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Date: 04-10-2019

Case Style:

PATRICIA L. BERRY vs. RONALD D. BOWLING, ET AL.

Case Number: 18CA1068

Judge: Matthew McFarland

Court: COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY

Plaintiff's Attorney: Dana N. Whalen

Defendant's Attorney: David E. Grimes

Description:



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The following facts are contained in the record. Dean and Sandra
Purnhagen were the owners of real estate in Meigs Township in Adams County.
There is a gravel road from S.R. 781 to what was once their residence. An
unnamed tributary of Turkey Creek flows through the Purnhagen property.
{¶4} In 1992, Appellants entered into a land installment contract with the
Purnhagens to purchase a portion of Purnhagens’ property which is subject of this
action. Appellants’ land contract is Joint Exhibit 2. The land contract contains a
written legal description of the property, including a thirty-foot wide easement for
ingress/egress that was reserved by the Purnhagens along the existing gravel road.
This easement was required to keep the Purnhagens from being landlocked.
Therefore, the Purnhagens held the dominant property and Appellants, as
purchasers, held the servient estate. Through the land contract’s description,
Appellants had notice of the easement along the gravel road.
{¶5} In 1995, Mrs. Purnhagen executed a deed, Joint Exhibit 1, to Appellee
for her property which is also subject of this action. Appellee is the current owner
of the dominant property.
{¶6} The parties’ properties have been surveyed several times. Gerald
Wallingford prepared a survey in 1992, and a plat was prepared from Mr.
Wallingford’s survey. In 1993, Robert Sattefrield prepared a survey. In 2012,
Adams App. No. 18CA1068 3
McCarty and Associates prepared a survey. The surveys subsequent to Mr.
Wallingford’s 1992 survey all contained the same legal description of the
easement, also subject of this appeal.
{¶7} Various issues with regard to the easement arose between the parties.
Appellee asserts that Appellants were parking vehicles within the easement. It was
also alleged that debris had been placed on the roadway. The gravel road had
narrowed due to erosion of the creek bank. The parties blame each other for the
erosion of the creek bank. It was also asserted that there was a risk of danger for
vehicles traveling the easement.
{¶8} On January 19, 2012, Appellee filed a Complaint for Injunction. On
February 7, 2012, the matter came before the trial court on Appellee’s Motion for
Preliminary Injunction which the court subsequently granted. On March 1, 2012,
Appellants filed an Answer and Counterclaim. On September 10, 2012,
Appellants filed an Amended Counterclaim.
{¶9} The matter eventually proceeded to a bench trial which took place on
February 7 and 8, 2013 and on September 3, 2013. On the first day, Appellee
testified, along with her companion Al Mitchum, about the difficulties they had
experienced with the neighbors and the use of the easement. David Osborne, a
construction contractor, testified about flooding in the area during recent years and
its effect on the subject properties. He also testified about his installation of a
Adams App. No. 18CA1068 4
culvert in the creek in 2010 on behalf of Appellee. Brenda Osborne, his wife, also
testified about flooding in the area, debris she saw on the gravel roadway, and
difficulties her workers had passing Appellants’ part of the property in order to
access Appellee’s property.
{¶10} Also on February 7, 2013, Mr. Wallingford testified that his initial
survey drawing in 1992 depicting the easement was incorrect due to improper
calculation. He explained that the day prior to trial, he went to the property again
and returned to the office and reviewed his notes. The original metes and bounds of
the easement were correct. However, the bearing calculated in 1992 was incorrect,
resulting in an incorrect legal description and an incorrect plat in 1992.
{¶11} Once he discovered the mistake, Mr. Wallingford spent the rest of
that day revising the plat and legal description and received approval at the tax
map office. The significance of the mistake was that the easement originally
depicted did not follow the existing gravel road, but instead passed into the creek
in the northern portion of the property. Mr. Wallingford prepared a corrected
survey which resulted in the easement following the existing gravel road. This
survey is designated as Plaintiff’s Exhibit 31.1
{¶12} Appellants’ counsel objected to presentation of Exhibit 31. Counsel
explained that for at least six months he had maintained that there was something
1 Subsequent surveys by Robert Satterfield in 1993 and by McCarty and Associates in 2012 contained the same erroneous depiction of the easement.
Adams App. No. 18CA1068 5
wrong with the easement as it appeared to go into the creek. Counsel
acknowledged that the information was newly discovered to Appellee’s counsel as
well, but asserted that Appellants were possibly prejudiced because he would have
to change trial strategy. The court decided to reserve ruling on the admissibility of
the exhibit.
{¶13} Mr. Wallingford’s testimony continued but he admitted uncertainty
about whether he could say the existing gravel roadway was within the easement.
He was dismissed to return to the property for further measurements and
calculations. On the second day of trial, Mr. Wallingford testified the existing
gravel roadway was within the thirty-foot easement. When Appellee rested,
Appellants counsel continued the objection to Exhibit 31 but his objection was
overruled.
{¶14} On the second and third days of trial, Appellants Mr. and Mrs.
Bowling testified, along with Michael McCarty, a surveyor retained on their
behalf. Mr. McCarty agreed in his testimony that the easement as previously
shown on the 1992 survey and plat was incorrect.
{¶15} There was also testimony about two significant flood events
involving the properties owned by Appellants and Appellee. In both 1997 and in
2010 there were two rain events within a period of days which caused significant
Adams App. No. 18CA1068 6
flooding. There was no expert testimony at trial as to the severity of the events,
and the testimony was inconsistent as to exact dates.
{¶16} David Osborne, a neighboring property owner, testified he installed a
new 60-inch culvert for Appellee to replace a previous culvert, fixed holes where
the gravel had “washed out,” and lined the creek bed with large rocks to slow the
water down near Appellee’s house. Mrs. Osborne, who assisted in his work,
testified her workers had difficulty getting equipment up the roadway past
Appellants’ home, specifically near the former location of a bridge. She testified
there was debris, consisting of wood and rocks, on the roadway. Mrs. Osborne
indicated her belief that the debris was placed there by Mr. Bowling.
{¶17} The evidence at trial further demonstrated that there had been
multiple bridges and culverts installed between the gravel road and Appellants’
residence. The photographic exhibits at trial demonstrated that the creek erosion
was presently encroaching into the easement. There was conflicting testimony
regarding the effects of logging trucks on the road.
{¶18} On June 8, 2018, the trial court issued its Judgment Entry. Without
explicitly stating as such, the trial court granted a permanent injunction to
Appellee. Pertinent to this appeal, the 13-page entry also contained the following
orders:
1. “Plaintiff and Defendant shall take necessary steps to update any legal descriptions, deeds, plats, or other documents that relied upon the
Adams App. No. 18CA1068 7
incorrect 1992 survey to reflect the corrected survey as set forth in Plaintiff’s Exhibit 31 with regards to the easement. Each party shall be responsible for their own costs to correct their own legal documents. If the signature of the other party is necessary to accomplish the correction, they shall do so within 30 days of being notified that their signature is necessary.”

