610 N.E.2d 1044 | Ohio Ct. App. | 1992
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *238 Honest Malcuit, plaintiff-appellee, granted Buckhorn Oil Company ("Buckhorn"), predecessor in interest of Equity Oil Gas Funds, Inc. ("Equity"), defendant-appellant, an easement across his farm for a pipeline right-of-way. The easement was properly recorded. In consideration for this easement, Buckhorn agreed to provide free gas to Malcuit's farm. Equity obtained Buckhorn's interest in the pipeline agreement at a foreclosure sale. The agreement is silent as to its duration.
Malcuit filed a declaratory judgment action and requested injunctive relief to stop Equity from removing the pipeline. The trial court held that Equity could not remove the pipeline under these circumstances and that Equity must continue to provide free gas to Malcuit. Equity appeals, raising five assignments of error.
Before addressing the assignments of error, we must note that no transcript of proceedings was filed with this court. A review of the record reveals that appellant Equity failed to file a praecipe with the court reporter or file a copy of the transcript with the clerk of courts. App.R. 9(B) places this duty on the appellant.
Equity argues that the court erred by giving preference to typed provisions over printed provisions. We do not agree. The typed provision in question states in part:
"2. Buckhorn Oil will put in a gas tap (for free gas for Malcuit Farm, no cubic feet limit). Gas will not be shut off if wells are shut down."
This provision was typed at the end of a form contract. The printed provision provides that Malcuit grants "* * * the right of way to lay, maintain, operate, inspect, replace, and remove a pipe line for the transportation of natural gas and other gaseous products * * *."1
It is well settled in Ohio that the typed portion of a contract will prevail over the printed portion, if the two are inconsistent. O'Neill v. German (1951),
The first assignment of error is overruled.
Equity asserts in its second assignment of error that the trial court erred by not construing the typed provision against Malcuit. We do not agree.
This court addressed a similar question in Raphael v. Flage (Sept. 20, 1989), Lorain App. No. 89CA004539, unreported, 1989 WL 109122. In Raphael, this court identified primary and secondary rules of contract construction. *240 Primary rules are always applicable, while secondary rules are applicable only after primary rules have been applied and the contract's meaning remains uncertain or ambiguous. Id., citing 4 Williston on Contracts (3 Ed.1961) 699-702, Section 617.
The primary rule of construction applied in Raphael was consideration of circumstances under which the writing was made. Where application of this rule makes the meaning of the language clear, the secondary rule of construction of strict construction against the drafter is not applicable. Id., citing Williston,supra, at 760, Section 621. Many other decisions have reached the same result. See, e.g., Alexander v. Buckeye Pipe Line Co.
(1978),
In the case at bar, the meaning of the disputed provisions was clear following the application of the primary rule of construction. Therefore, the secondary rule was inapplicable, and the court correctly did not construe the language against Malcuit.
The second assignment of error is overruled.
Equity argues in its third assignment of error that the parties intended a limited duration by including a removal right in the easement. We do not agree.
When the duration of an easement is not expressly stated, as in the case at bar, the duration depends upon a reasonable construction of the language to effect the reasonable intention of the parties deducible from the words employed, as applied to the surrounding circumstances. Hieatt v. Morris (1860),
The third assignment of error is overruled. *241
"V. The trial court's decision was in error by the manifest weight of evidence. The negotiations of the parties as well as the plaintiff's agent's understanding of the agreement demonstrated that the right to remove the pipeline was applicable regardless of any other negotiations or parole [sic] evidence."
Assignments of error four and five both require reference to the transcript of proceedings, and therefore will be addressed together.
In its fourth assignment of error, Equity alleges that it proved it abandoned the easement and that Malcuit presented insufficient evidence to prove that the parties intended to delete the removal right from the contract. In its fifth assignment of error, Equity asserts that the trial court's judgment was against the manifest weight of the evidence. As already indicated, no transcript of proceedings was filed with this court.
Without an adequate record, this court is unable to determine whether Equity proved abandonment, whether Malcuit presented insufficient evidence in support of his claim, or whether the trial court's judgment was against the manifest weight of the evidence. Volodkevich v. Volodkevich (1989),
Accordingly, the fourth and fifth assignments of error are overruled.
The judgment of the trial court is affirmed.
Judgment affirmed.
QUILLIN, P.J., and REECE, J., concur.