Portage County Board of Commissioners v. City of Akron (156 Ohio App. 3d 657, 2004)

Donald R. Ford, Presiding Judge.

{¶ 1} The instant appeal emanates from a final judgment of the Portage County Court of Common Pleas. Appellant and cross-appellee, the city of Akron, is seeking the reversal of various determinations made by the trial court regarding its use of the waters contained in part of the Cuyahoga River. Appellees and cross-appellants, the Portage County Board of Commissioners and its three individual members, the city of Cuyahoga Falls, the city of Kent, the city of Munroe Falls, and the village of Silver Lake, are essentially seeking the same relief as to other trial court determinations.

{¶ 2} The basic subject of this appeal concerns the propriety of the parties’ respective uses of the waters in the Cuyahoga River. After running throughout Geauga County, Ohio, the river passes into Portage County from the north and. flows in a general southwestern direction until it crosses the eastern border of Summit County, Ohio. While it is within Portage County, the river flows past certain properties owned by the city of Cuyahoga Falls, the city of Kent, the city of Munroe Falls, and the village of Silver Lake. Portage County itself does not own any property that abuts the river. However, although it is located in Summit County, appellant owns land in Portage County that contains water diverted from the Cuyahoga River.

{¶ 3} Appellant’s use of the river water began circa 1910. At that time, appellant had been experiencing difficulty finding a reliable source of water for its growing population and industries. In 1911, the Ohio General Assembly passed a statute that purported to give appellant, in perpetuity, the state’s entire legal interest in the waters of the river. The statute also gave appellant the state’s eminent domain authority to appropriate land for the purpose of creating a water system for appellant’s inhabitants.

{¶ 4} Using the foregoing authority, appellant obtained a significant track of land located in Portage County, north of the city of Kent. At this site, appellant built a dam across the Cuyahoga River and thereby created a large reservoir of water which subsequently became known as Lake Rockwell. This reservoir would soon become the main source for the drinking water that appellant has continued to supply for its citizens over the ensuing decades. Water from Lake Rockwell has also been used by appellant for fire protection and other internal municipal uses. As of the late 1990s, appellant was pumping an average of 42 million gallons of water per day from Lake Rockwell.

{¶ 5} In addition to the property for the primary reservoir for its water system, appellant also obtained other tracts of land in Portage and Geauga counties. Some of the tracts were used through the years to construct three other reservoirs. Appellant further obtained a group of water wells in Geauga County that were capable of producing 22 million gallons of water per day. Finally, in the years immediately after the passage of the 1911 statute, appellant pursued a policy of purchasing the riparian rights of Portage County property owners whose land abutted the Cuyahoga River downstream from Lake Rockwell.

{¶ 6} Even after the dam for Lake Rockwell had been completed, there was still a continuing flow of water in the river downstream from the dam toward the city of Kent. This flow primarily consisted of water that appellant purposely released from the reservoir and water that would naturally seep into the river from the surrounding ground. For many years following the completion of the dam, the amount of water in the downstream portion of the river, known as the “middle” Cuyahoga River, was sufficient to enable appellees to continue to use the river in the same manner as they had before.

{¶7} However, during the last two decades of the twentieth century, the population of Portage County started to grow at a quicker pace. As a result, appellees’ respective wastewater treatment plants began to expel more treated sewage into the river. In the late 1990’s, appellees were informed by a state environmental agency that they would be required to lower the percentage of pollutants in their treated sewage because there was not enough water in the Cuyahoga River to sufficiently dilute the pollutants. In addition, during this same time period, appellant had entered into agreements to sell their water to other communities in Summit County. Thus, a dispute developed about whether appellant was legally obligated to release more water from Lake Rockwell into the river.

{¶ 8} In April 1998, appellees initiated the instant case by filing a seven-count complaint against appellant. As the basic factual basis for the complaint, appellees alleged that appellant’s use of the river water in Lake Rockwell violated their rights as owners of downstream land. Specifically, they alleged that, by hoarding the water, appellant was harming the aquatic life in the river and the recreational use of the river. In their second claim, appellees sought a declaratory judgment as to the rights of the parties under the 1911 statute. They also asserted claims sounding in unreasonable use of the water, public nuisance, private nuisance, and negligence. In addition, they claimed that appellant was improperly denying the public access to Lake Rockwell.

{¶ 9} After the action was pending for nearly six months, the parties agreed that the following entities would be added as defendants: (1) the Copley-Akron Joint Economic Development District; (2) the Coventry-Akron Joint Economic Development District; and (3) the Springfield-Akron Joint Economic Development District. These additional defendants had agreements with appellant to purchase water for drinking and sewer purposes. These entities asserted counterclaims against appellees.

{¶ 10} Appellant’s first response to the complaint was to move for a change of venue to Cuyahoga County. After the trial court overruled this motion, appellant submitted its answer to the complaint. In addition to asserting 28 defenses, appellant raised 11 counterclaims against appellees, essentially asserting that appellees had tried to interfere with appellant’s right to use the water in the river. Appellant also filed a third-party complaint against the city of Ravenna, raising six more claims for relief. In turn, the city of Ravenna answered the third-party complaint and asserted multiple counterclaims against appellant.

{¶ 11} Once the pleading stage of the action had culminated, appellant moved for judgment on the pleadings in relation to appellees’ claim for public access to Lake Rockwell. Appellant argued that appellees did not have standing to contest their rule concerning access to the lake. The trial court granted this motion in part, holding that only the Portage County Board of Commissioners could challenge the access rule.

{¶ 12} The parties then filed competing motions for summary judgment as to the proper interpretation of the 1911 statute. After reviewing the respective evidential materials, the trial court granted judgment in favor of appellees on three issues. First, the court held that appellant did not have the right under the statute to sell any water to anyone outside its territorial limits. Second, the court held that appellant had not obtained any riparian rights under the statute as to any land on the “middle” Cuyahoga River. Third, the court concluded that the statute had not granted appellant unlimited use of the river water.

{¶ 13} In addition to the foregoing, the parties submitted other summary judgment motions pertaining to many of the pending claims and counterclaims. As between appellant and appellees, the trial court granted summary judgment in favor of appellees in regard to appellant’s counterclaims of conversion, trespass, civil conspiracy, and tortuous interference with contractual relations. The trial court also granted summary judgment in favor of appellant as to appellees’ claims of negligence and for monetary damages. However, the trial court overruled appellees’ motion for summary judgment in relation to appellant’s counterclaim of unreasonable use of the river water and as to their own claims of improper diversion of water and the need for a water diversion permit. Similarly, the court did not grant appellant’s motion for summary judgment as to appellees’ claims of unreasonable use, public nuisance, private nuisance, public access to Lake Rockwell, and the need for a water diversion permit. Finally, the trial court overruled appellant’s motion for summary judgment on the issue of whether it had appropriated all of the water rights downstream from Lake Rockwell.

{¶ 14} As to those claims between appellant and the city of Ravenna, the trial court granted summary judgment in favor of Ravenna in regard to appellant’s third-party claims of conversion, trespass, nuisance, negligence, and contribution. Furthermore, the court granted Ravenna’s motion for summary judgment on the issue of whether the 1911 statute had given appellant any water rights to certain tributaries of the Cuyahoga River. Regarding Ravenna’s counterclaims, the trial court awarded summary judgment in favor of appellant as to the claims of unreasonable use, negligence, nuisance, and the need for a water diversion permit.

{¶ 15} In February 2001, a 16-day bench trial was held on the remaining claims. In light of the evidence presented, the trial court entered judgment in favor of appellant as to each of appellees’ claims concerning the reasonableness of appellant’s use of the river water. Similarly, the court also entered judgment in favor of appellees as to each of appellant’s counterclaims on the use issue. The only claim for which the trial court gave affirmative relief was the “public access” claim. As to that claim, the court ordered appellant to allow the public to use non-motorized boats on Lake Rockwell. Finally, the court declared valid appellant’s agreements to sell water to the three joint economic development districts.

{¶ 16} In appealing from both the foregoing judgment and the summary judgment decision to this court, appellant has raised 25 assignments of error for our consideration. In addition, appellees have asserted six assignments of error in their cross-appeal.

I

{¶ 17} The first seven assignments in the instant appeal pertain to the trial court’s summary judgment decision in favor of appellees as to the extent of appellant’s right to the waters of the Cuyahoga River under the 1911 statute.

ASSIGNMENT OF ERROR NUMBER 1

{¶ 18} “The court erred in denying Akron’s motion for summary judgment declaring its rights under the 1911 statute.”

{¶ 19} Under its first assignment, appellant asserts that the trial court should have granted summary judgment in its favor on its declaratory judgment claim because the court did not properly interpret the portion of the statute dealing with its right to use the river water for municipal purposes. Specifically, appellant contends that the trial court failed to interpret the statute in light of other contemporary statutes dealing with a municipality’s eminent domain power.

{¶ 20} As was noted previously, the statute at issue, 102 Ohio Laws 175, was passed by the Ohio General Assembly in May 1911. The first section of the statute dealt with the grant of authority to divert and use the river water. This section stated in part:

{¶ 21} “That there is hereby granted to the city of Akron, in the county of Summit, and state of Ohio, the right to divert and use forever for the purpose of supplying water to said city of Akron and the inhabitants thereof, the Tuscarawas river, the big Cuyahoga and little Cuyahoga rivers, and the tributaries thereto, now wholly or partly owned or controlled by the state and used for the purpose of supplying water to the northern division of the Ohio canal * * *.”

{¶ 22} In conjunction with the 1911 statute, the then Governor of Ohio, Judson Harmon, issued a deed that granted appellant the right to divert the water of the Cuyahoga River “* * * for the purpose of supplying water to said city of Akron and the inhabitants thereof * * The deed further indicated that the grant was applicable to waters of the Cuyahoga River which were “* * * now of wholly or partly owned and controlled by the State of Ohio, and used for the purpose of supplying water to the northern division of the Ohio Canal, together with the right to enter in and upon, for the waterworks purposes as aforesaid * *

{¶ 23} In ultimately concluding that the foregoing language from both the statute and the deed did not give appellant an absolute right to use the water from the Cuyahoga River, the trial court first held that the General Assembly had intended to grant appellant only those rights which the state itself had. The trial court then concluded that, under Ohio law, the right to use river water was initially vested in the landowners whose real property abutted the river. Based upon this, the court held that, since there was no indication that in 1911 the state had owned all of the land abutting the Cuyahoga River in Summit and Portage counties, the state could not have granted total control of the river water to appellant.

{¶ 24} In regard to the first aspect of the trial court’s analysis, appellant submits that the court failed to interpret the 1911 statute in the contexts of other existing Ohio laws. Specifically, appellant notes that, as of 1911, there existed a statute which gave a municipality the ability to use its eminent domain power to acquire land and riparian water rights for purposes of a municipal water system. In light of this separate statute, appellant asserts that the General Assembly had to have intended to grant appellant a greater right under the 1911 statute than what the city could obtain using its eminent domain power.

{¶ 25} At the outset of our analysis, this court would note that, under the primary rule of statutory interpretation, a court must apply a statute as it is written when the meaning of the provision is unambiguous and definite. State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn. (1996), 74 Ohio St.3d 543, 545, 660 N.E.2d 463. In other words, an unambiguous statute has to be applied in a manner consistent with the plain meaning of the statutory language, and a court does not have the option of simply ignoring or adding words. State ex rel. Burrows v. Indus. Comm. of Ohio (1997), 78 Ohio St.3d 78, 81, 676 N.E.2d 519. See, also, Morgan v. Ohio Adult Parole Auth. (1994), 68 Ohio St.3d 344, 347, 626 N.E.2d 939. Furthermore, the Supreme Court of Ohio has indicated that the purpose of statutory construction is to discern the actual meaning of the statute, as compared with what the Ohio General Assembly might have intended. First Natl. Bank of Wilmington v. Kosydar (1976), 45 Ohio St.2d 101, 106, 74 O.O.2d 206, 341 N.E.2d 579.

{¶ 26} After reviewing the 1911 statute in light of the foregoing general rules, this court concludes that the statute is worded in such a way that its meaning is plain and unambiguous. Specifically, we would emphasize that, in making the grant of the right to divert and use the river water, the General Assembly referred to the fact that such water had to have been wholly or partly owned by the state and been used in the operation of the Ohio Canal. Therefore, it is apparent that the reference to the state’s prior ownership and use was intended as a qualification on the grant to appellant.

{¶ 27} If, as appellant suggests, the legislature intended to give appellant an absolute right to all of the river water, there simply would have been no need to add the phrase concerning the state’s prior ownership and the use of the water in the canal. Instead, the legislature could have stated that it was granting the right to use the water without qualification. Accordingly, in order for this court to hold that an absolute right was granted, we would have to ignore the reference to prior ownership and use.

{¶ 28} Notwithstanding the fact that the grant in the 1911 statute was qualified, it still gave appellant a considerable right which it could not have acquired in any other fashion, i.e., the statute allowed appellant to assume the state’s right to use the river water without having to pay any compensation. To this extent, this court rejects appellant’s contention that the foregoing interpretation somehow conflicts with the existing eminent domain statute. Even with the qualification, the grant in the 1911 statute still gave a right which it could not obtain through the power of eminent domain. Hence, the foregoing interpretation does not render the 1911 statute meaningless in any respect.

{¶ 29} Since the unambiguous language of the 1911 statute gave appellant only the specific water rights which the state previously had, the trial court then had to determine what the extent of the state’s rights in the Cuyahoga River was as of 1911. In attempting to answer this question, the trial court reviewed relevant Supreme Court precedent concerning the ownership of a river bed and the water flowing through it. At the end of this review, the trial court held that the ownership of riparian water rights was initially vested in the landowners whose real property abutted the river. Our review of those same cases supports the conclusion that the trial court’s analysis was correct.

{¶ 30} The Ohio Supreme Court first addressed the issue of the “ownership” of a river in Gavit v. Chambers (1828), 3 Ohio 495, 1828 WL 29. The specific question before the Gavit court concerned whether the federal government had retained any property interest in Ohio’s navigable rivers after the passage of the Northwest Ordinance of 1787. After fully considering the practical difficulties which might ensue if the federal government still owned the rivers, the court adopted the common-law rule as to the ownership of rivers. Under that rule, ownership of the river bed lies with the person who owns the adjacent land. The Gavit court also concluded that the federal government retained only an easement of navigation on the rivers.

{¶ 31} In June v. Purcell (1881), 36 Ohio St. 396, 1881 WL 11, the Supreme Court stated that the Gavit holding had become a settled rule of property in Ohio. The June court then paraphrased the rule as follows: “[I]n this state the owners of land situated on the banks of navigable streams running through the state, are also owners of the beds of the rivers to the middle of the stream * * *. * * * The rule is in accordance with the doctrine of the common law, which regards all non-tidal streams, that are navigable in fact, as mere highways; and the same rule prevails in most of the states.” Id. at 405-406.

{¶ 32} Although Gavit and June concerned only the ownership of the land under a river, the Supreme Court extended the application of the Gavit rule to the water itself. In Walker v. Bd. of Pub. Works (1847), 16 Ohio 540, 1847 WL 74, the Supreme Court stated that “[t]he proprietor of the lands upon its banks may use the waters, of the river in any way not inconsistent with the public easement, or of private rights, and neither the state nor any individual has the right to divert the water to his injury.” Id. at 544. Furthermore, in Mansfield v. Balliett (1902), 65 Ohio St. 451, 63 N.E. 86, the Supreme Court recognized that a landowner’s right to the flowing water in an abutting river, i.e., riparian water rights, is a property interest which is entitled to the identical constitutional protection accorded a property interest in land. The Balliett court also indicated that riparian rights arise solely as a result of the location of the land owned by the proprietor.

{¶ 33} Over the past century, the relative importance of riparian water rights has decreased considerably; accordingly, the Ohio Supreme Court has not had any reason to readdress the issue of the origin of such rights. Consequently, there is no reason to doubt that the foregoing four cases are still binding precedent on this issue. Under these cases, the state of Ohio did not obtain any property right in the waters of the Cuyahoga River when our state was formed in 1803; instead, the riparian rights were invested in the private individual who originally acquired title to the abutting land. In turn, this means that the state of Ohio can be the holder of the riparian rights only when it has properly acquired the rights from the landowners.

{¶ 34} Before this court, appellant has not challenged the propriety of the trial court’s analysis as to the ownership of riparian rights. Rather, appellant has tried to focus our attention on what the General Assembly actually intended to grant to appellant in the 1911 statute. However, even if the Ohio legislature did intend to give appellant an absolute right to the water of the Cuyahoga River, it did not have the authority to grant what it did not own. This court would also emphasize that, in interpreting the 1911 statute, we cannot enforce the alleged intent of the legislature when the plain language of the statute readily indicates that appellant was to receive only that interest in the water which the state had acquired in operating the Ohio Canal.

{¶ 35} In considering property disputes in which one party bases its interest in land upon the assertion that he or she acquired the interest from the state after the land had been appropriated for use of the Ohio Canal, the Ninth Appellate District has concluded that the party making the assertion has the burden of showing that the state actually had such an interest. Halluer v. Emigh (1992), 81 Ohio App.3d 312, 316, 610 N.E.2d 1092. Although the instant case involves an alleged acquisition of riparian water rights through a grant from the state, the same logic applies. That is, since appellant is the party who is asserting that the state had acquired the riparian rights to the Cuyahoga River as it flows through Portage County prior to the enactment of the 1911 statute, appellant had the ultimate burden of proving the existence of the state’s interest.

{¶ 36} Our review of the trial record shows that, in responding to appellees’ motion for summary judgment, appellant did not submit any evidential materials demonstrating that the state of Ohio had acquired the riparian rights in question prior to the grant in 1911. Because appellant would have the ultimate burden of proof on this issue at trial, and since appellees had raised the issue of the extent of appellant’s riparian interest in their summary judgment motion, appellant’s failure to submit any relevant materials meant that no factual dispute was ever raised as to this issue. In fact, the limited relevant materials before the trial court appeared to indicate that, prior to 1911, the state had acquired interests only in regard to the Tuscarawas River.

{¶ 37} Summary judgment may be granted where there are no genuine issues as to any material fact, the moving party is entitled to judgment as a matter of law, and it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. Mootispaw v. Eckstein (1996), 76 Ohio St.3d 383, 385, 667 N.E.2d 1197.

{¶ 38} The Supreme Court stated in Dresher v. Burt (1996), 75 Ohio St.3d 280, 296, 662 N.E.2d 264, that “* * * the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a gemtine issue of fact on a material element of the nonmoving party’s claim. The ‘portions of the record’ to which we refer are those evidentiary materials listed in Civ.R. 56(C), such as the pleadings, depositions, answers to interrogatories, etc., that have been filed in the case. * * *” (Emphasis sic.)

{¶ 39} Appellate courts review a trial court’s granting of summary judgment de novo. Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153. The Brown court stated that “* * * we review the judgment independently and without deference to the trial court’s determination.” Id. An appellate court must evaluate the record “in a light most favorable to the nonmoving party.” Link v. Leadworks Corp. (1992), 79 Ohio App.3d 735, 741, 607 N.E.2d 1140. Furthermore, a motion for summary judgment must be overruled if reasonable minds could find for the party opposing the motion. Id.

{¶ 40} Pursuant to the foregoing analysis, this court holds that appellees were able to satisfy each prong of the summary judgment standard regarding the issue of the riparian water rights granted to appellant under the 1911 statute. To this extent, appellees were entitled to prevail on their claim for a declaratory judgment.

{¶ 41} In summation, we conclude that the trial court did not err in holding that the 1911 statute and the governor’s deed did not grant appellant any riparian water rights in the portion of the Cuyahoga River that flows through Portage County. Therefore, since the trial court properly overruled appellant’s summary judgment motion on this issue, the first assignment of error is not well taken.

ASSIGNMENT OF ERROR NUMBER 2

{¶ 42} “The court erred in relying selectively on words in the governor’s form of grant to determine in a summary judgment the right provided to Akron by the 1911 statute.”

{¶ 43} Under this assignment, appellant has raised two new issues concerning the trial court’s conclusion as to the extent of the rights granted under the 1911 statute. First, appellant contends that the trial court placed too much emphasis on the wording of the governor’s deed as compared with the wording of the statute itself. Second, appellant submits that the trial court failed to give proper weight to a report of a local historian regarding the era in which the 1911 statute was enacted.

{¶ 44} As to appellant’s first argument, in relation to the qualification of the grant to appellant, this court would note that the relevant language in the statute and in the deed were virtually identical. That is, both documents stated that the grant covered only the water rights that had been wholly or partly owned by the state and had been acquired for purposes of the Ohio Canal. Thus, even though this court would agree that the trial court should have given more emphasis to the wording of the statute, the outcome of the trial court’s analysis would have been the same regardless of which document was primarily considered.

{¶ 45} Regarding the second argument, our review of the trial record indicates that, as part of its summary judgment materials, appellant submitted the expert report of Dr. K. Austin Kerr (“Dr. Kerr”), a local historian. In this report, Dr. Kerr provided a summary of the circumstances under which the General Assembly had passed the 1911 statute. Although the facts delineated in the report were never disputed by appellees, we again note that, since the wording of the 1911 statute was plain and unambiguous, it would have been improper for the trial court to look beyond the language of the statute. To this extent, Dr. Kerr’s report was not relevant to the issue of the proper interpretation of the 1911 statute.

{¶ 46} Because neither of the foregoing arguments establish a basis for holding that the trial court’s summary judgment analysis was flawed, appellant’s second assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 3

{¶ 47} “The court erred in summarily declaring that the 1911 statute did not provide any right to Akron in the Cuyahoga River ‘upstream from Akron.’ ”

{¶ 48} As was noted under the first assignment, the 1911 statute gave appellant the right to divert and use the waters from the Cuyahoga River which were “wholly or partly owned or controlled by the state * * Under its third assignment, appellant argues that the trial court’s interpretation of the statute essentially had the effect of deleting the word “controlled” from the foregoing phrase. Appellant submits that, as the governing entity, the state of Ohio exercises at least “partial control” over all rivers within its boundaries. Based upon this, appellant further suggests that this “partial control” was sufficient under the statute to convey to it the absolute right to use the waters in question.

{¶ 49} As part of our analysis under the first assignment, this court noted that, in regard to the ownership of riparian rights, the Ohio Supreme Court has followed the common-law rule, under which such rights were initially vested in the owners of the land abutting the river. Gavit, supra; June, supra. The Supreme Court has also held that riparian rights encompass the ability to divert and use the river water. Balliett, supra. Finally, pursuant to the foregoing line of cases, the government has retained only an easement of navigation on the rivers, and can obtain only a landowner’s riparian rights through an appropriation proceeding or an agreed purchase of such rights.

{¶ 50} In support of its present argument, appellant refers to the Supreme Court’s decision in Cooper v. Williams (1831), 4 Ohio 253, 1831 WL 1. However, our review of that decision indicates that, contrary to appellant’s assertion, the Supreme Court did not recognize a new right or interest under which the state can somehow control the use of river water without acquiring the riparian rights of the landowner. Instead, Cooper stands for the basic proposition that, although the state can “take” riparian rights for public use, it must compensate the prior owners of those rights. To this extent, Cooper is consistent with Gavit, June, and Balliett, and does not stand for the proposition that the state can acquire the ability to use river water by merely “controlling” it.

