Sherck v. Bremke
2012 Ohio 3527
Ohio Ct. App.2012Background
- 1956 plat dedicated five streets for public use; recording vested the city with fee interest.
- 1981 Shercks purchased two lots along unconstructed Fairlain Drive and began using the route.
- 1982 city vacated Fairlain Drive; some access rights argued to persist.
- 1999 Bremkes purchased corner Lot at Butternut/Fairlain; Shercks allegedly discussed access and obtained revocable license.
- Bremkes later erected fence and revoked license, seeking to enforce property boundaries.
- Trial court granted summary judgment for Shercks under R.C. 723.08; appellate court reverses remit for factual determination of necessity at time of vacation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 723.08 applies to vacated streets not accepted. | Bremkes: 723.08 only applies to accepted streets. | Shercks: 723.08 applies to any street dedicated to public use. | 723.08 applies to any street dedicated to public use; rule affirmed. |
| Whether there is a genuine issue of material fact on reasonable necessity at time of vacation. | Shercks: necessity existed then to access Fairlain Drive. | Bremkes: no clear necessity at time of vacation. | Remanded to determine if access was reasonably necessary at the time of vacation. |
| Whether Shercks waived their right to an easement. | Shercks: post-evacuation actions cannot waive existing easement. | Bremkes: such actions could waive rights. | Waiver claim overruled; post-vacation actions irrelevant to time-of-vacation assessment. |
Key Cases Cited
- Callen v. Columbus Edison Elec. Light Co., 66 Ohio St. 166 (1902) (establishes equitable easement and reversionary interests in abutting owners upon vacation of streets)
- Eggert v. Puleo, 67 Ohio St.3d 78 (1993) (plat recording creates municipal fee interest and potential acceptance rules)
- Greenberg v. L. I. Snodgrass Co., 161 Ohio St. 351 (1954) (vacation of street; abutting owners have access rights; important precedence)
- Butzer v. Johns, 67 Ohio App.2d 41 (1979) (abutting access considerations when a street is vacated; relevant to necessity analysis)
- State ex rel. Bedard v. Village of Lockbourne, 69 Ohio App.3d 452 (1990) (reversionary interests and access rights upon vacation of streets)