{¶ 1} George Palmer appeals the trial court’s judgment declaring that Paul David Fitzpatrick II had established a public easement by prescription and an easement by necessity over Palmer’s property. Palmer contends that the trial court’s judgment is against the manifest weight of the evidence. We agree that Fitzpatrick failed to prove by clear and convincing evidence that the public had acquired an easement by prescription or that Fitzpatrick had acquired an easement by necessity. And because the trial court converted Fitzpatrick’s claim for a private easement by prescription into one for a public easement, it did not rule upon the existence of a private easement. Accordingly, we remand this matter to the trial court to address that issue.
{¶2} Palmer next asserts that the trial court improperly relied upon parol evidence when interpreting the Lawrence County commissioners’ decision vacating a road. Because the resolution is unambiguous, we agree that there was no need to rely on extrinsic evidence in construing it.
{¶ 3} Palmer also argues that the trial court erred by overruling his objections to the magistrate’s decision. Our resolution of the foregoing arguments renders this argument moot, and we need not address it.
{¶ 4} Accordingly, we sustain Palmer’s first four assignments of error to the extent that they challenge the trial court’s decision (I) finding a public easement by prescription and an easement by necessity and (2) interpreting the commissioners’ resolution. We overrule his fifth assignment of error as moot. We reverse the trial court’s judgment and remand the cause.
I. FACTS
{¶ 5} Fitzpatrick and Palmer own adjacent property in a rural area of Lawrence County. Township Road 161 leads to Palmer’s property. Fitzpatrick maintains that he uses part of Township Road 161 and a right of way over Palmer’s property to access a one-acre tract of Fitzpatrick’s land, which sits at the top of a hill. Fitzpatrick does not live on this one-acre tract, and there is no residential structure on the property. The only structure on the one-acre tract is
{¶ 6} Palmer later filed a petition to vacate the part of Township Road 161 that his property borders. The Lawrence County commissioners approved Palmer’s petition by a resolution that states: “To vacate a portion of Township Road 161 (portion of road bordered on both sides by the property of George Palmer * * *). * * * Survey to be recorded by Nate Dickerson upon completion.”
{¶ 7} Fitzpatrick subsequently filed a complaint against Palmer in which he alleged that he had obtained an easement by prescription over Palmer’s property.
{¶ 8} At trial, the testimony was often vague and did not translate well to the written record.
{¶ 9} Lawrence County Engineer Surveyor Nate Dickerson performed a survey of Palmer’s property around 2003. At that time, he observed an “earthen lane” that led to Fitzpatrick’s property. When he next visited the property in 2004 or 2005, he could no longer detect this earthen lane. Dickerson explained that he was involved in Palmer’s request to vacate Township Road 161. He stated that he believed that the road would be vacated from the cable gate by Palmer’s house onward in a northerly direction; he did not believe that the vacation would block Fitzpatrick’s access to the earthen lane. Dickerson explained that the county commissioners requested him to prepare a map to show what property was vacated, but he never completed it. Dickerson stated that Fitzpatrick had another access road to reach his property but it crossed “real steep” terrain and it would be expensive to build a road across this terrain. Dickerson stated that the easiest way to reach Fitzpatrick’s property was by using the earthen lane.
{¶ 10} Don Fitzpatrick (Fitzpatrick’s uncle) testified that in 1995, he conveyed the property to Fitzpatrick. He stated that the only way to reach the property was by crossing the disputed right of way over Palmer’s property and that this was how he reached the property during the five years that he owned it.
{¶ 11} Samuel Holback Jr. testified that in the mid-1970s, he used to hunt on the property Fitzpatrick now owns and used the disputed right of way to reach it.
{¶ 12} Lance Dale Broughton stated that he used the disputed right of way in 1967.
{¶ 13} Richard Winters stated that he has walked the disputed right of way probably about a dozen times, but he has not used it since the 1960s or 1970s.
{¶ 14} Paul David Fitzpatrick (Fitzpatrick’s father) stated that he used the disputed right of way on a monthly basis over the course of 40 years. He stated that there was no other road to reach the property. Fitzpatrick acknowledged that there is a logging road on the other side of the property but it is “straight down.” He indicated he has used the disputed right of way for approximately 30 years. He used to ride horses on it and has driven a car down the right of way.
{¶ 15} To rebut Fitzpatrick’s evidence, Palmer presented testimony from Clyde Conley. Conley testified that the disputed right of way is not a real road that cars could use. He stated, “You couldn’t run a goat through it.” He stated that he never saw cars use it. Teddy Franklin Conley also stated that he has never seen cars on the disputed right of way. Palmer stated that it is not a road but a path. He has not seen any vehicles on the right of way since he has owned the property.
