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Bosky Group, LLC v. Columbus & Ohio River Railroad Co.

Court of Appeals of Ohio, Fifth District, Muskingum

October 19, 2017

BOSKY GROUP, LLC, Plaintiff - Appellee
v.
COLUMBUS & OHIO RIVER RAILROAD COMPANY, et al., Defendants - Appellants

         Appeal from the Muskingum County Court of Common Pleas, Case No. 2013-0161

          For Plaintiff-Appellee ROBERT J. MANN MARY SPAHIA-CARDUCCI Mann & Carducci Co., LPA

          For Defendant-Appellant PHILIP F. DOWNEY JONATHAN P. CORWIN DANIEL E. SHUEY Vorys, Sater, Seymour and Pease LLP

          Hon. William B. Hoffman, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, J.

          OPINION

          Baldwin, J.

         {¶1} 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 defendant-appellant.

         STATEMENT OF THE FACTS AND CASE

         {¶2} 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.

         {¶3} 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 follows:

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…."

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} Appellant now appeals from the trial court's March 29 2017 Judgment Entry, raising the following assignments of error on appeal:

         {¶8} I., II. THE TRIAL COURT ERRED BY GRANTING BOSKY'S MOTION FOR SUMMARY JUDGMENT AND DENYING CUOH'S MOTION FOR SUMMARY JUDGMENT.

         {¶9} III. THE TRIAL COURTS JUDGMENT ENTRY IMPROPERLY EXCEEDS THE RIGHTS GRANTED BY THE CUMMINS INSTRUMENT AND/OR THE RELIEF REQUESTED BY BOSKY.

         {¶10} IV. THE TRIAL COURT ERRED BY NOT GRANTING CUOH'S MOTION TO STRIKE.

         I, II

         {¶11} 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.

         {¶12} Civil Rule 56(C) states, in ...


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