Lead Opinion
{¶ 2} The present case arises from a disputed interest in real estate located in the city of Aurora, Portage County, Ohio. On September 23, 1996, the Aurora City Council adopted Resolution 1996-153 approving the final plat and improvement plans for Centerville Woods Subdivision at State Route 306 and Crackle Road. As described in the plat, Centerville Woods would consist of fifteen single-family homes located on both sides of a road, Centerville Trail, running north-south and terminating in a cul-desac. The plat also includes an eighty-foot wide "roadway easement" running between Lots Nos. 12 and 11. The proposed "roadway easement" connects Centerville Trail with a fifteen-acre tract of land to the east of Centerville Woods, owned by Jack T. and Naomi B. Page. The plat states that the owners of the platted land, Bryon W. and Gail K. Heath, "grant unto the City of Aurora an 80 foot roadway easement, as shown for the purpose of future roadway" and that they "hereby dedicate and grant to public use forever the streets and easements shown on this plat." The plat for Centerville Woods was filed in the Portage County Recorder's office on October 17, 1997.
{¶ 3} In April 1998, the Virosts purchased and took title to Lot No. 12. In January 1999, the Grabnics purchased and took title to Lot No. 11.
{¶ 4} On August 9, 1999, the Aurora City Council adopted Ordinance 1999-204 granting a "thirty (30') foot ingress and egress, permanent right of way, and utility easement" to the Pages and "vacating the Centerville Woods eighty (80') foot roadway easement no longer needed for a public purpose." On September 21, 1999, a Deed of Easement expressing the substance of Ordinance 1999-204 was filed in the Portage County Recorder's office.
{¶ 5} On September 20, 1999, the Pages sold ten acres of their property adjoining Centerville Woods to the Doskocils. The deed transferring the property provided, in part, that the Doskocils would have access to the property "over a 30' strip running north [sic] from Centerville Trail as stated in the deed of easement from the City of Aurora."1 The Doskocils subsequently cleared this area and constructed a driveway over the easement to Centerville Trail.
{¶ 6} On August 22, 2001, the Virosts and the Grabnics filed a complaint against the City of Aurora and the Doskocils seeking a declaratory judgment, writ of mandamus, equitable relief, and monetary damages on the claims of trespass and a taking of private property. The Virosts and the Grabnics moved for summary judgment, which the trial court denied on July 24, 2002. In its decision, the court held that, unless appellants could demonstrate a specific right, title, or interest in the roadway easement, Aurora had validly conveyed its interest in the roadway easement to the Pages pursuant to the authority granted under R.C.
{¶ 7} Appellants raise the following assignments of error:
{¶ 8} "[1.] The trial court erred in overruling Plaintiff-Appellants' motion for summary judgment.
{¶ 9} "[2.] The trial court erred in granting Defendant-Appellees' motion for summary judgment."
{¶ 10} Since the grounds for granting appellees' motion for summary judgment are the same grounds for overruling appellants' motion for summary judgment, both assignments of error will be addressed together.
{¶ 11} As a preliminary matter, appellees argue that appellants have not timely appealed the trial court's decision overruling their motion for summary judgment and that, therefore, this court should not consider appellants' first assignment of error. We reject this specious argument. As appellees acknowledge, direct appeal of a denial of a motion for summary judgment is not a final appealable order. State, ex rel. Overmyerv. Walinski (1966),
{¶ 12} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) no genuine issue of material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence, viewed in a light most favorable to the nonmoving party, that reasonable minds can come to but one conclusion, which is adverse to the nonmoving party. Zivich v. Mentor Soccer Club, Inc.,
{¶ 13} The first issue raised by appellants concerns the nature of the interest that Aurora acquired in the "roadway easement" upon the filing of the plat for Centerville Woods. According to appellants, by filing the plat, the Heaths and Aurora only intended to create an "easement interest" in the roadway, not any right of title or ownership. In support of this contention, appellants rely on the description of the proposed roadway in the plat and its subsequent treatment by Aurora as an "easement." Appellants then proceed to demonstrate that, under the common law, the Heaths and Aurora failed to create any property interest in Aurora in the proposed roadway.
{¶ 14} The nature of Aurora's property interest in the proposed roadway linking Centerville Trail with the Pages' property depends on the manner in which Aurora acquired that interest. The two generally recognized ways that land becomes dedicated to a public purpose are "through either compliance with the applicable statutory law or under common law." Lundquist v. MRN Prop. Mgt. LLC, 3rd Dist. No. 9-03-12,
{¶ 15} A developer who wishes to subdivide lots in a municipal corporation is required by R.C.
