[Cite as Harris v. Dayton Power & Light Co., 2013-Ohio-5234.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                 MONTGOMERY COUNTY

 JOY HARRIS, et al.                                :
                                                   :        Appellate Case No. 25636
          Plaintiffs-Appellants                    :
                                                   :        Trial Court Case No. 2011-CV-4382
 v.                                                :
                                                   :
 DAYTON POWER & LIGHT COMPANY :                             (Civil Appeal from
                                                  :         (Common Pleas Court)
          Defendant-Appellee                      :
                                                  :
                                              ...........

                                             OPINION

                           Rendered on the 27th day of November, 2013.

                                              ...........

CHRISTOPHER B. EPLEY, Atty. Reg. #0070981, Christopher B. Epley Co., L.P.A., 100 East
Third Street, Suite 400, Dayton, Ohio 45402
       Attorney for Plaintiffs-Appellants

JAMES PAPAKIRK, Atty. Reg. #0066976, and ALLISON BISIG OSWALL, Atty. Reg.
#0080601, Flagel & Papakirk LLC, 50 East Business Way, Suite 400, Cincinnati, Ohio 45241
      Attorneys for Defendant-Appellee

                                             .............

FAIN, P.J.

        {¶ 1}    Plaintiffs-appellants Neal and Joy Harris appeal from a summary judgment

rendered in favor of defendant-appellee The Dayton Power and Light Company (DP&L). They
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contend that the trial court erred in rendering summary judgment against them on their claim of a

prescriptive easement, because any permission granted to them by DP&L for their use of the land

occurred after a prescriptive easement had matured.

       {¶ 2}     We conclude that the trial court erred in rendering summary judgment to DP&L

based solely on the fact that DP&L granted them permission for their use of the land after their

prescriptive easement allegedly had matured. Accordingly, the judgment of the trial court is

Reversed, and this cause is Remanded for further proceedings.



          I. DP&L Grants Permission to Neal and Joy Harris to Enter Its Property,

                       But Revokes that Permission Seven Months Later

       {¶ 3}     On May 25, 1973, Orlyn and Dorothy Harris acquired approximately 130 acres of

rural land in Germantown. They used the property as overflow for their farming operation and

to graze livestock. A former railroad line cuts across the 130 acres. In April 1975, most of the

property was sold to James and Pamela Glossip. The property sold to the Glossips represents all

of the acreage to the west of the railroad line.

       {¶ 4}     The remaining 28 acres of the original 130 acres are currently owned by Neal and

Joy Harris (the Harrises), who are the son and daughter-in-law of Orlyn and Dorothy Harris.

This acreage is situated to the east of the railroad line. The 28 acres are divided into two parcels.

 The first parcel is a little over fifteen cleared acres, and the second parcel contains a little over

twelve primarily wooded acres. The Harrises’ barn is located on the first parcel; their house is

located on the second parcel. There is a creek on the second parcel.

       {¶ 5}     The Harrises wished to engage in recreational activities on the wooded acreage of
                                                                                                 3


the second parcel. Both parcels abut the railroad line, which is owned by DP&L. According to

the Harrises, the only way to access the wooded portion of the property is via the DP&L property.

 Moreover, during periods of high water, the only way to access their home is via the DP&L

property.

       {¶ 6}    In June 2009, DP&L sent a letter to the Harrises informing them that DP&L does

not permit the unauthorized use of real property and that there were no written lease agreements

granting rights of use to the railroad property.     The Harrises unsuccessfully attempted to

purchase the railroad property from DP&L.

       {¶ 7}    In November 2009, DP&L sent a letter to the Harrises giving them the right to

enter over, upon, and through the railroad property for the express purpose of ingress and egress,

provided that no dangerous or hazardous activity took place on the property and that no building

or storage would occur on the property.

       {¶ 8}    In June 2010, DP&L sent a letter to the Harrises revoking the permission

previously granted. DP&L cited prohibited dangerous activities occurring on the property. The

Harrises ceased all activity on the railroad property. In May 2011, DP&L granted the Harrises

limited permission to use the railroad property on two days to access their property to remove

equipment.



                                 II. Course of the Proceedings

       {¶ 9}    In June 2011, the Harrises commenced an action against DP&L, seeking to quiet

title based on a claim of easement by prescription (Count One) and seeking damages based on

claims of negligence and nuisance (Counts Two and Three).           After filing an answer and
                                                                                               4


counterclaims, DP&L moved for summary judgment on the Harrises’ complaint. The trial court

rendered summary judgment in favor of DP&L on the easement-by-prescription claim, but denied

summary judgment on the negligence and nuisance claims.           Dkt. 63.   The parties jointly

dismissed with prejudice their remaining claims.     The Harrises appeal from the summary

judgment rendered in favor of DP&L on the easement-by-prescription claim.



           III. An Owner of Subservient Property Cannot Defeat a Prescriptive

            Easement by Granting Permission after the Easement has Matured

       {¶ 10} The Harrises’ sole assignment of error states:

              THE     TRIAL    COURT       ERRED      BY       GRANTING      SUMMARY

       JUDGMENT IN FAVOR OF DPL BECAUSE THE HARRISES, THROUGH

       TACKING WITH THEIR PREDECESSORS IN INTEREST, HAD ALREADY

       MADE ADVERSE USE OF THE PROPERTY FOR GREATER THAN 21

       YEARS BEFORE DPL GRANTED A TEMPORARY PERMISSIVE USE OF

       THE PROPERTY.

