[Cite as Acorn Development, L.L.C. v. Sanson Co., 2022-Ohio-2576.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

ACORN DEVELOPMENT, LLC, :

Plaintiff-Appellant, :

Nos. 110530 and 111003

v. : 

THE SANSON COMPANY, ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: July 28, 2022

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-20-932231

Appearances:

The Law Offices of David M. Leneghan, David M. 

Leneghan, and K. Scott Carter, for appellant. 

Hanna, Campbell & Powell, LLP, J. Anthony Coleman,

and R. Brian Borla, for appellee. 

EMANUELLA D. GROVES, J.:

Plaintiff-appellant Acorn Development, LLC (“Acorn”), appeals the 

trial court’s judgment granting defendant-appellee The Sanson Company’s 

(“Sanson”), motion for judgment on the pleadings. For the reasons that follow, we 

affirm the trial court’s judgment.
Procedural History and Factual Background

Both Acorn and Sanson run commercial businesses with bases of 

operation in the city of Cleveland. Acorn owns property known as parcel no. 123-

12-010 (“Parcel 10”). Parcel 10 contains a large building that stretches to the 

northern, eastern, and southern boundaries of the property, with loading docks on 

the south side of the building that are used to receive and make shipments. Parcel 

10 is effectively landlocked and can be accessed from a driveway off of East 37th 

Street. The driveway is owned by Sanson. 

Sanson and related entities own property designated permanent 

parcel nos. 123-12-005 (“Parcel 5”), 123-12-006 (“Parcel 6”), 123-12-007 (“Parcel 

7”), 123-12-008 (“Parcel 8”), and 123-12-009 (“Parcel 9”). Parcel 9 contains the 

driveway that abuts Parcel 10 on the south side.

In April 2020, Acorn filed suit against Sanson alleging tortious 

interference with Acorn’s right to use the driveway on Parcel 9 (the “easement”). On 

June 3, 2020, Sanson filed an answer and also counterclaimed in quiet title. 

Specifically, in its counterclaim, Sanson argued that the easement in question was 

expressly created in a lease, and that the lease, as well as the easement, expired on 

October 14, 2017. Sanson also referenced prior litigation in two cases both of which 

found that there was an easement over Parcel 9 for the benefit of Parcel 10. Sanson 

argued that the findings in those cases were no longer relevant because the easement 

had expired. Sanson requested declaratory judgment and/or a judicial 

determination quieting title to Parcel 9. 
In December 2020, Acorn filed its first amended complaint adding a 

claim that Sanson had violated an implied easement over Parcel 9, in addition to the 

tortious interference claim. Sanson renewed its counterclaim, arguing that any 

easement had expired and was no longer in effect. 

On March 5, 2021, Sanson filed a motion for judgment on the 

pleadings to the amended complaint, which Acorn opposed by motion on April 2, 

2021. On April 28, 2021, the trial court granted Sanson’s motion “for the reasons 

argued in the motion.” Acorn filed a notice of appeal on May 26, 2021. 

On October 1, 2021, this court remanded the case to the trial court 

noting:

In this case, the defendant counterclaimed for a declaratory judgment 

on the existence of an easement. The judge granted the defendant’s 

motion for judgment on the pleadings “for the reasons argued in the 

motion.” However, in a declaratory judgment action, the trial court 

must declare all the of the parties’ rights and obligations in order to 

constitute a final, appealable order. Klocker v. Zeiger, 8th Dist. 

Cuyahoga No. 92044, 2009-Ohio-3102. Referencing the reasons in the 

dispositive motion does not do that. Accordingly, in order to avoid a 

possible jurisdictional impediment, this court remands the case to the 

trial court for a full declaration of rights and obligations by October 29, 

2021. 

After remand, the trial court granted Sanson’s motion for judgment 

on the pleadings, noting:1

The amended complaint essentially alleges that Sanson was interfering 

with Acorn’s easement — “implied or otherwise” — and seeks damages 

and “a finding that Plaintiff [Acorn] has easement rights over [Parcel 9] 

[owned by Sanson] for the benefit of [Parcel 10].”

1 The trial court’s journal entry has been edited solely for consistency with the 

conventions used thus far in this opinion.
By its counterclaim, Sanson seeks to quiet title in its favor with a 

declaration “that it owns [Parcel 9] free and clear of any easements and 

that the [Acorn], has no legal rights or interests in [Parcel 9].”

Sanson then filed the motion for judgment on the pleadings currently 

under consideration. The gist of Sanson’s argument is that Acorn’s 

easement, as declared in the 2014 litigation, arose from the 90-year 

lease and it therefore expired in 2017. Additionally, because the 

easement was express it cannot also be considered to be implied, i.e., 

the easement did not become implied upon the expiration of the 90-

year express easement.

Sanson’s arguments and authorities are persuasive. Accordingly, 

Sanson’s motion for judgment on the pleadings — including the 

counterclaim for declaratory judgment and Acorn’s complaint seeking 

a finding that Plaintiff has easement rights over [Parcel 9] for the 

benefit of [Parcel 10] — is granted and the following declaration of the 

rights and obligations of the respective parties is made:

1. [Acorn’s] express easement as declared in case numbers 

CV 02 475046 and CV 14 82668 was created by the 1927 

lease and it expired in October 2017;

2. [Acorn] does not have an implied easement over 

[Sanson’s] property, in particular [Parcel 9], for access to, 

or any other use of, [Parcel 10]; and

3. [Sanson’s] title to [Parcel 9] is free and clear of any 

easements for the benefit of [Parcel 10].

Acorn appeals and assigns the following errors for our review.

Assignment of Error No. 1

The Trial Court erred as a matter of law when it considered facts outside 

the pleadings when it granted Defendant/Appellee’s Motion for 

Judgment on the Pleadings

Assignment of Error No. 2

The Trial Court erred as a matter of law when it found 

Plaintiff/Appellant did not have an easement over
Defendant/Appellee’s property to access Plaintiff/Appellant’s 

property.

Law and Analysis

For ease of discussion, we will address the assignments of error out of 

order. In its second assignment of error, Acorn argues that the trial court erred 

finding the easement over Parcel 9 had expired based on a 1927 lease and should not 

have granted Sanson’s motion for judgment on the pleadings.

Standard of Review

Preliminarily, a judgment on the pleadings deals solely with issues of 

law, therefore our review is de novo. New Riegel Local School Dist. Bd. of Edn. v. 

Buehrer Group Architecture & Eng., Inc., 157 Ohio St.3d 164, 2019-Ohio-2851, 133 

N.E.3d 482, ¶ 8, citing Rayess v. Educational Comm. For Foreign Med. Graduates, 

134 Ohio St.3d 509, 2012-Ohio-5676, 983 N.E.2d 1267, ¶ 18. De novo review 

requires an independent examination of the record and law without deference to the 

trial court’s decision. Torres v. Concrete Designs, Inc., 2019-Ohio-1342, 134 N.E.3d 

903, ¶ 48 (8th Dist.), citing Gateway Consultants Group, Inc. v. Premier Physicians 

Ctrs. Inc., 8th Dist. Cuyahoga No. 104014, 2017-Ohio-1443, ¶ 22, citing Demeraski 

v. Bailey, 2015-Ohio-2162, 35 N.E.3d 913, ¶ 11 (8th Dist.). 

A judgment on the pleadings limits our review “solely to the 

allegations in the complaint and answer, as well as any material attached as exhibits 

to those pleadings.” Schmitt v. Educational Serv. Ctr., 2012-Ohio-2208, 970 N.E.2d 

1187, ¶ 10 (8th Dist.), citing State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio 
St.3d 565, 569, 664 N.E.2d 931 (1996). Further, we must consider the factual 

allegations in the complaint as true, although unsupported conclusions are 

insufficient to defend against the motion. Pincus v. Dubyak, 8th Dist. Cuyahoga No. 

110135, 2021-Ohio-3034, ¶ 17. 

When a defendant requests judgment on the pleadings, it is 

appropriate to grant the motion when the plaintiff’s complaint has failed to allege 

facts that, if true, would establish the defendant’s liability. Id. at ¶ 17, citing Walters 

v. First Natl. Bank of Newark, 69 Ohio St.2d 677, 433 N.E.2d 608 (1982). In other 

words, to grant a motion for judgment on the pleadings, the court must determine 

that no material factual issues exist and that the moving party is entitled to judgment 

as a matter of law. Id., quoting Midwest Pride IV, Inc. at 570. 

Express or Implied Easement

In the instant case, the parties agree to the existence of an easement. 

However, the parties dispute whether the easement was created by express grant or 

by implication and whether it continues to exist. Nonetheless, the parties do not 

dispute the underlying facts giving rise to the litigation. Sanson does not dispute 

that it blocked Acorn’s access to the loading docks. Sanson argues it owns Parcel 9 

free of any easement and may use its property as it chooses. In contrast, Acorn 

argues that it has an easement implied by prior use or implied by necessity over 

Parcel 9 that was not terminated by the lease and, therefore, it still has a right to use 

the driveway. 
We must first, then, examine the nature of easements. By definition, 

an easement “is a property interest in the land of another that allows the owner of 

the easement ‘a limited use of the land in which the interest exists.’” Merrill Lynch 

Mtge. Lending, Inc. v. Wheeling & Lake Erie Ry. Co., 9th Dist. Summit No. 24943, 

2010-Ohio-1827, ¶ 10, quoting Colburn v. Maynard, 111 Ohio App.3d 246, 253, 675 

N.E.2d 1333 (4th Dist.1996). “An express easement may be created by grant, or by 

reservation or exception in a deed.” Id., citing Gateway Park, LLC v. Ferrous 

Realty, Ltd., 8th Dist. Cuyahoga No. 91082, 2008-Ohio-6161, ¶ 29. The grant may 

also be included in the language of a lease or similar document. Kamenar R. S., Inc. 

v. Ohio Edison Co., 79 Ohio App.3d 685, 689, 607 N.E.2d 1108 (3d Dist.1992), citing 

36 Ohio Jurisprudence 3d, Easements and Licenses, Section 18 (1982). 

In addition to an express easement, an easement may be created by 

(1) implication; (2) prescription; or (3) estoppel. Miller v. Romanauski, 8th Dist. 

Cuyahoga No. 100120, 2014-Ohio-1517, ¶ 17 citing Gateway Park, LLC at ¶ 29. In

the instant case, Acorn claims that it has an easement by implication, or an implied 

easement. 

Initially, we note implied easements are generally disfavored because 

they are an exception to the general rule that written instruments should speak for 

themselves. Ciski v. Wentworth, 122 Ohio St. 487, 495, 172 N.E. 276 (1930). 

Furthermore, implied easements create a right of way over land that could have been 

granted by an express easement. Therefore, “one may not simultaneously have an 
easement over another’s land by express grant and an easement implied by 

necessity.” Tiller v. Hinton, 19 Ohio St.3d 66, 69, 482 N.E.2d 946 (1985). 

Nevertheless, an easement will be implied when a party shows that 1) 

there was the severance of the unity of ownership in an estate; 2) that before the 

estate was separated, the use that gives rise to the easement has been “so long 

continued and obvious or manifest as to show that it was meant to be permanent”;

3) that the easement is “reasonably necessary to the beneficial enjoyment of the land 

granted or retained”; and 4) that the servient use was continuous as opposed to 

temporary or occasional use only. Ciski at paragraph one of the syllabus. 

Courts have further delineated easements by implication, finding 

there are easements implied by necessity and easements implied by prior use. Both 

look at the issue of necessity, finding that for an easement to be implied by necessity, 

the plaintiff must show “strict necessity” while for an easement to be implied by 

prior use, the plaintiff need only show “reasonable necessity.” Shangrila Ohio, 

L.L.C. v. Westridge Realty Co., 8th Dist. Cuyahoga No. 99784, 2013-Ohio-3817, 

¶ 19, citing Tiller at 69. “Strict necessity” means that the easement is “strictly 

necessary in order for the owner of the dominant tenement to have any use and 

enjoyment of his estate.” Panini, Inc. v. 1078 Old River Rd., Inc., 8th Dist. Cuyahoga 

No. 74124, 1999 Ohio App. LEXIS 2299, 12 (May 20, 1999), citing Tiller at 72. In 

contrast, an easement implied by prior use must be “reasonably necessary to the 

beneficial enjoyment of the dominant estate.” Id. The party claiming that an 

easement exists has the burden of proving it. Gateway Park, LLC, 8th Dist. 
Cuyahoga No. 91082 at ¶ 27, citing Douglas v. Athens Masonic Temple Co., 115 Ohio 

App. 353, 357, 185 N.E.2d 316 (4th Dist.1961).

Easements may be appurtenant or “in gross.” An easement “in gross” 

conveys to another “a personal privilege to use the land” but that privilege expires 

“with the party to whom the privilege belongs.” Id. at ¶ 28, citing Warren v. 

Brenner, 89 Ohio App. 188, 195, 101 N.E.2d 157 (9th Dist.1950). In sum, an 

easement in gross is held by an individual, exists independently of any ownership of 

land, and is not transferrable to subsequent owners. Merrill Lynch, 9th Dist. 

Summit No. 24943 at ¶ 11. “‘An easement is seldom considered to be in gross when 

it can be fairly construed to be appurtenant to some estate.’” Gateway Park LLC at 

¶ 28, quoting 36 Ohio Jurisprudence 3d, Easements & Licenses, Section 12. 

In contrast, and at issue in this case, are easements appurtenant. An 

easement appurtenant attaches to the property and requires a dominant estate and 

a servient estate. The dominant estate receives the benefit of the easement, while 

the servient estate is burdened by the easement. Johnson v. New Direction IRA 

F.B.O King C. Lam, 8th Dist. Cuyahoga No. 106628, 2018-Ohio-4608, ¶ 32, citing 

Gateway Park at ¶ 28. Essentially, the dominant estate acquires an easement to use 

a portion of property owned by the servient estate, which bears the burden of the 

use. 

Central to this case is a 1927 lease between Nickel Plate Development 

Company (“Nickel Plate”), The City Ice & Fuel Company (“City Ice”), and The New 

York, Chicago & St. Louis Railroad Company (the “Railroad”). At the time, Nickel 
Plate owned both Parcels 9 and 10, and intended to lease Parcel 10 to City Ice. City 

Ice accepted the lease on the condition that the Railroad would provide certain 

services. The lease was issued on October 15, 1927, for a period of 90 years, 

described the boundaries of Parcel 10, and noted the intent to create two 60-foot 

driveways and one 40-foot driveway bordering the parcel on three sides. Parcel 9 

contained one of the 60-foot driveways. 

The lease stated:

That the Lessor has agreed to let and hereby does let unto the Lessee, 

and the Lessee has agreed to take, and hereby does take and hire from 

the Lessor, for the term, at the rent, and upon the covenants, 

conditions, limitations and agreements hereinafter contained, the 

premises described as follows:

* * *

Together with the right in common with the Lessor, other Lessees, its 

successors and assigns to use the proposed forty foot and the two sixty 

foot driveways hereinbefore referred to.

No particular words are necessary to create an easement; however, 

the words used in the agreement and the circumstances surrounding it must be 

examined to determine whether an easement is created. Kamenar R. S., Inc., 79 

Ohio App.3d at 690, 607 N.E.2d 1108. An easement is created as long as the intent 

of the parties is clear from the document and the formal statutory requirements are 

met, i.e., a writing, that is properly witnessed by two disinterested parties. Gateway 

Park LLC, 8th Dist. Cuyahoga No. 91082 at ¶ 30.

Sanson argued, and the trial court agreed, that an express easement 

was granted by the 1927 Lease that expired by its terms after 90 years. The language 
in the lease expressly grants an easement to the occupier of Parcel 10 to use Parcel 

9, “for the term, at the rent, and upon the covenants, conditions, limitations and 

agreements hereinafter contained * * *.” The term of the lease is plainly defined as 

90 years. Furthermore, there is no subsequent deed or other grant attached to the 

pleadings that extends the easement beyond that period.

Acorn suggests that its right to the easement is distinct because it is 

the owner of Parcel 10 rather than the lessee. A lessee, the company argues, would 

be bound by the terms of the lease but an owner would not. However, that argument 

fails to recognize the nature of the easement. Whether express or implied, an 

easement appurtenant is tied to the land, while an easement in gross is tied to a 

particular person. “An easement is appurtenant when the language of the 

instrument creating it and the surrounding facts indicate that it was created for the 

benefit of the land and not just to form a personal right benefit.” Goralske v. Parsell, 

2016-Ohio-531, 59 N.E.3d 730, ¶ 12 (3d Dist.), citing Deshon v. Parker, 49 Ohio 

App.2d 366, 361 N.E.2d 457 (9th Dist.1974). In the instant case, the 1927 Lease 

created an easement appurtenant to the land, creating a dominant estate in Parcel 

10 and a servient estate in Parcel 9. Acorn’s status as the owner of Parcel 10 does 

not give it more rights in relation to Parcel 9 than that expressed in the granting 

document. 

Therefore, based on the foregoing, we find that the easement created 

in the 1927 Lease expired at the end of the lease term in October 2017. 
Nevertheless, Acorn argues that their easement does not arise out of 

the 1927 Lease but is an implied easement of prior use or of necessity. Acorn alleges 

that as an owner of the property, and not a lessee, they are not bound by the terms 

of the 1927 Lease. As noted, we disagree; further, Acorn’s argument is unavailing. 

As we have noted, an implied easement arises in situations where an 

obvious use exists but an easement was not expressly granted. As a result, “one may 

not simultaneously have an easement over another’s land by express grant and an 

easement implied by necessity.” Tiller, 19 Ohio St.3d at 69, 482 N.E.2d 946. 

Undoubtedly, the lease created an express easement. Acorn is precluded from 

arguing that an implied easement of necessity or prior use was created. 

Accordingly, we overrule Acorn’s second assignment of error.

In its first assignment of error, Acorn alleges that the trial court erred 

because it considered facts outside of the pleadings. Specifically, Acorn alleges that 

the trial court considered litigation that occurred in 2002 despite there being “no 

reference” to the 2002 litigation in the pleadings.

