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Rubel v. Thomas

2026-07-08

Authorities cited

Opinion

majority opinion

[Cite as Rubel v. Thomas, 2026-Ohio-2704.]

IN THE COURT OF APPEALS OF OHIO

FOURTH APPELLATE DISTRICT

LAWRENCE COUNTY

ELLEN RUBEL, et al., :

Plaintiffs-Appellants, : Case No. 25CA17

v. :

SCOTT C. THOMAS, et al., : DECISION AND JUDGMENT ENTRY

Defendants-Appellees. :

APPEARANCES:

Steven R. R. Anderson, Galena, Ohio, for appellant.

James T. Holt, IV, Ironton, Ohio, for appellees.

________________________________________________________________ CIVIL APPEAL FROM COMMON PLEAS COURT

DATE JOURNALIZED:7-8-26

ABELE, J.

{¶1} This is an appeal from a Lawrence County Common Pleas

Court judgment. Ellen Rubel, plaintiff below and appellant

herein,1 assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN HOLDING THAT

APPELLANT ELLEN RUBEL’S EXPRESS UTILITY

EASEMENT HAD BEEN ABANDONED.”

1 We observe that appellant’s brother also was named as a plaintiff in

the trial court proceedings. Additionally, his name appears on the pro se notice of appeal that appellant and her brother filed. The brother otherwise has not participated in the appellate proceedings. Moreover, appellant’s counsel did not enter an appearance of counsel on behalf of the brother. Lawrence App. No. 25CA17 2

SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN HOLDING THAT, EVEN

IF THE EXPRESS UTILITY EASEMENT HAD NOT BEEN

ABANDONED, EQUITY WOULD REQUIRE THAT MS.

RUBEL NOT BE PERMITTED TO USE IT.”

THIRD ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN REWRITING THE

EXPRESS UTILITY EASEMENT RATHER THAN GIVING

EFFECT TO THE WORDS IN THE EASEMENT.”

{¶2} This case arises from an easement dispute. In 2013,

appellant inherited property containing a house located adjacent

to property later owned by Scott C. Thomas and Lesley Thomas,

defendants below and appellees herein. The 1.64-acre tract that

appellees presently own abuts a main road and sits in front of

appellant’s parcel. Years before appellees acquired their

property, the property had been part of a larger tract that

appellant’s predecessor in interest owned.

{¶3} When appellant’s predecessor in interest divided the

parcel and conveyed the tract to appellees’ predecessor in

interest, the grantor reserved “the right to lay, relay, and

maintain all existing utility lines as now located, October

1987, over and on said 1.64 tract.” The grantor also reserved a

12-foot-wide right-of-way to maintain access to the property. A

survey drawing of the two parcels depicts the location of the

right-of-way, but does not depict the location of the utility

easement.

Lawrence App. No. 25CA17 3

{¶4} When appellant inherited the property, she did not live

in Ohio, but she traveled to visit the property once per year or

once every other year. Shortly after inheriting the property,

appellant discontinued the natural gas supply. In 2015,

appellant attempted to restore natural gas service. The gas

company detected a leak in the service line and informed

appellant that the line would need to be replaced before service

could be restored. The gas company later removed the meter and

connection line due to a lack of use.

{¶5} By December 2015, the home no longer had a water

supply. When appellant investigated reconnecting the water

supply to the home, she learned that the water service lines

also would need to be replaced before service could be restored.

{¶6} Sometime in 2017 or 2018, appellees started to prepare

their lot for the construction of an athletic complex. Before

appellees began construction, the contractor contacted the

utility companies to ask whether the property contained any

active utility lines. After confirming that the property did

not contain any active utility lines, appellees began to prepare

the site for construction. In 2020, appellees poured concrete

for a parking lot.

{¶7} On June 8, 2023, appellant filed a complaint for

injunctive and monetary relief. In the complaint, appellant

alleged that appellees wrongfully obstructed her easement for Lawrence App. No. 25CA17 4

water and natural gas utilities by building a concrete parking

lot over her utility easement. Appellant alleged that

appellees’ actions caused damage to her utility lines and

prevented her from being able to have natural gas and water

service to her house.

{¶8} Thus, appellant requested the trial court issue an

injunction to restrain appellees from closing, obstructing, and

preventing the use of her utility easement. Appellant also

sought damages for the cost to remove the concrete and to repair

the utility lines.

