Hunker v. Whitacre-Greer Fireproofing Co.

{¶ 1} Defendants-appellants, Whitacre-Greer Fireproofing Company and John B. Whitacre Jr., appeal from a Carroll County Common Pleas Court decision granting an injunction prohibiting them from hunting fox on a certain parcel of land because of an easement in favor of plaintiffs-appellees, Robert L. Hunker and the Gully Ridge Hounds.

{¶ 2} In 1994, Hunker formed a hunting club known as the Gully Ridge Hounds. On May 18, 1995, appellants granted Hunker permission to hunt on 2,000 acres of their land in Carroll County. Appellants, as grantors, and Hunker, as grantee, entered into a recreational easement agreement relating to the 2,000 acres of land. The agreement states in part:

{¶ 3} “(1) Subject to the terms and conditions set forth in this Agreement, Grantors grant to Grantee, and the Gully Ridge Hounds (‘the Riding Club’), and their respective heirs, successors, assigns, invitees, and permittees, the nonexclusive right, privilege, and permission (‘the Easement’), to enter upon and use the real property of Grantors, which is described in Exhibit ‘A’ and Exhibit ‘B’ attached to this Agreement (‘the Premises’), for the sole purpose of horseback riding, fox hunting with horses and hounds, and hill topping with horses and horse-drawn vehicles and four-wheel vehicles (or motor vehicles). Grantee shall not use the Premises for purposes other than those specified above.”

{¶ 4} Appellees thereafter engaged in fox hunting activities on the property from 1995 to the present. Whitacre was a member of the Gully Ridge Hounds until early 2002. In late December 2001, Hunker advised the hunt club that he would no longer be able to underwrite the fox hunting activities and therefore someone else would have to finance the activities. In response to this announcement, the group divided. Part of the group formed the Magnolia-Waynesburg Hunt, which Whitacre joined. The rest of the group formed another hunt club under the name of the Gully Ridge Hounds, which Hunker joined. The new Gully Ridge Hounds attempted to conduct fox hunting activities on the 2,000 acres of land covered by the agreement, thus precipitating the filing of this case.

*327 {¶ 5} Appellees filed a complaint on September 20, 2002, seeking injunctive and declaratory relief regarding the recreational easement to use appellants’ property for fox hunting. They also sought a preliminary injunction restraining appellants from interfering with their rights under the agreement. Appellants filed a joint answer and counterclaim seeking similar injunctive and declaratory relief and also sought a preliminary injunction. The court granted appellees’ motion for a preliminary injunction, which excluded appellants from using the property for fox hunting during the pendency of the case. Trial was held on December 27, 2002, and the trial court granted a permanent injunction in favor of appellees on December 30, 2002. Appellants filed their timely notice of appeal on January 23, 2003.

{¶ 6} Appellants raise two assignments of error, the first of which states:

{¶ 7} “The trial court erred in determining that a contract provision granting ‘the non-exclusive right * * * to use * * * property * * * for * * * fox hunting’ was ambiguous.”

{¶ 8} Appellants assert that the question before this court is: What is the ordinary and commonly understood meaning of the agreement language providing “the non-exclusive right * * * to use * * * property * * * for * * * fox hunting.” Appellants argue that a non-exclusive right is commonly understood to mean a right that does not exclude others from the same right. Accordingly, appellants continue, the commonly understood meaning of the words granting a non-exclusive right to fox hunt would mean that such right does not exclude appellants or others from fox hunting.

{¶ 9} Appellants note that at trial appellees argued that the phrase “nonexclusive right to fox hunt” was merely a recognition of the fact that previous easements had been granted that encumbered the premises, such as oil and gas leases, and that the defendants contemplated that they might grant future easements to generate an economic benefit to them. Appellants, however, contend that because the phrase “non-exclusive” adverbially modifies only “the right to fox hunt,” the phrase is not reasonably susceptible of appellees’ interpretation that it somehow relates only to present or future oil, gas, or other easements.

{¶ 10} For these reasons, appellants conclude that the language regarding the non-exclusive right to fox hunt was not reasonably susceptible of two different meanings, particularly the meaning offered by appellees, and that the trial court therefore erred in permitting parol evidence for the purpose of construing that phrase.

{¶ 11} The construction of written contracts and conveyances is a matter of law. Alexander v. Buckeye Pipe Line Co. (1978), 53 Ohio St.2d 241, 7 O.O.3d 403, *328 374 N.E.2d 146, paragraph one of the syllabus. We review questions of law de novo. Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm (1995), 73 Ohio St.3d 107, 108, 652 N.E.2d 684.

{¶ 12} Where terms in an existing contract are clear and unambiguous, a court cannot create a new contract by finding an intent not expressed in the clear language employed by the parties. Long Beach Assn., Inc. v. Jones (1998), 82 Ohio St.3d 574, 577, 697 N.E.2d 208, citing Alexander, 53 Ohio St.2d at 246, 7 O.O.3d 403, 374 N.E.2d 146. “ ‘Common words appearing in a written instrument will be given their ordinary meaning unless manifest absurdity results, or unless some other meaning is clearly evidenced from the face or overall contents of the instrument.’ ” King v. Nationwide Ins. Co. (1988), 35 Ohio St.3d 208, 212, 519 N.E.2d 1380, quoting Alexander, 53 Ohio St.2d. at 245-246, 7 O.O.3d 403, 374 N.E.2d 146. Language in a contract is ambiguous only if it is reasonably susceptible of two or more meanings. McClorey v. Hamilton Cty. Bd. of Elections (1998), 130 Ohio App.3d 621, 625, 720 N.E.2d 954, citing George H. Olmsted & Co. v. Metro. Life Ins. Co. (1928), 118 Ohio St. 421, 426, 161 N.E. 276.

