Appeals Court Limits Tuscarawas County Easement Use
Penn Ohio Coal Co. will not be permitted to transport coal across an easement in Tuscarawas County, following a July 18 ruling by the Fifth District Court of Appeals.
In a 2-1 decision authored by Judge W. Scott Gwin, the court limited the use of the easement to neighboring land owner Doris Kimble who had extended her right of ingress and egress over the easement to Penn Ohio Coal.
Neighbors Felson and Amy Diemling filed a complaint for declaratory judgment and injunctive relief against Kimble in Tuscarawas County Common Pleas Court on April 6, 2009 alleging the intended use of the easement was unreasonable and amounted to overuse. The trial court found in favor of Kimble on November 28, 2011.
Judge Gwin wrote that the burden on the Diemlings’ property – given Penn Ohio’s plans to transport 264,000 tons of coal across it – “would be substantially greater” than the original purpose.
“The judgment of the Court of Common Pleas of Tuscarawas County, Ohio is herby affirmed in part and remanded in part,” Judge Gwin wrote. “On remand, the trial court shall issue an injunction to prohibit the transportation of minerals and equipment from the Franks and Ervin Properties over the easement, and to limit the use of the easement to appellee.”
Judge Julie A. Edwards concurred in the opinion.
Judge Sheila G. Farmer dissented. She wrote that she would allow the transport of materials over the easement given that the original easement was broad in scope and did not include a provision limiting the ingress and egress to gas and oil drilling only.
Diemling v. Kimble, 2012-Ohio-3323
Civil Appeal From: Tuscarawas County Court of Common Pleas
Judgment Appealed From Is: Affirmed in part and Reversed in part and Remanded
Date of Judgment Entry on Appeal: July 18, 2012