Violante v. Brady Lake

[Cite as Violante v. Brady Lake, 2012-Ohio-6220.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

THOMAS A. VIOLANTE, JR., et al., : OPINION

Plaintiffs-Appellants, :
CASE NO. 2012-P-0054
- vs - :

VILLAGE OF BRADY LAKE, et al., :

Defendants-Appellees. :

Civil Appeal from the Portage County Court of Common Pleas, Case No. 2009 CV
0368.

Judgment: Affirmed.

Patrick F. Rosati, 1280 SOM Center Road, Suite 259, Mayfield Heights, OH 44124
(For Plaintiffs-Appellants).

Errol A. Can and Joel A. Holt, Williams, Welser, Kratcoski & Can, L.L.C., 11 South
River Street, Ste. A., Kent, OH 44240 (For Appellees-Village of Brady Lake and Robert
T. Mansfield, Zoning Inspector).

Ellen M. and Mehmet Berisha, pro se, 6345 West Shore Drive, Kent, OH 44240
(Appellees).

DIANE V. GRENDELL, J.

{¶1} Plaintiffs-appellants, Thomas and Linda Violante, appeal from the Order

and Journal Entry of the Portage County Court of Common Pleas, adopting the

Magistrate’s Order dismissing the Violantes’ Complaint, ruling in favor of the defendants

on their counterclaims and issuing a permanent injunction against the Violantes. The

issues to be determined by this court are whether a deed is unambiguous when it
contains specific distances to define property boundaries, whether a natural landmark

must be used to define a boundary when one is not contained in the deed’s property

description, whether adverse possession applies when there is limited evidence about

prior owners’ use of the property, whether a property owner’s water rights are

improperly taken when the deed does not include a right to own the shoreline, and

whether a trial court errs in finding one expert witness to be more credible than another.

For the following reasons, we affirm the decision of the court below.

{¶2} On March 10, 2009, Thomas and Linda Violante filed a Complaint against

Ellen and Mehmet Berisha, Zoning Inspector Robert Mansfield, and the Village of Brady

Lake. In the Complaint, the Violantes asserted that the Berishas, their neighbors, had

dumped fill dirt into Brady Lake, as well as on the Violantes’ real property and shoreline,

and also stored personal property on the Violantes’ real property. They further argued

that a dock was built on or near the area filled with dirt, which interfered with the

Violantes’ use of their property. The Village of Brady Lake “did little to resolve the

problem.” The Complaint stated that the Village had the property in the area surveyed

and ordered the Violantes, through a letter, to remove personal property from a portion

of the land that the Village asserted it owned.

{¶3} Three claims were raised in the Complaint. In Count One, the Violantes

asserted a Trespass to Land claim, arguing that the Berishas entered their land without

permission and made alterations. In Count Two, the Violantes asserted a Quiet Title

claim, requesting a declaration that the title to the disputed real property was the

Violantes’ and that the defendants be enjoined from asserting any interest in the

property. Count Three was an Unconstitutional Taking claim, in which the Violantes

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asserted that the Village of Brady Lake and Mansfield, in writing a letter stating that the

land belonged to the Village and in allowing the Berishas to “create additional land” by

dumping fill dirt, caused the Violantes to lose shoreline. The Violantes asked for

compensatory damages, a permanent injunction, and a declaratory judgment in their

favor. On the same date, the Violantes filed a Motion for Temporary Restraining Order,

Preliminary Injunction, Permanent Injunction.

{¶4} Defendants, Village of Brady Lake and Robert Mansfield, Zoning Inspector

for the Village, filed an Answer and Counterclaim on April 15, 2009. They raised a

Counterclaim for Quiet Title, Trespass, and Injunctive Relief, in which they argued that

the Violantes had asserted dominion and control over the shoreline adjacent to their

property, owned by the Village, and failed to remove personal property from that area.

{¶5} The Berishas filed an Answer and Counterclaim on April 16, 2009,

asserting that the Violantes had placed personal property on the real property owned by

the Village, which blocked the Berishas’ use of their dock, and requesting a permanent

injunction to prohibit this activity.

{¶6} On August 4, 2009, a Magistrate’s Order was issued, denying the

Violantes’ request for a temporary restraining order and a preliminary injunction.

{¶7} Following a Motion filed by the Berishas, alleging that the Violantes had

interfered with their dock, a September 15, 2009 Magistrate Order was issued, ordering

that all parties be restrained from trespassing on the others’ realty and altering the

personal property of the other parties.

{¶8} A trial was held before the magistrate in this matter on September 14-15,

2010. The following testimony was presented.

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 {¶9} Gary Schuller, a licensed surveyor, testified for the Violantes. He

reviewed various materials related to the boundary dispute. He explained that both the

Violantes’ and the Berishas’ properties previously belonged to the Merrills, who were

the subdividers of the land. A 1934 deed showed that the Merrills owned the land

“along the margin of Lake Brady,” which he explained was the shoreline, or where the

water meets the land. The next deed in succession had the same language regarding

the property boundaries. A ten-year lease from 1940 to 1950 also leased the property

to the shoreline, with a reservation of a footpath for the Merrills, as did another lease

that commenced in 1948.

{¶10} In 1958, the Hissoms leased the property with the same boundaries. The

land was subdivided beginning in 1965, when the Berishas’ and the Violantes’ property

was divided. In 1966, the Hissoms purchased the property that later became the

Violantes’ property. The description in that deed was prepared by James Bowen and

did not include language stating that the property boundary extended to the shoreline.

The Hissoms’ property was subsequently sold to the Lemons, also excluding the

shoreline language. This property was finally sold from the Lemons to the Violantes in

2004, again excluding the shoreline language. Schuller explained that the Berishas’

deed, however, includes a specific statement that the property goes to the shoreline.

He explained that the Violantes’ deed “directly makes a call for the Bowen survey” and

explained that when a survey is referenced in a description of property in a deed, “it

becomes part of that description.”

{¶11} The Violantes’ deed contained the following language as the real estate

description:

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 {¶12} Situated in the County of Portage, Township of Franklin, and State of

Ohio: And being a portion of Lot #35 in Franklin Township and

bounded and described as follows: Beginning at a point in the

centerline of T.H. 152 (Merrill Road) at its intersection with the

centerline of West Shore Drive (T.H. 526); thence along the

established centerline of West Shore Drive, the following courses and

distances; North 45 deg. 35’ 33’’ East 413.00 feet, North 22 deg. 23’

00’’ East 276.74 feet, North 11 deg. 59’ 00’’ West 355.37 feet, to a

point of curvature and the true place of beginning of the land herein

described; thence along the arc of the curve to the right having a

radius of 318.31 feet * * * to a point; thence North 88 deg. 41’ East a

distance of 61.63 feet to an iron pipe and passing over the iron pipe at

15.22 feet from the road center; thence North 82 deg. 26’ 0’’ East a

distance of 17.84 feet to an iron pipe; thence South 52 deg. 31’ 16’’

East a distance of 72.99 feet to an iron pipe; thence South 53 deg. 00’

West a distance of 139.23 feet to a point in the centerline of said West

Shore Drive and passing over an iron pipe at 16.55 feet from the road

center; thence North 11 deg. 59’’ West along said centerline a distance

of 107.01 feet to the true place of beginning and containing 0.205

acres of land, more or less, as surveyed in June, 1966 by James W.

Bowen * * *.

{¶13} Schuller explained that the Violantes’ deed called for “iron pipes alone,”

but included a survey plat showing the iron pipes at the shoreline. He testified that, in

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his opinion, the boundary line for the Violantes’ property under the deed “is the

shoreline.” He explained that the deed itself does not mention the shoreline but he

believed the plat of the survey does.

{¶14} Robert Thomas Mansfield, the Zoning Inspector for the Village of Brady

Lake, explained that at some point, he was made aware that the Berishas were

dumping fill dirt into Brady Lake, but he believed no action to prevent this was required.

On January 27, 2009, he sent a letter to the Violantes, stating that certain portions of

their property belonged to the Village of Brady Lake and asking them to remove certain

personal property from that area.

{¶15} The 1966 survey plat of the Violantes’ property, created by James Bowen,

was presented and shows directional measurements on each side of the property

identical to those in the deed, as well as several markings labeled “I.P.,” which stands

for “iron pipes,” which were used to mark the property boundaries. It also has several

sketched, rounded lines near these markings and the area within these is labeled

“Brady Lake.”

{¶16} Thomas Violante testified that he had seen the Berishas dump fill dirt in

the water near their home and, in 2007, Mehmet Berisha started dumping fill dirt on his

shoreline. When he purchased the property, he believed it was “waterfront property,”

which included access to the shoreline and riparian rights. He believed he was no

longer allowed to access the shoreline or the water due to the Village’s claim to the

property.

{¶17} Mehmet Berisha testified that he did dump dirt into the area along Lake

Brady, but only on his portion of the property, not on the Violantes’.

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 {¶18} The deposition of Don Trocchio, a licensed surveyor, was also presented.

