[Cite as Kennedy v. Collins, 2013-Ohio-2304.]


                                       COURT OF APPEALS
                                      PERRY COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



BOB KENNEDY, ET AL.                             :   JUDGES:
                                                :   Hon. W. Scott Gwin, P.J.
        Plaintiffs-Appellants                   :   Hon. Sheila G. Farmer, J.
                                                :   Hon. John W. Wise, J.
-vs-                                            :
                                                :
JAN COLLINS, ET AL.                             :   Case No. 12-CA-0017
                                                :
        Defendants-Appellees                    :   OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case No. 10-CV-0353


JUDGMENT:                                           Affirmed



DATE OF JUDGMENT:                                   May 30, 2013



APPEARANCES:

For Plaintiffs-Appellants                           For Defendants-Appellees

FREDERICK A. SEALOVER                               SCOTT D. EICKELBERGER
45 North Fourth Street                              RYAN H. LINN
P.O. Box 2910                                       50 North Fourth Street
Zanesville, OH 43702-2910                           P.O. Box 1030
                                                    Zanesville, OH 43702-1030

                                                    JOSEPH A. FLAUTT
                                                    111 North High Street
                                                    P.O. Box 569
                                                    New Lexington, OH 43764-0569
Perry County, Case No. 12-CA-0017                                                         2

Farmer, J.

       {¶1}   On August 26, 2010, appellants, Bob and Joan Kennedy, filed a complaint

for trespass to real estate and complaint to quiet title against their neighbors, appellees,

Jan Collins and Nathan and Vonnie Voorhis.          Appellants sought damages for the

trespass and recognition of an implied easement for access across appellees' property.

An amended complaint was filed on July 28, 2011 to add an additional plaintiff, The

Kennedy Keystone Inheritance Trust, Rocky Brown, Trustee.

       {¶2}   The subject property was originally owned by Stella Watts. She sold a

parcel of land to Countrytyme Grove City Ltd. who in turn divided the parcel into three

tracts and sold them to appellants and appellees. Appellees Voorhis owned Tract 1,

appellee Collins owned Tract 2, and appellants owned Tract 3.             Appellee Collins

eventually sold Tract 2 to appellees Voorhis.

       {¶3}   A bench trial commenced on February 6, 2012.           At the conclusion of

appellants' case, the trial court granted a directed verdict in favor of appellees on the

trespass claims. By entry filed August 31, 2012, the trial court found appellants failed to

establish an implied easement. The trial court issued injunctions barring appellants

from crossing appellees' property and vice-a-versa.

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

consideration. Assignment of error is as follows:

                                             I

       {¶5}   "THE TRIAL COURT ERRED BY NOT FINDING THE EXISTENCE OF

AN IMPLIED EASEMENT AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY

OF THE EVIDENCE PROVIDED AT TRIAL."
Perry County, Case No. 12-CA-0017                                                        3


                                            I

      {¶6}   Appellants claim the trial court's decision in not finding the existence of an

implied easement along a "path" was against the manifest weight and sufficiency of the

evidence. We disagree.

      {¶7}   As stated by this court in S.V., Inc. v. Casey, 5th Dist. No. 12 CAE 07

0043, 2013-Ohio-1882, ¶ 48-50:



             As an appellate court, we are not fact finders; we neither weigh the

      evidence nor judge the credibility of witnesses. Our role is to determine

      whether there is relevant, competent, and credible evidence upon which

      the fact finder could base his or her judgment. Peterson v. Peterson, 5th

      Dist. No. CT2003–0049, 2004–Ohio–4714, ¶ 10, citing Cross Truck v.

      Jeffries, 5th Dist. No. CA–5758, 1982 WL 2911 (Feb. 10, 1982).

      Questions of law are reviewed by the court de novo. Erie Ins. Co. v.

      Paradise, 5th Dist. No.2008CA00084, 2009–Ohio–4005, ¶ 12.

