“[t]he law is well established * * * that a utility company may be required to relocate its lines at its own expense when such relocation is demanded by public necessity and for public safety and welfare”
How later courts described this case
- “[t]he law is well established * * * that a utility company may be required to relocate its lines at its own expense when such relocation is demanded by public necessity and for public safety and welfare”
Written by the judges who cited it.
The opinion
[Cite as Mentor v. Cleveland Elec. Illum. Co., 2024-Ohio-399.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
CITY OF MENTOR, CASE NO. 2023-L-041
Plaintiff-Appellee,
Civil Appeal from the
- vs - Court of Common Pleas
CLEVELAND ELECTRIC
ILLUMINATING COMPANY, et al., Trial Court No. 2021 CV 000312
Defendant-Appellant.
OPINION
Decided: February 5, 2024
Judgment: Affirmed
Joseph P. Szeman, City of Mentor Director of Law, 8500 Civic Center Boulevard,
Mentor, OH 44060 (For Plaintiff-Appellee).
Denise M. Hasbrook, Roetzel & Andress, LPA, One Seagate, Suite 1700, Toledo, OH
43604, and Stephen W. Funk, Roetzel & Andress, LPA, 222 South Main Street, Suite
400, Akron, OH 44308 (For Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, Cleveland Electric Illuminating Company (CEI),
appeals the granting of summary judgment in favor of plaintiff-appellee, the City of
Mentor. For the following reasons, we affirm the decision of the court below.
{¶2} On March 16, 2021, Mentor filed a Complaint for Declaratory Judgment
against CEI1 and other defendants not parties to this appeal.
1. The Complaint was brought against FirstEnergy Corp., dba the Cleveland Electric Illuminating Company.
The parties subsequently stipulated that Cleveland Electric Illuminating Company would be substituted for
FirstEnergy Corp. as the proper party.
{¶3} The Complaint alleged the following factual background:
13. Located in the city of Mentor is a public roadway known as
Diamond Centre Drive.
14. Diamond Centre Drive is a local street subject to and under the
city of Mentor’s care, supervision, and control pursuant to the
authority of, inter alia, Ohio Revised Code § 723.01.
15. Diamond Centre Drive was dedicated to public use in 1991 via
recordation of the dedication plat, which appears in Volume 15, Page
33 of the Lake County, Ohio plat records (the “1991 Plat”).
16. The 1991 Plat granted a perpetual public right-of-way for highway
and utilities as follows:
Be it known that Trask Land Development, Inc. an Ohio
corporation by Jerome T. Osborne III its President does
hereby dedicate to public use, as such, Diamond Centre Drive
(60 feet wide), as shown hereon and not heretofore dedicated.
And does also hereby grant unto the City of Mentor, the Lake
County Commissioners, the Ohio Water Service Company,
the Cleveland Electric Illuminating Company, the Ohio Bell
Telephone Company, the East Ohio Gas Company and
Continental Cablevision of Ohio, Inc., their successors and
assigns (hereinafter referred to as the Grantees) and any
other communication entities franchise to serve the
community, a permanent right-of-way easement ten (10) feet
in width, under, over and through all sublots shown hereon
and delineated by dashed lines and labeled “utility easement”,
to construct, place, operate, maintain, repair, reconstruct, and
relocate such underground electric, gas, water, sewer, and
communication system cables, ducts, conduits, manholes,
pipes, surface or below and above ground installed
transformers, pedestal concrete pads, regulating and
metering equipment, surface markers or other below and
above grade facilities, fixtures and appurtenances as are
necessary or convenient by the Grantees, for distributing,
transmitting, and transporting electricity, gas, water, sewer
and communication systems and signals for public and private
use at such locations, as the Grantees may determine, upon,
within and across the easement area and premises.
The Grantees shall have the right without liability to remove
trees, landscaping and lawns within the easement area as
2
Case No. 2023-L-041
may be required to install, maintain, repair or operate said
electric, gas, waterlines, sewer and communication systems.
The Grantees shall be responsible to restore lawns, walks and
drives within the easement area to as reasonable a condition
as possible to the condition prior to an operation contemplated
by this easement.
17. In 1996, the area of the Diamond Centre right-of-way was
increased by dedication plat to provide additional width for the
expansion of the road surface and other public infrastructure, said
plat appearing in Volume 27, Page 26 of the Lake County, Ohio plat
records (the “1996 Plat”).
