[Cite as NC Ents., L.L.C. v. Norfolk & W. Ry. Co., 2024-Ohio-1454.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
NC ENTERPRISES, LLC C.A. No. 30652
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE NORFOLK AND WESTERN RAILWAY COURT OF COMMON PLEAS COMPANY, et al. COUNTY OF SUMMIT, OHIO CASE No. CV-2021-08-2641 Appellant
DECISION AND JOURNAL ENTRY
Dated: April 17, 2024
STEVENSON, Presiding Judge.
{¶1} Appellant Norfolk Southern Railway Company (“Norfolk Southern”) appeals from
the Summit County Court of Common Pleas granting summary judgment in favor of Appellee NC
Enterprises, LLC (“NCE”) on its adverse possession claim. When applying the undisputed facts to
applicable law, this Court concludes summary judgment was properly granted. Accordingly, the
trial court’s judgment granting NCE’s motion for summary judgment is affirmed.
I.
{¶2} This is an adverse possession case and the underlying facts are not in dispute. NCE
purchased property located at 409 S. Munroe Falls Road in Tallmadge, Ohio, on December 8, 1997
(“the NCE Property”). The NCE Property consists of two parcels, parcel numbers 5101140 and
5101141.
{¶3} The NCE Property abuts two parcels owned by Norfolk Southern, parcel numbers
5100010 and 5108560 (collectively “the Parcels”). Norfolk Southern is the successor by merger 2
to Norfolk and Western Railway Company. Parcel number 5100010 consists of 1.04 acres and
parcel number 5108560 consists of .4 acres. The Parcels are adjacent to a larger 34.2-acre parcel
owned by Norfolk Southern, parcel number 7101227. Parcel number 7101227 is not at issue in the
litigation between NCE and Norfolk Southern.
{¶4} Until Norfolk Southern’s posting of for sale signs in 2021, Steven Geer, NCE’s
managing member and president, thought NCE owned the Parcels. Geer’s company, CLS
Finishing, Inc., was a tenant at the NCE Property for three or four years prior to NCE’s 1997
purchase.
{¶5} NCE started conducting landscaping activities on the Parcels in April 1998. NCE
hired Ed Brooks, a landscaper with TLC, to perform landscaping and maintenance from 1998 –
2003; Eric’s Lawn Maintenance to perform landscaping and maintenance from April – August
2004; and Joseph Lowther Lawncare and Landscaping for landscaping and maintenance from
September 2004 – present. JALCO performed ground clean-up, including tree removal, weeding,
grading, seeding, straw and fertilizer, in September and October 2004, and Ingersoll performed
fertilization services in 2005 and 2006.
{¶6} Landscaping and maintenance included mowing; fertilizing; weeding; edging;
mulching; trimming bushes, shrubs, and trees; planting; and winter and spring clean-ups. This
work was performed on both the NCE Property and the Parcels.
{¶7} Neither Brooks nor Lowther saw a no trespassing sign or similar signage on the
Parcels. Further, neither of them saw a Norfolk Southern representative on the Parcels or ever
communicated with a Norfolk Southern representative.
{¶8} NCE started performing non-landscaping activities on the Parcels on September 5,
2000, when it installed fencing. The fencing was the first structure NCE installed on the Parcels. 3
NCE installed additional fencing in March 2003 and performed fencing repairs in May and
December 2005.
{¶9} To alleviate flooding, NCE installed a 10-inch PVC pipe that ran from the NCE
Property to a catch-basin located on Norfolk Southern’s parcel, parcel number 5100010, in August
2011. Bill Ward is the owner and president of W.H. Ward Excavating & Grading, LLC, the
company NCE hired to complete this project. Ward explains that his company installed the pipe
with limestone and hydraulic cement at the catch basin and manhole. They also backfilled trenches,
cleaned up an excess spoil load, and repaired asphalt.