Regarding the Violantes’ deed, he explained that it defined the property boundaries with

reference to metes and bounds and that “iron pipes” were used as monuments to mark

the property boundaries. He noted that there was a sketch of the shoreline on the 1966

Bowen survey plat but that he did not believe it set the boundaries of the Violantes’

property. He noted that surveys sometimes mark natural features, such as a shoreline,

without identifying them as property lines, “just to give more information onto the map.”

His opinion was that the shoreline was not the property line, based on the legal

description of the property. He did not believe any of the fill dirt added by the Berishas

was placed on the Violantes’ property, but instead was on property that belonged to the

Village. When he went to the property, he found stakes that appeared to be consistent

with Bowen’s surveys. Trocchio also testified that the legal description contained in the

Violantes’ deed was consistent with the 1966 Bowen survey of their property as it

relates to the area that faces or adjoins the lake.

{¶19} On September 26, 2011, a Magistrate’s Order was issued. The

magistrate found that the Berishas’ deed referenced the shoreline of Brady Lake as the

property’s eastern boundary, while the Violantes’ deed did not reference the shoreline

as its eastern boundary line. It was found that the Village of Brady Lake took ownership

of Brady Lake in 1983. The magistrate further found that none of the deeds in the chain

of title to the Violantes’ property following the 1966 Bowen survey referenced the lake or

its shoreline as a boundary line.

{¶20} The magistrate also found that the Berishas began adding “large amounts

of fill to both their property and the property of Brady Lake” in 2005. The magistrate

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found that Schuller testified that the Violantes’ property should extend to the shoreline of

Brady Lake, while Trocchio stated that the property boundary did not extend to the

shoreline.

{¶21} In the Conclusions of Law, the magistrate found that the Violantes’ deed

was clear and unambiguous, that the description in the deed was made by metes and

bounds with no reference to the lake, that the property extends only to the

measurements contained in the deed, and that the property’s boundary did not extend

to the shoreline. It was found that any fill dirt added by the Berishas which extends

beyond the shoreline was placed on the property of the Village, not on the Violantes’

property. It was also held that there was no unconstitutional taking of the Violantes’

property. The magistrate held that the Violantes failed to prove their claims and

dismissed their Complaint. He further ruled in favor of the Village on its counterclaim

and found that the Village owned the shoreline of Brady Lake. He found that the

Berishas had proved their claim for damages and they were awarded a sum of $10.00

and costs. The Order permanently enjoined the Violantes from blocking the defendants’

access to their realty or rights to use a dock on Brady Lake.

{¶22} On October 31, 2011, the Violantes filed Objections to the Magistrate’s

Decision, in which they raised essentially the same arguments as they raise in their

assignments of error before this court. These objections were later supplemented.

{¶23} On May 2, 2012, the trial court issued an Order and Journal Entry. In this

Entry, the court overruled the objections to the Magistrate’s Order, stated that it had

conducted an independent review of the matter, and adopted the Magistrate’s Order.

{¶24} The Violantes timely appeal and raise the following assignments of error:

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 {¶25} “[1.] The trial court erred by not giving due consideration to the facts on

Bowen’s recorded 1966 survey, notwithstanding the clear call for the survey found

within the four corners of the deed.

{¶26} “[2.] The trial court erred by failing to recognize that there was a latent

ambiguity in the Violante[s’] deed.

{¶27} “[3.] The trial court erred by giving undue consideration to the unreliable

testimony of Villages’[] expert.

{¶28} “[4.] The trial court erred in wrongfully applying the principles of Lembeck

v. Nye.

{¶29} “[5.] The trial court erred in considering a line defined by artificial

monuments as having [a] greater value than a natural boundary, such as a lakeshore,

when the artificial monument and natural boundary are in conflict.

{¶30} “[6.] The trial court erred in not considering occupation as an indication of

intent and as evidence of a title right.

{¶31} “[7.] The trial court erred by extinguishing Plaintiff[s’] Littoral/Riparian

Rights and Property Rights in finding that they were not taken and in upholding the

decision to give the award of [] their lakeshore property to the Village.”

{¶32} “On appeal, a trial court’s adoption of a magistrate’s decision will not be

overruled unless the trial court abused its discretion in adopting the decision.” Harris v.

Transp. Outlet, 11th Dist. No. 2007-L-188, 2008-Ohio-2917, ¶ 12, citing Brown v.

Gabram, 11th Dist. No. 2004-G-2605, 2005-Ohio-6416, ¶ 11; Sloan v. Shafer

Commercial & Indus. Servs., Inc., 11th Dist. No. 2008-T-0013, 2008-Ohio-4765, ¶ 10.

