Prescriptive Easements in Ohio - The Story of Harris v. Dayton Power & Light Co. (Part 3 of 3)
This is the third post in a three-post series on prescriptive easements, explained through the case of Harris v. Dayton Power & Light Co. (click here to read the first post, and here to read the second post). This post explains why the Plaintiffs were granted a prescriptive easement.
The case started when the Plaintiffs filed a lawsuit asking the court to grant it an “easement by prescription,” which would allow them to cross over the railroad track as necessary. In the Complaint (the lawsuit), they referred to their legal claim as an “action seeking to quiet title.” Technically, that was incorrect; an action to quiet title is a lawsuit where someone seeks a declaration that they are the true legal owner of a piece of property, thereby “quieting” any challenges or claims to their ownership. That is different from a lawsuit seeking an easement. DP&L’s attorneys tried to make hay of this, but they were unsuccessful. The Judge rejected their hypertechnical argument, for good reason. It was clear to everyone from the body of the Complaint that the Plaintiffs were seeking an “easement,” not to quiet title.
An easement is defined as “a right to cross or otherwise use someone else's land [without having to pay] for a specified purpose.” If you have an easement, you don’t own the land you are crossing over; you just have the right to access/cross over it for the specified purpose (i.e., entering and exiting your own property in most cases). In ancient English terms, your property is referred to as the “dominant estate” and the property you are crossing over is referred to as the “servient estate.” There are two types of easements: easements by grant and easements by prescription (prescriptive easements). An easement by grant is an easement that is voluntarily given (though not necessarily for free – it is common to negotiate the purchase of an easement). In this case, for reasons unknown, DP&L refused to grant the Plaintiffs an easement, so they had to seek a prescriptive easement.
A prescriptive easement is similar to the property law concept known as “adverse possession,” by which you can come to own someone else’s property if they abandon it and you use it for a long enough period of time (along with other requirements). However, as opposed to actual ownership, a prescriptive easement simply allows you to have an easement over the other person’s property – i.e. cross over it for some specific purpose – if you have been using it for long enough. Under Ohio law, the party seeking a prescriptive easement has the “burden of proof” and must establish in Court that they have been using a neighbor’s property in a manner 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). These five “elements” must be proven by “clear and convincing evidence,” which is a higher burden of proof than the “preponderance of the evidence” standard that applies to most civil claims. In this case, there was no question as to the first and second elements.
The Plaintiffs’ use of the railroad track was clearly open (because they did not try to hide it) and notorious (because DP&L would have been aware of it had it maintained a “reasonable degree of supervision” over the track). Likewise, the third element was met because the Plaintiffs’ use of the land was without permission from (i.e., “adverse to”) DP&L (at least until 2009). DP&L attempted to argue that the Plaintiffs’ use of the railroad track was not “continuous,” as the fourth element requires, because what they used the railroad track for changed over the years (farming from 1973 to 1994, and then primarily recreational purposes after that). This was flat out wrong – the Plaintiffs never truly used the railroad track itself (described as an “abandoned elevated railroad bed) for anything. They simply used it to get from one parcel of their land to another. This did not change between 1973 and 2009. It is also important to note that the Plaintiffs – the Harrises’ son and daughter-in-law – technically did not meet the 21-year requirement. However, the law provides that “continuity is not broken by a change of ownership between family members,” so the clock started in 1973. Harris, at ¶ 21. As such, the fifth element was established as well.
DP&L tried to make another argument, which seems to me a tad disingenuous. They argued that the Plaintiffs never had “exclusive possession” of the railroad track. Exclusive possession is an element of the legal claim of adverse possession. However, under clearly defined Ohio case law reaching back as far as 1950 (perhaps longer), exclusive possession is simply not required in order to obtain a prescriptive easement. It is surprisingly common for attorneys to make arguments like this, suggesting that a claim fails because the Plaintiff doesn’t meet some requirement that does not even exist in the first place! The Second District Court of Appeals was not fooled.
In the end, the Plaintiffs won after a protracted battle in Court against DP&L. They can use that railroad track to go from one part of their land to another. Let’s hope they enjoy it.
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.