COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70204 AL C. UBER, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION CRYSTAL E. WHITE, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : JANUARY 16, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Bedford Municipal Court : Case No. 94-CVF-00662 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: James N. Harding 653 Broadway Avenue Suite 204 Bedford, Ohio 44146 For defendant-appellant: Ranelle A. Gamble 1950 Lee Road Cleveland Heights, Ohio 44118 -2- NAHRA, J.: Appellant, Crystal E. White ("White"), appeals from a judgment rendered against her and in favor of appellee, Al C. Uber ("Uber"). For the following reasons, we affirm the judgment of the trial court. This case involves a dispute over ownership of a water line. In 1993, appellant began construction of a residence to be located at 24662 Alexander Road, in Oakwood Village, Ohio. During excavation of her property, a water tap connection was discovered in the main water line which ran along Alexander Road. A water line led from the water tap connection to appellee's neighboring house at 24450 Alexander Road. Upon discovery of the water tap connection, appellant contacted Oakwood City officials. They instructed her to cease excavation of the property and told her not to take action with respect to the appellee's water line. Despite such instruction, appellant "deliberately broke the water line to [appellee's property], connected her own water line to the water tap connection and filled in the excavation." This rendered the residence on appellee's property without water. Appellee, who leased this residence, temporarily housed his tenants elsewhere. Further, appellee installed a series of water connections to the main line. In order to recover his costs, appellee brought a lawsuit against White. After a one day bench trial, the municipal court rendered judgment for appellee in the -3- amount of $10,000.00. Appellant appeals and asserts two assignments of error. I. Appellant's first assignment of error states: The trial court below erred when it gave judgment to Appellee in contradiction of the facts, the witness testimony, the exhibits and the applicable law. The record on appeal does not contain a transcript of the one day bench trial. Appellant moved to establish a statement of the evidence presented at trial under App.R. 9(C). It appears from the record, however, that appellant substituted its previously rejected findings of fact and conclusions of law for a proper recitation of the evidence presented. As a result, the trial court rejected appellant's proposed statement of evidence. Due to appellant's failure to provide this court with either a transcript of the proceedings or a proper App.R. 9(C) statement of the evidence, see Jackson v. Jackson (Dec. 16, 1993), Cuyahoga App. No. 64265, unreported, this court is limited to reviewing an incomplete record. Djurich v. LaHood (1990), 66 Ohio App.3d 332, 334, 584 N.E.2d 35. See, also, Malcuit v. Equity Oil & Gas Funds, Inc. (1992), 81 Ohio App.3d 236, 241, 610 N.E.2d 1044. Consequently, we must presume regularity in the findings of fact, since without a complete record, we cannot review the witness testimony or those exhibits which might have been admitted by the trial court. Jackson, supra; Malcuit, supra. See, also, Sposit v. Navratil (1991), 72 Ohio App.3d 493, 595 N.E.2d 467. Also, exhibits -4- presented on appeal do not form part of the record and are not properly before this court. App.R. 9. The trial court correctly concluded that the water tap connection constituted an encroachment. See Szilagy v. Taylor (1939), 63 Ohio App. 105, 16 O.O. 381, 25 N.E.2d 360. It is clear that appellant had no title to the water tap connection. Id. Rather, the court determined that appellee's grantor installed the water tap connection and water line in 1967, and although it was installed on the neighboring property, the connection was not an appurtenance thereto. The issue on appeal is whether appellant properly appropriated the encroachment for her own purposes. Appellant cites no basis in either law or fact supporting her appropriation of the water tap connection. Rather, appellant argues only "that [she] had the legal right to have [the tap] removed from her land." While appellant may have been entitled to relief from the encroachment, this relief did not include forcibly removing appellee's water line and replacing it with her own water line. McGee v. Randolph (1949), 56 O.L.A. 24, 90 N.E.2d 599 (a mandatory injunction is the proper remedy for one landowner to invoke against his adjoining landowner who has built a structure which encroaches on his land). Accord Miller v. City of West Carrollton (1993), 91 Ohio App.3d 291, 632 N.E.2d 582; McGuire v. Kashen (Sept. 15, 1995), Lucas App. No. L-94-294, unreported; Old Mill Village Homeowners Assoc. v. Bacik (Feb. 3, 1993), Summit App. No. 2118, unreported. Therefore, the trial court properly -5- concluded that appellant is liable for her actions. Appellant's first assignment of error is without merit. II. Appellant's second assignment of error states: It was error for the trial court to award attorney fees to Appellee. Appellant correctly cites the general rule that each party is liable for its own attorney fees. However, where the fact finder concludes that punitive damages are proper because the losing party acted with malice, attorney fees are recoverable as compensatory damages. Vinci v. Ceraolo (1992), 79 Ohio App.3d 640, 649, 607 N.E.2d 1079. In this case, the trial court concluded that appellant acted deliberately and maliciously. Accordingly, punitive damages could properly have been awarded. Vinci, supra. As a result, the award of attorney fees is sustained and appellant's second assignment of error is overruled. Affirmed. -6- It is ordered that appellee recover of appellant his 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 Bedford Municipal 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. PORTER, P.J., and DYKE, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .