[Cite as Wilson v. Britton,
2019-Ohio-3333.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
ROBERT A. WILSON, ET AL., :
: Case No. 18CA24
Plaintiffs-Appellees, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
JULIE BRITTON, :
:
Defendant-Appellant. : Released: 08/14/19
APPEARANCES:
William L. Burton and Donald W. Burton, Marietta, Ohio, for Appellant.
Matthew Carlisle and Adam J. Schwendeman, Marietta, Ohio, for Appellees.
McFarland, J.
{¶1} This is an appeal from a Washington County Court of Common Pleas
judgment entry in favor of Appellees, Robert and Deva Wilson, which held that
Appellant, Julie Britton, committed civil trespass and ordered her to remove
mobile homes and other personal property from Appellees’ property. The entry
also denied Appellant’s counterclaim for adverse possession. Because we find the
trial court did not err, we affirm the judgment of the trial court.
FACTS
{¶2} Appellees filed a complaint against Appellant on March 24, 2017 and
an amended complaint on April 28, 2017 alleging that Appellee committed a civil
Washington App. No. 18CA24 2
trespass because her real and personal property (e.g. mobile homes) encroached on
Appellees’ real property. Appellant filed an answer and counterclaim on May 24,
2017 asserting that she had acquired Appellees’ encroached property by adverse
possession.
{¶3} In granting judgment in favor of Appellees, the trial court made the
following findings of fact and conclusions of law:
“Appellant purchased a parcel of property from a sheriff’s
sale on March 1, 1996. The deed was dated April 10, 1996 and
recorded May 6, 1996. Parcel Number 34-64780.000 describes
0.25 acres, more or less. Plaintiffs acquired the adjacent property
by deed recorded on October 20, 2016. A survey revealed that
Defendant’s mobile home encroached on the property of Plaintiffs
with the line passing through the middle of the home. Aerial
photos submitted as joint Exhibits C, E, and O and testimony
adduced at trial establish that essentially the entire area occupied by
Defendant and the various outbuildings are on Plaintiffs’ property.
Defendant’s testimony acknowledged that she was unsure of the
actual property line and that a surveyor she had hired at some point
had quit, did not complete the survey, and said, “There wasn’t
enough room to put anything, even a tent. She testified variously
Washington App. No. 18CA24 3
that she had “thought” or “assumed” that the area occupied by her
predecessors was the area she had purchased. In fact, the exhibits
show her quarter acre to be a hillside, which was uninhabitable.
On the evidence before it, the Court finds:
1. Plaintiffs established by a preponderance of the evidence the
location of their property line.
2. The tax map line as depicted on Joint Exhibit C indicates the
Plaintiffs’ property line.
3. The two mobile homes and personal property as seen on Joint Trial
Exhibit C are encroaching on Plaintiffs’ property and constitute a
civil trespass.
4. Defendant has failed to establish adverse possession by clear and
convincing evidence.
Upon these findings, the Court Orders Defendant to remove the
mobile homes and other miscellaneous personal property from
Plaintiffs’ real property within six (6) months after this Order, that
any personal property at the site after that date shall be considered
abandoned with its ownership reverting to Plaintiffs, that each party
be responsible for their own attorney fees and that costs be assessed
to Defendant.”
Washington App. No. 18CA24 4
{¶4} It is from this judgment that Appellant appeals, asserting three
assignments of error.
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED IN RULING FOR APPELLEE
ROBERT A. WILSON.
II. THE TRIAL COURT MISTAKENLY APPLIED THE DATES
OF DEED EXECUTION AND RECORDATION TO THE
TWENTY-ONE YEAR PERIOD FOR ADVERSE
POSSESSION, INSTEAD OF THE DATE OF ACTUAL
POSSESSION.
III. THE TRIAL COURT IGNORED THE ESTABLISHED
PRINCIPAL OF “TACKING” WHEN IT ANALYZED
ADVERSE POSSESSION.”
STANDARD OF REVIEW
{¶5} “An appeal of a ruling on an adverse possession claim is usually
reviewed under a ‘manifest weight of the evidence’ standard of review.” Nolen v.
Rase, 4th Dist. Scioto No. 13CA3536, 2013-Ohio-5680, ¶ 9, citing Thompson v.
