2017 Ohio 8292
Ohio Ct. App.2017Background
- Bosky Group owns a 43.7‑acre parcel in Muskingum County whose northern boundary abuts a railroad operated by Columbus & Ohio River Railroad (CUOH); Bosky alleges the parcel is landlocked without a rail crossing.
- An 1852 instrument (recorded 1899) by grantor Samuel Cummins granted Central Ohio Railroad the right to locate a railroad across Cummins's lands and promised the railroad would “construct two good crossings” at specified locations.
- Bosky sued CUOH seeking declaratory relief and specific performance after CUOH declined to build a crossing to provide access for development; both parties filed cross motions for summary judgment.
- The trial court granted Bosky’s summary judgment and ordered CUOH to construct and equip an at‑grade crossing sized and equipped for modern high‑density/semi traffic, and to permit utilities and maintain the crossing. CUOH appealed.
- On appeal the court considered whether the crossing obligation in the Cummins instrument (1) runs with the land as an appurtenant easement, (2) was abandoned, (3) was lost by adverse possession, and (4) whether the trial court exceeded the 1852 instrument’s scope or erred in denying CUOH’s motion to strike expert evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the Cummins instrument create an easement that runs with the land (binding successors)? | The crossing promise was intended to be perpetual and benefits successors; without it Bosky’s parcel is landlocked. | The instrument lacks words of inheritance and did not show intent to run with the land; thus any promise was personal. | Held: Runs with the land — intent (and the perpetual nature of a railroad easement) makes it appurtenant and binding on CUOH. |
| Was any crossing right abandoned? | No — predecessors’ limited agricultural access does not show intent to relinquish the crossing right. | CUOH points to long non‑use (decades/centuries) as evidence of abandonment. | Held: Not abandoned; non‑use alone insufficient without clear intent to abandon. |
| Was the crossing right lost by adverse possession? | N/A (plaintiff denies). | CUOH contends long exclusive control and non‑granting of access establishes adverse possession. | Held: Adverse possession inapplicable because CUOH’s use was permissive under the express grant; elements not met. |
| Did the trial court exceed relief requested / contract scope by ordering modern crossing, utilities access, and maintenance? | Modern, larger crossing and related features are reasonable adaptations to changed use and development; supported by traffic studies and local zoning. | The 1852 instrument did not mention utilities, modern dimensions, maintenance, or signal preemption; court exceeded the grant. | Held: Trial court did not err — changes accommodating normal growth and reasonable modern use are permitted; ordered features are within scope. |
Key Cases Cited
- Junction R.R. Co. v. Ruggles, 7 Ohio St. 1 (Ohio 1857) (railroad easement annexed to land and presumed perpetual absent contrary intent)
- Gill v. Fletcher, 74 Ohio St. 295 (Ohio 1906) (whether a deed clause is an exception or reservation depends on parties' intent)
- Embleton v. McMechen, 110 Ohio St. 18 (Ohio 1924) (reservations creating new interests historically required words of inheritance)
- Erie R.R. Co. v. S.H. Kleinman Realty Co., 92 Ohio St. 96 (Ohio 1915) (changes in use of an easement are permissible when resulting from normal growth of the dominant estate)
- Wyatt v. Ohio Dep't of Transp., 87 Ohio App.3d 1 (Ohio Ct. App. 1993) (mere nonuse of an easement does not establish abandonment)
- Grace v. Koch, 81 Ohio St.3d 577 (Ohio 1998) (elements and clear‑and‑convincing standard for adverse possession)
- Dresher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (summary judgment burden‑shifting framework)