COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67282 L.I.D. DEVELOPMENT COMPANY : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION CITY OF SOUTH EUCLID, ET AL. : : : Defendant-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: MAY 4, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-180301 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: MICHAEL F. LORBER 9806 Ravenna Road Twinsburg, Ohio 44087 For Defendant-Appellee ROBERT P. DeMARCO City of South Euclid: 1620 Midland Building 101 Prospect Avenue, N.W. Cleveland, Ohio 44115 For Defendant-Appellees MICHAEL T. WATSON Michael A. & Janice Williams: 400 Lincoln Building Cleveland, Ohio 44114 For Defendant-Appellees OTTO GALBA Estanislao S. & Elizabeth 13025 Lorain Avenue A. Escano, et al.: Cleveland, Ohio 44111 (Continued) - 3 - Robert J. Gregor, Esq. Emilie M. DiFranco 29944 Euclid Avenue 4827 Thunderbird Drive, #53 Wickliffe, Ohio 44092 Boulder, CO 80303 Attorney for Thomas F. Kelly Richard & Helen Dagenbach C. David & Joan M. Stebbins 719 Parkside Boulevard 4540 Ammon Road South Euclid, Ohio 44143 South Euclid, Ohio 44143 Josephine DiVito Dougles R. Goergen 707 Parkside Boulevard 4508 Ammon Road South Euclid, Ohio 44143 South Euclid, Ohio 44143 Jack J. & Marie A. Visoky Alfred & Hilda Schneider 735 Parkside Boulevard 4500 Ammon Road South Euclid, Ohio 44143 South Euclid, Ohio 44143 Ronald D. & William Gehlfuss Allen C. Simon, Trustee 4467 Monticella Boulevard 4460 Ammon Road South Euclid, Ohio 44143 South Euclid, Ohio 44143 Sergej & Eleva Vladimiroff Thomas A. & Mary K. Gilbridge 4495 Monticello Boulevard 688 Azalea Drive South Euclid, Ohio 44143 South Euclid, Ohio 44143 Andrew P. Lukasko Clara E. Loparo 4507 Monticello Boulevard 691 Azalea Drive South Euclid, Ohio 44143 South Euclid, Ohio 44143 Jack & Jerusha Gunter Joseph J. & Lorraine D. Bradley 4527 Monticello Boulevard 707 Azalea Drive South Euclid, Ohio 44143 South Euclid, Ohio 44143 Geraldine Vancey Paul P. & Mary A. Finan 4621 Monticello Boulevard 704 Azalea Drive South Euclid, Ohio 44143 South Euclid, Ohio 44143 Arthur A. Diederick 718 Trebisky Road South Euclid, Ohio 44143 Merwin R. & Freda Baetzold 712 Trebisky Road South Euclid, Ohio 44143 Alfred C. & Jeanne L. DiFranco 4628 Ammon Road South Euclid, Ohio 44143 - 4 - O'DONNELL, J.: L.I.D. Development Company, an Ohio partnership, sued the City of South Euclid and individual owners of servient parcels of real estate seeking a judicial declaration that an existing public street easement had been abandoned by the city, thus permitting development on two servient, vacant parcels of real estate which it owns within the Anton Zverina Realty Co. Monticello Acres Subdivision. Relevant facts are generally agreed upon. At the time the Anton Zverina Realty Co. Monticello Acres Subdivision plat was established in 1943, the city reserved a sixty-foot-wide easement for a public street extending from Trebisky Avenue on the east to a Westerly terminus. The language of creation stated in part: "A permanent easement *** [which] *** shall become a public street when the Westerly terminus *** connects to another street. This agreement is to be considered a covenant running with the land for the benefit of and enforceable by the City of South Euclid or any owner of land affected ***." Immediately west of the Zverina/Monticello subdivision is the Parkside Subdivision platted in 1944; each deed of conveyance from Blanche L. Oviatt, wife of Douglas G. Oviatt, then Mayor, also contained a reservation of a sixty-foot-wide easement, "for the use and benefit of the City of South Euclid *** to be used for *** a public street or road ***." While L.I.D. does not own - 5 - any realty in the Parkside Subdivision, it urges that the easements in both subdivisions be read in pari materia. L.I.D. does own the Patel Subdivision, platted in 1979, which is part of the original Zverina/Monticello Subdivision and which fronts on Azalea Drive, a street running north and south between Monticello Boulevard and Ammon Avenue. Two vacant lots in this development, one on the east side of Azalea Drive and one on the west side are servient to the sixty-foot-wide street easement which precludes development on each parcel. L.I.D. knew of the existence of the easement at the time it acquired the land and before it began development. The individual property owners who are parties to this case own parcels which front on either Monticello Boulevard, which is parallel to and south of the easement or on Ammon Road which is also parallel to, but north of the easement. Trebisky Avenue, which runs parallel to Azalea Drive is the eastern-most point of the Zverina/Monticello Subdivision, and Parkside Boulevard which is generally parallel to Azalea Drive and is the westernmost point of the Parkside Subdivision. The Monticello Boulevard and Ammon Road properties are five-to-six-hundred-feet deep and could be lot-split if a new street were developed in conformity with the easement between Trebisky and Parkside thereby enabling the owners to sell-off the rear portion of their lots which would then create frontage on the newly developed street. - 6 - The issue presented for our review in this case arose in 1983, when the Council of the City of South Euclid passed an ordinance releasing a portion of the street easement which involved five parcels at the westernmost end of the Parkside Subdivision. The ordinance states in part: "*** "Whereas the City *** has not *** accepted *** said grant of easement; and "Whereas the City *** has not and does not intend to establish a public street or road on and over said reserved parcel ***." L.I.D. claims, based on that prefatory language contained in the ordinance, that all the easements in both the Parkside and Zverina/Monticello Subdivisions are abandoned and L.I.D. should be permitted to develop its two remaining Azalea Drive lots in the Patel Subdivision. It has filed one assignment of error, THE TRIAL COURT ERRED BY RULING THAT THE CITY OF SOUTH EUCLID IN ISSUING AN ORDINANCE RELEASING ITS RIGHTS TO A CERTAIN PORTION OF AN EASEMENT DID NOT ABANDON THE PURPOSE OF THE ORIGINAL INTENT OF THE EASEMENT TAKEN AS A WHOLE AND THEREFORE THE ENTIRE EASEMENT DID NOT TERMINATE. Because the owners of the servient tenements have a vested interest in creation of a public street due to the lot-split and sell-off possibilities, and because the Zverina/Monticello reservation authorizes them to enforce the easement, they have briefed the issues, and we understand their views. Because the city failed to file a brief in both the trial court and the appellate court, we are unclear of its position. - 7 - L.I.D. urges that the reservation language contained in the Zverina/Monticello plat directs that the easement will become a street when the Westerly terminus connects to another street. It argues that since that Westerly terminus is West of Azalea Drive it is improbable another street parallel to Azalea will be developed and with the ordinance language abandoning five lots at the west end of the Parkside Subdivision, no public street can now have Parkside as its Westerly terminus. It urges that the city has effectively created a landlocked roadway easement and therefore the easements in both subdivisions have been abandoned by operation of law. Our issue then becomes whether or not the City of South Euclid has, in fact, abandoned the easements by enacting the 1983 ordinance. Ohio law requires a servient estate owner to satisfy a two- part test in order to prevail on a claim that an easement has been terminated by abandonment: both nonuse by the owner of the dominant estate, and an affirmative intention to abandon the easement. See Wheaton v. Ferrenbough (1917), 8 Ohio App.182. The Ohio Supreme Court has addressed the issue in West Park Shopping Center v. Masheter (1966), 6 Ohio St.2d 142. It said, "An abandonment is proved by evidence of an intention to abandon as well as of acts by which the intention is put into effect; there must be a relinquishment of possession with an intent to terminate the easement." - 8 - While we conclude that L.I.D. correctly argues the city has expressed through ordinance an intention to abandon the easement as to the five lots in the Parkside Subdivision, we cannot conclude any present intention to abandon the easement as to the remaining parcels in that subdivision or as to any parcels in the Zverina/Monticello Subdivision. Clearly, no action of the city has expressed any such intention. And, the law further states, non-use, standing alone, cannot establish abandonment of an easement. See Wyatt v. ODOT (1993), 87 Ohio App.3d 1. We fully recognize the cogent arguments advanced by L.I.D. in its well prepared brief but we are not persuaded that future public street development is precluded on these existing easements. One viable alternative advanced by the parties is the possible cul-de-sac development of separate roadways running east and west from Azalea Drive. Accordingly, we have determined that the City of South Euclid has not abandoned the reservation of easement in the original plat of the Zvernia/Monticello Subdivision nor has it abandoned the contested reservations of easement in the conveyance deeds for parcels in the Parkside Subdivision. The assignment of error advanced by L.I.D. is not well taken and is overruled. The judgment of the sage trial judge in declining to enter a judgment declaring the easements had been abandoned is affirmed. - 9 - It is ordered that appellee(s) recover of appellant(s) 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 Common Pleas Court 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. HARPER, P.J., and NUGENT, J., CONCUR JUDGE TERRENCE O'DONNELL 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- .