A trial court, when ruling on a motion for judgment on the pleadings 

is limited in its review “solely to the allegations in the complaint and answer, as well 

as any material attached as exhibits to those pleadings.” Schmitt, 8th Dist. Cuyahoga 

No. 97605 at ¶ 10, citing Midwest Pride IV, 75 Ohio St.3d at 569, 970 N.E.2d 1187. 

However, not all attachments are equal. While Civ.R. 10(C) qualifies a written 

instrument attached to a complaint or answer as part of the pleadings, “written 

instrument” has a specific meaning. Edwards v. Kelley, 2021-Ohio-2933, 178 
N.E.3d 55, ¶ 9 (8th Dist.). A “‘[w]ritten instrument’ has primarily been interpreted 

to include documents that evidence the parties’ rights and obligations, such as 

negotiable instruments, ‘insurance policies, leases, deeds, promissory notes, and 

contracts.’” Id., quoting State ex rel. Leneghan v. Husted, 154 Ohio St.3d 60, 2018-

Ohio-3361, 110 N.E.3d 1275, ¶ 2, citing Inskeep v. Burton, 2d Dist. Champaign No. 

2007 CA 11, 2008-Ohio-1982, ¶ 17, and 1 Klein & Darling, Baldwin’s Ohio Practice 

744-745 (2004). Court filings attached to a pleading are not “written documents” 

and may not be considered. Id., citing Husted, citing State ex rel. Vandenbos v. 

Xenia, 2d Dist. Greene No. 14-CA-14, 2015-Ohio-35, ¶ 14 (orders and opinions from 

prior cases between the parties are not part of the pleadings). 

Here, we note that Acorn summarized events in a 2014 case involving 

the parties in its amended complaint and attached a copy of a journal entry from 

that litigation in support. Further, Sanson referenced the prior litigation more 

generally in its original answer and counterclaim noting that “any prior judicial 

determination of easement rights in [Parcel 9] was made when the 90-year lease was 

in effect.” The trial court referenced the 2002 case, as follows 

Also in the September 9, 2015, judgment entry, the court noted a 

finding from 2002 litigation involving Sanson, as the plaintiff, and 

Acorn’s predecessor in interest, Gorbett Enterprises, Inc., dba Gateway 

Cold Storage. That lawsuit was designated as number CV 02 475046 

in this court. In that case, the court found that Gateway Cold Storage 

did have an express easement that arose from the 90-year lease in 1927.

The court in the 2014 case then found that the easement still existed 

because Sanson was bound by the result in the 2002 case, which was 

never appealed.
From the foregoing, it is clear that the trial court considered the 

journal entry in making its decision, including its references to the 2002 case. This 

was improper under Husted. However, we are mindful of Civ.R. 61 which sets the 

standard for harmful error stating:

No error in either the admission or the exclusion of evidence and no 

error or defect in any ruling or order or in anything done or omitted by 

the court or by any of the parties is ground for granting a new trial or 

for setting aside a verdict or for vacating, modifying or otherwise 

disturbing a judgment or order, unless refusal to take such action 

appears to the court inconsistent with substantial justice. The court at 

every stage of the proceeding must disregard any error or defect in the 

proceeding which does not affect the substantial rights of the parties.

In the instant case, while the trial court erred in considering the 

journal entry in the prior case, the trial court nonetheless came to the correct 

conclusion in granting Sanson’s motion for judgment on the pleadings. The 1927 

lease established an express easement that expired in 2017 precluding the existence 

of an implied easement. Acorn could have, but did not, allege that the implied 

easement arose after the expiration of the lease. Appellant chose to base its implied 

easement argument on its use of Parcel 9 since the 1920s. However, during that 

period, an express easement existed, so by law an implied easement could not have 

been created. Tiller, 19 Ohio St.3d at 69, 482 N.E.2d 946. Consequently, Acorn has 

pled no set of facts that would entitle it to relief. Although, the trial court’s reliance 

on the journal entries was error, its ultimate conclusion was correct. Therefore, the 

error did not affect a substantial right and was harmless as a matter of law. 

Accordingly, we overrule Acorn’s first assignment of error.
Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment 

into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure.

_ ____

EMANUELLA D. GROVES, JUDGE

MARY J. BOYLE, J., CONCURS;

SEAN C. GALLAGHER, A.J., DISSENTS (WITH SEPARATE OPINION)

SEAN C. GALLAGHER, A.J., DISSENTING: 

I respectfully dissent. What we are discussing is a tenant’s right of 

way over a shared driveway owned by the landlord, a particular type of easement. 

