Ohio Easements, Landlocked Property and Eminent Domain (2026)

In Ohio, a prescriptive easement takes 21 years of open, notorious, adverse and continuous use, proved by clear and convincing evidence, the same period R.C. 2305.04 sets for recovering real property. The Ohio Supreme Court held in Pavey v. Vance (1897) that the use must be adverse and under a claim of right but, unlike adverse possession of title, need not exclude the owner. On eminent domain, Ohio has since 2007 excluded takings for economic development or private commercial enterprise from "public use" (R.C. 163.01(H)), with exceptions for utilities, common carriers, certain port authority occupants and proven blight, after the Ohio Supreme Court held in Norwood v. Horney (2006) that economic benefit alone cannot satisfy the public-use requirement.

This page covers both halves of Ohio law: easements between private landowners first, then the government's power to take private property. For other states, see our guide to easement laws by state.

Information last verified on October 19, 2026. This article has not been reviewed by a licensed lawyer.

Jurisdiction scope: This article covers Ohio law on private easements (Pavey v. Vance and Trattar v. Rausch, R.C. 1335.04, 5301.25, 5301.53, 5301.67 and the county road petition in R.C. 5553.41 to 5553.43) and on the appropriation of private property (Ohio Const. art. I, s. 19 and R.C. chapter 163). It does not cover adverse possession of title (see Ohio squatters' rights and adverse possession), homeowners' association covenants, zoning or regulatory takings, federal condemnation, or local ordinances.

How Long Does a Prescriptive Easement Take in Ohio?

A prescriptive easement in Ohio requires 21 years of qualifying use. No section of the Revised Code lists the elements; they come from case law. In Pavey v. Vance, 56 Ohio St. 162 (1897), the Ohio Supreme Court held that the claimant must prove use "adverse to the real owner, and under a claim of right," and that "in the case of an easement it is not required that the use should be exclusive of the owner of the servient tenement." The owner "may use a way in connection with the owner of the dominant tenement, as the two uses are consistent."

The second paragraph of the Pavey syllabus states the rule: "When one who is the owner of a tract of land uses a way over the land of another for the convenience of egress and regress to his own land, without let or hindrance and without obstruction for the period of twenty-one years, he thereby, in the absence of anything to the contrary, acquires a right by prescription to its use as an incident to his land; and the right will pass by a conveyance or descent of the land."

Ohio's courts of appeals require the claimant to prove the easement by clear and convincing evidence. In Pinkerton v. Salyers, 2015-Ohio-377, the Fourth District Court of Appeals wrote that a party seeking a prescriptive easement "must demonstrate clear and convincing evidence of open, notorious, adverse, and continuous use of the easement for a 21-year period," and that use is adverse "when it is without the permission of, or inconsistent with the rights of the true property owner."

The 21-year period matches R.C. 2305.04, which requires an action "to recover the title to or possession of real property" to be brought within twenty-one years after the cause of action accrued. If the person entitled to sue is a minor or of unsound mind when the claim accrues, that person may sue within ten years after the disability is removed, even after the 21 years have run.

The first paragraph of the Pavey syllabus explains how adversity is shown and who must prove permission: "Where one uses a way over the land of another without permission as a way incident to his own land and continues to do so with the knowledge of the owner, such use is, of itself adverse, and evidence of a claim of right. And where the owner of the servient estate claims that the use was permissive, he has the burthen of showing it."

Prescriptive easement versus adverse possession

A prescriptive easement gives a right to use another's land; adverse possession gives title to it. Both run on the same 21-year period. For title, the Ohio Supreme Court held in Grace v. Koch (1998) that "adverse possession must be proven by clear and convincing evidence" and that a claimant must show "exclusive possession and open, notorious, continuous, and adverse use for a period of twenty-one years." Exclusivity is part of that title test; Pavey held it is not required for an easement. Grace was a title case; our page on Ohio squatters' rights and adverse possession covers that side, and the Ohio statute of limitations guide covers R.C. 2305.04 alongside other filing deadlines.

Express Easements: Writing and Recording

An easement is an interest in land, and R.C. 1335.04 provides that no "interest ... of, in, or out of lands, tenements, or hereditaments, shall be assigned or granted except by deed, or note in writing, signed by the party assigning or granting it, or his agent thereunto lawfully authorized, by writing, or by act and operation of law."

