[Cite as Delaware Golf Club, L.L.C. v. Dornoch Estates Homeowners Assn., Inc., 2020-Ohio-880.]

COURT OF APPEALS 

DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

DELAWARE GOLF CLUB, LLC : JUDGES: 

 : 

 : Hon. William B. Hoffman, P.J. 

 Plaintiff-Appellant : Hon. John W. Wise, J. 

 : Hon. Patricia A. Delaney, J. 

-vs- : 

 : Case No. 19 CAE 04 0027 

 : 

DORNOCH ESTATES 

HOMEOWNERS ASSOCIATION, INC., 

ET AL. 

: 

: 

: 

 : 

 : 

 Defendants-Appellees : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court 

of Common Pleas, Case No. 16 CVH 08 

0532 

JUDGMENT: AFFIRMED 

DATE OF JUDGMENT ENTRY: March 5, 2020 

APPEARANCES: 

For Plaintiff-Appellant: For Defendants-Appellees: 

 

KARL H. SCHNEIDER D. WESLEY NEWHOUSE 

TODD A. LONG MICHEL JENDRETZKY 

21 E. State St., Suite 1700 3366 Riverside Dr., Suite 103 

Columbus, OH 43215 Columbus, OH 43221 

 

 GREGORY H. MELIC 

 1160 Dublin Rd., Suite 400 

 Columbus, OH 43215 
Delaware County, Case No. 19 CAE 04 0027 2 

Delaney, J. 

{¶1} Plaintiff-Appellant Delaware Golf Club, LLC appeals the March 5, 2019 

judgment entry of the Delaware County Court of Common Pleas. 

FACTS AND PROCEDURAL HISTORY 

Agreement and Easement 

{¶2} Defendant-Appellee Dornoch Estates Homeowners Association, Inc. is a 

not-for-profit corporation managing Dornoch Estates, a planned unit development in 

Delaware County. Dornoch Estates consists of approximately 393 single-family homes. 

Plaintiff-Appellant Delaware Golf Club, LLC, operates an 18-hole golf course, located 

adjacent and contiguous to Dornoch Estates. 

{¶3} In September 1997, Dornoch Estates obtained a “Permit to Install No. 01-

7240” from the Ohio Environmental Protection Agency for the installation and operation 

of a wastewater treatment plant to serve the subdivision and the golf course. The permit 

applied to a wastewater disposal system designed to serve an average daily hydraulic 

flow of no more than 120,000 gallons. The engineering report submitted with the permit 

application stated that an irrigation pumping station would pump the reclaimed water to 

irrigate turf grasses on the golf course. The report stated that 144 total acres were 

available for irrigation and 76 acres were required for irrigation. 

{¶4} The operator of the wastewater treatment plant was Defendant-Appellee 

Scott Jamison dba Jamison Environmental. 

{¶5} In April 2007, Dornoch Estates entered into an “Agreement and Easement” 

with Dornoch Development Ltd., the Golf Club’s predecessor-in-interest, regarding the 
Delaware County, Case No. 19 CAE 04 0027 3 

wastewater treatment plant. The dominant estate was Dornoch Estates and the servient 

estate was the golf course property. The Agreement and Easement state in pertinent part: 

A. [Golf Club] (Grantor) is the owner of real estate located at 3329 

Columbus Pike, Delaware, Ohio, situated on the acreage described in 

“Exhibit A”, attached hereto “the Real Estate”, which property currently 

consists of the entire eighteen (18) hole golf course and real property and 

components related to its use as a golf course, and which property 

surrounds the sewage treatment plant owned and operated by the 

Association (Grantee) on the 1.016 acre tract described in “Exhibit B” 

attached; 

B. The clean, treated wastewater from the Association’s (Grantee’s) facility 

is a partial resource for irrigation of the Real Estate; and 

C. The Real Estate is an essential resource to the Association’s (Grantee’s) 

facility, providing a safe and sanitary means for disposal of the clean water 

outflow from the Association’s (Grantee’s) facility; and 

D. The Association’s (Grantee’s) facility is designed to prevent intrusion of 

the facility’s outflow into the nearby Olentangy River, and its design and 

operations have been approved by the Ohio Environmental Protection 

Agency; and 

Agreement and Grant 

NOW, THEREFORE, in consideration of their mutual promises, the parties 

agree as follows: 
Delaware County, Case No. 19 CAE 04 0027 4 

1. Development (Grantor) hereby grants to Association (Grantee) an 

easement upon the Real Estate described in Exhibit “A” for the purpose of 

disposing clean, treated, outflow from Association’s (Grantee’s) treatment 

facility * * * which clean water shall be piped into the Real Estate lake, and, 

when needed, to the adjacent retention basin, * * *, to be distributed through 

the Real Estate irrigation system. 

