Kilroy v. Sheridan
2014 Ohio 1873
Ohio Ct. App.2014Background
- Appellees (Sheridan) own a house with a fenced swimming-pool area; appellants (Kilroy) own the adjacent servient parcel.
- An oral easement granted c.1977 allowed use of a strip on the servient parcel as part of the fenced pool area; a written easement was executed and recorded in April 1994.
- The written easement limited use to "so long as Grantee operates a swimming pool within the easement" and restricted permanent improvements (except a substantially similar fence); it stated the easement would run with the land.
- Appellees purchased the dominant parcel in 1995 and maintained the pool and the easement strip; appellants bought the servient parcel in 2011 and later sought to move the fence.
- Appellants sued for declaratory judgment, arguing the easement was invalid because the pool was not located within the easement area; the trial court granted summary judgment to appellees on notice grounds but did not construe or declare parties’ rights.
- The appellate court dismissed the appeal for lack of a final appealable order because the trial court failed to declare the parties’ rights under the easement despite a live controversy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the written easement’s "swimming pool" condition requires the pool to be located within the easement strip | Kilroy: the easement is ambiguous and, if read to require the pool be within the easement, the condition was never satisfied so easement invalid | Sheridan: recorded easement put successors on notice; the condition only requires operating a pool on the dominant parcel, which they did | Court: Trial court should have construed the easement and declared rights; summary judgment based solely on notice without declaring rights is not a final appealable order (appeal dismissed) |
| Whether ambiguities exist as to the exact location of the easement | Kilroy: location ambiguous and requires declaratory construction and possibly parol evidence | Sheridan: recorded description and longstanding use resolve location; notice binds purchasers | Court: Ambiguities alleged required resolution; trial court erred by not addressing construction and declaring rights |
| Whether the easement was intended to "run with the land" so as to bind successors | Kilroy: disputes whether recorded language effected a run with the land or created enforceable covenant | Sheridan: written instrument expressly states it runs with the land and was recorded | Court: Issue required construction and declaration; trial court’s notice ruling did not eliminate need to decide this question |
| Whether the trial court’s summary judgment was a final appealable order | Kilroy: requests reversal of summary judgment and declaratory judgment on easement construction | Sheridan: argues notice defeats challenge and supports summary judgment | Court: Judgment that merely grants summary judgment on notice, without declaring parties’ rights in a declaratory action, is not a final appealable order; appeal dismissed |
Key Cases Cited
- Nickschinski v. Sentry Ins. Co., 88 Ohio App.3d 185 (1993) (trial court must set forth construction of the instrument in a declaratory judgment; merely granting or overruling summary judgment is insufficient)
- Waldeck v. N. College Hill, 24 Ohio App.3d 189 (1985) (court fails its declaratory-judgment function when it disposes of issues by journalizing an entry sustaining/overruling motion without construing the document)