{¶ 16} The magistrate determined that Fitzpatrick had established a public easement by prescription and an easement by necessity over Palmer’s property, even though Fitzpatrick had not pleaded either one. The magistrate found that (1) a 12-foot>-wide dirt roadway sits across Palmer’s land that stretches from Township Road 161 to Fitzpatrick’s property, (2) the dirt road has been used for over 50 years as the only access to Fitzpatrick’s property, (3) Fitzpatrick, his predecessor in title, and other members of the public have used the roadway continuously, openly, notoriously, and adversely from the 1950s to 2000, when Palmer stopped them, (4) Palmer requested the county commissioners to vacate the part of Township Road 161 that ran through his property, (5) Fitzpatrick objected to Palmer’s request to vacate, asserting that it would prevent him from having access to the dirt roadway that went to his property, (6) Dickerson surveyed the property and stated that “it was the intent to vacate only that portion of Township Road 161 north of said dirt roadway,” (7) Fitzpatrick’s “property has been accessed only by said roadway and it would be prohibitive to gain access to said property from any other means due to the steep terrain of the land,” and (8) unless Fitzpatrick is allowed to use the dirt road, he will be unable to access his property. The magistrate thus concluded that “there has been established a public easement by prescription and an easement by necessity.” The magistrate further determined that the commissioners did not vacate the portion of Township Road 161 until after it provided access to the right of way.
{¶ 18} In overruling Palmer’s objections, the trial court found that a public easement by prescription and an easement by necessity exist over Palmer’s property. The court also adopted the finding that the county commissioners had not vacated the portion of Township Road 161 that leads to the disputed right of way.
II. ASSIGNMENTS OF ERROR
(¶ 19} Palmer raises five assignments of error:
First Assignment of Error:
The trial court erred as a matter of law in finding the easement was a public easement and by granting Plaintiffs motion to amend the pleadings.
Second Assignment of Error:
The trial court erred as a matter of law in finding Plaintiff established an easement by prescription.
Third Assignment of Error:
The trial court erred as a matter of law in finding an easement by necessity.
Fourth Assignment of Error:
The trial court erred as a matter of law by finding Township Road 161 was not vacated by the Lawrence County Commissioners.
Fifth Assignment of Error:
The trial court erred as a matter of law by overruling Appellant/Defendant’s objections.
III. EASEMENTS
{¶ 20} Palmer’s first three assignments of error challenge the trial court’s finding that Fitzpatrick demonstrated that he had obtained a public or private easement by prescription and an easement by necessity over the disputed piece of land. He essentially argues that the trial court’s decision on these issues is against the manifest weight of the evidence. Because the same standard of review governs these three assignments of error, we consider them together.
A. STANDARD OF REVIEW
{¶ 21} We will not reverse a trial court’s judgment as being against the manifest weight of the evidence as long as some competent, credible evidence supports it. See, e.g., Sec. Pacific Natl. Bank v. Roulette (1986), 24 Ohio St.3d
B. EASEMENTS IN GENERAL
{¶ 22} An easement is an interest in the land of another that entitles the owner of the easement to a limited use of the land in which the interest exists. Parrett v. Penn Cent. Corp. (July 27, 1987), Pickaway App. No. 86CA17,
{¶ 23} The plaintiff bears the burden of proving an easement by clear and convincing evidence. See Cadwallader v. Scovanner,
C. EASEMENT BY PRESCRIPTION
{¶ 24} In his first and second assignments of error, Palmer asserts that Fitzpatrick failed to clearly and convincingly show either a public or private prescriptive easement.
{¶ 26} Thus, “[o]ne who claims an easement by prescription has the burden of proving by clear and convincing evidence all the elements essential to the establishment thereof.” McInnish v. Sibit (1953),
{¶ 27} The public may acquire an easement by prescription. See State ex rel. A.A.A. Invests. v. Columbus (1985),
{¶ 28} In J.F. Gioia,
As in the case of prescriptive easements which serve adjacent property, a public prescriptive easement results from a specific type of continuous use.*89 The resulting easement permits the public to continue that same type of use. In effect, a landowner who forebears from effectively disrupting use of his property by his neighbor or the general public eventually accedes to the continuation of that same use. * * * * The public’s extended use of property for picnics and recreation may not create an easement to drive vehicles there.
{¶ 29} In analyzing the element of continuous use, we have previously held that “the infrequent or occasional use of a thoroughfare over property is inadequate to demonstrate ‘continuous’ use for purposes of establishing a prescriptive easement.” Vance v. Roa (Sept. 7, 2000), Lawrence App. No. 99CA23,
{¶ 30} The court in J.F. Gioia also addressed the concept of continuous use. There the plaintiff asserted that the trial court improperly rejected a claim for an easement by prescription. In upholding the trial court’s decision, the appellate court found that the evidence failed to establish a public easement by prescription. The evidence showed that “at scattered times the public drove or parked on the access drive” (1) to reach a small airport, (2) to reach a business that the plaintiff operated, (3) to turn cars around, (4) to fly model airplanes, (5) to assist police traffic surveillance, and (6) “for evening amatory activity.”