Recording protects the easement holder against later buyers. Under R.C. 5301.25(A), until an instrument conveying or encumbering land is recorded, it is "fraudulent insofar as they relate to a subsequent bona fide purchaser having, at the time of purchase, no knowledge of the existence of that former deed, land contract, or instrument." Our guide to Ohio property records explains how to search county recorder records for easements on a parcel.

Ohio also recognizes conservation easements. R.C. 5301.67(A) defines one as "an incorporeal right or interest in land that is held for the public purpose of retaining land, water, or wetland areas predominantly in their natural, scenic, open, or wooded condition," including agricultural use consistent with that purpose, or retaining their use predominantly as habitat for fish, plants or wildlife.

Landlocked Property: Implied Easements and Ways of Necessity

Ohio courts may imply an easement when a single ownership is divided, but only on strict terms. In Trattar v. Rausch, 154 Ohio St. 286 (1950), the Ohio Supreme Court wrote: "It is a well settled rule that a use must be continuous, apparent, permanent and necessary to be the basis of an implied easement upon the severance of the ownership of an estate."

For a way of necessity, Trattar states: "A way of necessity will not be implied where the claimant has another means of ingress or egress, whether over his own land or over the land of another." Trattar applied the syllabus of Meredith v. Frank, 56 Ohio St. 479, under which a way reserved by implication "must be one of strict necessity to the remaining lands of the grantor; it is not merely a matter of convenience and if the grantor has another mode of access to his land, however inconvenient, he cannot claim a way by implication in the lands conveyed."

The county road petition (R.C. 5553.41 to 5553.43)

Ohio's statutory route for a landowner without road access produces a public road, not a private easement. Under R.C. 5553.41, a person "desiring to secure for the use of the public a road leading from any land owned by said person ... through the land of another person to a public highway may file a petition with the board of county commissioners," describing the road and naming the owners of the land it would cross.

Under R.C. 5553.43, if the board "finds the road petitioned for will serve the public convenience or welfare, it shall establish such road." Compensation to the owners is determined under R.C. 163.01 to 163.22, and only "When the petitioner for said road has paid to the owners of lands through which said road will pass the amount found due them for compensation or damages" may the petitioner enter and open the road.

How an Ohio Easement Can Be Cut Off or Preserved

Ohio's Marketable Title Act (R.C. 5301.47 to 5301.56) gives marketable record title to a person with "an unbroken chain of title of record to any interest in land for forty years or more" (R.C. 5301.48), and that title can clear some older interests. Two rules matter for easement holders:

• A general reference to easements in the chain of title does not preserve one "unless specific identification be made therein of a recorded title transaction which creates such easement" (R.C. 5301.49(A)).
• A holder can preserve an interest by recording a notice, in the form of an affidavit describing the claim and the land, during the 40 years after the root of title (R.C. 5301.51(A), 5301.52).

R.C. 5301.53 provides that the Act "shall not be applied to bar or extinguish" these easements:

• "Any easement or interest in the nature of an easement created or held for any railroad or public utility purpose";
• "Any easement or interest in the nature of an easement, the existence of which is clearly observable by physical evidence of its use";
• Any easement, and the rights granted, excepted or reserved by the instrument creating it, including rights for future use, "if the existence of such easement or interest is evidenced by the location beneath, upon, or above any part of the land described in such instrument of any pipe, valve, road, wire, cable, conduit, duct, sewer, track, pole, tower, or other physical facility and whether or not the existence of such facility is observable."

An easement can also end by abandonment. The Ohio Supreme Court held in Junction R.R. Co. v. Ruggles, 7 Ohio St. 1 (1857), that abandonment of a right of way "depends on the intention of the owner" and "may be inferred from the lapse of time or other circumstances indicative of an intention on the part of the grantee to abandon." Ohio appellate courts require the servient owner to prove "(1) nonuse of the easement, and (2) an intent to abandon," shown by "unequivocal and decisive acts" inconsistent with continued use, and long nonuse does not always show that intent (Snyder v. Monroe Twp. Trustees, 110 Ohio App.3d 443, 2d Dist. 1996).

