IN THE COMMON PLEAS COURT OF
OTTAWA COUNTY, OHIO
John M. Anthony, et. al.
Plaintiffs,
v.
Gem Beach Marina, Inc., et.al.
Defendants.
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Case No. 04CV093H
(Consolidated with Case No. 04CV182H)
Judge Paul C. Moon
DECISION & JUDGMENT ENTRY
*****
{¶1}
This cause comes before the Court upon the Motions for Partial Summary
Judgment of Plaintiffs, John M. Anthony, et. al. and Plaintiff Gem Beach Lot Owners’
Association.
{¶2}
Originally, Plaintiffs, John M. Anthony, et. al. and Plaintiff Gem Beach Lot
Owners’ Association filed separate causes of action against Defendant Gem Beach Marina, Inc.1
1
John M. Anthony, et. al. v. Gem Beach Marina, Inc., Ottawa County C.P. No. 04-CVH-093; Gem Beach Lot
Owner’s Association v. Gem Beach Marina, Inc., Ottawa County C.P. No. 04-CVH-182. On November 29, 2004,
these two cases were consolidated for all purposes including trial. However, on November 17, 2006, the Court sua
sponte, determined that it would be inappropriate to maintain consolidation of these cases. See also, Order filed
COMMON PLEAS COURT OF OTTAWA COUNTY
Although these two cases were consolidated at the outset, the Court later bifurcated this matter
for trial, reasoning that one case involved “numerous plaintiffs, numerous counsel, varied and
dissimilar issues and multiple parcels of real estate,” and the other involved “one plaintiff, one
defendant, one issue, one parcel of real estate and a rather limited battery of attorneys.”2 But in
denying Defendant’s Motion to Dismiss,3 this Court acknowledged, “[i]t is apparent that the
absence of a necessary party is a jurisdictional defect that precludes a declaratory judgment.”4
As a result, this Court “once again joined John M. Anthony v. Gem Beach Marina, Inc.,5 and
Gem Beach Lot Owners’ Association v. Gem Beach Marina, Inc.,6 in order to ensure that all
persons to be affected by a declaratory judgment are joined * * *.”7
{¶3}
The declaratory relief requested by Plaintiffs, John M. Anthony, et. al. and
Plaintiff Gem Beach Lot Owners’ Association, while not identical, require the same analysis be
applied to both Motions for Partial Summary Judgment in order to determine whether Plaintiffs,
John M. Anthony, et. al. and Plaintiff Gem Beach Lot Owners’ Association, are entitled to the
requested declaratory relief.
{¶4}
In the Motions for Partial Summary Judgment, both Plaintiffs ask this Court to
find that Defendant, Gem Beach Marina, Inc. violated their easement rights or use rights in Area
November 20, 2006 and November 30, 2006. But on February 8, 2007, this Court reversed itself, holding that “the
absence of a necessary party is a jurisdictional defect that precludes declaratory judgment.” As a result, this Court
denied Defendant’s Motion to Dismiss, filed December 12, 2006.
2
John M. Anthony, et. al. v. Gem Beach Marina, Inc., Ottawa County C.P. No. 04-CVH-093, Order filed November
17, 2006.
3
John M. Anthony, et. al. v. Gem Beach Marina, Inc., Ottawa County C.P. No. 04-CVH-093, Judgement Entry filed
February 8, 2007.
4
John M. Anthony, et. al. v. Gem Beach Marina, Inc., Ottawa County C.P. No. 04-CVH-093, Judgment Entry filed
February 8, 2007.
5
John M. Anthony, et. al. v. Gem Beach Marina, Inc., Ottawa County C.P. No. 04-CVH-093.
6
Gem Beach Lot Owner’s Association v. Gem Beach Marina, Inc., Ottawa County C.P. No. 04-CVH-182.
2
COMMON PLEAS COURT OF OTTAWA COUNTY
B by constructing a beach house and pool, and charging a fee to use the beach house and pool.
The Anthony Plaintiffs, however, also seek further declaratory relief.8
{¶5}
Plaintiffs claim that they are entitled to declaratory relief arising out of Defendant,
Gem Beach Marina, Inc.’s alleged violation of Plaintiffs’ easement rights in Area B, which they
used as a park, and Area C of Gem Beach Plat No. 1, which is the beach.9 Plaintiffs claim that
Defendant has restricted their beach and bathing privileges by denying them unfettered access to
Areas B and C.
{¶6}
Plaintiffs claim that they are entitled to a finding that the Defendant, Gem Beach
Marina, Inc. violated their easement rights entitling them to use and enjoy Areas B and C of Gem
Beach Plat No. 1, by restricting their access to the park and the beach through the use of fencing,
gates, fees for admission or beach maintenance, and the construction of a beach house and pool
which has reduced the size of the park.
{¶7}
Defendant asserts, however, that the only rights that Plaintiffs have in Areas B
and C were stipulated to by the parties and affirmed by the Sixth Appellate Court in Papesh v.
Gem Boat Service, Inc. (“Papesh III”),10 and do not extend to prevent Defendant’s construction
of a beach house and pool, to preclude restrictions upon Plaintiffs’ access to Areas B and C, nor
to prevent the imposition of a fee for the maintenance of the beach and use of the pool. Further,
Defendant asserts that it is entitled to control access to Areas B and C because of continuing
7
John M. Anthony, et. al. v. Gem Beach Marina, Inc., Ottawa County C.P. No. 04-CVH-093, filed February 8, 2007.
See Bretton Ridge Homeowners Club v. DeAngelis (1988), 51 Ohio App.3d 183, 555 N.E.2d 663, 1988 Ohio App.
LEXIS 2598.
8
See attached Exhibit A, which is a copy of a survey map prepared by William Vondra which reflects the location
of Area A (red), Area B (Blue) and Area C (Yellow). See also Exhibit B, which is a copy of Exhibit 11 used during
the hearing of January 3, 1989 in Papesh v. Gem Boat Service, Inc., Ottawa C.P. Case No. 22911 (January 3, 1989),
and which reflects the location of Area A (red), Area B (Blue) and Area C (Yellow).
9
Id.
10
Papesh v. Gem Boat Service, Inc., 6th Dist. No. OT-89-18, 1990 Ohio App. LEXIS 3794 (“Papesh III”).
3
COMMON PLEAS COURT OF OTTAWA COUNTY
problems over the years, including, but not limited to trespassers, bonfires, broken glass on the
beach and illegal drug use.
{¶8}
This Court’s disposition of these two motions is contingent upon (1) whether
Plaintiffs have any easement rights in Areas B and C; (2) whether the stipulation in Papesh III
sets forth the scope of Plaintiffs’ use rights in Areas B and C; and (3) whether Defendant
violated those rights by restricting access to Areas B and C, through the use of fencing, gates and
charging Plaintiffs a fee to access Areas B and C or for beach maintenance, constructing a beach
house and a pool in Area B, and charging a fee to use the beach house and pool.
{¶9}
In addressing Plaintiffs’ Motions for Partial Summary Judgment, this Court has
reviewed the record, all pleadings, exhibits and relevant case law. This Court finds there are no
genuine issues of material fact in dispute as to certain of Plaintiffs’ requested findings and holds
that Plaintiffs are entitled to judgment as a matter of law to certain of Plaintiffs’ requested
findings. This Court also finds that there are genuine issues of material fact in dispute as to
certain other of Plaintiffs’ requested findings and holds that Plaintiffs are not entitled to
judgment as a matter of law to certain other of Plaintiffs’ requested findings.
{¶10} Pursuant to Papesh v. Gem Boat Service, Inc., Plaintiffs do not have an express or
implied easement in Areas A, B or C,11 and do not have a prescriptive easement in Area A.12
However, this Court holds that Plaintiffs have an easement granting them the right “to the use of
the streets and ways and to the use of the beach on the premises for said bathing purposes” and
the stipulation in Papesh III does grant Plaintiffs certain use rights in Areas B and C.
11
12
Papesh v. Gem Boat Service, Inc., 6th Dist. No. OT-87-16, 1987 Ohio App. LEXIS 9777 (“Papesh II”).
Papesh v. Gem Boat Service, Inc., 6th Dist. No. OT-89-18, 1990 Ohio App. LEXIS 3794 (“Papesh III”).
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COMMON PLEAS COURT OF OTTAWA COUNTY
{¶11} This Court finds that the stipulation does not limit Defendant from imposing
certain restrictions upon Plaintiffs’ access to Areas B and C, or prohibit a beach house and pool.
However, Defendant must provide access to Areas B and C from Lakeview Street, Cedar
Avenue, and Poplar Avenue by installing or relocating gates and permitting access (i.e., keypad
or access code/card) during the times and periods stipulated to in Papesh III.
{¶12} The construction of the beach house, pool, and relocation of Cedar Avenue,
however, has reduced the square footage of Areas B and C, which the parties had stipulated was
to be available for the use and enjoyment of Plaintiffs. Thus, whether Defendant has violated
Plaintiffs’ certain use rights in Areas B and C by constructing a beach house and pool is a
question of fact to be resolved according to the circumstances of the case and the nature of the
encroachment. More specifically, the trier of fact must determine whether the beach house and
pool, including any fee for the use of, unreasonably interfere with the enjoyment of the servitude.
The loss of park space resulting from Defendant’s actions may require it to compensate Plaintiffs
by removing a portion of, or all of the beach house and pool, or grant Plaintiffs comparable park
space in Area A, or elsewhere on its property, and may also include monetary damages. The
addition of any other structure that encroaches upon Areas B and C at any point in time will
necessarily require a determination in court of whether it unreasonably interferes with the
enjoyment of the servitude.
{¶13} Finally, this Court finds that the doctrine of laches, estoppel, and waiver do not
preclude the Plaintiffs from asserting a violation of their easement rights and use rights extended
to them by the Papesh III stipulation as a result of the construction of the beach house and pool
5
COMMON PLEAS COURT OF OTTAWA COUNTY
in Area B. Defendant fails to allege that all of the lot owners were aware of its plans to construct
a beach house and pool.
I.
FACTUAL BACKGROUND
{¶14} The extent of Plaintiffs’ “easement rights” to Areas B and C were first addressed
in Papesh v. Gem Boat Service, Inc.,13 (“Papesh I”) and the subsequent appellate decisions in
Papesh II,14 and Papesh III.15
{¶15} In Papesh I, the lot owners in Gem Beach Plat No.1 sought to enjoin Defendant’s
predecessor Gem Boat Service, Inc., from interfering with their use and enjoyment of their
interest in Areas A, B and C of Gem Beach Plat No.1 which they used as a park. The Plat
contained a reservation and exception of “streets, roads, lanes, ways, paths, rights of way, parks
or reservations” for the use of lot owners only.16 The lot owners used Areas A, B and C,
although no area was designated on the Plat as a park.17
{¶16} Concluding that there was no genuine issue as to any material fact because
appellant lot owners did not acquire any rights to a park from the Plat, the trial court granted
summary judgment to Gem Boat Service, Inc. The trial court also granted leave to the lot
owners to file an amended complaint to include a claim that they had acquired a prescriptive
easement in Areas A, B and C. The case continued on to trial with regard to the sole issue of
13
Papesh v. Gem Boat Service, Inc., Ottawa County C.P. Case No. 22911 (April 27, 1999) (“Papesh I”).
Papesh v. Gem Boat Service, Inc., 6th Dist. No. OT-87-16, 1987 Ohio App. LEXIS 9777 (“Papesh II”).
15
Papesh v. Gem Boat Service, Inc., 6th Dist. No. OT-89-18, 1990 Ohio App. LEXIS 3794 (“Papesh III”).
16
The Plat area has been replatted several times since 1922.
17
See Attached Exhibit B, which is a copy of Exhibit 11 used during the hearing of January 3, 1989 in Papesh v.
Gem Boat Service, Inc., Ottawa C.P. Case No. 22911 (January 3, 1989), and which reflects the location of Area A
(red), Area B (Blue) and Area C (Yellow). See also attached Exhibit A, which is a copy of a survey map prepared
by William Vondra which reflects the location of Area A (red), Area B (Blue) and Area C (Yellow).
14
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COMMON PLEAS COURT OF OTTAWA COUNTY
whether the lot owners had acquired a prescriptive easement in Areas A, B and C. The lot
owners also appealed from the March 20, 1987 order of the trial court.
{¶17} The Sixth Appellate Court in Papesh II agreed with the trial court’s finding that
there was no genuine issue as to any material fact because the mere references in the plat to parks
or reservations did not create an express easement in favor of lot owners since the area was in
dispute and was not designated as such on the plat nor specifically described in the deeds
conveying the lots.
{¶18} Prior to trial, the parties stipulated that the only property at issue was Area A and
that they had agreed to an easement with respect to the other property (Areas B and C). On April
27, 1989, Judge Gilson issued his Findings of Fact, Conclusions of Law, concerning Area A,
concluding that, “as a matter of law, the inducements for purchase, the facilitation and continuity
of usage without interruption has more than ripened into prescriptive easements in the Plaintiffs
– it has vested.”18
{¶19} The Sixth Appellate Court in Papesh III reversed, holding that an easement by
prescription required use that was open, notorious, continuous, adverse, and under claim of right
for 21 years. In this case, no prescriptive easement was established because evidence of a fence
with limited access showed that Gem Boat Service, Inc. exercised control over the park and the
lot owners used the park only with its permission. Thus, it was not adverse or under claim of
right.
{¶20} Upon motion of the lot owners for reconsideration, the Appellate Court modified
its opinion by deleting the final paragraph and inserting the following: “We find that the trial
18
Papesh v. Gem Boat Service, Inc., Ottawa County C.P. Case No. 22911 (April 27, 1999) (“Papesh I”) at 3.
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COMMON PLEAS COURT OF OTTAWA COUNTY
court has committed prejudicial error regarding the determination of whether [the lot owners]
had acquired a prescriptive easement in area A of the park * * *. Therefore, we reverse the
judgment of the trial court with respect to this issue. Insofar as the judgment of the trial court
affirmed the rights of the parties as set forth in their stipulation regarding the other areas of the
park, the judgment is hereby affirmed.”19
{¶21} As a result of the modification, the Appellate Court left intact the stipulation. The
stipulation reflects that Area A lies between Lakeview Drive to the north, Carolina Street to the
west, Lake Erie to the east, and a point 120 feet north of Cedar Avenue (or 240 feet south of
Lakeview Drive).20 Area B is divided by Cedar Avenue with half lying north of Cedar Avenue
for approximately 120 feet, Carolina Street to the west, and Lake Erie to the east; the other half
lying south of Cedar Avenue for approximately 120 feet, Carolina Street to the West, and Lake
Erie to the east.21 Area C is the beach area itself.22
{¶22} The stipulation further reflects that Area B south of Cedar Avenue has been used
as a parking area by the lot owners and “they have established the use of the area for that
purpose.”23 As well, the stipulation provides that the use of Area B south of Cedar Avenue “will
extend from April 15th each year through November 15th each year, but that Gem Boat Service,
or Gem Beach Marina, * * * will be allowed to store boats in that area south of Cedar Avenue
19
Papesh v. Gem Boat Service, Inc., 6th Dist. No. OT-89-18 (September 26, 1990).
20
See Attached Exhibit B, which is a copy of Exhibit 11 used during the hearing of January 3, 1989 in Papesh v.
Gem Boat Service, Inc., Ottawa C.P. Case No. 22911 (January 3, 1989), and which reflects the location of Area A
(red), Area B (Blue) and Area C (Yellow). See also attached Exhibit A, which is a copy of a survey map prepared
by William Vondra which reflects the location of Area A (red), Area B (Blue) and Area C (Yellow).
21
Id.
22
Id.
23
Transcript, at 16: 21-22, Papesh v. Gem Boat Service, Inc., Ottawa C.P. Case No. 22911 (January 3, 1989)
(“Papesh IV”).
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COMMON PLEAS COURT OF OTTAWA COUNTY
commencing October 1st, and the last boat is to be out by May 1st, even though that time overlaps
a little bit.”24
{¶23} The stipulation also provides that the lot owners “have a right” to the use of Area
C.25 It was stipulated that access to Areas B and C, has been limited to daylight hours during the
summer season for security reasons, and “also to eliminate in this particular area the outsiders
coming in for bonfires, drinking, drug abuse and similar wants.”26
Defendant’s counsel
acknowledged that “the lot owners have the use of the beach, and they have access to that beach
area over Lakeview Avenue, which is the road dedicated to the lot owners.”27 And Plaintiffs’
counsel acknowledged that while the “property was completely enclosed,” there was a fence
along Carolina Street, but not along Poplar Avenue prior to the transfer of the property to Gem
Beach Marina, Inc.28
{¶24} In early 2003, Defendant constructed a beach house and pool that lie over Cedar
Avenue and Area B (north and south).29 Cedar Avenue has since been vacated and re-routed to
go around the beach house and now crosses a portion of Area B (south).30 Plaintiffs claim their
rights in Areas B and C have been usurped by Defendant’s restrictions on their access, and
Defendant’s construction of the beach house and pool on Area B. Although the parties had
stipulated to Plaintiffs’ use rights with respect to Areas B and C, Defendant does not concede
24
Transcript, at 16: 24 to 17: 6, Papesh v. Gem Boat Service, Inc., Ottawa C.P. Case No. 22911 (January 3, 1989).
Transcript, at 8: 1, Papesh v. Gem Boat Service, Inc., Ottawa C.P. Case No. 22911 (January 3, 1989).
26
Transcript, at 8: 11-13, Papesh v. Gem Boat Service, Inc., Ottawa C.P. Case No. 22911 (January 3, 1989).
27
Transcript, at 15: 12-15, Papesh v. Gem Boat Service, Inc., Ottawa C.P. Case No. 22911 (January 3, 1989).
28
Transcript, at 12: 1, Papesh v. Gem Boat Service, Inc., Ottawa C.P. Case No. 22911 (January 3, 1989).
29
It is not clear why Defendant was granted a building permit allowing for construction of the beach house and pool
over a platted road. However, the vacation of Cedar Avenue was upheld in Gem Beach Lot Owners Association v.
Ottawa County Regional Planning Commission, Ottawa County C.P. No. 04CV271F (January 13, 2005).
30
See See Attached Exhibit A, which is a copy of a survey map prepared by William Vondra which reflects the
location of Area A (red), Area B (Blue) and Area C (Yellow) and the location of the beach house and pool.
25
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COMMON PLEAS COURT OF OTTAWA COUNTY
that Plaintiffs have unlimited access or that it cannot impose a fee upon Plaintiffs for the
maintenance of the beach.
{¶25} Plaintiffs, John M. Anthony, et. al.’s Motion for Partial Summary Judgment asks
the Court to issue the following declarations: (1) Plaintiffs have the legal right to access and
cross all platted streets, paths and rights of way in the Gem Beach subdivision, Plats 1, 2, 3, and
4 without interference from Defendant Gem Beach Marina, Inc., its owners, officers and/or
agents; (2) Plaintiffs have the legal right to access and enjoy beach and bathing privileges in the
beach without interference from Defendant Gem Beach Marina, Inc., its owners, officers and/or
agents; (3) Defendant Gem Beach Marina, Inc. has violated the legal rights of Plaintiffs to access
and cross all platted streets, paths and right of ways in the Gem Beach subdivision, Plats 1, 2, 3
and 4 by fencing, gating, and locking Poplar Avenue at the entrance to the beach area; (4)
Defendant Gem Beach Marina, Inc. has violated the legal rights of Plaintiffs to access and enjoy
beach and bathing privileges in the beach area of Gem Beach subdivision by fencing, gating
and/or locking the beach access points at Lakeview Drive and Poplar Avenue; (5) Defendant
Gem Beach Marina, Inc. does not have the legal right to demand any fee, whether for admission,
maintenance or otherwise, from Plaintiffs in exchange for access and use of their beach and
bathing privileges in the beach area of the Gem Beach subdivision; and (6) Defendant Gem
Beach Marina, Inc. has violated the easement rights of Plaintiffs to use the Park Area for
picnicking and parking by constructing a private club house and swimming pool thereon.