{¶10} In April through August 2017, NCE cleaned and graded the Parcels’ waterway and
creek edge. NCE also paid for limestone delivery and to have stumps and brush removed, hauled,
and buried on the Parcels. Asphalt grindings were placed on the north side of the creek bank and,
for water drainage purposes, concrete rip rap was used to line the ravine’s bank on the Parcels.
NCE again hired Ward’s company to perform this work.
{¶11} Like Brooks and Lowther, neither Ward nor anyone from his company saw a no
trespassing sign or similar signage on NCE Property. Further, Ward never saw a Norfolk Southern
representative on the Parcels nor did he ever communicate with anyone from Norfolk Southern.
NCE asserts that, since 1998 and at a minimum, it spent $155,087.72 on improvements,
maintenance, and upkeep of the Parcels.
{¶12} It is undisputed that Norfolk Southern did not maintain the Parcels. Jesse Duperow,
property manager in Norfolk Southern’s real estate department, is unable to identify any person or
entity sent by Norfolk Southern to the parcels between January 1998 and July 2020 to perform
property maintenance. Further, Norfolk Southern does not dispute that it never gave NCE
permission to use the Parcels. NCE does not dispute that Norfolk Southern paid the Parcels’ 4
property taxes since 1998 and that it listed the Parcels for sale on April 1, 2020. Beginning in 2003,
Norfolk Southern discussed selling the Parcels with different entities but the sales did not go
through.
{¶13} In a July 2, 2020 letter, NCE notified Norfolk Southern that it was claiming
ownership of the Parcels under adverse possession. Norfolk Southern disputed the claim on July
22, 2020. It is undisputed that the 21-year period for adverse possession would have had to begin
on or before July 22, 1999.
{¶14} NCE filed a complaint against Norfolk Southern asserting adverse possession, quiet
title, and unjust enrichment claims. After an answer was filed and discovery exchanged, NCE filed
a motion for summary judgment and Norfolk Southern filed a cross-motion for summary
judgment. The trial court granted NCE’s motion, finding that it proved its adverse possession claim
by clear and convincing evidence, and denying Norfolk Southern’s cross-motion for summary
judgment. Norfolk Southern timely appeals the trial court’s decision, setting forth one assignment
of error for review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN HOLDING THAT APPELLEE NC ENTERPRISES, LLC MET THE REQUIREMENTS OF ADVERSE POSSESSION BY CLEAR AND CONVINCING EVIDENCE.
{¶15} Norfolk Southern argues on appeal that the trial court erred in granting summary
judgment and holding that NCE met its burden of establishing adverse possession by clear and
convincing evidence. We disagree.
{¶16} We review an award of summary judgment de novo. Grafton v. Ohio Edison Co.,
77 Ohio St.3d 102, 105 (1996). “This Court applies the same standard as the trial court, viewing 5
the facts in the case in the light most favorable to the non-moving party and resolving any doubt
in favor of the non-moving party.” Ormandy v. Dudzinski, 9th Dist. Lorain No. 10CA009890,
2011-Ohio-5005, ¶ 7.
{¶17} Pursuant to Civ.R. 56(C), summary judgment is proper if:
(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).
{¶18} To prevail on a motion for summary judgment, the party moving for summary
judgment must be able to point to evidentiary materials that show “there is no genuine issue as to
any material fact, and that the moving party is entitled to judgment as a matter of law.” Dresher
v. Burt, 75 Ohio St.3d 280, 293 (1996). Once a moving party satisfies its burden of supporting its
motion for summary judgment with sufficient and acceptable evidence pursuant to Civ.R. 56(C),
Civ.R. 56(E) provides that the non-moving party “may not rest upon the mere allegations or denials
of the party’s pleadings[.]” Rather, the non-moving party has a reciprocal burden of responding
by setting forth specific facts, demonstrating that a “genuine triable issue” exists to be litigated for
trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 449 (1996).
