The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
NORFOLK SOUTHERN RAILWAY ) Case No. 1:20-cv-01053
COMPANY, )
) Judge J. Philip Calabrese
Plaintiff and )
Counterclaim-Defendant, ) Magistrate Judge
) Jonathan D. Greenberg
v. )
)
DILLE ROAD RECYCLING, LLC, )
)
Defendant and )
Counterclaim-Plaintiff. )
)
OPINION AND ORDER
Dille Road Recycling, LLC operates its business on property in Euclid, Ohio
adjacent to a rail corridor in which Norfolk Southern Railway Company conducts its
business. For its part, Dille Road Recycling has made significant investments in the
property that it seeks to preserve through claims of prescriptive easement and
easement by estoppel, based on use it traces back decades to its predecessors. The
parties filed cross-motions for summary judgment. Dille Road Recycling seeks
judgment as a matter of law on its claims of prescriptive easement and easement by
estoppel, giving it a right of access to a parcel of property on which it has conducted
its business, though Norfolk Southern owns it. (ECF No. 35.) Norfolk Southern seeks
judgment as a matter of law on the basis that the Interstate Commerce Commission
Termination Act of 1995 preempts Dille Road Recycling’s claims. (ECF No. 32.) For
the reasons that follow, the Court GRANTS Dille Road Recycling’s motion and
DENIES Norfolk Southern’s motion.
STATEMENT OF FACTS
Dille Road Recycling operates a recycling business in Euclid, Ohio. (ECF
No. 35-1, ¶¶ 1 & 3, PageID #1256 & #1257.) It began leasing the property in 2007
from GRK, Inc., which acquired the property in November 1991. (Id., ¶¶ 5 & 6,
PageID #1257.) Dille Road Recycling has exclusively possessed its property for over
thirteen years and has been the owner of record since 2017. (Id., ¶¶ 4 & 7.)
The recycling business operates adjacent to an active rail corridor that Norfolk
Southern Railway Company owns and operates. (ECF No. 1, ¶¶ 1 & 14, PageID #1
& #3; ECF No. 5, ¶¶ 1 & 14, PageID #23 & #24.) The parcel at issue is a rectangular,
longitudinal strip of land, comprising just under half an acre, within Norfolk
Southern’s rail corridor. (ECF No. 1, ¶¶ 1–2, PageID #1–2; ECF No. 1-1, PageID #10;
ECF No. 5, ¶¶ 1–2, PageID #23.) Dille Road Recycling conducts certain activities on
this property without Norfolk Southern’s permission. (ECF No. 35-1. ¶¶ 12–13,
PageID #1258; ECF No. 29, PageID #199–200.) In their respective papers, the parties
use the following image to illustrate the location of the property relative to Norfolk
Southern (above the rail lines (north)) and Dille Road Recycling (below them, toward
the buildings (south)):
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(ECF No. 32, PageID #1084; ECF No. 35-1, PageID #1262.) Dille Road Recycling or
its predecessors have exclusively used the property since 1994. (ECF No. 35-1, 44 8
& 9, PageID #1258.) From 1994 to present, a fence across the front entrance of the
property set the property aside for the exclusive use of Dille Road Recycling and its
predecessors. (ECF No. 29, PageID #206—07; ECF No. 29-8, PageID #313-29; ECF
No. 35-1, J 10, PageID #1258.)
In 2007, Dille Road Recycling installed a large truck scale on the property at a
cost of approximately $50,000 and made about $10,000 worth of repairs to the
existing fence. (ECF No. 35-1, 94 12-18, PageID #1258.) In late 2015, a
representative of Norfolk Southern advised Dille Road Recycling that the truck scale
and fence were on the railroad’s property. (d., § 14; ECF No. 29, PageID #210-12.)
Additionally, Dille Road Recycling had an environmental report conducted before
purchasing the property in 2016, which indicated that part of its operations were on
Norfolk Southern’s property. (ECF No. 29, PageID #198–200; ECF No. 31-1, PageID
#430.) In October 2016, Dille Road Recycling complied with a request from Norfolk
Southern to remove debris that had fallen over Dille Road Recycling’s fence. (ECF
No. 29-12, PageID #335; ECF No. 35-1, ¶ 14, PageID #1258–59.) In June 2018, Dille
Road Recycling added new fencing and several gates to the property at a cost of
$29,898. (ECF No. 35-1, ¶ 15, PageID #1259; see also id., PageID #1308–09.) And in
July 2019, a property agent for Norfolk Southern notified Dille Road Recycling that
it was encroaching on the railroad’s property and that Norfolk Southern wanted to
resolve the issue. (ECF No. 29-15, PageID #343.) A series of communications ensued,
including a failed attempt to enter into a lease agreement, resulting in the
commencement of this litigation. (ECF No. 1, ¶¶ 16–25, PageID #4–5; ECF No. 5,
¶¶ 16–25, PageID #25.)
