{¶ 1} Thоmas and Christine Gabel appeal from the trial court’s entry of summary judgment against them on their complaint challenging the Miami East School District’s right to drain treated wastewater across their property and into a nearby creek.
{¶ 2} The Gabels advance four assignments of error on appeal. First, they contend that the trial court erred in finding that the school district may use an express easement for a “stormwater outfall sewer” to drain the treated wastewater. Second, they claim that the trial court erred in finding no unlawful taking of their property as a matter of law. Third, they argue that the trial court erred in finding the school board immune from liability on claims of nuisance and trespass. Fourth, they assert that the trial court erred in finding the existence of an implied easement allowing the school district to drain the treated wastewater.
{¶ 3} For the reasоns set forth below, we believe the trial court erred in finding, as a matter of law, that the school district’s drainage of treated wastewater across the Gabels’ property fits within the scope of an express easement for a “stormwater outfall sewer.” The language of the express easement does not unambiguously permit the school district to drain treated wastewater across the Gabels’ property. To the contrary, the easement contains language limiting its use to “Storm Sewer purposes.”
{¶ 5} We also conclude that the trial court erred in finding the existence of an implied easement to drain the treated wastewater across the Gabels’ property. Although the school board alleges the existence of an implied easement by estoppel, we are unpersuaded that the Gabels took any actions that estop them from disclaiming the existence of an easement to drain the treated wastewater.
{¶ 6} Despite the foregoing conclusions, we agree with the trial court’s determination that the Miami East School Board is immune from liability under R.C. 2744.02, as a matter of law, on the Gabels’ nuisance and trespass claims. Therefore, the Gabels cannot prevail on these tort claims regardless of whether an easement authorizes the discharge of treated wastewater across their property-
{¶ 7} Finally, we conclude that the trial court erred in entering summary judgment against the Gabels on their mandamus claim alleging a taking of their property without just compensation. A trier of fact reasonably could find that the disputed drainage of treated wastewater across the Gabels’ property is unauthorized and that it qualifies as a substantial or unreasonable interference with their property rights. Accordingly, the judgment of the Miami County Common Pleas Court is affirmed in part and reversed in part, and the cause is remanded for further proceedings.
I. Factual Background
{¶ 8} The Miami East School District long ago began operating a wastewater treatment facility on property located adjacent to land the Gabels now own. In 1958, a prior owner of the Gabels’ land, Clark S. Bair, granted the school district an easement to “lay and perpetually maintain, operate, repair and remove a sewer fine over and through [his] farm.” The 1958 easement provided for the sewer fine to be “laid in a direct fine to Little Lost Creek.” In аccordance with this easement, the school district operated a 10,000-gallon wastewater facility for more than 40 years and discharged treated effluent through the sewer line and directly into the creek.
{¶ 9} In 1998, Jeffrey and Pamela Bair, who then owned the Bair property, granted the school district a second easement “for the installation, maintenance, repair, and replacement of a stormwater outfall sewer on, in, or under” their property. The 1998 easement stated that it was “for Storm Sewer purposes” and to provide “ingress and egress, maintenance and repair of a storm sewer outlet from the adjacent Miami East Board of Education property.” Unlike the 1958 easement, the 1998 easement did not specify that it was to drain directly into
{¶ 10} Shortly after obtaining the 1998 easement, the school district approved resurfacing of a high school track on its property and the installation of a stormwater drainage system around the track. This work included the placement of a small drain on the Bair property using the 1998 easement. Thereafter, in 2003, the school district began budding an elementary school on its property. The project included a new stormwater drainage system around the school, and it required the placement of a 36-inch cement drain on the Bair property under the 1998 easement.
{¶ 11} In conjunction with the foregoing construction project, the school district also built a new 25,000-gallon wastewater treatment facility on its land to replace the existing 10,000-gallon plant. The school district designed the new fаcility to discharge into a storm sewer on school property. From there, the treated effluent was to flow onto the Bair property through the stormwater outfall sewer that had been installed pursuant to the 1998 easement. The school district began using the new wastewater treatment facility in May 2004 and discontinued using its older facility at that time. Since then, the school district has used the 1958 sewer-line easement “only as a secondary stormwater outlet.”
