IN THE SUPREME COURT OF OHIO DORIS KIMBLE,
Appellant,
Case No: 2012-1489
vs. ) On Appeal from the Tuscarawas County Court of Appeals
FELSON W. DIEMLING, et al., ) Fifth Appellate District )
Appellees. ) Court of Appeals
11AP120047 Case No. 20
APPELLEES' MEMORANDUM IN RESPONSE TO APPELLANT'S MEMORANDUM IN SUPPORT OF JURISDICTION
William A. Kyler (#0010544) Jonathan C. Mizer (#007945 1)
Kyler, Pringle, Lundholm & Durmann, LPA 405 Chauncey Avenue, NW, PO Box 668 New Philadelphia, Ohio 44663
Telephone: (330) 343-5585 Facsimile: (330) 343-7977 ^---^:^. hkl^^er^ kldiawcom l 111U11.
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COUNSEL FOR APPLELLANT, DORIS KIMBLE Thomas W. Hardin, Esq. (#0012770)
490 Hillcrest Drive, NE
New Philadelphia, Ohio 44663 Telephone: (330) 364-9070 Facsimile: (330) 364-9073
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David K. Schaffner, Esq. (#0040373)
I C1tkK UF COURT
Schaffner Law Offices, Co., LPA
SUPREME COURT OF ONIO
132 Fair Avenue, NW
1.-New Philadelphia, Ohio 44663 Telephone: (330) 364-9070 364-9073
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COUNSE FOR PELLEES, FELSON and AMY DIEMLING
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THE ISSUES IN THIS CASE INVOLVE THE APPLICATIONS OF SETTLED PRINCIPLES OF OHIO LAW
AND ARE NOT OF PUBLIC OR GREAT GENERAL INTEREST
The Court of Appeals held that the easement in this case was limited to the York Property immediately adjacent to the easement and property owned by the Appellees. The Court of Appeals rejected Appellant's claim that the easement should also serve parcels that were not acquired by Appellant until years later. It also rejected Appellant's attempt to expand the easement to remove 250,000 tons of coal from the after acquired property and to increase traffic levels from two or three trucks per month to approximately fifteen to twenty trucks per day for five to eight years. Finally, the court held that the Penn-Ohio Coal Co., a coal company and stranger to the easement, could not remove minerals over the easement.
This case does not implicate the public or great general interest for several reasons. First, this case involves settled principles of Ohio law; the case relied upon by the Court of Appeals, Fisher v. McNutt, 73 Ohio App. 3`a 403 (1992), has been applied to the state and federal courts of Ohio for the past ten years.
Second, the decision in this case involves the question of whether the easement has been misused by Appellant. This is not a question involving broad questions of law; instead the question of whether an easement is misused inherently turns on the facts of each particular case.
Finally, Appellant's assertion that the current boom in oil and gas exploration warrants plenary consideration of this case is specious. In fact, this case has nothing to do with oil and gas rights or easements; further, appellant does not demonstrate that any of the principals in this case have any application to oil and gas easements.
Accordingly, the public interest is not furthered by review of the Court of Appeals decision. This decision, by its own terms, is limited to its own facts. The decision in this case is of limited reach and, accordingly, does not affect the public generally.
FACTUAL BACKGROUND
Appellees, Felson and Amy Diemling ("Appellees") own property adjacent to property owned by Doris Kimble (Appellant). Appellees' property is subject to a 1976 deed of easement between John Pyle and JoAnne Pyle (Amy Diemling's parents and predecessors in title) and Floyd and Doris Kimble. Appellee's property is the serviant estate, and the Appellant's property is the dominant estate. The dominant estate consists of approximately 36 acres. Several years after the easement was granted, Appellant acquired additional property adjacent to her 36 acres.
In 2003 the Ohio Division of Mineral Resources Management granted a permit to Penn Ohio Coal Co. d/b/a Kimble Clay & Limestone to begin mining land adjacent to the 36 acres. It was not until 2006 that the 36 acres (the dominant estate) was included in the 2006 permit application for strip mining. Penn Ohio Coal Co. is currently using the easement to transfer minerals from the additional 180 acres of land.
The Appellant's son, Keith Kimble, who is employed by Penn Ohio Coal Co. anticipated that the future use of the easement would cause between 15 to 20 trucks per day to traverse over the easement, would be used by employees to reach the mining operations, and the easement would be utilized for the next five to eight years.
The testimony at trial established that Penn Ohio intended to remove approximately Fourteen Thousand tons of coal from the York property (the dominant estate) which is the subject of the easement. (Trial transcript, p. 47) In addition, he
testified that Penn Ohio intended to remove approximately Two Hundred Fifty
Thousand tons of coal from the Ervin property (the neighboring after acquired property) which is not subject to the easement. (Trial transcript p. 48). The testimony suggests that this would result in trucks passing through the easement on an average of fifteen to twenty per day. Id, p. 51. It was also anticipated that the easement would be used for five to eight years for hauling coal. Id, p. 52.
ARGUMENT CONTRA APPELLANT'S PROPOSITIONS OF LAW
PROPOSITION OF LAW #1: An appurtenant easement benefits both the easement holder's adjacent fee property as well as its adjacent mineral interests owned at the time the easement is granted.