STATEMENT OF THE CASE
Norfolk Southern filed suit seeking a declaratory judgment that federal law
preempts Dille Road Recycling’s claim to the property at issue through adverse
possession and prescriptive easement. (ECF No. 1, ¶¶ 27–41, PageID #5–7.) Dille
Road Recycling answered and counterclaimed. (ECF No. 5.) In Count One, the
counterclaim seeks a declaration that Dille Road Recycling has a non-exclusive
easement “created by an express or implied grant, prescription or implication” (id.,
¶ 17, PageID #29), and Count Two asserts that laches bars Norfolk Southern from
restricting use of the property at this point in time (id., ¶¶ 16–29, PageID #29–30).
Norfolk Southern moved for judgment on the pleadings. (ECF No. 12.)
On February 4, 2021, the Court ruled on Norfolk Southern’s motion for
judgment on the pleadings. (ECF No. 25.) The Court granted Norfolk Southern’s
motion to the extent that it sought a declaration that the Termination Act preempts
a claim based on adverse possession (id., PageID #148–50 & 152–53), but held that
further development of the record was necessary to determine whether it also
preempted the prescriptive easement and easement by estoppel claims (id, PageID
#150–53). Also, the Court held that discovery was necessary to determine whether
laches applied. (Id., PageID #152–53.) Following the Court’s ruling, and after the
close of discovery, the parties filed cross-motions for summary judgment on these
remaining claims and defenses.
Norfolk Southern objects to evidence of the proposed lease agreement between
the parties. (ECF No. 36, PageID #1343.) However, the Court does not consider the
proposed lease in ruling on the parties’ cross-motions for summary judgment because
it has no direct relevance to the parties’ legal claims and defenses. Therefore, Norfolk
Southern’s objection is MOOT. See Rangel v. Paramount Heating & Air
Conditioning, LLC., No. 2:17-cv-473, 2020 WL 1080418, at *6 (S.D. Ohio Mar. 6,
2020).
ANALYSIS
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). On a motion for summary judgment, “the judge’s
function is not . . . to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986). “The party seeking summary judgment has the initial
burden of informing the court of the basis for its motion” and identifying the portions
of the record “which it believes demonstrate the absence of a genuine issue of material
fact.” Tokmenko v. MetroHealth Sys., 488 F. Supp. 3d 571, 576 (N.D. Ohio 2020)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The non-moving party must
then “set forth specific facts showing there is a genuine issue for trial.” Id. (citing
Anderson, 477 U.S. at 250).
“When the moving party has carried its burden under Rule 56(c), its opponent
must do more than show there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead,
the Court determines “whether the evidence presents a sufficient disagreement to
require submission to a jury” or whether the evidence “is so one-sided that one party
must prevail as a matter of law.” Anderson, 477 U.S. at 251–52. In doing so, the
Court must view the evidence in the light most favorable to the non-moving party.
Kirilenko-Ison v. Board of Educ. of Danville Indep. Schs., 974 F.3d 652, 660 (6th Cir.
2020) (citing Matsushita Elec. Indus. Co., 475 U.S. at 587).
If a genuine dispute exists, meaning “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party,” summary judgement is not
appropriate. Tokmenko, 488 F. Supp 3d at 576 (citing Anderson, 477 U.S. at 250). If
the evidence, however, “is merely colorable or is not significantly probative,”
summary judgment for the movant is proper. Id. The “mere existence of some factual
dispute between the parties will not defeat an otherwise properly supported motion
for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Anderson,
477 U.S. at 247–48).
“Just as plaintiff may not rely on conclusory allegations to proceed past the
pleading stage, so too a plaintiff may not rely on conclusory evidence to proceed past
the summary-judgment stage.” Viet v. Le, 951 F.3d 818, 823 (6th Cir. 2020) (cleaned
up). “Conclusory statements unadorned with supporting facts are insufficient to
establish a factual dispute that will defeat summary judgment.” Id. (quoting
Alexander v. CareSource, 576 F.3d 551, 560 (6th Cir. 2009)).