* * * 

3. This easement includes and Development (Grantor) agrees to accept the 

Association’s (Grantee’s) entire outflow of clean, treated water * * * as 

permitted by the Permit to Install No. 01-7240 originally issued effective 

September 29, 1997. * * * 

4. Development (Grantor) shall have the right to relocate on the Real Estate 

at Development’s (Grantor’s) cost with the consent of the Huntington 

National Bank, if it still possesses mortgages on the Real Estate, the 

pipelines originally installed for Association (Grantee) as needed to 

accommodate Development’s (Grantor’s) use of its property. * * * Nor shall 

such a relocation have a detrimental effect on spreading the clean water 

outflow to all portions of the Real Estate. 

* * * 

8. Development (Grantor) covenants that it will detain, distribute, and apply 

the Association’s (Grantee’s) entire outflow upon the Real Estate as 

presently configured in compliance with the requirements of the Ohio 
Delaware County, Case No. 19 CAE 04 0027 5 

Environmental Protection Agency and the Permit to Install associated with 

the facilities accommodated hereby. 

After-Easement Developments 

{¶6} In November 2012, Dornoch Estates submitted a “Land Application 

Management Plan” to the OEPA for approval. The LAMP provided that “[t]he portion of 

the course that is irrigated consists of approximately 144 acres, as described in Section 

3.2 of this Plan.” The LAMP was approved by OEPA on December 5, 2013, “subject to 

the condition of compliance with all applicable laws, rules, regulations and all the 

conditions below and in Part I and/or Part II of this permit.” Dornoch Estates did not notify 

the Golf Club that the 2012 LAMP was submitted or approved on December 5, 2013. 

{¶7} The Golf Club became aware that violations had occurred at the wastewater 

treatment plant. The OEPA issued notices of violations for noncompliance to Dornoch 

Estates in 2014 and 2015. The violations showed that improperly treated wastewater had 

been discharged from the treatment plant and into the Golf Club’s lakes and retention 

basin, then onto the golf course through the irrigation system. Dornoch Estates did not 

notify the Golf Club of the violations. 

{¶8} In addition to the Agreement and Easement, Dornoch Estates allowed the 

Golf Club to transport freshwater from a golf course surface pond (storm water pond) to 

the pond that receives the treated wastewater (irrigation pond) through pipes that were 

designed to transport wastewater. The parties operated under the arrangement since 

2007, until Dornoch Estates began denying the Golf Club access to the pumps in 2016. 

In 2017, the Golf Club purchased and installed a new pump. Dornoch Estates then 
Delaware County, Case No. 19 CAE 04 0027 6 

permitted the Golf Club to resume transporting fresh water through the wastewater 

treatment facility pipes. 

{¶9} When the Golf Club became aware of the LAMP in early 2016, it requested 

that Dornoch Estates submit an amendment to the LAMP reflecting that the portion of the 

property that was irrigated consisted of only 76 acres, not 144 acres as represented in 

the LAMP. Dornoch Estates refused. 

{¶10} On January 20, 2016, the Golf Club presented a concept plan to the City of 

Delaware for the development of a portion of the golf course for mixed 

residential/commercial use. The plan proposed a phase of development that would 

reduce the irrigation area from the wastewater treatment plant to 76 acres. 

{¶11} In July 2016, the Golf Club became aware that a retaining wall on the 

property of Dornoch Estates and adjacent to a golf cart path had collapsed. Dornoch 

Estates had constructed the retaining wall to accommodate the installation of a road in 

the subdivision. Dornoch Estates would not repair or replace the retaining wall. 

Civil Action 

{¶12} On August 30, 2016, the Golf Club filed a complaint with request for 

permanent injunction against Dornoch Estates and Jamison (hereinafter “Dornoch 

Estates”) in the Delaware County Court of Common Pleas. The Golf Club requested six 

claims for relief: (1) permanent injunction to prevent Dornoch Estates from committing 

additional violations and discharging untreated wastewater on the golf course property; 

(2) termination and/or modification of the “Agreement and Easement” and LAMP; (3) 

fraudulent concealment and fraud by omission; (4) negligence; (5) trespass; and (6) 

declaratory judgment and request for mandamus based on the collapsed retaining wall. 
Delaware County, Case No. 19 CAE 04 0027 7 

The majority of the Golf Club’s claims, and pertinent to this appeal, related to the required 

amount of acreage for irrigation of the treated wastewater. The Golf Club argued only 76 

acres were required for irrigation. 

{¶13} Dornoch Estates filed its answer and counterclaim on September 13, 2016. 

In its counterclaim, Dornoch Estates argued the Golf Club engaged in abuse of process 

by filing its lawsuit to pressure the parties to terminate and/or amend the Agreement and 

Easement to reduce the acreage required to 76 acres so that the Golf Club could proceed 

with its development plans. 

Amended Complaints 

{¶14} On September 14, 2016, the Golf Club filed its first amended complaint with 

request for permanent injunction. The Golf Club added a seventh claim, requesting a 

permanent injunction preventing Dornoch Estates from restricting access to water from 

the storm water pond. The Golf Club also filed a motion for temporary restraining order 

and preliminary injunction, which the trial court denied on September 20, 2016. 

