[Cite as Dar Jen Farms, Inc. v. Ohio Power Co., 2023-Ohio-4612.]

COURT OF APPEALS

MUSKINGUM COUNTY, OHIO

FIFTH APPELLATE DISTRICT

DAR JEN FARMS, INC., ET AL., JUDGES:

Hon. William B. Hoffman, P.J.

 Plaintiffs-Appellants Hon. John W. Wise, J.

Hon. Craig R. Baldwin, J.

-vsCase No. CT2023-0053

OHIO POWER COMPANY 

 Defendant-Appellee O P I N I O N

CHARACTER OF PROCEEDINGS: Appeal from the Muskingum County Court 

of Common Pleas, Case No. CH2019-

0288

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 14, 2023

APPEARANCES:

For Plaintiffs-Appellants For Defendant-Appellee

BRENT A. STUBBINS MOLLY S. CRABTREE 

KYLE S. WITUCKY Porter Wright Morris & Arthur, LLP

GRANT J. STUBBINS 41 South High Street, Suite #2900

CARTER A. BROWN Columbus, Ohio 43215

Stubbins, Watson, Bryan & 

Witucky, Co., L.P.A.

59 North Fourth Street

P.O. Box 488

Zanesville, Ohio 43702-0488
Muskingum County, Case No. CT2023-0053 2

Hoffman, P.J.

{¶1} Plaintiff-appellants Dar Jen Farms, Inc. (hereinafter “Dar Jen”) and William 

A. Jennings (hereinafter “Jennings”) appeal the summary judgment entered by the 

Muskingum County Common Pleas Court dismissing their complaint for declaratory 

judgment against Defendant-appellee Ohio Power Company.

STATEMENT OF THE FACTS AND CASE

{¶2} Dar Jen owns real property in Muskingum County. Jennings is the majority 

stockholder of Dar Jen. Appellee owns a right-of-way and easement across the property 

owned by Dar Jen pursuant to a written easement signed by Dar Jen’s predecessor in 

interest on September 24, 1947. 

{¶3} The easement grants Appellee rights relating to the construction, operation, 

and maintenance of transmission lines on Appellants’ property including the right to 

“construct, erect, operate, and maintain a line of poles and wires for the purpose of 

transmitting electric or other power.” The easement does not restrict the height or 

placement of the poles. 

{¶4} Appellee has maintained an electric transmission line and related 

equipment across the property since the 1940’s. Twenty years after Appellee obtained 

the easement and installed its first equipment, Jennings built an airport on the property 

with the runway facing the existing utility poles. Jennings has not used the airport 

personally since 2007, and could only identify a handful of times the airport had been 

used by others in the past decade. The only use of the airport since 2016, was by a 

helicopter, not an airplane. Jennings does not presently own an airplane.

{¶5} In 2017, Appellee planned to upgrade the aging power line across the 

property as a part of a rebuilding project in Muskingum and Coshocton Counties. Part of 
Muskingum County, Case No. CT2023-0053 3

the upgrade included the installation of taller utility poles on Dar Jen’s property. The 

upgrade increased the height of the power lines from 34 to 98 feet, and included fiber 

optic lines. Appellee initially discussed obtaining a supplemental easement with Jennings 

to move the existing lines. After Jennings sought $120,000 for the supplemental 

easement, citing concerns about the airport, Appellee decided to install new poles entirely 

within the existing easement. 

{¶6} On October 10, 2019, Appellants filed the instant action seeking declaratory 

judgment Appellee had exceeded the scope of its easement. Appellants sought a 

preliminary injunction to restrain Appellee from installing poles within the easement, as 

well as damages and fees. Appellants also filed a motion for a temporary restraining 

order. The trial court denied both the preliminary injunction and the temporary restraining 

order. Appellee completed installation of the new poles in August, 2020, while the instant 

action was pending.

{¶7} On May 2, 2022, Appellee filed a motion for summary judgment. Appellee 

argued the only remaining claim was the claim for declaratory judgment. Appellee argued 

the claim for monetary damages was precluded by Ohio’s eminent domain statute, and 

Appellants could only obtain monetary damages if they had filed a writ of mandamus to 

compel Appellee to commence eminent domain proceedings, which Appellants had not 

filed. On June 2, 2022, Appellants attempted to file a petition for mandamus, and on June 

3, 2022, Appellants filed a motion to amend their complaint to include the petition for 

mandamus. Appellee filed a motion to strike Appellants’ petition.

{¶8} Following a hearing, the trial court granted Appellee’s motion for summary 

judgment, dismissing Appellants’ complaint. The trial court also struck Appellants’ petition 
Muskingum County, Case No. CT2023-0053 4

for a writ of mandamus and overruled Appellants’ motion to amend their complaint. It is 

from the June 20, 2023 judgment of the trial court Appellants prosecute their appeal, 

assigning as error:

I. THE TRIAL COURT ERRED BY GRANTING SUMMARY 

JUDGMENT.

II. THE TRIAL COURT ERRED BY FAILING TO GRANT 

APPELLANTS’ PETITION FOR WRIT OF MANDAMUS AND 

APPELLANTS’ MOTION FOR LEAVE TO AMEND THE COMPLAINT.

I.

{¶9} In their first assignment of error, Appellants argue the trial court erred in 

entering summary judgment in favor of Appellee.

{¶10} Summary judgment proceedings present the appellate court with the unique 

opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. 

The Wedding Party, Inc., 30 Ohio St.3d 35, 36 (1987). As such, we must refer to Civ. R. 

56(C) which provides in pertinent part: 

Summary Judgment shall be rendered forthwith if the pleadings, 

depositions, answers to interrogatories, written admissions, affidavits, 

transcripts of evidence, and written stipulations of fact, if any, timely filed in 

the action, show that there is no genuine issue as to any material fact and 

that the moving party is entitled to judgment as a matter of law. No evidence 
Muskingum County, Case No. CT2023-0053 5

or stipulation may be considered except as stated in this rule. A summary 

judgment shall not be rendered unless it appears from the evidence or 

stipulation, and only from the evidence or stipulation, that reasonable minds 

can come to but one conclusion and that conclusion is adverse to the party 

against whom the motion for summary judgment is made, that party being 

entitled to have the evidence or stipulation construed most strongly in the 

party’s favor.

{¶11} Pursuant to the above rule, a trial court may not enter summary judgment if 

it appears a material fact is genuinely disputed. The party moving for summary judgment 

bears the initial burden of informing the trial court of the basis for its motion and identifying 

those portions of the record demonstrating the absence of a genuine issue of material 

fact. The moving party may not make a conclusory assertion the non-moving party has 

no evidence to prove its case. The moving party must specifically point to some evidence 

which demonstrates the moving party cannot support its claim. If the moving party 

satisfies this requirement, the burden shifts to the non-moving party to set forth specific 

facts demonstrating there is a genuine issue of material fact for trial. Vahila v. Hall, 77 

Ohio St.3d 421, 429, 1997-Ohio-259, citing Dresher v. Burt, 75 Ohio St.3d 280, 1996-

Ohio-107.

{¶12} Appellants first argue the trial court erred in granting summary judgment 

without “weighing the equities” between the parties in accordance with this Court’s 

decision in Ohio Power C. v. Bauer, 60 Ohio App. 3d 57, 573.E.2d 780 (5th Dist. Perry 

1989). In the syllabus, this Court held:
Muskingum County, Case No. CT2023-0053 6

1. Where the grant of access in an easement to a power company 

for maintenance and control of power lines and towers is indefinite, global, 

and allows access over the entire dominant property, a court of equity has 

jurisdiction to monitor the competing interests of the dominant and servient 

estates and to grant appropriate relief to both interests. In exercising this 

equity jurisdiction, the court may only be reversed upon a showing of abuse 

of discretion.

2. An easement grants such rights as are necessary to the 

reasonable enjoyment thereof, leaving to the owner of the fee the right to 

use the property in any manner not inconsistent with the reasonable use of 

the easement.

{¶13} In Bauer, the power company sued the landowner for denying it access to 

an easement on the property, invoking the equitable jurisdiction of the court. The trial 

court issued the injunction against the landowner, later finding the landowner in contempt 

for continuing to deny the power company access to its easement. The trial court set 

forth restrictions on both parties regarding access to the easement. Ohio Power 

appealed, arguing the trial court was without jurisdiction to impose restrictions on its 

access to the easement. This Court affirmed, finding the trial court had jurisdiction to 

balance the rights of the parties in fashioning an equitable remedy where the grant of 

access was “indefinite, global, and allows access over the entire dominant property.” Id. 

at syllabus 1. In so doing, we noted this was not a case where the intention of the parties 

was apparent from the four corners of the easement. Id. at 60. 
Muskingum County, Case No. CT2023-0053 7