“[W]here, as here, the parties filed cross-motions for summary judgment, ‘the
court must evaluate each party’s motion on its own merits, taking care in each
instance to draw all reasonable inferences against the party whose motion is under
consideration.’” McKay v. Federspiel, 823 F.3d 862, 866 (6th Cir. 2016) (quoting Taft
Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991)). Therefore, cross-
motions for summary judgment do not warrant granting summary judgment unless
one of the parties is entitled to judgment as a matter of law on facts that are not
genuinely disputed. Langston v. Charter Twp. of Redford, 623 F. App’x 749, 755 (6th
Cir. 2015).
I. Norfolk Southern’s Motion for Summary Judgment
Norfolk Southern argues that the Interstate Commerce Commission
Termination Act of 1995 preempts Dille Road Recycling’s claims for a prescriptive
easement and easement by estoppel. Under the Termination Act, the Surface
Transportation Board has exclusive jurisdiction over rail carriers that extends to all
remedies otherwise available under State law. 49 U.S.C. § 10501(b). Specifically, the
Termination Act provides:
The jurisdiction of the Board over—
(1) transportation by rail carriers, and the remedies provided in this
part with respect to rates, classifications, rules (including car
service, interchange, and other operating rules), practices, routes,
services, and facilities of such carriers; and
(2) the construction, acquisition, operation, abandonment, or
discontinuance of spur, industrial, team, switching, or side tracks,
or facilities, even if the tracks are located, or intended to be
located, entirely in one State,
is exclusive. Except as otherwise provided in this part, the remedies
provided under this part with respect to regulation of rail transportation
are exclusive and preempt the remedies provided under Federal or State
law.
Id.
Under the Termination Act, the term “transportation” includes a “warehouse
. . . property, facility, instrumentality, or equipment of any kind related to the
movement of passengers or property, or both, by rail, regardless of ownership or an
agreement concerning use.” Id. § 10102(9)(A). Further, it includes “services related
to that movement . . . and interchange of passengers and property.” Id. § 10102(9)(B).
For purposes of the Termination Act, a “railroad” means “a switch, spur, track,
terminal, terminal facility, and a freight depot, yard, and ground, used or necessary
for transportation.” Id. § 10102(6)(C).
Under the law of this Circuit, the Termination Act “preempts all state laws
that may reasonably be said to have the effect of managing or governing rail
transportation, while permitting the continued application of laws having a more
remote or incidental effect on rail transportation.” Adrian & Blissfield R.R. Co. v.
Village of Blissfield, 550 F.3d 533, 539 (6th Cir. 2008) (quotations omitted). Further,
the Sixth Circuit follows the Board’s test for determining whether and the extent to
which the Act preempts State remedies. Id. (quoting New Orleans & Gulf Coast Ry.
Co. v. Barrois, 533 F.3d 321, 332 (5th Cir. 2008)). State remedies are permissible so
long as (1) the remedies are not unreasonably burdensome, and (2) the remedies do
not discriminate against railroads. Id. at 541 (citations omitted). The touchstone of
the analysis “is whether the state regulation imposes an unreasonable burden on
railroading.” Id. (quoting New York Susquehanna & W. Ry. Corp. v. Jackson, 500
F.3d 238, 253 (3d Cir. 2007)).
I.A. Preemption of Dille Road Recycling’s Use of the Property
At the pleading stage, the Court denied Norfolk Southern’s motion for
judgment as a matter of law because the pleadings were “silent on whether Dille Road
Recycling’s use of the property necessarily excludes Norfolk Southern and on whether
Dille Road Recycling’s use burdens Norfolk Southern, rail use of the property, or
interstate commerce more generally.” (ECF No. 25, PageID #149.) On summary
judgment, Norfolk Southern argues that Dille Road Recycling’s use of the property
excludes it altogether and is “so draconian that it prevents the railroad from carrying
out its business.” (ECF No. 32, PageID #1083–84.)
In support of its argument, Norfolk Southern points to the fact that Dille Road
Recycling’s semi-truck weighing scale, which cannot be relocated elsewhere, is
located on the railroad’s property. (ECF No. 29, PageID #249 & #251.) A fence and
locked gates surround the scale. (Id., PageID #192.) Based on these facts, Norfolk
Southern contends that the Termination Act preempts Dille Road Recycling’s claim
to the property because its use of the parcel excludes and burdens Norfolk Southern.
(ECF No. 32, PageID #1087.)
