167 Ohio Misc. 2d 23
Oh. Ct. Com. Pl., Clermont2011Background
- This case follows a prior August 2, 2010 decision that Roll ownership included a 14-foot right-of-way for ingress/egress.
- At damages trial (March 28–29, 2011), the court addressed damages from utility installations within the right-of-way by the Bacons.
- The disputed utilities are a six-inch water line and a sewer line; other utilities were not at issue.
- Bacons allegedly installed lines without proper permission, believing they owned the property, while Rolls contested ownership.
- The court had to apply Ohio law on temporary property damage and determine appropriate damages/remedies for restoration rather than diminution in value.
- The court previously determined Rolls own the right-of-way and addressed related cloud-on-title issues via the August 2010 decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Damages for removal/restoration of utilities within the right-of-way | Roll seeks restoration costs as damages for removing sewer and water lines. | Bacon argues alternative uncoupling options; removal costs not proven. | Damages awarded: $36,975 ($20,100 sewer removal, $16,875 water line removal); restoration cost deemed reasonable. |
| Tree removal damages and treble damages | Roll seeks compensation for the removed white oak and treble damages under R.C. 901.51. | Tree loss has no market-value impact on property; treble damages unnecessary. | Damages awarded: $5,548 for tree value replacement with time for growth plus $500 replacement; treble damages denied. |
| Culvert pipe damage due to sewer line | Roll seeks removal and replacement costs to restore culvert pipe. | Removal option unknown if less costly; no contradiction shown. | Damages awarded: $1,540 for removal and replacement of the culvert pipe; no injunctive relief awarded. |
| Cloud on title and attorney fees | Roll seeks damages and fees for cloud on title from Bacons’ mistaken ownership. | Defendants acted with reasonable belief in ownership; no bad faith. | Cloud declared void ab initio; no compensatory damages or attorney fees awarded; cloud to be removed by deadline; no punitive damages. |
| Maintenance responsibilities and offset of maintenance/taxes | No offset for taxes or maintenance without counterclaim or explicit agreement; parties to apportion future maintenance; court declines to allocate maintenance responsibilities. |
Key Cases Cited
- Martin v. Design Constr. Servs., 121 Ohio St.3d 66 (Ohio 2009) (recovery of restoration costs for temporary injury; diminution in value not essential)
- Northwestern Ohio Natural Gas Co. v. First Congregational Church of Toledo, 126 Ohio St. 140 (Ohio 1933) (measures of damages for temporary injury; restoration vs. diminution in value)
- Hartman v. Ohio Dept. of Transp., 2009-Ohio-469 (Ohio App. 2010) (vegetation damages treated as temporary; restoration costs favored)
- Collins v. Messer, 2004-Ohio-3007 (Ohio App. 2004) (vegetation removal damages balanced with reasonable restoration; time factor)
- Fronsman v. Risaliti, 2008-Ohio-5074 (Ohio App. 2008) (restoration costs reasonable where vegetation removal occurred)
- Henderson v. Glancy, 2011-Ohio-1152 (Ohio App. 2011) (tree damages awarded based on replacement value and time for growth; not punitive)
- Green v. Lemarr, 139 Ohio App.3d 414 (Ohio App. 2000) (attorney-fee considerations in cloud-on-title contexts)
- McClure v. Fischer Attached Homes, 146 Ohio Misc.2d 57 (Ohio Misc. 2006) (attorney fees for removing cloud on title; bad-faith standard analyzed)