[Cite as McKenna v. Boyce, 2012-Ohio-5163.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
: JUDGES: KEVIN H. McKENNA AND LINDA S. : W. Scott Gwin, P.J. (MADDEN) McKENNA : William B. Hoffman, J. : Julie A. Edwards, J. Plaintiffs-Appellants : : Case No. CT 2012-0014 -vs- : : : OPINION JARROD D. BOYCE AND MELISSA M. BOYCE, et al.,
Defendants-Appellees
CHARACTER OF PROCEEDING: Civil Appeal from Muskingum County Court of Common Pleas Case No. CC2011-0305
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 30, 2012
APPEARANCES:
For Plaintiffs-Appellants For Defendants-Appellees
PETER N. CULTICE JAN ALLEN BAUGHMAN Cultice Law Firm Allen, Baughman & Martin 58 N. Fifth Street 58 N. 5th Street, Heritage Suites Zanesville, Ohio 43701 Suite 102 Zanesville, Ohio 43701 [Cite as McKenna v. Boyce, 2012-Ohio-5163.]
Edwards, J.
{¶1} Plaintiffs-appellants, Kevin McKenna and Linda (Madden) McKenna,
appeal from the February 1, 2012, Judgment Entry of the Muskingum County Court of
Common Pleas granting the Motion for Summary Judgment filed by defendants-
appellees Jarrod and Melissa Boyce while denying the Motion for Summary Judgment
filed by plaintiff-appellants.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellants are the owners of real property located at 4885 Adamsville
Road in Zanesville, Ohio. Appellants acquired title to such property in 1980. Appellees
are the owners of real property located at 4855 Adamsville Road in Zanesville, Ohio.
Appellees acquired title to the property in August of 2008.
{¶3} The chain of title to appellees’ property is as follows:
{¶4} Warranty deed recorded August 11, 1976 transferring property from Allan
W. Spencer and Mary A. Spencer to Cecil B. Bennett and Emma Bennett.
{¶5} Warranty deed transferring property on September 22, 2000 from the
Bennetts to Larry and Diane Walls.
{¶6} Warranty deed transferring property on June 13, 2003 from Larry Walls to
James Harris and Lisa Harris.
{¶7} Deed on Decree or Order of Sale transferring property on July 5, 2007,
from Muskingum County Sheriff to U.S. National Bank Association as Trustee for Credit
Suisse First Boston.
{¶8} Special Warranty deed recorded on October 30, 2007 transferring title
from U.S. National Bank Association, as Trustee, to Danny L. and Kathryn L Boyce. Muskingum County App. Case No. CT 2012-0014 3
{¶9} Warranty deed recorded on August 29, 2008 transferring property from
Danny L. and Kathryn L. Boyce to appellees.
{¶10} In turn, the chain of title to appellants’ property is as follows:
{¶11} Warranty deed recorded on June 18, 1957 transferring title from Herbert
Reed and Adda Reed to Earl Schenk.
{¶12} Warranty deed recorded on June 15, 1964 transferring title from Earl and
Dorothy Schenk to Robert and Caterine Ferguson.
{¶13} Warranty deed recorded on September 3, 1980 transferring title from
Robert and Caterine Ferguson to appellants.
{¶14} In 2010, appellees, who were planning on erecting a fence around their
property, hired professional surveyor Peter Dinan to conduct a survey of their property
after an issue arose over the property line. Dinan marked appellees’ property lines,
including the northern property line which is the dividing line between appellants’
property and appellees’ property. Dinan determined that the property line between the
two properties was the same line as described in previous deeds dating back to 1957.
The property had been originally surveyed in 1957 and also in 2003. In his affidavit,
Dinan stated, in relevant part, as follows:
{¶15} “5. On September 7, 2010, I went to the Boyce property to perform the
survey.
{¶16} “6. As is my usual custom, I first drove past the property to see what I
could observe from the road From the road, I noticed that one corner (the front northern
side of the Boyce property) was marked by a 1” x 2” x 4’ lath (tomato stake) visible from
the road. I observed a line of pine trees. I also noticed a distinct line indicating how the Muskingum County App. Case No. CT 2012-0014 4
grass had been mowed by the property owners to the north (the McKennas), from a
telephone pole at the front of the property to a line of pine trees. I saw no evidence of a
mow line from the McKenna side that extended past (or south of) the pine trees.
{¶17} “7. I then pulled into the Boyce property and started my survey work. I
went to the lath that I had observed from the road and established the first point. At the
location of that lath was an axle placed by surveyor A.T. Connor in 1957. The axle was
somewhat covered by sod, but was easy to locate due to the 4 foot lath with a pink
ribbon at its top. Additionally, there was no vegetation or other thing obstructing the
visibility of the lath.
{¶18} “8. From the starting point, I continued counter clockwise around the
property. I took the deed distances and went around the whole circumference of the
Boyce property. I located steel pins and located all 4 axles that had been in place since
being set by surveyor A.T. Connor in 1957. The axle at the northwest corner (between
the McKenna and Boyce properties and opposite the first axle I located at the northeast
corner) was well-marked above ground and had a plastic bucket around it.
{¶19} “9. I had no trouble establishing the property lines, and set approximately
four 4 foot long 1” x 2” lath along the property line between the Boyce and McKenna
properties.
{¶20} “10. The property line that I located and established for Jarrod Boyce
between his and the McKenna property is absolutely the same line as described in
previous deeds dating back to the original split of the property in 1957.
{¶21} “11. The survey monuments as personally located by me are the same
survey monuments as described in previous deeds and as were present and Muskingum County App. Case No. CT 2012-0014 5
established by surveyor A.T. Connor in 1957 (whose name and monuments are
described as well in the current deed of record for Jarrod Boyce and Melissa Boyce).
{¶22} “12. A clearly visible line of pine trees stands between the Boyce and
McKenna residences. With respect to the pine trees and the legally described property
line dividing the Boyce and McKenna properties, the following is true:
{¶23} “a. from the axle at the northeast corner (nearest Adamsville Road) to the
first pine tree, the first pine tree stands upon the deed line (the deed lines goes through
the tree);
{¶24} “b. the remainder of the pine trees, to the back of the property, stand upon
the Boyce property (the deed line is north of the trees; the trees are south of the deed
line);
{¶25} “c. at the back of the property, to the axle at the northwest corner, there
are pine trees again upon the deed line.”
{¶26} The trees that Dinan referred to were planted in the mid 1960’s as a
windbreak by Wayne Burr, Jr. and his father, who resided at 4885 Adamsville Road,
which is now appellant’s property. Burr and his wife held a brief land contract. The row
of trees runs the length of the property.
{¶27} In the Spring of 1981, Cecil Bennett allegedly had indicated to appellants
that an east/westerly line of shrubs that was situated approximately ten (10) feet south
of the southern tree line designated the properly line between the two subject
properties. Appellants asserted that they owned, through adverse possession, the .205
acres located between their property and appellees’ property. The strip extended at its Muskingum County App. Case No. CT 2012-0014 6
widest point 18.9 feet beyond the record property line and tree line onto appellees’
property.
{¶28} On May 27, 2011, appellants filed a “Complaint to Quiet Title, Adverse
Possession, Trespass and Damages” against appellees and against Danny and Kathryn
Boyce. The case was a refiled case. The previous case had been voluntarily dismissed
by appellants after the trial court denied the parties’ respective Motions for Summary
Judgment. Appellant specifically, in their complaint, alleged that they had openly
possessed, maintained and treated as their own all of the property that was located
north of the shrub line, which consists of approximately .205 acres, and that appellees
had actively trespassed on and damaged and destroyed appellants’ property.
Appellees filed an answer and counterclaim on June 28, 2011. Appellees, in their
counterclaim, asked that if they were evicted or turned out of possession of their land,
they be awarded compensation for the value of improvements that they had made to the
same prior to the commencement of appellants’ suit and that they be granted a
prescriptive easement for their septic system.
{¶29} On August 30, 2011, appellants file an amended complaint to add the
mortgage holder of appellees property.
{¶30} On January 6, 2012, appellees filed a Motion for Reconsideration, asking
that the trial court reconsider its denial of the Motion for Summary Judgment that they
had filed in the previous case. On the same date, appellees filed a Motion for Summary
Judgment. On January 24, 2012, appellants filed a Motion for Summary Judgment and
a response to appellees’ motion. Pursuant to a Judgment Entry filed on February 1,
2012, the trial court granted appellees’ Motion for Reconsideration and their Motion for Muskingum County App. Case No. CT 2012-0014 7
Summary Judgment while denying the Motion for Summary Judgment filed by
appellants.
{¶31} Appellants now raise the following assignment of error on appeal:
{¶32} “THE MUSKINGUM COUNTY, OHIO, COURT OF COMMON PLEAS
(TRIAL COURT) ERRED AS A MATTER OF LAW IN ITS DECISION GRANTING
SUMMARY JUDGMENT TO DEFENDANTS-APPELLEES AND IN NOT GRANTING
SUMMARY JUDGMENT TO PLAINTIFFS-APPELLANTS IN FINDING THAT
DEFENDANTS-APPELLEES ARE THE LEGAL AND RIGHTFUL OWNERS OF .205
ACRES OF GROUND LOCATED BETWEEN THE HOMES OF PLAINTIFFS-
APPELLANTS AND DEFENDANTS-APPELLEES.”
I
{¶33} Appellants, in their sole assignment of error, argue that the trial court erred
in granting summary judgment in favor of appellees while denying appellants’ Motion for
Summary Judgment on appellants’ adverse possession claim. We disagree.
{¶34} Summary judgment proceedings present the appellate court with the
unique opportunity of reviewing the evidence in the same manner as the trial court.
Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212, (1987). As
such, we must refer to Civ.R. 56(C) which provides, in pertinent part: “Summary
judgment shall be rendered forthwith if the pleading, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence in the pending
case and written stipulations of fact, if any, timely filed in the action, show that there is
no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. * * * A summary judgment shall not be rendered unless it Muskingum County App. Case No. CT 2012-0014 8
appears from such evidence or stipulation and only from the evidence or stipulation, that
reasonable minds can come to but one conclusion and that conclusion is adverse to the
party against whom the motion for summary judgment is made, such party being
entitled to have the evidence or stipulation construed most strongly in the party's favor.”
{¶35} Pursuant to the above rule, a trial court may not enter summary judgment
if it appears a material fact is genuinely disputed. Vahila v. Hall, 77 Ohio St.3d 421, 429,
1997–Ohio–259, 674 N.E.2d 1164, citing Dresher v. Burt, 75 Ohio St.3d 280, 1996-
Ohio-107, 662 N.E.2d 264.
{¶36} “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 twenty-one years.” Grace v. Koch, 81 Ohio St.3d 577, 692
N.E.2d 1009, syllabus (1981).
{¶37} In order for possession to be considered open, “the use of the disputed
property must be without attempted concealment. * * * To be notorious, a use must be
known to some who might reasonably be expected to communicate their knowledge to
the owner * * * [or] so patent that the true owner of the property could not be deceived
as to the property's use.” Kaufman v. Geisken Enterprises, Ltd., 3rd Dist. No. 12-02-04,
2003-Ohio-1027, ¶ 31.
{¶38} In order for possession to be considered “hostile”, the Ohio Supreme
Court has stated that any use of the land inconsistent with the rights of the titleholder is
adverse or hostile. Kimball v. Anderson, 125 Ohio St. 241, 244, 181 N.E. 17 (1932).
{¶39} In order for use to be considered continuous and exclusive, “‘[u]se of the
property does not have to be exclusive of all individuals. Rather, it must be exclusive of Muskingum County App. Case No. CT 2012-0014 9
the true owner entering onto the land and asserting his right to possession. It must also
be exclusive of third persons entering the land under their own claim of title, or claiming
to have permission to be on the premises from the true title holder. If the title holder
enters onto the land without asserting, by word or act, any right of ownership or
possession, his presence on the land does not amount to an actual possession, and the
possession may properly be attributed to the party who is on the land exercising or
claiming exclusive control thereof. It is not necessary that all persons be excluded from
entering upon and using the premises.’” Kaufman, supra, at ¶ 39, quoting Walls v.
Billingsley, 3rd Dist. No. 1-92-11, 1992 WL 198131 (Aug. 18, 1992), citing 4 Tiffany,
Real Property (1975) 736, Section 1141.
{¶40} In order to establish the necessary twenty-one year period, a party may
add to their own term of adverse use any period of adverse use by prior succeeding
owners in privity with one another. Zipf v. Dalgarn, 114 Ohio St. 291, 151 N.E. 174,
syllabus (1926).
{¶41} Clear and convincing evidence is that proof which establishes in the minds
of the trier of fact a firm conviction as to the allegations sought to be proved. Cross v.
Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954). Where a party must prove a
claim by clear and convincing evidence, a reviewing court must examine the record to
determine whether the trier of fact had sufficient evidence before it to satisfy the
requisite degree of proof. State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54
(1990).
{¶42} Failure of proof on any of the elements of adverse possession results in
failure to acquire title by adverse possession. Grace, supra at 579. “A successful Muskingum County App. Case No. CT 2012-0014 10
adverse possession action results in a legal titleholder forfeiting ownership to an
adverse holder without compensation. Such a doctrine should be disfavored, and that is
why the elements of adverse possession are stringent.” Id., at 580, citing 10 Thompson
on Real Property (Thomas Ed. 1994) 108, Section 87.05.
{¶43} It is the visible and adverse possession with intent to possess which
constitutes the adverse character of the occupancy. Grace, 81 Ohio St.3d at 581. In
other words, “‘there must have been an intention on the part of the person in possession
to claim title, so manifested by his declarations or his acts, that a failure of the owner to
prosecute within the time limited, raises a presumption of an extinguishment or a
surrender of his claim.’ (Emphasis sic.)” Grace, 81 Ohio St.3d at 581, quoting Lane v.
Kennedy, 13 Ohio St. 42, 47, 1861 WL 90 (1861). Courts do not require the title owner
of the property to receive actual notice of adverse possession as long as that owner is
charged with knowledge of adverse use when one enters into open and notorious
possession of the land under a claim of right. Vanasdal v. Brinker, 27 Ohio App.3d 298,
299, 500 N.E.2d 876 (9th Dist. 1985). The adverse occupancy of the land must be
sufficient to notify the real owner of the extent of the adverse claim. Humphries v.
Huffman, 33 Ohio St. 395, 404, 1878 WL 6 (1878).
{¶44} Each case of adverse possession rests on its own peculiar facts. Bullion v.
Gahm, 164 Ohio App.3d 344, 349, 2005-Ohio-5966, 842 N.E.2d 540, citing Oeltjen v.
Akron Associated Invest. Co., 106 Ohio App. 128, 130, 153 N.E.2d 715 (9th Dist. 1958).
{¶45} At issue in the case sub judice is whether or not appellants’ use of the
land was sufficient to establish adverse possession. Mere maintenance of land, such as
mowing grass, cutting weeds, planting a few seedlings, and minor landscaping, is Muskingum County App. Case No. CT 2012-0014 11
generally not sufficient to constitute adverse possession. See Montieth v. Twin Falls
United Methodist Church, 68 Ohio App.2d 219, 428 N.E.2d 870 (9th Dist. 1980);
Robinson v. Armstrong, 5th Dist. No. 03CA12, 2004-Ohio-1463.1 In Grace, supra, the
Ohio Supreme Court found that mowing grass, parking cars, recreational use, and
placement of firewood, oil drums, and a swing set on a strip of land presented a close
case. The Court, in Grace, concluded, however, that the record did not contain clear
and convincing evidence that the Graces, the title owners, were on notice that their
dominions had been invaded and thus that adverse possession had not been
established.
{¶46} In Murphy v. Cromwell, 5th Dist. No. CT2004-0003, 2004-Ohio-6279, this
Court held that the appellants had failed to prove, by clear and convincing evidence,
that their use of the property was sufficiently adverse. The appellants, in Murphy, had
cleaned up branches, mowed and raked the property, walked the dog across the
property and fertilized the same.
{¶47} In the case sub judice, appellants alleged that their possession of the .205
acres at issue commenced in the spring of 1981 when Cecil Bennett allegedly told them
where the property line between their property and appellees’ property was located.
Both appellants, in their affidavits attached to their January 24, 2012 Motion for
Summary Judgment, indicated that since approximately the Spring of 1981, they had
“…openly and exclusively maintained property which lies north of the mutually
respected property boundary specified by a east/west line of shrubs approximately eight
to ten feet south of approximately the entire length of the line of pine trees between the
1 th See also, Nixon v. Parker, 5 Dist. No. 04 CA 84, 2005-Ohio-2375. In Nixon, this Court held that mowing and flower gardening were insufficient to constitute adverse possession. Muskingum County App. Case No. CT 2012-0014 12
properties knows as 4855 Adamsville Road and known as 4885 Adamsville Road as our
own property, which includes open and exclusive exercise of dominion over the
notorious ‘landmark’ line of pine trees as property of 4885 Adamsville Road that have
existed approximately eight to ten feet north of that same line of shrubs.”