The record shows that Dille Road Recycling’s use of the property does not
entirely exclude Norfolk Southern. (ECF No. 29, PageID #253–54; ECF No. 30,
PageID #389.) As for the burden to Norfolk Southern, the company admittedly does
not presently use the parcel at issue and has no plans to do so. (ECF No. 35, PageID
#1237.) It contends that Dille Road Recycling’s use of the property would require it
to share access to the property and coordinate any potential use of it, potentially
including use of sub-optimal portions of the parcel. But inconvenience does not, as a
matter of law, elevate non-exclusive or shared use of property to an unreasonable
interference with railroad operations such that the Termination Act preempts State
remedies. The Act simply does not go that far. “A hypothetical future inconvenience
does not resemble the clear, present, and tangible impacts the [Surface
Transportation Board] has deemed an undue burden.” Zayo Group, LLC v. Norfolk
S. Ry. Co., No. 1:21-cv-600, 2022 WL 243897, at *2 (M.D. Pa. Jan. 25, 2022) (citations
omitted).
Indeed, non-exclusive easements “are not preempted, as long as they do not
impede rail operations or pose undue safety risks.” Jie Ao and Xin Zhou Petition for
Declaratory Order, No. FD 35539, 2012 WL 2047726, at *6 (S.T.B. June 4, 2012).
Such is the case here. Nothing in the record suggests Dille Road Recycling’s use of
the property presents a safety risk or impedes rail operations. Nor does the record
show any discrimination against railroads in the State remedies Dille Road Recycling
seeks. As applied to the facts presented, the Termination Act does not preempt State
laws that have the type of remote or incidental effect on rail transportation at issue.
Adrian & Blissfield R.R., 550 F.3d at 539. Therefore, the Court DENIES Norfolk
Southern’s motion for summary judgment on this basis.
I.B. Recent Authorities
In support of its argument that Dille Road Recycling’s use of the parcel
unreasonably burdens railroad transportation, Norfolk Southern relies heavily on the
Fourth Circuit’s decision in Skidmore v. Norfolk Southern Railway Co., 1 F.4th 206
(4th Cir. 2021). There, the railroad installed a culvert to drain its tracks into a creek,
which allegedly caused erosion that threatened the foundation of a house some eighty
feet away. The owner of the home filed suit in State court for adverse possession,
prescriptive easement, and other State-law claims. When the railroad discovered a
survey and deed from 1903 giving it a right of way over nearby lands, including the
parcel on which the house sat, it removed the case arguing that the Termination Act
completely preempts the homeowner’s State-law claims.
The district court ruled that the Termination Act completely preempts State-
law claims for adverse possession and prescriptive easement for jurisdictional
purposes, and the Fourth Circuit affirmed. Id. at 218.1 Key to the court’s analysis
was the relief the plaintiff in Skidmore sought: exclusive use of land within the
railroad’s right of way, on which her house sat. In fact, nonexclusive use of the sort
at issue between Dille Road Recycling and Norfolk Southern was fundamentally
incompatible with what the plaintiff in Skidmore sought to achieve—namely,
protecting her home’s foundation against further erosion by excluding the railroad
from the creek.
In contrast, Dille Road Recycling seeks a non-exclusive use. “[E]asements that
don’t ‘take railroad property outright’ don’t necessarily ‘affect the rail network in the
same way as carving out property that is part of the railroad.’” Id. at 215 (quoting
Ao-Zhou, 2012 WL 2047726, at *7). Simply put, Dille Road Recycling’s use of the
property does not have the effect on railroad operations that the Termination Act
preempts. Cf. Skidmore, 1 4th at 215. For these reasons, Skidmore is
distinguishable.
Similarly, a recent decision from the Ohio Supreme Court does not affect the
analysis. In State v. CSX Transportation, Inc., 2022-Ohio-2832 (Aug. 17, 2022), the
Ohio Supreme Court held that Termination Act preempts the State’s anti-blocking
law, which makes it a misdemeanor for a stopped train to block a railroad crossing
for more than five minutes. Reasoning that it conflicted with the Surface
1 This procedural posture did not result in dismissal of the plaintiff’s claims
because complete preemption for purposes of jurisdiction results in
recharacterization or amendment to state claims under the applicable federal law.
Id. at 218; see also Piszczek v. Medical Mut. of Ohio, No. 1:22-cv-1143 (Sept. 12, 2022)
(ERISA).