       {¶ 11} When reviewing a summary judgment, an appellate court conducts a de novo

review. Village of Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

“De Novo review means that this court uses the same standard that the trial court should have

used, and we examine the evidence to determine whether as a matter of law no genuine issues

exist for trial.” Brewer v. Cleveland City Schools Bd. Of Edn., 122 Ohio App.3d 378, 383, 701

N.E.2d 1023 (8th Dist.1997), citing Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116, 413

N.E.2d 1187 (1980). Therefore, the trial court’s decision is not granted any deference by the
                                                                                                   5


reviewing appellate court. Brown v. Scioto Cty. Bd. Of Commrs., 87 Ohio App.3d 704, 711, 622

N.E.2d 1153 (4th Dist.1993).

       {¶ 12}    “An easement in or over the land of another may be acquired only by grant,

express or implied, or by prescription.” Trattar v. Rausch, 154 Ohio St. 286, 95 N.E.2d 685

(1950), paragraph two of the syllabus. A party claiming a prescriptive easement has the burden

of proving a use of the property that is: (1) open; (2) notorious; (3) adverse to the neighbor’s

property rights; (4) continuous; and (5) at least 21 years in duration. J.F. Gioia, Inc. v. Cardinal

Am. Corp., 23 Ohio App.3d 33, 37, 491 N.E.2d 325 (8th Dist.1985). The claimant has the

burden of proving each element by clear and convincing evidence. Coleman v. Penndel Co., 123

Ohio App.3d 125, 130, 703 N.E.2d 821 (7th Dist.1997).

       {¶ 13} If the claimant makes a prima facie case, then the burden shifts to the owner of

the servient property to show that the use was permissive and, therefore, not adverse.

Goldberger v. Bexley Properties, 5 Ohio St.3d 82, 84, 448 N.E.2d 1380 (1983). However, once

the claimant’s use of the property has been open, notorious, and adverse to the servient property

owner for a continuous period of 21 years, it is irrelevant whether the servient property owner

subsequently grants the claimant permission to use the property. Wood v. Village of Kipton, 160

Ohio App.3d 591, 2005-Ohio-1816, 828 N.E.2d 173, ¶ 22-24 (9th Dist.). The only way to

extinguish a matured prescriptive easement is for the titleholder to obstruct the easement in an

open, adverse, and continuous manner for 21 years.            Wood at ¶ 26, citing J.F. Gioia.

Furthermore, “‘[a] user’s acknowledgment that the title holder has the paramount right will not

extinguish a fully matured prescriptive easement.’” Wood at ¶ 25 (9th Dist.), quoting J.F. Gioia

at paragraph six of the syllabus.
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       {¶ 14} The trial court granted DP&L’s motion for summary judgment, finding:

                 In the case at bar, on November 16, 2009, DP&L granted permission to the

       Plaintiffs to enter over, upon and through the DP&L property right of way for the

       express purpose of ingress and egress. The landowner, DP&L, has shown that

       Plaintiffs’ use of the railway right of way was permissive.           Accordingly,

       Plaintiff’s claim for quiet title cannot succeed. Summary Judgment is appropriate

       as to this claim and is SUSTAINED.

Dkt. 63, p. 6.

       {¶ 15} In rendering summary judgment in favor of DP&L on the Harrises’ claim of

prescriptive easement, the trial court relied solely on its finding that DP&L granted the Harrises

permission in 2009 to use the property. In short, the trial court appeared to assume that the

Harrises had made a prima facie case that their use of the property was open, notorious, adverse

to DP&L’s property rights, continuous, and at least 21 years in duration, but then found that

DP&L had carried its burden of rebuttal to show that the use was permissive, and, therefore, not

adverse.   Goldberger.     Assuming the Harrises had in fact established a prima facie case,

however, it is irrelevant whether the property owner subsequently grants permission to use the

property. Wood at ¶ 22-24. A matured prescriptive easement cannot be defeated by permission

granted after the maturation of the easement. Id. at ¶ 26.

       {¶ 16} The trial court erred in holding that DP&L’s grant of permission in 2009 could

defeat a prescriptive easement that had already matured.        DP&L invites us to affirm the

judgment notwithstanding the trial court’s error by concluding that the Harrises, as a matter of

law, have failed to establish that their use of the property was adverse, open, notorious,
                                                                                                   7


continuous, and at least 21 years in duration. But the trial court never reached these issues. It is

the trial court’s duty in the first instance to make findings on these issues.

       {¶ 17} The Harrises’ sole assignment of error is sustained.



                                           IV. Conclusion

       {¶ 18} The Harrises’ sole assignment of error having been sustained, the judgment of the

trial court is Reversed, and the cause is Remanded for further proceedings consistent with this

opinion.

                                           .............

DONOVAN and WELBAUM, JJ., concur.


Copies mailed to:

Christopher B. Epley
James Papakirk
Allison Bisig Oswall
Hon. Frances E. McGee
