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Helen Duncan, et al v. George W. Clapp

December 3, 2012


Civil Appeal from the Portage County Court of Common Pleas, Case No. 2009 CV 00913.

The opinion of the court was delivered by: Thomas R. Wright, J.

Cite as Duncan v. Clapp,


Judgment: Affirmed in part; reversed in part and remanded.

{¶1} This accelerated-calendar appeal is from a final order of the Portage County Court of Common Pleas. In that order, the trial court granted summary judgment in favor of appellees, George and Margaret Clapp, on all four claims asserted by appellants, Helen and Donna Duncan. As the primary grounds for their appeal, the Duncans contend that the trial court erred in concluding that their evidentiary materials were not sufficient to raise legitimate factual disputes under each of their claims.

{¶2} Helen Duncan is the owner of a home and accompanying tract of property which is located at 9673 Diagonal Road, Mantua, Ohio. Helen originally purchased the tract in 1975, and has resided in the home continuously with her daughter, Donna.

{¶3} Directly south of the Duncan property are two separate tracts of land that are presently owned by the Clapps. The tract which is directly adjacent to the Duncans, 9657 Diagonal Road, presently contains both a renovated stone cottage and a retention pond. The next tract of land, which only abuts the "cottage" tract and is located at 9645 Diagonal Road, contains the Clapps' marital residence.

{¶4} The Clapps bought their home and accompanying property sometime in 1977. During that same time frame, a problem developed with part of the roadway near the Duncan property. Specifically, mud would sometimes inundate the roadway during periods of heavy rain. Accordingly, in 1978, county officials chose to raise the elevation of the roadway in that general area. Once this construction was completed, though, it had the effect of causing some flooding on parts of the Duncan tract and the "cottage" tract during certain times of each year. Since the stone cottage was situated on a knoll, the floods never affected it. However, because the Duncan home was located nearer to the road, the potential for flooding was always greater.

{¶5} During the 1980's, a considerable portion of the "cottage" property was a swamp in which water was present the majority of each year. Furthermore, since the Duncan property was higher than the "cottage" tract, any accumulation of water on the Duncan land would naturally flow into the swampy area. Similarly, since the leech bed for the Duncan home was located near the border between the two tracts, the excess water from the septic system also flowed toward the swamp.

{¶6} Prior to the 1990's, no specific steps were taken to improve the "cottage" property; as a result, non-residents of the area would often dump trash and debris into the swamp. However, in 1993, the Clapps decided to purchase the "cottage" tract and attempt to "clean up" the property so that the cottage could be used as a rental. Since George Clapp owned an excavation company and was licensed by the state of Ohio to install septic systems, he personally took steps to dredge the swamp and remove much of the trash and debris. He also deepened a portion of the swamp area by digging out a considerable amount of muck. In addition, Clapp tried to give definition to the sides of the swamp and planted grass around its entire border so that further dumping would be discouraged. In essence, Clapp changed the swamp into a retention pond.

{¶7} George Clapp's efforts in 1993 had no meaningful effect upon the Duncan property. Water from the Duncan land continued to seep into the retention pond on the "cottage" tract, but the flow was not significant enough to stop occasional flooding in the general area. Approximately fifteen years later, Clapp began to notice that portions of the surface water flowing from the Duncans' property contained waste from their septic system. In light of this, Clapp surmised that the septic system was no longer working, and that the flow of the contaminants was causing the retention pond to have a terrible odor. Clapp also noticed that the sides of the pond were beginning to deteriorate again, and that the level of the muck on the bottom of the pond was increasing.

{¶8} After initially considering whether it would be better to fill in the retention pond, Clapp decided to wait for the pond to become completely dry in 2007, and then to again dig out the muck and lower the bottom of the pond by several feet. As part of that process, Clapp extracted more trash and debris from the muck, and laid it by the side of the retention pond near the Duncan property. Clapp also removed certain drainage tiles which had originated from the Duncan tract. He concluded that the tiles were over fifty years old and were presently useless because they were clogged with mud.

{¶9} In the same year as Clapp's second excavation of the swamp/pond area, his company was hired to demolish some public buildings in a local city. In an effort to stabilize the sides of the pond and stop the muck from sliding back to the bottom, Clapp began to transport some of the masonry debris from the demolition sites to the "cottage" tract. Before his removal of the debris from the sites, Clapp's actions were approved by a state agency. Moreover, once Clapp dumped the masonry debris near the retention pond, he did not place any of the old masonry into the pond until he and his wife sorted the materials further and removed any inappropriate items.

{ΒΆ10} The foregoing work in 2007 had the effect of reducing the basic perimeter of the retention pond, but increasing its general depth by seven feet. In conjunction with the work on the pond itself, Clapp also built a "landscaping mound" which was located in the area on the "cottage" tract between the border of the Duncan property and the pond. Although the mound was only twelve inches high in most places and did not completely stop surface water on the Duncan land from flowing unto the "cottage" tract, it did force the water to flow toward the front of the Duncan tract before it came upon the "cottage" property and ...

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