Eminent Domain in Ohio

Ohio's takings clause is article I, section 19 of the Ohio Constitution, and the general procedure is R.C. chapter 163, which governs appropriations of real property except as R.C. 163.02 provides otherwise. Municipalities and chartered counties also hold eminent domain under the Ohio Constitution's home-rule provisions; Ohio's Legislative Service Commission summarizes the Ohio Supreme Court's position that "procedures or restrictions found in state law do not apply to municipal or chartered county projects," though those projects must meet the Ohio Constitution's restrictions. For a comparison with other states and the federal rules, see our guide to eminent domain laws by state.

Section 19 provides that private property "shall ever be held inviolate, but subservient to the public welfare." When property is taken in time of war or other public exigency, or "for the purpose of making or repairing roads, which shall be open to the public, without charge, a compensation shall be made to the owner, in money, and in all other cases, where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner."

Section 19 speaks only of property "taken for public use"; unlike some state constitutions, it contains no "or damaged" language.

At the federal level, the U.S. Supreme Court held in Kelo v. City of New London (2005) that takings under an economic development plan satisfied the Fifth Amendment's public use requirement, while stating that "nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power." For federally assisted projects, the acquiring agency must give assurances that it will be guided, "to the greatest extent practicable under State law," by the federal land acquisition policies in 42 U.S.C. 4651 (42 U.S.C. 4655(a)).

Can Ohio Take Property for Economic Development?

Generally no. Ohio limited economic development takings twice after Kelo: first in court, then by statute.

Norwood v. Horney (2006). In City of Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, the Ohio Supreme Court held: "We hold that an economic or financial benefit alone is insufficient to satisfy the public-use requirement of Section 19, Article I. In light of that holding, any taking based solely on financial gain is void as a matter of law, and the courts owe no deference to a legislative finding that the proposed taking will provide financial benefit to a community." The court also held that the provision of R.C. 163.19 barring a court from enjoining the taking and use of appropriated property, after compensation was deposited but before appellate review, violated the separation of powers.

Senate Bill 7 (2007). Effective October 10, 2007, R.C. 163.01(H)(1) provides that "public use" does not include "any taking that is for conveyance to a private commercial enterprise, economic development, or solely for the purpose of increasing public revenue, unless the property is conveyed or leased to one of the following":

• "A public utility, municipal power agency, or common carrier";
• "A private entity that occupies a port authority transportation facility or an incidental area within a publicly owned and occupied project";
• "A private entity when the agency that takes the property establishes by a preponderance of the evidence that the property is a blighted parcel or is included in a blighted area."

R.C. 163.01(H)(2) presumes these to be public uses: "utility facilities, roads, sewers, water lines, public schools, public institutions of higher education, private institutions of higher education that are authorized to appropriate property under section 3333.08 of the Revised Code, public parks, government buildings, port authority transportation facilities, projects by an agency that is a public utility, and similar facilities and uses of land."

R.C. 163.021(A) adds that no agency may appropriate real property "except as necessary and for a public use," and that "the taking agency shall show by a preponderance of the evidence that the taking is necessary and for a public use." Before taking property on a finding that an area is blighted or a slum, the agency must adopt a comprehensive development plan describing the public need, including at least one study documenting that need, with "All of the costs of developing the plan" publicly financed, and, if it is governed by a legislative body, obtain that body's resolution affirming the public need (R.C. 163.021(B)).

Who Can Use Eminent Domain in Ohio, Including Pipelines and Utilities

Chapter 163 defines both public agencies and private agencies. A "private agency" is "any corporation, firm, partnership, voluntary association, joint-stock association, or company that is not a public agency and that is authorized by law to appropriate property in the courts of this state" (R.C. 163.01(B)). Whether a particular company may appropriate property therefore depends on whether some other law authorizes it. For pipelines and utilities, R.C. 1723.01 lets a company organized to transport natural or artificial gas, petroleum, coal or its derivatives, water or electricity through pipes, conduits or wires appropriate land, "or any right or interest therein," deemed necessary for its lines and listed facilities, and R.C. 1723.02 requires those appropriations to be made under R.C. 163.01 to 163.22.

R.C. 163.01(G) defines "public utility" to include a municipally owned or operated utility, "an electric cooperative, and an agency holding a certificate of public convenience and necessity granted by the federal energy regulatory commission."