Although the Violantes argue that this standard generally applies in domestic relations

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cases, we note that the foregoing cases were civil in nature and not related to domestic

relations. Further, to the extent that they assert this standard is not applicable to

questions of law, the appropriate standard will be applied within the individual

assignments of error.

{¶33} The first and fourth assignments of error will be considered jointly, since

they both relate to the Violantes’ assertion that their property deed was ambiguous and

that the court should find that they owned land outside of the deed’s property boundary

description.

{¶34} In their first assignment of error, the Violantes argue that the lower court

erred in not giving due consideration to the Bowen 1966 survey when determining that

their land did not extend to the shoreline. They argue that pursuant to the survey,

incorporated into the deed by reference, they owned their property “to the shoreline.”

They also assert that the deed was ambiguous.

{¶35} “The construction of written contracts and instruments, including deeds, is

a matter of law. * * * Questions of law are reviewed de novo.” (Citations omitted.)

Long Beach Assn., Inc. v. Jones, 82 Ohio St.3d 574, 576, 697 N.E.2d 208 (1998).

“Under a de novo review, an appellate court may interpret the language of the contract

substituting its interpretation for that of the trial court. See Graham v. Drydock Coal Co.

(1996), 76 Ohio St.3d 311, 313, * * * 667 N.E.2d 949. Only if a term of the contract is

determined to be ambiguous will the matter be labeled as a question of fact. Inland

Refuse Transfer Co. v. Browning-Ferris Industries of Ohio, Inc. (1984), 15 Ohio St.3d

321, 322.” (Citation omitted.) Wuenschel v. Northwood Energy Corp., 11th Dist. No.

2008-A-0039, 2008-Ohio-6879, ¶ 37.

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 {¶36} “Where terms in an existing contract [or deed] are clear and unambiguous,

this court cannot in effect create a new contract by finding an intent not expressed in the

clear language employed by the parties.” Long Beach Assn. at 577, citing Alexander v.

Buckeye Pipe Line Co., 53 Ohio St.2d 241, 246, 374 N.E.2d 146 (1978); Parker v.

Parker, 4th Dist. No. 99CA845, 2000 Ohio App. LEXIS 4697, *8 (Sept. 28, 2000) (“[w]e

may not interpret the parties’ intent in a manner contrary to the clear, unambiguous

language of the deed”). “Courts, in construing deeds and like written instruments, must

be guided by the intention of the parties to them, and this must be determined by the

language used in the instrument, the question being not what the parties meant to say,

but the meaning of what they did say, as courts can not put words into an instrument

which the parties themselves failed to do.” Larwill v. Farrelly, 8 Ohio App. 356, 360 (9th

Dist.1918).

{¶37} A court may consider extrinsic evidence if the terms of the contract are

ambiguous or unclear. Sugarhill Ltd. v. Brezo, 11th Dist. No. 2004-G-2579, 2005-Ohio-

1889, ¶ 35. “Contractual terms are ambiguous if their meaning cannot be deciphered

from reading the entire instrument or if the terms are reasonably susceptible to more

than one interpretation.” Look v. H&M Custom Home Builders Co., Inc., 11th Dist. No.

2011-G-3036, 2012-Ohio-3017, ¶ 18, citing Aultman Hospital Assn. v. Community Mut.

Ins. Co., 46 Ohio St.3d 51, 54, 544 N.E.2d 920 (1989).

{¶38} In the present matter, the lower court determined that the Violantes’ deed

was unambiguous. It determined that since the deed did not state that the property

extended to the shoreline, and only stated the measurements of the boundaries to

11
which the property extended, there was no need to consider external evidence as to

whether the shoreline was a boundary.

{¶39} The Violantes assert that the deed cites to the separate 1966 Bowen

survey plat, which they argue shows that the boundary actually extends to the shoreline

and that the trial court did not consider this. Pursuant to Sellman v. Schaaf, 26 Ohio

App.2d 35, 269 N.E.2d 60 (3rd Dist.1971), “[a] reference in a deed to a plat incorporates

the plat and constitutes an adoption of the survey as a part of the description. * * * The

survey as actually made controls the representation of it on the plat.” Id. at 41.

{¶40} A review of the deed shows that it states specific measurements for each

boundary of the Violantes’ property, which extended to certain iron pipe markers. It

makes no statement regarding the shoreline as a boundary. There is nothing on the

face of the deed that appears ambiguous or open to a different interpretation, since the

measurements account for all boundaries of the property. The measurements

themselves do not leave open a portion of the property or fail to set a boundary on each

side.

