Court of Appeals of Ohio, Fifth District, Muskingum
from the Muskingum County Court of Common Pleas, Case No.
Plaintiff-Appellee ROBERT J. MANN MARY SPAHIA-CARDUCCI Mann
& Carducci Co., LPA
Defendant-Appellant PHILIP F. DOWNEY JONATHAN P. CORWIN
DANIEL E. SHUEY Vorys, Sater, Seymour and Pease LLP
William B. Hoffman, P.J. Hon. Craig R. Baldwin, J. Hon. Earle
E. Wise, J.
Defendant-appellant The Columbus & Ohio River Railroad
Company appeals from the March 29, 2017 Judgment Entry of the
Muskingum County Court of Common Pleas granting the Motion
for Summary Judgment filed by plaintiff-appellee Bosky Group,
LLC and denying the Motion for Summary Judgment filed by
OF THE FACTS AND CASE
Appellee Bosky has been the owner since 2006 of approximately
43.7 acres of real property (Parcel No. 66-20-09-10-000)
located in Muskingum County, Ohio. This property shall,
hereafter, be referred to as the "subject property"
and is located near the Village of New Concord, Ohio. The
northern boundary of the subject property has frontage along
U.S. 40/22. Appellee also owns a 92.37 parcel contiguous to
the subject property and two other small parcels. While Rix
Mills Road is to the east of the parcels, Homestead Drive is
to the west. Appellant The Columbus & Ohio River Rail
Road Company ("CUOH") operates a railway line that
runs along the north end of the subject property and is to
the south of and parallel to U.S. 40/22.
Appellee is the successor in title and traces his title in
the subject property back to grantor Samuel Cummins. As
evidenced by an instrument signed in 1852 and recorded on
February 16, 1899, Cummins granted the Central Ohio Railroad
Company, appellant's predecessor, a right to locate a
railroad across the northern boundary of the subject
property. The instrument provides, in relevant part, as
In consideration of one hundred eighty dollars to me paid by
the Central Ohio Rail Road Company, I Samuel Cummins of Union
Township Muskingum County Ohio do hereby grant and release to
said Company the right to enter upon any lands I own which
lie on the line of said Company's road… and to
hold and use a strip of said land…for the purposes of
a rail road…not exceeding one hundred feet in
width…The said Company to construct two good crossings
over said rail road track one between my house and barn near
to the point where my road now passes from the National road
to my barn, the other at some point towards the east boundary
line of my land convenient for the purpose…."
Cummins' property was later subdivided. To the west of
the subject property is a parcel owned by David L. Green that
was originally part of the Cummins property that currently
has a railroad crossing. There is not a crossing on the
eastern 43.7 acres, which has been owned by appellee since
2006, and appellee contends such land is legally landlocked.
There is no road connecting to the subject property. Appellee
wants to develop the subject property for commercial,
residential and other purposes.
After appellant declined to construct a crossing that will
enable appellee to develop its property, appellee filed a
complaint against appellant for declaratory judgment,
specific performance, breach of contract and estoppel on
April 8, 2016. Appellant filed a Motion for Summary Judgment
on November 30, 2016 and appellee filed a Motion for Summary
Judgment on December 14, 2016. Appellant, on February 3,
2017, filed a motion seeking to strike evidence submitted by
appellee in support of its Motion for Summary Judgment on the
basis that the evidence was untimely and otherwise improper.
Pursuant to a Decision filed on March 14, 2017, the trial
court granted appellee's Motion for Summary Judgment
while denying that filed by appellant. The trial court
directed counsel for appellee to prepare the final entry. A
final Judgment Entry was filed on March 29, 2017.
Appellant now appeals from the trial court's March 29
2017 Judgment Entry, raising the following assignments of
error on appeal:
I., II. THE TRIAL COURT ERRED BY GRANTING BOSKY'S MOTION
FOR SUMMARY JUDGMENT AND DENYING CUOH'S MOTION FOR
III. THE TRIAL COURTS JUDGMENT ENTRY IMPROPERLY EXCEEDS THE
RIGHTS GRANTED BY THE CUMMINS INSTRUMENT AND/OR THE RELIEF
REQUESTED BY BOSKY.
IV. THE TRIAL COURT ERRED BY NOT GRANTING CUOH'S MOTION
Appellant, in its first two assignments of error, argues that
the trial court erred in granting appellee's Motion for
Summary Judgment while denying that filed by appellant.
Civil Rule 56(C) states, in ...