COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59974 MONTLACK REALTY COMPANY : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION RICHARD WEBER, ET AL : : Defendants-appellees : : DATE OF ANNOUNCEMENT : OF DECISION : MARCH 5, 1992 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 159,550 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendants-appellees: DONNA J. POWERS, ESQ. THOMAS P. GILL, ESQ. 2 Berea Commons 75 Public Square Building Suite 215 Suite 1320 P.O. Box 1059 Cleveland, Ohio 44113 Berea, Ohio 44017 - 2 - J.F. CORRIGAN, P.J., Appellant, Montlack Realty Company, appeals from the order of the trial court denying its motion for summary judgment and granting summary judgment in favor of appellees, Richard Weber, et al. For the reasons set forth below, we reverse and remand. I. Appellant commenced this action on November 7, 1988 seeking injunctive relief against appellees based upon appellees' alleged violation of appellant's easement rights on property located at 1471 West 117th Street, and appellees' alleged trespass on appellant's property located on 1469 West 117th Street in Cleveland, Ohio. Appellees filed a joint answer on January 12, 1989 in which they denied the alleged transgressions. Prior to 1952, the entire parcel subject to this dispute was owned by William Cain. On August 25, 1952, Cain conveyed the property now owned by appellees to Patricia Campbell and Ann Hughes, and created the following easement in the deed of transfer: "Reserving unto the Grantor, his heirs and assigns, an Easement for driveway purposes over the Northerly 4 feet of the above described premises, extending back 85 feet, and granting unto the Grantees, their heirs and assigns, an Easement for driveway purposes over the Southerly 4 feet of the premises adjoining the premises herein described on the North and extending back 85 feet. Said Driveway to be kept open and unobstructed at all times." On December 19, 1952, Cain conveyed the remainder of the property to Brenda Boland by general warranty deed which - 3 - contained a "subject to" clause notifying Boland of the easement. On January 29, 1990, Boland conveyed this property to Montlack Realty. On September 15, 1971, the Estate of Anna Hughes conveyed her undivided one-half interest in appellees' lot to Michael Hughes. On June 20, 1983, Hughes conveyed his interest in appellees' lot by quit-claim deed to Richard Weber and Kathleen Campbell. This deed cited the original easement created by Cain. It is undisputed that at the time Cain owned both parcels and created the easement, each parcel contained a private home and the two shared a common driveway. It is further undisputed that the parcel currently owned by Montlack is a vacant lot, and that Montlack owns an adjoining property that contains a medical office building. The parties do not dispute that the lots containing Montlack's office building have a separate driveway which can adequately handle all traffic created by building patrons. Finally, it is undisputed that Montlack has paid to keep the driveway subject to the easement in good repair and free of snow since obtaining the property in 1970. Appellant moved for summary judgment on January 24, 1990, substantiating his claimed right of easement with a chain of title provided by the Land Title Agency, Inc. Appellant supported his claim that appellees were obstructing the easement with photographs and an affidavit. Appellant presented no evidence or argument in support of his claim of trespass. - 4 - Appellees responded to the motion with a brief in opposition and cross-motion for summary judgment on March 7, 1990. In their cross-motion for summary judgment, appellees did not dispute that they have obstructed the easement or that appellant has maintained the driveway since 1970, but argue solely that the easement was extinguished as a matter of law when appellant razed the private residence on his subject lot. Appellees also presented an affidavit of Patricia Campbell, an original party to the deed creating the easement, who stated that the easement was intended for residential use. Appellees further argue, without evidentiary support, that appellant seeks to create an easement for the use of his office building which is not appurtenant to the land that was originally subject to the easement. None of appellees' claims were raised in the pleadings. On May 14, 1990, the trial court denied appellant's motion for summary judgment and granted summary judgment in favor of appellees as to appellant's complaint. This appeal timely follows. II. Appellant has presented two assignments of error for our review: "MONTLACK'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED" "APPELLEES' CROSS-MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED." - 5 - Appellant's two assignments of error will be considered together, as each is premised on the argument that the judgment rendered in favor of appellee was contrary to law. In reviewing the granting of summary judgment, the appellate court must follow the standard set forth in Civ. R. 56(C), which specifically provides that before summary judgment may be granted, it must be determined that: no genuine issue as to any material fact remains to be litigated; the moving party is entitled to judgment as a matter of law; and it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion is made, that conclusion is adverse to that party. Petrey v. Simon (1984), 19 Ohio App. 3d 285. Appellant asserted a claim of trespass in his complaint. Appellees have not denied that averment. Therefore, pursuant to Civ. R. 8(D) it is admitted. Summary judgment should have been granted in favor of appellant on that portion of the complaint. With regard to the easement, appellant contends that appellees have obstructed the right of way in violation of express grant of right, and that said easement is perpetual and not dependent on the existence of a residential structure on his lot. Appellees on the other hand, contend that the easement was created for the sole purpose of serving two adjoining residential properties and has been extinguished by the demolition of appellant's house. - 6 - The pertinent language of the deed creating the easement is as follows: "Reserving unto the Grantor, his heirs and assigns, an Easement for driveway purposes *** and granting unto the Grantees, their heirs and assigns, an Easement for driveway purposes ***. Said Driveway to be kept open and unobstructed at all times." The language is clear and unambiguous, therefore, there is no need to inquire into the intent of the parties. Petrey, supra. The purpose of the easement, as stated in the deed, was for driveway purposes. The deed contains no reference to the presence of a building on appellant's lot, but states merely that the driveway be kept open and unobstructed at all times. Where an easement is created by grant, as is the case here, no duty is imposed upon the owner of the dominant estate to make use, therefore, as a condition of his rights to retain his title thereto. Langhorst v. Riethmiller (1977), 52 Ohio App. 2d 137; Lucked Out, Inc. v. The Cleveland Depo, Inc. (May 15, 1980), Cuyahoga App. No. 40999, unreported. However, where there is a non-use combined with a demonstrated intent to abandon a different result may arise. Rinaldi v. Schur (Nov. 7, 1985), Cuyahoga App. No. 49410, unreported. In the case before us, there is no evidence that appellant has abandoned the easement. In fact, it is undisputed that appellant has maintained the driveway since 1970. Further, there is no evidence that appellant has used the easement for the benefit of his medical office building, which is located on land not subject - 7 - to the easement. Based upon these facts and the clear language of the deed creating the easement, we find that appellant's right to the unobstructed use of the easement is not extinguished. Further, we find that appellees have violated their terms of the easement by obstructing the driveway. Appellees have not denied this allegation, therefore, pursuant to Civ. R. 8(D) it is admitted. In addition, appellant has provided adequate proof thereof. Therefore, summary judgment should have been granted in favor of appellant on the remaining issues of this case. Based upon the foregoing, we find that appellant's assignments of error are well taken. The judgment of the trial court is reversed and this case is remanded for further proceedings consistent with this opinion. - 8 - It is ordered that appellant recover of appellees their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. BLANCHE KRUPANSKY, J. and *PRYATEL, J., CONCUR. (*Sitting by assignment: Judge August Pryatel, Retired from the Eighth District Court of Appeals). JOHN F. CORRIGAN PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .