What’s the Deal with Easements?: Overburdening an Easement

Much of my practice is devoted to easement litigation, where I typically defend easements against adverse claims by property owners. Easement litigation can be a highly specialized and nuanced area of practice, and I want to take this opportunity to explain the basics in a straightforward, non-legalese manner. 

As a general rule, the owner of an easement, otherwise known as the “dominant estate owner,” has no right to increase the burden of an easement on the encumbered property, or “servient estate,” or to materially enlarge it, by engaging in a new and additional use of the easement. However, changes in the use of an easement are permitted when they impose no additional burden on the servient estate.

In the absence of language to the contrary, an easement holder may vary mode of enjoyment and use of an easement if by doing so he/she/it can more freely exercise the purpose for which the grant was made. Simply taking advantage of new technology does not result in an increased burden.

The overburdening of an easement is an issue that has been addressed on numerous occasions by the Ohio Supreme Court. In Callen v. Columbus Edison Elec. Light Co., 66 Ohio St. 166, 64 N.E. 141 (1902), the Court held as follows:

“The placing by a private lighting company of poles at the curb in a street, and the stringing thereon of electric light cable lines and wires for the purpose of furnishing light and energy to private takers, is a diversion of the street from the purposes to which it was dedicated, and is a taking of the property of the abutting owner, within the meaning of section 19 of the bill of rights. And such placing of poles, lines, and wires is none the less an unauthorized taking even though it be consented to by the city authorities.”

However, the Ohio Supreme Court reached the opposite conclusion in Friedman Transfer & Construction Co. v. City of Youngstown, 176 Ohio St. 209, 198 N.E.2d 661 (1964), when it held that the City of Youngstown could install water pipes on a bridge that passed over the servient estate pursuant to a perpetual aerial easement for the construction, repair, and maintenance of a “structure.”  In so holding, the Court determined that the installation of the water pipes added no additional burden that might entitle the property owner to additional compensation.

In Ziegler v. Ohio Water Service Co., 18 Ohio St.2d 101, 247 N.E.2d 728 (1969), the Court similarly held that the construction and maintenance of an underground water pipeline in a roadway right-of-way is not an added burden on the servient estate for which additional compensation must be awarded.

In Joliff v. Hardin Cable Television Co., 26 Ohio St.2d 103, 269 N.E.2d 588 (1971) and Centel Cable Television Company of Ohio, Inc. v. Cook, 58 Ohio St.3d 8, 567 N.E.2d 1010 (1991), the Court held that the stringing of a coaxial cable along an easement owned by an electric utility company imposes no compensable additional burden on the servient estate because the two uses are similar and compatible.

These cases demonstrate the difficulty faced by a property owner asserting an overburdening claim. Generally, the battleground in these cases is whether a particular use of an easement constitutes the taking advantage of technological advances that are consistent with the purpose and scope of the easement, or overreaching by the dominant estate holder to use the easement for purposes beyond the intent of the parties when the easement was created.

And that’s basically it for the overburdening of an easement. Stay tuned for additional articles regarding other easement litigation topics I’ve encountered in my practice.

Be careful with e-mail.

“Hot document” is a legal term applied to certain documents that are especially helpful to one party in a lawsuit and especially damaging to the other. All too often, a hot document is a thoughtless e-mail message sent by a party, or an employee of a party.

A word of advice. Before you hit send on an e-mail that is nasty, indelicate, or downright incriminating, think about how it might look blown up on a projector screen in front of a jury that has the power to make you or your company pay for your ill-advised e-mail.

If that thought makes you uncomfortable, then consider picking up the telephone.

Improve your chances at trial: fully prepare your experts

Care must be taken to fully prepare an expert to testify at trial. A truly effective expert is one who not only supports your case, but also combats your opponent’s. Your expert should be provided with an opposing expert’s report(s) and deposition testimony prior to trial, so your expert can testify about deficiencies in the opposing expert’s opinions during your case-in-chief. This can be especially helpful where you present your case first, and/or where your opponent did not arm its expert(s) with the information necessary to combat your case.

The law of eminent domain in Ohio: Taking must be narrowly tailored

Now that we’ve covered what eminent domain is, who can use it, and the public use requirement, it’s time for another consideration:  what–and how much–property can be taken by eminent domain.