{¶9} The case later proceeded to a trial before the trial

court’s magistrate. At trial, appellant attempted to establish

that the utility easement referenced in the deed ran in a

straight line from the main roadway, underneath what is now

appellees’ parking lot, to her house.

{¶10} Appellees, on the other hand, attempted to show that

appellant did not actually know where the utility lines were

located as of October 1987, the date contained in the deed

granting the easement. They asserted that appellant could only

speculate as to the location of the easement as it existed in

October 1987. Appellees further sought to prove that appellant

had abandoned any easement that may have existed underneath

their parking lot.

Lawrence App. No. 25CA17 5

{¶11} After hearing all of the evidence, the magistrate

determined that appellant failed to establish the location of

the utility lines as they existed in October 1987. The

magistrate found that the witnesses who offered testimony

regarding the location of the utility lines relied upon

assumptions, not documentary proof.

{¶12} The magistrate next concluded that appellant had

abandoned the easement based upon the following findings: (1)

appellant had not used the water and gas utilities “for a number

of years”; (2) in 2017, the gas company removed the meter and

connection line due to a lack of use; (3) the gas company

considered the line to be abandoned; (4) the water meter had

been assigned to appellees due to appellant’s nonuse; (5)

appellees’ contractor was advised that appellees’ property did

not contain any active utility lines; and (6) restoring service

to appellant’s property would require new utility service lines

to be installed.

{¶13} The magistrate further decided that, even if appellant

had not abandoned the easement, “equity would prevent the use of

the easement where a much less expensive and less destructive

alternative is available.” The magistrate concluded that

appellant was entitled to an easement across appellees’ property

“as necessary to establish water and natural gas utility service

to [appellant’s] subject parcel . . . without the destruction, Lawrence App. No. 25CA17 6

reconstruction or disturbance of” appellees’ concrete parking

lot.

{¶14} Appellant objected to the magistrate’s decision and

asked the court to determine that she has an express easement

that entitles her “to use [the] utility line easement from the

meter location by the County Road and running straight back to

[her] house.” Appellant asked the court to award “damages to

repair and relay the gas and water lines” in the amount of

$42,500 and to issue an injunction to prevent appellees “from

interfering with [appellant’s] right to lay, relay and maintain

such utility lines within the express easement.”

{¶15} The trial court subsequently overruled appellant’s

objections to the magistrate’s decision. The court found that

the easement did not specifically define the location of the

utility easement. The court further noted that none of the

parties presented records to document “the location of any

utility service lines to [appellant’s] parcel over or on

[appellees’] parcel as of the date specified in the easement,

October 1987.” The court concluded that appellant instead

“assumed . . . that the previous utility lines ran directly from

the taps and meters located near State Route 7 straight back to

[her] parcel.” The court thus determined that “[t]he evidence

failed to establish the location of the utility lines as those

lines existed in October of 1987.”

Lawrence App. No. 25CA17 7

{¶16} The trial court next found that appellant abandoned

the utility easement. The court stated that “[t]he utilities

had not been used for a number of years.” The court recognized

that nonuse was insufficient by itself to establish abandonment,

but explained that “non-use may be accompanied by other factors

and circumstances which either strengthen or weaken it.” The

court found that the following factors favored a finding of

abandonment:

1) Columbia Gas remov[ed] the meter and connection line

in 2017 due to the lack of use and pursuant to Ohio law.

Columbia Gas considered the line to be abandoned. 2)

The water meter had been assigned to [appellees] due to

[appellant’s] non-use. [Appellant’s brother] commented

several times [that appellees] had ‘stolen his meter and

mailing address’. 3) New utility services lines would

need to be replaced in order for services to be restored.

4) The contractor, Scott Riley, testified he contacted

the utility company prior to any site work being

performed and was advised there were no active utility

lines on defendant subject property.

{¶17} The trial court also agreed with the magistrate’s

conclusion that, even if appellant had not abandoned the

easement, “equity would prevent the use of the easement where a

much less expensive and less destructive alternative is

available.” The court thus granted appellant an easement “as

necessary to establish water and natural gas utility service to

[appellant’s] subject parcel . . . without the destruction,

reconstruction or disturbance of the concrete parking lot”

located on appellees’ property. This appeal followed.

