[Cite as Raines v. Hodgson , 2020-Ohio-3404.] IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BROWN COUNTY

ADAM C. RAINES, Appellee,

- vs -

CHRISTOPHER L. HODGSON, et al., Appellants. :

:

:

:

:

: CASE NO. CA2019-09-011

O P I N I O N

6/22/2020

CIVIL APPEAL FROM BROWN CO UNTY COURT OF COMMON PLEAS Case No. 2018-0156

Bruce S. Wallace, 108 South High Street, P.O. Box 467, Mt. Orab , Ohio 45154, for appellee Joseph Hale, 4156 McDermott Pond Creek Road, McDermott, Ohio 45 652, for appellants

HENDRICKSON, P.J. {¶1} Appellants, Christopher L. Hodgson and Sherri L. Hodgson ("the Hodgsons"), appeal from a judgment of the Brown County Court of Common Plea s entered in favor of appellee, Adam C. Raines, on Raines' claim for an implied easem ent by prior use, which allows Raines to use leach lines located on the Hodgsons' prope rty for his septic system. For the reasons set forth below, we affirm the trial court's de cision. {¶2} As relevant to the present appeal, in 1993, James and Mable Kit chen owned 11.386 acres of land in Sardinia, Washington Township, Brown Co unty, Ohio. The land,Brown CA2019-09-011

- 2 - which was vacant and undeveloped, was split into two plots, a w estern tract totaling 5.642 acres and an eastern tract, totaling 5.744 acres. The western tract was sold to the Hodgsons in 1993. The eastern tract was sold to the Hodgsons' good friends, David and Barbara Kirker, by land contract. {¶3} After receiving title to the western tract, the Hodgsons placed a manufactured home on the property and, in 1994, installed a septic system. The holding tank was placed on the western tract behind the manufactured home. However, th e leach lines for the septic system crossed over the property line onto the eastern tract ow ned by the Kirkers. There

was no written easement for the leach lines. {¶4} The Hodgsons eventually took over the Kirkers' payments under t he land installment contract. In 1994, ownership of the eastern tract was transferred to the Hodgsons, giving the Hodgsons title to both the eastern and wes tern tracts of land. In 1996, the Hodgsons sold 2.5 acres of the western tract to Iralyn Heri nger. The Hodgsons continued to maintain their residence on the remaining 3.142 ac res of the western tract of

land. {¶5} In 2001, Travis Lang expressed an interest in buying the remain ing 3.142

acres of the western tract where the manufactured home sat. Ho wever, due to certain "legal issues," Lang did not want to have the property put in his name . Thus, the property was to be sold to Lang's girlfriend, Lisa Highfield, in exchange for $ 90,000. According to Christopher Hodgson ("Christopher"), he and his wife were advis ed that lending for Highfield's purchase would not be approved unless the property had a functioning septic system that included leach lines. In order to ensure Highfield was able to obtain financing, Christopher claims an agreement was made with Lang wherein the parties would exchange equal amounts of land so that the property where the leach line s ran on the eastern tract would be deeded to Highfield, thereby becoming part of the west ern tract, and a portion ofBrown CA2019-09-011

- 3 - the western tract that encompassed road frontage would be deede d to the Hodgsons, thereby becoming part of the eastern tract. Lang was the party responsible for arranging and paying for the survey and documents required for this trans action. {¶6} Highfield closed on her purchase of the 3.142 western tract in February 2002. Christopher claims that at the time of closing, Lang informed H ighfield's lending bank and the Hodgsons that a survey had been completed and Lang would fo rward the necessary documents to the bank and to the Hodgsons the day after closing so that the issue with the leach lines could be resolved. The Hodgsons presumed that the necessary steps had been taken by Lang or else the bank would not have released the $90, 000 in funds to them. After the closing, the Hodgsons began to do limited maintenance on th e road frontage that was part of the western tract and Lang began mowing the grass in th e area where the leach lines were located on the eastern tract. Sometime later, the H odgsons learned that Lang had not had a survey completed or taken the necessary steps to transfer the land where the leach lines laid to the western tract. Nonetheless, Lang a nd Highfield continued to use the leach lines located on the Hodgsons' property until Highfie ld's property was foreclosed upon sometime around 2005. {¶7} After it was foreclosed upon, the manufactured home on the west ern tract sat vacant for a number of years. In 2011, Raines decided to purch ase the foreclosed property, which was in disrepair. Shortly before closing on the 3.142-ac re western tract, Raines learned that the leach lines for the property he was purchasing were located on the neighboring property owned by the Hodgsons. After discussing t he issue with Christopher and being told they would work something out, Raines purchased the property. From September 2011 to October 2017, Raines made repairs to the manu factured home sitting on the western tract. He and his family did not live on the pr operty, but Raines worked on the property weekly. During this time, Raines claimed the prop erty's septic systemBrown CA2019-09-011

- 4 - functioned properly. Shortly after Raines and his family moved into the renovated home in 2017, Raines claimed the Hodgsons dug up and cut the leach line s at the property line between the eastern and western tracts. The Hodgsons then park ed vehicles overtop of the leach lines. Raines claimed the Hodgsons' actions caused h is septic system to stop functioning properly, required his septic tank to be pumped a n umber of times, and caused his property to be cited as a public health nuisance by the Bro wn County Department of

Health. {¶8} On March 9, 2018, Raines filed suit against the Hodgsons, seeki ng a judgment declaring that he had a legal right to use the leach l ines located on the Hodgsons' property as he (1) had obtained an easement by prescription; (2 ) had obtained an easement by necessity; or (3) had an implied easement. He also sought m onetary damages for the Hodgsons' wrongful interference with the easement. The Hodgson s filed an answer, in which they admitted to capping the leach lines that extended fr om Raines' property onto their property and admitted to placing vehicles on top of the e xisting leach lines. They otherwise denied the allegations set forth in Raines' complaint

. {¶9} A trial before a magistrate was held on January 16, 2019, at wh ich time Stephen Dick, the Environmental Director with the Brown County Health Department, Raines, and Christopher testified. Dick testified that on Octo ber 18, 2017, after receiving a nuisance complaint, he inspected Raines' property and found tha t the leach lines for Raines' septic tank had been cut and capped at the property line betwee n Raines' property and the Hodgsons' property. Dick took a photograph of the capped lines and opined that the lines appeared to have been cut and capped "recently," or "within a m onth," because "the piping that was coming up out of the – the cap looked new." 1 Although he did not know the exact