             In Eastley v. Volkman, 132 Ohio St.3d 328, 2102–Ohio–2179, 972

      N.E.2d 517, the Ohio Supreme Court clarified the standard of review

      appellate courts should apply when assessing the manifest weight of the

      evidence in a civil case. SST Bearing Corp. v. Twin City Fan Companies,

      Ltd., 1st Dist. No. C110611, 2012–Ohio–2490, ¶ 16. The Ohio Supreme

      Court held the standard of review for manifest weight of the evidence for

      criminal cases stated in State v. Thompkins, 78 Ohio St.3d 380, 678

      N.E.2d 541 (1997), is also applicable in civil cases. Eastley, at ¶ 17–19.
Perry County, Case No. 12-CA-0017                                                     4


      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 finder of fact

      clearly lost its way and created such a manifest miscarriage of justice that

      the judgment must be reversed and a new trial ordered." Eastley, at ¶ 20

      quoting Twearson v. Simon, 141 Ohio App.3d 103, 115, 750 N.E.2d 176

      (9th Dist.2001); See also Sheet Metal Workers Local Union No. 33 v.

      Sutton, 5th Dist No. 2011 CA00262, 2012–Ohio–3549 citing State v.

      Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

             "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)." Eastley,

      at ¶ 19.



      {¶8}   The law governing implied easements is set forth in Ciski v. Wentworth,

122 Ohio St. 487 (1930), syllabus:



             While implied grants of easements are not favored, being in

      derogation of the rule that written instruments shall speak for themselves,

      the same may arise when the following elements appear: (1) A severance

      of the unity of ownership in an estate; (2) that, before the separation takes

      place, the use which gives rise to the easement shall have been so long
Perry County, Case No. 12-CA-0017                                                      5


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

       permanent; (3) that the easement shall be reasonably necessary to the

       beneficial enjoyment of the land granted or retained; (4) that the servitude

       shall be continuous as distinguished from a temporary or occasional use

       only.



       {¶9}    The Ciski court at 495-496 explained the analysis required in determining

if the facts meet the rule:



               While we recognize that the creation of easements by implication

       rests upon an exception to the general rule that written instruments shall

       speak for themselves, yet under proper circumstances the courts have

       recognized this doctrine. Certain elements are regarded as essential to

       the creation of an easement by implication, on the severance of unity of

       ownership in an estate. The same are well stated in the opinion in the

       case of Bailey v. Hennessey, 112 Wash. 45, at pages 48 and 49, 191 P.

       863, as follows:

               "Easements by implication arise where property has been held in a

       unified title, and during such time an open and notorious servitude has

       apparently been impressed upon one part of the estate in favor of another

       part, and such servitude, at the time that the unity of title has been

       dissolved by a division of the property or a severance of the title, has been
Perry County, Case No. 12-CA-0017                                                      6


      in use and is reasonably necessary for the fair enjoyment of the portion

      benefited by such use.***

             "In determining whether the facts of a particular case bring it within

      the application of this rule, it is necessary to determine the extent of the

      use, the character, and the surroundings of the property, the relationship

      of the parts separated to each other, and the reason for giving such

      construction to the conveyances as will make them effective according to

      what must have been the real intent of the parties; the foundation of the

      rule being that there shall be held to have been included in the

      conveyances all the rights and privileges which were incident and

      necessary to the reasonable enjoyment of the thing granted, practically in

      the same condition in which the entire property was received from the

      grantor."



      {¶10} In its entry filed August 31, 2012, the trial court found an implied easement

did not exist based upon the evidence presented:



             In the present case, there was a severance of the unity of

      ownership in the estate. Before the property was divided into three tracts,

      there was testimony from the prior owner that Texas Eastern used the

      pathway to access the pipeline. The path was dirt and horses also used it.

      When Mr. and Mrs. Voorhis visited the site prior to purchasing it, the trail

      was overgrown. There were no ruts in the path. The path did not stand
Perry County, Case No. 12-CA-0017                                                       7


      out to Mr. Voorhis. It had tall grass growing on it and the use marks were

      faint. Mrs. Voorhis testified that she was told the path was for the utility

      company to check its pipelines. She could barely see the path. In the

      Spring the path was overgrown with a canopy of trees and grass. The

      evidence established that the only easement that had continued and was

      obvious was the easement for Texas Eastern.

             The easement is not reasonably necessary to the beneficial

      enjoyment of the land granted. The buyers of tract one and tract two

      constructed driveways from the written easement allowing them ingress

      and egress from State Route 669. The evidence did not establish that the

      servitude was continuous.      The evidence established that it was an

      occasional use by the utility companies.      The Plaintiffs have failed to

      establish that the pathway is an implied easement. The only easement

      the parties share with one another is the Declaration of Shared Access

      Easement, which was filed with the Perry County Recorder's Office on

      July 23, 2003.



      {¶11} All parties agree there was one parcel which was divided into three tracts.

Stella Watts sold the entire parcel to Countrytyme who in turn sold the parcel as three

separate tracts. T. at 85. Clearly, severance of the unity of ownership in the parcel, the

first condition for an implied easement, was met.

      {¶12} Ms. Watts testified to her family's use of the land, including the disputed

path. It was used to ride horses and as an access road for Texas Eastern to maintain
Perry County, Case No. 12-CA-0017                                                            8


its pipeline on the parcel. T. at 87, 89. Texas Eastern compensated Ms. Watts for the

use of the path. T. at 90. The path contained a loop because it was the way around a

"big, big mud puddle." T. at 87. She stated it was an undeveloped path. T. at 90-91.

       {¶13} When Countrytyme marketed the tracts, it displayed a drawing which

included the path beginning on Tract 3 and meandering over Tract 2 and then back over

to Tract 3 (Exhibit B). The drawing also illustrated a 50' Easement of Access off of

State Route 669 servicing Tracts 2 and 3. Tract 2 was sold first to appellee Collins,

then Tract 1 to appellees Voorhis, and then Tract 3 to appellants. Thereafter, appellee

Collins sold Tract 2 to appellees Voorhis.

       {¶14} Appellees Voorhis testified the path was hard to distinguish. T. at 193-

194, 208. The thrust of appellants' claim is that they should be permitted to use the

path to access the back of their property as appellant Bob Kennedy testified, "I haven't

been allowed to go back to my own property to do a cotton pickin thing, and I pay taxes

on all of it." T. at 118. He described the terrain of his property as follows (T. at 110):



       A. - - from right there where that gate is. I'd have to go down over that hill

       there. And once you go down over that hill, I don't care who it is, you

       better watch what you're doing cause she goes straight down into the

       ravines and gullies and all that. And then once you get in the bottom,

       you're going to have to walk all the way back uphill to get to the pipeline.



       {¶15} The testimony of appellees totally contradicts the testimony of appellant

Bob Kennedy. Appellant Bob Kennedy claimed the path was used freely by all parties.
Perry County, Case No. 12-CA-0017                                                       9


T. at 157. Appellees testified they did not use the path after appellants acquired their

property. T. at 177-178, 191-192, 198, 209-210. No one denies the fact that at the

time of the parcel's split by Countrytyme, the path was a "jungle" and overgrown with

no ruts or visible path. T. at 106, 193, 209.

       {¶16} 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.

       {¶17} Given the testimony presented by appellees, the evidence fails to

establish that the servitude was continuous, as the use was merely occasional or

temporary. Further, Countrytyme, as the immediate predecessor in title, specifically

reserved the easements it believed were necessary for the enjoyment and use of the

tracts i.e., the 50' Easement of Access off State Route 669. Countrytyme specifically

omitted any use of the path by Tract 3 over Tract 2.

       {¶18} Upon review, we conclude the trial court was correct in finding no implied

easement for failure to fulfill all of the conditions set forth in Ciski.

       {¶19} The sole assignment of error is denied.
Perry County, Case No. 12-CA-0017                                            10


       {¶20} The judgment of the Court of Common Pleas of Perry County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Wise, J. concur.




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