{¶ 31} Here, much of this access by “the public” was done with permission of the prior owner, Thee Johnson. But even if we were to assume that the evidence supports the trial court’s finding of adverse public use, the evidence does not support a finding of continuous public use for a 21-year period. As in J.F. Gioia, the evidence in this case fails to clearly and convincingly show continuous adverse public use for a 21-year period. The evidence, at best, shows scattered public adverse use mixed with periods of permissive use. Some witnesses used the disputed right of way on occasion with Johnson’s permission to reach hunting grounds. Some used it, again occasionally, to reach Fitzpatrick’s property. However, no one testified to continuous adverse public use for a 21-year period. This scattered use is not sufficient to demonstrate continuous, uninterrupted use for a period of 21 years. Vance and J.F. Gioia, supra.
{¶ 32} The best evidence that Fitzpatrick offered was his father’s testimony that he used the alleged right of way on a monthly basis for a period of 40-some years. This evidence may be relevant to a private easement by prescription. However, a private easement by prescription was not the basis for the court’s decision. Because the trial court did not rule on this issue, we remand this
{¶ 33} Accordingly, we sustain Palmer’s first assignment of error to the extent that it challenges the trial court’s finding of a public prescriptive easement. Our resolution of this issue renders moot Palmer’s remaining argument in his first assignment of error that the trial court abused its discretion by amending the pleadings to conform to the evidence, and we need not address it. See App.R. 12(A)(1)(c). We reject Palmer’s second assignment of error to the extent that he argues that the trial court found a prescriptive private easement. Rather, because the trial court did not address that issue, we remand to the trial court for further proceedings.
D. EASEMENT BY NECESSITY
{¶ 34} In his third assignment of error, Palmer argues that the trial court’s finding that Fitzpatrick established an easement by necessity is against the manifest weight of the evidence.
{¶ 35} “Easements implied of necessity are not favored because, like implied easements generally, they are ‘in derogation of the rule that written instruments shall speak for themselves.’ ” Tiller v. Hinton (1985),
{¶ 36} “[S]tringent requirements must be met before an encumbrance upon land will be implied.” Tiller at 70-71, 19 OBR 63,
{¶ 37} In Watson v. Neff, Jackson App. No. 08CA12,
The unity of title requirement accords with the principles of implied easements. Implied easements are easements read into a deed. “An implied easement is based upon the theory that whenever one conveys property he includes in the conveyance whatever is necessary for its beneficial use and enjoyment and retains whatever is necessary for the use and enjoyment of the land retained.” Trattar, supra, at 291[,43 O.O. 186 ,95 N.E.2d 685 ]. In other words, implied easements are those easements that a reasonable grantor and grantee would have expected in the conveyance, and a court will read the implied easement into a deed where the elements of that implied easement exist. However, if there is no unity of title, there is no grantor who may give an easement to the grantee. It does not matter whether a reasonable grantor would have conveyed an easement or a reasonable grantee would have expected to receive an easement. A grantor simply cannot convey what is not possessed.
{¶ 38} In imposing the strict-necessity element, the law is abundantly clear that a court may not imply an easement “where there is an alternative outlet to a public way, even though it is less convenient or more expensive.” Tiller,
“It is a general rule that one cannot derogate from his grant; so that, to warrant the inference of a way reserved by implication, it must be one of strict necessity to the remaining lands of the grantor. It is not merely a matter of convenience, and, if the grantor has another mode of access to his land, however inconvenient, he cannot claim a way by implication in the lands conveyed, though he may have been in the use of a way over it to a public highway at and a long time before the conveyance, and of which the grantee had notice at the time.” [Meredith v. Frank,56 Ohio St. 479 ,47 N.E. 656 , paragraph two of the syllabus]. Compare Jordan v. Breece Mfg. Co.,89 Ohio St. 311 ,106 N.E. 46 .
A way of necessity will not be implied, where there is another or other outlets available to a public thoroughfare, even though such other outlets are less convenient and would necessitate the expenditure of a considerable sum of money to render them serviceable. 15 Ohio Jurisprudence 62, Section 44.
The above proposition is well stated by the Supreme Court of Appeals of Virginia in Jennings v. Lineberry,180 Va. 44 , 48, 49,21 S.E.2d 769 , 770, 771, as follows:
“A right of way of necessity does not arise if there be already another mode of access to the land, though less convenient or more expensive to develop.
U * * *
“A way of necessity will not be decreed unless the evidence showing the need therefor is clear and convincing. Such a way is not sanctioned when there is available another means of ingress and egress to and from the claimant’s land even though it may be less convenient and will involve some labor and expense to repair and maintain.”
Although it would be much more convenient and much less expensive for plaintiffs to traverse defendant’s property to reach a public street, the imposition of such a burden on defendant’s land on the theory of a way of necessity is legally unwarranted in the circumstances exhibited by the record.
{¶ 39} Moreover, the plaintiff must show that the use of the alleged right of way is permanent in character.
For a use to be permanent in character “it is required that the use shall have been so long continued prior to the severance and so obvious as to show that it*93 was meant to be permanent; a mere temporary provision or arrangement made for the convenience of the entire estate will not constitute that degree of permanency required to burden the property with a continuance of the same when divided or separated by conveyance to different parties.” 28 C.J.S.,
Easements, § 33, page 691, 692; and 15 Ohio Jurisprudence, 41, Section 31. Id. at 292,
{¶ 40} Here, no clear and convincing evidence supports a finding of an easement by necessity. Even if such evidence supports a finding of unity of title (an issue we do not address), no competent, credible evidence supports a finding that the alleged right of way is strictly necessary. The evidence shows that an alternate route exists to reach Fitzpatrick’s property. Although inconvenient and potentially expensive, an alternate route exists. The case law is clear that a court will not imply an easement by necessity when an alternative, albeit inconvenient and more expensive, route exists.
{¶ 41} We are aware that the trial court, in finding an easement by necessity, did not employ the strict-necessity standard but instead employed a standard of reasonable necessity. However, this reasonable-necessity standard applies to easements implied by prior use, not to easements implied by necessity. Wheeler v. McBride,
{¶ 42} Accordingly, we sustain Palmer’s third assignment of error.
IV. VACATION OF TOWNSHIP ROAD 161
{¶ 43} In his fourth assignment of error, Palmer contends that the trial court erred by determining that the commissioners did not intend to vacate the part of Township Road 161 that leads to the alleged right of way. Palmer asserts that in reaching its decision, the trial court improperly considered parol evidence.
{¶ 45} The interpretation of a statute is a question of law that we review independently and without deference to the trial court. Washington Cty. Home v. Ohio Dept. of Health,
{¶ 46} In construing a statute, a court’s paramount concern is the legislature’s intent in enacting it. See, e.g., State ex rel. Cincinnati Enquirer v. Jones-Kelley,
{¶ 47} When the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need to apply rules of statutory construction. Id.; see also Cline v. Ohio Bur. of Motor Vehicles (1991),
{¶ 48} In this case, there is no ambiguity in the commissioners’ resolution approving the vacation of Township Road 161. It states that the commissioners approved Palmer’s petition “[t]o vacate a portion of Fayette Township Road 161 (portion of road bordered on both sides by the property of George Palmer ...... *). Utility easements to remain as stated. Survey to be recorded by Nate Dickerson upon completion.” Fitzpatrick attempts to create an ambiguity
{¶ 49} Accordingly, we sustain Palmer’s fourth assignment of error.
V. OBJECTIONS TO MAGISTRATE’S DECISION
{¶ 50} In his fifth assignment of error, Palmer argues that the trial court erred by overruling his objections to the magistrate’s decision.
{¶ 51} Our resolution of Palmer’s first four assignments of error renders this assignment of error moot, and we need not address it. See App.R. 12(A)(1)(c).
VI. CONCLUSION
{¶ 52} Accordingly, we overrule Palmer’s fifth assignment of error. We sustain his second assignment of error in part and sustain his third and fourth assignments of error. We sustain his first assignment of error to the extent that he asserts that the trial court’s finding of a public easement by prescription is against the manifest weight of the evidence. We overrule as moot his first assignment of error as it relates to the trial court’s decision amending the
Judgment reversed and cause remanded.
Notes
. The transcript is replete with vague descriptions such as "This being his house” and "There's a cable right there.” Obviously, the parties were referring to a map, but they failed to make a clear record.
. The third element as expressed in Cadwallader actually states that the easement must be "reasonably” necessary. However, the court later recognizes that this third element changes
. Although we question the procedural regularity of Fitzpatrick’s challenge in the trial court proceedings to the commissioners' resolution vacating the township road, because Palmer has not addressed it, we do not. Furthermore, because this case did not originate as an appeal from the commissioner's decision, the procedural regularity of the vacation proceedings is beyond the scope of this appeal.
. Our decision does not address what impact the vacation of Township Road 161 may have on Fitzpatrick’s right to gain access to any prescriptive easement he might establish upon remand.