{¶ 16} In light of these statutes and precedent, Aurora's interest in the proposed roadway vested upon the recording of the plat with the county recorder. See Dundee Development Corp. v. Milford (Oct. 9, 1990), 12th Dist. No. CA90-02-014,
{¶ 17} The question then focuses on the nature of the interest or "fee" that Aurora acquired in the proposed roadway and whether Aurora could convey that interest to third parties. Appellants argue that this interest was "no more than the limited and conditional easement rights intended by the Developer and Aurora" and that Aurora lacked any authority to grant the Pages or Doskocils the right to use that easement for private purposes.
{¶ 18} The nature of Aurora's interest in the proposed roadway and its right to alienate that interest are questions determined by recourse to the applicable statutes, just as Aurora's interest in the proposed roadway was created according to statute. A municipality's interest in a dedicated street is described as a "fee * * * to be held in the corporate name in trust to and for the uses and purposes set forth in the [recorded plat]." R.C.
{¶ 19} Where the fee to a roadway resides in the public, "the lawful rights of the abutting owners are in their nature equitable easements."Callen,
{¶ 20} Having described the nature of Aurora's and the appellants' rights in the proposed roadway, we now turn to the issue of whether Aurora, pursuant to its rights, could convey a "ingress and egress, permanent right of way, and utility easement" along the proposed roadway to the Pages while vacating the remaining portions of the proposed roadway.
{¶ 21} Concerning the conveyance of land by legislative authorities, the Revised Code provides as follows: "The legislative authority of any municipal corporation may convey the fee simple estate or any lesser estate or interest in, or permit the use of, for such period as it shall determine, any lands owned by such municipal corporation and acquired or used for * * * streets * * * provided that it shall determine * * * that the property or interest so to be conveyed or be permitted to be used is not needed by the municipal corporation for any such purposes. * * * With respect to any of such property not owned in fee simple by the municipal corporation, the legislative authority thereof may grant the right to use any portion thereof in perpetuity or for such period of time as it shall specify, * * * provided that it shall determine * * * that the property made subject to a permit to use is not needed by the municipal corporation for any such purposes." R.C.
{¶ 22} We find these provisions applicable to Aurora's conveyance of the easement in the proposed roadway to the Pages and their successors, the Doskocils. As described above, Aurora possessed a determinable fee in the proposed roadway. Aurora Ordinance 1999-204 states that the eighty foot "roadway easement" contained in the dedication plat is "no longer needed for a public purpose." The ordinance then grants to the Pages, abutting landowners to the proposed roadway, the right to use a portion of that roadway for a "single family driveway." The remainder of the roadway is vacated. In granting the Pages/Doskocils an easement for ingress and egress to their abutting property, Aurora has not exceeded the scope of its determinable fee in the roadway. The Doskocils' right to access their property by means of ingress and egress easement does not differ materially from the original purpose of the dedicated strip of land as a proposed roadway. Moreover, to maintain the dedicated strip of land as a public roadway no longer makes sense, since the only property that the roadway would access is the Doskocils' property. If Aurora were to improve and accept the proposed roadway, the result would be a dead end road leading up to a single street address. The road would be nothing more than a private drive maintained at the municipality's expense.
{¶ 23} Finally, appellants rely on the following provision contained in R.C.
{¶ 24} We agree with the trial court that appellants have failed to articulate specific property rights in the proposed roadway that would be prejudiced by the granting of the easement. As discussed above, Aurora, not appellants, is the fee owner of the proposed roadway. Therefore, appellants' assertion that the creation of a private easement constitutes a taking of their property or a diminution of their property rights is unfounded. The "right" to have the easement subject to Aurora's municipal ordinances and the "right" to vacate the proposed roadway are not property rights as contemplated in R.C.
{¶ 25} In conclusion, we find that a determinable fee in the proposed roadway vested in Aurora upon the approval and recording of the plat for Centerville Woods subdivision. Appellants bought their property subject to the municipality's interest in the eighty foot roadway. Upon Aurora's vacation of fifty feet of the dedicated roadway, the Grabnics and the Virosts each received twenty-five feet of the vacated property pursuant to their reversionary interest in the proposed roadway. The Doskocils possess an easement interest in the remaining thirty foot strip for use as a single family driveway pursuant to the easement deed. The fee in this remaining strip of land abides in Aurora.
{¶ 26} For the foregoing reasons, the decision of the Portage County Court of Common Pleas is affirmed.
Rice, J., concurs in judgment only, Ford, P.J., dissents with a Dissenting Opinion.