18. The 1996 Plat granted a perpetual public right-of-way for highway
and utilities, as follows:
Be it known that Trask Properties, Ltd., an Ohio limited liability
company by Jerome T. Osborne, III does hereby certify that
this exhibit correctly represents the portions of land adjacent
to Diamond Centre Drive to be granted as easements.
The owners of the within platted land do hereby grant unto the
City of Mentor, their successors and assigns (hereinafter
referred to as the Grantees), a permanent highway easement
in, upon, and over all lands known and delineated by cross
hatching.
The Grantees shall have the right to remove trees,
landscaping, and lawns within the easement area as may be
required to construct, repair, replace, maintain, operate and
use a road and necessary appurtenances thereto, and forever
to have and to hold such right for the purposes and conditions
set forth.
The Grantees shall be responsible to restore lawns, walks and
drives within the easement area to as reasonable a condition
as possible to the condition prior to any operations
contemplated by this easement.
The highway easements granted by this document are subject
to utility easements granted by the Diamond Centre
dedication plat as recorded in Volume 15, Page 33, Lake
County plat records, and any other previous easements or
restrictions.
3
Case No. 2023-L-041
19. The additional right-of-way dedicated by the 1996 Plat included
an area over the 10’ utility easement.
20. Decades of commercial development within the area and vicinity
of Diamond Centre Drive has resulted in increased vehicular traffic
on the roadway.
21. The increased vehicular traffic has diminished the level of service
at peak times to unacceptable levels both on Diamond Centre Drive
as well as its intersection with Heisley Road, which is the arterial
street serving the area.
22. In order to alleviate traffic congestion and restore levels of service
to acceptable levels at peak hours, the widening of Diamond Centre
Drive in the area of its intersection with Heisley Road is necessary
(“the Project”).
23. The Project will consist of widening the Diamond Centre roadway
by the addition of two turn lanes at its intersection with Heisley Road.
24. The Project is in furtherance of and necessary to the safety and
welfare of the public.
25. The Project requires relocation of some existing utility
infrastructure owned by some of the Defendants.
26. The existing right-of-way will fully accommodate the Project,
inclusive of all public utility infrastructure required to be relocated as
a consequence of the road widening.
27. The Project requires relocation of lines within the utility easement
which upon information and belief are owned by Defendants
FirstEnergy Corp., AT&T Corp., and Charter Communications, Inc.
28. Defendant FirstEnergy Corp. has refused to relocate its lines now
within the utility easement on the grounds that (i) it is entitled to
compensation for the utility easement, (ii) the city of Mentor must pay
for the costs and expenses of relocation, and/or (iii) it refuses any
relocation within the existing right-of-way and demands- instead that
the city of Mentor appropriate and provide it a new utility easement.
{¶4} Mentor sought “a declaration that the 1991 utility easement is a ‘public way’
within the meaning of R.C.§ 4939.01(N)” (Count One); “a declaration that pursuant to the
authority of R.C. § 4939.08, it may in furtherance of the Project order Defendants to
4
Case No. 2023-L-041
relocate their facilities out of the subject public way and/or to adjust their facilities within
the subject public way at their sole cost and expense” (Count Two); and “a declaration
that pursuant to the authority of R.C. § 4939.08, the Defendants are entitled to no
compensation for their loss of use of the subject public way, inclusive of compensation in
the form of an in-kind replacement by virtue of the grant to them of a new ‘utility
easement’” (Count Three).
{¶5} On November 23, 2021, CEI filed an Answer to the Complaint and Counter
Claim. CEI sought declarations contrary to those prayed for in the three Counts of the
Complaint and “a writ of mandamus compelling the City to institute appropriation
proceedings under R.C. 163 to determine the amount the City must pay CEI and other
grantees of the 1991 Easement as just compensation for all costs associated with the
taking of its property.”
{¶6} On June 6 and 7, 2022, Mentor and CEI filed Motions for Summary
Judgment.
{¶7} On March 27, 2023, the trial court granted Mentor’s Motion for Summary
Judgment and denied CEI’s Motion. The court determined “as a matter of law that the
utility easement is a public easement and consequently a ‘public way’ in accordance with
R.C. 4939.01(N).” Judgment was entered in Mentor’s favor with respect to its claims and
CEI’s counterclaims.