For utilities and common carriers, regulatory approval carries special weight. Under R.C. 163.09(B)(1)(c): "Approval by a state or federal regulatory authority of an appropriation by a public utility or common carrier creates an irrebuttable presumption of the necessity for the appropriation."

What the Agency Must Do Before Filing

R.C. 163.04 sets the pre-filing steps:

• Notice of intent. "At least thirty days before filing a petition pursuant to section 163.05 of the Revised Code, an agency shall provide notice to the owner of the agency's intent to acquire the property" (R.C. 163.04(A)).
• Good faith offer. With that notice or after it, "but not less than thirty days before filing a petition," the agency must give the owner "a written good faith offer to purchase the property" (R.C. 163.04(B)).
• Appraisal. An agency may appropriate real property "only after the agency obtains an appraisal of the property and provides a copy of the appraisal to the owner"; when the appraisal shows a value under ten thousand dollars, the agency need only provide a summary. The copy or summary must be given "at or before the time the agency makes its first offer to purchase the property" (R.C. 163.04(C)).

R.C. 163.59, which applies when an acquisition may result in eminent domain, adds these duties:

• The owner gets "a reasonable opportunity to accompany the appraiser during the appraiser's inspection of the property" (R.C. 163.59(C)).
• The offer may not be "less than the agency's approved appraisal of the fair market value of the property" (R.C. 163.59(D)).
• An appraisal more than two years old must be updated or replaced (R.C. 163.59(E)).
• After a partial taking that would leave an uneconomic remnant, the agency "shall offer to acquire that remnant" (R.C. 163.59(K)).
• The agency may not advance or defer condemnation, or take "any other action coercive in nature, in order to compel an agreement on the price" (R.C. 163.59(I)).

The notice form in R.C. 163.041 says an owner may employ appraisers and attorneys "at your own expense"; those costs are recovered, if at all, under the fee rules in R.C. 163.09(G) and 163.21 described below.

For takings by public agencies (the paragraph "does not apply to private agencies or to municipally owned public utilities"), the form tells the owner: "You have a right to appeal this decision and may object to this project's public purpose, necessity, designation of blight (if applicable), or valuation by writing, within ten business days of receiving this notice," addressed to the agency and, if the agency is not elected, to the elected officials who appointed it. Under R.C. 163.021(E), when an unelected public agency receives an owner's written objection, the appointing elected officials (or, for a state agency such as a university, the governor) may veto the appropriation. The form also gives the owner at least ten days after receiving the written offer to accept or reject it.

Homes that would lose a garage

R.C. 163.05 protects a homeowner from a partial taking that leaves no room for a garage. Where an agency "would require less than the whole of any parcel containing a residence structure and the required portion would remove a garage and sufficient land that a replacement garage could not be lawfully or practically attached, the appropriation shall be for the whole parcel and all structures" unless the owner waives that requirement. If the owner waives, the agency takes only the portion it requires plus the entirety of any structure wholly or partly on that portion.

Challenging the Taking and Quick-Take Possession

The answer decides what an owner can contest. The agency's right to make the appropriation, the inability of the parties to agree and the necessity for the appropriation "shall be resolved by the court in favor of the agency unless such matters are specifically denied in the answer and the facts relied upon in support of such denial are set forth therein" (R.C. 163.08). The answer "shall be verified as in a civil action," and in takings in time of war or other public exigency, or for roads open to the public without charge, it may not deny those matters at all. If no answer is filed, the court, on a public agency's motion, declares the value and damages as set out in the agency's filing (R.C. 163.09(A)).

When those matters are specifically denied, the court holds a hearing and "the burden of proof is upon the agency by a preponderance of the evidence," subject to the presumptions R.C. 163.09(B)(1) lists, including the irrebuttable presumption for regulator-approved utility and common carrier appropriations. Only the judge decides necessity. Except in exigency, road, rail and certain other listed takings, an owner may appeal immediately from a ruling for the agency on the matters denied (R.C. 163.09(B)(3)). At the compensation trial, neither party has the burden of proof on value (R.C. 163.09(F)).