{¶ 51} In light of the fact that the general purpose of the 1911 statute was for the state to convey to appellant all water rights it had obtained as a result of operating the Ohio Canal in the general Akron area, it is apparent that the term “controlled” was included in this statute to refer to any water that the state was incidentally taking into the canal without realizing that it had not acquired the riparian rights. The evidential materials before the trial court showed that, as of 1911, the state was not diverting into the canal any water from the Cuyahoga River as it flowed through Portage County. As a result, this court concludes that the term “controlled” simply was inapplicable to the water at issue in this case.

{¶ 52} Since appellant has failed to establish any prejudicial flaw in the analysis of the trial court, its third assignment of error is not well taken.

ASSIGNMENT OF ERROR NUMBER 4

{¶ 53} “The court erred in premising its summary judgment declaration of rights solely on an interpretation of ownership interests in land.”

{¶ 54} Under this assignment, appellant again asserts that the trial court’s analysis of the 1911 statute was flawed because it did not properly distinguish between an interest in land and riparian rights. Specifically, appellant argues that the trial court improperly concluded that riparian rights can never be conveyed separately from the land upon which they are based. In support of this argument, appellant notes that, at the end of its summary judgment decision, the trial court made the following statement:

{¶ 55} “* * * The State of Ohio did not own all of the land adjoining the Cuyahoga River in Portage, Geauga, and Summit Counties. Therefore, the Cuyahoga River was and still is owned by the riparian owners in each parcel of land the river flows through in Portage, Geauga and Summit Counties, subject to an easement of navigation * * *."

{¶ 56} The first sentence of the foregoing quote implies that, in order to obtain the riparian rights associated with a specific tract of land, the state must purchase the land itself. This implication is inconsistent with the case law of this state. As will be fully discussed under the eighth assignment of error, the Supreme Court of Ohio has held that riparian rights constitute a distinct property interest that can be appropriated or conveyed separately from the land. Thus, the trial court should have stated in the foregoing quote that the riparian rights to the “middle” Cuyahoga River are still owned by the abutting landowners because the state had never appropriated the riparian rights or the underlying land.

{¶ 57} However, the foregoing flaw in the trial court’s analysis was not prejudicial to appellant. As we noted in our discussion under the first assignment, appellant failed to present any evidential materials establishing that the state of Ohio had appropriated, or otherwise acquired, the riparian rights to the “middle” Cuyahoga River. Accordingly, even though the trial court did not follow the proper analysis, it did ultimately reach the correct decision on this issue. Furthermore, since an appellate court’s review of a summary judgment exercise is de novo, we can substitute the proper analysis for the trial court’s analysis on this specific point and then affirm on that basis. See Schriner v. Valv-Trol Co., 6th Dist. No. WM-02-008, 2003-Ohio-2530, 2003 WL 21126818; Home Ins. Co. of Illinois v. OM Group, Inc., 1st Dist. No. C-020643, 2003-Ohio-3666, 2003 WL 21569154.

{¶ 58} Because appellant has failed to establish that the flaw in the trial court’s analysis affected the propriety of its ultimate decision, its fourth assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 5

{¶ 59} “The court erred in summarily declaring that Akron’s right to divert and use the Cuyahoga River is limited as to volume.”

{¶ 60} This assignment of error again sets forth a challenge to the trial court’s interpretation of the 1911 statute as to the amount of water appellant is allowed to take from the Cuyahoga River. Appellant notes that, although the 1911 statute placed a specific limit on the volume of water it could take from the Tuscarawas River, the statute did not place such a restriction upon its use of the Cuyahoga River. Based on this, appellant argues the trial court should have held that the General Assembly intended to grant it the right to use any amount, if not all, of the water in the Cuyahoga River.

{¶ 61} The language cited by appellant in support of this argument appears in the second section of the statute. That section specifically provided that appellant’s use or diversion of the Tuscarawas River could not diminish the amount of water flow in that river during certain months of each year. The second section further stated that appellant could never take more than 15 million gallons per day from that river.

{¶ 62} In light of the foregoing provisions, this court would agree that the General Assembly intended to give appellant greater access to the Tuscarawas River as compared with the Cuyahoga River. For whatever reason, the legislature did not perceive a need to protect the flow of the Cuyahoga River to the same extent -as the Tuscarawas River. Nevertheless, even though the state of Ohio did not designate how much water appellant could take from the Cuyahoga River, it still could grant to appellant only whatever right it had in such water. Again, we would note that appellant failed to demonstrate that the state had acquired the riparian rights to the “middle” Cuyahoga River prior to the passage of the 1911 statute. Thus, as the state of Ohio never had the right to use all waters in the Cuyahoga River, it could not grant that right to appellant.

{¶ 63} Pursuant to the foregoing analysis, appellant’s fifth assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 6

{¶ 64} “The court erred in summarily declaring that the rights granted to Akron under the 1911 statute were limited to use of water inside Akron’s borders.”

{¶ 65} Under its sixth assignment, appellant contests another aspect of the trial court’s summary judgment decision in regard to the 1911 statute. Specifically, appellant asserts that the trial court erred in concluding that, under the pertinent statutory language, the city was prohibited from selling its water to any person who does not live within its territorial limits. Appellant contends that the trial court again interpreted the pertinent language so narrowly that the city cannot use its water for legitimate municipal purposes.

{¶ 66} As was noted above, the 1911 statute expressly stated that the water from the Cuyahoga River had to be used “for the purpose of supplying water to said city of Akron and the inhabitants * * *.” In now asserting that this language did not place any restriction upon its use of the water, appellant argues that, under the trial court’s interpretation, there is no distinction between the “City of Akron” and the “inhabitants” of the municipality, i.e., according to appellant, the trial court held that the city could only use the water in the same manner that it would be used by any other city inhabitant. Based upon this, appellant submits that the trial court’s interpretation would forbid it from providing water service to any local business or using, the water for fire protection and street cleaning.