{¶8} On April 21, 2023, CEI filed a Notice of Appeal. On appeal, CEI raises the
following assignments of error:
[1.] The trial court committed prejudicial error by denying Appellant’s
Motion for Summary Judgment on its Counterclaim, declaring that
the Utility Easement is a “public way” contrary to its plain language
that does not entitle Appellant to just compensation.
5
Case No. 2023-L-041
[2.] The trial court erred in granting summary judgment in favor of
Appellee on all counts in its Complaint for Declaratory Relief as a
matter of law.
{¶9} The assignments of error will be addressed in a consolidated manner.
{¶10} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that there
is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Civ.R. 56(C). An appellate court’s “review of a summary-
judgment ruling is de novo.” Fradette v. Gold, 157 Ohio St.3d 13, 2019-Ohio-1959, 131
N.E.3d 12, ¶ 6.
{¶11} As characterized by CEI, the fundamental issue in dispute “essentially
involves interpretation of the plain language within the Utility Easement granted to
Appellant in 1991 to declare whether it bestowed a compensable permanent, private
easement upon the grantees or a public way, that would not entitle Appellant to just
compensation.” Assignments of Error and Brief of Defendant-Appellant at 7. As stated
by the trial court, the “issue is whether the 1991 utility easement is a public easement.”
If, as claimed by CEI, “[t]he unambiguous language of the [1991 Plat] clearly
demonstrates the intention of the drafters to convey a private utility easement to Appellant
and not a public way,” then, according to CEI, the easement constitutes its “‘private
property’ that cannot be taken or otherwise applied to a different public use without
payment of just compensation.” Assignments of Error and Brief of Defendant-Appellant
at 8. On the contrary, we find that the nature of CEI’s interest in the utility easement is
immaterial to whether it may be required to relocate its facilities without compensation.
6
Case No. 2023-L-041
{¶12} “Under the traditional common law rule, utilities have been required to bear
the entire cost of relocating from a public right-of-way when requested to do so by state
or local authorities.” Norfolk Redevelopment and Hous. Auth. v. Chesapeake and
Potomac Tel. Co. of Virginia, 464 U.S. 30, 35, 104 S.Ct. 304, 78 L.Ed.2d 29 (1983); New
Orleans Gaslight Co. v. Drainage Comm. of New Orleans, 197 U.S. 453, 461, 25 S.Ct.
471, 49 L.E.2d 831 (1905) (holding that the expenses incurred by a gas company in the
relocation of its pipes and mains necessitated by the construction of a municipal drainage
system constituted damnum absque injuria: “[w]e think whatever right the gas company
acquired was subject, in so far as the location of its pipes was concerned, to such future
regulations as might be required in the interest of the public health and welfare”)
(emphasis added). The traditional common law rule requiring public utilities to bear the
cost of relocating their facilities when requested to do so by a municipal authority acting
on behalf of the public peace, health, safety, or welfare has been recognized and applied
in Ohio. In re Complaint of Reynoldsburg, 134 Ohio St.3d 29, 2012-Ohio-5270, 979
N.E.2d 1229, ¶ 53 (“[i]n accordance with common law, utilities have been required to
relocate power lines from the right of way at their own expense whenever requested to
do so by state or local authorities”); State ex rel. E. Ohio Gas Co. v. Bd. of Cty. Commrs.
of Stark Cty., 2012-Ohio-4533, 980 N.E.2d 1056, ¶ 42 (5th Dist.) (“[t]he United States
Supreme Court has held that the cost of relocation of a utility company’s lines resulting
from an improvement to a roadway is not a compensable taking”).
{¶13} Under Ohio’s precedents, the determinative issue is not the nature of the
utility’s interest in the easement, i.e., whether the easement is public or private, but rather
the municipality’s purpose in ordering the relocation of the facilities. Where the
7
Case No. 2023-L-041
municipality has been found to be acting on behalf of the public peace, health, safety, or
welfare, i.e., engaged in the legitimate exercise of a governmental function, the utility
company has been found not to have suffered a compensable taking. Compare State ex
rel. Speeth v. Carney, 163 Ohio St. 159, 126 N.E.2d 449 (1955), paragraph six of the
syllabus (“there is no power in a governmental subdivision to require public utilities in its
public streets to relocate facilities at their own expense to accommodate the proprietary
public utility operations of such subdivision, but a governmental subdivision may lawfully
contract with such public utilities for reimbursement for any such necessary expenses”).