{¶15} The Golf Club filed a motion for leave to file a second amended complaint 

on October 4, 2016. Based on the trial court’s denial of its motion for temporary restraining 

order and preliminary injunction, the Golf Club argued it suffered monetary damages for 

the actions of Jamison and Dornoch Estates in limiting its access to the water in the storm 

water pond. It raised four new claims: (7) breach of contract and tortious interference with 

contractual relations; (8) breach of implied contract and tortious interference with 

contractual relations; (9) breach of implied easement and tortious interference with 

implied easement; and (10) request for permanent injunction to enjoin Dornoch Estates 
Delaware County, Case No. 19 CAE 04 0027 8 

from restricting access to the water in the storm water pond. The trial court granted the 

motion and the second amended complaint was filed on October 24, 2016. 

{¶16} On January 3, 2017, Dornoch Estates filed a motion for partial judgment on 

the pleadings pursuant to Civ.R. 12(C). It argued the trial court should dismiss all of the 

Golf Club’s claims in the second amended complaint, except for the fifth and sixth causes 

of action, which sought damages for Dornoch Estates’ alleged trespass by discharging 

untreated wastewater on to the golf course and declaratory judgment and injunction 

regarding the collapsed retaining wall. Dornoch Estates next filed a motion to dismiss the 

Golf Club’s second amended complaint, except the sixth cause of action, for lack of 

subject matter jurisdiction. Dornoch Estates argued the trial court lacked subject matter 

jurisdiction over the majority of the Golf Club’s claims because the exclusive remedy for 

addressing alleged violations of Ohio’s water pollution laws was through the 

administrative procedures set forth in R.C. Chapter 3745. 

{¶17} On May 1, 2017, the Golf Club filed a motion for leave to file a third amended 

complaint pursuant to Civ.R. 15(A). The main purpose of the third amended complaint 

was to assert two new claims. The eleventh claim related to an alleged sanitary sewer 

overflow that occurred on March 20, 2017 and caused damage to the golf course property. 

The twelfth claim set forth a specific request for declaratory judgment and reformation of 

the Agreement and Easement related to the amount of acreage required on the golf 

course for irrigation purposes. Dornoch Estates filed a memorandum contra and the Golf 

Club replied. 

{¶18} On August 8, 2017, the trial court issued two judgment entries, the first 

granting in part and denying in part Dornoch Estates’ motion for partial judgment on the 
Delaware County, Case No. 19 CAE 04 0027 9 

pleadings and motion to dismiss for lack of subject matter jurisdiction and the second 

denying the Golf Club’s motion for leave to file a third amended complaint. 

{¶19} The trial court first dismissed the Golf Club’s first claim for a permanent 

injunction enjoining Dornoch Estates from committing additional violations and 

discharging any untreated wastewater onto the golf course and the Golf Club’s second 

claim to the extent that it sought a modification of the LAMP. The trial court next granted 

the motion for partial judgment on the pleadings on the Golf Club’s second claim that the 

Agreement and Easement should be modified to include additional terms. The trial court 

found it was without authority to modify the Agreement and Easement. The trial court 

further found Dornoch Estates was entitled to judgment on the pleadings as to the third, 

fourth, seventh, eighth, and ninth claims. The Golf Club’s fifth (trespass), sixth 

(declaratory judgment and request for mandamus based on the collapsed retaining wall), 

and tenth (request for permanent injunction enjoining Dornoch Estates from restricting 

access to water in the storm water pond) claims in the second amended complaint 

remained pending before the trial court. 

{¶20} The trial court denied the Golf Club’s motion for leave to file a third 

amended complaint. The trial court denied the Golf Club’s motion because it did not 

establish that its proposed additional claims were supported by law. The Golf Club’s 

claims in the proposed third amended complaint were similar to those raised in the second 

amended complaint and dismissed by the trial court. 

{¶21} The Golf Club filed a motion for reconsideration of the trial court’s August 8, 

2017 judgment entry denying its motion for leave to file a third amended complaint. The 

motion specifically requested the trial court reconsider its denial of the request for 
Delaware County, Case No. 19 CAE 04 0027 10 

declaratory judgment and reformation of the Agreement and Easement. Alternatively, the 

Golf Club requested leave to add a claim for declaratory judgment that it had the right to 

use its property in any manner that was not prohibited by the easement and did not 

unreasonably interfere in the use of the easement. Upon examination of the Golf Club’s 

more thoroughly argued motion, the trial court permitted the Golf Club to amend its 

complaint. As to its argument that it should be permitted to add a claim for declaratory 

judgment that it had the right to use its property in any manner, the trial court stated: 

Having determined that a court cannot redefine the dimensions of the 

agreement and easement, it is unclear to the Court what clarity will come 

from a declaration that Plaintiff can use its property in any manner not 

prohibited by law and in ways that do not unreasonably interfere with the 

easement. If Plaintiff believes, however, that such a declaration is 

necessary, the Court will allow Plaintiff to assert the claim in its amended 

complaint. 

(February 26, 2018 Judgment Entry). The trial court also allowed the Golf Course to 

amend the complaint to assert a claim for breach of the Agreement and Easement for the 

sanitary sewer overflow. The third amended complaint was filed on March 7, 2018. 

{¶22} On May 31, 2018, the parties filed an agreed judgment entry that dismissed 

the Golf Club’s sanitary sewer overflow claim. 

Summary Judgment 

{¶23} The Golf Club filed a motion for partial summary judgment on June 6, 2018. 

Dornoch Estates filed a motion for summary judgment on July 16, 2018. 
Delaware County, Case No. 19 CAE 04 0027 11 

{¶24} On November 6, 2018, the Golf Club filed a motion for the trial court to 

dismiss without prejudice pursuant to Civ.R. 41(A)(2) its request for declaratory judgment 

regarding the collapsed retaining wall. The Golf Club argued the claim was moot because 

the local government determined it would replace the retaining wall. Dornoch Estates 

opposed the motion. 

{¶25} On December 7, 2018, the trial court issued its judgment entry that ruled 

upon the Golf Club’s motion for partial summary judgment and motion to dismiss one 

claim and Dornoch Estates’ motion for summary judgment. The Golf Club’s remaining 

claims before the trial court were: (1) breaches of the Agreement and Easement as to 

alleged violations of the OEPA requirements; (2) trespass; (3) declaratory judgment and 

request for mandatory injunction related to the collapsed retaining wall; (4) breach of 

contract related to the Golf Club’s access to the storm water pond; (5) breach of implied 

contract related to the Golf Club’s access to the storm water pond; (6) breach of implied 

easement related to the Golf Club’s access to the storm water pond; (7) permanent 

injunction to enjoin Dornoch Estates from restricting access to the storm water pond; and 

(8) declaratory judgment regarding the Agreement and Easement and the Golf Club’s 

right to use the property in any manner that was not prohibited by the easement and did 

not unreasonably interfere in the use of the easement. The counterclaim for abuse of 

process brought by Dornoch Estates also remained. 

{¶26} The Golf Club argued it was entitled to judgment as a matter of law on its 

claims for breach of the Agreement and Easement and trespass and Dornoch Estates’ 

claim for abuse of process. Dornoch Estates moved for summary judgment on all of the 
Delaware County, Case No. 19 CAE 04 0027 12 

Golf Club’s remaining claims, except for the Golf Club’s request for declaratory judgment 

regarding the Agreement and Easement and its rights to use the property. 

{¶27} The trial court granted summary judgment in favor of Dornoch Estates on 

the Golf Club’s claims for (1) declaratory judgment as to the collapsed retaining wall, also 

denying the Golf Club’s motion to dismiss that claim; (2) breach of the Agreement and 

Easement as they related to violations of the OEPA requirements; and (3) permanent 

injunction to enjoin Dornoch Estates from restricting access to the storm water pond. The 

trial court found in favor of the Golf Club on its claim for trespass, awarding the Golf Club 

nominal damages in the amount of $150.00. Finally, the trial court determined there were 

genuine issues of material fact on Dornoch Estates’ claim for abuse of process and the 

Golf Club’s claims for breach of contract, breach of implied contract, and breach of implied 

easement related to the storm water pond access. The matter was set for a bench trial 

on the remaining claims. 

Bench Trial 

{¶28} In January 2019, the parties presented the remaining claims to the trial court 

at a three-day bench trial. 11 witnesses and numerous exhibits were presented. The 

following matters were before the trial court: (1) declaratory judgment regarding the 

Agreement and Easement and the Golf Club’s right to use the property in any manner 

that was not prohibited by the easement and did not unreasonably interfere in the use of 

the easement; (2) breach of contract related to the Golf Club’s access to the storm water 

pond; (3) breach of implied contract related to the Golf Club’s access to the storm water 

pond; (4) breach of implied easement related to the Golf Club’s access to the storm water 

pond; and (5) Dornoch Estates’ claim for abuse of process. 
Delaware County, Case No. 19 CAE 04 0027 13 

{¶29} The trial court ruled on the remaining claims via judgment entry filed March 

5, 2019. The trial court first found the Golf Club established Dornoch Estates breached 

the contract when it did not allow the Golf Club to access the storm water pond. It awarded 

the Golf Club $54,627.75 in damages. Because the Golf Club requested the same relief 

in its claims for breach of implied contract and breach of implied easement, the trial court 

found those claims moot. The trial court next found that the Golf Club was not entitled to 

declaratory judgment that would alter the terms of the Agreement and Easement. In its 

arguments, the Golf Club asserted that a minimum of 76 acres of land was needed to 

fulfill the purpose of the easement, supported by scientific evidence presented at trial. 