Transportation Board’s exclusive jurisdiction to regulate the movement of people or
goods by rail, the Ohio Supreme Court concluded that the State’s anti-blocking law
“regulates, manages, and governs rail traffic.” Id. at ¶¶ 3 & 15. This case has no
bearing here because it deals with preemption of an anti-blocking statute that
imposes criminal penalties on railcars moving (or not, as it were) in interstate
commerce, not whether State-law causes of action governing property rights
discriminate against or impose unreasonable burdens on a railroad.
I.C. Unclean Hands
Additionally, Norfolk Southern argues that Dille Road Recycling is not entitled
to a prescriptive easement or easement by estoppel because “it comes to this Court
with unclean hands.” (ECF No. 36, PageID #1340.) Generally, “the doctrine of
unclean hands is an equitable defense ‘that closes the doors of a court of equity to one
tainted with inequitableness or bad faith relative to the matter in which he seeks
relief, however improper may have been the behavior of the defendant.’” Grupo
Condumex, S.A. de C.V. v. SPX Corp., 331 F. Supp. 2d 623, 627 (N.D. Ohio 2004),
aff’d, 195 F. App’x 491 (6th Cir. 2006) (quoting Precision Instrument Mfg. Co. v.
Automotive Maint. Mach. Co., 324 U.S. 806, 814 (1945)). Under the doctrine of
unclean hands, a litigant is barred from equitable relief if the litigant “has engaged
in bad faith or unconscionable conduct that relates to the subject matter of the action
and is directed at the [opposing party].” Pierce v. Apple Valley, Inc., 597 F. Supp.
1480, 1485 (S.D. Ohio 1984) (citations omitted).
Applying these principles to this case, the record does not show that Dille Road
Recycling engaged in misconduct that bars it from proceeding in equity. Norfolk
Southern argues that Dille Road Recycling is not entitled to equitable relief because
it purchased its property knowing that Norfolk Southern was the proper owner of the
disputed parcel. (ECF No. 36, PageID #1341–42.) In support of its argument, Norfolk
Southern directs the Court to a Phase I report on the property conducted at the
request of Dille Road Recycling. (Id., PageID #1342.) The report makes clear that
Dille Road Recycling was not the proper owner of the property at issue. (ECF
No. 31-1, PageID #430.) It describes the property as follows: “To the northwest is a
railroad right-of way (ROW) property and tracks, some of the Dill Road Recycling
operations are on [Norfolk Southern’s] property; Mr. Joseph Krash, the operator of
Dille Road Recycling, said that their use of the railroad property is approved because
of squatters rights.” (Id.) In other words, Dille Road Recycling asserted possessory
interest in the property. But the record stops short of showing bad faith or
unconscionable conduct on the part of Dille Road Recycling. It might have acted
tactically or strategically, but without more such conduct does not close the doors of
equity. On this record as it stands, the Court cannot say that Dille Road
Therefore, the Court DENIES Norfolk Southern’s motion for summary
judgment on its claim that Dille Road Recycling is subject to the doctrine of unclean
hands.
II. Dille Road Recycling’s Motion for Summary Judgment
Dille Road Recycling moves for summary judgment on its counterclaims for
prescriptive easement and easement by estoppel. (ECF No. 35, PageID #1249–51.)
I.A. Prescriptive Easement
“Prescriptive easements are not favored in law, because the legal titleholder
forfeits rights to another without compensation.” Cadwallader v. Scovanner, 178
Ohio App. 3d 26, 2008-Ohio-4166, 896 N.E.2d 748, ¶ 9 (Ohio Ct. App.) (citation
omitted). Consequently, “one who claims an easement by prescription has the
burden of proving by clear and convincing evidence all the elements essential to the
establishment thereof.” Fitzpatrick v. Palmer, 186 Ohio App. 3d 80, 2009-Ohio-6008,
926 N.E.2d 651, ¶ 26 (Ohio Ct. App.) (quotation omitted). To establish a prescriptive
easement, the moving party must show that it used the property (1) openly, (2)
notoriously, (3) adversely to the servient property owner’s property rights, (4)
continuously, and (5) for a period of at least 21 years.” Cadwallader, 2008-Ohio-4166,
at ¶ 55.
In their respective papers, the parties agreed that Dille Road Recycling’s use
of the parcel at issue likely satisfies the elements of a prescriptive easement
(assuming the periods of its predecessors tack). (See ECF No. 5, ¶ 6, PageID #27;
ECF No. 12, PageID #65.) However, on summary judgment, it is Dille Road
Recycling’s burden to establish that it is entitled to judgment as a matter of law.