{¶14} We find Bauer does not require the trial court to balance the competing 

interests of the parties, but rather allows the trial court to balance the rights and interests 

of the parties in exercising its equitable jurisdiction where the intention of the parties is 

not apparent from the four corners of the easement. Unlike Bauer, the instant case is not 

before this Court on appeal from the fashioning of injunctive relief, but rather is limited to 

the question of whether the trial court erred in granting summary judgment on Appellants’ 

claim the new power lines exceed the scope of the four corners of the easement. Also, 

unlike Bauer, the easement to Appellee did not allow access over the entire property of 

Appellants and the scope of the easement was definite. We find Bauer is limited to its 

unique facts and inapplicable to the instant case. We find the trial court did not err in 

granting summary judgment without balancing the equities in between the parties as this 

Court allowed in Bauer.

{¶15} Appellants also argue the trial court erred in granting summary judgment 

because the 1947 easement did not allow for fiber optic lines, and by including fiber optic 

lines on the poles, Appellee exceeded the scope of the easement. Appellants argue 

Appellee admitted the terms “electric power” and “any other power” as used in the 

easement are vague and ambiguous, and therefore summary judgment was 

inappropriate.

{¶16} The easement allows Appellee to “place, erect, maintain, inspect, add to the 

number of, and relocate at will, poles, crossarms or fixtures, and string wires and cables, 

adding thereto from time to time, across, through or over the above described premises.” 

The stated purpose of the easement is to allow Appellee to “construct, erect, operate and 

maintain a line of poles and wires for the purpose of transmitting electric or other power, 
Muskingum County, Case No. CT2023-0053 8

including telegraph or telephone wires” on the property. Motion for Summary Judgment, 

Ex. A.

{¶17} Appellants argue fiber optic lines are not lines which transmit electric or 

other power, and are not telegraph or telephone wires. The clear language of the 

easement provides telegraph or telephone wires are simply examples of the types of 

wires which could be included on the poles, and not an exhaustive list. The use of the 

word “including” implies what follows is a partial, not an exhaustive, listing of what is 

subsumed within the stated category. See, e.g., In re Hartman, 2 Ohio St.3d 154, 156, 

443 N.E.2d 516, 517 (1983). We find although the stated purpose of the easement is to 

allow Appellee to string wires on poles for the purpose of transmitting electric or other 

power, the plain language of the easement does not restrict the lines to power lines, 

telephone lines, or telegraph wires. Further, the language of the easement following the 

stated purpose, which sets forth Appellee’s rights pursuant to the easement, does not 

restrict the type of cable which can be strung on the poles. We find pursuant to the plain 

language of the easement, fiber optic lines were not restricted from being strung on poles 

validly constructed under the terms of the easement.

{¶18} Appellants cite this Court to two cases in which the courts concluded an 

expansion in technology exceeded the scope of an easement. In Corder v. Ohio Edison 

Co., 2022-Ohio-4818, 205 N.E. 3d 616 (7th Dist. Harrison), the court held the phrase 

“trim, cut, and remove,” as used in a utility easement, did not permit the utility to use 

herbicides to control vegetation. The court found the language used in the easement was 

ambiguous, and there was nothing in the record to prove the easement was created with 

the intention herbicides would be used. Id. at ¶4. We find Corder is distinguishable from 
Muskingum County, Case No. CT2023-0053 9

the instant case, as the language in the easement in the case sub judice unambiguously 

allows the stringing of wires and cables on poles constructed within the easement, 

including a fiber optic cable. In addition, while the use of herbicides changes the nature 

of the activity on the property from the removal of vegetation by cutting or trimming, there 

is nothing in the record in the instant case to suggest the fiber optic wires have any 

adverse effect on the property which is different from the stringing of electric or telephone 

wires on the poles. Appellants’ complaint about the new poles was the height of the poles 

interfering with the airport, not with the type of wires strung on the poles.