* * *
5. “Within a reasonable period of time from the issuance of this decision, Plaintiff and Defendant shall share equally in the cost of repairing the creek bed bank area as shown in Plaintiff’s Exhibit 18, 20 and other exhibits wo that the creek bank is restored to a condition where it will not encroach upon the easement (as shown in Exhibit 31).”

{¶19} Also, pertinent to this appeal, the trial court made the following
findings of Fact at page 5:
“There were two significant flood events involving both properties. In both 1997 and 2010 there were two rain events within a period of days that caused significant flooding. There was no expert testimony as to whether these events could be considered twenty-five, fifty, or one hundred-year floods. Testimony was inconsistent as to the exact dates, but fairly consistent regarding the severity of the events. * * * Despite his denials, the Court finds that Mr. Bowling likely placed the debris and other materials in the roadway within the easement. Of significance is his failure to provide an explanation for how the debris was placed on top of the freshly graded road after the 2010 flood. * * * There was no credible testimony or evidence that the erosion to the creek or damage to the bridge was caused by the culvert or any specific action of the Plaintiff. The erosion of the creek was as likely to be caused by the actions of Mr. Bowling as anything else.” The trial court also made these observations and orders at Page 9:

“The Defendant sought various orders, including, * * *. For an order prohibiting Plaintiff from diverting water onto the easement, waterway, and/or Defendant’s property; Defendant failed to establish that Plaintiff diverted any surface water or that any diversion
Adams App. No. 18CA1068 8
accelerated the water causing damage to the servient estate. Based upon the facts and testimony the request for order shall be denied.”

Also,

“There was some testimony during trial that Mr. Bowling that that Mrs. Berry was ‘trespassing’ on his land due to the ‘legal’ easement that went through the creek. Based upon the new survey depicted in Exhibit 31. Ms. Berry would not be traveling on Mr. Bowling’s property by utilizing the gravel driveway.”

{¶20} This timely appeal followed.

ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED IN ORDERING THE PARTIES TO UPDATE THE LEGAL DESCRIPTION IN THEIR DEEDS TO REFLECT THE CORRECTED SURVEY.

II. THE TRIAL COURT ERRED IN ORDERING THE PARTIES TO EQUALLY SHARE IN THE EXPENSES OF CLEARING, MAINTAINING, AND IMPROVING THE EASEMENT.

III. THE TRIAL COURT ERRED IN NOT FINDING PLAINTIFF CAUSED FLOODING TO DEFENDANTS’ PROPERTY.

IV. THE TRIAL COURT ERRED IN NOT FINDING PLAINTIFF TRESPASSED ON DEFENDANTS’ PROPERTY.”

STANDARD OF REVIEW

{¶21} A party to an easement may invoke the equitable jurisdiction of a
court by seeking an injunction to enforce his or her rights pursuant to the easement.
Mays v. Moran, 4th Dist. Ross Nos. 97CA2385 and 97CA2386, 1991 WL 181400,
*9, citing Murray v. Lyon, 95 Ohio App.3d 215, 221,642 N.E.2d 41, (9th
Adams App. No. 18CA1068 9
Dist.1994). Trial courts retain broad discretion to fashion the terms of an
injunction. Adkins v. Boetcher, 4th Dist. Ross No. 08CA3060, 2010-Ohio-554, at
¶ 35. (Internal citations omitted.)
{¶22} Here, Appellants do not challenge the grant of the permanent
injunction. Rather, they challenge various orders and findings relating to the
injunction and contained within the appealed from judgment entry.
{¶23} Once a party invokes the trial court's equitable jurisdiction, the court
possesses discretionary authority to weigh the parties' competing interests and
exact an equitable division of their property rights. Ohio Power Co. v. Bauer, 60
Ohio App.3d 57, 59-60, 573 N.E.2d 780 (5th Dist.1989). A determination
rendered pursuant to the court's equity jurisdiction will not be reversed absent an
abuse of discretion. Southers v. Rapp 4th Dist. Ross No. 97CA2296, 1998 WL
100409, (Mar. 4, 1998). A finding that a trial court abused its discretion implies
that the court acted unreasonably, arbitrarily, or unconscionably. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the abuse of discretion
standard, a reviewing court may not substitute its judgment for that of the trial
court. Berk v. Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990). We are
mindful, however, that no court has the authority, within its discretion, to commit
an error of law. State v. Landrum, 4th Dist. Ross No. 17CA3607, 2018-Ohio-1280,
at ¶ 10; State v. Boone, 2017-Ohio-843, 85 N.E.3d 1227, (10th Dist.), ¶ 9, citing
Adams App. No. 18CA1068 10
State v. Moncrief, 10th Dist. No. 13AP-391, 2013-Ohio-4571, ¶ 7. See also 2–J
Supply Co. Inc. V. Garrett & Parker, LLC, 4th Dist. Highland No. 13CA29, 2015
Ohio-2757, ¶ 9.
LEGAL ANALYSIS

ASSIGNMENT OF ERROR ONE

{¶24} Appellants assert the trial court erred in ordering the parties to update
the legal description in their deeds to reflect Wallingford’s corrected survey.
Within this assignment of error, they raise the issue of whether the easement in this
case is an expressed easement or is it an easement implied by necessity.
Essentially, the court’s order to correct and update the legal descriptions in the
parties’ deeds, plats, or other documents is an order for reformation of instruments.
{¶25} Equity allows reformation of a written instrument when, due to a
mutual mistake on the part of the original parties to the instrument, the instrument
does not evince the parties' actual intention. Patton v. Ditmyer, 4th Dist. Athens
No. 05CA12, 05CA21, and 05CA22, 2006-Ohio-7107, at ¶ 27. See Mason v.
Swartz, 76 Ohio App.3d 43, 50, 600 N.E.2d 1121 (1991). “The purpose of
reformation is to cause an instrument to express the intent of the parties as to the
contents thereof * * *.” Delfino v. Paul Davies Chevrolet, Inc., 2 Ohio St.2d 282,
286, 209 N.E.2d 194, (1965). “[R]eformation of a contract is appropriate where
the written agreement does not accurately reflect the true understanding of the
Adams App. No. 18CA1068 11
parties, and it is used to effectuate their true intent.” Concrete Wall Co. v. Brook
Park 8th Dist. Cuyahoga Nos. 34054, 34090, 34171, (Feb. 26, 1976), at *3, citing
Greenfield v. Aetna Cas. Ins. Co., 75 Ohio App. 122, 61 N.E.2d 226 (1944). “The
purpose of reformation is not to make a new agreement but to give effect to the one
actually made by the parties, which is not accurately reflected in the written
agreement.” Concrete Wall Co, supra, at *3.
{¶26} A person seeking reformation of a written instrument must prove by
clear and convincing evidence that the mistake regarding the instrument was
mutual. Patton, supra, at ¶ 28. See Stewart v. Gordon, 60 Ohio St. 170, 53 N.E.
797 (1899), paragraph one of the syllabus; Justarr Corp. v. Buckeye Union Ins.
Co., 102 Ohio App.3d 222, 225, 656 N.E.2d 1345 (1995). A “mutual mistake”
means “ ‘a common mistake by all the parties to the contract.’ ” Lukacevic v.
Daniels, 8th Dist. Cuyahoga No. CV-16-89484, 2019-Ohio-102, at ¶ 23, quoting
Wells Fargo Bank Minnesota v. Mowery, 187 Ohio App.3d 268, 2010-Ohio-1650,
931 N.E.2d 1121, ¶ 24 (4th Dist.2010), quoting Huber v. Knock, 1st Dist. Hamilton
No. C-080071, 2008-Ohio-5900, at ¶ 6. Clear and convincing evidence is the
degree of evidence necessary to elicit in the mind of the trier of fact a firm belief or
conviction as to the allegations to be established. See In re Haynes, 25 Ohio St.3d
101, 104, 495 N.E.2d 23 (1986).
Adams App. No. 18CA1068 12
{¶27} Because reformation, at its core, is an equitable remedy, “[i]ts
application thus ‘depends upon the facts and circumstances of each case
* * *.’ ”ABN AMRO [Mtge.] Group, Inc. v. Kangah, 126 Ohio St.3d 425, 2010
Ohio-3779, 934 N.E.2d 924, ¶ 11. (Internal citations omitted.) Therefore, the
concept of negligence in the reformation context is “far from being a static concept
subject to mechanical application, [but rather] is one that requires careful