1. The photograph Dick took of the capped leach lines was admi tted into evidence as the court's "Exhibit A."Brown CA2019-09-011

- 5 - date the lines had been cut and capped, he was "very comfortabl e" stating that the leach

lines had been cut off within a very short period of time befor e his inspection. {¶10} Dick also testified about the steps Raines would have to take t o bring the western tract up to code if Raines was unable to use the leach lines that ran onto the Hodgsons' property. Dick described two different systems that might be required by the county, noting that it would cost Raines between $7,000 and $15 ,000 to install a new system involving leach lines and between $20,000 and $30,000 to instal l a mound system. {¶11} Raines then testified about his purchase of the 3.142-acre west ern tract, his use of the septic system and leach lines during his repair of t he property, and the Hodgsons' actions in cutting the leach lines in 2017. Raines explained t hat he was advised of the location of the leach lines shortly before closing on the weste rn tract in 2011. He stated he went to view the property and found a ditch dug at the property line between the western tract and the Hodgsons' eastern tract. Although a ditch had be en dug, no leach lines were found by the Hodgsons at that time. Raines testified he spoke with Christopher about the leach lines running from the western tract onto the Hodgsons' p roperty and Christopher informed Raines that he intended to cut the lines. However, th e lines were not cut as Raines and Christopher reached an agreement. Raines testified, "we ta lked and everything, and I asked for – to work something out, and that's when he told me h e'd either give me an easement or sell me land, not to worry about it, we'll work som ethin' out." Operating on the "good faith of [his] neighbor's word that [they would] work som ething out," Raines went ahead and purchased the western tract in 2011. {¶12} Raines then began renovating the manufactured home. Although h e was not "fully liv[ing] there," he stayed at the property some nights a nd did weekly work on the property. Raines testified the septic system was functioning a ppropriately during the renovation process, stating "it was hooked up and I – stuff got put down the toilet and the –Brown CA2019-09-011

- 6 - the sink." During renovations, the septic tank never had to be pumped and Raines never saw any sewage seep out onto the ground. Raines testified that while renovating the property, he had a number of talks with Christopher about obtai ning an easement and was always advised by Christopher that "[they would] work somethin' out." Raines continued to use the septic system without incident until October 2017. {¶13} Raines and his family moved into the renovated property near th e end of September 2017. Shortly after this occurred, sometime in Octob er 2017, the Hodgsons brought a mini excavator onto their property and dug up, cut, a nd capped the leach lines near the property line separating their tract of land from Rain es' tract of land. The Hodgsons then parked a camper and portable shed near the property line, overtop of the leach lines. After this occurred, Raines started experiencing trouble with h is septic system. His tank, which he had never had to pump before, had to be pumped multipl e times. He also noticed that the ground near his septic tank had a wet, sewage smell to it. {¶14} Raines testified that it would be an extreme financial hardship for him and his family if they were forced to install an entirely new septic sy stem rather than being permitted

to continue to use the leach lines that were installed with the existing septic system for his property. He stated he has borrowed the maximum amount that he can against his property and is unable to borrow any additional funds to update or repla ce the septic system. {¶15} Christopher testified that after purchasing the western tract o f land in 1993, he placed the manufactured home on the property and installed t he septic system. While the septic tank was placed on the western tract behind the home , the leach lines were run onto the neighboring, eastern tract of land, which was owned by his friends, the Kirkers. He eventually purchased the eastern tract of land and sold off the western tract of land, with 2.5 acres of undeveloped land being sold in 1996 to Heringer an d 3.142 acres of land, which included the manufactured home, being sold in 2002 to Highfield

.Brown CA2019-09-011

- 7 - {¶16} Regarding the 2002 sale to Highfield, Christopher testified tha t it was really Highfield's boyfriend, Lang, who wanted to purchase the 3.142 a cres. To ensure that Highfield could get financing for the purchase of the property, Lang and Christopher reached an agreement regarding the leach lines that ran on the eastern tract of land owned by the Hodgsons. According to Christopher, Lang was supposed t o pay to have the land surveyed so that the land where the leach lines were located co uld be transferred to Highfield in exchange for the road frontage property on the wes tern tract being transferred to the Hodgsons. Despite Lang claiming that he had the land su rveyed and would provide the necessary documents to the bank and to the Hodgsons to faci litate the transfer, Lang never followed through and the land transfer never occurred. {¶17} Christopher testified that he cut the leach lines running from the western property onto his property in 2005, after Highfield went into f oreclosure. He claims Raines never had working leach lines when Raines bought the western pr operty and that he warned Raines of this fact before Raines' purchase. Christopher testi fied that after warning Raines about the leach lines, Raines said he would "work something out with [Christopher]." In response, Christopher said, "Do you think so?" and left the con versation at that. He denies that he agreed to work something out with Raines regarding the leach lines. {¶18} Christopher testified that although he cut the leach lines in 2 005, in 2017, he dug the lines back up so that he could put a cap on the leach l ines. He claimed he "put a 90 on it and put of piece of line, about this tall (indicating) , with a cap on it, to the top of the ground, so that [Raines] knew it was cutoff." According to Chr istopher, this newly placed cap is what Dick saw when he inspected the property line on Oct ober 18, 2017. {¶19} Following Christopher's testimony, the magistrate took the matt er under advisement and permitted the parties to file briefs as their cl osing arguments. On March 26, 2019, the magistrate issued a decision finding in favor of the Hodgsons on Raines'Brown CA2019-09-011