“Right of way” “‘sometimes is used to describe a right belonging to a party, a right of 

passage over any tract; and it is also used to describe that strip of land which railroad 

companies take upon which to construct their road-bed’” giving rise to an interest in 

the land upon which the right-of-way passage sits. State ex rel. Natl. Lime & Stone 

Co. v. Marion Cty. Bd. of Commrs., 152 Ohio St.3d 393, 2017-Ohio-8348, 97 N.E.3d 

404, ¶ 15, quoting Joy v. St. Louis, 138 U.S. 1, 44, 11 S.Ct. 243, 34 L.Ed. 843 (1891); 

McCotter v. Barnes, 247 N.C. 480, 485, 101 S.E.2d 330 (1958); Quinn v. Pere 

Marquette Ry. Co., 256 Mich. 143, 150, 239 N.W. 376 (1931); and Miro v. Superior 
Court of San Bernandino Cty., 5 Cal.App.3d 87, 96, 84 Cal.Rptr. 874 (4th 

Dist.1970). In this case, the 1927 lease agreement granted City Ice the right of 

passage over an existing driveway owned by the landlord. “A mere naked right to 

pass and repass over the land of another, a use which excludes all participation in 

the profits of the land, is not, in any proper sense, an interest or estate in the land 

itself. Such a right is in its nature personal; it attaches itself to the person of him to 

whom it is granted, and must die with the person.” Geffine v. Thompson, 76 Ohio 

App. 64, 67, 62 N.E.2d 590 (8th Dist.1945), citing Boatman v. Lasley, 23 Ohio St. 

614, 618 (1873). 

Thus, there are generally two kinds of easement: an easement 

appurtenant that runs with the land, and an easement in gross that is limited to the 

person to whom the easement was granted. Gateway Park, LLC v. Ferrous Realty, 

Ltd., 8th Dist. Cuyahoga No. 91082, 2008-Ohio-6161, ¶ 28, citing Warren v. 

Brenner, 89 Ohio App. 188, 101 N.E.2d 157 (9th Dist.1950). Generally, an easement 

in gross is held by an individual, exists independently of any ownership of land, and 

is not transferrable to subsequent owners. Merrill Lynch Mtge. Lending, Inc. v. 

Wheeling & Lake Erie Ry. Co., 9th Dist. Summit No. 24943, 2010-Ohio-1827, ¶ 11. 

As will be discussed, the easement at issue in this case does not neatly fit into either 

category.

Sanson frames the discussion in terms of the 1927 lease agreement 

creating an easement appurtenant with a 90-year duration based on the terms of the 

lease, but that argument is misplaced. At the time of the 1927 lease agreement, 
Nickel Plate owned both Parcel 9 and Parcel 10. City Ice was granted access to the 

leased building on Parcel 10 through the shared driveway. As long as the dominant 

and subservient estates belong to one owner, no easement can exist or be 

established. 36 Ohio Jurisprudence 3d, Easements and Licenses in Real Property, 

Section 2, citing W. Edn. Soc. v. Huntington, 15 Ohio N.P. (N.S.) 481, 28 Ohio Dec. 

483, 1914 WL 1288 (Super.Ct. 1914); One Harbor Fin. Ltd. Co. v. Hynes Properties, 

LLC, 884 So.2d 1039, 1044 (Fla.App.2004).

2 The right to use the driveway was not 

an easement at the time of its creation, nor did it grant City Ice any ownership rights 

to the property upon which the right-of-way passage existed. And further, “an 

easement appurtenant ‘arises only when [the easement] holder owns a dominant 

estate at the time of the creation of the easement.’” Snyder v. Monroe Twp. 

Trustees, 110 Ohio App.3d 443, 450, 674 N.E.2d 741 (2d Dist.1996), quoting Bruce 

& Ely, The Law of Easements and Licenses in Land (Rev.Ed.1995) 2-8, Section 

2.01[4]; 36 Ohio Jurisprudence 3d, Easements and Licenses in Real Property, 

Section 2 (It is generally understood that “the owner of the land cannot have an 

2 That rule is absolute. Even if a valid easement does exist, under the merger 

doctrine “if the dominant and servient tenements at any time are united in a common 

ownership, any easement which may have previously existed is ipso facto extinguished.” 

Huntington at 488 (concluding that the plaintiff had a right to an implied easement upon 

the sale of the unified property to separate buyers); accord Maune v. Beste, 356 S.W.3d 

225, 230 (Mo.App.2011); Millson v. Laughlin, 217 Md. 576, 583, 142 A.2d 810 (1958). 