{¶ 12} The Gabels purchased the Bair property on August 18, 2004. They did not immediately notice that the school district was using the 1998 easement to drain stormwater and treated wastewater onto their property. A few weeks after buying the property, however, the Gabels discovered “a large amount of murky water” flowing from a drain pipe on their land. The water was located near Little Lost Creek in an area “сovered by a large amount of underbrush” that Thomas Gabel had to “hack away” to find. The affected area allegedly includes several acres of the Gabels’ property, which remains “continually] saturated” due to treated wastewater being discharged there.
{¶ 13} The Gabels objected to the school district about the drainage of treated wastewater onto their property in December 2004. In response, the school district took the position that the drainage was permitted under the 1998 easement that it had obtained from Jeffrey and Pamela Bair. The dispute ultimately resulted in the Gabels filing a five-count verified complaint against the Miami East School District Board of Education. Count one alleged that the drainage of treated wastewater on their property was not permitted under the 1998 easement and constituted a taking оf their property without just compensation. As a result, the Gabels sought a writ of mandamus directing the school board to pay them for the taking. Counts two and three set forth tort claims of trespass and nuisance based on an allegation that the drainage of wastewater on
{¶ 14} The school board subsequently moved for summary judgment. In support, it argued that it was immune from tort liability. It also maintained that the school district possessed a valid express easement аnd/or an easement by estoppel permitting the discharge of treated wastewater onto the Gabels’ land. Finally, the school board asserted that the drainage of treated wastewater under the 1998 easement did not constitute a compensable taking.
{¶ 15} In a November 23, 2005 decision and entry, the trial court agreed with the school board’s arguments. It found that the school board was immune from tort liability under R.C. 2744.02. It also found that the Gabels’ tort claims failed because the drainage of wastewater onto their property was permitted under the terms of the 1998 easement. The trial court additionally determined that the school district possessed an easement by estoppel permitting the drainage of treated wastewater across the 1998 easement. With regard to the takings issue, the trial court found that the land at issue had no economically viаble use regardless of whether the school district drained treated wastewater on it. The trial court reached this conclusion because the low-lying area was covered with underbrush and located behind a football stadium near a creek where it already was subjected to the drainage of stormwater pursuant to the 1998 easement. Thus, the trial court reasoned that the additional drainage of treated wastewater in the area had no impact on the Gabels’ ability to use the land. This timely appeal followed the trial court’s entry of summary judgment against the Gabels.
II. Analysis
{¶ 16} In their first assignment of error, the Gabels contend the trial court erred in finding that the 1998 easement authorized the school district to discharge treated wastewater onto their property. The Gabels argue that the 1998 easement is expressly limited to the discharge of stormwater.
{¶ 17} In rеaching a contrary conclusion, the trial court reasoned:
{¶ 18} “The Gabels’ contention that the Board cannot use the 1998 easement with the wastewater treatment plant is without merit. The easement is for the installation and maintenance of a storm sewer outfall or drain. (See Ex. A-l, attached to Defendant’s Motion for Summary Judgment). There are no expressed instructions or limitations upon the use of that outfall. (Id.) The use of the outfall for treated wastewater drainage is not inconsistent with the use of a
{¶ 19} Upon review, we find the foregoing analysis to be unpersuasive. As noted above, the 1998 easement states that it is “for the installation, maintenance, repair, and replacement of a stormwater outfall sewer on, in, or under” their property. The easement also specifies that it is “for Storm Sewer purposes” and to provide “ingress and egress, maintenance and repair of a storm sewer outlet from the adjacent Miami East Board of Education property.”
{¶ 20} “Stormwater” is commonly defined as “an abnormal amount of surface water due to a heavy rain or snowstorm.” 1 An “outfall” is “[t]he place where a sewer, drain, or stream discharges.” 2 A “sewer” is “[a]n artificial, usually underground conduit for carrying off sewage or rainwater.” 3 With these definitions in mind, we believe a reasonable reading of the 1998 easement is that it was granted to the school district for purposes of transporting rain or snow-related surface water (or “stormwater”) through an underground conduit (or “sewer”) to a discharge point (or “outfall”) on the Gabels’ property. Because the 1998 easement specifies that it is for “Storm Sewer purposes,” we cannot agree with the trial court’s finding that there are no limitations imposed on its use. In our view, the school district’s use of the 1998 easement to discharge treated wastewater, in addition to stormwater, onto the Gabels’ property exceeded the express terms of the easement. Although the school board contends that the 1998 easement does not preclude the drainage of wastewater through the stormwаter outfall sewer, we find this argument to be without merit. The most reasonable interpretation of a “stormwater outfall sewer” easement for “Storm Sewer purposes” is that it is limited to drainage of stormwater. 4
{¶ 22} Thereafter, in
Jolliff v. Hardin Cable Television Co.
(1971),
{¶ 24} “The question in the case sub judice is not whether the wastewater treatment plant adds additional water to the Gabels’ property. The question is whether the additional water imposes a substantial additional burden on the Gabels’ use of the property. The [School] Board has two valid easements over the Gabels’ property. One is for the installation of a stormwater sewer outlet, and the other is for a sewer line. The consolidation of the purified water and the stormwater through one outfall actually means that the school is not draining water onto the Gabels’ property in two places. The water from the treatment plant does not make the natural drainway on the Gabels’ property any less usable than it was with stormwater drainage. The Court has reviewed the photographs taken before and after the plant was operative. (See photographs attached as Ex. A-3 and A-4 to Defendant’s Mоtion for Summary Judgment). The Court finds that the wastewater treatment plant has not imposed any additional burden on the Gabels’ property. The property sits in a ravine and the Gabels have no evidence that there is any way they can use the property with only stormwater drained onto the property that is not available to them with the addition of clean, treated water. The Court finds that there has been no injury to the Gabels’ premises in the way of hindering access thereto, particularly in light of the nature of the property.”
{¶ 25} Although the issue is perhaps a close one, we believe that the trial court erred in finding, as a matter of law, that the discharge of treated wastewater on the Gabels’ property under the 1998 easement imposed no additional burden on their land. Construing the evidence in a light most favorable to the Gabels, as we must in the contеxt of summary judgment, we believe that a trier of fact reasonably might find otherwise. In its ruling, the trial court noted that the school district held two easements over the Gabels’ land: the 1958 easement, which indisputably provided for the drainage of treated wastewater, and the 1998 easement, which was for storm sewer purposes. The trial court reasoned that no additional burden resulted from the school district’s decision to discontinue using the 1958 easement and to drain treated wastewater and stormwater onto the Gabels’ property under the 1998 easement.
{¶ 26} If the drain pipes installed under both easements discharged directly into the creek on the Gabels’ land, we would be inclined to agree with the trial court’s analysis. As noted above, however, the drain pipe installed under the 1958 easement discharges directly into the creek, whereas the pipe installed under the 1998 easement discharges onto a low-lying portion of the Gabels’ land
{¶ 27} “a. The added use of the wastewater treatment plant that utilizes the storm water fallout sewer by the Miami East School Board creates an extreme amount of water. The volume of water is attributable to the volume of water generated by the wastewater treatment plant operated by the Miami East School Board.
{¶ 28} “b. The continual use of the wastewater treatment plant by the Miami East School Board creates a substantial burden on the Gabels’ property. The wastewater remains in a stagnant pool on the Gabels’ property and fails to drain directly into Lost Creek.
{¶ 29} “c. If the wastewater treatment plant were not being operated by the Miami East School Board, then the amount of water on the Gabels’ property would be significantly less.”