{¶19} To acquire title to property by adverse possession, the party claiming title “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, 580-581
(1988). The failure of proof as to any of the elements results in the failure to acquire title by adverse
possession. Id. at 581. Clear and convincing evidence is that proof which establishes in the minds 6
of the trier of fact a firm conviction as to the allegations sought to be proved. Cross v. Ledford,
161 Ohio St. 469, 477 (1954).
{¶20} “‘Exclusive possession’ means that the use of the property need only be exclusive
of the title owner’s or third person’s entry upon the land coupled with an assertion of his right to
possession or claim of title to the property.” Ormandy, 9th Dist. Lorain No. 10CA009890, 2011-
Ohio-5005 at ¶ 11. Hence, “the use need not be exclusive of all persons, but rather, exclusive only
of those who assert either by word or act any right of ownership or possession of the land.” Id.
{¶21} “Open use” means that there was no attempt to conceal the use of the property.
Crown Credit Co., Ltd. v. Bushman, 170 Ohio App.3d 807, 2007-Ohio-1230, ¶ 46 (3d Dist.). Open
use is distinguishable from notorious and adverse use in that the latter uses “require more than
merely conducting activities on the disputed property where others can observe.” Bushman at ¶
48. “To be notorious, a use must be known to some who might reasonably be expected to
communicate their knowledge to the owner if he maintained a reasonable degree of supervision
over his premises. * * * In other words, the use of the property must be so patent that the true
owner of the property could not be deceived as to the property’s use.” (Internal quotations omitted.)
Id.
{¶22} To satisfy the “adverse use” element, the claimant “must have intended 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.” (Internal
quotations omitted.) Bushman at ¶ 48. This Court has stated that “[a]dverse or hostile use is any
use inconsistent with the rights of the title owner.” Vanasdal v. Brinker, 27 Ohio App.3d 298 (9th
Dist.1985). 7
{¶23} The Ohio Supreme Court has held that “[i]n a claim for adverse possession, the
intent to possess another’s property is objective rather than subjective,” so that the party in
possession need not have intended to deprive the owner of the property at issue. Evanich v. Bridge,
119 Ohio St.3d 260, 2008-Ohio-3820, syllabus. Instead, the claimant need only have “possessed
[the] property and treated it as the claimant’s own” for the statutory period to satisfy the element
of adverse use. Id.
{¶24} R.C. 2305.04 provides that “[a]n action to recover the title to or possession of real
property shall be brought within twenty-one years after the cause of action accrued[.]” The 21-
year period begins to run when “there is some act of possession by the adverse claimant ‘* * * so
open, notorious and hostile that it constitutes, in law, notice to the real owner.’” Montieth v. Twin
Falls United Methodist Church, Inc, 68 Ohio App.2d 219, 225 (9th Dist.1980), quoting Happ v.
Dayton & Michigan RR. Co., 1 Ohio N.P. (N.S.) 337, 344 (1903).
{¶25} Norfolk Southern does not dispute that NCE started performing landscaping and
maintenance on the Parcels in April 1998. It is Norfolk Southern’s position that this “de minimis”
lawn maintenance is insufficient for adverse possession. Norfolk Southern argues that, at a
minimum, the 21-year period for adverse possession did not begin to run until 2000 when NCE
made actual improvements to the Parcels. As Norfolk Southern disputed NCE’s adverse possession
claim on July 22, 2020, Norfolk Southern maintains that NCE failed to satisfy the requisite 21-
year period and that the trial court erred in granting summary judgment.
{¶26} NCE asserts that 21-year period for adverse possession began to run when it first
entered the property, not when it constructed its first structure. It is NCE’s position that the trial
court properly considered all its activities as a whole. Taking all its activities as a whole, NCE 8
argues that it exercised continuous, open, notorious, and exclusive dominion and control over the
Parcels since April 1998 and that summary judgment was properly granted. We agree.
{¶27} At issue is whether the statute of limitations for adverse possession began to run in
April 1998, when NCE started performing landscaping and maintenance at the Parcels, or in
September 2000 when NCE first installed a structure on the Parcels. This Court has not explicitly
addressed the issue of whether landscaping and maintenance may be combined with other acts to
establish adverse possession. This Court has recognized, however, that “it is the act or acts of
dominion over the subject property which underlies the burden of proving adverse possession.”