consideration of the facts to determine if the party seeking reformation of a deed is,
both in light of personal action taken and as a matter of equity, entitled to such
relief.” 27 Williston on Contracts, Section 70:49. Courts should carefully consider
the unique equities of each situation when determining whether a party is entitled
to have a written instrument reformed. Natl. City Real Estate Servs., L.L.C. v.
Frazier, 2018-Ohio-982, 96 N.E.3d 311, ¶ 32 (4th Dist.).
{¶28} Case law reflects that the legal description contained in a deed is
subject to reformation. Foley v. Lipka, 4th Dist. Highland No. 673, 1988 WL
118701, (Nov. 3, 1988), at *3; Davis v. Cassady, 4th Dist. Ross No. 1303, 1987
WL 8438, (Mar. 23, 1987) at *2; Clayton v. Freet, 10 Ohio St. 544, 1860 WL 13,
paragraph one of the syllabus.
{¶29} We pause to acknowledge that neither Appellee nor Appellants raised
issues of reformation or mutual mistake in the pleadings. And, the parties never
moved to amend the pleadings to conform to the evidence adduced at trial.
Adams App. No. 18CA1068 13
However, the court has the ability to sua sponte consider an unpleaded issue so
long as the decision to do so complies with Civ.R. 15(B). Textiles, Inc. v. Design
Wise, Inc., 12th Dist. Madison Nos. CA2009-08-015 and CA2009-08-018, 2010
Ohio-1524, at ¶ 17; Hogan v. Hogan, 12th Dist. Warren Nos. CA2007-12-137,
CA2007-12-141, 2008-Ohio-6571 (affirming sua sponte recognition of mutual
mistake because the affirmative defense was fully litigated, although never
included in the pleadings).
{¶30} Here, the record reflects that the issue was litigated without
objection.2 While Appellants objected to admission of Plaintiff’s Exhibit 31, the
corrected survey, and the court reserved ruling on the issue, counsel had the ability
to cross-examine Mr. Wallingford about his correction. The three-day trial began
on February 7 and 8, 2013. The defense’s case was continued into a third day
which did not occur until approximately 7 months later in September, 2013, when
Appellants’ introduced the testimony of their own expert surveyor, Mr. McCarty.
Based on the above, it appears Appellants had the fair opportunity to address any
issues of reformation or mutual mistake.
2 “Under Civ.R 15(B), implied consent is not established merely because evidence bearing directly on an unpleaded issue was introduced without objection; it must appear that the parties understood the evidence was aimed at the unpleaded issues. * * * Various factors to be considered in determining whether the parties impliedly consented to litigate an issue include: whether they recognized that an unpleaded issue entered the case; whether the opposing party had a fair opportunity to address the tendered issue or would offer additional evidence if the case were to be tried on a different theory; and, whether the witnesses were subjected to extensive cross-examination on the issue.” Textiles, Inc., at ¶ 18, quoting State ex rel. Evans v. Bainbridge Twp. Trustees, 5 Ohio St.3d 41, 448 N.E.2d 1159, (1983), paragraphs one and two of the syllabus.

Adams App. No. 18CA1068 14
{¶31} Turning to consideration of Appellants’ argument against reformation
of the instruments in this matter, we look to an older Fourth District case. In Foley
v. Lipka, supra, Foley, the appellee, was executrix and sole devisee of an estate in
Highland County. In 1986, Foley filed an action to reform the title to certain real
estate she had inherited, (real estate known as the “Van Horn property”), averring
that her deed contained an erroneous description of the property as the result of the
mutual mistake of the original parties to the deed and asserting a claim for adverse
possession. The Lipkas denied her claim for adverse possession and further denied
that the deed in issue contained an erroneous description of the property as the
result of the mutual mistake of the original parties to the deed. The gist of the
parties’ dispute was not the amount of property Foley was entitled to have but
rather the location of the property lines.
{¶32} At trial, a professional surveyor testified that he had performed a
mortgage loan inspection of the Van Horn property in 1985 and in the course of
doing so, had discovered a discrepancy between the description of the property in
the deed and the property in the possession of the Van Horns. The surveyor
testified it was possible that “the surveyor took the property out of the wrong tract
since there were no tax maps available in Highland County in 1958.” The surveyor
further testified that it was obvious that the survey matched up with a 1958 survey
“fairly well” except for the erroneous description. The trial court concluded that
Adams App. No. 18CA1068 15
Foley was entitled to reformation of the deed to reflect the clear intent of the
parties. The court ordered a reformation of the deed to reflect the proper
description.
{¶33} On appeal, Lipkas asserted that Foley failed to prove by clear and
convincing evidence that the land described in the Van Horn deed was the result of
a mutual mistake by the original parties to the instrument. However, our court
noted that the testimony at trial, the course of dealing between the parties, and the
conduct of the parties supported by clear and convincing evidence the finding by
the court that a mutual mistake occurred in the original conveyance in 1948. We
also emphasized the testimony of the expert witness, the surveyor, who testified
that the discrepancy was a mistake common to surveys at that time due to the lack
of tax maps.
{¶34} In Castle v. Daniels, 16 Ohio App.3d 209, 475 N.E.2d 149, (2nd
Dist.1984), the court concluded that reformation of the deed was appropriate when
the evidence showed that the parties were mutually mistaken as to the property
conveyed. In Castle, the appellees conveyed a lot to the appellants by warranty
deed. The deed described the property conveyed as the entire lot, which included a
hay field in the northeast corner of the lot upon which sat a barn. The appellees
asserted that the parties did not intend the real estate transaction to include the hay
field and barn. The deed also described property that was owned by a third party,
Adams App. No. 18CA1068 16
Lucy McClung. The appellants conceded that the parties did not intend her
property to be part of the transaction.
{¶35} The record included a survey plat which showed that the hay field
and barn were not part of the lot, and neither was McClung's property. Testimony
existed that the appellants were aware of the lot boundaries. The appellees stated
that they showed the appellants the boundaries before closing the real estate
transaction.
{¶36} The appellate court affirmed the trial court's judgment reforming the
deed based upon mutual mistake. The appellate court observed that the evidence
showed that the parties were mutually mistaken as to the land that the deed
conveyed. The court also recognized that the appellants disputed that a mutual
mistake occurred, but stated at ¶ 32:
“ ‘[T]he mere fact that the parties at the time of trial testify differently as to what their agreement was does not necessarily mean that there was no agreement between them, nor does it necessarily mean that they were not mutually mistaken concerning the expression of their agreement in the instrument; in this respect, it has been pointed out that if the fact alone that the parties testify differently at the trial would prevent a finding that there was an agreement between the parties, a court could never determine whether there was a contract in a lawsuit where the parties disagree and testify differently.’ 13 Ohio Jurisprudence 3d (1979) 363, Cancellation, etc. of Instruments, Section 76.” Id. at 212.