Quick-take. A public agency that qualifies under article I, section 19 for a taking in time of war or other public exigency may deposit its own valuation with the court when it files and take possession, but "The right of possession upon deposit as provided in this division shall not extend to structures" (R.C. 163.06(A)). For roads open to the public without charge and for rail service, the deposit carries possession of structures too, and "The owner or occupant of such structures shall vacate the same within sixty days after service of summons" (R.C. 163.06(B)). After either deposit, the owner may apply to withdraw it without affecting the case; the amount withdrawn is deducted from the final award, and interest does not accrue on sums that can be withdrawn (R.C. 163.06(C)). Otherwise, an agency may take possession once it pays or deposits the award and costs (R.C. 163.15(A)), and no owner must surrender possession before the agency pays the agreed price or deposits at least its approved appraisal or the award (R.C. 163.59(F)).

Appeals. Under R.C. 163.19, "Subject to sections 163.07 and 163.09 of the Revised Code, any party may prosecute appeals as in other civil actions from the judgment of the court. The owner may request, and the court may grant, a stay on appeal, provided that the owner posts a supersedeas bond in an amount the court determines."

When the government takes without filing

When an owner claims the government has taken property without starting an appropriation case, the Ohio Supreme Court has held that "Mandamus is the appropriate action to compel public authorities to institute appropriation proceedings when an involuntary taking of private property is alleged," and that relators must prove entitlement to the writ by clear and convincing evidence (State ex rel. Doner v. Zody, 2011-Ohio-6117). Under R.C. 2305.09(E), an action "for relief on the grounds of a physical or regulatory taking of real property" must generally be brought within four years after the cause accrued; Doner held that the period is tolled while the government's conduct on its own land causes continuing damage and its conduct or control continues.

How Just Compensation Is Decided in Ohio

A jury assesses compensation, and the Constitution bars deducting benefits to any property of the owner (Ohio Const. art. I, s. 19). R.C. 163.14(A) likewise requires assessment "without deductions for general benefits as to the property of the owner." In a partial taking, the agency's quick-take deposit covers the value of the property taken "together with the damages, if any, to the residue" (R.C. 163.06(A)).

Business goodwill. Under R.C. 163.14(C), the jury assesses compensation for loss of goodwill of a business conducted on the property taken if the owner proves "(1) The loss is caused by the taking of the property; (2) The loss cannot reasonably be prevented by relocation of the business or by taking steps and adopting procedures that a reasonably prudent person would take and adopt in preserving the goodwill." Goodwill compensation "shall not exceed ten thousand dollars, and shall not be awarded in appropriations of less than the entirety of the business property," and may not duplicate other compensation or relocation payments under R.C. 163.53.

No home bonus in the compensation section. R.C. 163.14 adds no percentage premium for a residence. The 125 percent figure in R.C. 163.21(C) is not an extra payment; it is the threshold for fee shifting, described below.

Interest. Where the agency had no right to take possession before the verdict, "if the award is not paid to the owner or deposited in court within twenty-one days after journalization of the verdict, interest thereafter shall accrue, except that where the owner appeals, interest shall not accrue until the agency takes possession" (R.C. 163.17).

Attorney Fees, Relocation Payments and Repurchase Rights

Fees when the owner wins on necessity or public use. "If the court determines the matter in the favor of the owner as to the necessity of the appropriation or whether the use for which the agency seeks to appropriate the property is a public use, in a final, unappealable order, the court shall award the owner reasonable attorney's fees, expenses, and costs" (R.C. 163.09(G)).

Fees when the award exceeds 125 percent of the offer. "Except as otherwise provided in division (C)(2) or (3) of this section and subject to division (C)(5) of this section," when the final award of compensation is greater than 125 percent of the agency's good faith offer (or of a revised offer made before the proceeding began, based on conditions indigenous to the property that could not reasonably have been discovered at the time of the good faith offer), "the court shall enter judgment in favor of the owner, in amounts the court considers just, for all costs and expenses, including attorney's and appraisal fees, that the owner actually incurred" (R.C. 163.21(C)(1)). The award is capped at "the lesser of twenty-five per cent of the amount by which the final award of compensation exceeds the agency's initial good faith offer or revised offer or twenty-five per cent of the amount by which the final award of compensation exceeds the agency's last written offer made not less than forty-five days before the date initially designated for trial by the court" (R.C. 163.21(C)(4)). No 125% award is made:

• in takings in time of war or other public exigency, for roads open to the public without charge, for rail service, or in certain other listed exigency takings, except for land used for agricultural purposes when the award is more than 150% of the good faith or revised offer (R.C. 163.21(C)(2));
• where the owner and agency exchanged appraisals before the petition and the award is not more than 125% of the agency's first offer made after the exchange and at least 30 days before filing (R.C. 163.21(C)(3));
• unless, at least 50 days before the date first set for trial, the owner gave the agency an appraisal, summary appraisal, or a sworn statement of value explaining how it was reached (R.C. 163.21(C)(5)(b)).

