[This opinion has been published in Ohio Official Reports at
82 Ohio St.3d 277.]
CLAGG ET AL., APPELLANTS, v. BAYCLIFFS CORPORATION ET AL., APPELLEES.
[Cite as Clagg v. Baycliffs Corp., 1998-Ohio-414.]
Real property—R.C. Chapter 711 sets forth statutory framework for platting real
property—R.C. 711.24 governs changes to a previously recorded plat—
Implied easement in a private street may be unilaterally changed by an
owner of land, when.
An implied easement in a private street, created by reference to a subdivision plat
depicting and dedicating the street to the lot owners of a subdivision, is
statutorily limited so that an owner of land within the subdivision may
unilaterally change the course of the street subject to the requirements set
forth in R.C. 711.24.
(No. 97-831—Submitted March 25, 1998—Decided July 1, 1998.)
APPEAL from the Court of Appeals for Ottawa County, No. 96-OT-23.
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{¶ 1} This appeal arises from a dispute between many of the current lot
owners of Johnson’s Island and appellee Baycliffs Corporation (“Baycliffs”), a
company that is developing property on the interior of the island for residential use.
The interior development area centers around an old quarry that Baycliffs intends
to convert into a marina. In order to accomplish this, Baycliffs would be required
to dig a channel from Lake Erie to the quarry. The channel cannot be created
without severing Memorial Shoreway Drive (“Shoreway Drive”), a continuous
private road that encircles the perimeter of the island. The section of roadway that
would be removed to create the channel traverses land owned by Baycliffs. Before
severing the existing Shoreway Drive, Baycliffs plans to reroute the road around
the quarry so that a continuous road around the island would continue to be
available. The proposed new route would be somewhat longer than the old one
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(approximately 0.85 miles), as it would cut inland through the new development
and around the quarry. The added length of Shoreway Drive would not adversely
affect the availability or response time of emergency services to any residents of
the island.
{¶ 2} A group of Johnson’s Island residents, appellants herein, filed a class
action suit in April 1994 against Baycliffs and its predecessor in interest, appellee
Johnson’s Island, Inc., requesting a declaratory judgment and a permanent
injunction enjoining Baycliffs from severing Shoreway Drive. The certified class
consists of those members of the Johnson’s Island Property Association and the
association itself who own property in the Bay-Haven Estates subdivision
development on Johnson’s Island.
{¶ 3} Memorial Shoreway Drive was dedicated to the lot owners, their
heirs, and assigns in 1956, as indicated on the subdivision plat that was presented
to lot purchasers. The class members claim that this dedication created an implied
easement over the entire length of Shoreway Drive, and consequently they believe
that Baycliffs should not be allowed to sever Shoreway Drive without their
unanimous consent.
{¶ 4} R.C. 711.24, which was in effect prior to the dedication of Shoreway
Drive to the lot owners, modifies the common law by setting forth procedures by
which an owner of land within a subdivision plat may change the layout of “lots
and the streets and alleys bounding them.” R.C. 711.24. Such a change is allowed
only if there is written consent from all the owners of any other lots bounded by the
streets and alleys or in the plat itself who will be injuriously affected by the change.
{¶ 5} Baycliffs submitted a proposed plat change affecting a portion of
Shoreway Drive that runs across Baycliffs’ land. The Ottawa Regional Planning
Commission (“ORPC”) reviewed the plan pursuant to R.C. 711.24 and approved it
on October 16, 1990, on the condition that one lot owner, determined to be
injuriously affected by the proposed change, consent in writing. The ORPC also
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required Baycliffs to complete construction of the rerouted road before any
excavation of the boat channel could proceed, so that at all times, Shoreway Drive
would run uninterrupted around the entire island.
{¶ 6} Some of the residents who are parties to this suit filed an appeal of the
ORPC’s decision, pursuant to R.C. Chapter 2506. The appeal was voluntarily
dismissed three years later. Subsequently the class action members filed the instant
action for declaratory judgment seeking a definition of their rights in Shoreway
Drive, and requested a permanent injunction preventing Baycliffs from severing
Shoreway Drive and altering its route.
{¶ 7} The trial court held that R.C. 711.24 governs the proposed change to
Shoreway Drive. The court determined that the class members were required to
exhaust their administrative remedies by appealing the ORPC’s decision to approve
the replat, and therefore granted summary judgment in favor of appellees. The
court of appeals affirmed.
{¶ 8} The cause is now before this court pursuant to the allowance of a
discretionary appeal.
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Connelly, Soutar & Jackson, Steven R. Smith and Janine T. Avila; Wilber
& Wilber and George C. Wilber, for appellants.
Kelley, McCann & Livingstone, LLP, John D. Brown and Robert A.
Brindza, for appellees.
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MOYER, C.J.
{¶ 9} The two issues presented in this appeal are (1) whether implied
easement rights in a private street, established by reference to a subdivision plat
depicting and dedicating the street, are subject to the replat procedures set forth in
R.C. 711.24, which was in effect at the time the implied easement was created; and
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(2) whether R.C. 711.24 applies when a previously platted private street is altered,
even if no existing lots are changed.
{¶ 10} We hold that R.C. 711.24 applies to the replat of a private street even
when no existing lots are changed, and that an implied easement, established by
reference to a subdivision plat depicting and dedicating a private street to the lot
owners of the subdivision, may be limited so long as the requirements of R.C.
711.24 are satisfied.
{¶ 11} There is no dispute that the 1956 subdivision plat of Johnson’s Island
created an implied easement in Shoreway Drive, a private road, for the benefit of
the owners of all lots on Johnson’s Island. The extent of the easement and the effect
of R.C. 711.24 on the easement are disputed, however. The class members argue
that the easement extends the full length of Shoreway Drive as depicted in the 1956
plat, and that R.C. 711.24 does not allow Baycliffs to unilaterally change the course
of Shoreway Drive. Baycliffs contends that each lot owner’s easement is limited
to ingress to and egress from the owner’s specific lot and that R.C. 711.24 governs
the proposed replat.
{¶ 12} The extent of the easement does not affect the outcome of this case.
The ingress and egress rights of all lot owners remain intact under the proposed
change. Furthermore, even if the implied easement extends to the full length of
Shoreway Drive, the ORPC found that the proposed change to Shoreway Drive did
not injuriously affect the rights of the easement holders. Because the class members
failed to appeal the ORPC decision, we will not pass upon the merits of that factual
finding.
{¶ 13} Implied easements are disfavored in the law and should extend only
so far as both parties clearly intended. See Tiller v. Hinton (1985), 19 Ohio St.3d
66, 69, 19 OBR 63, 66,
482 N.E.2d 946, 950. R.C. 711.24 was enacted prior to the
1956 plat and dedication of Shoreway Drive. Thus, the statute was in effect prior
to the creation of the implied easement in question. As this implied easement is
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based upon dedication language in a recorded subdivision plat, the court may infer
that the creator of the original plat was or should have been aware of the statutes
concerning plats and changes to plats and that the implied easement is therefore
limited by the platting provisions. If the grantor of the implied easement had
intended to protect the easement holders from the effect of the replat statute, the
grantor could have done so by granting an express written easement defining the
extent of the rights, by providing for joint ownership of the property over which
Shoreway Drive runs, or by any other legal means of conveyance. The grantor did
not do so. Therefore, the implied easements in Shoreway Drive, having no express
terms, definitions, or duration, are limited by the application of the law in effect at
the time they were created, including the provisions of R.C. 711.24.
{¶ 14} R.C. Chapter 711 sets forth the statutory framework for platting real
property. R.C. 711.24 governs changes to a previously recorded plat, setting forth
the requirements for changing lots, and the streets and alleys bounding the lots.
{¶ 15} We affirm the holding and reasoning of the court of appeals, which
interprets R.C. 711.24 to allow changes to streets and alleys bounding lots even
when no change to preexisting lots is being made. The court of appeals noted that
although the word “and” is usually interpreted in the conjunctive, we are permitted
to interpret it in the disjunctive “if the sense requires it.” R.C. 1.02.
{¶ 16} Using this principle of statutory interpretation, we can and do read
R.C. 711.24 to allow an owner to change “lots, [or] the streets [or] alleys bounding
them.” To read the word “and” strictly in the conjunctive in this case would, as the
trial court points out, be a hypertechnical reading of the statute and would lead to
the conclusion that R.C. 711.24 is applicable only when lots, streets, and alleys are
all changed at once. Thus, R.C. 711.24 would govern changes to an existing lot
only if a change to the bounding streets occurred as well, and then only if a change
to alleys also occurred. Clearly, not all lots will be bounded by both streets and
alleys, and some lots may be changed without altering any streets or alleys in the
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process. We do not agree that such a hypertechnical reading of R.C. 711.24 is
required or that it would support the General Assembly’s intentions in enacting this
statute.
{¶ 17} Baycliffs’ proposed replat divides its property into lots and changes
a portion of Shoreway Drive, which is a street that bounds lots. Therefore, R.C.
711.24 applies to this proposed change.
{¶ 18} Contrary to appellants’ assertions that the application of R.C. 711.24
to limit their easement rights constitutes a denial of their constitutional rights to due
process, we find no such constitutional violation. R.C. 711.24 does not leave
appellants unprotected. In fact, the statute specifically protects the rights of lot
owners affected by a proposed replat. The statute requires that Baycliffs obtain
written consent from all the owners of lots bounded by Shoreway Drive whose
rights will be injuriously affected by the proposed change. This includes any injury
to easement rights. The ORPC is the appropriate governing body to determine
whether a proposed change satisfies the requirements of the statute and whether
any owners will be injuriously affected by the change.
{¶ 19} In this case, the ORPC determined that appellants were not
injuriously affected by the proposed change to Shoreway Drive. The ORPC’s
finding in this regard could have been appealed pursuant to R.C. 2506.01. In fact,
some members of the class did file an appeal from the ORPC decision. However,
that appeal was voluntarily dismissed and was never refiled.
{¶ 20} When, as in this case, the affirmative defense of failure to exhaust
administrative remedies is applicable and has been timely raised and maintained, a
court will deny declaratory and injunctive relief. See, e.g., Haught v. Dayton
(1973), 34 Ohio St.2d 32, 35-36,
63 O.O.2d 49, 51,
295 N.E.2d 404, 406. Thus,
the court of appeals and the trial court did not err in denying injunctive relief to
appellants because they failed to avail themselves of their legal remedies through
the appeal provisions of R.C. 2506.01.
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{¶ 21} We hold that an implied easement in a private street, created by
reference to a subdivision plat depicting and dedicating the street to the lot owners
of a subdivision, is statutorily limited so that an owner of land within the
subdivision may unilaterally change the course of the street subject to the
requirements set forth in R.C. 711.24. Because R.C. 711.24 limits the easement
rights of appellants and because appellants failed to exhaust their administrative
remedies, we affirm the judgment of the court of appeals denying declaratory and
injunctive relief.
Judgment affirmed.
DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.
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