Honest Malcuit, plaintiff-appellee, granted Buckhorn Oil Company (“Buck-horn”), predecessor in interest of Equity Oil & Gas Funds, Inc. (“Equity”), defendant-appellаnt, an easement across his farm for a pipeline right-of-way. The easement was properly recorded. In consideration for this eаsement, 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 рrovide free gas to Malcuit. Equity appeals, raising five assignments of error.
Before addressing the assignments of error, we must note that no transcriрt 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.
Assignment of Error I
“The trial court should have applied the law of negotiation of written contracts. As a matter of law, there should be no significance between printеd and typed contractual provisions when the same are negotiated. The plaintiff-appellee specifically agreed thаt the grantor’s rights could not interfere or be inconsistent with the grantee’s rights. This plain and unambiguous *239 language controls the parties’ obligations. Therefоre, the trial court’s decision giving preference to typed over printed provisions in the written agreement should be reversed.”
Equity argues that thе court erred by giving preference to typed provisions over printed provisions. We do not agree. The typed provision in question statеs 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.
Assignment of Error II
“The typewritten phrases should have beеn strictly construed against the plaintiff-appellee. The trial court was in error by not construing the typewritten phrases against the plaintiff-appellee. After doing so, the printed and typewritten terms of the contract are reconcilable. The trial court was in error by finding these phrases to be irreconcilable.”
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,
The primary rule of construction applied in
Raphael
was consideration of circumstances under which the writing was made. Where appliсation 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 оf the disputed provisions was clear following the application of the primary rule of construction. Therefore, the secondary rulе was inapplicable, and the court correctly did not construe the language against Malcuit.
The second assignment of error is overruled.
Assignment of Error III
“The trial court was in error in ruling that the intentions оf the parties did not include a limited duration to the agreement. This is because the right of removal does directly affect the duration of the сontract.”
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 Assignments of Error IV and V
“IV. The trial court was in error in ruling that the parties’ contractual agreement implied an unlimited duration. As a matter of law, abandonment of a contract is sufficient to conclude its duration. Equity’s unconditional, intentional and voluntary notice of relinquishment was sufficient to conсlude the parties’ agreement. In addition, circumstances surrounding the creation of the agreement show that abandonment and the right of removal were essentially the same.
“V. The trial court’s decision was in error by the manifest weight of evidence. The negotiations of the parties аs well as the plaintiff’s agent’s understanding of the agreement demonstrated that the right to remove the pipeline was applicable regаrdless 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 easеment and that Malcuit presented insufficient evidence to prove that the parties intended to delete the removal right from the contrаct. 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 рroceedings 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.
Notes
. The words "change the size of, relocate” have been crossed out following the word "replace” in this provision.