{¶37} In this case, Appellants also dispute that a mutual mistake occurred.
We disagree. The court’s decision noted as follows: “Despite the Defendant’s
Adams App. No. 18CA1068 17
interrogatory response that he did not learn of the error in the survey drawing until
2010, his testimony indicated that he learned about the error in 1997, yet took no
action to correct it.” It is obvious that both parties relied on an erroneous
description in the documents they executed with Mrs. Purnhagen. Appellants were
mistaken about the error in the survey drawing at the time they entered the land
contract in 1992 and it is also obvious Appellee, who received a general warranty
deed from Mrs. Purnhagen in 1995, only learned about the erroneous description
during the course of the litigation which ensued in 2012.
{¶38} The trial court found:
“Because the original metes and bounds were correct, and the updated survey merely reflects the correction of an error, there is no requirement to determine whether an implied easement exists. The width and location of the easement remain 30’wide along the existing roadway as originally described, and the Defendant was on notice therefore of the actual location and width of the easement. It is equitable to all concerned to correct such errors.”

{¶39} Contrary to Appellants' assertion, the trial court did not err in
ordering reformation of the parties’ documents with regard to the incorrect 1992
legal description of the easement. It is the function of the trial court to assess the
credibility of the various witnesses and not the function of a reviewing court to
substitute its judgment in that respect. Castle, supra, at p. 212. We have reviewed
the record in its entirety, which consisted of three large volumes of testimony and
approximately 42 photographic and documentary exhibits.
Adams App. No. 18CA1068 18
{¶40} We agree with the trial court’s decision that found clear and
convincing evidence to support reformation of the parties’ deeds, plats, or other
documents that rely upon the incorrect 1992 survey to reflect the corrected survey
as set forth in Plaintiff’s Exhibit 31 with regards to the easement. It is axiomatic in
Ohio that judgments supported by some competent, credible evidence going to all
the essential elements of the case will not be reversed as being against the manifest
weight of evidence. Foley, supra, at *4; C.E. Morris Co. v. Foley Construction
Co., 54 Ohio St.2d 279 (1978); Burr v. Stark Cty. Bd. of Commrs., 23 Ohio St.3d
69 (1986); State Auto Mut. Ins. Co. v. Cawley, 33 Ohio App.3d 160 (1986).
{¶41} Based on the foregoing, we find no merit to Appellants’ first
assignment of error and it is hereby overruled.
ASSIGNMENT OF ERROR TWO

{¶42} Appellants assert the trial court erred in ordering the parties to
equally share in the expenses of clearing, maintaining, and improving the
easement. The trial court ordered as follows:
“There was testimony that the parties had previously shared in the expenses of maintaining the easement. The Court has found that the actions of the Defendant are also a cause of the erosion. Therefore, it would be equitable that both parties share in the cost of repairing the creek bank in a manner as set forth in Plaintiff’s Exhibit 30 * * *.”

Appellee responds that there is competent, credible evidence of the parties’ history
of shared maintenance expense and joint use of the easement to support the trial
Adams App. No. 18CA1068 19
court’s decision. Appellee points to the testimony of Al Mitchum and Ronald
Bowling. We agree with Appellee.
{¶43} In this case, Al Mitchum testified that he saw Appellant Ronald
Bowling using a Bobcat after one of the floods. Mitchum asked him what he was
doing and his testimony is as follows:
“I stopped him and asked him what are you doing? He said he was straightening up that uh, fixing that, that he was fixing that, fixing the drain, fixing the brook, he was fixing it. * * * I yelled at Mr. Bowling uh, I already paid those guys to do that job, please don’t do it. * * * Mr. Bowling said that well they didn’t do a good job and you wasted your money * * *.”

{¶44} Mr. Mitchum continued:
“I just got in my car and left because I don’t want to argue with him. * * * I give him credit, he has cleaned that mess up pretty much so * * *.”

{¶45} Later, Ronald Bowling, while testifying about Plaintiff’s
Exhibit 21, explained:
“This is the debris that was left over from uh, the second 2010 flood. * * * I told Al that he needs to clean up his mess * * * and Osborne’s came in with a Bobcat, my son seen them, and they pushed all of the debris over to the creek bank and also in the creek further restricting the creek again.”

{¶46} Appellant Bowling further testified as follows:

“When I bought a plow for my four-wheeler, I went up when I scraped my part of the road, I also scraped there’s [sic.] so they could get out on I think three different occasions.”

{¶47} We agree that this testimony alone reflects the parties’ history
Adams App. No. 18CA1068 20
of shared maintenance and expense regarding the easement. The trial court
had competent credible evidence in support of his decision to order shared
expenses in maintenance of the easement and creek bank. As such,
Appellants’ argument is without merit. We hereby overrule the second
assignment of error.
ASSIGNMENT OF ERROR THREE