Appellant and Penn Ohio Coal Co. have misused the easement. First, the easement is being used for ingress and egress to properties other than the 36 acres that was originally intended. In addition, Appellant assigned her easement rights to Penn Ohio Coal Co for use by property other than the dominant estate.
Ohio Penn Coal is conducting strip mining operations on both the dominant estate (36 acres) and an additional 180 acres. The easement is being used to haul minerals from both the dominant estate and the additional acreage.
Although the Appellant is "free to assign [their] easement appurtenant to others, [they] can only do so in accordance with Ohio law, which prohibits the assignment of easement appurtenant separate from transfers of the dominant tenement itself" Fruth Farms, Ltd. v. Village of Holgate, 442 F. Supp. 2d 470, 477 (N.D. Ohio, 2006). Because "[o]ne cannot separate an easement appurtenant from the dominant estate," the Appellee cannot simply assign their rights to the easement to entities or persons "separately from the dominant tenement." See Fruth
Farms Ltd. v. Village of HolTate, 442 F. Supp. 2d 470, 477(N.D. Ohio, 2006) (citing State exre. Lindemann v. Preston, 171 Ohio St. 303, 305, 170 N.E. 2d 489 (1960); Henson v. Stine, 74 Ohio
App. 221, 224, 57 N.E. 2d 785 [Ct. App. 1943]).
Appellant has unlawfully assigned an interest in the easement to Penn Ohio Coal and possibly other unknown entities and/or persons. The Appellant is of course permitted, under the terms of the easement, to assign the easement to their heirs and assigns, "so long as the easement is assigned in conjunction with the dominant estate." See Fruth Farms, Ltd. v. Village of Holgate, 442 F. Supp. 2d 470, 477 (N.D. Ohio, 2006) (citing Ricelli v. Atkinson, 99 Ohio App.
175, 181-82, 132 N.E. 2d 123 [Ct. App.1955]). The Appellant is treating the easement granted to them as one that can be transferred separate from the dominant estate, to Penn Ohio and others. Again, Ohio law does not permit this. See Fruth Farms, 442 F. Supp. 2d at 477 (citing and quoting State ex rel. Lindemann v. Preston, 171 Ohio St. 303, 306, 170 N.E. 2d 489 [1960]) ("an easement appurtenant `is not a separate entity' from the dominant tenement and, thus, one cannot transfer it separate from the dominant tenement); see also Fruth Farms, 442 F. Supp. 2d at 477 (quoting Ricelli v. Atkinson, 99 Ohio App. 175, 181/82, 132 N.E. 2d 123 [Ct.App.1955]) ("An easement is not alienable separately and apart from the land to which it is appurtenant.").
The granting of the easement to Kimble's "heirs and assigns" is not a grant to give easement rights to a corporation apart from the land to which the easement is appurtenant. This Court has spoken on this proscription: "a dominant tenement owner cannot separate an easement from the land to which it is appurtenant or convert an easement appurtenant into an easement in gross by grant of a license." Fruth Farms, 442 F. Supp. 2d at 476-77 (citing State ex rel. Lindemann v. Preston, 171 Ohio St. 303, 305, 170 N.E. 2d 489 [1960]).
Therefore, the Appellant is prohibited from assigning her interest in the easement to Penn Ohio or any other entity or person, for any use of property separate from the dominant estate-the 36 acres. The manner in which estate-the Appellant and oestate-thers are currently using estate-the easement is unlawful and must therefore cease. Any usage of the easement by other than the dominant estate is absolutely prohibited under Ohio law.
PROPOSITION OF LAW #2: A mineral lease on a property has no value to a Lessee if the Lessor cannot assign to Lessee as part of a lease a right of ingress and egress to the property.
In connection with this Proposition of Law, the appellant has completely misunderstood the court of appeals ruling.
In support of its proposition of law, she argues that the court prohibited her from hiring Penn-Ohio to haul minerals from her own property, the York property. In fact, the court held that "[w]e defer to the trial court's determination [that] [sic] the easement can be used to transport minerals from the York property." Clearly, under the Court of Appeal's decision, Appellant (and Penn Ohio) is permitted to use the easement to remove the coal from the York (dominant estate) property. Accordingly, this proposition of law is moot.
CONCLUSION
The first proposition does not present an issue of public or great general interest and in fact is governed by well settled law. The second proposition is inconsistent with the Court of Appeal's decision (which grants the relief sought by Appellant) and is therefore moot. Accordingly, jurisdiction should be refused.
Respectfully Submitted,
avid K., Schaffner, Esq. (#0040373) Schaffner Law Offices, Co., LPA 132 Fair Avenue, NW
New Philadelphia, Ohio 44663 Telephone: (330) 364-9070 Facsimile: (330) 364-9073
Email: Schaffner a^schaffner-taw.com
COUNSEL FOR APPELLEES, FELSON and AMY DIEMLING
PROOF OF SERVICE:
A copy of the foregoing Appellees' Memorandum in Response to Appellant's Memorandum in Support of Jurisdiction was sent, via regular U.S. mail, on this 28a' day of September, 2012, to the following:
William A. Kyler, Esq. Jonathan C. Mizer, Esq.
Kyler, Pringle, Lundholm & Durmann, LPA 405 Chauncey Avenue, NW
PO Box 668
New Philadelphia, Ohio 44663 Counsel forAppellant, Doris Kimble
David K. S chaffner, Esq.
COUNSEL FOR APPELLEES, FELSON and AMY DIEMLING