Dornoch Estates alternatively relied on the unambiguous terms of the Agreement and 

Easement, arguing the easement applied to the entire golf course property. The trial court 

agreed the evidence presented showed that the treated wastewater could be safely 

discharged onto a land area less than 144 acres. The trial court found it was bound by 

the unambiguous terms of the Agreement and Easement, which stated that the easement 

applied to the entire 18-hole golf course. Finally, the trial court found the evidence did not 

support Dornoch Estates’ claim for abuse of process. 

Appeal 

{¶30} The Golf Club filed a notice of appeal on April 4, 2019. 

{¶31} On April 16, 2019, Dornoch Estates filed a motion for leave to file a delayed 

appeal and notice of cross appeal. The Golf Club responded to the motion and Dornoch 

Estates replied. We denied the motion for leave to file a delayed appeal on May 6, 2019. 

{¶32} On May 17, 2019, Dornoch Estates filed a motion to deem its cross appeal 

timely filed. On May 21, 2019, Dornoch Estates filed a motion for extension of time to file 
Delaware County, Case No. 19 CAE 04 0027 14 

its brief on cross appeal. The Golf Club responded to both motions in opposition. On May 

29, 2019, we granted Dornoch Estates an extension to file their brief on cross appeal on 

or before June 17, 2019. Dornoch Estates filed its brief on cross appeal on June 17, 2019. 

{¶33} On June 27, 2019, however, we issued a nunc pro tunc judgment entry 

removing the words “cross appeal” from our judgment entry granting Dornoch Estates’ 

extension to file its brief. We issued a second judgment entry denying Dornoch Estates’ 

motion to deem the cross appeal timely filed. The Golf Club thereafter filed a motion to 

strike the June 17, 2019 brief. On July 15, 2019, we granted the Golf Club’s motion to 

strike the June 17, 2019 cross appeal brief. Dornoch Estates filed an appeal with the Ohio 

Supreme Court of our July 15, 2019 judgment entry. The Ohio Supreme Court declined 

to accept jurisdiction. On November 6, 2019, we denied a pending motion for 

reconsideration of our June 27, 2019 judgment entry. 

{¶34} Accordingly, the only appeal before this Court is the appeal filed by the Golf 

Club. 

ASSIGNMENT OF ERROR 

{¶35} The Golf Club raises one Assignment of Error: 

{¶36} “THE TRIAL COURT ERRED WHEN IT FAILED TO PROVIDE 

DECLARTORY RELIEF. JUDGMENT ENTRY ANNOUNCING THE VERDICT 

FOLLOWING THE JANUARY 2019 TRIAL AT 5-11 (MAR. 5, 2019) (“ORDER”); THIRD 

AMENDED COMPLAINT WITH REQUEST FOR PERMANENT INJUNCTIVE RELIEF AT 

¶ 67-80.” 
Delaware County, Case No. 19 CAE 04 0027 15 

ANALYSIS 

{¶37} The Golf Club argues the trial court erred when it found in favor of Dornoch 

Estates on its request for declaratory judgment concerning the Golf Club’s use of the golf 

course property and the interpretation of the Agreement and Easement. We disagree. 

Standard of Review 

{¶38} We review a trial court’s determination of matters of law in a declaratory 

judgment action under a de novo standard of review. Arnott v. Arnott, 132 Ohio St.3d 401, 

2012-Ohio-3208, 972 N.E.2d 586, ¶ 13. Ohio appellate courts have held that when the 

trial court uses extrinsic evidence to determine the dimensions or scope of an easement, 

an issue of fact is presented. Cliffs and Creeks, LLC. v. Swallie, 2018-Ohio-5410, 128 

N.E.3d 825, ¶ 12 (7th Dist.). The trial court as the trier of fact, however, has the advantage 

of observing the witnesses at trial and assessing their credibility. As to our consideration 

of the trial court’s findings of fact, we defer to the trial court. Brown v. Brown, 2017-Ohio8938, 102 N.E.3d 72, ¶ 20 (3rd Dist.). A reviewing court will not disturb the trial court’s 

decision if it is supported by competent, credible evidence. Cliffs and Creeks, 2018-Ohio5410, ¶ 12 citing Bayes v. Toledo Edison Co., 6th Dist. Nos. L–03–1177, L–03–1194, 

2004-Ohio-5752, 2004 WL 2426234, ¶ 69; Gans v. Andrulis, 11th Dist. No. 99-P-0118, 

2001 WL 530490, *4-5 (May 18, 2001); Munchmeyer v. Burfield, 4th Dist. No. 95CA7, 

1996 WL 142579, *3 (Mar. 26, 1996); Murray v. Lyon, 95 Ohio App.3d 215, 219, 642 

N.E.2d 41 (9th Dist.1994). See also Andrews v. Columbia Gas Transmission Corp., 544 

F.3d 618, 624 (6th Cir.2008). 
Delaware County, Case No. 19 CAE 04 0027 16 

Express Easement 

{¶39} An easement has been defined as an interest in the land of another created 

by prescription or express or implied grant, which entitles the owner of the easement to a 

limited use of the land in which the interest exists. Myers v. McCoy, 5th Dist. Delaware 

No. 2004CAE07059, 2005-Ohio-2171, 2005 WL 1038871, ¶ 16 citing Alban v. R.K. 

Company, 15 Ohio St.2d 229, 198, 239 N.E.2d 22 (1968). The owner of the easement is 

referred to as the dominant estate (Dornoch Estates) and the land in which the interest 

exists is called the servient estate (Golf Club). Id. When an easement is granted by an 

express grant, the extent and limitations upon the dominate estate's use of the land 

depends upon the language of the granting instrument. Id. The easement at issue here 

is an express easement as stated in the Agreement and Easement.

{¶40} The grant of an easement includes the grant of all things necessary for the 

dominant estate to use and enjoy the easement. Myers v. McCoy, 5th Dist. Delaware No. 

2004CAE07059, 2005-Ohio-2171, 2005 WL 1038871, ¶ 17 citing Day, Williams & 

Company v. RR. Company, 41 Ohio St.3d 392 (1884). Thus, in determining the nature 

and extent of an easement, the court must construe the easement in a manner permitting 

the dominant estate to carry out its purpose. Alban, supra. 

{¶41} When interpreting the terms of a written easement, the court must follow 

the ordinary rules of contract construction so as to carry out the intent of the parties as 

demonstrated by the language in the contract. Hemmelgarn v. Huelskamp & Sons, Inc., 

3rd Dist. Shelby No. 17-19-07, 2019-Ohio-5298, 2019 WL 7049679, ¶¶ 12-13 citing 

Lakewood Homes v. BP Oil, Inc., 3rd Dist. No. Hancock 5-98-29, 1999 WL 693152 (Aug. 

26, 1999), citing Skivolocki v. East Ohio Gas Company, 38 Ohio St.2d 244, 313, 313 
Delaware County, Case No. 19 CAE 04 0027 17 

N.E.2d 374 (1974), syllabus, paragraph one. If the question is the scope of an easement, 

the court must look to the language of the easement to determine the extent. 

{¶42} When the terms of an easement are clear and unambiguous, a court cannot 

create new terms by finding an intent not expressed in the language used. See Alexander 

v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 246, 374 N.E.2d 146 (1978). A court abuses 

its discretion if it alters an established easement or requires a party to accept an altered 

easement in substitution of the original. Myers, 2005-Ohio-2171, ¶18 citing Munchmeyer 

v. Burfield, 4th Dist. Washington No. 95–CA–7, 1996 WL 142579 (Mar. 26, 1996), 

citations deleted. 

{¶43} If there is no specific delineation of the easement, or if the document is 

ambiguous, the court must then look to the circumstances surrounding the transaction in 

order to determine the intent of the parties. Hemmelgarn, 2019-Ohio-5298, ¶ 13 citing 

Murray v. Lyon, 95 Ohio App.3d 215, 219, 642 N.E.2d 41 (9th Dist. 1994). The language 

of the easement, coupled with the surrounding circumstances, is the best indication of the 

extent and limitations of the easement. Apel v. Katz, 83 Ohio St.3d 11, 17, 697 N.E.2d 

600 (1998). 

Interpretation of the Terms of the Agreement and Easement 

{¶44} The trial court succinctly summarized the parties’ arguments in its March 5, 

2019 judgment entry: 

Their disagreement about [the Agreement and Easement] is the crux of this 

case. * * * [T]he golf club has asked that I at least flesh out the parties’ 

agreement-related rights and obligations in light of the evidence presented 

at trial. In the golf club’s view, just 76 acres of land is needed to fulfill the 
Delaware County, Case No. 19 CAE 04 0027 18 

purpose of the easement, and the golf club has presented some evidence 

supporting that view. Dornoch in turn contends that the 2007 agreement – 

and in particular, the easement granted to Dornoch in the first paragraph of 

that agreement – applies to the entire golf course operated by the plaintiff 

golf club. (The golf course is variously described in documents presented 

at trial as 126 acres or 144 acres in size.) Dornoch opposes any lessening 

of the acreage to which its easement applies. 

(Mar. 5, 2019 Judgment Entry). 

{¶45} At trial, Michael Sapp of the OEPA testified on behalf of the Golf Club. Sapp 

had been involved in the development of the wastewater treatment plant since 1997. He 

testified to the Permit to Install issued in 1997 and the appended engineering report. 