Generally, Ohio law permits the exercise of eminent domain to take “any estate, title, or interest in any real property that is authorized to be appropriated by the agency in question, unless the context otherwise requires.” O.R.C. 163.01(F).  In other words, any interest in land–be it outright (known as “fee simple”) ownership, a lease, an easement, or anything else–can be taken, provided that the taking of such interest is authorized by the language of the statute granting the power of eminent domain to the particular agency at issue.

As for the question of how much property can be taken, the answer is:  whatever is necessary for the public project at issue.  The necessity requirement is as well-established as the public use requirement and can be summed up as follows:  “…where there is no necessity for taking private property for public use, the right of eminent domain cannot be successfully invoked.”  Federal Gas & Fuel Co. v. Townsend, 1903 WL 710, 4 (Ohio Com.Pl. 1903).  “Necessity means that which is indispensible or requisite especially toward the attainment of some end…In statutory eminent domain cases it cannot be limited to an absolute physical necessity. It means reasonably convenient or useful to the public…”  City of Dayton v. Keys, 21 Ohio Misc., 105, 112, 252 N.E.2d 655, 659 (Ohio Com.Pl. 1969).

A corollary of the necessity requirement is the rule that, “[w]hen private property is appropriated for a public or quasi-public use, unless express authority is given by statute, no greater estate or interest may be taken than is necessary for such public use. In such case, where an easement is sufficient, only an easement may be taken.”  Henry v. Columbus Depot Co., 135 Ohio St. 311, 20 N.E.2d 921, par. 1 Syllabus (1939).

Thus, appropriating authorities and affected property owners alike should be mindful that a proposed appropriation may take the amount of land–and the particular interest in land–that is necessary for the project at issue, and nothing more.

The law of eminent domain in Ohio: compensation and damages

When private property is taken for a public use, the legal issues involved depend upon whether it is a “total take” or a “partial take.”  As common sense would suggest, a taking is total when it results in the taking of an entire property, and partial when only a part of the property is taken.  In that latter scenario, the part that is not taken is known as the “residue.”

In eminent domain parlance, “compensation” is the fair market value of the property taken.   “”Compensation’ means the sum of money which will compensate the owner of the land actually taken or appropriated; that is, it is the fair market value of the land taken, irrespective of any benefits that may result to the remaining lands by reason of the construction of the proposed improvement.”  Wray v. Stvartak, 121 Ohio App.3d 462, 700 N.E.2d 347 (6 Dist.,1997) (citing Norwood v. Forest Converting Co., 16 Ohio App.3d 411, 415, 476 N.E.2d 695, 700 (1984)).

“Damages means the reduction in the value of the residue caused by the taking.  “‘Damages,’ in the strict sense in which the term is used in an appropriation proceeding, means an allowance made for any injury that may result to the remaining lands by reason of the construction of the proposed improvement, after making all permissible allowances for special benefits, and the like, resulting thereto.”  Id.

With respect to both compensation and damages, the goal is to compensate the property owner based upon the fair market value of the property.  “Fair market value is the amount of money which could be obtained on the open market at a voluntary sale of the property. It is the amount that a purchaser who is willing, but not required to buy, would pay and that a seller who is willing, but not required to sell, would accept, when both are fully aware and informed of all circumstances involving the value and use of the property. Market value is determined by the most valuable and best uses to which the property could reasonably, practically, and lawfully be adapted which is referred to as ‘the highest and best use.’” Masheter v. Ohio Holding Co., 38 Ohio App.2d 49, 54, 313 N.E.2d 413, 416 (1973). See also, Sowers v. Schaeffer, 155 Ohio St. 454, 99 N.E.2d 313, ¶3 of Syllabus (1951).

“In determining the market value of land taken…every element that can fairly enter into the question of value, and which an ordinarily prudent business man would consider before forming judgment in making a purchase, should be considered, and the market value of the land shall be determined on the basis of the circumstances existing the moment before the take.” In re Appropriation for Hwy. Purposes of Land of Winkelman, 13 Ohio App.2d 125, 234 N.E.2d 514, Syllabus par. 1 (3rd Dist.1968).

