Prescriptive Easements in Ohio - The Story of Harris v. Dayton Power & Light Co. (Part 2 of 3)
This is the second post in a three-post series on prescriptive easements, explained through the case of Harris v. Dayton Power & Light Co.
The layout of the property at issue is as follows:
A railroad track runs through it. The 28 acres still owned by the Plaintiffs represents all of the land east of the tracks. The land owned by DP&L represents all of the land west of the tracks. However, DP&L owns the railroad track itself. The Plaintiffs’ 28 acres are divided into two parcels. The first parcel is cleared, and the second parcel is mostly wooded. There is a creek on the second parcel. They have a house and a barn. They have always grown crops on the property. They once used it to pasture cows and pigs, but now they only pasture horses. Sounds lovely, right?
Well, there were two main issues with the Plaintiffs' land. First, they could not access the second (wooded) parcel without crossing over the railroad track, which, again, is technically DP&L’s property. Second, during “periods of high water,” the only way for them to access their house was by crossing over the railroad track. The exact details are unclear, but the gist of it is that to access certain parts of their property, the Plaintiffs had to cross over the railroad track, which was not their property. Issues like these are common in cases where what is originally one tract of land is divided into two or more lots owned by different people.
Orlyn and Dorothy had always used the railroad track to access what is now the Plaintiffs’ property, ever since 1973. The Plaintiffs continued to do so after they took over the property, as is explained above. For over 35 years, it appears that the Harrises (and later the Plaintiffs) simply crossed the railroad tracks whenever they needed to, without incident.
In 2009, DP&L sent a formal letter to the Plaintiffs, essentially asking them to “cease and desist” from using the railroad property. Negotiations started between the two sides. The Plaintiffs tried to just buy the railroad property, but a deal could not be reached. Presumably after negotiations through attorneys, DP&L granted the Plaintiffs “the right to enter over, upon, and through the railroad property for the express purpose of ingress and egress.” Harris, at ¶ 3. In English, DP&L told them they could cross over the railroad tracks as necessary to enter and exit their property. However, for reasons that are not explained, DP&L revoked that permission less than a year later. Supposedly, the Plaintiffs “ceased all activity on the railroad property” except for two days in 2011 when DP&L let them use it to access their property to remove equipment.
Harris, at ¶ 3. It is unclear whether they lived at the property during this period, moved away temporarily, stayed at home every time it rained, only used one parcel of their land, or what. It is also not clear whether the Court issued a “temporary restraining order” and/or “preliminary injunction” to expressly prevent them from using the railroad property. Reading between the lines, it may well be that they simply continued to cross over the railroad track without being noticed.
The next (and final) post in this series will explain the outcome of the case.
Alex Durst is a Cincinnati business litigation attorney with The Durst Law Firm. Licensed in Ohio, Alex has also practiced in Missouri, Florida, Indiana, California, Nevada, Massachusetts, and Kentucky. Alex can be reached at (513) 621-2500 or firstname.lastname@example.org.