- 8 - claims for an easement by prescription, an easement by necessit y, and an implied easement by necessity. However, the magistrate found in favor of Raines on his claim for an implied easement by prior use. In doing so, the magistrate found Raines' testimony that the leach lines were cut in 2017 more credible than Christopher 's testimony that the lines were cut prior to Raines' purchase of the western tract. The m agistrate ordered the Hodgsons permit the leach lines to be reattached to [Raines'] septic system. The boundaries of the implied easement shall extend to ten feet on either side or end of the leach lines to enable the system to be properly serviced or repaired. The [Hodgsons] shall not erect any structure in the area of the easement, nor shall they park any vehicles in the area of the implied easemen t nor shall they interfere in any way at all with the use of [Rai nes'] implied easement. Raines' claim for damages for interference with the easement wa s denied by the magistrate. {¶20} The Hodgsons filed six objections to the magistrate's decision, objecting to four of the magistrate's findings of fact and to the magistrate 's conclusion of law regarding an implied easement by prior us e. The Hodgsons further objecte d to "findings of fact NOT made by the Magistrate" concerning their 2002 agreement with La ng about the exchange of property so that the land where the leach lines sat would be come part of the 3.142-acre western tract. The Hodgsons argued certain findings regarding this transaction should have been made by the magistrate as the findings were relevant to th e analysis of whether an implied easement by prior use existed. Raines filed a response to the Hodgsons' objections, arguing that the objections were without merit and should be overruled. On August 14, 2019, the trial court issued a decision overruling t he Hodgsons' objections and adopting the magistrate's decision in full, finding that "the M agistrate proper ly determined the factual issues and appropriately applied the law." {¶21} The Hodgsons appeal, raising seven assignments of error.Brown CA2019-09-011

- 9 - {¶22} Assignment of Error No. 1: {¶23} THE TRIAL COURT'S "ENTRY OVERRULING DEFENDANTS' OBJECTIONS TO MAGISTRATE'S DECISION," ON ITS FACE, FAILS TO SAT ISFY THE REQUIREMENT THAT THE TRIAL COURT CONDUCT AN INDEPENDENT REVIEW AS

TO THE OBJECTED MATTERS AND FAILS TO INDICATE THAT THE TRIAL CO URT

CONDUCTED AN INDEPENDENT REVIEW AS TO THE OBJECTED MATTERS AS REQUIRED BY CIVIL RULE 53(D)(4)(d). {¶24} In their first assignment of error, the Hodgsons argue the tria l court erred by adopting the magistrate's decision without conducting an indepe ndent review or ruling on their objections. They argue the trial court should have speci fically and individually addressed their objections, including their "objection to findi ngs of fact not made by the magistrate." {¶25} Civ.R. 53(D)(4)(d) provides that [i]f one or more objections to a magistrate's decision are time ly filed, the court shall rule on those objections . In ruling on objections, the court shall undertake an independent review as to the objected matters to ascertain that the magistrate has properly determined the factual issues and appropriately applie d the law. Before so ruling, the court may hear additional evide nce but may refuse to do so unless the objecting party demonstrates that the party could not, with reasonable diligence, have produced that evidence for consideration by the magistrate. (Emphasis added.) {¶26} Therefore, "Civ.R. 53(D)(4)(d) imposes a mandatory duty on the trial court to dispose of a party's timely-filed objections to a magistrate's decision." Lynch v. Lynch , 12th Dist. Warren No. CA2006-12-145, 2007-Ohio-7083, ¶ 8. Although not required to " address each and every portion of an objection raised by [a] party," th e court is nonetheless required

to " rule on each objection." (Emphasis sic.) Pietrantano v. Pietrantano , 12th Dist. Warren No. CA2013-01-002, 2013-Ohio-4330, ¶ 20. A trial court's failu re to rule on objections andBrown CA2019-09-011

- 10 - to conduct an independent review of the magistrate's decision a s required by Civ.R. 53(D)(4)(d) constitutes an abuse of discretion. Ohio Bar Liab. Ins. Co. v. CCF Dev., LLC , 12th Dist. Butler Nos. CA2017-12-170 and CA2017-12-175, 2018-Oh io-3988, ¶ 22. {¶27} "Ordinarily, a reviewing court will presume that the trial cour t performed an independent review of the magistrate's decision." Id . at ¶ 23, citing Kairn v. Clark , 12th Dist. Warren Nos. CA2013-06-059 and CA2013-08-071, 2014-Ohio-1890, ¶ 11. Therefore, "the party asserting error bears the burden of affirmatively demonst rating the trial court's failure to perform its duty of independent analysis." Pietrantano at ¶ 14. "[S]imply because a trial court adopted the magistrate's decision does not mean that the court failed to exercise independent judgment." Id. "A trial court may adopt a magistrate's decision in whole or in part pursuant to Civ.R. 53(D)(4)(b) so long as the court fully agrees with the magistrate's findings 'after weighing the evidence itself and fully substitu ting its judgment for that of the [magistrate.]'" Kairn at ¶ 11, quoting Pietrantano at ¶ 14. {¶28} The Hodgsons' arguments that the trial court failed to conduct an independent review of the magistrate's decision or rule on their objections is without merit. In the trial court's entry overruling the Hodgsons' objections and adopting the magistrate's decision, the court stated it had reviewed the trial transcript, the exhi bits admitted at trial, the memoranda of counsel, and the supplemental memorandum of the pa rties. The court then ruled on all of the Hodgsons' fa ctual objections, stating: After reviewing the transcript, the Court finds that the Findin gs of Fact are consistent with the testimony of all the witnesses. The Magistrate obviously chose not to believe all of the testimony of the Defendants [sic]. The validity of those findi ngs is clearly revealed by a thorough reading of the transcript. T he objections to the Findings of Fact are overruled in their entir ety. 2

2. The Hodgsons argue the court's statement that the magistrat e "chose not to believe all of the testimony of the Defendants " demonstrates the court did not conduct an independent review of the record because, if it had, the court would have realized only one of the defendants – Christopher Hodgson – had testified at trial. We find the trial court's reference to the "testimony of the De fendants" was a typographical error rather than a statement that both Christopher and Sherri Hodgson had testif ied at trial.Brown CA2019-09-011

- 11 - {¶29} The court further ruled on the Hodgsons' objection to the magis trate's legal conclusion that Raines had established an implied easement by p rior use and ruled on their objection to certain findings of fact not being made regarding Raines' and Christopher's interactions over the years, Raines' interactions with his real estate agent in 2011 before purchasing the western tract, and the Hodgsons' 2002 agreement with Highfield and Lang. In rejecting these objections, the trial court stated, in relev ant part, as follows: The Court further having made an independent review of the facts and law pursuant to Civ.R. 53(D)(4) of the Ohio Rules of Civil Procedure and legal analysis that the Magistrate applied during his decision-making, finds that the Magistrate properly determined the factual issues and appropriately applied the law