(Emphasis added.) Montieth, 68 Ohio App.2d at 222. In affirming the jury’s adverse possession
award, this Court similarly noted all of the appellee’s acts on the disputed land in Galehouse v.
Geiser, 9th Dist. Wayne No. 05CA0037, 2006-Ohio-766, ¶ 16. The appellee’s acts included
storing personal property, maintaining a swimming pool, building rabbit cages, planting trees and
shrubs, and lawn mowing. Id.
{¶28} The Fifth District Court of Appeals addressed the issue of combining landscaping
and maintenance with other acts in Hall v. Dasher, 5th Dist. Stark No. 2021CA00111, 2022-Ohio-
1735. One issue in Hall was whether the trial court erred in granting the appellee’s motion for
summary judgment and awarding the adverse possession of a strip of the appellant’s property. Id.
at ¶ 28. The strip of land was located between a private road and property owned by the appellant.
The appellees were neighboring landowners. The evidence established that the appellees used the
private road for over 21 years to access their property and that, during this time, they maintained
and made improvements to the strip of land. In addition to landscaping, mowing, and planting
grass, the appellees performed other tasks on the strip. Id. at ¶ 85. The other tasks included
maintaining a drywell and asphalt apron; renting “a Bob Cat to haul in dirt to fill in ruts and grade 9
and level the strip of land[;]” clearing “numerous piles of salvage that were on the strip of land[;]”
bringing “in trucks to haul the salvage[;]” and hauling out “construction materials like concrete
stone and brick.” Id. Concrete, stone, and brick were also hauled onto the strip. Id.
{¶29} While the Fifth District recognized in Hall that “mere” maintenance is generally
insufficient to establish adverse possession, it held that lawn maintenance activities may be
combined with other activities to establish adverse possession. Id. at ¶ 84. The court stated:
although lawn maintenance alone is not sufficiently open and notorious to establish adverse possession, such activity is relevant evidence of open and notorious use, and when combined with other activities under the proper circumstances, it may help to establish an adverse possession.
(Citation omitted.) (Emphasis added.) Id. When combining lawn maintenance activities with the
other activities performed on the strip, the Hall court concluded that the appellees established their
adverse possession claim and that summary judgment was properly granted. Id. at ¶¶ 84, 85.
{¶30} In Hardert v. Neumann, 4th Dist. Adams No. 13CA977, 2014-Ohio-1770, the
Fourth District similarly addressed the issue of whether landscaping and maintenance may be
combined with other activities to establish adverse possession. It was undisputed in Hardert that,
starting in 1998 and because the disputed land was placed in the federal Conservation Reserve
Program (“CRP”), the appellees only performed landscaping and maintenance on the disputed
land. Id. at ¶¶ 4, 10, 11. From 1982 until 1997, however, it was undisputed that the appellees
planted crops on the disputed property; removed trees and fencing; added topsoil; and removed a
dirt road. Id. at ¶ 11.
{¶31} Like Norfolk Southern, the appellants argued in Hardert that “merely maintain[ing]
the property” was insufficient and that the appellees failed to prove they used the disputed land
openly and notoriously for the requisite 21 years. Id. at ¶ 10. The court disagreed, concluding: 10
We agree that by themselves incidental ‘activities conducted merely to maintain the land, such as mowing, are generally not sufficient to establish adverse possession.’ However, each claim of adverse possession must be decided upon its particular facts and contrary to [appellant’s] arguments, there is no ‘bright line’ rule regarding such activities as cutting hay and mowing grass. This ‘allows the court to consider the unique nature of the real property in question,’ which ‘is necessary since a use which notifies an owner in one locale that another is asserting an adverse claim to his land, may not be a sufficient use to so notify an owner in another area.’ And although mowing and incidental maintenance by themselves may not always be ‘sufficiently open and notorious to establish adverse possession, such activity is ‘relevant evidence of open and notorious use, and when combined with other activities under the proper circumstances it may help to establish adverse possession.’