{¶14} In Perrysburg v. Toledo Edison Co., 171 Ohio App.3d 174, 2007-Ohio-1327,
870 N.E.2d 189 (6th Dist.), “the city of Perrysburg sought to widen [an] intersection * * *
to accommodate the construction of a new high school.” Id. at ¶ 2. “To complete the
project, it was necessary to relocate electrical poles and equipment belonging to the
Toledo Edison Company that were partially located within Perrysburg’s right-of-way of the
intersection.” Id. Toledo Edison relocated its facilities and invoiced Perrysburg for costs.
“Perrysburg filed a complaint for declaratory judgment seeking a declaration as to which
party is responsible for the relocation costs.” Id. Summary judgment was granted in
Perrysburg’s favor and the court of appeals affirmed. Id.
{¶15} The court of appeals recognized a public utility’s right to just compensation
where its private property is taken for public use but also that this right was subject to the
exercise of a political subdivision’s police power.
Generally, a public-service corporation’s real estate, whether
owned in fee or held as an easement, is private property and as such
cannot be taken or otherwise applied to a different public use without
payment of just compensation. 26 American Jurisprudence 2d
(1966) 860, Eminent Domain, Section 181. However, public-service
corporations are peculiarly subject to regulation under the state’s
8
Case No. 2023-L-041
police power. “Police power” has been defined as the “‘power to
guard the public morals, safety, and health, and to promote the public
convenience and the common good.’” Automatic Refreshment
Serv., Inc. v. Cincinnati (1993), 92 Ohio App.3d 284, 288, quoting
Cincinnati & Suburban Bell Tel. Co. v. Cincinnati (P.C.1964), 7 Ohio
Misc. 159, 167, 34 O.O.2d 445. State action that compels such
corporations to destroy or alter lawfully erected structures is not a
taking in the constitutional sense where the structures endanger
public health or safety. Fairfield v. CSX Transp., Inc. (Feb. 12, 1996),
12th Dist. No. CA95-09-149, citing New York & N.E.R. Co. v. Bristol
(1894), 151 U.S. 556, 14 S.Ct. 437.
Id. at ¶ 13.
{¶16} Applying the foregoing to the facts of the case before it, the court of appeals
affirmed the judgment in favor of the municipality: “Here, Toledo Edison was forced to
relocate its poles to make way for a highway-widening project. We find that Perrysburg’s
relocation order was a valid exercise of the municipality’s police powers in furtherance of
public safety and welfare, and for purposesof travel and transportation. Therefore, Toledo
Edison is not entitled to reimbursement from Perrysburg under the doctrine of eminent
domain.” Id. at ¶ 18; also AT & T Corp. v. Lucas Cty., 381 F.Supp.2d 714, 717 (N.D.Ohio
2005) (“[t]he law is well established * * * that a utility company may be required to relocate
its lines at its own expense when such relocation is demanded by public necessity and
for public safety and welfare”) (citation omitted).
{¶17} The case of State ex rel. E. Ohio Gas Co. v. Bd. of Cty. Commrs. of Stark
Cty., 2012-Ohio-4533, is significant because it expressly recognized that the utility
company possessed a private easement. In E. Ohio (Stark Cty.), Stark County embarked
on a “road widening project [that] required Dominion to remove its natural gas pipeline
facilities from its private easement areas under and adjacent to Applegrove Street.” Id.
at ¶ 5. Dominion filed an action in mandamus “to compel Stark County to initiate eminent
9
Case No. 2023-L-041
domain proceedings to appropriate the private rights-of-way that were taken from it and
to compensate it for the relocation expenses incurred.” Id. at ¶ 6. Relying on the New
Orleans Gaslight and Norfolk Redevelopment decisions, the court of appeals affirmed
judgment in favor of Stark County. “Here, while the easement to Dominion was granted
by the owner of the real property and not granted the right by a municipality, we find the
reasoning to be the same in that Appellant was not granted a right to any particular
location of depth to its easement and because its easement was inferior and subservient
to that of the County, it should have known that changes in location might need to be
made for a necessary public use.” Id. at ¶ 44.