{¶26} Plaintiff Gem Beach Lot Owners’ Association’s Motion for Partial Summary
Judgment asks the Court to find only that Defendant has “violated the easement rights, usurping
10
COMMON PLEAS COURT OF OTTAWA COUNTY
them by building a beach house and pool and charging the public therefore in an area there
plaintiffs clearly had picnicking rights via an easement.”31
II.
STANDARD OF REVIEW
{¶27} Under Civ.R. 56(C), summary judgment is appropriate when the moving party
demonstrates that (1) there is no genuine issue of material fact; (2) the moving party is entitled to
judgment as a matter of law; and (3) after construing the evidence most favorably for the party
against whom the motion is made, reasonable minds can reach only a conclusion that is adverse
to the nonmoving party.32
{¶28} The moving party bears the initial responsibility of informing the court of the
basis for the motion and identifying those portions of the record that support the requested
judgment.33 If the moving party discharges this initial burden, the party against whom the
motion is made then bears a reciprocal burden of specificity to oppose the motion.34 Moreover,
it is well settled that the party seeking summary judgment bears the burden of showing that no
genuine issue of material fact exists for trial.35
31
Plaintiffs’ Motion for Partial Summary Judgment, at 2.
Zivich v. Mentor Soccer Club, Inc. (1998), 82 Ohio St. 3d 367, 369-370, 696 N.E. 2d 201, Citing Horton v.
Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 1995 Ohio 286, 653 N.E. 2d 1196, paragraph three of the syllabus;
Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274; Van Fossen
v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 117, 522 N.E.2d 489, 505.
33
Vahila v. Hall (1997), 77 Ohio St. 3d 421, 430; see also Dresher v. Burt (1996), 75 Ohio St. 3d 280, 293, 662
N.E.2d 264 (“the moving party cannot discharge its initial burden under Civ.R.56 simply by making a conclusory
assertation that the non-moving party has no evidence to prove its case”).
34
Vahila v. Hall (1997), 77 Ohio St. 3d 421; see also Mitseff v. Wheeler (1988), 38 Ohio St. 3d 112.
35
Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330, 91 L. Ed. 2d 265, 106 S. Ct. 2548; Mitseff v. Wheeler (1988),
38 Ohio St. 3d 112, 115, 526 N.E.2d 798; Dresher v. Burt (1996), 75 Ohio St. 3d 280.
32
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COMMON PLEAS COURT OF OTTAWA COUNTY
{¶29} In reviewing a motion for summary judgment, the court must construe the
evidence and all reasonable inferences drawn therefrom in a light most favorable to the party
opposing the motion.36
III.
ANALYSIS
{¶30} This Court must determine (A) whether the Papesh cases applied the underlying
Plat and deed reservation and exceptions of the Gem Beach subdivision in determining whether
Plaintiffs possess any easement or use rights in Areas B and C; (B) whether the stipulation in
Papesh III granted Plaintiffs use rights in Areas B and C, and if so, the extent of those rights; and
(C) whether Defendant violated those rights by restricting access to or restricting use of Areas B
and C.
A. Plaintiffs Possess Easement and Use Rights in Areas B and C
{¶31} Plaintiffs suggest that they are entitled to declaratory relief because they enjoy
easement rights set forth in the Plat and the deed by which Defendant acquired the remainder of
the Gem Beach subdivision. The Plat contained a reservation and exception of “streets, roads,
lanes, ways, paths, rights of way, parks or reservations” for the use of lot owners only.37
However, as the Appellate Court in Papesh II held, no area was designated on the Plat as a park.
The Appellate Court held it was irrelevant that the lot owners used Areas A, B and C as a park.38
36
Morris v. Ohio Cas. Ins. Co. (1988), 35 Ohio St. 3d 45; Harless v. Willis Day Warehousing (1978), 54 Ohio St. 2d
64; Murphy v. Reynoldsburg (1992), 65 Ohio St. 3d 356, 358-359, 604 N.E.2d 138 (Doubts must be resolved in
favor of the nonmoving party).
37
The Plat area has been replatted several times since 1922.
38
See Attached Exhibit B, which is a copy of Exhibit 11 used during the hearing of January 3, 1989 in Papesh v.
Gem Boat Service, Inc., Ottawa C.P. Case No. 22911 (January 3, 1989), and which reflects the location of Area A
12
COMMON PLEAS COURT OF OTTAWA COUNTY
Yet, Plaintiffs still argue that the Plat and deed reservation and exceptions of the Gem Beach
subdivision recite no restrictions to these easements and insist that they are entitled to use Areas
B and C without limitation.
{¶32} Defendant suggests that Plaintiffs have disregarded the stipulation agreed upon by
the parties in Papesh III, and are not entitled to unfettered access to Areas B and C. Defendant
also insists that Plaintiffs cannot assert a violation of their rights as a result of the construction of
the beach house and pool because Plaintiffs were aware of it, approved its concept, and did not
object until one year after construction.
Based on these facts, Defendant argues that the
doctrines of laches, estoppel, or waiver prevent Plaintiffs from now seeking a violation of their
easement or use rights as a result of the construction of the beach house and pool.39
{¶33} In response, Plaintiffs assert that they are only asking this Court to declare its
right to access Areas B and C without impediment and in full accordance with the instruments
recorded. Arguing that it is entitled to unimpeded access because these recorded documents
reflect the existence of an easement over Areas B and C, Plaintiffs suggest that Defendant’s
reliance upon the stipulation fails to create a genuine issue of material fact.
(red), Area B (Blue) and Area C (Yellow). See also attached Exhibit A, which is a copy of a survey map prepared
by William Vondra which reflects the location of Area A (red), Area B (Blue) and Area C (Yellow).
39
In their Complaint, Plaintiffs do seek the removal of “all buildings and appurtenances constructed upon Cedar
Avenue or other legal rights of way and adjoining property be restored to its pre-construction condition.” As well,
Plaintiffs seek to enjoin all further construction upon Cedar Avenue or the other Platted rights-of-ways in the Gem
Beach subdivision.”
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1)
Plaintiffs Do Not Have An Express, Implied or Prescriptive Easement in
Areas B and C
{¶34} 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.40 The owner of the easement is referred to as the
dominant estate and the land in which the interest exists is called the servient estate.41 When an
easement is granted by an express grant, the extent and limitations upon the dominant estate’s
use of the land depends upon the language of the granting instrument.42
{¶35} The land records reflects that by deed recorded May 10, 1937, Mathias J.
Barnhaldt and Emma S. Barnhaldt conveyed the remainder of their interest in Gem Beach
subdivision to The Twin Beach Resort Company excepting therefrom a portion of the property
lying in Area A.43 The Twin Beach Resort Company conveyed its interest in the aforementioned
property to Gem Boat Service, Inc., again excepting therefrom the premises described in deeds.44
Defendant, Gem Beach Marina, Inc. is a successor corporation to Gem Beach Service, Inc.
{¶36} The deed excepts “The rights heretofore conveyed to the owners of lots and
unplatted parcels within the boundaries of Gem Beach Plats 1, 2 and 3 and 4 to the use of the
streets and ways and to the use of the beach on said premises for bathing purposes, including the
40
Alban v. R.K. Company (1968), 15 Ohio St. 2d 229, 239 N.E.2d 22.
Alban v. R.K. Company (1968), 15 Ohio St. 2d 229, 239 N.E.2d 22. See Trattar v. Rausch (1950), 154 Ohio St.
286, 95 N.E.2d 685, paragraph one of the syllabus.
42
Alban v. R.K. Company (1968), 15 Ohio St. 2d 229, 239 N.E.2d 22.
43
On August 4, 1921, Mathias J. Barnhaldt and Emma S. Barnhaldt conveyed a portion of the property lying in Area
A to Nellie A. Wolfe. Wolfe conveyed this property to Dorothy Elizabeth Binder by deed recorded on September 1,
1951. In addition, the Barnhaldts conveyed various other lots in the subdivision to other individuals.
44
By deed recorded November 27, 1962.
41
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COMMON PLEAS COURT OF OTTAWA COUNTY
grants to the purchasers of small parcels lying west of Carolina Street to the use of the beach
south of the north line of Poplar Avenue extended * * *.”
{¶37} Although the Plat area has been replatted several times since 1922, it is
undisputed that these easement rights are further extended through Plats 1, 2, 3, and 4, which
provide: (1) “All lot owners shall have beach and bathing privileges with limits of not to exceed
ten [] persons using such privileges at any one time;”45 (2) “The bathing privileges shall apply to
the owner and bona fide guests only, not to persons who are paying tenants;”46 and (3) “All
owners of lots in the foregoing subdivision shall have beach and bathing privileges.
The
privileges shall apply to owners of lots or their bona fide guests only.”47
{¶38} However, in Papesh II, the Sixth Appellate Court upheld the trial court’s finding
that the lot owners did not have an express or implied easement to use the park area, granting
summary judgment to Gem Boat Service, Inc. And in Papesh III, the Appellate Court overruled
the trial court, holding that the lot owners did not have a prescriptive easement in Area A. The
Appellate Court observed that the parties “had agreed to an easement with respect to [Areas B
and C].”48
{¶39} Defendant does not dispute that Plaintiffs have an implied easement right in the
“streets, roads, lanes, ways, paths, [or] rights of way” in Plat No. 1 of the Gem Beach
subdivision. Instead, Defendant argues that Plaintiffs do not have easement rights in Areas B
and C, and are barred from asserting any rights to Areas B and C by the doctrine of res judicata.
45
Gem Beach Plat II
Gem Beach Plat II
47
Gem Beach Plat IV
48
Papesh v. Gem Boat Service, Inc., 6th Dist. No. OT-89-18, 1990 Ohio App. LEXIS 3794 (“Papesh III”).
46
15
COMMON PLEAS COURT OF OTTAWA COUNTY
Further, Defendant asserts that the stipulation agreed to between the parties in Papesh III sets
forth the extent of Plaintiffs’ use rights in Areas B and C.
2)
Res Judicata Bars Plaintiffs From Re-litigating the Easement Issue As To
Areas B and C
{¶40} Although Defendant asserts that “Plaintiffs are attempting to essentially relitigate
issues and facts that have already been stipulated and agreed in Papesh,”49 it does not assert that
res judicata bars the instant action. However, application of the doctrine of res judicta does bar
Plaintiffs from re-litigating the question of whether they possess an express or implied easement
in Areas B and C and a prescriptive easement in Area A.