Hayslip,
74 Ohio App.3d 829,
600 N.E.2d 756 (4th Dist. 1991); see also Spurlock
v. Pemberton, 4th Dist. Lawrence No. 13CA1,
2013-Ohio-4002, at ¶ 17; Pottmeyer
v. Douglas, 4th Dist. Washington No. 10CA7,
2010-Ohio-5293, ¶ 21. In a
manifest weight of the evidence review [w]e must review the entire record, weigh
the evidence and all reasonable inferences, consider the credibility of the
witnesses, and determine whether, in resolving conflicts in the evidence, the trier
of fact clearly lost its way and created such a manifest miscarriage of justice that
Washington App. No. 18CA24 5
the [judgment] must be reversed and a new trial granted. In re C.L.C., 4th Dist.
Highland No. 08CA3,
2008-Ohio-3312, ¶ 22, citing State v. Smith, 4th Dist.
Pickaway App. No. 06CA7,
2007-Ohio-502, ¶ 41. However, “a reviewing court
may not simply ‘reweigh[ ] the evidence and substitute[ ] its judgment for that of
the [trier of fact].’ ” Rudolph v. Chisnell, 9th Dist. Wayne No. 08CA0012, 2008-
Ohio-4998, ¶ 6, quoting State v. Wilson,
113 Ohio St.3d 382,
865 N.E.2d 1264,
2007-Ohio-2202 at ¶ 40. “[A]n appellate court will not reverse a trial court's
decision on this issue if it is supported by some competent, credible evidence.”
Rase, 4th Dist. Scioto No. 13CA3536,
2013-Ohio-5680, at ¶ 9, citing Eastley v.
Volkman,
132 Ohio St.3d 328,
972 N.E.2d 517,
2012-Ohio-2179, at ¶ 14. “[The
weight-of-the-evidence] standard of review is highly deferential and even the
existence of ‘some’ evidence is sufficient to support a court's judgment and to
prevent a reversal.”
Id., citing Barkley v. Barkley,
119 Ohio App.3d 155, 159,
694
N.E.2d 989 (4th Dist. 1997).
{¶6} Initially, we note that in addition to finding that Appellant did not
prove her counterclaim of adverse possession by clear and convincing evidence,
the trial court also concluded that Appellant committed a civil trespass because her
property was encroaching on Appellees’ property. Appellant has not challenged
that finding of civil trespass in this appeal. She challenges only the trial court’s
conclusion that she did not prove adverse possession of Appellees’ property.
Washington App. No. 18CA24 6
ASSIGNMENT OF ERROR I
{¶7} In her first assignment of error, Appellant contends the trial court erred
in holding that she did not prove adverse possession. Appellant claims the trial
court’s decision is against the manifest weight of the evidence in that she has
submitted “competent credible evidence at trial to support each element of adverse
possession.”
{¶8} “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.” Rase, 4th Dist. Scioto No.
13CA3536, 2013-Ohio-5680, ¶ 9, citing Grace v. Koch,
81 Ohio St.3d 577,
692
N.E.2d 1009 (1998), at the syllabus, Edgington v. Newman, 4th Dist. Adams App.
No. 11CA917,
2012-Ohio-4962, at ¶ 10. Failure of proof as to any of the elements
results in failure to acquire title by adverse possession. Grace v. Koch,
81 Ohio
St.3d 577, 579,
1998-Ohio-607,
692 N.E.2d 1009, citing Pennsylvania Rd. Co. v.
Donovan, 111 Ohio St. at 349-350,
145 N.E. 479 at 482.
{¶9} “Clear and convincing evidence is the degree of evidence necessary to
elicit in the mind of the trier of fact a firm belief … as to the allegations to be
established.” Amsbary v. Brumfield, 177 Ohio App.3d 121,
2008-Ohio-3183,
894
N.E.2d 71, ¶ 13 (4th Dist.), citing In re Haynes,
25 Ohio St.3d 101, 104,
495
N.E.2d 23 (1986). But, “[t]he law generally disfavors the transfer of property by
Washington App. No. 18CA24 7
adverse possession; therefore, claims based on adverse possession are to be strictly
construed in favor of the person who has title to the property.” Bierhup v. Leaco,
Inc., 4th Dist. Jackson No. 94 CA 742,
1995 WL 389292, at *2, citing Montieth v.
Twin Falls United Methodist Church, Inc.,
68 Ohio App.2d 219, 224,
428 N.E.2d
870 (1980), Demmit v. McMillan,
16 Ohio App.3d 138, 141,
474 N.E.2d 1212 (2nd
Dist. 1984), quoting 5 Thompson, Commentaries on the Modern Law of Real
Property (1979) 604, Section 2543.
{¶10} In its findings of fact and conclusions of law, the trial court summarily
stated that “Defendant has failed to establish adverse possession by clear and
convincing evidence.” After reviewing the party’s arguments and the record, the
critical question appears to be whether Appellant possessed/used (hereinafter
“possessed”) the property for the required 21-year period.
{¶11} Appellant argues that she began living on the property the day that she
purchased it, March 1, 1996, and that she lived on the property until the date that
Appellees filed their law suit on March 24, 2017. Therefore, Appellant argues, she
possessed it for 21 years and 23 days, which could satisfy the 21-year period of
adverse use required by adverse possession.
{¶12} Appellant testified that she began living on the property in question on
March 1, 2016. However, she also testified that she hired a surveyor who told her
that “ ‘there’s not enough room here down by the road to put anything, not even a
Washington App. No. 18CA24 8
tent. Not a camper, nothing.’ ” Consequently, Appellant testified that she “went
and rented a trailer spot.”
{¶13} Appellant did not testify how long she rented a trailer spot, but it
nevertheless contradicts her testimony that she lived on the property beginning on
March 1, 2016. Accordingly, it is uncertain when Appellant began her possession
of the property, but it was later than March 1, 2016.
{¶14} Appellant also testified that when Appellees purchased the property
adjacent to hers, she saw surveyors in the woods and orange flags. Appellant
claims that in July of 2017 Appellee Robert Wilson told her she “was on his
property and [she] needed to give him $10,000, or move.” Appellant told him she
“thought that it was [her] property.”
{¶15} On cross examination Appellant stated that she was “pretty sure” that
Appellee Robert Wilson spoke to her in July of 2017. However, when she was
reminded that the lawsuit was filed prior to July of 2017, Appellees’ counsel stated
“then you would have spoken to him on a different date than you testified to,
correct? Appellant responded: “I spoke to him before the lawsuit, yes.”
{¶16} Further, Appellee Robert Wilson testified that after the surveyor
revealed Appellant’s encroachment onto his property, he testified he spoke to
Appellant about the problem in February of 2017. He testified that he told
Appellant that she needed to buy the property or move.
Washington App. No. 18CA24 9
{¶17} Accordingly, there is also testimony that contradicts Appellant’s
assertion that she adversely possessed/used the property until March 24, 2017.
{¶18} In light of the conflicting evidence as to whether Appellant possessed
the land in question for 21 continuous years, the need to construe adverse
possession claims “in favor of the person who has title to the property,” and the
requirement that Appellant must prove adverse possession by clear and convincing
evidence, we find that the trial court, the trier of fact in this case, did not lose its
way. We agree that Appellant did not prove, by clear and convincing evidence,
adverse possession of the property in question. Accordingly, we overrule
Appellant’s first assignment of error.
ASSIGNMENT OF ERROR II
{¶19} In her second assignment of error, Appellant asserts the trial court
mistakenly applied the dates of deed execution and recordation to the 21-year
period for adverse possession, instead of the date of actual possession.
{¶20} In its findings of fact, the trial court sets out the recording dates of
Appellant’s and Appellees’ deeds respectively, but it makes no mention of those
dates being used to determine the 21-year period required for adverse possession.
Rather, the trial court’s conclusion that Appellant did not prove adverse possession
is consistent with our analysis of Appellant’s first assignment of error, i.e. the trial
court did not lose its way in holding that Appellant did not clearly and
Washington App. No. 18CA24 10
convincingly prove that she possessed the property in question for the required 21-
year time period.
{¶21} Also, assuming for the sake of argument that the trial court relied on
the dates of the deeds to determine Appellant’s adverse possession of the property
in question, based on our analysis of Appellant’s first assignment of error, the error
would be harmless under Civ.R.61. Therefore, we overrule Appellant’s second
assignment of error.
ASSIGNMENT OF ERROR III
{¶22} In her third assignment of error, Appellant alleges the trial court
ignored the established principal of “tacking” when it analyzed adverse possession.
Appellant argues that even if she did not adversely possess the property for the
required 21-year period, the time that she did adversely possess the property may
be “tacked” (i.e. added) onto the period of time the previous owner adversely
possessed the property in order to satisfy the required 21-year period for adverse
possession.
{¶23} The law provides that “[i]t is not necessary that possession for the full
21 years be continuous in one person, for the doctrine of tacking the possession of
successive owners has been adopted in Ohio.” Ault v. Prairie Farmers Co-
Operative Co., 6th Dist. Wood No. WD-81-21, 1981 WL 5788, *2, citing McNeely
v. Langan, 22 Ohio St.32 (1871).