Lawrence App. No. 25CA17 8

I

{¶18} In her first assignment of error, appellant asserts

that the trial court erred by concluding that she had abandoned

the easement. She contends that the trial court did not

correctly apply the law applicable to the abandonment of an

easement.

{¶19} We initially observe that the question whether an

easement holder has abandoned an easement is a question of fact.

Worthy v. Hawthorne, 2025-Ohio-1941, ¶ 41 (4th Dist.); Crane

Hollow, Inc. v. Marathon Ashland Pipe Line, LLC, 138 Ohio App.3d

57, 72 (4th Dist. 2000). Thus, an appellate court will not

disturb a trial court’s abandonment finding so long as some

competent, credible evidence supports it. Crane Hollow, 138

Ohio App.3d at 72.

{¶20} “‘An abandonment is proved by evidence of an intention

to abandon as well as of acts by which the intention is put into

effect; there must be a relinquishment of possession with an

intent to terminate the easement.’” W. Park Shopping Ctr., Inc.

v. Masheter, 6 Ohio St.2d 142, 144 (1966), quoting Dalton v.

Johnson, 320 S.W.2d 569, 574 (Mo. 1959). Accordingly, to

establish that the owner of a dominant estate has abandoned an

easement, the owner of the servient estate must establish (1)

nonuse of the easement, and (2) an intent to abandon the

easement. See Crane Hollow, 138 Ohio App.3d at 72; Snyder v. Lawrence App. No. 25CA17 9

Monroe Twp. Trustees, 110 Ohio App.3d 443, 457 (2d Dist. 1996).

Thus, “[m]ere nonuse of an easement is generally insufficient to

establish abandonment.” Penn v. Esham, 2008-Ohio-3695, ¶ 13

(4th Dist.). Instead, nonuse must be coupled with an intent to

abandon the easement.

{¶21} “Intent to abandon an easement must be ‘demonstrated

by “unequivocal and decisive acts” inconsistent with continued

use and enjoyment of the easement.’” Crane Hollow, 138 Ohio

App.3d at 72, quoting Snyder v. Monroe Twp. Trustees, 110 Ohio

App.3d 443, 458 (2nd Dist. 1996), quoting Warner v. Thompson,

1993 WL 386252, *2 (12th Dist. Sept. 27, 1993); accord Bauerbach

v. LWR Ents., Inc., 2006-Ohio-4991, ¶ 19 (4th Dist.). “‘An

intention to abandon may be inferred where the owner of the

easement does, or permits to be done, any act inconsistent with

its future enjoyment.’” Hiener v. Kelley, 1999 WL 595363, *11

(4th Dist. July 23, 1999), quoting 36 Ohio Jur.3d, Easements and

Licenses, § 87, at 493 (1982).

{¶22} In the case at bar, even if the trial court erred by

determining that appellant had abandoned the easement, we do not

believe that the trial court’s judgment must be reversed.

Instead, the trial court provided an alternative rationale for

deciding the case. The court concluded that, even if appellant

had not abandoned the easement, equitable principles prevented

enforcing the easement as appellant requested. The court noted Lawrence App. No. 25CA17 10

that enforcing the easement as appellant requested would require

the excavation of appellees’ parking lot. The court determined

that appellant could obtain the use of the easement—the relaying

of utility service lines—without disturbing appellees’ parking

lot. As we explain in our discussion of appellant’s second

assignment of error, the trial court appropriately exercised its

equity jurisdiction, and we may uphold its judgment under this

alternative rationale.

{¶23} Thus, even if we agreed with appellant that the trial

court incorrectly determined that she abandoned the easement, we

do not believe that this alleged error would mandate a reversal

of the trial court’s judgment. See App.R. 12(B) (requiring

affirmance when “the trial court committed no error prejudicial

to the appellant”); Civ.R. 61 (“The court at every stage of the

proceeding must disregard any error or defect in the proceeding

which does not affect the substantial rights of the parties.”).

In other words, even if appellant did not abandon the easement,

the trial court was not required to enter a judgment that

granted appellant the right to dig up appellees’ parking lot and

install new utility lines underneath their parking lot.

{¶24} Accordingly, based upon the foregoing reasons, we

overrule appellant’s first assignment of error.

