to as a “right,” not a privilege, and could not be prohibited in any

way. At the very least, it must be considered a license coupled with an interest, since

the agreement evinces an intent for the use to be permanent and irrevocable. This is

consistent with the trial court’s determination that the parties’ agreement had the

attributes of an easement. Since the document was not a license but a license coupled

with an interest, it should be considered, like an easement, to be irrevocable and should

not have been voided and terminated by the trial court.

       {¶36} While Lahner argues that the agreement attached to the Deed cannot be

considered an easement because the parties did not go before the planning committee,




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no case law is cited in support of this proposition. As noted above, a license coupled

with an interest can be interpreted as an easement without complying with all of the

rules or formalities of establishing an easement. See Kamenar at 691.

      {¶37} Lahner also argues that since the document attached to the deed referred

to a license throughout and did not use the word easement, it is “not clearly an

easement.” However, the mere use of the word license does not render a document a

revocable license when language is included to support the conclusion that the parties

intended to create a more permanent right to access the property, i.e., a license coupled

with an interest or an easement. See Steiner v. Delong, 5th Dist. Tuscarawas No. 88

AP 050040, 1988 Ohio App. LEXIS 5100, 4 (Dec. 14, 1988) (although the language

included in the deed referred to a license and not an easement, the inclusion of

language that grants the “right, title and license” evinced the intent of the parties to

convey an easement). No specific words are required to create an easement, provided

the intent of the parties is clear from the document and formal statutory requirements,

including a signed writing, are followed. Lone Star Steakhouse & Saloon of Ohio, Inc. v.

Ryska, 11th Dist. Lake No. 2003-L-192, 2005-Ohio-3398, ¶ 24; Cincinnati Entertainment

Assocs. Ltd. v. Bd. of Commrs. of Hamiltion Cty., 141 Ohio App.3d 803, 813, 753

N.E.2d 884 (1st Dist.2001).

      {¶38} Here, the agreement conveyed the intent of the parties, even if it did not

specifically include the word “easement.”       Further, the parties complied with the

requirement to have the agreement in writing and to have the signature properly

witnessed by a notary. See H&S Co., Ltd. v. Aurora, 11th Dist. Portage No. 2003-P-

0104, 2004-Ohio-3507, ¶ 12; R.C. 5301.01(A).




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      {¶39} Further, even if the foregoing reasons were not sufficient to establish an

irrevocable right in Covert to continue his access to the driveway, there is also support

for a finding that, in the interest of equity, an easement by estoppel exists.        An

easement may be created by estoppel when the “owner of land, without objection,

permits another to expend money in reliance upon a supposed easement, when in

justice and equity the former ought to have disclaimed his conflicting rights,” in which

case, the “owner is estopped to deny the easement.” Gnomes Knoll Farm, Inc. v.

Aurora Inn Operating Partnership, L.P., 11th Dist. Geauga Nos. 93-G-1772 and 93-G-

1780, 1994 Ohio App. LEXIS 2904, 22 (June 30, 1994), citing Monroe Bowling Lanes v.

Woodsfield Livestock Sales, 17 Ohio App.2d 146, 244 N.E.2d 762 (7th Dist.1969),

paragraph two of the syllabus. “The party claiming the easement must show that he

was misled or was caused to change position to his prejudice.” Id.

      {¶40} In the present matter, Lahner signed a document, attached to the Deed

and recorded, in which she agreed that Covert would have a “perpetual right” to use the

driveway located on her property and that this right would run with the parcel to the

parties’ “successors, transferees and assigns forever.”        Lahner also signed the

Agreement of Purchase, which stated that the buyer and seller “shall have executed an

Easement Agreement for the mutual use of the driveway.” These were promises made

to Covert and constitute a basis for applying the doctrine of estoppel. See Prymas v.

Kassai, 168 Ohio App.3d 123, 2006-Ohio-3726, 858 N.E.2d 1209, ¶ 27-28 (8th Dist.)

(the evidence supported a finding of easement by estoppel when there were letters and

other evidence of negotiations of an easement and the parties negotiated improvements

that would be done in return for the right to the easement).




                                            12
      {¶41} Covert relied on these statements that the driveway would be perpetually

his to use. He then proceeded to have the driveway graded and paved, without any

objection from Lahner. In fact, the signed agreement specifically stated that Covert

shall pay for the cost of paving and that such work “shall be completed within eighteen

(18) months of the execution of this License Agreement.” He also expended additional

money with many other improvements all along the driveway, placing several buildings

used for his business in positions accessible to the driveway, based on how he

“expected [he] would be using it” and his belief that he had an easement over the

driveway. Lahner did not object to these improvements at the time they occurred.

      {¶42} It would be unfair and unjust to simply determine, as the trial court did, that

Covert can no longer access the driveway because the agreement does not neatly fit

into the category of either a license or an easement.        The parties clearly had an

agreement that extended beyond a mere license and Covert’s access to the driveway

cannot be terminated simply based on Lahner’s request to do so. Such a conclusion

would inhibit not only Covert’s right to use the driveway he had improved but also limit

his access to the property entirely since the other driveway on his property, as found by

the trial court, had not been used for a period of years and its accessibility was

questionable.

      {¶43} Based on the foregoing, we find that Covert has an easement over the

driveway on Lahner’s property and that the trial court erred in its determination that the

agreement attached to the Deed was void.

      {¶44} The remaining issue relates to defining the area and location of the

easement, which is not stated in the deed or attached agreement. There was some




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testimony and evidence presented regarding the driveway measurements, but the trial

court did not make a determination as to the area of the easement since it decided the

agreement was void.       When the “intended dimensions of an easement are not

expressed in the grant itself, determining the dimensions becomes largely a question of

fact[.]” (Citation omitted.) Pomante v. Marathon Ashland Pipe Line LLC, 187 Ohio

App.3d 731, 2010-Ohio-1823, 933 N.E.2d 831, ¶ 10 and 20 (10th Dist.) (remanding to

the trial court when the dimensions of the easement were undefined in the grant, noting

that “determining the dimensions largely presents issues of fact to be determined on a

case-by-case basis”). Therefore, this matter is remanded for the purpose of the trial

court issuing findings as to the location and description of the easement.

      {¶45} Covert’s first, second, and fourth assignments of error are with merit.

      {¶46} Since we have found grounds for Covert’s argument that the trial court

erred in denying his access to the driveway, the third and fifth assignments of error,

which provide additional reasons for finding that an easement existed, are moot.

      {¶47} For the forgoing reasons, the Decision and the Judgment Entry of the

Geauga County Court of Common Pleas, entering judgment in favor of Dalliance Real

Estate and Lahner, are reversed and the matter is remanded for further proceedings

consistent with this opinion. Costs to be taxed against appellees.



CYNTHIA WESTCOTT RICE, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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