State ex rel. Wasserman v. Fremont (Slip Opinion), 140 Ohio St. 3d 471

Background

The Wassermans hold a 1915 express easement allowing a 12-inch field tile drain across land now owned by Fremont to discharge into Minnow Creek; the easement extends to heirs and assigns and grants Fremont’s predecessor the right to fix "lines and at a depth."
Fremont and the Wassermans cooperatively replaced an original 12-inch clay tile with two 8-inch plastic tiles in 2005; both properties had shared drainage roles and costs.
In 2009 Fremont rerouted the drain across its property to skirt a new reservoir project and replaced the two 8-inch tiles with a single 12-inch HDPE pipe (paid for by Fremont); installation occurred without the Wassermans’ consent.
The Wassermans alleged the rerouting and removal of the 8-inch tiles diminished drainage, blocked their access to maintain the drain, and constituted a taking; they sought a writ compelling Fremont to initiate eminent-domain proceedings.
The Sixth District found a taking for unilateral destruction and rerouting and ordered eminent-domain proceedings; the Ohio Supreme Court reviewed whether the reroute violated the easement and whether a taking occurred.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Fremont violated the 1915 easement by rerouting the drainage line	Wasserman: Fremont obliterated the easement by destroying the original tile path and rerouting, diminishing drainage and access	Fremont: Easement language gave servient-owner the right to fix lines and depth; rerouting continued to serve the easement’s purpose and improved capacity	Court: Held for Fremont — servient-owner (and assigns) retained right to fix/change route so long as primary purpose (draining Wassermans’ land) is satisfied
Whether increased flooding or reduced drainage performance alone proves a taking	Wasserman: Increased flooding shows interference with easement and taking	Fremont: Any change in water accumulation goes to damages, not to whether a taking occurred; replacement pipe has equal/greater capacity	Court: Held that flooding/accumulation evidence addresses damages; plaintiffs relinquished argument that excess water per se constituted a taking
Whether removing the physical 8-inch tiles constituted a physical taking of personal property recoverable via eminent domain	Wasserman: Removal of tiles constituted appropriation of personal property	Fremont: No compensable taking because no eminent-domain proceeding is required if easement not violated	Court: Held no taking occurred, so appropriation remedy via condemnation unnecessary; plaintiffs may have other remedies but not appropriation here
Whether plaintiffs proved entitlement to mandamus to compel eminent-domain by clear and convincing evidence	Wasserman: Sought writ to force condemnation proceeding	Fremont: Evidence shows replacement pipe functions and serves purpose; insufficient proof of taking	Court: Held plaintiffs failed to meet clear-and-convincing standard; writ denied (judgment reversed)

Key Cases Cited

Alban v. R.K. Co., 15 Ohio St.2d 229 (1968) (scope of an express easement is governed by the grant language)
Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241 (1978) (courts cannot rewrite clear easement terms to supply unexpressed intent)
Apel v. Katz, 83 Ohio St.3d 11 (1998) (easement language, read with surrounding circumstances, defines extent and limitations)
State ex rel. Gilbert v. Cincinnati, 125 Ohio St.3d 385 (2010) (mandamus is the appropriate vehicle to compel appropriation proceedings when an involuntary taking is alleged)
Shelly Materials, Inc. v. Clark Cty. Bd. of Commrs., 115 Ohio St.3d 337 (2007) (elements required to obtain mandamus to compel eminent-domain proceedings)
Masheter v. Boehm, 37 Ohio St.2d 68 (1974) (personal property affixed to real property may be compensable in appropriation proceedings)