According to Sapp, the engineering report was a summary document the engineer 

reviewing the Permit to Install gave to the supervisor for background and basic design for 

the system. He stated that in the appended report, the engineer calculated pursuant to 

Bulletin 860 that 76 acres of land were required to apply the treated wastewater based 

on the design flow of the wastewater treatment plant. Bulletin 860 was a publication 

developed by the Ohio State University Agriculture Extension Office that contained the 

design standards the OEPA uses to review permits to install application for land 

application systems. Based on the design flow of the wastewater treatment plant, 76 

acres were required to apply treated wastewater and 144 acres were provided. The 

intervening LAMP did not change the minimum requirements as calculated by Bulletin 

860. 
Delaware County, Case No. 19 CAE 04 0027 19 

{¶46} Dornoch alternatively relied upon the language of the Agreement and 

Easement that described the easement as applying to “the entire eighteen (18) golf 

course” and referred to the Permit to Install and appended report which described the golf 

course property as 144 and/or 126 acres. Sapp testified that the Permit to Install did not 

refer to 76 acres or require 76 acres; the only reference to 76 acres was in the attached 

engineering report. He also stated there were advantages to having more acres than the 

minimum available because it better protected surface and ground water. Additional 

acreage also provided operational flexibility. 

{¶47} The trial court ultimately found the terms of the Agreement and Easement 

were clear and unambiguous as to the dimensions and nature of the easement. It found 

that while the scientific evidence presented by the Golf Club supported its argument that 

only 76 acres were necessary to safely discharge the treated wastewater, the terms of 

the Agreement and Easement obligated the Golf Club to make the entire golf course 

available to Dornoch for the purpose of the easement, to safely discharge the treated 

wastewater. If it found that 76 acres were permissible under the Agreement and 

Easement, the trial court stated it would be impermissibly modifying the clear language 

of the easement. The trial court therefore found in favor of Dornoch Estates on the Golf 

Club’s request for declaratory judgment. 

{¶48} In its appeal, the Golf Club maintains the trial court erroneously failed to 

consider its request for declaratory judgment. Upon our review of the trial court’s March 

5, 2019 judgment, we find the trial court considered the Golf Club’s request for declaratory 

judgment and found in favor of Dornoch Estates as a matter of law. The trial court found 

the Golf Club was not entitled to declaratory judgment that 76 acres for discharge of the 
Delaware County, Case No. 19 CAE 04 0027 20 

treated wastewater was permissible because the terms of the Agreement and Easement 

required the use of the entire golf course property. 

{¶49} The Golf Club cites the following statement of law in support of its argument 

that its planned development does not unreasonably interfere with the easement and the 

easement does not expressly limit the Club’s right to develop the golf course property: 

“Because all residual rights remain in the possessory or servient estate, the servient 

landowner may make any use of his property that does not ‘unreasonably interfere’ with 

easement holder's use of the easement, unless the easement agreement provides 

otherwise. Watson v. Caldwell Hotel, LLC, 2017-Ohio-4007, 91 N.E.3d 179, ¶ 24 (7th 

Dist.) citing Hunker v. Whitacre–Greer Fireproofing Co., 155 Ohio App.3d 325, 2003-

Ohio-6281, 801 N.E.2d 469, ¶ 30 (7th Dist.) citing 1 Restatement of the Law 3d, Property, 

Section 4.9, at 581–582 (2000). The issue in this case is whether the “easement 

agreement provides otherwise.” 

{¶50} The Agreement and Easement is an express easement and we use the 

ordinary rules of contract construction so as to carry out the intent of the parties as 

demonstrated by the language in the contract. The Agreement and Easement states the 

purpose of the easement: 

 A. [Golf Club] (Grantor) is the owner of real estate located at 3329 

Columbus Pike, Delaware, Ohio, situated on the acreage described in 

“Exhibit A”, attached hereto “the Real Estate”, which property currently 

consists of the entire eighteen (18) hole golf course and real property and 

components related to its use as a golf course, and which property 

surrounds the sewage treatment plant owned and operated by the 
Delaware County, Case No. 19 CAE 04 0027 21 

Association (Grantee) on the 1.016 acre tract described in “Exhibit B” 

attached; 

B. The clean, treated wastewater from the Association’s (Grantee’s) facility 

is a partial resource for irrigation of the Real Estate; and 

C. The Real Estate is an essential resource to the Association’s (Grantee’s) 

facility, providing a safe and sanitary means for disposal of the clean water 

outflow from the Association’s (Grantee’s) facility; and 

D. The Association’s (Grantee’s) facility is designed to prevent intrusion of 

the facility’s outflow into the nearby Olentangy River, and its design and 

operations have been approved by the Ohio Environmental Protection 

Agency; and 

{¶51} In order to effectuate the purpose of the easement, the parties agreed to 

the following: 

1. Development (Grantor) hereby grants to Association (Grantee) an 

easement upon the Real Estate described in Exhibit “A” for the purpose of 

disposing clean, treated, outflow from Association’s (Grantee’s) treatment 

facility * * * which clean water shall be piped into the Real Estate lake, and, 

when needed, to the adjacent retention basin, * * *, to be distributed through 

the Real Estate irrigation system. 