Lawrence App. No. 25CA17 11

II

{¶25} In her second assignment of error, appellant asserts

that the trial court erred by determining that, even if she had

not abandoned the easement, “equity would prevent the use of the

easement where a much less expensive and less destructive

alternative is available.” She contends that the trial court’s

equitable determination is flawed because the court’s solution

is only less expensive and less destructive for appellees, not

for her. Appellant argues that appellees’ conduct in installing

a concrete parking lot over her alleged easement leaves her “in

a materially worse position no matter which way you cut it.”

She states that relaying the utility lines requires her to

“either excavate and then repair [appellees’] parking lot, or

else she must pay to have the lines re-laid along a longer and

more expens[ive] route around it.” Appellant claims that

“[e]ither option is more expensive than simply laying new lines

along the existing, unobstructed easement.”

A

{¶26} We initially observe that an “injunction is an

extraordinary remedy equitable in nature,” and thus, “its

issuance may not be demanded as a matter of strict right.”

Perkins v. Village of Quaker City, 165 Ohio St. 120, 125 (1956).

Instead, “[t]he grant or denial of an injunction is solely

within the trial court’s discretion and, therefore, a reviewing Lawrence App. No. 25CA17 12

court should not disturb the judgment of the trial court absent

a showing of a clear abuse of discretion.” Garono v. State, 37

Ohio St.3d 171, 173 (1988); see Perkins at 125 (“An application

for an injunction is addressed to the sound discretion of the

court, and its allowance is a matter of grace.” [citation

omitted]). An abuse of discretion implies that a court’s

attitude was unreasonable, arbitrary, or unconscionable. State

v. Beasley, 2018-Ohio-16, ¶ 12, citing Blakemore v. Blakemore, 5

Ohio St.3d 217, 219 (1983). “A decision is unreasonable if

there is no sound reasoning process that would support that

decision.” AAAA Ents., Inc. v. River Place Community Urban

Redevelopment Corp., 50 Ohio St.3d 157, 161 (1990). “[A]n

‘arbitrary’ decision is one made ‘without consideration of or

regard for facts [or] circumstances.’” Beasley at ¶ 12, quoting

Black’s Law Dictionary (10th Ed.2014), and citing Dayton ex rel.

Scandrick v. McGee, 67 Ohio St.2d 356, 359 (1981), quoting

Black’s (5th Ed.1979) (“arbitrary” means “ ‘without adequate

determining principle; . . . not governed by any fixed rules or

standard’ ”). An unconscionable decision is one “showing no

regard for conscience” or “affronting the sense of justice,

decency, or reasonableness.” Black’s (11th ed. 2019). An

unconscionable decision also may be characterized as

“[s]hockingly unjust or unfair.” Id. The abuse of discretion

standard is deferential and does not permit an appellate court Lawrence App. No. 25CA17 13

to simply substitute its judgment for that of the trial court.

See State v. J.B., 2026-Ohio-1405, ¶ 13, citing Berk v.

Matthews, 53 Ohio St.3d 161, 169 (1990).

B

{¶27} A court may issue an injunction to rectify an

irreparable injury when legal remedies, such as monetary

damages, are inadequate. See Haig v. Ohio State Bd. of Edn., 62

Ohio St.3d 507, 510 (1992) (“An injunction is an equitable

remedy and will not lie where there is an adequate remedy at

law.”). An injunction may be mandatory or prohibitory. State

ex rel. Gen. Motors Corp. v. Indus. Comm., 2008-Ohio-1593, ¶ 12.

A prohibitory injunction prevents a future injury “by enjoining

a defendant from performing the challenged acts in the future.”

Id. On the other hand, a mandatory injunction is an

extraordinary remedy that a court may issue to cure a past

injury. Id. A mandatory injunction compels “a party to restore

a status which he has wrongfully changed.” Gratz v. Lake Erie &

W.R. Co., 76 Ohio St. 230, 233 (1907); see State ex rel. Gen.

Motors Corp. at ¶ 12 (a mandatory injunction “compels the

defendant to restore a party’s rights through an affirmative

action”); Black’s Law Dictionary (12th ed. 2024) (defining a

mandatory injunction as one “that compels a party to do some act

or mandates a specified course of conduct”). “[A] mandatory

injunction can be issued, for instance, to order removal of an Lawrence App. No. 25CA17 14

encroachment from neighboring property.” Martin v. Lake Mohawk

Property Owner’s Assn., 2005-Ohio-7062, ¶ 49 (7th Dist.).

Additionally, “[t]he owner of an easement, in a proper case, may

obtain a mandatory injunction to remove an obstruction of the

easement . . . .” 36 Ohio Jur.3d, Easements and Licenses, § 75;

see Warsaw v. Chicago Metallic Ceilings, Inc., 35 Cal.3d 564,

572 (1984) (“there is extensive authority standing for the

proposition that a court of equity may, in a proper case, issue

a mandatory injunction for protection and preservation of an

easement including, where appropriate, an order for removal of

an obstruction already erected” [citations omitted]).

{¶28} In the case at bar, we first point out that

appellant’s requested relief for an injunction is in the nature

of a mandatory injunction. She did not seek to prevent a future

injury but, instead, sought to remedy a past injury. Appellant

asked the court to order the removal of the portion of

appellees’ concrete parking lot that she alleged encroached upon

her underground utility easement. We therefore review the trial

court’s judgment that rejected appellant’s particular request

for an injunction as a judgment that denied a request for a

mandatory injunction.

{¶29} Given “the drastic character of mandatory

injunctions,” equitable considerations carry “special force.”

Miller v. West Carrollton, 91 Ohio App.3d 291, 296 (2d

Lawrence App. No. 25CA17 15

Dist.1993). “[T]he court will balance the equities between the

parties and consider the benefit to the plaintiff of a mandatory

writ as against the inconvenience and damage to the defendant,

and award relief accordingly.” Id. at 297. A trial court that

is evaluating a party’s request for a mandatory injunction thus

should engage in a balancing process “to consider and weigh the

relative conveniences and comparative injuries to the parties

which would result from the granting or refusal of injunctive

relief.” Id. at 296; accord Skinkiss v. Gleeson, 2008-Ohio-356,

¶ 12 (12th Dist.); Old Mill Village Homeowners Assn. v. Bacik,

1993 WL 27416, *2 (9th Dist. Feb. 3, 1993) (courts generally

“balance the relative hardships to the parties in devising an

appropriate equitable remedy”).

{¶30} When a party asks a court “to undo something that has

been done, [the court] must, for obvious reasons, act in a

careful and conservative manner and grant the relief only in

situations which so clearly call for it as to make its refusal

work a real and serious hardship and injustice.” Miller, 91

Ohio App.3d at 296. Thus, when “the expense and difficulty of

removal of an encroachment would be great and the encroachment”

causes “minimal damage to the plaintiff, or its removal would

result in little benefit to him, a mandatory injunction is not

required.” Old Mill Village, 1993 WL 27416, at *2 (9th Dist.);

see also Perkins, 165 Ohio St. at 125 (1956), quoting Bray v. Lawrence App. No. 25CA17 16

Ocean City R. Co., 37 A. 604, 605 (N.J.Ch. 1897) (“‘an

injunction will not be granted if it will cause great injury to

the defendants, without corresponding advantage to the

complainant’”); Clough v. W.H. Healy Co., 53 Cal.App. 397, 400-01 (Cal.App. 1921) (a court should deny a request for a

mandatory injunction to remove an easement obstruction “when the

obstruction does not constitute a material interference with the

right of the owner of the easement, or where the damage

sustained by him is merely nominal” or when the expense entailed

by removing the obstruction “would be entirely disproportionate

to the benefit resulting”). In accordance with these general

principles, courts generally find it inequitable to order a

property owner to destroy costly improvements, especially when

the owner did not act willfully. See Miller, 91 Ohio App.3d at

298 (observing that courts typically deny injunctions when the

offending party’s conduct was not “willful but the result of

accident or mistake, without undue haste and without actual

knowledge of the restriction”); see also Brady v. Haines, 2021-Ohio-4565, ¶ 6, 13-14 (3d Dist.) (upholding the trial court’s

denial of a mandatory injunction ordering a property owner to

remove an encroachment when the evidence did not show that the

owner acted willfully or that the encroachment affected the

complaining party’s ability to farm the land); Martin, 2005-Ohio-7062, at ¶ 50 and 54 (7th Dist.) (determining that the Lawrence App. No. 25CA17 17

complaining party was not entitled to a mandatory injunction

ordering the offending party to destroy a home due to

allegations of an obstructed lake view when the offending

party’s conduct was not willful); Old Mill Village, 1993 WL

27416, at *2 (9th Dist.) (upholding the trial court’s refusal to

grant an injunction requiring a homeowner to remove a deck that

encroached on to another’s property by nine inches).