. (Emphasis added.) {¶30} Although the trial court may not have discussed the Hodgsons' o bjections in as much detail as the Hodgsons would have liked, the record non etheless reflects that the trial court conducted an independent review of the magistrate's decision and ruled on all of the objections. We therefore find no merit to the Hodgsons' ar guments and overrule their first assignment of error. {¶31} Assignment of Error No. 2: {¶32} THE TRIAL COURT'S FINDING THA T "THE MAGISTRATE PROPERLY

DETERMINED THE FACTUAL ISSUES" IS ERRONEOUS RELATIVE TO THE

MAGISTRATE'S FINDING OF FACT NUMBER 10 IN THAT THE AGREEMENT BE TWEEN THE "INTERIM OCCUPANT" AND THE DEFENDANT[S]-APPELLANTS CONTEMPLATED A TRANSFER OR EXCHANGE O[F] LAND AND NOT AN EASEME NT. {¶33} In their second assignment of error, the Hodgsons argue the tri al court erred in overruling their objection to "Finding of Fact Number 10," a rguing that the finding is not supported by the record. {¶34} In "Finding of Fact Number 10," the magistrate found as follows : "There wasBrown CA2019-09-011

- 12 - an interim occupant of Plaintiff's land after the Defendants mo ved next door. That person was supposed to have a survey done and recorded so that an easement could be recorded. That never happened." (Emphasis added.) {¶35} As a general rule, the trial court, as the trier of fact is "be st able to view the witnesses, observe their demeanor, gestures, and voice inflecti ons, and use those observations in weighing the credibility of witnesses." Cadwallader v. Scovanner , 178 Ohio App.3d 26, 2008-Ohio-4166, ¶ 9 (12th Dist.), citing Seasons Coal Co., Inc. v. Cleveland , 10 Ohio St.3d 77 (1984). As such, "a reviewing court will presume that the trial court's findings

of fact are accurate." Id

. {¶36} The "interim occupant of Plaintiff's land" mentioned in Finding of Fact Number 10 referred to Highfield and Lang. Though the magistrate state d the "interim occupant" was supposed to have a survey completed so that "an easement could be recorded," there was no testimony presented at trial indicating that the survey was to result in an express easement. Rather, the testimony presented at trial indicated t hat Lang was to pay to have the land surveyed so that the land where the leach lines were l ocated on the eastern tract could be transferred to Highfield in exchange for road frontage on the western tract being transferred to the Hodgsons. As the magistrate noted, the surv ey and transfer of land never

occurred. {¶37} We find that the trial court erred in overruling the Hodgsons' objection to Finding of Fact Number 10 to the extent that the finding referr ed to an effort to obtain an express easement. However, we find that this error was harmles s as it did not affect the analysis of whether an easement by prior use was established. As discussed in further detail in our resolution of the seventh assignment of error, re gardless of whether a future easement or a future land transfer was intended, the fact remai ns that at the time the 3.142 acres was severed and sold, the parties operated with an unders tanding that HighfieldBrown CA2019-09-011

- 13 - would use the existing septic system on the western property, i ncluding the leach lines that traveled onto the eastern property. Then, despite Lang not hav ing a survey completed or seeking to have the land transferred, he and Highfield were per mitted continued, uninterrupted use of the leach lines at all times that they wer e on the property. {¶38} Accordingly, as the factual error made by the magistrate did no t affect the outcome of the proceedings, we find that the trial court commit ted harmless error in overruling the Hodgsons' objection to Finding of Fact Number 10 . The Hodgsons' second assignment of error is overruled. {¶39} Assignment of Error No. 3: {¶40} THE TRIAL COURT'S FINDING THA T "THE MAGISTRATE PROPERLY

DETERMINED THE FACTUAL ISSUES" IS ERRONEOUS RELATIVE TO THE

MAGISTRATE'S FINDING OF FACT NUMBER 11 IN THAT THE MAGISTRATE'S

FINDING THAT THE PLAINTIFF-APPELLEE "ELECTED TO CLOSE ON THE SA LE"

EVEN THOUGH HE WAS "FULLY AWARE OF THE ISSUE WITH THE LOCATION OF

THE LEACH LINES" BECAUSE "HE WAS OF THE BELIEF THAT EVERYTHING WAS

WORKED OUT" IN THAT THIS FINDING OF FACT WAS NOT SUPPORTED BY T HE

TESTIMONY AND EVIDENCE AT TRIAL. {¶41} In their third assignment of error, the Hodgsons argue the tria l court erred in overruling their objection to "Finding of Fact Number 11," argu ing that the finding is not supported by the record. {¶42} In "Finding of Fact Number 11," the magistrate found that "[a]t the time the Plaintiff closed on the purchase of his property, he admits tha t he was fully aware of the problem with the location of the leach lines, and he elected to close on the sale because he was of the belief that everything was worked out. " (Emphasis added.) The Hodgsons maintain that the evidence admitted at trial does not support t he idea that Raines closed onBrown CA2019-09-011

- 14 - the property because he believed everything had been worked out . In support of their contention, the Hodgsons' rely on Christopher's testimony that he and Raines had not reached an agreement when they discussed the leach lines before Raines' purchase of the 3.142-acre western tract. They also point to testimony from Ra ines that sometime after his purchase, around 2012 or 2013, he hired an attorney and attempt ed to obtain an express easement or to buy the land where the leach lines laid as evide nce that there was never an agreement reached between the parties prior to Raines' 2011 pur chase. {¶43} Christopher's testimony about whether an agreement was reached conflicted with Raines' testimony on the issue. Raines testified that pri or to his purchase of the western tract, he and Christopher talked and the two reached an agreement. Raines stated, "we talked and everything, and I asked for – to work something out, and that's when he told me he'd either give me an easement or sell me land, not to worr y about it, we'll work somethin' out." Raines further explained that he only contacte d an attorney in 2012 or 2013 because he "wanted to get something in writing." {¶44} The trier of fact bears the burden of assessing the credibility and veracity of the witnesses and, as such, "is free to believe all, part, or n one of the testimony of each

witness." Bartells v. Bertel , 12th Dist. Butler No. CA2016-11-216, 2018-Ohio-21, ¶ 63. The magistrate found Raines' testimony about this issue to be more credible than Christopher's testimony. As there was competent and credible evidence in the record to support the magistrate's Finding of Fact Number 11, the trial court did not err in overruling the Hodgsons' objection to it. The H odgsons' third assignment of e rror is overruled. {¶45} Assignment of Error No. 4: {¶46} THE TRIAL COURT'S FINDING THA T "THE MAGISTRATE PROPERLY