{¶18} The cases of Duke Energy Ohio, Inc. v. Cincinnati, 2015-Ohio-4844, 50
N.E.3d 1018 (1st Dist.), and E. Ohio Gas Co. v. Youngstown, 7th Dist. Mahoning No. 19
MA 0007, 2020-Ohio-731, both affirm the common law rule that “when a utility company
makes use of the public right of way, the municipality may require the company to relocate
its equipment at its own cost when the public welfare so requires.” Duke Energy at ¶ 33,
quoting Perrysburg at ¶ 16; E. Ohio (Youngstown) at ¶ 20 (same). These cases also
consider the public welfare in terms of a political subdivision’s governmental and
proprietary functions. “A municipality cannot require public utilities using public streets to
relocate their facilities at their own expense to accommodate the municipality’s proprietary
function.” E. Ohio (Youngstown) at ¶ 19, citing Speeth, 163 Ohio St. at 177-178, 126
N.E.2d 449; Duke Energy at ¶ 36 (“a governmental subdivision cannot require public
utilities to relocate facilities at their own expense to accommodate proprietary utility
operations of the subdivision”). “But a municipality can require public utilities to relocate
10
Case No. 2023-L-041
their lines at their own expense in order to accommodate the municipality’s governmental
function.” E. Ohio (Youngstown) at ¶ 20.
{¶19} In Duke Energy, the court of appeals concluded, based on legal precedent
and the factual record before it, that Cincinnati’s construction of a streetcar system did
not bear “a real and substantial relation to the public’s health, safety, morals, and general
welfare.” Duke Energy at ¶ 31. Therefore, “the City was responsible for the costs incurred
by Duke to relocate its utilities to accommodate the governmentally-owned streetcar
system.” Id. at ¶ 40. The court of appeals in E. Ohio (Youngstown) relied on Ohio
sovereign immunity law to affirm the trial court’s judgment that “sewer reconstruction is a
governmental activity in the interest of the public health and welfare and is an appropriate
exercise of the municipality’s police power” so that “Dominion was to bear the cost of
relocating its pipeline.” E. Ohio (Youngstown) at ¶ 11. In particular, the court of appeals
cited the statutory definition of a governmental function as including the “planning or
design, construction, or reconstruction of a public improvement,” and of a proprietary
function as including “[t]he maintenance, destruction, operation, and upkeep of a sewer
system.” R.C. 2744.01(G)(2)(l) and (d). Considering the facts of the case, the court of
appeals found, as a matter of law, that the sewer replacement project “was more than
ordinary maintenance or upkeep,” but, rather, “the entire 100-year-old sewer had to be
replaced and reconstructed” and so “was a governmental function.” Id. at ¶ 37.
{¶20} Under the foregoing precedents, we find, as a matter of law, that CEI is not
entitled to just compensation for any costs or expenses involved in the relocation of its
facilities as a result of the widening of Diamond Centre Drive inasmuch as the street
improvement constitutes a valid exercise of a governmental function in furtherance of the
11
Case No. 2023-L-041
public safety and welfare. Perrysburg, 2007-Ohio-1327, at ¶ 18 (utility was not entitled to
reimbursement from a municipality under the doctrine of eminent domain when forced to
relocate its poles to make way for a highway-widening project); E. Ohio (Stark Cty.), 2012-
Ohio-4533, at ¶ 46 (utility was not entitled to compensation for the relocation of its gas
pipelines necessitated by a road-widening project); compare J & J Schlaegel, Inc. v.
Union Twp. Bd. of Trustees, 2d Dist. Champaign Nos. 2005-CA-31 and 2005-CA-34,
2006-Ohio-2913, ¶ 6, 70-71 (road improvement project consisting of the relocation and
reconstruction of a portion of the road deemed a governmental function pursuant to R.C.
2744.01(C)(2)(l) [the planning, design or reconstruction of a public improvement] and (e)
[the maintenance and repair of roads]).
{¶21} Apart from the issue of whether a compensable taking has occurred, CEI
further argues that the trial court erred by declaring the utility easement created by the
1991 Plat to be a “public way” and, in the alternative, that Mentor has no authority to order
it to relocate its facilities except by the passage of a valid municipal ordinance.
{¶22} In the present case, the Mentor City Engineer, David Swiger, sent a
September 28, 2020 letter to a CEI representative containing the following advisement:
“In accordance with Ohio law and the Mentor Code of Ordinances, I am therefore
ordering, at your company’s sole cost and expense, the relocation of your facilities
currently positioned along the north side of Diamond Centre Drive in the aforementioned
‘utility easement’ to a location within the existing highway easement, beyond the limits of
the proposed roadway pavement, in accordance with the construction drawings provided
to you.”