{¶31} In the case sub judice, we do not believe that the

trial court abused its discretion by determining that appellant

should not be entitled to an injunction that ordered appellees

to remove the concrete parking lot that allegedly obstructed her

easement. First, we observe that the trial court did not make

any finding that appellees’ conduct was willful. Appellees

stated that they were unaware of appellant’s utility easement.

Furthermore, before appellees constructed the parking lot, their

contractor contacted the utility companies and confirmed that

the property did not contain any active utility lines. Although

appellant claims that appellees knowingly paved over her alleged

easement, the trial court evidently did not agree.

{¶32} Moreover, the expense entailed by excavating and

repairing appellees’ parking lot would be entirely

disproportionate to any resulting benefit to appellant.

Appellant presented evidence to indicate that installing the

service lines underneath appellees’ parking lot would cost

Lawrence App. No. 25CA17 18

$42,500. This amount includes excavating appellees’ parking

lot, installing the new utility lines, and repairing appellees’

parking lot. The evidence further suggests that the cost of

excavating and repairing the concrete parking lot alone would be

around $20,000. Thus, the expense entailed by excavating and

repairing appellees’ parking lot, on its own, appears to be

around $20,000.

{¶33} Excavating the parking lot would give appellant a

place to install new utility lines. The evidence does not,

however, suggest that appellant must install the utility service

lines beneath appellees’ parking lot or that she would obtain

some special benefit by installing the utility service lines

beneath appellee’s parking lot. Indeed, both she and appellees

submitted estimates that depicted the costs involved in routing

the utility lines around the parking lot.

{¶34} Appellant presented evidence to show that installing

the gas lines on the right side of appellees’ property would

cost $10,750, and installing the water lines on the left side of

appellees’ property would cost $8,500. Appellees presented

evidence that running the gas line underneath their parking lot—

without the presence of the concrete parking lot—would cost

around $3,500, and installing the gas line around the parking

lot would cost about $400 more, i.e., $3,900. Appellees’

Lawrence App. No. 25CA17 19

evidence further showed that installing a new water line would

have cost about the same amount.

{¶35} This evidence shows that installing the utility lines

in a location other than beneath appellees’ parking lot is

feasible and that appellant would have the ability to continue

to use the easement. Furthermore, appellant’s two estimates for

routing the utility lines around appellees’ parking lot ($10,750

and $8,500) total less than half of the amount required to

install the utility lines beneath appellees’ parking lot

($42,500). Thus, the expense of excavating and repairing

appellees’ parking lot does not appear to be necessary for

appellant to continue enjoying the use of her easement.

Furthermore, installing the utility lines beneath appellees’

parking lot or around the parking lot would give appellant the

same benefit—water and gas supply to her house. Nothing in the

record suggests that the benefit of allowing appellant to dig up

appellees’ parking lot and install utility service lines beneath

it outweighs the costs associated with excavating and repairing

appellees’ parking lot.

{¶36} Appellant claims, however, that the trial court’s

remedy is more expensive for her. She suggests that the added

expense of installing utility lines around the parking lot does

not outweigh the expense and inconvenience of digging up

appellees’ parking lot. As we noted above, appellant’s evidence Lawrence App. No. 25CA17 20

shows that her request to install the lines underneath

appellees’ parking lot would have cost $42,500. She did not

present evidence to show what the cost would have been to

install the lines in the same location were it not for the

parking lot. Appellees’ evidence showed that installing the gas

line underneath the parking lot, as appellant requested, would

have cost around $3,500, and installing the gas line around the

parking lot would have cost about $400 more, i.e., about $3,900.

Although $400 is not an insignificant sum, we observe that the

evidence presented at trial indicated that excavating appellees’

parking lot and replacing the concrete alone would have cost

around $20,000. Thus, not only would digging up the parking lot

be disruptive, it also would cost significantly more than

installing the utility lines around the parking lot. And even

though running the utility lines around the parking lot

evidently would cost more money, the evidence fails to indicate

that the amount of money (around $400) would have been close to

or greater than the amount of money needed to dig up and repair

appellees’ parking lot.

