Court of Appeals of Ohio, Eleventh District, Trumbull
Appeal from the Trumbull County Court of Common Pleas, Case
No. 2016 CV 00057.
Stephen A. Turner, Turner, May & Shepherd, (For
K. Johnson, Johnson and Johnson Law Office, (For
JANE TRAPP, J.
This is an appeal from the judgment entry of the Trumbull
County Court of Common Pleas, in which the trial court
overruled objections filed by appellant, Shiloh Ministries,
Inc. ("Shiloh"), and adopted the magistrate's
January 26, 2018, Decision and Recommendation granting
appellee, Ohio Valley Energy Systems ("OVE"), a
prescriptive easement for oil and gas on Shiloh's two
adjoining parcels of land.
Shiloh appeals, raising the following three arguments against
the prescriptive easement granted in OVE's favor: (1) it
was improperly raised due to the trial court's findings
on summary judgment, (2) OVE lacked standing to do so, and
(3) finally, the scope is impermissibly vague.
We find the trial court's rulings on the motions for
summary judgment did not preclude consideration of the
affirmative defense of a prescriptive easement at trial. OVE
had standing to raise the affirmative defense because it
established its long history of using the southern parcel for
its operations. We also find the prescriptive easement
granted by the trial court is not vague in scope. We do find,
however, it is vague as to the scope of the relative use of
the easement by each party and apportionment of future
expenses incurred for repair and maintenance of the easement
as necessary to prevent the use of the easement from becoming
an annoyance or nuisance to Shiloh. Thus, finding the last
assignment of error to have merit in part, we affirm in part,
reverse in part, and remand for further proceedings
and Procedural History
Parties and Parcels of Land at Issue
Pastor and president, Reverend Nicholas Furries, leads
Shiloh, the owner and lessor of the two adjoining parcels of
land at issue (the "southern parcel" and
"northern parcel"). Shiloh's predecessor in
interest, Lighthouse Tabernacle of the Niles Peoples Full
Gospel Mission Church ("Lighthouse"), led by
Reverend Frank M. Hewison and his wife, Lois A. Hewison, was
the original party to the oil and gas agreements.
Initially, there was a pastor's house on the northern
parcel and a church on the southern parcel. Sometime before
2004, the pastor's house was demolished. The church then
renovated and expanded so that it now sits on both parcels of
OVE is the successor corporation of Simco Exploration
("Simco"). Its primary business is obtaining leases
and drilling/managing gas wells. Olympic Oil and Gas, Inc.
("Olympic") was a subcontractor for Simco. Olympic
entered into the original Oil and Gas Lease and Non-Drilling
Lease Agreements with Shiloh on Simco/OVE's behalf. Thus,
Olympic is the signature party to the original lease
The oil and gas well, "Cheyenne #2," is located on
a property adjacent to the northern parcel. Cheyenne #2 was
drilled prior to the execution of the agreements in 1989. It
was at that time Olympic approached Lighthouse because it
needed a location to place the tanks, a meter, and the other
equipment associated with the well.
There are three agreements between the parties. On October
18, 1989, Lighthouse entered into an "Oil and Gas Lease
Agreement," which permitted the lessee to conduct
surface operations and for equipment to be placed on the
northern parcel. It also granted Lighthouse a right to a
certain amount of free gas.
On January 19, 1990, the parties entered into a Non-Drilling
Oil and Gas Lease Agreement for the use of the southern
parcel. This agreement permits the lessee to utilize the
property "with other properties, which other properties
shall bear the burden of development."
Lastly, there is a Meter Site Agreement between Dominion
Energy's predecessor, East Ohio Gas Company
("Dominion") and Lighthouse granting Dominion the
right to place equipment and pipelines on the southern parcel
to transport gas to and from the well.
The northern parcel contains underground equipment, pipes and
tanks, which hold the oil and gas. Piping runs to the
southern property where there is a meter, regulators, and
piping. To access the holding tanks on the northern property,
OVE crosses the southern property by way of the church's
parking lot. Both OVE and Dominion also access the southern
property to check and maintain the meters.
On January 11, 2016, Shiloh filed a complaint against OVE
setting forth four claims for relief: a declaratory judgment
that the leases have terminated due to lack of commercial
production; a declaratory judgment ruling that the leases
have terminated due to lack of commercial production; a
breach of contract for the placement of pipeline and meter
site equipment on the southern parcel; and lastly, trespass
for the installation of equipment and continued operations on
the southern parcel.
Both parties filed motions for summary judgment. The trial
court found Shiloh was "entitled to judgment" on
its breach of contract and trespass claims because there was
no dispute of fact that OVE continually entered upon the
southern parcel and that equipment had been installed on the
southern parcel without permission in violation of the
agreement. The trial court further found that the elements of
continuing trespass had been met.
OVE argued that the issues raised by Shiloh were barred by
the doctrine of res judicata because Shiloh failed to raise
them in the parties' previous 2014 suit. The court agreed
with this argument in part, finding Shiloh was entitled to
judgment on the claims of trespass and breach of contract
only from 2014 to the present since there were continuing
violations after the date of judgment in the last action.
Turning to the issue of damages, the trial court found that
Shiloh had not alleged the breach of contract to be material,
and it independently found the breach was not material. While
the court found there was no dispute of fact that the parking
lot had been damaged by heavy machinery, it found Shiloh
failed to provide evidence of the monetary cost of repair
regarding its trespass claim or evidence of the ...