{¶41} Res judicata operates as “‘a complete bar to any subsequent action on the same
claim or cause of action between the parties or those in privity with them.’”50 The doctrine of
res judicata encompasses the two related concepts of claim preclusion, also known as res
judicata or estoppel by judgment, and issue preclusion, also known as collateral estoppel.51
Claim preclusion prevents subsequent actions, by the same parties or their privies, based upon
any claim arising out of a transaction that was the subject matter of a previous action.52 Where a
claim could have been litigated in the previous suit, claim preclusion also bars subsequent
actions on that matter.53 Issue preclusion, on the other hand, serves to prevent relitigation of any
49
Defendant Gem Beach Marina, Inc.’s Response to Plaintiffs’ Motion for Partial Summary Judgment, at 1.
Johnson's Island, Inc. v. Danbury Twp. Bd. of Trustees (1982), 69 Ohio St. 2d 241, 243, 431 N.E.2d 672, 674,
quoting Norwood v. McDonald (1943), 142 Ohio St. 299, 52 N.E.2d 67, paragraph one of the syllabus.
51
Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, 381, 1995-Ohio-331, 653 N.E.2d 226.
52
Fort Frye Teachers Assn., OEA/NEA v. State Emp. Relations Bd. (1998), 81 Ohio St.3d 392, 395, 1998-Ohio-435,
692 N.E.2d 140.
53
Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, 382, 1995-Ohio-331, 653 N.E.2d 226.
50
16
COMMON PLEAS COURT OF OTTAWA COUNTY
fact or point that was determined by a court of competent jurisdiction in a previous action
between the same parties or their privies.54
{¶42} Generally, one is in privity with another if he succeeds to an estate or an interest
formerly held by the other,55 because privity is a succession of interest or relationship to the
same thing.56 Successive ownership interests in the same property are sufficient to sustain the
flow of privity.57 In Papesh I, that suit was filed as a class action complaint on behalf of all lot
owners in Gem Beach Plat No.1 against Gem Boat Service, Inc. In the instant case, this suit was
filed by Plaintiffs on behalf of several lot owners in Gem Beach Plat No.1 and was consolidated
with another case filed on behalf of all remaining lot owners in Gem Beach Plat No.1 against
Gem Beach Marina, Inc., successor to Gem Boat Service, Inc.58 As to the identical issues of
whether an easement exists in Areas A, B and C, which was litigated in Papesh I, II, and III, res
judicata applies.
3)
Plaintiffs Have An Easement Granting Them The Right “To The Use Of
The Streets And Ways and to the Use of The Beach on Premises For Said
Bathing Purposes”
{¶43} Although res judicata bars Plaintiffs from re-litigating the question of whether
they possess an easement in the park, Plaintiffs also assert that they have an easement granting
54
Fort Frye Teachers Assn., OEA/NEA v. State Emp. Relations Bd. (1998), 81 Ohio St.3d 392, 395, 1998-Ohio-435,
692 N.E.2d 140. Issue preclusion applies even if the causes of action differ.
55
Whitehead v. Genl. Tel. Co. (1969), 20 Ohio St. 2d 108, 254 N.E.2d 10; 1969 Ohio LEXIS 312, at paragraph four.
56
32 Ohio Jurisprudence 2d 476 (rev. ed.), Judgments, Section 248.
57
Whitehead v. Genl. Tel. Co. (1969), 20 Ohio St. 2d 108, 115, 254 N.E.2d 10; 1969 Ohio LEXIS 312.
58
Gem Beach Lot Owners Association v. Gem Beach Marina, Inc., Ottawa C.P. 04CV182H.
17
COMMON PLEAS COURT OF OTTAWA COUNTY
them the right “to the use of the streets and ways and to the use of the beach on the premises for
said bathing purposes.”
{¶44} It is undisputed that these easement rights are further extended through Plats 1, 2,
3, and 4, which provide: (1) “All lot owners shall have beach and bathing privileges with limits
of not to exceed ten [] persons using such privileges at any one time;”59 (2) “The bathing
privileges shall apply to the owner and bona fide guests only, not to persons who are paying
tenants;”60 and (3) “All owners of lots in the foregoing subdivision shall have beach and bathing
privileges. The privileges shall apply to owners of lots or their bona fide guests only.”61
{¶45} Defendant asserts, however, that they are entitled to impose certain restrictions
upon Plaintiffs’ access because of continuing problems over the years, including, but not limited
to trespassers, bonfires, broken glass on the beach and illegal drug use.
i. Defendant May Impose Restrictions Upon Plaintiffs’ “Use of the
Streets and Ways and to the Use of the Beach on the Premises for Said
Bathing Purposes”
{¶46} Pursuant to Gibbons v. Ebding,62 a landowner may “use his land for any purpose
that does not interfere with the easement.” The owner of the land “is entitled to make any use of
the servient estate that does not unreasonably interfere with enjoyment of the servitude.”63 It is
59
Gem Beach Plat II.
Gem Beach Plat II.
61
Gem Beach Plat IV.
62
Gibbons v. Ebding (1904), 70 Ohio St. 298, 71 N.E. 720, 1904 Ohio LEXIS 364.
63
Quoting Restatement (Third) of Property, § 4.10,
60
18
COMMON PLEAS COURT OF OTTAWA COUNTY
accepted law that the extent of an easement created by an express grant is fixed by the terms of
the grant and the circumstances surrounding the transaction.64
{¶47} The grant of an easement includes the grant of all things necessary for the
dominant estate to use and enjoy the easement.65 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.66
{¶48} Absent a specific provision in an easement which defines the easement’s scope,
the scope of the easement should be interpreted to include all uses which are reasonably
necessary and convenient to carry out the purpose of the easement.67
In other words, an
unrestricted grant of an easement gives the grantee all such rights as are necessary to the
reasonable and proper enjoyment thereof.68
This is important because it is the use of an
easement, more than its possession or occupancy, which distinguishes an easement as an interest
in real property.69
{¶49} However, Defendant asserts that it is entitled to restrict “renters, tenants, nonbona fide guests and members of the general public,”70 and to erect or maintain a fence and gate
because of continuing problems over the years, including, but not limited to trespassers, bonfires,
broken glass on the beach and illegal drug use, it is entitled to restrict the access to Areas B and
C.
64
Hensen v. Stine (1943), 74 Ohio App. 221, 224.
Day, Williams & Company v. RR. Company (1884), 41 Ohio St. 392.
66
Alban v. R.K. Company (1968), 15 Ohio St. 2d 229, 239 N.E.2d 22.
67
Columbia Gas Transm. Corp. v. Bennett (1990), 71 Ohio App. 3d 307, 318, 594 N.E.2d 1.
68
Rueckel v. Texas E. Transm. Corp. (1981), 3 Ohio App. 3d 153, 159-160, 444 N.E.2d 77.
69
Rueckel v. Texas E. Transm. Corp. (1981), 3 Ohio App. 3d 153, 160, 444 N.E.2d 77.
70
Defendant Gem Beach Marina, Inc.’s Response to Plaintiffs’ Motion for Partial Summary Judgment, at 9.
65
19
COMMON PLEAS COURT OF OTTAWA COUNTY
{¶50} In Gibbons v. Ebding,71 the Ohio Supreme Court observed, “The rule is general
that the landowner may put gates and bars across a way over his land, which another is entitled
to enjoy, unless, of course, there is something in the instrument creating the way, or in the
circumstances under which it has been acquired or used, which shows that the way is to be an
open one. * * * The land remains the property of the owner of the servient estate and he is
entitled to use it for any purpose that does not interfere with the easement.”72
{¶51} In Gibbons, the Court also recognized that: “Every owner of real property has the
right to so deal with it, as to restrain its use by his grantees within such limits as to prevent its
appropriation to purposes which will impair the value or diminish the pleasure of the enjoyment
of the land which he retains. The only restriction on this right is, that it shall be exercised
reasonably, with a due regard to public policy, and without creating any unlawful restraint of
trade. In Gibbons, the reservation simply stated that “the western twelve feet of the described
property to be used as a driveway in common with the owners of property on Willson Avenue
adjoining the described twelve-foot driveway and by the above grantee, and there was nothing to
show that the driveway was to be an open way, but it is shown that it is used by trespassers, who
commit nuisances therein and thereby reduce the rental value of the property, equity will not
enjoin the erection or maintenance of a gate.”73
{¶52} In Gibbons, the Court stressed that “the erection of gates or bars at the termini of
the way was not an unreasonable interference with its use,” because “There is nothing in the
71
Gibbons v. Ebding (1904), 70 Ohio St. 298, 71 N.E. 720, 1904 Ohio LEXIS 364.
See Jones on Easements, secs. 413, 407; Washburn on Easements, 255; Methodist Prot. Church v. Laws, 4 Circ.
Dec., 562; 7 C. C. R., 211.
73
Gibbons v. Ebding (1904), 70 Ohio St. 298, 71 N.E. 720, 1904 Ohio LEXIS 364.
72
20
COMMON PLEAS COURT OF OTTAWA COUNTY
language of the reservation * * * that indicates that it was to be either open or public.”74 In this
case, the language of the Plat and deed does not suggest that the use of the streets and beach are
to be either open or public.
{¶53} The chain of title to lots in the Gem Beach subdivision recites no restrictions on
these easements and rights of way or the beach and bathing privileges. Thus, as the holder of the
easements, Plaintiff lot owners are the dominant estate and Defendant is the servient estate in the
platted roads of Gem Beach subdivision. Plaintiffs’ easement rights extend to their bona fide
guests, limited to ten. Defendant may not restrict Plaintiffs’ “use of the streets and ways and to
the use of the beach on the premises for said bathing purposes,” but may restrict access to
“renters, tenants, non-bona fide guests and members of the general public.”75 Because the
easement is not an open one, Defendant is entitled to erect or maintain a fence alongside the
platted streets bordering Areas A, B, and C, and across Cedar Avenue at Carolina Street, as long
as it provides gated access to Areas B and C in accordance with the stipulations set forth in
Papesh III.
B. The Stipulation in Papesh III Granted Plaintiffs Use Rights in Areas B and C
{¶54} Defendant disputes Plaintiffs’ assertion that they have an easement to Areas B and
C, arguing that the scope of use rights are defined in the stipulation agreed to by the parties in
Papesh III. The stipulation in Papesh III establishes the physical boundaries of Areas B and C
and acknowledges that Area B south of Cedar Avenue has been used as a parking area by the lot
owners and it was agreed that they could continue to use it for that purpose. The stipulation
74
Gibbons v. Ebding (1904), 70 Ohio St. 298, 71 N.E. 720, 1904 Ohio LEXIS 364.
21
COMMON PLEAS COURT OF OTTAWA COUNTY
provides that the use of Area B south of Cedar Avenue “will extend from April 15th each year
through November 15th each year, but that Gem Boat service, or Gem Beach Marina, * * * will
be allowed to store boats in that area south of Cedar Avenue commending October 1st, and the
last boat is to be out by May 1st, even though that time overlaps a little bit.”76
{¶55} The stipulation also provides that the lot owners “have a right” to the use of Area
C. It was stipulated that access to Areas A, B and C, have been limited to daylight hours during
the summer season for security reasons, and “also to eliminate in this particular area the outsiders
coming in for bonfires, drinking, drug abuse and similar wants.”77
Defendant’s counsel
acknowledged that “the lot owners have the use of the beach, and they have access to that beach
area over Lakeview Avenue, which is the road dedicated to the lot owners.”78 And Plaintiffs’
counsel acknowledged that while the “property was completely enclosed,” there was a fence
along Carolina Street, but not along Poplar Avenue prior to the transfer of the property to Gem
Beach Marina, Inc.79
{¶56} Although the Plaintiffs acquired certain easement rights by virtue of a Plat and
deed which accorded those rights of access over and across streets, and certain bathing
privileges, the question is whether the additional restrictions imposed upon Plaintiffs through the
stipulation are enforceable. If the stipulation is enforceable, it must be determined whether
restrictions upon Plaintiffs’ access to Areas B and C, through the use of fencing, gates and
75
Defendant Gem Beach Marina, Inc.’s Response to Plaintiffs’ Motion for Partial Summary Judgment, at 9.
Transcript, at 16: 24-25 and 17: 1-6, Papesh v. Gem Boat Service, Inc., Ottawa C.P. Case No. 22911 (January 3,
1989).
77
Transcript, at 8: 1, Papesh v. Gem Boat Service, Inc., Ottawa C.P. Case No. 22911 (January 3, 1989).
78
Transcript, at 15: 12-15, Papesh v. Gem Boat Service, Inc., Ottawa C.P. Case No. 22911 (January 3, 1989).
79
Transcript, at 12: 1, Papesh v. Gem Boat Service, Inc., Ottawa C.P. Case No. 22911 (January 3, 1989).
76
22
COMMON PLEAS COURT OF OTTAWA COUNTY
charging Plaintiffs a fee to access Areas B and C or for beach maintenance, and constructing a
beach house and a pool in Area B interferes with the easement or the stipulation.
1)
The Stipulation is Enforceable Against Defendant
{¶57} Defendants argue that the stipulation between the parties in Papesh III is
enforceable upon the lot owners in Gem Beach subdivision, it imposes additional restrictions,
and that it permits Gem Beach Marina, Inc. to charge a fee for the maintenance of the beach and
to construct a beach house and pool upon Area B. Plaintiffs do not address the stipulation in its
Motion or Reply, choosing instead to rely solely upon the Plat and deed by which Defendant
acquired the remainder of the Gem Beach subdivision, arguing that they are entitled to unfettered
access to Areas B and C.
{¶58} Here, Plaintiffs do not dispute that the lot owners in Papesh III stipulated to the
physical parameters of Areas B and C and to the extent of Plaintiffs’ easement rights in Areas B
and C. Instead, Plaintiffs suggest that the stipulation is irrelevant because they have acquired an
easement in Areas B and C by virtue of the Plat and deed by which Defendant acquired the
remainder of the Gem Beach subdivision.
{¶59} “[A] stipulation is a voluntary agreement between opposing counsel concerning
disposition of some relevant point so as to obviate the need for proof or to narrow the range of
litigable issues.”80 “Thus, a stipulation, once entered into, filed and accepted by the court, is
binding upon the parties and is a fact deemed adjudicated for purposes of determining the
80
In the Matter of Body, 5th Dist. No. 97 CA 33, 1998 Ohio App. LEXIS 3030, quoting 89 Ohio Jurisprudence 3 d
(1989), Trial, Section 69.
23
COMMON PLEAS COURT OF OTTAWA COUNTY
remaining issues in that case. A party who has agreed to a stipulation cannot unilaterally retract
or withdraw from it.”81
{¶60} The record reflects that the parties in Papesh III manifested their intent to be
bound by the stipulations. Plaintiffs’ counsel in Papesh III testified: “the area marked C on this
map, and covered in yellow * * * and the B area with the blue ink around it, just north of Cedar
Avenue and east of Carolina Street, are areas not in dispute. In other words, Defendants agree
that those areas are included in these rights that the Plaintiffs’ class have.”82
{¶61} Defendant’s counsel added: “as far as part C in yellow * * * being the beach area,
is – as Mr. Grummel set forth, the Plaintiffs do have a right to the use of that. And also to the
area that has a blue circle around it directly north of Cedar Avenue. We have agreed that they
have some rights to use this area. There has been historically – this area is fenced, especially the
area from Lakeview drive down to Poplar. The access to it is limited, basically, the daylight
hours during the summer season when most of [the lot owners] are there. This is done for
security reasons, also to eliminate in this particular area the outsiders coming in for bonfires,
drinking, drug abuse, and similar wants.”83
{¶62} But Defendant’s counsel emphasized, “we do not agree that they have the
unlimited use of this in an easement type situation, that the Defendant would still control the use
of it, as it has been in the past, during the summer season when the picnic area and beach would
want to be used, and the times from being able to close the area at approximately dusk, in order
81
In the Matter of Body, 5th Dist. No. 97 CA 33, 1998 Ohio App. LEXIS 3030, quoting Horner v. Whitta, 3rd Dist.
No. 13-93-33, 1994 Ohio App. LEXIS 1248, at *5.
82
Transcript, at 6: 7-13, Papesh v. Gem Boat Service, Inc., Ottawa C.P. Case No. 22911 (January 3, 1989).
83
Transcript, at 7: 24-25 & 8: 1-13, Papesh v. Gem Boat Service, Inc., Ottawa C.P. Case No. 22911 (January 3,
1989).
24
COMMON PLEAS COURT OF OTTAWA COUNTY
to restrict it to, not only to use by the Defendant and his dockers and guests from the marina, but
also to restrict it to the use of the property owners and their guests.”84
{¶63} And Plaintiffs’ counsel later added: “We’ve arrived at a stipulation that the area
we’ve agreed to will now include the 120 foot south of Cedar Avenue, which is stipulated has
been used as a parking area by the Plaintiffs’ class, and they have established the use of that area
for that purpose. And that the use of the easement will extend from April 15th each year through
November 15th each year, but that Gem Boat Service, or Gem beach Marina, the present owner
of the fee simple title, will be allowed to store boats in that area south of Cedar Avenue
commencing October 1st, and that the last boat to be out by May 1st, even though that time
overlaps a little bit.”85
{¶64} Thus, the stipulation does set forth some restraints on the parameters of Areas B
and C and certain restrictions on the use of Areas B and C. As the Appellate Court in Papesh III,
noted, “the trial court indicated in its journal entry that the stipulation covered Area B.”86
2)
Defendant Was Entitled to Construct a Beach House and Pool, But
Whether the Beach House and Pool Violates Plaintiffs’ Easement and Use
Rights is a Question of Fact
{¶65} Having determined that Plaintiffs have an easement “to the use of the streets and
ways and to the use of the beach on the premises for said bathing purposes,” and that the
84
Transcript, at 8: 18-25 & 9: 1-2, Papesh v. Gem Boat Service, Inc., Ottawa C.P. Case No. 22911 (January 3,
1989).
85
Transcript, at 16: 18-25 & 17: 1-6, Papesh v. Gem Boat Service, Inc., Ottawa C.P. Case No. 22911 (January 3,
1989).
86
Papesh v. Gem Boat Service, Inc., 6th Dist. No. OT-89-18, 1990 Ohio App. LEXIS 3794 (“Papesh III”).
25
COMMON PLEAS COURT OF OTTAWA COUNTY
stipulation sets forth certain use rights in Areas B and C, any use inconsistent with those rights
cannot be sustained.87
{¶66} Defendant does not dispute that Plaintiffs have some easement rights in Areas B
and C, certain of which are conveyed by the Plat and deed by which Defendant acquired the
remainder of the Gem Beach subdivision, and others by stipulation in Papesh. But Defendant
asserts that the construction and maintenance of the beach house and pool is not inconsistent
with any use rights granted in Papesh or with the historical use of the park area. Defendant
insists that the construction of the beach house and pool has not interfered with Plaintiffs’
parking rights because the lot itself has not been filled to capacity. Plaintiffs do not argue
otherwise. Plaintiffs simply assert that the construction of the beach house and pool has rendered
their rights in that portion of the park useless.
{¶67} Plaintiffs assert that the beach house is inconsistent with their use rights because it
is a private club house and that they are not entitled to use it. Defendant, however, states that the
beach house was constructed as an amenity for the lot owners as well as itself, and is open to the
lot owners and others “when the facility is open.”88 Defendant also asserts that similar facilities
existed in the past in the same approximate location as the beach house and pool, including a
bath house, arcade, and roller skating rink, and that the lot owners and the public have used this
area as a recreational area. Defendants concede that the pool, unlike the basketball court and
pavilion and beach house, which are located in Area B (north), is limited to those paying a fee.
But Defendant insists that it is entitled to charge a fee for the use of the pool in order to offset the
cost of maintaining the pool (i.e., lifeguards, pool maintenance).