DETERMINED THE FACTUAL ISSUES" IS ERRONEOUS RELATIVE TO THE

MAGISTRATE'S FINDING OF FACT NUMBER 12 IN THAT THE PORTION OF T HEBrown CA2019-09-011

- 15 - MAGISTRATE'S FINDING OF FACT NUMBER 12 WHERE THE MAGISTRATE FOU ND

THAT "THE PLAINTIFF USED THE SEPTIC SYSTEM DURING THE TIME HE W AS

REHABILITATING THE PROPERTY AND ALWAYS FOUND IT TO BE IN PROPER

WORKING ORDER" WAS NOT SUPPORTED BY THE TESTIMONY AND EVIDENCE AT

TRIAL. {¶47} In their fourth assignment of error, the Hodgsons argue the tri al court erred in overruling their objection to "Finding of Fact Number 12," argu ing that the finding is not supported by the record. {¶48} In "Finding of Fact Number 12," the trial court stated that "[t ]he property purchased by the Plaintiff was not in good repair, and it took Plaintiff several years to rehabilitate the property so that it was habitable. He did not have it in livable condition until

2017. The Plaintiff used the septic system during the time he wa s rehabilitating his property and always found it to be in proper working order. " (Emphasis added.) The Hodgsons contend that the evidence admitted at trial does not support th e finding that the septic system was always in proper working order, as the court relied solely on Raines' testimony, which "oversimplifie[d] the rehabilitation process" and was, at times, contradictory. The Hodgsons' point to various points in Raines' testimony wherein he states that he began using the septic system in 2011, after taking possession of the property, but then indicates that he did not have the water to the property turned on until after replacing the home's plumbing in 2013. The Hodgsons contend that "[w]ithout an infl ow of water, there was no way for the plaintiff [t]o know if the septic system worked in 2011." {¶49} We find that the trial court did not err in overruling the Hodg sons' objection to Finding of Fact Number 12 as there was competent and credible e vidence in the record to support the magistrate's finding that the septic system worked during Raines' renovation of the property. Raines' testimony, as found credible by the trie r of fact, established that theBrown CA2019-09-011

- 16 - septic system worked properly for several years while Raines' w orked to repair and renovate the property. Regardless of whether 2011 or 2013 is u sed as the point in time when Raines began using the septic system, there was sufficient credible evidence for the magistrate and trial court to conclude that the septic system w as working properly until the leach lines were cut in 2017. Accordingly, the trial court did not err in overruling the Hodgsons' objection to Finding of Fact Number 12, and the Hodgs ons' fourth assignment

of error is overruled. {¶50} Assignment of Error No. 5: {¶51} THE TRIAL COURT'S FINDING THA T "THE MAGISTRATE PROPERLY

DETERMINED THE FACTUAL ISSUES" IS ERRONEOUS RELATIVE TO THE

MAGISTRATE'S FINDING OF FACT NUMBER 13 IN THAT FINDING OF FACT 13

CONTAINED FACTUAL ERRORS THAT WERE CLEARLY IN CONFLICT WITH AND

CONTRADICTED BY THE EVIDENCE AND TESTIMONY AT TRIAL. {¶52} In their fifth assignment of error, the Hodgsons argue the tria l court erred in overruling their objection to "Finding of Fact Number 13," argu ing that the finding is not supported by the record. {¶53} In "Finding of Fact Number 13," the trial court found as follow s: There appears to be only one disputed fact. The Defendant [Christopher Hodgson] claims that he capped off the leach lines in 2011 . The Plaintiff claims that they were cut off in 2017. The Court accepts the Plaintiff's version. This is based on the fa ct that the system worked with no problem before 2017 and the sudden necessity of repeatedly needing to pump out the septic tank since 2017. The Defendants' [sic] Exhibit "A" showing the capped leach lines in 2017 make it clear to the Court that the lines had only recently been severed. The ground in the area was not discolored by effluent nor was there any moisture detected. Either or both of those conditions would be expected if the lines had been inoperative for about six years. (Emphasis added.)Brown CA2019-09-011

- 17 - {¶54} The Hodgsons argue that the evidence admitted at trial does not support the magistrate's finding that Christopher claimed to have capped th e leach lines in 2011. They note that Christopher's trial testimony indicated he severed th e leach lines in 2005 and then re-dug up the lines in 2017 in order to place a cap on the ends of the previously severed lines. The Hodgsons also take issue with the magistrate's refe rence to "Exhibit A," noting that "Exhibit A" was a court exhibit, not an exhibit offered in to evidence by the defendants. This exhibit was a photograph taken by Dick, who examined Raine s' property in October 2017 and observed the severed and capped leach lines running on the Hodgsons' property. The Hodgsons' take issue with Dick's testimony that the leach l ines appeared to have been cut and capped "recently" or "within a month" of his inspection of the property. They contend that the magistrate should not have relied on Dick's testimony because Dick "could not make a determination of when the leach lines were actually seve red" and the photograph was only relevant to show that the leach lines had been capped recently – a fact consistent with Christopher's testimony. The Hodgsons argue the magistrat e erred by "confus[ing] the act of capping the leach lines with severance of the leach line s." {¶55} The Hodgsons are correct in their assertion that Christopher te stified he cut the leach lines in 2005 and then re-dug the leach lines in 2017 to cap them. To the extent that the magistrate indicated Christopher "capped the leach lin es in 2011," this was error as there is no evidence in the record to support this statement . However, the error was harmless, as the trial court clearly believed Raines' testimony that the leach lines were both cut and capped in October 2017, after Raines and his family mov ed onto the western tract full-time. The magistrate, as the original trier of fact, was in the best position to observe Raines' and Christopher's demeanors, gestures, and voice inflec tions, and assess their credibility at trial. The magistrate chose to believe Raines' testimony that the septic system worked properly until 2017, when the lines were cut and capped by Christopher. The trialBrown CA2019-09-011