The full-fee rule in R.C. 163.09(G) is not subject to those conditions or the cap (R.C. 163.21(C)(5)(a)). Separately, if the agency offers to confess judgment and the owner refuses and then does not receive more at trial, the owner "shall pay all court costs accruing after the offer" (R.C. 163.16).

Fees when the agency abandons or is not entitled to take. An agency that has not taken possession may abandon the case up to 90 days after the final determination; the court then enters judgment for the owner's witness fees, attorney's fees and other actual expenses (R.C. 163.21(A)). If the court determines the agency is not entitled to appropriate the property, it awards the owner's reasonable disbursements and expenses, including attorney's, appraisal and engineering fees (R.C. 163.21(B)).

Moving and relocation payments. R.C. 163.15(B) provides for payments that include "Actual reasonable expenses in searching for a replacement business or farm, but not to exceed two thousand five hundred dollars" and "Actual and reasonable expenses necessary to reestablish a farm, nonprofit organization, or small business at its new site, but not to exceed twenty-five thousand dollars." A business owner required to relocate may also recover proven actual economic loss, which generally "shall not exceed twelve months net profit of the business on an annualized basis" (R.C. 163.15(B)(3)). In exigency, road and rail takings the period is twelve months minus the time between the agency's notice and its deposit or payment, but not less than 15 days; after an act of God or other exigency requiring an immediate taking to protect public health or safety, or a voluntary conveyance, it is capped at 15 days' net profit. In either 15-day case the owner may ask the agency to add up to 15 days (for the first, only if the relocation is unusually complex).

Ohio's relocation assistance sections (R.C. 163.51 to 163.62) apply to a "displacing agency": one carrying out a program or project with federal assistance, or a state highway project (R.C. 163.51(B)). Under them:

• A displaced business or farm may take a fixed payment of "not less than one thousand dollars nor more than forty thousand dollars" in lieu of actual moving and related payments (R.C. 163.53(C)).
• An owner who occupied a dwelling for at least 90 days before negotiations began may receive an additional replacement housing payment "not to exceed thirty-one thousand dollars," if a decent, safe and sanitary replacement is bought and occupied within the one-year period the statute sets (R.C. 163.54).
• Other 90-day occupants may receive rental assistance for up to 42 months, "not to exceed seven thousand two hundred dollars" (R.C. 163.55(A)).
• No person is required to move from a dwelling unless replacement housing is available (R.C. 163.57(B)).

R.C. 163.59(G) also requires public improvements to be scheduled so that no lawful occupant must move from a dwelling, business or farm "without at least ninety days' written notice from the head of the acquiring agency concerned of the date by which the move is required."

Repurchase. Under R.C. 163.211, "If an agency decides not to use appropriated property for the purpose stated in the appropriation petition, the prior owner from whom the property was appropriated may repurchase the property for its fair market value as determined by an independent appraisal." The right ends on any of several listed events, including when "The prior owner fails to repurchase the property within sixty days after the public agency offers the property for repurchase" or when "Five years have passed since the property was appropriated." It also ends if the agency grants or transfers the property to another person or agency, if an urban renewal project including the property is authorized, or if the property was a blighted parcel before the petition and the prior owner contributed to the blight. The acquiring instrument must state the repurchase right (R.C. 163.02(D)(3)).

Ohio Easement and Eminent Domain Rules at a Glance

Related

• Easement laws by state
• Eminent domain laws by state
• Ohio squatters' rights and adverse possession
• Ohio property records
• Ohio statute of limitations

This article provides general legal information about Ohio easement and eminent domain law, not legal advice. For a specific situation, contact a lawyer licensed in Ohio.

Last updated: October 19, 2026.

Frequently Asked Questions

How long does a prescriptive easement take in Ohio?