87
Gibbons v. Ebding (1904), 70 Ohio St. 298, 71 N.E. 720, 1904 Ohio LEXIS 364. See Hensen v. Stine (1943), 74
26
COMMON PLEAS COURT OF OTTAWA COUNTY
{¶68} Neither the easement nor stipulation prohibits the construction of a beach house or
pool in Area B. The construction of the beach house, pool, and relocation of Cedar Avenue, has
reduced the square footage of Areas B and C, which the parties had stipulated was to be available
for the use and enjoyment of Plaintiffs. Thus, whether Defendant has violated Plaintiffs’ certain
use rights in Areas B and C by constructing a beach house and pool is a question of fact to be
resolved according to the circumstances of the case and the nature of the encroachment. More
specifically, the trier of fact must determine whether the beach house and pool unreasonably
interfere with the enjoyment of the servitude.89
The loss of park space resulting from
Defendant’s actions may require it to compensate Plaintiffs by removing a portion of, or all of
the beach house and pool, or grant Plaintiffs comparable park space in Area A, or elsewhere on
Ohio App. 221, 224.
88
Defendant Gem Beach Marina, Inc.’s Response to Plaintiffs’ Motion for Partial Summary Judgment, at 17.
89
{¶a}
Plaintiffs also suggest that “[b]locking the picnickers’ view of the lake, * * * is wholly
inconsistent with plaintiffs’ easement rights.” Plaintiffs’ Motion for Partial Summary Judgment at 9. As well,
Plaintiffs’ Complaint asks that this Court “Establish a sight easement benefiting the real property of Plaintiffs and
other lot owners and burdening the real property of Defendant whereby Plaintiffs and other lot owners will have
continued enjoyment of the view from their properties and right-of-ways of Lake Erie and the Erie Islands
unobscured by new structures built by Defendant on its property.”
{¶b}
However, the Ohio Supreme Court has consistently held that “An easement in light and air, to be
supplied to one’s windows from the premises of another cannot be acquired in Ohio by use or prescription.” Mullen
v. Strickler (1869), 19 Ohio St. 135, 1869 Ohio LEXIS 124. In Letts v. Kessler (1896), 54 Ohio St. 73; 42 N.E.
765; 1896 Ohio LEXIS 196, the Court held, “A person in the proper use of his own premises, for use, ornament or
other good purpose, may erect buildings or structures, up to his line, doing no unnecessary damage to his neighbor,
even if it closes up his neighbor’s windows or darkens them.” The Court further held that “a landowner had no right
to have her view across the road protected from an embankment resulting from a road expansion.” And in
Schiederer v. Preston (1960), 170 Ohio St. 542, 544, 166 N.E.2d 748, quoting 1 Lewis on Eminent Domain (3 Ed.),
179 et seq., Section 120, the Court held that “the private rights of access, light and air are held and enjoyed subject
to the paramount right of the public to use and improve the street for the purposes of a highway. And * * * it follows
that, when such uses or improvements are made, no private right is interfered with and consequently no private
property is taken.”
{¶c}
Because neither the easement nor stipulation prohibit the construction of a beach house or pool in
Area B, Plaintiffs do not have a right to a view of Lake Erie or the Erie Islands.
{¶d}
Whether Defendant has violated Plaintiffs’ certain use rights in Areas B and C by constructing a
beach house and pool is a question of fact to be resolved according to the circumstances of the case and the nature of
the encroachment. The view of Lake Erie and the Erie Islands can be preserved only if the circumstances of the
case and the nature of the encroachment require the removal of the beach house and pool. However, as this Court
emphasized, the addition of any other structure that encroaches upon Areas B and C at any point in time will
27
COMMON PLEAS COURT OF OTTAWA COUNTY
its property, and may also include monetary damages. The addition of any other structure that
encroaches upon Areas B and C at any point in time will necessarily require a determination in
court of whether it unreasonably interferes with the enjoyment of the servitude. Similarly, the
question of whether Defendant may charge Plaintiffs a fee to use the beach house or pool shall
be considered when determining whether the beach house and pool interfere with Plaintiffs’ use
and enjoyment of Area B;
3)
Defendant May Not Charge Plaintiffs a Fee to Access Areas B and C
{¶69} Although the parties in Papesh manifested their intent to be bound by the
stipulations, the Plat and deed reservation and exceptions provide Plaintiffs with an implied
easement granting them the right “to the use of the streets and ways and to the use of the beach
on the premises for said bathing purposes.”90
{¶70} The grant of an easement includes the grant of all things necessary for the
dominant estate to use and enjoy the easement.91 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.92
{¶71} Absent a specific provision in an easement which defines the easement’s scope,
the scope of the easement should be interpreted to include all uses which are reasonably
necessary and convenient to carry out the purpose of the easement.93
In other words, an
necessarily require a determination in court of whether it unreasonably interferes with the enjoyment of the
servitude.
90
The Plat area has been replatted several times since 1922.
91
Day, Williams & Company v. RR. Company (1884), 41 Ohio St. 392.
92
Alban v. R.K. Company (1968), 15 Ohio St. 2d 229, 239 N.E.2d 22.
93
Columbia Gas Transm. Corp. v. Bennett (1990), 71 Ohio App. 3d 307, 318, 594 N.E.2d 1.
28
COMMON PLEAS COURT OF OTTAWA COUNTY
unrestricted grant of an easement gives the grantee all such rights as are necessary to the
reasonable and proper enjoyment thereof.94
This is important because it is the use of an
easement, more than its possession or occupancy, which distinguishes an easement as an interest
in real property.95
{¶72} In Gibbons, the Court observed that “the erection of gates or bars at the termini
of the way was not an unreasonable interference with its use,” because “There is nothing in the
language of the reservation * * * that indicates that it was to be either open or public.”96
Emphasizing that “there was nothing to show that the driveway was to be an open way, * * * the
Court held “equity will not enjoin the erection or maintenance of a gate.”97
{¶73} Plaintiffs assert that Defendant may not charge them a fee as a condition of
obtaining access to Areas B and C. Absent a specific provision permitting the imposition of a
fee to access Areas B and C, interpretation of the easement to include all uses which are
reasonably necessary and convenient to carry out the purpose of the easement precludes the
imposition of a fee for access. Thus, the charging of a fee as a condition of entry is an
unreasonable interference with Plaintiffs’ easement.
4)
Plaintiffs Have an Obligation to Contribute Toward the Maintenance of
the Beach, But Not The Beach House or Pool
{¶74} Plaintiffs seek declaratory judgment that Defendant Gem Beach Marina, Inc. does
not have the legal right to demand a fee, whether for admission, maintenance or otherwise, from
94
Rueckel v. Texas E. Transm. Corp. (1981), 3 Ohio App. 3d 153, 159-160, 444 N.E.2d 77.
Rueckel v. Texas E. Transm. Corp. (1981), 3 Ohio App. 3d 153, 160, 444 N.E.2d 77.
96
Gibbons v. Ebding (1904), 70 Ohio St. 298, 71 N.E. 720, 1904 Ohio LEXIS 364.
97
Gibbons v. Ebding (1904), 70 Ohio St. 298, 71 N.E. 720, 1904 Ohio LEXIS 364.
95
29
COMMON PLEAS COURT OF OTTAWA COUNTY
Plaintiffs in exchange for access and use of their beach and bathing privileges in the beach area
of the Gem Beach subdivision.” Having held that Defendant may not charge Plaintiffs a fee for
access to Areas B and C, the question then, is whether Plaintiffs have an obligation to contribute
toward the maintenance of the beach, beach house and pool.
{¶75} Although the easement grant or the stipulation does not specify whether Plaintiff
was expected to contribute to the maintenance of the beach or any structures in Areas B and C,
the fact that the easement or stipulation is silent as to the issue of contribution does not affect
Plaintiffs’ obligation to contribute their fair share.
Pursuant to this Court’s decision in
Bremenour v. Johnson’s Island Property Owner’s Association,98 and Johnson’s Island Property
Owner’s Association v. Nachman,99 Plaintiffs have an obligation to contribute to the maintenance
of the beach, but not the beach house and pool.
{¶76} In Nachman, the Court observed that “the Nachmans were given actual notice of
the existence of JIPOA’s predecessor, Johnson’s Island Club, Inc., and knew that they took their
property subject to conditions and restrictions ‘of record.’”100 The Articles of Incorporation for
JIC provided in part that JIPOA shall: (1) promote the development of the common facilities on
Johnson’s Island for the use and benefit of all lot owners; (2) operate and maintain said facilities
and adopt and enforce regulations governing the conditions of use thereof; and (3) promote
service on or to the Island for the members.
{¶77} The Court in Nachman concurred with the trial court in Bremenour, which stated,
“* * * there is ample authority to substantiate the legal proposition that, given notice, the
98
Bremenour v. Johnson’s Island Property Owner’s Association, Ottawa County C.P. No. 23134.
Johnson’s Island Property Owner’s Association v. Nachman, 6th Dist. No. OT-98-043, 1999 Ohio App. LEXIS
5478.
99
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COMMON PLEAS COURT OF OTTAWA COUNTY
purchaser of land takes it subject to all the rights, entitlements, benefits, liabilities and
responsibilities to which he has constructive or actual notice of. It becomes axiomatic that when
the notice specifically enumerates that all covenants and restrictions run with the land – it does
just that. Equity would demand that a title holder cannot reap the benefits without accepting the
responsibility of funding that which causes the benefits. Given the posture that an organization
causes the benefits it can only legally and equitably follow that the organization be funded so it
may continue to operate, i.e. dues. The old adage applies, you want to dance - you pay the
fiddler.”101
{¶78} In Nachman, the appellees bought their properties knowing of the existence of the
tollgate and JIPOA and knowing that JIPOA provided services and benefits to all owners of
property on Johnson’s Island, and that all of those property owners were required to pay for
those benefits. As a result, if the appellees are not required to contribute to the normal operating
costs of the maintenance, repair and improvement of Gaydos Drive, the Causeway, Confederate
Drive and Memorial Shoreway Drive, they would be unjustly enriched by the benefits JIPOA
provides to them.
