Ohio Supreme Court hearing public highway easement question

Last Wednesday, July 11th., the Ohio Supreme Court accepted a case that, by some, is being dubbed as “far-reaching” in disputes over Ohio Department of Transportation highway easements. ( Docket )

The plaintiff in a Franklin County servient real estate matter claimed it had granted the Department of Transportation a perpetual highway easement in 1959. That became the main portion of U.S. 52 ingressing/egressing Chesapeake, Ohio.

The plaintiff alleged that beginning around 1984- 1985, the U.S. 52 was rerouted and the previous route became an exit ramp, no longer crossing the easement considered. Plaintiff’s complaint contended that “from and after that time, the easement held by the defendant, or a major portion thereof, ceased to be used as an exit or for any other highway purpose for a period exceeding the statutory period of 21 years, and by the terms of the original conveyance, or by law, should be held to be extinguished with plaintiffs again seized of the entire, unencumbered freehold.”

The Franklin County Court of Common Pleas dismissed the case, reasoning that even if the subject easement hadn’t been used since 1984-54, because it was for highway purposes, the easement remains a ‘highway for the purposes of ORC § 5511.01.’ Bigler v. York, a 1993 case in which the Ohio Supreme Court had held that “a statute that prescribes procedures for abandonment of a township road provides the exclusive manner by which a township road may be abandoned.”

Ohio’s Tenth District Court of Appeals in reviewing the case sought to determine “whether the landowner’s common law right survived the enactment of ORC 5511.01, or whether that statute limited, or eliminated, the common law right.” Citing Danziger v. Luse, a 2004 case, the court held that “not every statute is to be read as an abrogation of the common law. Statutes are to be read & construed in the light and with reference to the rules & principles of the common law in force at the time of their enactment, and in giving that construction to a statute, the legislature will not be presumed, or held, to have intended a repeal of the settled rules of the common law unless the language employed clearly expresses or imports such intent.”

In appealing its appeal to the Ohio Supreme Court, the Department of Transportation says the case threatens the ability of ODOT to maintain the perpetual easements that underlie the state’s highway system. “Much of the rural highway system is based on right-of-ways acquired by easement; consistent with the traditional doctrine described in Ziegler v. Ohio Water Service Co…. Until now, it did not have to worry about inadvertently losing its easement rights…The Tenth District has wrongly determined that a highway easement could also be lost by mere inaction.

Appellant Memorandum in Support of Jurisdiction
Appellee’s Memorandum in Response