{¶ 30} In light of the foregoing evidence, we believe that a genuine issue of material fact exists as to whether the drainage of wastewater under the 1998 easement imposes an additional burden on the Gabels’ land beyond the burden created by using the easement for stormwater purposes. As a result, the school board was not entitled to summary judgment on the basis that the drainage of wastewater under the 1998 easement imposed no additional burden and, therefore, was permissible despite the fact that it was not specifically authorized under the terms of the easement.
{¶ 31} We turn next to the trial court’s alternative finding that the school district held an implied easement by estoppel permitting it to use the 1998 stormwater outfall sewer for the drainage of wastewater. In support, thе trial court reasoned:
{¶ 32} “The [School] Board relied upon the easement to build the wastewater treatment plant on the Bairs’ property line. All were aware at the time of the creation of the easement that the Board would be developing the property. The
{¶ 33} Upon review, we disagree with the trial court’s analysis. “ ‘One claiming an easement by estoppel must establish (1) misrepresentation or fraudulent failure to speak and (2) reasonable detrimental reliance.’”
Maloney v. Patterson
(1989),
{¶ 34} Consistent with the trial court’s findings, the school board argues that an easement by estoppel arose when Jeffrey and Pamela Bair, the former owners of the property, remained silent and watched the School District expend funds to build a new school and wastewater treatment facility in anticipation of using the 1998 easement to drain treated wastewater across their property. Thus, the school board asserts that the Bairs failed to speak out against the planned use of the 1998 easement to drain treated wastewater and that the school district detrimentally relied on their silence.
{¶ 35} The problem with the estoppel argument is that nothing in the record establishes the Bairs’
knowledge
of the school district’s intent to use the 1998 easement to drain treated wastewater prior to completion of the construction project. Although the building of the new school and wastewater treatment facility was public knowledge, Jeffrey and Pamela Bair both averred that no one from the Miami East School District ever approached them about using the 1998 easement for wastewater drainage purposes. Moreover, at the time of the construction project, the school district already held a 1958 easement for the drainage of treated wastewater across the Bairs’ property at a different location. Consequently, it would have been reasonable for the Bairs to assume that the School District would continue to use this easement for the drainage of treated
{¶ 36} Our analysis up to this point is somewhat academic, however, in light of our agreement with the trial court’s additional finding that the school board is immune from liability on the Gabels’ claims of nuisance and trespass. Under R.C. 2744.02(A)(1), political subdivisions are immune from tort liability “allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.” 6 This broad grant of immunity is subject to five exceptions set forth in R.C. 2744.02(B). The second of these exceptions is at issue here. It provides that political subdivisions are liable for “loss to person or property caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions.” R.C. 2744.02(B)(2).
{¶ 37} The issue in the present case is whether the Gabels’ tort claims of nuisance and trespass arise from the negligent performance of a proprietary function by school district employees. Based on our review of the record, we find no evidence to suppоrt such a conclusion. Under R.C. 2744.01(C)(2)(i), the design, installation, or construction of a sewer system is classified as a governmental function. On the other hand, R.C. 2744.01(G)(2)(d) provides that the maintenance or operation of a sewer system is a proprietary function. On appeal,
{¶ 38} Upon review, we find no error in the trial court’s determination that the school board is immune from liability on the Gabels’ tort claims. The trial court properly noted that the school board has immunity insofаr as the tort claims might be read as arising from the design of the new wastewater treatment facility. Because the design of the facility is a governmental function under R.C. 2744.01(C)(2)(l), the immunity exception set forth in R.C. 2744.02(B)(2) would have no applicability.