{¶79} But in Spring Lake, Ltd. v. O.F.M. Co.,102 the Ohio Supreme Court stated that
“no owner of real estate is obligated to abide by restrictions or provisions that do not appear in
that owner’s chain of title.” In Spring Lake, Ltd., the Court held that appellant did not have
actual or constructive notice of the easement where there was no recorded instrument evidencing
100
Johnson’s Island Property Owner’s Association v. Nachman, 6th Dist. No. OT-98-043, 1999 Ohio App. LEXIS
5478.
101
Johnson’s Island Property Owner’s Association v. Nachman, 6th Dist. No. OT-98-043, 1999 Ohio App. LEXIS
5478, quoting Bremenour v. Johnson’s Island Property Owner’s Association, Ottawa County C.P. No. 23134.
Emphasis added.
102
Spring Lake, Ltd. v. O.F.M. Co. (1984) 12 Ohio St. 3d 333, 467 N.E.2d 537, 1984 Ohio LEXIS 1221.
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appellee’s easement in appellant’s chain of title.103 Thus, the Court concluded that appellant did
not have constructive notice of a possible easement.104
{¶80} But here, as in Bremenour and Nachman, the Plaintiffs had constructive notice of
a possible easement in the beach, having bought their properties knowing that they had beach
and bathing privileges. And like the land contracts that the Nachmans signed when purchasing
their property, including the deed restrictions and the deeds themselves, Plaintiffs’ easements and
restrictions of record are silent as to Plaintiffs’ obligation to contribute to the maintenance of
Areas B and C.
{¶81} Plaintiffs, however, were aware of their easement “to the use of the beach on the
premises for said bathing purposes.” Thus, Plaintiffs are obligated to contribute their fair share
toward the maintenance of the beach. Likewise, Defendant is also obligated to contribute its fair
share toward the maintenance of the beach.
C. Defendant Violated Certain of Plaintiffs’ Easement Rights and Use Rights
{¶82} Having established Plaintiffs’ rights of access under the Plat and deed and rights
of use according to the stipulation in Papesh III, the Court must now consider whether Defendant
violated those rights by restricting access to or use of Areas B and C, and constructing a beach
house and pool.
{¶83} Although Defendant may impose restrictions upon Plaintiffs’ “use of the streets
and ways and to the use of the beach on the premises for said bathing purpose,” Plaintiffs have
shown that Defendant violated the easement rights of Plaintiffs by fencing, gating and locking
103
Spring Lake, Ltd. v. O.F.M. Co. (1984) 12 Ohio St. 3d 333, 467 N.E.2d 537, 1984 Ohio LEXIS 1221.
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COMMON PLEAS COURT OF OTTAWA COUNTY
Poplar Avenue at the entrance to the beach without providing access to all owners during the
times and periods stipulated to in Papesh III.
{¶84} Further, Plaintiffs have shown that Defendant violated the legal rights of Plaintiffs
to access and enjoy beach and bathing privileges in the beach area of Gem Beach Subdivision by
fencing, gating and locking the beach access points at Lakeview Drive and Poplar Avenue
without providing access to all lot owners at both locations during the times and periods
stipulated to in Papesh III.
{¶85} Although Defendant has a right to construct a beach house and pool in Area B,
whether the beach house and pool unreasonably interferes with Plaintiffs’ rights to use Area B is
a question of fact. Having a right to use Area B doesn’t mean the right to all of Area B.
Although Area B (south) is designated for parking, Plaintiffs do not allege that the building and
the relocation of Cedar Avenue onto Area B (south) has interfered with their parking rights.
{¶86} But whether the beach house and pool interferes with Plaintiffs’ use of Area B
(north) as a park and picnicking area, is a question of fact to be resolved according to the
circumstances of the case and the nature of the encroachment.
D. Doctrine of Laches, Estoppel, or Waiver Does Not Bar Plaintiffs From Asserting
a Violation of Their Easement Rights and Use Rights Extended to them by the
Papesh III Stipulation
{¶87} Defendant, Gem Beach Marina, Inc. asserts that the doctrine of laches, estoppel,
or waiver preclude Plaintiffs from asserting a violation of their easement rights and any use
104
Spring Lake, Ltd. v. O.F.M. Co. (1984) 12 Ohio St. 3d 333, 467 N.E.2d 537, 1984 Ohio LEXIS 1221.
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rights extended to them by the Papesh III stipulation as a result of the construction of the beach
house and pool in Area B.
{¶88} Laches, estoppel, and waiver are equitable defenses. “‘Laches is an omission to
assert a right for an unreasonable and unexplained length of time, under circumstances
prejudicial to the adverse party. * * * It is lodged principally in equity jurisprudence.’”105 Delay,
alone, in asserting a right does not constitute laches.106 Rather, one must show that he or she has
been materially prejudiced by the delay of the person asserting the claim.107
{¶89} “[E]lements of laches are (1) unreasonable delay or lapse of time in asserting a
right, (2) absence of an excuse for the delay, (3) knowledge, actual or constructive, of the injury
or wrong, and (4) prejudice to the other party.”108 Although laches “is predominantly a question
of fact to be resolved according to the circumstances of each individual case,”109 a “delay in
asserting a right does not of itself constitute laches.” But such delay must be “to the prejudice of
the adverse party.”110
{¶90} Similarly, equitable estoppel arises only from a misleading communication that is
relied upon and thereby results in prejudice to the other party.111 “The mere inconvenience of
105
Connin v. Bailey (1984), 15 Ohio St.3d 34, 35, 472 N.E.2d 328, quoting Smith v. Smith (1957), 107 Ohio App.
440, 443-444, 146 N.E.2d 454, affirmed (1959), 168 Ohio St. 447, 156 N.E.2d 113.
106
Connin v. Bailey (1984), 15 Ohio St.3d 34, 35, 472 N.E.2d 328.
107
Seegert v. Zietlow (1994), 95 Ohio App. 3d 451, 457, 642 N.E.2d 697.
108
State ex rel. SuperAmerica Group v. Licking Cty. Bd. of Elections (1997), 80 Ohio St.3d 182, 186, 1997-Ohio347, 685 N.E.2d 507, citing State ex rel. Polo v. Cuyahoga Cty. Bd. of Elections (1995), 74 Ohio St.3d 143, 145,
1995 Ohio 269, 656 N.E.2d 1277.
109
Still v. Hayman, 153 Ohio App.3d 487, 2003-Ohio-4113, at P8, 794 N.E.2d 751, citing Bitonte v. Tiffin Sav. Bank
(1989), 65 Ohio App.3d 734, 739, 585 N.E.2d 460; see, also, Thomas v. Thomas, 10th Dist. No. 03AP-1106, 2004Ohio-2136, at P14; Jefferson Regional Water Auth. v. Montgomery Cty., 161 Ohio App.3d 310, 2005-Ohio-2755, at
P7, 829 N.E.2d 1310.
110
Smith v. Smith (1959), 168 Ohio St. 447, 457, 156 N.E.2d 113.
111
Payne v. Cartee (1996), 111 Ohio App. 3d 580, 589, 676 N.E.2d 946, 1996 Ohio App. LEXIS 2471.
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having to meet an existing obligation imposed * * * by an order or judgment of a court of record
at a time later than that specified in such * * * order cannot be called material prejudice.”112
{¶91} Lastly, “‘waiver’ is the voluntary surrender or relinquishment of a known legal
right or intentionally doing of an act inconsistent with claiming it.”113 “Mere silence will not
amount to waiver where one is not bound to speak.”114
{¶92} Defendant implies that it would not have built the beach house and pool had any
of the lot owners objected. Defendant asserts that the plans for the beach house and pool were
made available to the lot owners and that it received support from the lot owners association. As
such, Defendant asserts that it was prejudiced by Plaintiffs’ delay in objecting to the beach house
and pool because it has already constructed the beach house and pool at substantial expense.
{¶93} But Plaintiffs assert (1) that the lot owners association could not speak for all lot
owners, particularly those who were not members; (2) that the lot owners association was a
voluntary organization and as such, any resolution concerning the construction of the beach
house and pool cannot be binding upon any of the lot owners; (3) there was no resolution
approving or accepting the construction of the beach house and pool; and (4) the lot owners did
object to the proposed construction before filing suit.
{¶94} Plaintiffs properly assert that not all of the lot owners joined in or acquiesced with
the plans of GBLOA. Not all lot owners are members of GBLOA, and Defendant does not assert
112
Connin v. Bailey (1984), 15 Ohio St.3d 34, 37, 472 N.E.2d 328, quoting Smith v. Smith (1959), 168 Ohio St. 447,
457, 156 N.E.2d 113.
113
Marfield v. Cincinnati, D&T Traction Co. (1924), 111 Ohio St. 139, 145, 144 N.E. 689. See State ex rel Madden
v. Windham Exempted Village School District Board of Education (1989), 42 Ohio St. 3d 86, 91, 537 N.E.2d 646;
State ex rel Chavis v. Sycamore City School District Board of Education (1994), 71 Ohio St. 3d 26, 641 N.E.2d 188,
1994 Ohio LEXIS 2586.
114
N. Olmsted v. Eliza Jennings, Inc. (1993), 91 Ohio App. 3d 173, 180, 631 N.E.2d 1130, quoting List & Son Co. v.
Chase (1909), 80 Ohio St. 42, 49, 88 N.E. 120.
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COMMON PLEAS COURT OF OTTAWA COUNTY
that the members of GBLOA voted on the issue of the beach house and pool. Defendant simply
alleges that the Board of Trustees voted to approve this plan. Yet, Plaintiffs assert that there is
no record of such an action. Pursuant to Devoss v. Gray,115 “The deacons of an unincorporated
religious society, who are ex officio agents for the management and control of its property and
effects, cannot be held personally liable on a contract made by other agents of the society, unless
it be shown that the former participated in the appointment of the latter, or in some way ratified
such contract. In order to hold a member of such society responsible for its debts, it must be
shown that such member, in some way, sanctioned or acquiesced in their creation.”
{¶95} Thus, in order to hold members of GBLOA responsible for the alleged approval
by the Board of Trustees of the beach house and pool, it must be shown that such members, in
some way, sanctioned or acquiesced in their creation. The alleged act of the Board of Trustees to
give approval of the beach house and pool affects the property rights of the individual lot
owners, members or not, and cannot be binding upon those individual members who did not
participate in a vote to support the construction of the beach house and pool.