{¶48} During her deposition, appellant Linda (Madden) McKenna testified as
follows when asked how she had laid claim to the property since 1981:
{¶49} “A. I maintained it. I mowed. I picked up branches, and those pine trees
are - - you know, they’re 45 years old, so they’re big. When the branches come down,
you’re talking 10, 12 feet of branches I would pull over on the side; and my dad would
come over, and we’d load them up and carry them out.
{¶50} “Q. Okay. Did you do anything else to evidence that you believed you
owned that area, anything other than the mowing or the picking up of the branches?
{¶51} “A. We would rake - - oh. When we first - - like a few years after we were
there, the tree roots – dirt needed filled in, so we filled that in to try to make it level and
nice when we was mowing on it.
{¶52} “As the years went by and the trees have aged, the roots are showing
again, which is so big we can’t keep up with. We’d have to bring in a lot of topsoil to fill
it in.
{¶53} “Q. Okay. Anything other than the picking up of the branches or the roots
or the mowing?
{¶54} “A. We would trim, I mean, you know, trim around, and we would - - any
branches that would come down that needed cut off - - you know what I mean? - - that Muskingum County App. Case No. CT 2012-0014 13
wouldn’t break clear off, we would cut them.” Deposition of appellant Linda (Madden)
McKenna at 11-12.
{¶55} When asked what other uses she made of the disputed property, she
testified that, other than maintaining the same, “[n]othing. I mean, it was just like the rest
of the yard. I mean, it was just part of the property.” Id at. 13.
{¶56} In turn, the following testimony was adduced when appellant Kevin
McKenna was asked how he laid claim to the disputed area from 1981 on:
{¶57} “Q. Did you do anything to make it yours?
{¶58} “A. Treated it as every other square foot of property we own.
{¶59} “Q. Okay. And how is that then?
{¶60} “A. Whatever it needed: Mowing grass, trimming limbs, removing limbs,
burying roots, anything and everything that we’ve done to any part of our property that
needs maintenance.
{¶61} “Q. Was there anything specific other than mowing, trimming, removing
limbs, or burying roots in this particular disputed area of the property?
{¶62} “A. I don’t believe so. I think that sums up how we maintained all of our
{¶63} “Q. Did you ever place any fence along that disputed area?
{¶64} “A. No.
{¶65} “Q. Did you ever place any buildings upon that disputed area?
{¶66} “A. No. Muskingum County App. Case No. CT 2012-0014 14
{¶67} “Q. After the conversation with Mr. Bennett and you commenced mowing,
removing limbs, burying roots, is that something you would have done if you had known
Mr. Bennett was mistaken about the property line?
{¶68} “A. No.” Deposition of Kevin McKenna at 24-25.
{¶69} Kevin McKenna further testified that he never did anything to close in the
area, did not erect a fence in the area and did not erect any buildings. Moreover, as
noted by appellees, appellants admitted that they never moved, planted anything or
maintained the land beyond the tree line, which is part of the disputed area. Appellant
Linda (Madden) McKenna, during her deposition testified that such area was allowed to
“grow up.” Deposition of appellant Linda (Madden) McKenna at 57.
{¶70} Based on the foregoing, we find that the trial court correctly held that
appellant failed to prove, by clear and convincing evidence, that their use of the subject
property was sufficiently adverse and that, therefore, the trial court did not err in
granting appellees’ Motion for Summary Judgment while denying that filed by
appellants. We find that appellants’ use of the disputed property, as a matter of law,
was insufficient to establish adverse possession. Muskingum County App. Case No. CT 2012-0014 15
{¶71} Appellants’ sole assignment of error is, therefore, overruled.
{¶72} Accordingly, the judgment of the Muskingum County Court of Common
Pleas is affirmed.
By: Edwards, J.
Gwin, P.J. and
Hoffman, J. concur
______________________________
JUDGES
JAE/d0817 [Cite as McKenna v. Boyce, 2012-Ohio-5163.]
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
KEVIN H. McKENNA AND : LINDA S. (MADDEN) McKENNA : : Plaintiffs-Appellants : : : -vs- : JUDGMENT ENTRY : JARROD D. BOYCE AND : MELISSA M. BOYCE, et al., : : Defendants-Appellees : CASE NO. CT2012-0014
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Muskingum County Court of Common Pleas is affirmed. Costs
assessed to appellants.
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