Huber v. Cardiff

928 N.E.2d 742, 186 Ohio App. 3d 384
CourtOhio Court of Appeals
DecidedJuly 10, 2009
DocketNo. 08-CA-24
StatusPublished
Cited by1 cases

This text of 928 N.E.2d 742 (Huber v. Cardiff) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Huber v. Cardiff, 928 N.E.2d 742, 186 Ohio App. 3d 384 (Ohio Ct. App. 2009).

Opinion

Brogan, Judge.

{¶ 1} In August 2006, Carl Huber filed an application with the city of Piqua, Ohio, for a special-use permit to operate an automobile repair shop on his property at 715 South Roosevelt Avenue. The property at the time was zoned for residential use, but Huber was seeking to expand his nonconforming use of the property. Since Huber intended to build a new building on the property, the city of Piqua required a site plan, and thus a site survey was performed. The survey revealed that a small strip of property inside the fence separating the Roosevelt property from the property at 720 Adams Street actually belonged to the owner of the Adams Street property, namely, appellant Penny Cardiff.

{¶ 2} Carl and Shirley Huber filed a quiet title action against Cardiff in the Miami County Common Pleas Court for purposes of establishing that the Hubers owned the disputed strip of land by virtue of adverse possession. When the trial court ruled in the Hubers’ favor, Cardiff appealed that judgment to us.

[386]*386{¶ 3} Evidence at the bench trial established that Louie Havenas purchased the Roosevelt Avenue property in 1978, and a wooden fence ran along the rear of the property when he purchased it. The fence line encompassed a strip 45 feet long by 20 feet wide that was carried on the County Engineer’s Map as belonging to the abutting property to the rear at 720 Adams Street, now owned by Penny Cardiff. Havenas testified that he believed that the wooden fence at the rear of his property marked his property line. Havenas testified that he sold the Roosevelt Avenue property to his cousins, Bud and Dan Felver, in April 1979. The Felvers ran a construction company on the property. In 1993, the Felvers transferred it to Claude and Willa Adams. Claude ran a car lot on the property for a period of time. The Adamses sold the property to Carl and Shirley Huber, who had been renting it from them since 1998. At all times, the wooden fence separated the Roosevelt and Adams Street properties. Huber testified at trial that he had observed Claude Adams repair the wooden fence when needed and that he maintained the disputed strip of property in the ten years preceding the lawsuit.

{¶ 4} Nelson Watren testified that he owned the 720 Adams Street property from 1979 to 2003 and used the property as a rental. He testified that his father owned the property before him, and the fence in question had been in existence since at least 1960. He testified that he believed that his rear property line ended at the wooden fence. He testified that he thought the property owners of 715 South Roosevelt owned the now disputed property.

{¶ 5} Appellant, Penny Cardiff, testified that she began renting the Adams Street property in 1995 from Nelson Watren. She testified that she was under the impression that the property line for the Adams Street property was the fence line in question. She testified that she did not learn that the fence line did not mark the Adams Street property line until this legal dispute arose. She testified that she never mowed the grass on the Roosevelt side of the fence because cars were parked there. She testified that she had to repair the fence on a few occasions to prevent it from falling over on her cars. Lastly, she testified that Tim Watren had told her that sometimes when the Roosevelt property was vacant, he and his wife would clean up the property of debris.

{¶ 6} In determining that the disputed land belonged to the Hubers by virtue of adverse possession, the trial court noted that the disputed property had been fenced in for more than 21 years, and the predecessors in title had used the disputed property as their own by parking junk cars on it and putting debris on it. The court held that the Hubers did not forfeit their right to claim adverse possession because predecessors in title may have used a building on the property in violation of zoning.

[387]*387{¶ 7} In her first three assignments of error, Cardiff argues that the trial court’s judgment is against the manifest weight of the evidence. Specifically, she argues that the Hubers and their predecessors did not establish they had used the property to a degree sufficient to constitute an actual and continuous use of the property. She argues that the Roosevelt property was empty prior to 1998 and that it merely contained some bushes, debris, and a fence. She argues that parking cars on the property occasionally and maintaining the fence one time is not sufficient use to establish actual possession, which is required to establish an adverse-possession claim. She argues that there was no evidence as to who erected the wooden fence separating the Roosevelt and Adams Street properties and that the Hubers did not establish their adverse-possession claim because the Roosevelt property was vacant during some of the required 21-year period. Cardiff also argues that the trial court should have found that the 21-year period of continuous possession was interrupted by the Watrens’ entry into the Roosevelt property to clean up debris and to maintain the bushes on the property.

{¶ 8} The Hubers argue that we should overrule Cardiff s first three assignments because there is sufficient evidence in the record to support the trial court’s judgment. They note that Nelson Watren, the former owner of the Adams Street property, testified that the wooden fence was in existence at least in the 1960s, and he always thought that his property line ended at the fence line. Secondly, the Hubers argue that it does not matter that it could not be determined who erected the fence or that the property may not have had a tenant residing thereon as long as the owner exercised dominion and control of the property.

{¶ 9} To acquire title by adverse possession, a party must prove, by clear and convincing evidence, exclusive possession, and open, notorious, continuous, and adverse use for a period of 21 years. Grace v. Koch (1998), 81 Ohio St.3d 577, 692 N.E.2d 1009.

{¶ 10} It has been held that “when a party erects a fence and treats the land on one side of the fence as his own, there is generally little question that possession is exclusive and use of the land is open, notorious and adverse to the interests of the record owner.” Glaser v. Bayliff (Jan. 29, 1999), Miami App. No. 98CA34, 1999 WL 34709, *3, citing Rader v. Brock (Oct. 13, 1997), Preble App. No. CA 97-03-007,1997 WL 632843, at 3.

{¶ 11} In Evanich v. Bridge, 119 Ohio St.3d 260, 2008-Ohio-3820, 893 N.E.2d 481, the Ohio Supreme Court held that title may be acquired through adverse possession irrespective of any question of motive or of mistake in adversely possessing the property. The court held that it is the visible and adverse [388]*388possession, with an intent to possess, that constitutes its adverse character and not the remote motives or belief of the possessor.

{¶ 12} The ultimate test for adverse possession is the exercise of dominion over land consistent with actions that a true owner would take. Evidence of use is admissible because it is ordinarily an indication of possession. It is possession that is the ultimate fact to be ascertained. Exclusive dominion over land is the essence of possession, and it can exist in unused land if others have been excluded therefrom. A fence is the usual means relied upon to exclude strangers and establish the dominion and control characteristic of ownership.

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Bluebook (online)
928 N.E.2d 742, 186 Ohio App. 3d 384, Counsel Stack Legal Research, https://law.counselstack.com/opinion/huber-v-cardiff-ohioctapp-2009.