Washington App. No. 18CA24 11
{¶24} “In order to tack a predecessor's use of property, an adverse
possession claimant initially must establish that the claimant and the predecessor
are in privity.” Cline v. Rogers Farm Enterprises, LLC, 4th Dist. Pickaway No.
16CA7, 2017-Ohio-1379,
87 N.E.3d 637, ¶ 34, citing Hawn v. Pleasant, 4th Dist.
Scioto No. 98CA2595,
1999 WL 366584, *6. But “privity, for adverse possession
purposes, does not require a contractual relationship between successive property
owners.” Id. at ¶ 38. Rather, privity requires “that one receive possession from the
other by some act such other or by operation of law.” (Emphasis added.) Bullion
v. Gahm,
164 Ohio App.3d 344,
2005-Ohio-5966,
842 N.E.2d 540, ¶ 19 (4th Dist.),
quoting Keezer v. Deatrick (1988), Paulding App. No. 11-87-8,
1988 WL 126760,
quoting 2 Ohio Jur.3d 525, et seq., Adverse Possession, Section 27. Most
important in this case, “the pertinent inquiries when evaluating privity in the
adverse possession context are whether the adverse claimant and the predecessor(s)
successively-and without interruption-occupied the property and whether a transfer
of possession by any means, in fact, occurred.” (Emphasis added.) Cline, 4th Dist.
Pickaway No. 16CA7,
2017-Ohio-1379,
87 N.E.3d 637 at ¶ 34, citing McNeely, 22
Ohio St. at 37 (1871). To demonstrate continuous use an adverse claimant must
show that there was no “substantial interruption” in his use of the property. Gahm,
164 Ohio App.3d 344,
2005-Ohio-5966,
842 N.E.2d 540, at ¶ 20. “[D]aily or
weekly use [is] [ ] not [ ] required, as long as the use shown is continuous enough
Washington App. No. 18CA24 12
to indicate prolonged and substantial use.”
Id. quoting Ault v. Prairie Farmers Co-
Operative Co., 6th Dist. Wood App. No. WD-81-21,
1981 WL 5788, see also
Pottmeyer v. Douglas, 4th Dist. Washington No. 10CA7,
2010-Ohio-5293, ¶ 37.
{¶25} John A. Tullius, a witness for the Appellant, testified that his
grandparents lived on the property in question, and he (Tullius) spent a significant
amount of time on the property as a child. Tullius testified that there were several
structures on the property, including an “old house,” a “new house,” and a two-car
garage. Tullius testified that his family owned and lived on the property from 1957
until it was abandoned in “probably [the] early ‘90s, late ‘80s.”
{¶26} Appellant claims that Olive Richie or his employer, Constitutional
Stone, was the owner of the property immediately prior to her purchase of the
property. However, Appellant fails to provide any citation to the record for this
assertion, and we cannot find any evidence of such ownership or adverse
possession in the record during this period. In fact, Appellant testified that when
she purchased the property, it was abandoned.
{¶27} Accordingly, we find no evidence regarding the hostile possession of
the property in question by Tullius’ grandparents to the time that Appellant took
ownership/possession sometime in 1996, i.e. it was abandoned. At best from
Appellant’s perspective, this is a gap of at least several years in hostile possession
of the property.
Washington App. No. 18CA24 13
{¶28} Strictly construing this testimony, we find that this period of
abandonment was a “substantial interruption” in the continuous hostile possession
of the property so as to make tacking inapplicable. Compare Gahm, 164 Ohio
App.3d 344,
2005-Ohio-5966,
842 N.E.2d 540, ¶ 20 (4th Dist.) (four-month gap in
adverse possession did not interrupt continuity for purposes of an adverse
possession action). Accordingly, we overrule Appellant’s third assignment of
error.
CONCLUSION
{¶29} In holding “[Appellant] has failed to establish adverse possession by
clear and convincing evidence,” we find that the trial court, as the trier of fact in
this case, did not clearly lose its way so as to create a manifest miscarriage of
justice to justify a new trial. Accordingly, we affirm the judgment of the trial
court.
JUDGMENT AFFIRMED.
Washington App. No. 18CA24 14
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Washington County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Abele, J. & Hess, J.: Concur in Judgment and Opinion.
For the Court,
BY: ______________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