{¶ 39} As noted above, however, the Gabels contend that their tort claims involve the negligent operation of the new wastewater treatment facility, which has resulted in the unauthorized discharge of water on their property. If the record contained evidence establishing negligent operation of the plant by school district employees, we would find the Gabels’ argument to be persuasive. But the record is devoid of evidence linking the excess water on their property to negligence in the operation of the wastewater treatment facility. To the contrary, the record reflects that the facility is being operated еxactly as planned and intended. The plant was specifically designed to discharge treated wastewater onto the Gabels’ property at the site of the 1998 stormwater easement, and that is precisely what is happening. Thus, we find no genuine issue of material fact as to whether the excess wastewater on the Gabels’ property is attributable to the negligent operation of the new wastewater treatment facility. 7
{¶ 40} Because the discharge of treated wastewater on the Gabels’ property was the intended result of the School District’s actions, R.C. 2744.02(B)(2)does not apply. As set forth above, that provision removes the shield immunity when harm results from the negligent performance of a proprietary function. Absent evidence of such negligence, political subdivision immunity remains intact. See, e.g.,
Thayer v. W. Carrollton Bd. of Edn.,
Montgomery App. No. 20063,
{¶ 41} The final issue before us is whether the trial court erred in entering summary judgment against the Gabels on their mandamus claim alleging a taking of their property without just compensation. “The United States and Ohio Constitutions guarantee that private property shall not be taken for public use without just compensation.”
State ex rel. Elsass v. Shelby Cty. Bd. Of Commrs.
(2001),
{¶ 42} The Ohio Supreme Court has recognized that “ ‘[t]he value of property consists in the owner’s absolute right of dominion, use, and disposition for every lawful purpose. This necessarily excludes the power of others from exercising any dominion, use or disposition over it. Hence, any physical interference by another, with the owner’s use and enjoyment of his property, is a taking to that extent.’ ” Id. at 207,
{¶ 43} In
Lucas v. Carney
(1958),
{¶ 44} “Where, in creating a public improvement upon land which it owns, a county without negligence or malice but solely as a result of the creation of such
{¶ 45} Likewise, in
Masley v. Lorain
(1976),
{¶ 46} “The construction and operation of a municipal storm sewer system so as to cause material damage to a downstream landowner, as a result of flooding from rains or other causes which are reasonably foreseeable, is a direct encroachment upon that land which subjects it to a public use that еxcludes or restricts the landowner’s dominion and control over his land, and such owner has a right to compensation for the property taken under Section 19, Article I of the Ohio Constitution.” Id., syllabus.
{¶ 47} The foregoing cases illustrate that one of the fundamental attributes of land ownership is the right to exclude others from use of the land. They also establish that when the government’s unauthorized encroachment on private land interferes with the owner’s use and enjoyment of his property, a potential takings claim arises. In the present case, however, the trial court concluded that no taking occurred, as a matter of law, despite the school district’s discharge of treated wastewater on the Gabels’ property, because the evidence failed to establish any “economically viable use” for the land. In support, the trial court reаsoned:
{¶ 48} “The Gabels acknowledge that the Board’s use of the easement for purposes of stormwater drainage was and is lawful. (See Complaint, ¶ 17.) Accordingly, the Gabels must demonstrate that there is an economically viable use of the property, in light of the Board’s right to drain stormwater on the property, in light of the fact that the property is covered with underbrush, in light of the fact that the property sits in a low lying area behind a football stadium and is shown to have had a history of flooding, and in light of the fact that the property borders Lost Creek. The Court finds that flooding is flooding, whether it is stormwater drainage flooding or wastewater treatment plant flooding. The Gabels’ bare assertion that the property is currently useless, is insufficient to meet their burden of showing that it is the wastewater treatment plant that causes it to be useless.”
{¶ 49} On appeal, the school board similarly argues that the Gabels cannot establish a taking without evidence that the drainage of treated wastewater on
{¶ 50} Upon review, we disagree with the trial court’s analysis and the school board’s argument. It is true that a taking may exist when government action deprives a property owner of
some,
or in certain cases
all,
economically viable use of his land. See
State ex rel. BSW Dev. Group v. Dayton,
{¶ 51} It is also true, hоwever, that the government sometimes takes property that has no “economically viable use” other than for private residential purposes. 8 The school board’s argument suggests that portions of the Gabels’ residential land may be taken for public use, without any compensation being paid, because the land has no other economically viable use. We do not agree. Under the school board’s theory, it could flood the Gabels’ wooded property completely, or possibly even confiscate the land outright, because it has no “economically viable use” anyway. But the existence of economic viability, a concept that traditionally has applied in regulatory takings cases, cannot be the linchpin of takings analysis in all cases.