- 18 - court, after an independent review of the record, agreed. We w ill not second-guess this determination, especially as there was other competent and cred ible evidence presented at trial to support the magistrate's finding that the leach lin es had been cut in 2017. {¶56} Specifically, Dick's testimony and the photograph taken by him on October 18, 2017, which was admitted as the court's "Exhibit A," suppor ted the magistrate's determination that the leach lines were cut and capped in 2017. Although Dick did not know the exact date the leach lines had been cut, he testified he wa s "very comfortable" stating that the lines had been cut-off within a very short period of t ime before his October 18, 2017 inspection. Dick had a conversation with Christopher about the leach lines in 2017. Notes

Dick took about this conversati on indicated the following: Spoke to Mr. Chris Hodgson in the Brown County Health Department Office. He told me that he dug up and capped the septic lines. That he would not make any repairs to the septic system. Would take a set of plows to the whole leach field, if he lost the court case. Told him the best solution would be to re pair the existing leach field with proper permits and let the courts decide who was in the right. {¶57} Furthermore, "Exhibit A" allowed the magistrate a view of what the leach lines and property surrounding the leach lines looked like on October 18, 2017. Relying on this picture, Raines' testimony, and Dick's testimony the magistrate determined that Raines' version of events was more credible than Christopher's version. As competent and credible evidence existed to support the magistrate's decision that the leach lines had "only recently been severed" in October 2017, we find that the trial court did not err in overruling the Hodgsons' objection to Finding of Fact Number 13. The Hodgsons ' fifth assignment of error is, therefore, overruled. {¶58} Assignment of Error No. 6: {¶59} THE TRIAL COURT'S FINDING THA T "THE MAGISTRATE PROPERLY

DETERMINED THE FACTUAL ISSUES" IS ERRONEOUS IN THAT THE TRIAL C OURTBrown CA2019-09-011

- 19 - COMPLETELY FAILED TO ADDRESS THE DEFENDANT[S]-APPELLANTS' SIXTH

OBJECTION TO THE MAGISTRATE'S FINDINGS OF FACT RELATIVE TO FIND INGS OF

FACT NOT MADE BY THE MAGISTRATE. {¶60} In their sixth assignment of error, the Hodgsons argue the tria l court erred by overruling their sixth objection to the magistrate's decision, wherein they asserted that the magistrate failed to make certain factual findings they believe were necessary to a resolution of Raines' claim for an easement by prior use. Spec ifically, the Hodgsons contend that the trial court failed to address their arguments that additional findings of fact should have been made relating to Raines' and Christopher's int eractions over the years, Raines' interactions with his real estate agent in 2011 before purchasing the western tract, and the Hodgsons' 2002 agreement with Highfield and Lang. {¶61} We have already addressed the Hodgsons' argument that the trial court failed to rule on and specifically address their objections to the mag istrate's decision, including their sixth objection. For the reasons set forth in our resolu tion of the Hodgsons' first assignment of error, we find no merit to their argument that th e court failed to rule on their sixth objection. The trial court addressed and overruled the Hodgsons' sixth objection when it stated, in relevant part, that "[t]he objections to the Findings of Fact are overruled in their entirety," that "the Magistrate properly determined th e factual issues and appropriately applied the law," and that "Defendants' Objection s filed on April 8, 2019, Defendants' Amended Objections filed on April 9, 2019, and Defe ndants' Supplement to Defendants' Amended Objections filed on July 5 are hereby overr uled." {¶62} To the extent that the Hodgsons' contend that additional findin gs of fact were necessary to the resolution of Raines' claim for an implied eas ement for prior use, we reject their argument. The findings of fact made by the magistrate, w hich were later adopted in full by the trial court, were sufficient to resolve Raines' cla ims for an easement. TheBrown CA2019-09-011

- 20 - Hodgsons' sixth assignment of error is, therefore, overruled. {¶63} Assignment of Error No. 7: {¶64} THE TRIAL COURT'S FINDING THAT "THE MAGISTRATE

APPROPRIATELY APPLIED THE LAW" IS ERRONEOUS RELATIVE TO CONCLUS ION OF LAW (C)(2) IN THAT THE MAGISTRATE CONSPICUOUSLY FAILED TO CO NSIDER

"WHAT MUST HAVE BEEN THE REAL INTENT OF THE PARTIES" RELATIVE T O A CLAIM OF "IMPLIED EASEMENT BY PRIOR USE," PURSUANT TO CADWALLADER V.

SCOVANNER , IN FINDING THAT THE PLAINTIFF-APPELLEE HAD ESTABLISHED A CLAIM OF "IMPLIED EASEMENT BY PRIOR USE," WAS CLEARLY NOT SUPPO RTED BY THE EVIDENCE AND TESTIMONY, AND WHICH WAS PREJUDICIAL TO THE DEFENDANT[S]-APPELLANTS, WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE AND IS REVERSIBLE ERROR. {¶65} In their seventh assignment of error, the Hodgsons argue the tr ial court's finding of an implied easement by prior use for the leach lines is against the manifest weight of the evidence and that the trial court erred by not sustainin g their objection to the "Magistrate's Conclusion of Law (C)(2)" regarding this issue. The Hodgsons further argue that the magistrate and trial court failed to correctly apply t he law regarding implied easements by prior use, as set forth in Cadwallader v. Scovanner , 2008-Ohio-4166, as neither the magistrate nor the trial court considered the "real intent of the parties" at the time the 3.142-acre western plot was sold by the Hodgsons. {¶66} "When evaluating whether a judgment is against the manifest wei ght of the evidence in a civil case, the standard of review is the same as in the criminal context." Ford

v. West , 12th Dist. Fayette No. CA2017-11-025, 2018-Ohio-2626, ¶ 9; Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 17. Thus, a reviewing co urt weighs the evidence and all reasonable inferences, c onsiders the credibility of the witnesses, and determinesBrown CA2019-09-011

- 21 - whether in resolving conflicts in the evidence, the finder of f act clearly lost its way and created such a manifest miscarriage of justice that the judgmen t must be reversed and a

new trial ordered. Carson v. Duff , 12th Dist. Fayette Nos. CA2017-03-005 and CA2017-03- 007, 2017-Ohio-8199, ¶ 11, citing Eastley at ¶ 20. "When reviewing the decision of a trial court as to whether an easement exists, an appellate court will not reverse the judgment as being against the manifest weight of the evidence if the judgme nt of the trial court is based on some competent, credible evidence going to all essential ele ments of the case."

