While inspecting his property, an owner noticed a truck on his land. He discovered that the truck belonged to a contractor hired by the local sewer district to clean a 7ft 6in.-diameter sewer main that ran beneath the property. Investigation revealed that there was no recorded easement for the sewer and that there was no visible means to determine that the sewer was under the property. The owner did not become aware of the sewer until he saw the truck, several years after his acquisition of the land.
The owner filed suit to have the sewer main removed from his property. The court concluded that the complaint was barred because the sewer district had an easement by prescription. On appeal, the decision was affirmed. Katz v. Metropolitan Sewer District, 690 N.E. 2d 1357 (Ohio App. 1st Dist. 1997).
Under Ohio state law, as summarized by the court, to obtain a prescriptive easement, a person's use of another's property must be open and notorious, adverse, and in place for at least twenty-one years.
The court found that the sewer line had been in use on the property for approximately 150 years. The question became whether such use of the property was sufficiently open and notorious even though the owner did not know about it. The court held that it was, because the presence of the sewer was long established in public records, including an 1852 report by the city civil engineer.
In the end, the court may have applied a balancing test. It stated that if its conclusion "seems to ignore or to denigrate property rights, . . . . we point out the necessity of this large, functioning sewer to general welfare of the public." It then quoted from the 1852 engineer's report:
So, what you see is not always what you get. What you don't see you may actually get.
Dan Kucera is a partner with the Chicago law firm of Chapman and Cutler, specializing in public utilities, water and wastewater and environmental law. Tel: (312) 845-3757; Fax: (312) 701-2361; e-mail: email@example.com