{¶ 52} To the contrary, as the cases cited above make сlear, a compensable taking is established if a landowner simply demonstrates a substantial or unreasonable interference with a property right. These rights include the owner’s absolute right of dominion, use, and disposition of his property for every lawful purpose. It includes the right to exclude others from exercising any dominion, use, or disposition over it. As a result, “ ‘any physical interference by another, with the owner’s use and enjoyment of his property, is a taking to that extent.’ ”
State ex rel. OTR,
{¶ 53} In the present case, the Gabels’ intended use and enjoyment of their land might consist of nothing more than taking leisurely walks through their
III. Conclusion
{¶ 54} Based on the reasoning set forth above, the judgment of the Miami County Common Pleas Court is hereby affirmed in part and reversed in part, and the cause is remanded for further proceedings consistent with this opinion.
Judgment affirmed in part and reversed in part, and cause remanded.
Notes
. Webster's New Millennium Dictionary of English, Preview Edition (v 0.9.6), retrieved from Dictionary.com.
. The American Heritage Dictionary of the English Language, Fourth Edition, retrieved from Dictionary.com.
. The American Heritage Dictionary of the English Language, Fourth Edition, retrieved from Dictionary.com.
. Even assuming, arguendo, that the 1998 easement was ambiguous with regard to the school board's right to drain treated wastewater onto the Gabels’ property, such ambiguity would not support the trial court’s entry of summary judgment. When an easement is ambiguous as to its scope, a trial court may consider parol evidence to determine the parties' intent.
Gans v.
. Parenthetically, we note that it is questionable whether governmental entities ever may obtain an easement by estoppel. This is so because "governmental entities have the alternative of eminent domain
to
acquire the necessary land * * *. A private person asserting estoppel does not.”
Maloney,
. The Gabels have not disputed that the school board qualifies as a "political subdivision” under R.C. Chapter 2744. A political subdivision is defined in R.C. 2744.01(F) as a “municipal corporation, township, county,
school district,
or other body corporate and politic responsible for governmental activities in a geographic area smaller than that of the state.” (Emphasis added.) Under this definition, the Miami East School District is a political subdivision. But because the Miami East School Board is an instrumentality that carries out the functions of its school district, the potential immunity from tort liability provided to political subdivisions under R.C. Chapter 2744 extends to the school board as well. Cf.
Brewer v. Butler Cty. Bldg. & Zoning Dept.
(2001),
. In connection with the trespass claim, the Gabels' complaint does not even allege the existence of negligence. It alleges harm resulting from “the intentional acts of Defendant.” With regard to the nuisance claim, the Gabels do allege unspecified acts of negligence. As we have explained above, however, the summary judgment evidence does not support a finding of negligence. Instead, the only reasonable conclusion is that the School District intended to bring about the conditions alleged by the Gabels to constitute a nuisance. In such a case, “[wjhere the harm and resulting damage are the necessary consequences of just what the defendant is doing, or is incident to the activity itself or the manner in whiсh it is conducted, the law of negligence has no application[.]”
Angerman v. Burick,
Wayne App. No. 02CA0028,
. For example, if the government appropriates a portion of purely residential property for a public use, the landowner usually remains capable of living in his home. Yet, he undoubtedly is entitled to compensation for the portion of his land taken, despite the fact that he has not shown the deprivation of any “economically viable use.”
. As set forth in our analysis of the easement issue, supra, there remains a triable issue as to whether the drainage of treated wastewater under the 1998 easement imposes an additional burden on the Gabels’ land beyond the burden created by using the easement solely for stormwater purposes. If the school district’s use of the 1998 easement for wastewater purposes does impose an additional burden on the Gabels’ land, then that use is unauthorized and a potential taking exists.