Notes
Dissenting Opinion
{¶ 27} Throughout its written decision concerning the merits of appellants' motion for summary judgment, the trial court referred to the interest granted to the City of Aurora in the proposed street as the "roadway easement." In doing so, the trial court was merely following the wording which had been used in the plat. Despite this, when it came time for the trial court to determine the underlying nature of the City's interest in the subject land, the court did not predicate its holding upon the language of the plat; instead, it relied solely on a statute pertaining to the effect of dedicating land for public use. Because I conclude that the trial court misapplied that statute to the specific interest granted in the plat, I respectfully dissent from the majority's decision to uphold the ultimate judgment against appellants.
{¶ 28} At the outset of its discussion, the trial court stated that the primary question before it concerned whether appellants had any "right, title, or interest" as to the land covered by the easement. In trying to answer this query, the trial court cited only R.C.
{¶ 29} Based upon this statutory language alone, the trial court concluded that the recording of the plat for the Centerville Woods Subdivision had therefore caused the conveyance of a fee title for the subject land to the City. In turn, the trial court further held that appellants had not obtained any right to, or interest in, that land when they acquired their sublots. In light of this, the trial court finally held that the City's conveyance of the easement for the private driveway was permissible under R.C.
{¶ 30} In considering R.C.
{¶ 31} In Beauchamp v. Hamilton Twp. Trustees (May 5, 1994), 10th Dist. No. 93APE09-1331,
{¶ 32} In regard to the Beauchamp decision, I would note that that case pertained to land which was not located within a municipality. As a result, R.C.
{¶ 33} In support of the foregoing, I would also emphasize that, under R.C.
{¶ 34} In the instant case, both sides included a copy of the plat for the Centerville Woods Subdivision in their respective summary judgment materials. My review of the plat indicates that it contained only one specific reference to the proposed street between sublots 11 and 12: "[The developer] does also grant unto the City of Aurora an 80 foot roadway easement, as shown for the purpose of future roadway." In addition, the plat had the following general statement: "[The signers of the plat] do hereby dedicate and grant to public use forever the streets and easements shown on the plat."
{¶ 35} As to the first statement in the plat, I would indicate that this statement did not refer to the land underlying the proposed street. Moreover, this statement did not refer to any fee interest in the land. To this extent, the language of the first statement was unambiguous and did not need to be interpreted. That is, it only granted the City of Aurora a basic easement for a possible future roadway.
{¶ 36} As to the second statement, I would agree that, in the absence of any other relevant provision in the plat, the dedication of a street would necessarily include the land underneath it. However, in this particular instance, the reference to the subdivision's streets in the second statement had to be interpreted in light of the grant in the first statement. Simply stated, it would be illogical for the developer to only grant an easement to the City under the first statement, and then dedicate the underlying land to the City in the second statement. As a result, I conclude that, in relation to the proposed street between the sublots, the second statement in the plat was only intended to result in the dedication of the easement granted in the first statement.
{¶ 37} In support of this conclusion, I would further indicate that a copy of the map attached to the plat was also included in the evidential materials before the trial court. In this map, the property lines of sublots 11 and 12 extend to the middle of the proposed road. Obviously, if the developer of the subdivision had intended to dedicate the underlying land to the City, he would have placed the property lines at the edge of the road.
{¶ 38} When reviewed as a whole, the provisions of the instant plat only establish an intent on the part of the developer to dedicate the easement which had been granted for the proposed roadway. While it may be arguable that an "easement" interest cannot be dedicated under R.C.
{¶ 39} In light of the limited interest granted in the instant plat, it follows that the underlying fee interest in the subject land was retained by the developer and then conveyed to appellants. Therefore, I conclude that the City of Aurora was never conveyed any "fee" to the subject land under R.C.
{¶ 40} As a separate point, I would indicate that even if the language of the instant plat had been sufficient to dedicate the land in question, it is still arguable that the developer still would have retained some interest in the sublots. First, it must be again noted that, even though R.C.
{¶ 41} Finally, in light of the foregoing conclusion that the City of Aurora only had an "easement" interest in the subject land, the issue then becomes whether the City could convey the right to place a private driveway on the land. As a general proposition, the owner of an easement can subject the underlying land to a new use only when: (1) the new use is similar to the granted use; and (2) the new use will not cause an additional burden on the land. Proffitt v. Plymesser (June 25, 2001), 12th Dist. No. CA2000-04-008,
{¶ 42} In summation, my review of the various evidential materials submitted in the summary judgment exercise indicates that there was no factual dispute that the City was never dedicated a fee interest in the land for the proposed road. Based upon this fact, I would hold that, since the City only had an easement for a public roadway, it could not convey any interest in the land to the Pages. Accordingly, I would reverse the judgment of the trial court and remand the matter for further proceedings.