Langston v. Charter Twp. of Redford, 623 F. App’x 749, 755 (6th Cir. 2015).
I.A.1. Open and Notorious Use
Use of property “without attempted concealment” constitutes “open” use, and
where that use is “known to some who might reasonably be expected to communicate
their knowledge to the owner if he maintained a reasonable degree of supervision
over his premises” it is also “notorious.” Hindall v. Martinez, 69 Ohio App. 3d 580,
583, 591 N.E.2d 308 (Ohio Ct. App. 1990) (citation omitted). Here, the record leaves
no question that Dille Road Recycling openly and notoriously used the property. A
fence across the front entrance of the property that has existed from 1994 to the
present demonstrates Dille Road Recycling’s open use of the parcel, which it did not
attempt to conceal. (ECF No. 29, PageID #206–07; ECF No. 29-8, PageID #313–29.)
It also establishes a notorious use. An owner of the property exercising a reasonable
degree of supervision would, without question, know of Dille Road Recycling’s use of
the property. Indeed, in 2019 Norfolk Southern discovered Dille Road Recycling’s
encroachment on its property, and nothing in the record suggests that it could not
have done so years earlier through the exercise of reasonable diligence or ordinary
care.
I.A.2. Adverse Use
“Use of a claimed prescriptive easement is ‘adverse’ when it is without the
permission of, or inconsistent with the rights of the true property owner.” Harris v.
Dayton Power & Light Co., 2016-Ohio-517, ¶ 20, 56 N.E.3d 399 (Ohio Ct. App.)
(quoting Dunn v. Ransom, 2011-Ohio-4253, ¶ 91 (Ohio Ct. App.)). Based on the record
on summary judgment, Dille Road Recycling adversely used the parcel belonging to
Norfolk Southern. The record shows that at no time did Dille Road Reycling or its
predecessor, GRK, Inc., possess or use the parcel with Norfolk Southern’s consent.
Therefore, Dille Road Recycling adversely used the property.
I.A.3. Continuous Use for 21 Years
“[T]o show that the adversity element existed for twenty-one years, the
occupier may ‘tack’ his adverse use with the adverse use of his predecessors in
privity.” Eckman v. Ramunno, 2010-Ohio-4316, ¶ 41 (Ohio Ct. App.) (citing Zipf v.
Dalgarn, 114 Ohio St. 291, 296, 151 N.E. 174 (1926)). Here, the record shows that
GRK possessed the property since November 1991. (ECF No. 35-1, ¶¶ 5 & 6, PageID
#1257.) And Dille Road Recycling is in privity of contract with GRK. (Id., ¶¶ 5 & 6,
PageID #1257.) Norfolk Southern does not dispute these facts. Therefore, Dille Road
Recycling’s open, notorious, and adverse use of the property existed for a continuous
period of at least 21 years.
I.B. Easement by Estoppel
Because the Court concludes that Dille Road Recycling is entitled to a
prescriptive easement, it need not address whether Dille Road Recycling is entitled
to an easement by estoppel.
I.C. Laches
Dille Road Recycling also argues that Norfolk Southern’s claims are barred by
the doctrine of laches. Specifically, Dille Road Recycling asserts that Norfolk
Southern unreasonably delayed in filing suit to the prejudice of Dille Road Recycling.
(ECF No. 35, PageID #1252.) Because the Court concludes that Dille Road Recycling
is entitled to judgment as a matter of law on its claim for a prescriptive easement,
thereby awarding summary judgment to Dille Road Recycling, it need not address
the parties’ arguments regarding laches.
CONCLUSION
For the foregoing reasons, the material facts are clear and undisputed and that
they entitle Dille Road Recycling to judgment as a matter of law. This case presents
the rare circumstance where a party can show by clear and convincing evidence that
State law creates an easement by prescription. Therefore, the Court GRANTS
summary judgment in favor of Dille Road Recycling on its claim of prescriptive
easement. (ECF No. 35.) Further, the Court DENIES Norfolk Southern’s motion for
summary judgment (ECF No. 32.) Specifically, the Court concludes that the
Interstate Commerce Commission Termination Act of 1995 does not preempt Dille
Road Recycling’s claims of prescriptive easement and easement by estoppel. Nor does
the doctrine of unclean hands bar Dille Road Recycling’s claims.
SO ORDERED.
Dated: December 6, 2022
J.PhilipCalabrese
United States District Judge
Northern District of Ohio
18