{¶ 67} Upon reviewing the pertinent language in the context of the entire statute, this court concludes that the trial court properly interpreted the 1911 statute as to the issue of appellant’s authority to sell the water outside its jurisdiction. First, appellant has mischaracterized the nature of the trial court’s holding on this point. A review of the summary judgment decision readily shows that the trial court held only that the 1911 statute did not permit appellant to sell the water from the Cuyahoga River to “people” who were not inhabitants of the city. The court never held that the statute placed any restriction upon appellant’s ability to use the water for normal municipal functions; instead, the clear import of the summary judgment decision was that the statute required that the use of the water occur only within the city’s territorial limits. To this extent, this court rejects appellant’s contention that the trial court’s interpretation essentially erased any distinction between the “City of Akron” and its inhabitants.

{¶ 68} Second, a review of the entire 1911 statute indicates that it did not contain any wording that would support the conclusion that the Ohio General Assembly intended for appellant to have the authority to use the water for any purpose it wanted. Rather, the statute refers only to supplying water for the city and its inhabitants. In the absence of any other qualifying language, the foregoing reference could be interpreted to mean only that the 1911 statute had not given appellant the ability to sell or supply water to any individual who resided outside the city’s jurisdiction.

{¶ 69} As an aside, we further note that the trial court’s holding on this aspect of the 1911 statute was subsequently rendered moot as a result of other legal conclusions the court made. As part of its final judgment in the case, the trial court found that appellant had properly appropriated certain property in Portage County that was directly adjacent to the Cuyahoga River. In light of this finding, the trial court then concluded that appellant was a “riparian owner” who could take water from the river for its own use and sell it to other persons. In turn, the trial court then upheld as valid the three agreements in which appellant had contracted to sell water to the three joint economic development districts.

{¶ 70} As part of its legal analysis in the final judgment, the trial court did not indicate that its decision as to the validity of the three agreements was specifically based upon its conclusion concerning appellant’s right as a riparian owner to sell water taken from the Cuyahoga River. Similarly, the trial court did not expressly state whether, under its subsequent analysis, appellant’s right as a riparian owner would be controlling over the restrictive language in the 1911 statute. Notwithstanding the lack of a complete explanation as to the grounds for its decision, it is apparent that the trial court ultimately held that appellant could act as a supplier of water to other townships or municipalities. Therefore, the trial court’s summary judgment decision on this particular matter was not prejudicial to appellant.

{¶ 71} Pursuant to the foregoing discussion, this court upholds the trial court’s interpretation of the 1911 statute regarding appellant’s authority to sell water from the Cuyahoga River to persons who are not city residents. As a result, the sixth assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 7

{¶ 72} “The court erred in granting Ravenna’s motion for summary judgment regarding the 1911 statute.”

{¶ 73} After the trial court had rendered summary judgment in favor of appellees as to appellant’s rights under the 1911 statute, the city of Ravenna moved for summary judgment regarding the second count of the third-party complaint, under which appellant sought a declaration that it was entitled under the statute to use all water in Lake Hodgson, Breakneck Creek, Congress Lake Outlet, and the P & O South Feeder Canal. After appellant responded to this summary judgment motion, the trial court rendered a separate judgment in which it expressly concluded that the 1911 statute had not granted appellant any specific right to the water in these four bodies. Under the instant assignment of error, appellant again contends that the trial court’s interpretation of the pertinent statutory language was incorrect. Specifically, appellant argues that it is entitled to divert this particular water because the evidential materials demonstrated that the four bodies in question were all tributaries of the Cuyahoga River.

{¶ 74} As was discussed under the first assignment, this court concludes that the 1911 statute gave appellant only any water right which the state of Ohio had properly obtained prior to the enactment of the statute. Therefore, in order to establish its right to the waters in Lake Hodgson, Breakneck Creek, Congress Lake Outlet, and the P & O South Feeder Canal, appellant had to submit to the trial court evidence showing the extent of the state’s rights to the water. Again, our review of the trial record indicates that appellant did not submit any evidential materials with its responses to Ravenna’s motion. Thus, since the trial court did not err in granting summary judgment in favor of the city of Ravenna regarding appellant’s rights under the 1911 statute, the seventh assignment of error is not well taken.

ASSIGNMENT OF ERROR NUMBER 8

{¶ 75} “The court erred in holding that riparian rights cannot be severed from land.”

{¶ 76} As was noted in the statement of facts, following the passage of the 1911 statute, appellant took steps to acquire the riparian rights of certain landowners whose property abutted the “middle” Cuyahoga River downstream from the dam at Lake Rockwell. In light of these acquisitions, appellant essentially maintained before the trial court that it had purchased the rights to use all water in the river, regardless of that court’s interpretation of the 1911 statute. As to this point, the trial court basically concluded that the acquisitions in question had been valid only in relation to the original owners, i.e., the court held that any subsequent purchasers of the properties had not been bound by the transactions regarding the riparian rights. Before this court, appellant states under its eighth assignment of error that these acquisitions were valid as to any subsequent buyer because appellant was invoking its eminent domain power when it made the purchases.

{¶ 77} Under Ohio law, when a natural watercourse passes through a person’s land, that individual automatically obtains certain interests in the flowing water, i.e., riparian water rights. Ritchhart v. Gleason (1996), 109 Ohio App.3d 652, 656, 672 N.E.2d 1064, fn. 3. As part of these rights, a landowner is entitled to have the water continue to flow across the land in the same quantity, quality, and manner in which it would naturally flow. Balliett, 65 Ohio St. at 464, 63 N.E. 86. Furthermore, such rights give the landowner the ability to use the water for any useful purpose so long as he does not interfere with the riparian rights of any downstream owner. Ritchhart.