Once extinguished, an easement appurtenant must be reestablished should the common 

ownership become split again. See, e.g., Shah v. Smith, 181 Ohio App.3d 264, 2009-Ohio743, 908 N.E.2d 983, ¶ 12 (1st Dist.) (although the original easement merged upon the 

unity in ownership, the doctrine does not preclude the establishment of a new easement 

upon sale of one of the properties).
easement in one’s own estate in fee.”), citing Rex v. Hartman, 16 Ohio Law Abs. 573, 

1934 WL 1662 (Ct.App. 9th Dist. Medina 1934). 

City Ice did not own the dominant estate, and Nickel Plate as the 

owner of the dominant and servient estates (even if the parcels existed independent 

of each other in 1927), could not have granted itself an easement appurtenant on its 

own property on behalf of its tenant. See, e.g., Tower 10, LLC v. 10 W Broad Owner, 

LLC, 2020-Ohio-3554, 154 N.E.3d 1060, ¶ 7 (10th Dist.) (landlord created easement 

for the express benefit of itself and its tenants).

On the other hand, an easement in gross is held by an individual and 

exists without regard to that person’s ownership of the land. Although this better 

describes the easement at issue, an easement in gross typically cannot be 

transferred. There is no dispute that the 1927 lease that included the right of passage 

for the tenant over the landlord’s driveway, was transferable to City Ice’s successors 

or could be assigned to another person or entity. The prohibition against the 

transferability of an easement in gross, however, is not absolute.

As recognized in Geffine v. Thompson, 76 Ohio App. 64, 68, 62 

N.E.2d 590 (8th Dist.1945), an easement in gross may be transferrable to successors 

or assigns in certain commercial settings — in effect creating a third category dealing 

with right-of-way easements granted to a person or corporation. Consol. Gas

Transm. Corp. v. Miller, 5th Dist. Holmes No. 378, 1988 Ohio App. LEXIS 1757 

(Apr. 25, 1988). “Easements in gross of a commercial character, such as gas 

pipelines and railroad rights-of-way, are alienable property interests” but still retain 
the distinction, between an easement in gross and easement appurtenant, in that 

the easement in gross, even if assignable, is limited to the person holding the right 

and does not run with the land. See generally id. Once the person holding the 

easement abandons it, the easement ceases to exist. 

The 1927 lease granting City Ice and its successors or assigns the right 

to use a driveway is a red herring; its existence has no bearing on the question raised

in this case of whether an implied easement exists in favor of Acorn.3 On this point, 

Sanson has considered the parties in the incorrect role with relation to their 

respective position in the lease (who is the tenant and who the landlord?). 

According to the allegations in the amended complaint, Sanson 

acquired title to Parcel 9 through a land sale purchase agreement in 1998. Although 

it is not clear from the limited record, it appears that an apparent successor in 

interest to the 1927 lease agreement (Gorbert Enterprises) occupied the structure 

3 Any easement established in the 1927 lease would not exist independent of the 

lease agreement itself. In order to be valid, the tenant of Parcel 10 would have to prove 

an unbroken chain of assignments of the lessee’s interest dating back to City Ice & Fuel 

Company. Zagrans v. Elek, 9th Dist. Lorain No. 08CA009472, 2009-Ohio-2942, ¶ 9 

(“When an easement is set forth in a written agreement, it is subject to the rules of 

contract law.”), citing Wimmer Family Trust v. FirstEnergy, 9th Dist. Lorain No. 

08CA009392, 2008-Ohio-6870, ¶ 12, and Beaumont v. FirstEnergy Corp., 11th Dist. 

Geauga No. 2004-G-2573, 2004-Ohio-5295, ¶ 18-19. Once City Ice, or someone in its 

shoes, walks away from 1927 lease agreement, the tenant’s right to use the driveway 

ceases. Myers v. E. Ohio Gas Co., 51 Ohio St.2d 121, 124, 364 N.E.2d 1369 (1977), fn. 3 

(an easement established by the lease can be terminated at will by the lessee, but not the 

lessor); accord Gateway Park, LLC v. Ferrous Realty, Ltd., 8th Dist. Cuyahoga No. 

91082, 2008-Ohio-6161, ¶ 43 (if the parties to the lease agreement “intended to limit the 

duration of the easement to ten years, they would have expressly said so in the 1971 deed” 

at the time of transfer).
located on Parcel 10 at the time Sanson purchased Parcel 9.4 Thus, Sanson 

potentially took title to Parcel 9, subject to the tenant’s right to use its driveway.

In 2007, however, Acorn acquired Parcel 10 through a quitclaim deed 

from the successor in interest of Nickel Plate.