Cadwallader , 2008-Ohio-4166 at ¶ 9. See also Carson at ¶ 11. {¶67} "An easement * * * [is] 'a right without profit, created by gra nt or prescription, which the owner of one estate [called the dominant estate] may exercise in or over the estate of another [called the servient estate] for the benefit of the former.'" Trattar v.

Rausch , 154 Ohio St. 286, 291 (1950), quoting Yeager v. Tuning , 79 Ohio St. 121, 124 (1908) . Easements may be created by an express grant, by implication , or by prescription. Cadwallader at ¶ 10. "Implied easements are based on the principle that w hen an individual conveys property, he also conveys whatever is necessary for the use and enjoyment of that property." Yowonske v. MDB Constr. Co. , 7th Dist. Belmont No. 09 BE 10, 2010-Ohio4185, ¶ 17, citing Deyling v. Flowers , 10 Ohio App.3d 19 (8th Dist.1983), paragraph two of the syllabus. "In Ohio, 'implied easements are not favored bec ause they are in derogation of the rule that written instruments speak for themselves.'" Cadwallader at ¶ 10, quoting

Trattar at 291. Nonetheless, "a party that clearly demonstrates that it has acquired a right to use the land of another may establish an easement by implica tion." Id. {¶68} There are two types of implied easements: an implied easement by necessity and an implied easement by prior use. Id. at ¶ 14. Though the elements are the same for both types of implied easements, "different standards apply whe n analyzing the third

element." Id . at ¶ 14. As the present case centers around the trial court' s finding of anBrown CA2019-09-011

- 22 - implied easement by prior use, we limit our analysis to this is sue. {¶69} To establish an implied easement, the plaintiff must present cl ear and convincing evidence of the following elements: (1) a severance of the unity of ownership in an estate; (2) that before the separation takes place, the use which gives rise to the easement shall have been so long continued and obvious or manif est as to show that it was meant to be permanent; (3) that the easement is reasonably nece ssary to the beneficial enjoyment of the land granted or retained; and (4) that the ser vitude is continuous as distinguished from a temporary or occasional use only. Cadwallader at ¶ 15, citing Campbell v. Great Miami Aerie No. 2309, Fraternal Order of Eagles , 15 Ohio St.3d 79 (1984). See also Ciski v. Wentworth , 122 Ohio St. 487 (1930), paragraph one of the syllabus. "Considered in conjunction with the four necessary e lements, an implication via prior use is based on the theory that 'where an owner of land m akes apparent, permanent, and necessary use of one part of his land in favor of another p art, and transfers either or both parts, the grant or reservation of an easement to continue such existing use will be implied.'" Cadwallader at ¶ 36, quoting Freiden v. Western Bank & Trust Co. , 72 Ohio App. 471, 475 (1st. Dist.1943). Therefore, "[a]n analysis of an imp lied easement necessitates

consideration of both the owner's intent at severance as well a s what occurs between subsequent owners of the dominant and servient estates." Id. at ¶ 17, citing Campbell at

81. {¶70} The first of the four elements required for establishing an imp lied easement by prior use, that there be severance of a prior unified estate , was proven at trial. The record clearly reflects the prior unity of title and reveals th e subsequent severance of that title leading to the present dispute. The Kitchens first owned the unified property before severing the estate in 1993. Subsequently, ownership of the pr operty was reunified when the Hodgsons took possession of the eastern and western tracts of land in 1994. TheBrown CA2019-09-011

- 23 - Hodgsons used the whole of the property upon retaining ownershi p in 1994. They later split the estate, selling 2.5 acres of undeveloped land from the west ern tract to Heringer in 1996 and selling the remaining 3.142-acres of the western tract to H ighfield in 2002, which included the manufactured home and septic system the Hodgsons i nstalled on the property in 1994. The Hodgsons retained ownership of the eastern tract of land. {¶71} Turning to the second element required for an implied easement, the supreme court has recognized that "[f]or a use to be permanent in chara cter * * * a mere temporary provision or arrangement made for the convenience of the entire estate will not constitute that degree of permanency required to burden the property with a continuance of the same when divided or separated by conveyance to different parties." Trattar , 154 Ohio St. at 292. "Instead, the use must be continuous, apparent, permanent, and necessary to the use and enjoyment of the land. * * * Use will be considered apparent wh en it is 'plainly visible.'" Cadwallader , 2008-Ohio-4166 at ¶ 16, citing Campbell at 81. Furthermore, "an easement may be apparent even though it is not readily visible if it may been seen or known on a careful inspection of the premises by a person ordinarily conve rsant with the subject." Campbell at 81. {¶72} The trial court concluded that before the Hodgsons' separation of the eastern and western tracts, the use of the leach lines giving rise to t he easement was "long

continued and obvious or manifest as to show it was meant to be permanent." We find competent, credible evidence was admitted to support this findi ng. Christopher and Raines testified at trial that when the Hodgsons had the septic system installed on the western property in 1994, they chose to run the leach lines across the property line onto the eastern tract of land. This was not a problem for the Hodgsons, as the y intended to take ownership of the eastern plot of land, and, at the beginning of February 1994, they did take ownership of the land from their friends, the Kirkers. From 1994 to 2002 , the Hodgsons personallyBrown CA2019-09-011

- 24 - used the leach lines that ran from their home onto the eastern tract of land. Then in 2002, they sold the western tract of land to Highfield, who continued to use the leach lines that ran onto the eastern tract of land until her ownership was fore closed upon sometime in

2005. {¶73} The Hodgsons' eight years of use of the leach lines before seve rance of the western tract from the eastern tract is long enough to establis h permanency. As we have previously noted, "[u]nlike a prescriptive easement, which requ ests strict adherence to continual use for 21 years, an implied easement does not requir e passage of any set

amount of time." Cadwallader , 2008-Ohio-4166 at ¶ 23. Rather, "the use which gives rise

to the easement shall have been so long continued and obvious or manifest as to show that it was meant to be permanent ." (Emphasis sic.) Id. Use of the leach lines running on the eastern property for the proper functioning of the septic syste m was apparent and known by the Hodgsons – and by every individual who took ownership of the 3.142-acre western tract subsequent to the Hodgsons. The second element required for an implied easement by prior use was therefore established by clear and convincing evidence. {¶74} With respect to the third element required for an implied easem ent by way of prior use, "a court will apply a reasonably necessary standard. " Cadwallader at ¶ 37, citing Martin v. Sheehy , 33 Ohio App.3d 332 (11th Dist.1986). That is to say that "'[ t]he law relating to implied easements based upon an existing and prior use does not require [a court] to entertain the alternative possibilities.'" Id. , quoting Mapes v. Smith , 8th Dist. Cuyahoga No. 81065, 2003-Ohio-428, ¶ 23. 3 A plaintiff need only show that the easement is "reasonably necessary to the beneficial enjoyment of the lan d granted or retained." Id.