If the concept of fair market value sounds straight forward, stay tuned.  Like most things in the law, it has gotten pretty complicated over the years.

What clients need to know about the attorney-client privilege

No one wants their communications with their attorney to become public knowledge, or worse, ammunition for their opponent in a lawsuit, right? Fortunately, the attorney-client privilege protects from disclosure or discovery confidential communications between a lawyer and a client or prospective client when the primary purpose of the communication is to obtain or render legal advice.

Generally, the privilege applies unless it is waived by the client, which most often happens by disclosure of the communication to a third party. Thus, a verbal attorney-client communication is not privileged when a third party is present or within ear-shot. Also, while an e-mail message can be privileged if it is sent between the attorney and client, it loses its privileged status if the client copies a third party or forwards the e-mail to a third party. A client who wishes to protect the privilege should ensure that communications with his/her/its attorney remain confidential.

The work product doctrine and how it can help you in a lawsuit

Sometimes clients involved in a lawsuit, or anticipating a lawsuit, want to do some sleuthing in order to line up key witnesses or evidence, or otherwise position themselves for a favorable result. A word of caution: make sure you consult with your lawyer before donning your detective cap.

Your lawyer can tell you whether the investigation you propose may actually benefit your case. It may well be that the proposed investigation will not be beneficial, and may even be detrimental. Also, the appearance of “witness tampering” can be damaging when it comes out that a key witness was contacted about the dispute directly and “secretly” by one of the parties.

Even if your lawyer agrees that the proposed investigation may be beneficial, it’s still a good idea to consult about it ahead of time. Any investigation you conduct at the direction of your lawyer will generally be protected from disclosure or discovery by the work product doctrine. Without the blessing of your lawyer, however, you may be compelled by the court to provide information or documents relating to your investigation. Not only can this negate whatever competitive advantage you might have obtained, but it can also play into your opponent’s “witness tampering” argument.

Basic rules for success when having your deposition taken

A deposition is a question and answer session in which one or more lawyers asks a witness under oath a series of questions in order to obtain factual information relevant to a lawsuit. While the most important rule to follow if you’re the witness is to tell the truth, there are other basic rules that should be kept in mind. Here are my top ten.

1 – Listen to each question carefully and make sure you understand it. Don’t be afraid to ask for clarification.

2 – Think for a moment in order to frame your response before you start answering a question.

3 – Answer the question asked and only that question.

4 – When you’re done with your answer, stop talking.

5 – Don’t try to avoid awkward silences by rambling—especially when there’s no question pending.

6 – Don’t volunteer information. Make the lawyer conducting the deposition ask the right questions.

7 – Testify only to facts you know. If you don’t know an answer, then say so.

8 – Give an estimate or a guess only when specifically asked to do so, and make sure you qualify your answer by indicating that it is only an estimate or a guess.

9 – Testify only to facts you remember. If your memory is uncertain, your answer should be “I don’t recall.”

10 – If you’re represented by counsel who objects to a question, pay attention. An objection is an opportunity to pause and consider whether the answer you were about to give might violate one of these rules.

Nobody has fun at a successful mediation.

Alternative dispute resolution is an umbrella term that describes ways to resolve a lawsuit without having a judge or jury decide who wins and loses. Mediation, a popular form of ADR, is settlement negotiation facilitated by a neutral third-party mediator. Typically, the mediator puts the opposing parties in separate rooms, and then spends most of a day walking from one room to another pointing out the weaknesses in each party’s case and trying to figure out a resolution that everyone can live with. As most mediators will tell you, the role of the mediator is to settle the case, not to weigh the merits of the dispute and pick the winner and loser. At mediation, the merits are relevant only inasmuch as they motivate the parties to compromise.

The virtue of settling a case at mediation is that the parties get to avoid the downside risk associated with taking a case to trial, where juries can be unpredictable and total defeat is always possible. But this risk mitigation comes at a cost. In order to get the certainty and finality of a settlement, one typically has to forego the possibility of a “home run” outcome, and coping with that loss can be difficult. Sometimes, the only person leaving a successful mediation happy is the mediator.

Before engaging in mediation, parties need to understand the process, be prepared to compromise, and mentally prepare themselves for the emotional let-down that may accompany paying “too much” or accepting “too little” in order to get a case settled.