(Citations omitted.) Id. at ¶ 14. In affirming judgment in favor of the appellees, the appellate court
in Hardert concluded that “the trial court did not err as a matter of law by considering the
[appellees’] specific changes to the land, including enrollment in the CRP and associated mowing,
as indicative of adverse possession.” Id. at ¶ 16.
{¶32} The Seventh District similarly affirmed summary judgment on an adverse
possession claim in Bailey v. George, 7th Dist. Columbiana No. 15CO0029, 2017-Ohio-767. In
affirming summary judgment, the court noted in Bailey that while the appellees initially performed
landscaping and maintenance on the disputed strip of land, including “cutting down trees, trimming
trees and hedges, and raking and picking up fallen leaves and other debris[,] * * * [t]hey later
excavated and graded the soil.” Id. at ¶ 19. The court again noted in its decision that “there was
evidence that the contested strip was not just merely maintained by [the appellee]; it was eventually
graded, excavated and leveled, and used for storage purposes.” Id. at ¶ 24. After combining the
initial landscaping and maintenance activities with the later activities performed on the disputed
strip, the court concluded in Bailey that the appellee established his adverse possession claim by
clear and convincing evidence and it affirmed summary judgment in his favor. Id. at ¶ 33. 11
{¶33} We agree with the Hall, Hardert and Bailey courts that landscaping and
maintenance can be combined with other acts such as grading, fencing, and placing other
improvements on a structure to establish an adverse possession claim. These obvious signs of
continued use may serve to notify a landowner that someone is using their property adverse to the
landowner’s interests. In this case, NCE started performing landscaping and maintenance in April
1998 and, beginning in September 2000, it erected permanent structures on the Parcels including
the fence, drainage pipe, gravel, and concrete rip rap. Although landscaping and maintenance by
itself may not be enough to acquire property by adverse possession, when combined with the other
activities NCE performed on the Parcels, we conclude that NCE established its adverse possession
claim by clear and convincing evidence. NCE established that it openly, exclusively, notoriously,
adversely, and continuously used and possessed the Parcels for a period of at least 21 years.
{¶34} Norfolk Southern failed to meet its reciprocal burden of responding by setting forth
specific facts, demonstrating that a “genuine triable issue” exists to be litigated for trial. Tompkins,
75 Ohio St.3d at 449. It is undisputed that Norfolk Southern never maintained the Parcels nor did
it give NCE permission to use the Parcels. While Norfolk Southern placed its entire property for
sale a few times starting in 2003, which included the Parcels and its larger 34.2-acre parcel, it
never told NCE to stop maintaining the Parcels nor did it put any restrictions on NCE while the
property was listed for sale. Norfolk Southern never contacted NCE to tell it to stop maintaining
and/or performing work on the Parcels. Norfolk Southern did not place no trespassing signs or
similar signage on the Parcels alerting NCE to stay-off and/or that Norfolk Southern was claiming
ownership of the Parcels. Other than arguing that alleged de minimis landscaping activities did not
count toward the 21-year period for adverse possession, Norfolk Southern provided no evidence 12
to refute NCE’s clear and convincing evidence that it openly, exclusively, notoriously, adversely,
and continuously used and possessed the strips for over 21-years.
{¶35} Accordingly, for the reasons set forth above, Norfolk Southern’s sole assignment
of error is without merit and the trial court’s award of summary judgment in favor of NCE is
affirmed.
III.
{¶36} For the reasons set forth above, Norfolk Southern’s assignment of error is
overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
SCOT STEVENSON FOR THE COURT 13
CARR, J. HENSAL, J. CONCUR.
APPEARANCES:
LAURIE J. AVERY and NICHOLAS W. BARTLETT, Attorneys at Law, for Appellant.
FRANK G. MAZGAJ, Attorney at Law, for Appellee.