JAMES R. HEMMELGARN, PLAINTIFF-APPELLANT,
HUELSKAMP & SONS, INC., DEFENDANT-APPELLEE.
from Shelby County Common Pleas Court Trial Court No.
M. Tomb for Appellant
B. Fitzgerald and Stanley R. Evans for Appellee
Plaintiff-appellant, James R. Hemmelgarn
("Hemmelgarn"), appeals the May 23, 2019 judgment
of the Shelby County Common Pleas Court finding in favor of
defendant-appellee, Huelskamp & Sons, Inc.
("HSI" and/or the "Huelskamps") regarding
two easements on Hemmelgarn's property.
History of Tracts I and II
In 1981, Hemmelgarn purchased land consisting of his current
property and Tract I and Tract II. In 1984, Hemmelgarn agreed
to sell Tract I and Tract II to Curtiss "Dutch"
Henschen, a local farmer. Tract II is comprised of 24.502
acres and does not have legal access to a pubic roadway. In
other words, Tract II is surrounded by other parcels that
abut public roads, but Tract II itself is
"landlocked." Tract II is situated directly east of
Hemmelgarn's property. As part of the agreement,
Hemmelgarn also sold Tract 1 to Henschen. Tract I is
comprised of 0.64 acres is situated directly north of
Hemmelgarn's property. Tract I has access to
Knoop-Johnston Road, a public roadway.
Tract I and Tract II are not contiguous. As a result, the
1984 deed documenting the sale of Tract I and Tract II from
Hemmelgarn (grantor) to Henschen (grantee) included the
The grantor also grants to the grantee the drive easement as
shown on the plat recorded in Plat Vol. 19, Page 72. Plat
recorded Vol. 19, Page 72.
ALSO a 30' easement along the north boundary line of
Grantor connecting Tract I and Tract II above.
(Pl. Ex. 5, Def. Ex. A) (emphasis in original).
In 1992, Tracts I and II were sold in a Sheriffs sale to
Bernard Steinke. The 1992 deed contained identical language
describing the easements over the northeast corner of
Hemmelgarn's property. (Pl. Ex. 6, Def. Ex. B). Tracts I
and II were later conveyed via general warranty deed to
Bernard Steinke's son, Richard S. Steinke, in 2010, and
then again to Richard's son, Richard D. Steinke in 2015.
Both the 2010 and 2015 deeds contained the same language
describing the easements as the original 1984 deed. (Pl. Exs.
7-8, Def. Exs. C-D).
In April of 2017, HSI purchased Tracts I and II from Richard
D. Steinke. The 2017 deed contained the same easement
language as the 1984, 1992, 2010, and 2015 deeds. HSI is a
closely held Ohio corporation consisting of five brothers and
their mother by the family name of Huelskamp. Farming and
livestock production is the primary business of HSI. HSI and
another entity owned by the same individuals, Huelskamp
Brothers Farm ("HBF"), own other parcels of land in
the area surrounding Tract I, Tract II, and Hemmelgarn's
property. After this transfer, a dispute arose between the
parties over HSI's use of the easements and this lawsuit
was initiated by Hemmelgarn.
On October 31, 2018, Hemmelgarn filed a complaint against HSI
requesting injunctive and declaratory relief, and claiming
civil trespass and termination of easement by adverse
possession and abandonment. HSI filed an answer and
counterclaims for quiet title relief regarding its rights to
the easements-specifically, a declaration that the deed
entitles it to use of the easements. Hemmelgarn filed an
answer to HSI's counterclaims.
On March 28 and 29, 2019, a trial to the court was held.
Numerous witnesses testified for each party. Several exhibits
were admitted, including all the deeds related to the
conveyance of Tracts I and II, the plat map, and several
aerial photographs of the area.
On April 26 and May 23, 2019, the trial court issued
decisions in favor of HSI. Specifically, the trial court
found that the deeds conveyed two easements in two separate
paragraphs, with the second easement located on a thirty-foot
wide strip along Hemmelgarn's north property
line connecting Tract I and Tract II. The trial court further
found that Hemmelgarn failed to substantiate his trespass
claims and failed to demonstrate that the express easements
in the deed have been extinguished by adverse possession or
abandonment. The trial court also found in favor of HSI on
Hemmelgarn filed this appeal, asserting the following
assignments of error.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT IMPROPERLY INTERPRETED THE TWO DRIVE
EASEMENTS BY REVISING AND CHANGING THE DRIVE EASEMENTS TO
EXPAND THEIR LOCATION AND SCOPE.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT MISCONSTRUED THE FACTS AND MISCONSTRUED THE
LAW ON THE USE OF EASEMENTS AND TRESPASS TO HOLD HEMMELGARN
FAILED TO PROVE A CLAIM OF CIVIL TRESPASS.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT MISCONSTRUED OHIO LAW ON ADVERSE POSSESSION
AND, OR ABANDONMENT OF AN EASEMENT TO HOLD THESE CLAIMS WERE
Assignment of Error
In his first assignment of error, Hemmelgarn argues that the
trial court improperly interpreted the two drive easements
conveyed in the deeds. Specifically, Hemmelgarn claims that
the trial court in its decision expanded the scope and
location of the easements originally conveyed in the 1984
An easement is the grant of a use on the land of another.
Crane Hollow, Inc. v. Marathon Ashland
Pipeline, LLC, 138 Ohio App.3d 57, 66 (4th Dist.2000);
Alban v. R.K. Co., 15 Ohio St.2d 229, 231 (1968).
"An easement in or over the land of another may be
acquired only by grant, express or implied, or by
prescription." Gulas v. Tirone, 184 Ohio App.3d
143, 2009-Ohio-5076, ¶ 23 (7th Dist), citing Trattar
v. Rausch, 154 Ohio St. 286, 291 (1950), at paragraph
two of the syllabus. Once the determination is made that an
easement is in existence, the focus must be shifted to
ascertaining what type of easement has been created.
When interpreting the terms of a written easement, the court
must follow the ordinary rules of contract construction so as
to carry out the intent of the parties as demonstrated by the
language in the contract. Lakewood Homes v. BP Oil,
Inc., 3d Dist. No. Hancock 5-98-29, 1999-Ohio-851,
citing Skivoloski v. East Ohio Gas Company, 38 Ohio
St.2d 244, 313 (1974), syllabus, paragraph one. If the
question is the scope of an easement, the court must look to
the language of the easement to determine the extent. When
the terms of an easement are clear and unambiguous, a ...