3. Compare the third element in a claim for an implied easemen t by prior use to that of a claim for an implied easement by necessity. In the later, the individual claiming a n easement must show that the easement is strictly necessary rather than reasonably necessary. Tiller v, Hinton , 19 Ohio St.3d 66, 69 (1985); Cadwallader v. Scovanner , 178 Ohio App.3d 26, 2008-Ohio-4166, ¶ 30 (12th Dist.).Brown CA2019-09-011

- 25 - at ¶ 15. {¶75} The testimony submitted at trial demonstrated Raines consistent ly used the leach lines after purchasing the 3.142-acre western tract in 20 11. Raines testified the leach lines were functioning properly during his renovations of the m anufactured home. He stated, "it was hooked up and I – stuff got put down the toilet and the – the sink." During the renovation process, which spanned from his purchase in 2011 until the time he and his family moved into the home on a full-time basis near the end of September 2017, the septic system, including the leach lines, worked properly. Raines did not see any sewage seep out onto the ground and he did not need to have the septic tank pumped. However, beginning in October 2017, after the Hodgsons cut and capped th e leach lines, Raines started experiencing trouble with his septic system. His septi c tank had to be pumped multiple times and the ground near his tank had a wet, sewage s mell to it. {¶76} Dick, the Health Department's Environmental Director who inspec ted Raines' septic system on October 18, 2017, testified that the leach lin es had been cut-off within a very short period of time before his inspection. As a result o f the leach lines being cut, Raines did not have a properly functioning waste system and ste ps would need to be taken to bring the western tract up to code. Dick described two diff erent systems that the county could require Raines to install at his property, noting that it would cost Raines between $7,000 and $15,000 to install a new system involving leach line s and between $20,000 and $30,000 to install a mound system. Raines explained it would b e an extreme financial hardship if he were not permitted to use the existing leach lin es, as he had borrowed the maximum amount of money that he could borrow against the proper ty and would be unable to borrow any additional funds to update or replace the septic system. Raines' and Dick's testimony supports the trial court's conclusion that the easeme nt was reasonably necessary for Raines to have beneficial use of his property.Brown CA2019-09-011

- 26 - {¶77} The fourth element that must be established to show an implied easement by prior use is that the servitude was in continuous use, and not merely in temporary or occasional use. The testimony submitted at trial demonstrated that the leach lines running onto the eastern property have been used by every individual wh o has lived in the

manufactured home on the western tract since 1994. After the H odgsons sold the property to Highfield, she and Lang used the leach lines attached to the home's septic tank. After the property was foreclosed upon and purchased by Raines, he to o used the leach lines – first during renovations of the property and then when he and h is family moved into the property. Continuous use of the leach lines was stopped only w hen the Hodgsons cut and capped the leach lines in October 2017. The record, therefore, supports the trial court's

conclusion that the use had been continuous. 4 {¶78} Despite the aforementioned evidence supporting the existence of an easement by prior use, the Hodgsons argue the magistrate and tr ial court erred by failing to consider the "real intent of the parties" at the time the Ho dgsons sold the western tract of land to Highfield in 2002. As we've previously recognized, "[a]n analysis of an implied

easement necessitates consideration of both the owner's intent at severance as well as what occurs between subsequent owners of the dominant and servi ent estates." Cadwallader , 2008-Ohio-4166 at ¶ 17, citing Campbell at 81. {¶79} We find that the magistrate and trial court did consider the Ho dgsons' intent at the time of severance, as well as their actions and behavior s after the time of severance. The record reflects that the Hodgsons permitted Highfield and L ang to use the leach lines

4. Within their seventh assignment of error, the Hodgsons cont inue to challenge certain factual findings made by the magistrate and adopted by the trial court, arguing that these findings were erroneous and "erode the legal basis" for the court's determination that Raines establis hed an implied easement by prior use. We previously addressed the Hodgsons' arguments regarding the find ings of fact made by the magistrate and adopted by the trial court in our resolution of the Hodgsons' s econd through sixth assignments of error. To the extent the Hodgsons repeat their arguments in their seventh assignment of error, we overrule their arguments for the reasons set forth above.Brown CA2019-09-011

- 27 - after transfer of the property in 2002, despite the fact that L ang did not have a survey done

or seek to transfer the land where the leach lines were located to Highfield in exchange for the road frontage property on the western tract being transferr ed to the Hodgsons. The Hodgsons permitted Highfield and Lang continued use of the leac h lines at all times they possessed the property. When Raines sought to purchase the wes tern tract, Christopher and Raines reached an agreement for the western tract's continu ed use of the leach lines. Raines testified he and Christopher talked and worked things ou t, with Christopher telling Raines, "he'd either give me an easement or sell me land, not t o worry about it." After Raines purchased the property, from 2011 to September 2017, Rai nes continued to openly

use the leach lines without incident. It was not until October 2017 that the Hodgsons took action to prevent the owner of the western tract from using the leach lines. {¶80} Given the foregoing circumstances, we find that the trial court 's determination that Raines established an implied easement by prior use for th e leach lines located on the Hodgsons' property was supported by the manifest weight of the evidence. The trial court did not error in overruling the Hodgsons' objection to the magi strate's "Conclusion of Law (C)(2)," which found in favor of Raines on his claim for an imp lied easement by prior use. The Hodgsons' seventh assignment of error is, therefore, overru led. {¶81} Judgment affirmed.

S. POWELL and RINGLAND, J., concur.