[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.