5

 There is no evidence, or even an 

allegation, that Acorn purchased Parcel 10 subject to an existing tenant in 

possession of the building under the terms of the 1927 lease agreement. Acorn was 

not assigned City Ice’s interest to the 1927 lease agreement as the lessee, nor is Acorn 

a successor in interest to City Ice. Acorn is a successor in interest to the landlord of 

that lease agreement, Nickel Plate, being in the same position as Sanson. Nickel 

Plate’s interest as landlord, if the 1927 lease continued to be an enforceable contract 

at that time, was split between Acorn and Sanson. Based on the lack of any 

allegations in the amended complaint, we must presume that as of 2007 there was 

no tenant claiming entitlement to separately enforce the 1927 lease terms against 

4 Acorn purchased the property from a successor in interest to Nickel Plate, 

necessarily meaning there was no intervening sale of Parcel 10 and Gorbert merely leased 

the property from Nickel Plate’s successor in interest.

5 If an owner of two parcels of land subjects one of them to an easement in favor of 

the other and then sells the dominant parcel without providing for that easement in the 

grant of sale, and “the enjoyment of such easement is reasonably necessary to the 

beneficial enjoyment of the parcel granted, it may reasonably be inferred that the parties 

mutually intended there should have been a grant of such easement.” Tiller v. Hinton, 19 

Ohio St.3d 66, 69, 482 N.E.2d 946 (1985), quoting Renner v. Johnson, 2 Ohio St.2d 195, 

199, 207 N.E.2d 751 (1965). The grantee has a right to require reformation of the deed to 

establish the mutual intent of the parties, and therefore, the grant of such an easement 

will be implied. Id.
Acorn and an express easement against Sanson, both of whom stood in the 

landlord’s shoes, not City Ice’s. 

For our purposes, even assuming the existence of an easement 

created through the lease agreement, as of 2007, the 1927 lease terminated because 

no tenant leased the property from any successor in interest to Nickel Plate as an 

assignee of the 1927 lease agreement. After that time, Sanson acquiesced to Acorn’s 

continued use of the driveway on two separate, but distinct, occasions: between 

2007 and 2014 when the earlier action was filed and Acorn’s easement was declared 

valid,6 and again after 2017 based on the allegation that Sanson made no efforts to 

preclude Acorn from accessing Parcel 10 until an unknown date that was “recent” to 

the filing of the 2020 complaint.

Sanson’s argument, as it pertains to entitlement to a judgment on the 

pleadings, is focused on the claim that the 1927 lease terminated in 2017 as did 

Acorn’s express easement based on the 90-year term of the lease granted to City Ice. 

As Sanson discussed in its motion for judgment on the pleadings: “If a party is 

contending that an easement is created expressly, it is necessary that a grant be 

included in the language of a deed, lease, or the like.” Kamenar R.R. Salvage, Inc. 

v. Ohio Edison Co., 79 Ohio App.3d 685, 689 (3d Dist.1992), citing 36 Ohio 

6 The record from the 2014 action is not part of the appellate record in this case. It 

cannot be determined whether Acorn filed a complaint to enforce an express easement 

that included an argument in the alternative that the easement was implied — as was the 

nature of the complaint and amended complaint filed in the underlying action. Although 

the entry from the 2014 action was attached to Acorn’s complaint, that entry does not 

establish whether the court determined that the easement was express or implied; it 

simply declared the existence of an easement. 
Jurisprudence 3d (1992), Easements and Licenses, Section 18. Acorn alleges 

entitlement to a declaration that the easement is implied. Sanson claims the express 

easement precludes that relief, and thus the burden is on Sanson to demonstrate the 

existence of an express easement. Following the purchase and sale of Parcel 10 in 

2007, the latest point in time in which the 1927 lease terminated through the sale of 

the property to Acorn without an existing tenant, and because Acorn is not a 

successor in interest or assignee of City Ice, there was no easement appurtenant 

permitting Acorn access to the disputed driveway. Acorn’s use of the driveway arose 

through another mechanism.

Acorn’s opposition to the motion for judgment on the pleadings solely 

relied on a discussion of its entitlement to an implied easement. As such, Acorn 

preserved the issue for appellate review, and therefore, I cannot join the majority’s 

decision to affirm. Sanson’s entire argument is misplaced. Acorn does not, nor did 

it ever, have an express easement appurtenant entitling its use of Sanson’s driveway. 

The only person or entity entitled to assert the right of way declared in the 1927 lease 

agreement is a successor of City Ice or an assignee to the 1927 agreement. Acorn is 

neither. There are issues of fact and law in need of resolution, and this matter should 

be remanded for further proceedings. For the foregoing reasons, I dissent.