Puntt v. Zimmer

19 Ohio C.C. Dec. 721

• Court: Hamilton Circuit Court
• Decided: June 9, 1906
• Status: Published

Opinion

GIFFEN, J.

The plaintiff commenced this action to enjoin the defendant from trespassing upon or using his land as a driveway, and from erecting and maintaining a fence on or across his property.

The road in controversy is located in the southwest quarter of section 22, town. 4, range 1, in the Miami Purchase. The land described in the petition and also in the deed offered in support of the plaintiff’s ownership, is east of and adjoining section 22, no part of the same being within the boundaries of such section. The description of the plaintiff’s land begins evidently by mistake at the southeast comer of the section instead of the southwest corner. It is manifest, therefore, that the plaintiff has failed to make out a case and his petition must be dismissed.

The defendant by answer, asks affirmative relief and prays that his title to said roadway, which was. defined by occupancy and user, and by the deeds conveying the same, be quieted against any and all claims of the plaintiff. The deed pnder which he claims title to the premises in controversy, contains the following description:

“Lying and being in county of Hamilton, state of Ohio, township 4, range 1, section 22 in the Miami Purchase, beginning at the northwest corner of Joseph Nicholas’s land; thence north with the half section line 264 feet to common corner of Dorkholtz and Denmons; thence west 20 feet on the line between Dorkholtz and Denmons; thence south .parallel with the former line 264 feet or to the center of the county road; thence east 20 feet to the place of'beginning.”

"When the two corners called for 'in the deed are ascertained the line joining them will be the east line of the tract conveyed independent of the half section line, the words, “with the half section line,”' denoting nearness or in the same direction as the half section line and not necessarily upon or along sneli line.

The testimony, however, tends to show that these corners were intended and understood to be upon the half section line, and the difficulty arises in the fact that at the time the deed for the strip of ground twenty feet in width was made, the commonly accepted half section line was about twenty feet west of the true half section line, and was so understood and recognized by all the adjacent landowners from 1874, the date of the deed, until 1902, when the plaintiff acquired title to his lánd. The defendant and his predecessors in title have been in adverse possession during all this time, believing that the accepted half section line was the true line, and have therefore acquired title by adverse possession. Yetzer v. Thoman, 17 Ohio St. 130 [91 Am. Dec. 122].

A decree may be entered quieting the title of the defendant against all claims of the plaintiff for the strip of ground twenty feet in width so used and accepted by the defendant, each party to pay one-half of costs.

Jelke and Swing, JJ., concur.