21 years. The Ohio Supreme Court in Pavey v. Vance (1897) stated the rule as use without let or hindrance for the period of twenty-one years, and Ohio appeals courts require clear and convincing evidence of open, notorious, adverse and continuous use for a 21-year period. The period matches the 21-year limit for actions to recover real property in R.C. 2305.04.

What are the elements of a prescriptive easement in Ohio?

No statute lists them. The Ohio Supreme Court held in Pavey v. Vance (1897) that the use must be adverse to the owner and under a claim of right, and that for an easement the use need not be exclusive of the owner. Ohio appeals courts state the test as clear and convincing evidence of open, notorious, adverse and continuous use for 21 years. Under the Pavey syllabus, use without permission and with the owner's knowledge is itself adverse, and an owner who claims the use was permissive has the burden of showing it.

Is there an easement by necessity in Ohio for landlocked property?

Ohio courts imply a way of necessity only on strict necessity. Trattar v. Rausch (1950) states that a way of necessity will not be implied where the claimant has another means of ingress or egress, whether over his own land or over the land of another.

Can I petition for a road to my landlocked land in Ohio?

R.C. 5553.41 lets a landowner petition the board of county commissioners for a road for the use of the public through another's land to a public highway. If the board finds the road will serve the public convenience or welfare, it establishes the road, and the petitioner must pay the owners the compensation set under R.C. chapter 163 before entering to open it (R.C. 5553.43).

Does Ohio's Marketable Title Act wipe out easements?

R.C. 5301.53 says sections 5301.47 to 5301.56 do not bar or extinguish easements held for railroad or public utility purposes, easements clearly observable by physical evidence of their use, or easements evidenced by a pipe, wire, road, pole or other physical facility on the land. Other older interests can be cut off after 40 years unless preserved, for example by recording a notice under R.C. 5301.51 within the 40 years after the root of title, so the specific record matters.

Can Ohio take my property for a private developer?

Since 2007, R.C. 163.01(H) generally excludes from public use any taking for conveyance to a private commercial enterprise, economic development or solely to increase public revenue. The exceptions are conveyance or lease to a public utility, municipal power agency or common carrier, to a private entity occupying a port authority transportation facility or an incidental area within a publicly owned and occupied project, or to a private entity when the agency proves the property is blighted by a preponderance of the evidence.

Can a pipeline or utility use eminent domain in Ohio?

R.C. 1723.01 lets a company organized to transport natural or artificial gas, petroleum, coal or its derivatives, water or electricity through pipes, conduits or wires appropriate the land or rights deemed necessary for its lines, and R.C. 1723.02 requires those appropriations to follow R.C. 163.01 to 163.22. Ohio's definition of public utility also includes holders of a federal energy regulatory commission certificate (R.C. 163.01(G)). Under R.C. 163.09(B)(1)(c), state or federal regulatory approval of an appropriation by a public utility or common carrier creates an irrebuttable presumption that the appropriation is necessary.

Does the government pay attorney fees in an Ohio eminent domain case?

Chapter 163 shifts fees in several situations. If a final, unappealable order rules for the owner on necessity or public use, the court awards reasonable attorney's fees, expenses and costs (R.C. 163.09(G)). If the agency abandons the case or the court finds it is not entitled to take the property, the owner's attorney, witness and other expenses are awarded (R.C. 163.21(A), (B)). If the final award exceeds 125% of the good faith offer (or a qualifying revised offer), the court awards costs and expenses including attorney's and appraisal fees, capped at the lesser of two 25% figures; this award is not available in exigency, road or rail takings (except some agricultural land), after certain appraisal exchanges, or unless the owner gave the agency an appraisal or sworn value statement at least 50 days before trial (R.C. 163.21(C)).

How long does an Ohio agency have to wait before filing an eminent domain case?

R.C. 163.04 requires notice of intent to acquire at least 30 days before the petition is filed, and a written good faith offer not less than 30 days before filing. The agency must also obtain an appraisal and give the owner a copy, or a summary if the property is worth less than $10,000, at or before its first offer.

Can I buy back my property if Ohio does not use it?

If the agency decides not to use the property for the purpose stated in its petition, the prior owner may repurchase it at fair market value set by an independent appraisal (R.C. 163.211). The right ends on any of several listed events, including the owner's failure to repurchase within 60 days after the public agency's offer, the agency's transfer of the property to another person or agency, or five years passing since the appropriation.