* * * 

3. This easement includes and Development (Grantor) agrees to accept the 

Association’s (Grantee’s) entire outflow of clean, treated water * * * as 
Delaware County, Case No. 19 CAE 04 0027 22 

permitted by the Permit to Install No. 01-7240 originally issued effective 

September 29, 1997. * * * 

* * * 

8. Development (Grantor) covenants that it will detain, distribute, and apply 

the Association’s (Grantee’s) entire outflow upon the Real Estate as 

presently configured in compliance with the requirements of the Ohio 

Environmental Protection Agency and the Permit to Install associated with 

the facilities accommodated hereby. 

{¶52} The Permit to Install referred to in the Agreement and Easement was issued 

by the OEPA to Dornoch Estates on September 29, 1997, for the installation and 

operation of a wastewater treatment plant to serve the subdivision and the golf course. 

The permit applied to a wastewater disposal system designed to serve an average daily 

hydraulic flow of no more than 120,000 gallons. The engineering report, appended to the 

Permit to Install, stated in pertinent part: 

Irrigation: The average estimated irrigation season is 245 days. The 

irrigation pumping station will be designed with a capacity of 1240 gpm. The 

reclaimed water will be used to irrigate turf grasses on the golf course. 144 

total acres are available for irrigation with an average weekly irrigation rate 

of 0.32 inches per week. * * * The irrigation area required as calculated 

using Bulletin 860 is 76 acres. * * * 

Summary of WWRU System: The design of the WWRU system for the 

Tartan Fields Golf Community adheres to the minimum requirements set 

forth in Bulletin 860, Reuse of Reclaimed Wastewater Through Irrigation for 
Delaware County, Case No. 19 CAE 04 0027 23 

Ohio Communities. The overall design has been generally conservative 

with regards to storage time (139 days rather than 120 days) and the 

amount of acreage available for WWRU application (76 acres required and 

144 acres provided). This conservative approach should allow for good 

flexibility in the overall operation of the WWRU system. 

{¶53} The language of the Agreement and Easement describes the dimensions 

of the easement necessary to effectuate the purpose of the easement to distribute the 

treated wastewater and protect ground and surface water. First, the Agreement and 

Easement describes the Golf Club property in Paragraph A as “situated on the acreage 

described in “Exhibit A”, attached hereto ‘the Real Estate’, which property currently 

consists of the entire eighteen (18) hole golf course and real property and components 

related to its use as a golf course.” The Agreement and Easement describes the “Real 

Estate” as an entire 18-hole golf course; it does not state the property in question is 76, 

126, or 144 acres. Second, the “Real Estate”, the 18-hole golf course, was stated to be 

necessary for the purpose of the easement to provide irrigation for the “Real Estate” and 

a safe and sanitary means for disposal of the treated wastewater. Third, the Agreement 

and Easement effectuates the purpose of the easement by granting Dornoch Estates an 

easement upon the “Real Estate” described in Paragraph A, which stated the “Real 

Estate” was an “entire eighteen (18) hole golf course.” Again, there is no reference in the 

description of the easement as to the acreage, either 76 or 144 acres. Fourth, the Permit 

to Install, noted in the Agreement and Easement, does not make any reference to acreage 

necessary for land application of the treated wastewater. The appended engineering 

report states that 76 acres is the calculated acreage required for land application of the 
Delaware County, Case No. 19 CAE 04 0027 24 

treated wastewater, but it also states that 144 acres is provided, allowing for operational 

flexibility. The 144 acres is the entire golf course property. The description of the property, 

purpose of the easement, description of the easement, and the language of the permit to 

install clearly set the dimensions of the easement as the “entire eighteen (18) hole golf 

course.” 

{¶54} The Golf Club argued before the trial court and on appeal that making 76 

acres available to Dornoch Estates for the land application of its treated wastewater would 

not unreasonably interfere with Dornoch’s use of the easement. The trial court, however, 

found the Agreement and Easement unambiguously provided otherwise, requiring it to 

deny the Golf Club’s request for declaratory judgment. Upon our de novo review of the 

request for declaratory judgment based on the language of the Agreement and Easement, 

we agree with the trial court that its unambiguous terms require the entire golf course 

property as described by the Agreement and Easement be available to effectuate the 

purpose of the Agreement and Easement. Any modification by the trial court of the 

delineation of the easement as specified in the Agreement and Easement would be an 

impermissible alteration of the terms by the trial court. 

{¶55} The Golf Club’s sole Assignment of Error is overruled. 

 
Delaware County, Case No. 19 CAE 04 0027 25 

CONCLUSION 

{¶56} The judgment of the Delaware County Court of Common Pleas is affirmed. 

By: Delaney, J., 

Hoffman, P.J. and 

Wise, John, J., concur.