{¶ 13} In the present case, the trial court took careful effort to analyze the extrinsic evidence the parties presented to conclude that appellees held an exclusive right to fox hunt. But we need not reach this analysis because the conveyance language is not ambiguous. Extrinsic evidence is admissible to ascertain the intent of the parties only when a contract is unclear or ambiguous, or when circumstances surrounding an agreement give the plain language special meaning. Graham v. Drydock Coal Co. (1996), 76 Ohio St.3d 311, 314, 667 N.E.2d 949.

{¶ 14} The phrase, “non-exclusive right, privilege, and permission * * *, to enter upon and use the real property of Grantors, * * * for the sole purpose of horseback riding, fox hunting with horses and hounds, and hill topping with horses and horse-drawn vehicles and four-wheel vehicles” is not ambiguous. In this phrase, the words “non-exclusive right” to fox hunt are clear. We must look at these words using their ordinary, everyday meaning. “Exclusive,” used as an adjective or adverb, means “excluding or having power to exclude,” “limiting or limited to possession, control, or use by a single individual or group,” “excluding others from participation,” or “snobbishly aloof.” Webster’s Collegiate Dictionary (10th Ed.1998) 404. The prefix “non” means, “not: other than: reverse of: absence of.” Webster’s Collegiate Dictionary (10th Ed.1998) 788. Thus, the common meaning of “non-exclusive” right to fox hunt is that other people can fox hunt because the holder of the non-exclusive right does not have the power to exclude others from fox hunting.

{¶ 15} Appellees argue that the “non-exclusive” language is reasonably susceptible of two constructions: the first, as espoused by appellants, and the second *329 being simply a recognition that other easements were already in place as encumbrances on the property or that others were contemplated by appellants in the future. However, the easement language, without any extrinsic evidence does not lead to this conclusion. It is only upon the examination of extrinsic evidence that one might reasonably conclude that the language is susceptible of two or more interpretations. Within the agreement itself there is no mention of other easements, such as oil or gas leases, as appellees suggest. And since we are not to consider extrinsic evidence unless the language in the conveyance is reasonably susceptible of two or more meanings, we cannot conclude that the “non-exclusive right * * * for * * * fox hunting” is ambiguous. Accordingly, appellants’ first assignment of error has merit.

{¶ 16} Appellants’ second assignment of error states:

{¶ 17} “The trial court erred by interpreting a non-exclusive easement to use property for fox hunting, to exclude the owner and his assigns from using the same property for fox hunting.”

{¶ 18} In its judgment entry, the trial court stated:

{¶ 19} “Whether two hunt clubs can schedule joint ‘use’ of the 2,000 acres is not relevant. The recreational easement agreement at issue, as construed, precludes joint use and joint scheduling. It is a moot point.

{¶ 20} “However, the weight of the trial testimony supports a finding that two clubs cannot physically ‘hunt’ the -2,000 acres together on any regular basis as such overuse of such a limited area would diminish, or totally eliminate, the quarry being hunted. Any ‘second hunt’ would amount to ‘unreasonable’ interference with plaintiffs’ rights.”

{¶ 21} Assuming that the right transferred to appellees in the agreement was a non-exclusive right to fox hunt, appellants argue that the trial court erred in determining that any fox hunting by appellant was unreasonable per se under Section 8 of the agreement, which provides:

{¶ 22} “(8) Grantors and their successors and assigns shall have the full right and privilege to use the Premises, provided that Grantors shall not unreasonably interfere with the rights granted to Grantee hereunder(Emphasis added.)

{¶ 23} Appellants contend that this section was clearly intended to demonstrate that they retained the full right to use their own property while not unreasonably interfering with the rights granted to appellees. If the right to fox hunt is nonexclusive, appellants continue, it cannot be unreasonable to allow two competing groups to fox hunt, because a non-exclusive right to fox hunt clearly contemplates that the owner also has the right to fox hunt. Appellants concede that there is some “gray area” as to how much they can fox hunt before they unreasonably *330 interfere with appellees’ right to fox hunt. However, appellants urge that the language defining the easement clearly contemplates that it is not exclusive, and that both they and appellees have the right to fox hunt. Accordingly, appellants conclude, the issue cannot be resolved by simply saying, as the trial court did, that too much fox hunting would eliminate the quarry being hunted, and that therefore appellants may not engage in fox hunting.

{¶ 24} As stated above, the trial court concluded that the easement was exclusive. Thus, appellants could not fox hunt on the property. This should have ended the trial court’s decision. Instead, the court went on to issue an advisory opinion regarding what the evidence demonstrated if it had found that the easement was non-exclusive. The court should not have reached this issue. The question of whether appellants have unreasonably interfered with appellees’ easement has not yet arisen. Appellants have not, to this date, unreasonably interfered with appellees’ non-exclusive right to fox hunt. Because appellees possess a non-exclusive right to fox hunt, all hunting by appellants cannot be said to be an unreasonable interference. Accordingly, appellants’ second assignment of error has merit.

{¶ 25} For the reasons stated above, the trial court’s decision is hereby reversed, and the permanent injunction is lifted.

Judgment reversed and injunction lifted.