Drucker v. Home City (Vil.)

Ohio Circuit Courts

Drucker v. Home City (Vil.)

21 Ohio C.C. Dec. 466

DecidedNovember 23, 1907

StatusPublished

This text of 21 Ohio C.C. Dec. 466 (Drucker v. Home City (Vil.)) is published on Counsel Stack Legal Research, covering Ohio Circuit Courts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Drucker v. Home City (Vil.), 21 Ohio C.C. Dec. 466 (Ohio Super. Ct. 1907).

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Opinion

SWING, J.

We are of the opinion that the plaintiff is entitled to the relief sought on two grounds:

1. She has title to the premises through deeds from the Cincinnati Building Association. The dedication of the building association could not have taken effect before the creation of the village of Home City in 1879. There was no grantee in existence to take, and of course there could have been no acceptance until after the creation of the village. Long before this, to wit, in 1860, the building association deeded away this property, and therefore under the decision in the case of Lockland v. Smiley, 26 Ohio St. 94, the conveyance operated as a revocation as to the property conveyed.

‘2. She is entitled to recover as owner by reason of adverse possession for more than twenty-one years under a claim of right. Title by adverse possession in Ohio is as good against a corporation as against an individual, the only difference being in the character of the proof required. Mott v. Toledo, 7 Circ. Dec. 216 (17 R. 472), affirmed, without opinion, Toledo v. Mott, 60 Ohio St. 601.

The evidence here was conflicting, as it generally is when witnesses are testifying to facts which existed twenty years before. All the witnesses seemed to be honest and fair and disinterested, but we feel bound to think that the witnesses for the plaintiff had the best opportunity to observe the conditions that existed there, especially the Crosses, and not only this but it would seem very unreasonable that Drueker should have [469]*469maintained a fence around only a portion of her garden at the point where she did. It would seem that a fence was necessary to protect her garden, which she planted yearly on the ground in question. Without a fence she could not hope to raise a crop, and all the witnesses agree that she raised crops yearly on this property, and there was no evidence that any of her crops were ever injured by animals or otherwise.

We feel therefore that the probabilities as to the situation bear out the positive evidence of the plaintiff.

Decree accordingly.

Giffen and Smith, JJ., concur.

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SWING, J.

We are of the opinion that the plaintiff is entitled to the relief sought on two grounds:

1. She has title to the premises through deeds from the Cincinnati Building Association. The dedication of the building association could not have taken effect before the creation of the village of Home City in 1879. There was no grantee in existence to take, and of course there could have been no acceptance until after the creation of the village. Long before this, to wit, in 1860, the building association deeded away this property, and therefore under the decision in the case of Lockland v. Smiley, 26 Ohio St. 94, the conveyance operated as a revocation as to the property conveyed.

‘2. She is entitled to recover as owner by reason of adverse possession for more than twenty-one years under a claim of right. Title by adverse possession in Ohio is as good against a corporation as against an individual, the only difference being in the character of the proof required. Mott v. Toledo, 7 Circ. Dec. 216 (17 R. 472), affirmed, without opinion, Toledo v. Mott, 60 Ohio St. 601.

The evidence here was conflicting, as it generally is when witnesses are testifying to facts which existed twenty years before. All the witnesses seemed to be honest and fair and disinterested, but we feel bound to think that the witnesses for the plaintiff had the best opportunity to observe the conditions that existed there, especially the Crosses, and not only this but it would seem very unreasonable that Drueker should have [469]*469maintained a fence around only a portion of her garden at the point where she did. It would seem that a fence was necessary to protect her garden, which she planted yearly on the ground in question. Without a fence she could not hope to raise a crop, and all the witnesses agree that she raised crops yearly on this property, and there was no evidence that any of her crops were ever injured by animals or otherwise.

We feel therefore that the probabilities as to the situation bear out the positive evidence of the plaintiff.

Decree accordingly.

Giffen and Smith, JJ., concur.

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21 Ohio C.C. Dec. 466, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drucker-v-home-city-vil-ohiocirct-1907.