12
Case No. 2023-L-041
{¶23} Mentor (as well as the trial court) relies on the Ohio Revised Code and the
Codified Ordinances of the City of Mentor for the City Engineer’s authority to order the
relocation of CEI’s facilities as part of a public way and a public right-of-way. “The City
has authority under the laws and constitution of the State of Ohio, including but not limited
to Article 18, Sections 3, 4, and 7, to regulate public and private entities which use the
rights-of-way.” Mentor Codified Ordinances 931.01(a)(5).
{¶24} The Revised Code provides: “If requested by a municipal corporation, in
order to accomplish construction and maintenance activities directly related to
improvements for the health, safety, and welfare of the public, an operator shall relocate
or adjust its facilities within the public way at no cost to the municipal corporation, as long
as such request similarly binds all users in or on such public way.” R.C. 4939.08. “‘Public
way’ means the surface of, and the space within, through, on, across, above, or below,
any * * * public drive [and] public easement,” but “excludes a private easement.” R.C.
4939.01(N). “Such relocation or adjustment shall be completed in accordance with local
law.” R.C. 4939.08.
{¶25} According to local law: “A provider [of facilities for providing utility services]
shall promptly and at its own expense, permanently remove and relocate facilities in the
rights-of-way whenever the City finds it necessary to request such removal and relocation.
* * * The City Engineer may request relocation and/or removal in order to prevent
unreasonable interference by the provider’s facilities with * * * [a] public improvement
undertaken or approved by the City or County.” Mentor Codified Ordinances
931.17(i)(1)(A). “‘Right(s)-of-Way’ means the surface and space in, on, above, within,
over, below, under or through any real property in which the City has an interest in law or
13
Case No. 2023-L-041
equity, whether held in fee, or other estate or interest, or as a trustee for the public.”
Mentor Codified Ordinances 931.01(d)(41).
{¶26} CEI argues that the trial court erred in its determination that the utility
easement established by the 1991 Plat constituted a “public way” under R.C. 4939.01(N)
because it is a private easement. According to CEI, the granting of the “utility easement”
in the 1991 Plat bestowed upon it a “private” interest in the easement independent of the
interests granted to Mentor and the other utilities both named and unnamed. In support
of its position, CEI notes the language “for public and private use” within the Plat. The
trial court rightly rejected CEI’s argument.
{¶27} The Supreme Court of Ohio has established the following principles for
interpreting the scope of an easement. “When an easement is created by an express
grant * * *, the extent of and limitations on the use of the land depend on the language in
the grant.” State ex rel. Wasserman v. Fremont, 140 Ohio St.3d 471, 2014-Ohio-2962,
20 N.E.3d 664, ¶ 28. “When the terms in an easement are clear and unambiguous, a
court cannot create a new agreement by finding an intent not expressed in the clear
language employed by the parties.” Id. “The language of the easement, considered in
light of the surrounding circumstances, is the best indication of the extent and limitations
of the easement.” Id.
{¶28} The trial court noted the absence of “separate instruments granting private
easements to the defendants” and that the easement “was not limited to the named
parties but provided for other unnamed public utilities to be added in the future * * * [which]
would make little sense if the utility easement was a private easement and not a public
easement.” Moreover, the Plat refers to Mentor, CEI, and the other utilities collectively
14
Case No. 2023-L-041
as “the grantees.” Facilities may be established “as are necessary or convenient by the
Grantees” at such locations “as the Grantees may determine.” Nowhere in the language
of the Plat is there an indication that individual grantees possess rights distinguishable
from the other grantees.
{¶29} We further note that CEI’s construction of the Plat’s language is forced and
contrary to its obvious meaning. The 1991 Plat contained the dedication of Diamond
Centre Drive “to public use” and, concomitantly, granted “a permanent right-of-way
easement” to Mentor, CEI, and other utilities. That easement allows the grantees “to
construct, place, operate, maintain, repair, reconstruct, and relocate” facilities for
providing utility services “for public and private use.” The language “for public and private
use” does not qualify the nature of the grant itself, i.e., it does not grant separate public
and private interests in the utility easement, but qualifies the purpose of the grant as
providing services “for public and private use,” i.e., for the benefit of Mentor as well as
private entities and persons. Stated otherwise, the language “for public and private use”
does not support CEI’s claim for a private easement interest, and apart from this
language, CEI cites nothing else in the Plat to support its claim.
