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Wayne W. Clark, et al v. Kathleen L. Butler

November 28, 2012

WAYNE W. CLARK, ET AL., PLAINTIFFS-APPELLEES,
v.
KATHLEEN L. BUTLER, ET. AL., DEFENDANTS-APPELLANTS.



CIVIL APPEAL FROM COMMON PLEAS COURT

The opinion of the court was delivered by: Abele, P.J.

Cite as Clark v. Butler,

DECISION AND JUDGMENT ENTRY

{¶1} This is an appeal from a Ross County Common Pleas Court judgment in favor of Wayne Clark and Cheryl Clark, plaintiffs below and appellees herein, on their claims against Kathleen Butler and Butler Events, LLC, defendants below and appellants herein.

{¶2} Appellants assign the following errors for review:

FIRST ASSIGNMENT OF ERROR:

"IN THE MAY 7, 2010, DECISION AND JUDGMENT ENTRY, THE TRIAL COURT'S FINDING THAT APPELLANTS DID

NOT HAVE AN EASEMENT FOR THE USE OF THE COMMON SEWERAGE SYSTEM WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

SECOND ASSIGNMENT OF ERROR:

"IN THE MAY 7, 2010, DECISION AND JUDGMENT ENTRY, THE TRIAL COURT'S FINDING THAT APPELLANTS DID NOT HAVE AN EASEMENT FOR THE USE OF THE COMMON SEWERAGE SYSTEM WAS CONTRARY TO LAW."

{¶3} Helen Davis lived on ten acres of land where she also operated an auction business. After her death, the property was divided into smaller parcels and sold. Appellees acquired approximately five acres of that land in August 2006. The following month, Appellant Kathleen Butler acquired a contiguous acre and a half. Butler transferred that land to her business, Appellant Butler Events, LLC, in January 2007.

{¶4} The dispute in this case centers around the use of a septic system and leach field. Appellees' residence has a septic system with a discharge pipe that empties into a leach field located in whole, or in part, on appellant's land. Shortly after she acquired her parcel, Kathleen Butler asked appellees if she could tap into the septic system. Appellees denied her request. Apparently in retaliation, Butler cut appellees' discharge pipe from the leach field.

{¶5} Appellees commenced the instant action on September 7, 2007 and alleged that appellants interfered with an easement for their use of the septic system. Appellants denied liability and asserted several counterclaims, including a declaratory judgment to recognize that appellant has an easement to use the septic system on appellees' property. Appellees denied liability on the counterclaims.

{ΒΆ6} The court originally scheduled a bench trial, but the parties instead opted to submit the case on stipulations of fact. On May 7, 2010, the trial court issued its decision and judgment in favor of the appellees and granted a declaratory judgment to use the leach field on appellants' property. The court found "no just reason for delay" and scheduled a hearing on the damage issue. Later, appellees dismissed their "claims" for damages. On September 30, 2010, the trial court filed an entry denoted as a "Final Appealable Order" and repeated that it had granted declaratory judgment to the ...


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