{¶96} Defendant does not allege that all of the lot owners were aware of its plans to
construct a beach house and pool. It merely alleges that it communicated with GBLOA and had
information on display in the marina. Defendant’s failure to allege that all lot owners were
informed is fatal to its assertion that the doctrine of laches, estoppel and waiver preclude
Plaintiffs from asserting a violation of their easement rights or use rights in Areas B and C. A lot
owner who was not aware of the proposed construction cannot be said to have an excuse for the
delay or actual or constructive knowledge of the construction. Nor could such a lot owner make
115
Devoss v. Gray (1871), 22 Ohio St. 159, 1871 Ohio LEXIS 134, at Syllabus.
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a misleading communication that the Defendant relied upon. Finally, lack of knowledge of
Defendant’s plans does not require one to speak.
IV.
CONCLUSION
{¶97} Based on the foregoing, this Court concludes that Plaintiffs’ Motions for Partial
Summary Judgment are appropriate in part and inappropriate in part. Plaintiffs are entitled to
judgment as a matter of law as to certain of Plaintiffs’ requested findings and are not entitled to
judgment as a matter of law as to certain other of Plaintiffs’ requested findings.
{¶98} This Court concludes that Plaintiffs do not have an express or implied easement in
Areas A, B, or C, and do not have a prescriptive easement in Area A, pursuant to the Papesh
cases. However, this Court concludes that Plaintiffs have certain easement rights “to the use of
the streets and ways and to the use of the beach on the premises for said bathing purposes” and
the stipulation in Papesh III does grant Plaintiffs certain rights in Areas B and C.
{¶99} This Court concludes that the stipulation in Papesh III sets forth the scope of
Plaintiffs’ rights in Areas B and C. Specifically, with respect to Plaintiffs, John M. Anthony, et.
al.’s requested findings, this Court concludes: (1) that Plaintiffs have an easement over the
“streets, roads, lanes, ways, paths, rights of way” in Gem Beach subdivision, including, but not
limited to Lakeview Street, Cedar Avenue, and Poplar Avenue. However, Defendant may
maintain a gate at the end of Popular Avenue and a fence at Lakeview where it meets the beach,
but must provide the lot owners with the means to access the beach during the times and periods
stipulated to in Papesh III (i.e., keypad or access code/card) at both locations. Defendant may
also maintain a gate at Cedar Avenue, at Carolina Street, but must provide the lot owners with
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COMMON PLEAS COURT OF OTTAWA COUNTY
the means to access the beach during the times and periods stipulated to in Papesh III; (2)
Plaintiffs have an easement to access and enjoy beach and bathing privileges in Area C, subject
to the additional restrictions (i.e., not to exceed 10 persons, bona fide guests only, not persons
who are paying tenants); (3) Plaintiffs have shown that Defendant violated the easement rights of
Plaintiffs by fencing, gating and locking Poplar Avenue at the entrance to the beach without
providing access to all lot owners; (4) Plaintiffs have shown that Defendant violated the legal
rights of Plaintiffs to access and enjoy beach and bathing privileges in the beach area of Gem
Beach Subdivision by fencing, gating and locking the beach access point at Lakeview Drive and
Poplar Avenue without providing access to all lot owners at both locations; (5) Defendant may
not charge Plaintiffs a fee for access or maintenance in exchange for access and use of their
beach and bathing privileges, but all property owners in Gem Beach subdivision, including
Plaintiffs and Defendant have an obligation to contribute their fair share of the cost for the
maintenance of Area B and C; and (6) Plaintiffs have the right to use Area B, but that does not
mean that Plaintiffs have the right to the entire area. Whether the beach house and pool interfere
with Plaintiffs use and enjoyment of Area B is a question of fact. Accordingly,
{¶100} IT IS ORDERED, ADJUDGED, and DECREED that Plaintiffs, John M.
Anthony, et. al.’s Motion for Partial Summary Judgment is GRANTED in part and DENIED in
part;
{¶101} IT IS FURTHER ORDERED, ADJUDGED, and DECREED that Plaintiff Gem
Beach Lot Owners’ Association’s Motion for Partial Summary Judgment is GRANTED in part
and DENIED in part;
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COMMON PLEAS COURT OF OTTAWA COUNTY
{¶102} IT IS FURTHER ORDERED, ADJUDGED, and DECREED that Plaintiffs do not
have an express or implied easement in Areas A, B, or C, and do not have a prescriptive
easement in Area A, pursuant to the Papesh cases;
{¶103} IT IS FURTHER ORDERED, ADJUDGED, and DECREED that the stipulation
in Papesh III does grant Plaintiffs certain rights in Areas B and C;
{¶104} IT IS FURTHER ORDERED, ADJUDGED, and DECREED that Plaintiffs have
an easement over the “streets, roads, lanes, ways, paths, rights of way” in Gem Beach
subdivision, including, but not limited to Lakeview Street, Cedar Avenue, and Poplar Avenue.
However, Defendant may maintain a gate at the end of Popular Avenue and a fence at Lakeview
where it meets the beach, but must provide the lot owners with the means to access the beach
during the times and periods stipulated to in Papesh III (i.e., keypad or access code/card) at both
locations;
{¶105} IT IS FURTHER ORDERED, ADJUDGED, and DECREED that Defendant may
also maintain a gate at Cedar Avenue, near Carolina Street, but must provide the lot owners with
the means to access the beach during the times and periods stipulated to in Papesh III (i.e.,
keypad or access code/card);
{¶106} IT IS FURTHER ORDERED, ADJUDGED, and DECREED that Defendant has
violated the easement rights of Plaintiffs by fencing, gating and locking Poplar Avenue at the
entrance to the beach without providing access to all lot owners during the times and periods
stipulated to in Papesh III ;
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COMMON PLEAS COURT OF OTTAWA COUNTY
{¶107} IT IS FURTHER ORDERED, ADJUDGED, and DECREED that Defendant has
violated the legal rights of Plaintiffs to access and enjoy beach and bathing privileges in the
beach area of Gem Beach Subdivision by fencing, gating and locking the beach access point at
Lakeview Drive and Poplar Avenue without providing access to all lot owners at both locations
during the times and periods stipulated to in Papesh III ;
{¶108} IT IS FURTHER ORDERED, ADJUDGED, and DECREED that Defendant may
fence and gate the beach access points at Lakeview Drive and Poplar Avenue, but must provide
the lot owners with the means to access the beach during the times and periods stipulated to in
Papesh III (i.e., keypad or access code/card);
{¶109} IT IS FURTHER ORDERED, ADJUDGED, and DECREED that Defendant may
not charge Plaintiffs a fee for access or maintenance in exchange for access and use of their
beach and bathing privileges;
{¶110} IT IS FURTHER ORDERED, ADJUDGED, and DECREED that all property
owners in Gem Beach subdivision, including Plaintiffs and Defendant have an obligation to
contribute their fair share of the cost for the maintenance of Area B and C;
{¶111} IT IS FURTHER ORDERED, ADJUDGED, and DECREED that whether the
beach house and pool interfere with Plaintiffs’ use and enjoyment of Area B is a question of fact;
{¶112} IT IS FURTHER ORDERED, ADJUDGED, and DECREED that Defendant may
charge Plaintiffs a fee to use the beach house or pool, but any such fee imposed shall be
considered when determining whether the beach house and pool interfere with Plaintiffs’ use and
enjoyment of Area B;
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COMMON PLEAS COURT OF OTTAWA COUNTY
{¶113} IT IS FURTHER ORDERED, ADJUDGED, and DECREED that costs of this
proceedings is to be paid equally by Plaintiffs and Defendant;
{¶114} IT IS FURTHER ORDERED, ADJUDGED, and DECREED that this matter is
set for Pre-Trial on May 11, 2007, at 1:30pm;
{¶115} IT IS FURTHER ORDERED, ADJUDGED, and DECREED that this matter is
set for Trial on June 11, 2007, at 9:00am;
{¶116} IT IS FURTHER ORDERED, ADJUDGED, and DECREED that the Clerk
of Courts shall send copies of this Judgment Entry to all parties of record or their counsel
by regular U.S. Mail, “forthwith.”116
______________________________
PAUL C. MOON, JUDGE
MAY 4, 2007
116
Seger v. For Women, Inc. 110 Ohio St.3d 451, 2006-Ohio-4855 (“The Civil Rules * * * require immediate
service, and the clerk violates his duties by failing to attempt prompt service.”) Black’s Law Dictionary defies
“forthwith” as “[i]mmediate; without delay.” Black’s Law Dictionary (8th Ed. 2004) 680.
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COMMON PLEAS COURT OF OTTAWA COUNTY
CERTIFICATE OF SERVICE
A copy of the foregoing “Judgment Entry” was delivered by regular mail, this 4th day of
May, 2007, to the following:
W. Patrick Murray
James L. Murray
Murray & Murray Co., L.P.A
11 E. Shoreline Drive
Sandusky, OH 44871-0019
Attorneys for Plaintiffs, Gem Beach Lot
Owners’ Association
D. Bowen Loeffler
122 North Adams Street
Port Clinton, OH 43452
Attorneys for Defendant Gem Beach
Marina, Inc.
Thomas J. Smith
Paul E. Blevins
McCray, Muzilla, Smith & Meyers Co.,
LPA
260 Burns Road, Suite 150
Elyria, OH 44035
Attorney for Plaintiffs,
Richard R. Gillum
Kocher & Gillum
101 ½ Madison Street
Port Clinton, OH 43452
Attorneys for Defendant Gem Beach
Marina, Inc.
John A. Coppler
Flynn, Pye & Kruse LPA
115 W. Perry Street
Port Clinton, OH 43452
Attorneys for Defendant
Marina, Inc.
Gary A. Kohli
Kohli & Christie
142 West Water Street
Oak Harbor, OH 43449
Attorneys for Defendant Gem Beach
Marina, Inc.
Gem
Beach
______________________________
JOAN MONNETT, CLERK OF COURTS
/DEPUTY CLERK
MAY 4, 2007
Note: If there is a party and/or attorney not listed above, but is reflected on the Clerk’s Docket as not excused, the
Clerk’s Office will add them to this page.
42