{¶ 78} In describing the nature of riparian rights, the Supreme Court of Ohio has indicated that the ability to use the water in the river or stream does not constitute an easement or appurtenance. Balliett, 65 Ohio St. at 466, 63 N.E. 86. Instead, a landowner’s interest in the water is considered a property right that is subject to protection under the Ohio Constitution to the same extent as an interest in land. Ohio Stock Food Co. v. Gintling (1926), 22 Ohio App. 82, 85, 153 N.E. 341.

{¶ 79} As part of its analysis, the trial court held that the owner of property abutting a river could sell his riparian water rights separate from the land but that this sale was not binding upon any subsequent purchaser of the land, i.e., the trial court concluded that riparian rights cannot be severed from the underlying property. In support of this holding, the court cited Akron Canal & Hydraulic Co. v. Fontaine (1943), 72 Ohio App. 93, 27 O.O. 13, 50 N.E.2d 897. In that case, a company purchased from the landowner the right to use water from a lake which the landowner had created by damming a stream. After the landowner had sold the underlying land to a second company, a dispute arose concerning whether the second company and other adjacent landowners could use the water in the lake for other purposes. In holding that the first company could not restrict the other proposed uses of the water, the Fontaine court stated that any right to use the water was “incident” to the land and passed to the new owner as part of the transfer of the interest in the land.

{¶ 80} In support of its basic holding, the Fontaine court quoted 67 Corpus Juris, Waters, Section 365:

{¶ 81} “ ‘The building of a dam on a nonnavigable stream does not change the status of the stream; hence a proprietor doing so does not acquire ownership of the waters stored behind his dam, and his rights thereto must be governed by the rules of law applicable to such rights as he had in the stream before he erected the dam. The rights he acquires in the water dammed back are usufructuary, and are not severable from the land.’ ” (Emphasis added.) Id., 72 Ohio App. at 99-100, 27 O.O. 13, 50 N.E.2d 897.

{¶ 82} Although this court would agree that Fontaine stands for the legal proposition for which it was cited by the trial court, we conclude that the Fontaine holding cannot be followed because it is logically inconsistent with the well-established principle that riparian water rights can be taken for public use. Beginning with the decision in Balliett, the Supreme Court of Ohio has consistently recognized that riparian rights can be subject to the process of eminent domain, just like a property interest in real estate. See, also, State ex rel. Andersons v. Masheter (1964), 1 Ohio St.2d 11, 30 O.O.2d 6, 203 N.E.2d 325.

{¶ 83} In Balliett, the issue before the Supreme Court was whether a landowner was entitled to compensation for damage caused to his land as a result of the acts of a municipality in dumping sewage into a creek upstream from the land. In the first portion of its discussion, the Supreme Court expressly recognized that riparian water rights are a property interest which is entitled to constitutional protection. In regard to this first point, the Supreme Court stated that riparian rights “may be the subject of bargain and sale, either with or separate from the land * * *." Balliett, 65 Ohio St. at 470, 63 N.E. 86. As part of the second portion of its discussion, the Supreme Court concluded that the damage caused by the municipality constituted a taking of the landowner’s riparian water rights. Finally, the Balliett court held that the taking of riparian rights had to be treated in the same manner as the taking of an interest in land, in that the landowner had to be compensated by the municipality for the loss.

{¶ 84} In relation to the final point of its opinion, the Balliett court indicated that the state and its municipalities had the authority to employ their power of eminent domain to take riparian rights when the water is to be used for a public necessity or utility. Therefore, it follows that, although Balliett did not involve a situation in which the municipality sought to appropriate the riparian rights prior to an actual taking, the opinion readily supports the basic proposition that a municipality can appropriate a private landowner’s basic rights to use river water flowing through his land.

{¶ 85} In the few opinions subsequent to Balliett, in which the Supreme Court has considered the nature of riparian rights, it has never addressed the question of whether the appropriation of such rights under the eminent domain power can be effective against a subsequent purchaser of the underlying land. Moreover, our research on this issue has failed to uncover any decision from a foreign jurisdiction directly on point. However, upon considering the obvious effect the trial court’s holding would have on any purchase of riparian rights, we conclude that riparian rights must be severable from the underlying land.

{¶ 86} It is beyond dispute that the eminent domain power is intended to enable the state or a municipality to obtain real property so that it can be employed for a legitimate public purpose, such as a public water works. Obviously, in order for a municipality to efficiently run the water works, it must be able to project the costs of maintaining the utility’s operation. If the appropriation of riparian rights was not effective against subsequent purchasers of the underlying land, the municipality would never be able to properly project the future costs of operation because it would never know when it would need more funding in order to be able to use the water. Similarly, if the municipality’s continuing use of the water was subject to periodic appropriation proceedings, its ability to provide continuing service might be compromised.

{¶ 87} Simply stated, one of the essential purposes of the eminent domain power is to give a municipality stability in its appropriation of property for public use. If, as the trial court concluded, riparian water rights can never be severed from the underlying real property, the purpose of stability can never be achieved. To that extent, this court holds that the effect of the appropriation of riparian rights can be no different than the appropriation of real property. Although riparian water rights are inherently different because they are always based upon the underlying land, this difference does not warrant a change in the legal application of the eminent domain power to riparian rights.

{¶ 88} In the instant case, the trial record readily demonstrates that appellant was able to acquire the riparian rights for much of the land located downstream from Lake Rockwell without having to bring appropriation proceedings. However, notwithstanding the differences between the use of the eminent domain power and the outright purchase of riparian rights, the foregoing logic still applies. That is, regardless of the manner in which a governmental entity acquires riparian rights for public use, the stability of the entity’s subsequent use would be jeopardized if the acquisition was not effective against subsequent owners of the underlying land. Thus, in light of the prior analysis, we hold that the relevant Supreme Court precedent and public policy considerations support the conclusion that appellant’s acquisitions of riparian rights from prior landowners, whether by appropriation or voluntary agreement, are still binding upon appellees.