{¶37} Appellant nevertheless contends that the trial court’s

remedy may leave her without any access to gas and water

utilities. She states that neither the gas nor the water

company was made a party to the proceeding, and nothing in the

record shows that either company would be able to install new Lawrence App. No. 25CA17 21

service lines in accordance with the trial court’s decision. We

observe, however, that appellant did not raise this particular

issue when she objected to the magistrate’s decision. Instead,

she raises it for the first time on appeal. Under these

circumstances, she has waived the right to present it on appeal.

See Redmond v. Wade, 2017-Ohio-2877, ¶ 31 (4th Dist.) (the

failure to state with particularity all grounds for objection

results in a waiver of those particular issues on appeal);

accord State ex rel. Muhammad v. State, 2012-Ohio-4767, ¶ 3 (a

party waives an argument on appeal if the party failed to

specifically raise that issue in objections to the magistrate’s

decision).

{¶38} In sum, we do not believe that the trial court abused

its discretion by rejecting appellant’s request for an

injunction that ordered appellees to remove the part of their

parking lot that would have allowed appellant to install new

utility service lines beneath the parking lot. Instead, the

trial court appropriately exercised its equity jurisdiction to

devise a solution that appeared to have the least amount of

disruption to appellees’ property at the lowest cost, without

lessening the utility of the easement or frustrating the purpose

for which the easement was created. See generally Kuehnle,

Levey, and Bower, Ohio Real Estate Law, § 26:18, quoting

Restatement of the Law 3d, Property, Servitudes, § 4.8(3) (2000) Lawrence App. No. 25CA17 22

(stating that the owner of the servient estate may relocate an

easement as long as the relocation does not “‘(a) significantly

lessen the utility of the easement, (b) increase the burden on

the owner of the easement in its use and enjoyment, or (c)

frustrate the purpose for which the easement is created’”).

{¶39} Accordingly, based upon the foregoing reasons, we

overrule appellant’s second assignment of error.

III

{¶40} In her third assignment of error, appellant contends

that the trial court erred by rewriting the easement, rather

than enforcing the easement as written.

{¶41} “When an easement is created by an express grant, . .

. the extent of and limitations on the use of the land depend on

the language in the grant.” State ex rel. Wasserman v. Fremont,

2014-Ohio-2962, ¶ 28. “The language of the easement, considered

in light of the surrounding circumstances, is the best

indication of the extent and limitations of the easement.”

(Citations omitted.) Id. Thus, courts first must review the

“plain and ordinary meaning” of the language used in the

easement “unless manifest absurdity results or unless some other

meaning is clearly intended from the face or overall contents of

the instrument.” Alexander v. Buckeye Pipe Line Co., 53 Ohio

St.2d 241, 245-46 (1978); see Koprivec v. Rails-to-Trails of Lawrence App. No. 25CA17 23

Wayne Cty., 2018-Ohio-465, ¶ 24 (courts must interpret deeds

using plain language contained in the document).

{¶42} Furthermore, when the language of the easement is

clear and unambiguous, courts “cannot in effect create a new

contract by finding an intent not expressed in the clear

language employed by the parties.” Buckeye Pipe Line Co., 53

Ohio St.2d at 246; accord Esteph v. Grumm, 2008-Ohio-1121, ¶ 10

(4th Dist.) (“[w]hen the language granting an easement is clear

and the delineation of the easement is unambiguous, we presume

that the deed expresses the intent of the parties, and we need

not go beyond that language in determining the scope of the

easement”); Murray v. Lyon, 95 Ohio App.3d 215, 219 (9th

Dist.1994) (“[i]f the intent is plain from the face of the

document, then it is not necessary to resort to rules of

construction to determine the easement's effect”). An easement

“is unambiguous if it can be given a definite legal meaning.”

(Citation omitted.) Westfield Ins. Co. v. Galatis, 2003-Ohio5849, ¶ 11. On the other hand, the language of an easement may

be ambiguous if it is “susceptible to more than one reasonable

interpretation.” Motorists Mut. Ins. Co. v. Ironics, Inc.,

2022-Ohio-841, ¶ 68.