{¶30} Finally, the context or “surrounding circumstances” of the easement
establish its public character. At the time of the dedication of Diamond Centre Drive in
1991, the Mentor Codified Ordinances (then the Mentor Code of Ordinances) provided
that “[e]asements ten feet in width shall be provided adjacent to each side of and
contiguous with all proposed rights-of-way” and “[s]uch easements shall be usable for any
and all underground utilities.” Mentor Code of Ordinances 152.063. In accordance with
this provision, the dedication of Diamond Centre Drive also contained the grant of “a
15
Case No. 2023-L-041
permanent right-of-way easement ten (10) feet in width” located on both sides of the Drive
for underground (as well as above ground) facilities. Furthermore, the mandated right-
of-way easement is regulated by Mentor to a degree inconsistent with a private interest.
Mentor’s Codified Ordinances assert that “right[s]-of-way are acquired, constructed and
maintained at significant expense to the City’s taxpayers,” and so constitute “a valuable
and limited resource which must be utilized to promote the public health, safety, and
welfare including the economic development of the City.” Mentor Codified Ordinances
931.01(a)(3) and (1). As noted above, Mentor claims the “authority * * * to regulate public
and private entities which use the rights-of-way.” Mentor Codified Ordinances
931.01(a)(5). Accordingly, “[e]ach person [both natural and corporate] who occupies,
uses, or seeks to occupy or use the rights-of-way to operate a system in the rights-of-way
* * * shall apply for and obtain a Certificate of Registration” and is subject to a “priority of
use of rights-of-way” as established by Mentor. Mentor Codified Ordinances 931.02(b)
and 931.01(a)(7)(F).
{¶31} Accordingly, we find no error in the trial court’s determination that the utility
easement created by the 1991 Plat constituted a public easement and, thus, a “public
way” as defined in R.C. 4939.01(N). Compare 28A Corpus Juris Secundum, Easements,
Section 11 (August 2023 Update) (“[i]n every instance of a private easement, that is, an
easement not enjoyed by the public, there exists the characteristic feature of two distinct
tenements, one dominant and the other servient; public easements on the other hand are
in gross, and in this class of easements there is no dominant tenement”).
{¶32} CEI argues in the alternative that, if this Court determines that the utility
easement is a public way, “this Complaint must be dismissed because the issues are not
16
Case No. 2023-L-041
ripe until the City first passes a valid ordinance ordering relocation.” Reply Brief of
Defendant-Appellant at 6. Stated otherwise, CEI maintains that Mentor has no authority
to order it to relocate its facilities except by the passage of a valid municipal ordinance.
{¶33} Mentor Codified Ordinance 931.17(i)(1)(A), quoted above, plainly states
that the City Engineer may request a utility to relocate its facilities within a right-of-way.
As contrary authority, CEI cites R.C. 727.23 which provides that a legislative authority
undertaking a public improvement “shall pass an ordinance.” The full context of the
statute is as follows:
The legislative authority of a municipal corporation which has
adopted a resolution under section 727.12 of the Revised Code
declaring the necessity for a public improvement shall * * * determine
whether or not it will proceed with the proposed improvement.
In the event the legislative authority determines to proceed with the
improvement it shall pass an ordinance which shall:
(A) State the intention of the legislative authority to proceed
with the improvement in accordance with the provisions of the
resolution of necessity adopted under section 727.12 of the
Revised Code;
(B) Adopt the estimated assessment prepared and filed in
accordance with the resolution of necessity passed under
section 727.12 of the Revised Code * * *;
(C) State whether or not claims for damages * * * shall be
judicially inquired into before commencing or after completing
the proposed improvement.
R.C. 727.23. The “resolution of necessity” is a resolution mandated by the Revised Code
“[w]hen it is deemed necessary by a municipal corporation to make a public improvement
to be paid for in whole or in part by special assessments levied under [Chapter 727].”
R.C. 727.12.
17
Case No. 2023-L-041
{¶34} Mentor (as well as the trial court) properly found R.C. 727.23 inapplicable
inasmuch as the widening of Diamond Centre Drive is not being funded by special
assessments pursuant to R.C. Chapter 727. According to the uncontradicted affidavit of
Mentor’s City Engineer: “The Project is not being financed by any special assessments.
It is being financed solely through grants and revenues received from a tax increment
financing program.”