{¶ 89} Nevertheless, while we disagree with the trial court’s holding as to whether riparian rights are severable, we also hold that this error in the trial court’s logic did not affect the standing of some of the appellees to maintain the “unreasonable use” claim. As part of its final judgment, the trial court specifically found that four of the eight appellees, including the city of Cuyahoga Falls, the city of Munroe Falls, the city of Kent, and the village of Silver Lake, owned real property abutting the Cuyahoga River that still had their riparian rights in tact. Stated differently, the court found that appellant had not appropriated all riparian rights for the abutting land owned by the four appellees.

{¶ 90} Our review of the trial transcript shows that the trial court’s findings in its final judgment on this matter were supported by the evidence presented. For example, as to the city of Cuyahoga Falls, appellees submitted testimony establishing that this party still owned the riparian rights to two parks which abutted the river. The testimony also showed that one of the parks was approximately 500 acres in size and had approximately 1,500 feet of shoreline.

{¶ 91} As to the city of Kent, its claim of riparian rights was predicated solely upon its acquisition of certain property from a private citizen, W.S. Kent. As will be discussed under the 11th assignment, this court concludes that the city of Kent did not obtain any riparian rights under this acquisition because the riparian rights had already been appropriated by appellant. Therefore, since the city of Kent did not have any riparian rights to the Cuyahoga River, it did not have standing to participate in the “unreasonable use” claim. However, this would not affect the ability of the three remaining municipal appellees to go forward on that claim.

{¶ 92} In regard to these findings, appellant asserts that its failure to appropriate these specific riparian rights should not deprive it of the ability to divert all water from the Cuyahoga River because, in comparison to the amount of real property for which it has acquired the riparian rights, the amount to which appellees have retained the rights is insignificant. As to this point, we would note that, even as to the city of Cuyahoga Falls alone, the record demonstrates that its ownership of the abutting land enables its citizens to use the river for several recreational purposes. Under such facts, even if the amount of abutting land appellees own is relatively small, the value of their riparian rights could be substantially affected if the volume of the river water was inappropriately decreased. As a result, this court ultimately holds that the trial court did not err in concluding that the three municipal appellees had standing to maintain their “unreasonable use” claim in this case.

{¶ 93} As appellant has not shown that it was prejudiced due to the trial court’s holding on the “severability” issue, its eighth assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 9

{¶ 94} “The court erred in excluding relevant evidence based on its erroneous interpretation of Akron’s appropriation of all water originating above the Rockwell Dam.”

{¶ 95} Under this assignment, appellant maintains that, during the course of the trial, the trial court was unable to perceive the differences between appellant’s argument concerning its rights under the 1911 statute and its distinct contention as to its inherent ability to appropriate riparian rights. Appellant further submits that, as a result of this confusion, the trial court did not allow it to present certain testimony pertaining to the meaning of a resolution that the city enacted in light of the 1911 statute.

{¶ 96} The resolution in question was passed by appellant’s city council in May 1912. The body of the resolution essentially provided that it was the intention of the city to appropriate all waters of the Cuyahoga River located upstream from the proposed site of Lake Rockwell. The resolution further stated that the city’s actions in appropriating the water would be based upon the authority granted to it under the 1911 statute and its general appropriation power.

{¶ 97} As part of its case-in-chief, appellant presented the testimony of its public utilities manager, David Crandell (“Crandell”). During the course of Crandell’s direct testimony, appellant’s counsel attempted to ask him questions regarding what property the city had intended to appropriate under the 1912 resolution. After appellees objected to this line of questioning, the trial court sustained the objection on the basis that any issue concerning the authority of appellant to divert the river water under the 1911 statute had already been resolved in its prior summary judgment decision. During the ensuing colloquy between the trial court and the attorneys for both sides, the trial court made a statement that implied that it believed that appellant had appropriated only interests in land following the passage of the 1911 statute.

{¶ 98} Upon reviewing the relevant portion of the trial transcript, we agree that, at that point in the proceedings, the trial court did not acknowledge that appellant was asserting two different arguments as to its ability to divert and use all water in the river: (1) that the ability was granted in the 1911 statute; and (2) that the ability was based upon its general power to appropriate property. In addition, the trial court did not acknowledge that the 1912 resolution related only to the appropriation of the water upstream from Lake Rockwell, as compared with the appropriation of the underlying land for Lake Rockwell and the downstream riparian rights.

{¶ 99} Nevertheless, our review of the trial transcript also indicates that the trial court’s lack of acknowledgement of appellant’s dual arguments did not result in the wrongful exclusion of evidence. First, the transcript shows that the trial court did not allow Crandell to read into the record the description set forth in the resolution as to the specific interest appellant intended to appropriate. However, just prior to sustaining the objection as to the reading of the description, the trial court did allow Crandell to paraphrase the provisions of the resolution. Hence, appellant was able to present Crandell’s testimony as to the meaning of the resolution.

{¶ 100} Second, the record demonstrates that a copy of the 1912 resolution was admitted into evidence as a joint exhibit of the parties. A review of the resolution readily indicates that the wording of the document was not ambiguous or open to interpretation, i.e., the resolution clearly stated that appellant had the intention of appropriating all waters in the river upstream from the dam. Accordingly, even if Crandell’s specific description testimony was admissible, it would have been cumulative.

{¶ 101} Because the trial record establishes that appellant was not prejudiced by the trial court’s evidential rulings as to Crandell’s testimony, appellant’s ninth assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 10

{¶ 102} “The court erred in failing to apply eminent domain law to bar plaintiffs’ claims for their failures to seek timely remedies.”

{¶ 103} In this assignment, appellant maintains that the trial court erred in allowing appellees to go forward on their claims pertaining to their use of the river water contained in Lake Rockwell. Appellant argues that, since its acquisition of the downstream riparian rights was based upon its use of its eminent domain power, those landowners whose riparian rights were not appropriated in the early 1900s were required to file mandamus cases to compel appellant to bring appropriation actions regarding the riparian rights. In light of this, appellant further argues that, because those mandamus actions had to be brought within 21 years after it started to use the river water, any claim as to the alleged taking of the riparian rights of appellees i