{¶43} “[T]he initial determination of whether an ambiguity

exists presents an abstract legal question, which [appellate

courts] review on a de novo basis.” Pierron v. Pierron, 2008-Lawrence App. No. 25CA17 24

Ohio-1286, ¶ 8 (4th Dist.), citing Stewart v. Stewart, 1992 WL

388546, *2 (4th Dist. Dec. 22, 1992); accord Ayersville Water &

Sewer Dist. v. Geiger, 2012-Ohio-2689, ¶ 31 (3d Dist.)

(“[w]hether the easement’s language was sufficiently definite to

establish its location is a question of law that is reviewed de

novo upon appeal”). If ambiguity exists, “then the

determination of what the actual terms were becomes a question

of fact.” Lake Erie Towing v. Troike, 2006-Ohio-5115, ¶13 (6th

Dist.). In the absence of ambiguity, the interpretation of an

express easement is a question of law subject to de novo review.

See Corder v. Ohio Edison Co., 2020-Ohio-5220, ¶ 25, citing

Buckeye Pipe Line Co., 53 Ohio St.2d 241, paragraph one of the

syllabus.

{¶44} When an easement fails to contain unambiguous language

describing the precise location of the utility easement, the

location and dimension of the easement generally “are those

reasonably necessary for enjoyment of the servitude.” Kuehnle,

Levey, and Bower, Ohio Real Estate Law, § 26:18, citing

Restatement of the Law 3d, Property, Servitudes, § 4.8(2)

(2000); see Roebuck v. Columbia Gas Transm. Corp., 57 Ohio

App.2d 217, 224 (2d Dist. 1977), quoting 18A Ohio Jur.2d,

Easements, § 51 (“‘if an easement is not specifically defined,

the rule is that its extent is only such as is reasonably

necessary and convenient for the purpose for which it was

Lawrence App. No. 25CA17 25

created’”). In addition, “without a specific delineation of the

easement in the instrument, courts may look to other

circumstances to ascertain the intention of the parties and

determine the scope of the easement.” Columbia Gas Transm.

Corp. v. Bennett, 71 Ohio App.3d 307, 318 (2d Dist. 1990);

accord Hoover v. Pfeifer, 2025-Ohio-4909, ¶ 57 (3d Dist.) (“If

there is no specific delineation of the easement in the

instrument, or if the delineation is ambiguous, then a court may

look to other circumstances to ascertain the intent of the

parties or fashion a reasonable interpretation of the

easement.”). Thus, for example, when “an instrument is silent

on the width and depth to be given a gas pipeline easement, a

court may define its scope by what is reasonably necessary and

convenient to accomplish the purpose for which the easement was

granted.” Bennett, 71 Ohio App.3d at 318.

{¶45} In the case at bar, the easement granted the owner of

the dominant estate “the right to lay, relay, and maintain all

existing utility lines as now located, October 1987, over and on

said 1.64 tract.” The trial court did not believe that

appellant had presented competent and credible evidence to

establish the location of the lines as of October 1987. The

court instead determined that appellant’s evidence rested upon

assumptions, not proof.

Lawrence App. No. 25CA17 26

{¶46} The trial court’s finding that the exact location of

the easement cannot be accurately determined is supported by

competent, credible evidence. Thus, given the ambiguity, the

trial court appropriately defined the easement as granting the

right to lay, relay, and maintain utility lines as reasonably

necessary to accomplish the purpose for which the easement was

granted, without destroying, reconstructing, or disturbing

appellees’ parking lot. Consequently, because the easement as

written was ambiguous regarding its location, appellant’s

assertion that the trial court erred by failing to enforce the

easement as written is without merit.

{¶47} Accordingly, based upon the foregoing reasons, we

overrule appellant’s third assignment of error and affirm the

trial court’s judgment.

JUDGMENT AFFIRMED.

Lawrence App. No. 25CA17 27

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that

appellant shall pay the costs.

The Court finds there were reasonable grounds for this

appeal.

It is ordered that a special mandate issue out of this

Court directing the Lawrence County Common Pleas Court to carry

this judgment into execution.

A certified copy of this entry shall constitute the mandate

pursuant to Rule 27 of the Rules of Appellate Procedure.

Hess, J. & Wilkin, J.: Concur in Judgment & Opinion

For the Court

BY:__________________________

Peter B. Abele, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 22, this document constitutes a

final judgment entry and the time period for further appeal commences from the date of filing with the clerk.