{¶35} CEI cites Link v. FirstEnergy Corp., 147 Ohio St.3d 285, 2016-Ohio-5083,
64 N.E.3d 965, for the proposition that a utility may not be required to move its facilities
in the absence of a valid ordinance directing it to do so. In Link, a motorcyclist filed suit
against an electric company after striking one of the company’s utility poles and suffering
injuries. The motorcyclist claimed the company was liable for negligence and nuisance
after failing to relocate its pole as requested by the county engineer and the chairman of
the board of township trustees. The Supreme Court concluded that the placement of the
utility pole was sanctioned under the applicable law and, conversely, that “no ‘applicable
law’ required CEI and FirstEnergy to move the pole from its current location.” Id. at ¶ 28.
“Indeed, the county engineer acknowledged that he did not have authority to order the
relocation of utility poles.” Id. at ¶ 30. The letter sent by the board’s chairman was just a
letter and, “without more, does not have the force of law.” Id. at ¶ 31. The Supreme Court
concluded that, “[a]bsent a resolution or other affirmative legal action from the board, no
provision of Ohio law required CEI and FirstEnergy to move the involved pole or to obtain
a permit to leave the pole involved in Link’s accident in its existing location.” Id. at ¶ 33.
{¶36} We agree with Mentor that Link is distinguishable. In Link, unlike the
present case, the utility pole was located on a township right-of-way rather than a
18
Case No. 2023-L-041
municipal right-of-way. In Link, the Supreme Court found the relevant statute to be R.C.
5571.14, which authorizes a board of township trustees to declare that “an object
bounding a township road” to be a public nuisance and order its removal. Id. at ¶ 32.
Unlike the county engineer in Link, the City Engineer in the present case was expressly
authorized by municipal law to order the relocation of CEI’s facilities, citing the relevant
state statutes and municipal ordinances in his September 28, 2020 letter. See also
Mentor Codified Ordinances 931.02(a) (“[t]he City Engineer shall be the principal City
official responsible for the administration of this Chapter [931 Rights of Way
Administration])”.
{¶37} In conclusion, all the issues raised by Mentor’s Complaint and CEI’s
Counterclaim were properly before and ruled upon by the trial court. The court rightly
declared that (1) the 1991 utility easement is a public way, (2) Mentor could order CEI to
relocate its facilities at CEI’s expense, (3) and CEI is not entitled to public compensation
for the costs of relocation; and rejected CEI’s claim to order the institution of appropriation
proceedings.
{¶38} CEI’s assignments of error are without merit.
{¶39} The Concurring Opinion would have this Court “adopt the reasoning and
authorities set forth in the related case of Mentor v. AT&T Corp., 11th Dist. Lake No. 2023-
L-060.” In AT&T, this Court recognized that “the public vs. private nature of the utility
easement was immaterial to whether CEI ‘may be required to relocate its facilities without
compensation.’” Id. at ¶ 31. In AT&T, however, this Court “conclude[d] the public/private
nature of the ‘utility easement’ can be material, is so, and results in the same answer.”
Id. That answer was that AT&T’s “entitlement to compensation for the relocation of its
19
Case No. 2023-L-041
utility facilities is not based on ‘the nature of the utility’s interest in the easement, i.e.,
whether the easement is public or private, but rather the municipality’s purpose in ordering
the relocation of the facilities.’” Id. at ¶ 42, citing CEI at ¶ 13. Since this is the “same
answer” for essentially the same reasons, there is no compelling reason for adopting the
“reasoning and authorities” of AT&T. The two Opinions are consistent with each other.
{¶40} For the foregoing reasons, the judgment of the lower court is affirmed.
Costs to be taxed against the appellant.
ROBERT J. PATTON, J., concurs,
MARY JANE TRAPP, J., concurs in judgment only with a Concurring Opinion.
_______________________________________
MARY JANE TRAPP, J., concurs in judgment only with a Concurring Opinion.
{¶41} I respectfully concur in judgment only. Contrary to the majority, I do find
that the nature of CEI’s interest in the utility easement is material to the outcome of this
case. Majority opinion at ¶ 11. I would adopt the reasoning and authorities set forth in
this court’s opinion in Mentor v. AT&T Corp., 11th Dist. Lake No. 2023-L-060, and overrule
CEI’s assignments of error on those bases.
20
Case No. 2023-L-041