## Facts

- John Whitacre and Whitacre-Greer Fireproofing Company (collectively, Whitacre) owned roughly 2,000 acres of land in Ohio.
- In 1995, Whitacre executed a written agreement granting a fox-hunting club known as Gully Ridge Hounds a “non-exclusive right” to enter the property and engage in fox hunting (a right treated by the parties as a profit à prendre).
- After the 1995 grant, Gully Ridge Hounds used the land for fox hunting under the agreement.
- Over time, the original club fractured, and a successor club continued under the Gully Ridge Hounds name and claimed that the fox-hunting right remained held in the club’s name.
- Whitacre later formed or joined a different fox-hunting club and granted that new club the right to fox hunt on the same property.
- The successor Gully Ridge Hounds objected to the presence of Whitacre and the new club, asserting that the 1995 grant was intended to give Gully Ridge Hounds the exclusive right to fox hunt on the land.
- Gully Ridge Hounds sued Whitacre, seeking declaratory and injunctive relief to prohibit Whitacre and the new club from fox hunting on the property.
- Gully Ridge Hounds argued that the “non-exclusive” wording was ambiguous because, in its view, the parties used that term only to account for other previously granted interests (such as mineral-related easements), not to permit competing fox-hunting rights.
- The trial court found the grant ambiguous, received extrinsic evidence of intent, construed the grant as exclusive as to fox hunting, and issued an injunction barring Whitacre and the new club from fox hunting on the property.
- Whitacre appealed.

## Issues

1. Whether a written grant giving a club a “non-exclusive right” to fox hunt is ambiguous such that a court may consider extrinsic evidence to interpret it as an exclusive fox-hunting right.
2. Whether an injunction prohibiting the landowner (and a later-authorized club) from fox hunting on the property is proper when the written grant states the hunting right is “non-exclusive.”

## Decision

- The court of appeals reversed the trial court’s judgment.
- The court held that the written grant’s “non-exclusive” language was clear and not reasonably susceptible to an interpretation that made the fox-hunting right exclusive.
- Because the instrument was unambiguous, the trial court erred by relying on extrinsic evidence to change the legal effect of the “non-exclusive” term.
- The injunction barring Whitacre and the later-authorized club from fox hunting was vacated because it rested on an incorrect interpretation of the grant.

## Legal Principles

- Written grants creating nonpossessory rights in land are interpreted according to their plain language when that language is clear.
- A term is ambiguous only if it is reasonably susceptible to more than one meaning; a party’s testimony about what it intended cannot create ambiguity where the text is plain.
- When an instrument grants a “non-exclusive” profit à prendre or easement-like right, the servient owner generally retains the ability to use the land in the same manner and to authorize others to do so, so long as the additional uses do not unreasonably interfere with the grantee’s rights.
- Courts may not use extrinsic evidence to rewrite an unambiguous written grant by converting a non-exclusive right into an exclusive one.
- Permanent injunctive relief requires proof of a violation of the plaintiff’s legally cognizable rights; an injunction cannot stand when it is based on a construction that contradicts the unambiguous language of the instrument.

## Conclusion

In *Hunter v. Whitacre-Greer Fireproofing Company*, the Ohio court of appeals held that a 1995 written grant giving a fox-hunting club a “non-exclusive right” to hunt on the land was unambiguous and could not be interpreted—based on extrinsic evidence—as granting exclusive hunting rights, so it reversed the trial court’s injunction that barred the landowner and a later-authorized club from fox hunting on the property.


Hunter v. Whitacre-Greer Fireproofing Company, 801 N.E.2d 469 (2003)