{¶19} Appellants also cite to Graham v. Drydock Coal Co., 76 Ohio St. 3d 311, 

667 N.E.2d 949, 1996-Ohio-393, in which the Ohio Supreme Court held a deed which 

severs a mineral estate from a surface estate and grants or reserves the right to use the 

surface for coal mining, with language specifically applicable to deep-mining techniques, 

does not grant the right to use strip mining. We find Graham does not support Appellants’ 

argument the change in technology to fiber optic wires exceeds the scope of the 

easement. The Graham court specifically found the language in the deed referred to 

deep-mining techniques, not to strip mining, and whether the deed was drafted before or 

after the advent of strip mining, the deed did not reserve to the mineral owner the right to 

use strip mining methods. Id. at 319. Thus, the Graham holding was not based on new 

technology exceeding the scope of the deed language, but on the specific language of 

the deed itself. The language in the easement in the instant case does not specifically 

preclude fiber optic lines.

{¶20} Finally, Appellants argue Appellee admitted the terms “electric power” and 

“any other power” as used in the easement were vague and ambiguous, thus precluding 
Muskingum County, Case No. CT2023-0053 10

summary judgment. Appellants contend Appellee conceded the terms were vague and 

ambiguous in their responses to Appellants’ discovery request. However, upon reviewing 

the record, we find Appellee merely objected to Appellants’ use of the terms in their 

phrasing of requests for admissions in discovery requests as vague and ambiguous. 

There is no evidence in the record Appellee admitted the terms as used in the easement 

are vague and ambiguous. 

{¶21} The first assignment of error is overruled.

II.

{¶22} In their second assignment of error, Appellants argue the trial court erred in 

overruling their motion to amend their complaint to add a petition in mandamus for 

eminent domain because at the time they filed their complaint in 2019, they did not know 

fiber optic lines would be included on the poles, which had not yet been installed, and 

such lines constitute an inverse taking because they are outside the scope of the 

easement.

{¶23} Civ. R. 15(A) provides for amendment of pleadings as follows:

(A) Amendments. A party may amend its pleading once as a matter 

of course within twenty-eight days after serving it or, if the pleading is one 

to which a responsive pleading is required within twenty-eight days after 

service of a responsive pleading or twenty-eight days after service of a 

motion under Civ.R. 12(B), (E), or (F), whichever is earlier. In all other 

cases, a party may amend its pleading only with the opposing party's written 

consent or the court's leave. The court shall freely give leave when justice 
Muskingum County, Case No. CT2023-0053 11

so requires. Unless the court orders otherwise, any required response to an 

amended pleading must be made within the time remaining to respond to 

the original pleading or within fourteen days after service of the amended 

pleading, whichever is later.

{¶24} “While the rule allows for liberal amendment, motions should be refused if 

there is a showing of bad faith, undue delay, or undue prejudice to the opposing party.” 

Howick v. Lakewood Village Ltd. Partnership, 3d Dist. Mercer No. 10-06-25, 2007-Ohio4370, 2007 WL 2410078, ¶ 37, citing Turner v. Cent. Local School Dist., 85 Ohio St.3d 

95, 99, 706 N.E.2d 1261 (1999). A trial court's decision to grant or deny a motion for leave 

to amend a pleading is discretionary and will not be reversed absent an abuse of 

discretion. Id. at ¶ 37, citing State ex rel. Askew v. Goldhart, 75 Ohio St.3d 608, 610, 665 

N.E.2d 200 (1996). “An abuse of discretion connotes a decision that is unreasonable, 

arbitrary, or unconscionable.” Id.

{¶25} We find the trial court did not abuse its discretion in denying Appellants’ 

motion to amend the pleadings to add a petition for mandamus. Appellants did not file 

their motion to amend until June 3, 2022. The instant action was filed in 2019. The 

construction of the new poles was completed in August of 2020. Appellants filed their 

motion to amend their complaint to add the petition for mandamus to require Appellee to 

commence eminent domain proceedings only after Appellee argued in its motion for 

summary judgment Appellants’ claim for monetary damages was precluded by their 

failure to file a writ of mandamus to compel Appellee to commence eminent domain 

proceedings. We find the trial court did not abuse its discretion in finding the motion to 
Muskingum County, Case No. CT2023-0053 12

amend the complaint was filed too late in the proceedings, several years after the 

construction of the poles was completed.

{¶26} In addition, Appellants’ petition is based on their claim the addition of fiber 

optic cables to the poles is outside the scope of the easement. Because we have found 

the plain language of the easement allows fiber optic cables to be strung from the poles,

we find Appellants could not demonstrate a “taking” occurred by the stringing of fiber optic 

cables on the poles. 

{¶27} The second assignment of error is overruled. The judgment of the 

Muskingum County Common Pleas Court is affirmed.

By: Hoffman, P.J.

Wise, J. and

Baldwin, J. concur