{¶48} Appellants assert the trial court erred in not finding that Appellee
caused flooding to Appellants’ property. Appellants assert that Appellee
unlawfully obstructed or impeded the passage of water from the creek thereby
causing damage. However, Appellee responds that the trial court had competent,
credible evidence to support its determination that Berry did not cause flooding to
Bowlings’ property. Appellee points to the testimony of various witnesses, among
them, Michael McCarty, Appellants’ expert.
{¶49} Brenda Osborne testified regarding the May 2010 flooding:
“It was horrendous. I’ve lived here all my whole life except for about two or three years after I first got married. And in that whole time, I’ve never seen nothing like it. There were places that I saw water that night I’d never seen water before. And some of our rental homes, there was two of them that got water in them. And where we had put those, if we’d known it flooded like that, or course, you would’ve never put a home there. And whenever they had, I don’t know if they called it the 100-year flood or the 99-year flood whatever. They didn’t even get flooded then.”

{¶50} Her testimony continued:

Adams App. No. 18CA1068 21
Q: When was that 99-year flood that you’re referring to?

A: I think it was like in 96 or 7, whenever the county had so much water and stuff. It’s been several years back.

Q: So, this the one in May of 2010 was much worse than the one in 1997?

A: For us it was in our area.

{¶51} David Osborne also characterized the 2010 flood as extraordinary in
that it was “about 7 inches of rain maybe in a couple of hours. * * * Quite a bit of
water.” Osborne was thereafter hired to put in a new culvert and “fill up holes
where the gravel washed out.” Osborne also testified he lined the creek bed with
large rocks to slow down the flow of water. Osborne pointed out that Appellee’s
property was north of Appellants’. And, Osborne opined that the work he
performed at Appellee’s property did not alter the flow of water.
{¶52} Finally, Mr. McCarty, Appellants’ expert, testified as follows on
cross-examination:
Q: Does it really matter what’s going on upstream, with Mrs. Bowling?
A: With Mrs. Berry’s house?
Q: Uh, Mrs. Berry House.
A: Yes.
Q: Yes sir.
A: Uh, no, actually Ms. Berry’s house is not (inaudible) the Bowling issued. [sic.]
Adams App. No. 18CA1068 22
{¶53} McCarty was shown Plaintiff’s Exhibit 29. He further testified on
cross examination:
Q: [T]his um, a view of the photo of the driveway going towards the Bowling residence, the creek to the left-hand side of the photo. And this is a photo that was taken after the floods in 2010.

A: That would be consistent with what I remember of the site.

Q: Okay. Did the size of the culvert at the Berry property have any impact on what you see in this photo?

A: Probably not.

{¶54} The trial court’s decision stated:
“The Court finds that much of the damage caused by the 1997 and 2010 floods were an act of God. The Court cannot find, based upon the evidence presented, that either the old culvert or the new culvert on the Berry property caused the damage and erosion.”

{¶55} Given the above testimony, we find there was competent credible
evidence in the record to support the trial court’s findings and orders. We find no
merit to Appellants’ argument that the court failed to find Appellee responsible for
the damage to their property. Accordingly, we overrule the third assignment of
error.
ASSIGNMENT OF ERROR FOUR

{¶56} Appellants also argue that the trial court erred in not finding Appellee
trespassed on their property. They first assert that Appellee trespassed in effect by
diverting water from the creek. They also assert trespass when Appellee was
Adams App. No. 18CA1068 23
driving outside the metes and bounds description of the easement. Appellee
responds that if the trial court was correct in finding Berry did not cause flooding
onto Bowlings’ property, then the court was also correct in not finding Berry to
have trespassed by diverting water. Further, if the trial court was right in ordering
the correction of the easement description to correct the surveyor’s error, then
Berry did not trespass on Berry’s property by traversing over the driveway. As
such, the trial court’s failing to find Berry to have trespassed in this manner is not
in error.

Outcome: Appellee’s analysis is correct. Given our resolution of the above
assignments of error, we find no merit to Appellants’ arguments that the trial court
failed to find Appellee trespassed on their property diverting water their direction
or by driving on the easement. As such, we overrule the fourth assignment of error
and affirm the judgment of the trial court in all respects.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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