{¶41} Further, a review of the Magistrate’s Order does not show that the 1966

Bowen survey was not considered as part of the description of the property in

interpreting the deed and determining that it was unambiguous. In the present matter,

the deed stated the metes and bounds description and added, “as surveyed in June,

1966 by James W. Bowen.” A review of the survey shows a waterline sketched, but

does not appear to make any clear statement that the boundary was the shoreline or

that the property’s boundary would move if the shoreline moved. As was noted by

Trocchio in his testimony, a shoreline is frequently sketched on a survey plat without

12
specific intent by the surveyor for the shoreline to be considered a legal property

boundary. The survey showed the iron pipe and directional measurements extending to

these pipes, just as was described in the property description contained in the deed.

The survey does not appear to contradict the explicit description in the deed regarding

the property measurements. That description does not make any statement that the

survey plat contains additional information, but describes the specific boundaries “as

surveyed.” Based on a review of the deed and the survey plat, we cannot find that the

trial court erred in concluding that the deed was unambiguous and that the property line

did not extend to the shoreline.

{¶42} In their fourth assignment of error, the Violantes argue that the trial court

erred by applying Lembeck v. Nye, 47 Ohio St. 336, 24 N.E. 686 (1890), since, inter

alia, the body of water being considered as a boundary in that case was a non-

navigable body of water.

{¶43} The Magistrate’s Order in the present matter cited Lembeck for the

proposition that when a description in a deed is unambiguous, the description is made

by “metes and bounds” and no reference is included to a natural boundary such as a

lake, only the land included in the deed language passes to the grantee. We note that

the trial court did not cite Lembeck for any other proposition than the one outlined

above. This proposition is not exclusive to the facts of the Lembeck case, and has been

cited in various other cases. “When lands are granted by metes and bounds, all the

area within those bounds, and no more, passes.” Lockwood v. Wildman, 13 Ohio 430

(1844), paragraph four of the syllabus; Alexander v. Reagan, 11th Dist. No. 91-P-2280,

1992 Ohio App. LEXIS 461, *6 (Feb. 7, 1992). Regardless of whether Lembeck is

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distinguishable, various cases allowed the court to determine that the unambiguous

language of the deed required it to hold that the only land owned by the Violantes was

that specifically stated by the measurements in the deed.

{¶44} Further, this proposition was simply provided as support for the conclusion

that the deed’s description passed only the land explicitly stated in the deed description.

Regardless of the applicability of the law in Lembeck, the trial court could have

concluded that the description in the deed was unambiguous and that it did not include

a description of the property to the shoreline.

{¶45} The first and fourth assignments of error are without merit.

{¶46} In their second assignment of error, the Violantes argue that there was a

latent ambiguity in the deed, such that the trial court was required to consider other

evidence that the shoreline was intended to be included in the deed to the Violantes,

such as prior deeds and leases that defined the property’s boundaries as extending to

the “shoreline.”

{¶47} As discussed above, the construction and interpretation of a contract is

reviewed de novo. Long Beach Assn., 82 Ohio St.3d at 576, 697 N.E.2d 208.

{¶48} “A latent ambiguity is a defect which does not appear on the face of

language used or an instrument being considered. It arises when language is clear and

intelligible and suggests but a single meaning, but some intrinsic fact or some

extraneous evidence creates a necessity for interpretation or a choice between two or

more possible meanings, as where the words apply equally well to two or more different

subjects or things.” Conkle v. Conkle, 31 Ohio App.2d 44, 51, 285 N.E.2d 883 (5th

Dist.1972).

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 {¶49} Latent ambiguities are frequently considered as they relate to wills, in

which the language may be clear but can apply to different people based on extrinsic

evidence. In Conkle, a gift was given to the testator’s “grandchildren” but the matter

was complicated by circumstances surrounding adopted children. Id. at 52. In such

cases, the language contained in the document is unambiguous but circumstances

outside of the document create an ambiguity. This is not the case in the present matter.

{¶50} The Violantes cite a few arguments supporting their claim that a latent

ambiguity exists. They assert that prior deeds, including the Merrills’ deed, stated that

the property extended to the shoreline. However, they fail to assert how this creates an

ambiguity in their deed. That prior owners may have owned a larger portion of the

property does not mean that the Violantes were intended to own or purchase the

shoreline.

{¶51} The Violantes also argue that the Berishas’ deed sets their property

boundary “to the shoreline.” However, the fact that the Berishas have different property

boundaries than their neighbors, the Violantes, does not create an ambiguity in the

Violantes’ deed, especially given that the disputed shoreline boundary was found be to

owned by the Village, not by the Berishas.

{¶52} Based on the foregoing, we find that a latent ambiguity was not shown to

exist by the Violantes and the trial court did not err by finding the deed to be

unambiguous. See Boulger v. Evans, 54 Ohio St.2d 371, 379, 377 N.E.2d 753 (1978)

(extrinsic evidence could not be introduced as an attempt to “rewrite the will” when the

language in the will was stated “clearly and concisely”).

{¶53} The second assignment of error is without merit.

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 {¶54} In their third assignment of error, the Violantes argue that the trial court

gave “undue consideration” to the testimony of the Village’s expert witness, Don

Trocchio. They argue that he did not have sufficient information and resources to reach

a proper conclusion as to the property boundaries in this case.

{¶55} As an initial matter, we note that the court below did not make any

statement that it relied on the testimony of either witness to determine that the deed was

unambiguous. As has been noted, generally, since the construction of deeds is a

matter of law, expert testimony is outside evidence that is not admissible to determine

whether a deed is unambiguous. Am. Energy Corp. v. Datkuliak, 174 Ohio App.3d 398,

2007-Ohio-7199, 882 N.E.2d 463, ¶ 93-94 (7th Dist.).

{¶56} However, to the extent that the court used the experts’ testimony to make

a determination regarding certain matters, such as whether the fill dirt was dumped on

the Violantes’ property or the Villages’, this argument will be considered. It appears the

Violantes are raising a manifest weight argument regarding the trial court’s acceptance

of the testimony offered at trial. “The [appellate] court, reviewing the entire record,

weighs the evidence and all reasonable inferences, considers the credibility of the

witnesses and determines whether in resolving conflicts in the evidence, the [trier of

fact] clearly lost its way and created such a manifest miscarriage of justice that the

[verdict] must be reversed and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d

380, 387, 678 N.E.2d 541 (1997). “In order to determine whether the trial court abused

its discretion in adopting the magistrate’s decision, [the appellate court should] review

and weigh the testimony introduced at the hearing and consider the credibility of the

record.” Harris, 2008-Ohio-2917, at ¶ 33.

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 {¶57} To the extent that the trial court considered such testimony to reach

conclusions about whether the fill dirt was dumped on the Violantes’ property pursuant

to the boundaries defined by the deed, we cannot find that the trial court erred in

weighing the testimony presented by both experts. The Violantes are essentially

asserting that their expert, Gary Schuller’s, testimony was correct and more credible

than the appellees’ expert, Don Trocchio. It is for the finder of fact, however, to make

decisions regarding the credibility and reliability of a witness’ testimony and findings of

the trial court are given deference because “the trial judge is best able to view the

witnesses and observe their demeanor, gestures and voice inflections, and use these

observations in weighing the credibility of the proffered testimony.” Seasons Coal Co.,

Inc. v Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984); Jones v. Hunter, 11th

Dist. No. 2008-P-0015, 2009-Ohio-917, ¶ 23 (“when assessing the credibility of

witnesses, ‘[t]he choice between credible witnesses and their conflicting testimony rests

solely with the finder of fact and an appellate court may not substitute its own judgment

for that of the finder of fact’”) (citations omitted). Both experts testified regarding their

education, licensure, and qualifications as surveyors. Both had performed surveys in

the past. The fact that the Violantes simply disagree with the conclusion reached by

Trocchio does not render his testimony or the trial court’s reliance on such testimony

improper.

{¶58} Although the Violantes assert that Trocchio did not comply with the

standards required for a surveyor to determine a boundary, pursuant to Ohio Adm.

Code. 4733-37-02, they do not assert how he failed to do so. Pursuant to Ohio Adm.

Code 4733-37-01, rules under section 4733-37 are “intended to be the basis for all

17
surveys relating to the establishment or retracement of property boundaries in the state

of Ohio.” Ohio Adm. Code 4733-37-02 provides that a surveyor should consult various

sources of information, including surveys, when a deed description of a property and an

adjoining property do not resolve line disputes.

{¶59} In the present matter, Trocchio consulted multiple deeds, documents, and

surveys and performed a physical investigation of the property and existing monuments,

including the shoreline and the iron pipes. All of this information would be consistent

with that required to be considered under the Administrative Code. Regarding the

argument that Trocchio did not have sufficient information before him to make

determinations regarding the Violantes’ property boundaries, as noted in the previous

assignment of error, there was no need to consider all of the deeds from prior renters or

owners of the Violantes’ property, as the issue was what was conveyed to them when

they purchased the property and no such information was considered by the court in

determining that the deed was unambiguous. Based on the foregoing, there was

evidence in the record to support a finding by the trial court that Trocchio’s testimony

was credible and could be accepted over the conflicting testimony of Schuller, to the

extent that such testimony was considered by the trial court.

{¶60} Within this assignment of error, the Violantes cite R.C. 5302.04 for the

proposition that a conveyance of real estate should include a conveyance of all rights

belonging to the granted estate. They provide limited argumentation as to this statute

and do not discuss how this relates to the credibility of the witnesses issue raised under

this assignment of error. Further, we note that no analysis or law was cited explaining

how the application of this statute is triggered when the conclusion is reached, as it has

18
been by both this court and the trial court, that the deed was unambiguous. As

discussed above, if a deed unambiguously conveys property, there is no need to look to

outside sources to determine the boundaries of the land to be conveyed.

{¶61} The third assignment of error is without merit.

{¶62} In their fifth assignment of error, the Violantes argue that the trial court

erred in determining that an artificially defined boundary, defined by the iron pipes and

measurements contained in the deed, instead of the natural shoreline, was the

boundary of the Violantes’ property. They assert that natural monuments are of greater

value than artificial monuments in determining property boundaries.

{¶63} In Broadsword v. Kauer, 161 Ohio St. 524, 120 N.E.2d 111 (1954), cited

by the Violantes, the Ohio Supreme Court held that, “[g]enerally, in determining

boundaries, natural and permanent monuments are the most satisfactory evidence and

control all other means of description, in the absence of which the following calls are

resorted to, and generally in the order stated: First, natural boundaries; second, artificial

marks; third, adjacent boundaries; fourth, course and distance * * *.” Id. at 534.

{¶64} In the present matter, the court below evaluated the Violantes’ deed and

whether it defined their property as extending to the shoreline. The court determined

that, under the deed, the property’s boundary did not and was instead defined by the

metes and bounds description contained in the deed, marked by iron pipes. This did

not involve a determination by the trial court as to whether a shoreline boundary is

preferable but, instead, whether the shoreline boundary was ever owned by the

Violantes, pursuant to their deed. Since the deed in this case was unambiguous, there

was no need to consider which boundaries are generally more favored. See Haynes v.

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Markel, 4th Dist. No. 01CA2587, 2001 Ohio App. LEXIS 5599, *6-7 (Dec. 10, 2001)

(applying the boundaries as stated in Broadsword when the deed was found to be

ambiguous). In the present matter, the court could not consider which type of

monument is more favored in determining what was explicitly conveyed in the language

of the deed. To do so would be to nullify the language contained in the deed, contrary

to the requirement that the court follow the language used by the parties in an

unambiguous deed. Alexander, 53 Ohio St.2d at 246, 374 N.E.2d 146.

{¶65} Rader v. Skeene, 12th Dist. No. CA2008-01-001, 2008-Ohio-5666, also

cited by the Violantes as requiring the court to set the boundary at the shoreline, is

distinguishable because, in that case, the boundary issue was not related to the deed

language, but to a separate dispute. Id. at ¶ 26-31. In the present matter, however,

there was a clear and unambiguous boundary set in the deed.

{¶66} The fifth assignment of error is without merit.

{¶67} In their sixth assignment of error, the Violantes argue that even if their

property did not extend to the shoreline under the deed, they obtained the right to use

the land through adverse possession. They assert that they met the elements of

adverse possession, since the prior owners had occupied the property to the shoreline,

either through deeds allowing the use of such property, or through physical use of the

shoreline.

{¶68} “Typically, appeals on adverse possession claims challenge the manifest

weight of the evidence supporting the various elements of adverse possession.”

Pottmeyer v. Douglas, 4th Dist. No. 10CA7, 2010-Ohio-5293, ¶ 21. Under the civil

manifest weight of the evidence standard, “[j]udgments supported by some competent,

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credible evidence going to all the essential elements of the case will not be reversed by

a reviewing court as being against the manifest weight of the evidence.” C.E. Morris

Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus.

{¶69} “To acquire title by adverse possession, the party claiming title must show

exclusive possession and open, notorious, continuous, and adverse use for a period of

twenty-one years. * * * 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, 692

N.E.2d 1009 (1998). “[O]ne who seeks title by adverse possession has the burden to

prove such by clear and convincing evidence.” King v. Hazen, 11th Dist. No. 2005-A-

0031, 2006-Ohio-4823, ¶ 20.

{¶70} A review of the record shows that the Violantes failed to prove the

elements of adverse possession by clear and convincing evidence. The only evidence

related to the open and notorious use of the shoreline property was the testimony of

Thomas Violante that he had rebuilt a preexisting, “old” retaining wall along the

shoreline of his property. However, even if this were viewed as sufficient evidence of

adverse possession by the Violantes, they did not possess the shoreline for the required

21 years, since they did not purchase the property until 2004. To succeed on this claim,

they would also have to prove tacking.

{¶71} “Where there is privity between successive occupants * * * holding [land]

continuously and adversely, such successive periods amounting to over 21 years, the

occupations may be united or tacked to each other to make up the time of adverse

holding.” Zipf v. Dalgarn, 114 Ohio St. 291, 151 N.E. 174 (1926), paragraph two of the

syllabus. In the present matter, there was no evidence regarding the continuous or

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open elements as they related to specific use of the shoreline prior to the Violantes’

ownership. The only evidence was the testimony of Thomas that the retaining wall on

his shoreline was “old.” However, there was no testimony as to how long the retaining

wall had been on the property, that the prior owners had the wall there during a certain

period of years, or as to the exact location of the wall on the property.

{¶72} The Violantes also argue that the owners or lessees of the property prior

to the 1966 survey stated that the property’s boundaries extended to the shoreline.

However, such usage of the property cannot be considered adverse, since there was no

evidence that the prior owners did not properly own the shoreline at that time. Based on

the foregoing, the Violantes failed to prove the elements of adverse possession.

{¶73} The sixth assignment of error is without merit.

{¶74} In their seventh assignment of error, the Violantes argue that the trial

court’s decision resulted in an “unconstitutional taking by eminent domain” of their land

and water rights without due process, given that the previous owners of their property

had access to Brady Lake, based on their proximity to the shoreline. They assert that

their rights as owners of property abutting a waterway cannot be taken away by the

court under the circumstances of the present case.

{¶75} “Littoral rights are those ownership rights of a property owner whose land

abuts a lake to the use and enjoyment of the waters of and the land underlying the

lake.” Lemley v. Stevenson, 104 Ohio App.3d 126, 133, 661 N.E.2d 237 (6th Dist.1995).

Similarly, it has been found that an owner of land abutting a river owns the

accompanying riparian rights unless they are specifically procured by another person.

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Mansfield v. Balliett, 65 Ohio St. 451, 466-468, 63 N.E. 86 (1902); Portage Cty. Bd. of

Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d 478, ¶ 56.

{¶76} Regarding eminent domain, which the Violantes assert is applicable in this

case, it is defined as “[t]he inherent power of a governmental entity to take privately

owned property, esp[ecially] land, and convert it to public use, subject to reasonable

compensation for the taking.” Black’s Law Dictionary 562 (8th Ed.1999).

{¶77} In the present matter, there are several reasons why the trial court’s ruling

does not constitute an unconstitutional taking of the Violantes’ asserted water rights

through eminent domain. First, the court did not take the Violantes’ property and

convert it into public property, as occurs under the definition of eminent domain. The

court instead simply held that the Violantes did not own certain property, i.e, the

shoreline, under their deed. There was no property for the court to take, since the

Violantes never owned such property under their deed. While the trial court may have

reached the conclusion that the Village owned the property the Violantes believed had

belonged to them, this does not amount to a taking under these circumstances.

{¶78} In addition, the assertion that the Violantes were deprived of water rights

based on the court’s determination is also incorrect because the trial court did not take

away any existing water rights. Under the trial court’s interpretation, as well as this

court’s interpretation, the Violantes never had such rights to take away. See State ex

rel. Gilbert v. Cincinnati, 125 Ohio St.3d 385, 2010-Ohio-1473, 928 N.E.2d 706, ¶ 19 (in

order to establish a claim for a taking, the appellants must establish that they possess a

property interest to be protected). Their land does not extend to the shoreline, as

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discussed above, and cannot be found to abut water. Since their land does not abut

water, as required in the foregoing cases, they did not have the asserted water rights.

{¶79} The seventh assignment of error is without merit.

{¶80} For the foregoing reasons, the Order and Journal Entry of the Portage

County Court of Common Pleas, adopting the Magistrate’s Order dismissing the

Violantes’ Complaint, ruling in favor of the defendants on their counterclaims and

issuing a permanent injunction against the Violantes, is affirmed. Costs to be taxed

against appellant.

MARY JANE TRAPP, J.,

THOMAS R. WRIGHT, J.,

concur.

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