Andrews v. Passmore

[Cite as Andrews v. Passmore, 2015-Ohio-2681.]
STATE OF OHIO, BELMONT COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

JAMES ANDREWS, JR., et al. ) CASE NO. 12 BE 44
)
PLAINTIFFS-APPELLANTS )
)
VS. ) OPINION
)
THOMAS PASSMORE, et al. )
)
DEFENDANTS-APPELLEES )

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas of Belmont County, Ohio
Case No. 11 CV 478

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiffs-Appellants: Atty. Thomas A. Hampton
P.O. Box 310
160 East Main Street
Barnesville, Ohio 43713

For Defendants-Appellees: Atty. John R. Estadt
Hanlon, Estadt, McCormick,
& Schramm Co., LPA
46457 National Road West
St. Clairsville, Ohio 43950

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: June 29, 2015
[Cite as Andrews v. Passmore, 2015-Ohio-2681.]
WAITE, J.

{¶1} Appellants James K. and Vicky Andrews along with Brian and Vicki

Starr (collectively referred to as “Appellants”) appeal a November 26, 2012 Belmont

County Court of Common Pleas judgment entry in favor of Appellees Thomas and

Gail Passmore. The trial court found that Appellants used Appellees’ private road

with permission, thus Appellants could not show the existence of an easement by

prescription. On appeal, Appellants assert that their continued use of the road

throughout the years prevents Appellees from denying them access. Appellants

deny that they received a certified letter from Appellees which granted them

permission to use Appellees’ private road and argue that they have established

twenty-one years of adverse use. Despite Appellants’ arguments, the record

supports the trial court’s decision that Appellants’ use of the private road was

permissive. As the trial court did not err in finding permissive use, the judgment of

the trial court is affirmed.

Factual and Procedural History

{¶2} There are four Appellants in this case. The first couple, Brian and Vicki

Starr, own a 2.276-acre tract of land in Belmont County. They obtained their land in

2009 from Mrs. Starr’s parents, Mr. and Mrs. Briggs. Before the Briggs family, the

land was owned by the Urban family.

{¶3} A second couple, James and Vicky Andrews, own a 123.958-acre tract

of land, also in Belmont County. They initially obtained a one-half interest in their

property from the Urban family in 1993. They later received the remaining one-half
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interest in this property from Mr. and Mrs. Wilde, who are Mrs. Andrews’ parents, in

2008. Prior to the Wilde family, the land was also owned by the Urban family.

{¶4} Appellees own a 100.736-acre tract of land in Belmont County. The

land was previously owned by relatives who held the same last name. Prior to that,

the land was owned by Mr. Long and before him, the Huff family. A private roadway

abuts the relevant properties and allows access to and from a public roadway and

each of the properties. It is undisputed that this private roadway is owned by

Appellees.

{¶5} Appellants had been using the private road to reach their properties and

the public road. Prior to deeding his one-half interest in the land to Mr. and Mrs.

Andrews, Mr. Wilde requested and received permission from Appellants to use the

private road. In 2009, Appellees formally granted all of the Appellants permission to

use the road via certified letter. In 2011, Appellees closed and locked a pre-existing

gate to the road and provided keys to Appellants. After a dispute arose between the

parties regarding the gate, Appellees revoked permission to use their road via

certified letter.

{¶6} Appellants claimed that they had an easement to use the gate for one

of three reasons: (1) an easement by grant, (2) an easement by prescription, or (3)

an easement by necessity. On November 26, 2012, the trial court ruled that an

easement did not exist by means of any of the alleged easements. In this timely

appeal, Appellants contest only the trial court’s finding that they have no easement
 -3-

by prescription. Issues regarding easement by grant and by necessity have

apparently been waived.

Assignment of Error

The trial court erred in finding that plaintiffs did not prove the existence

of an easement by prescription. Specifically, the trial court erred in

finding that past uses of the subject roadway were permissive, based

upon evidence that the disputed roadway was used by persons who

were not owners of the dominant estate.

{¶7} Appellants claim that they never received a certified letter from

Appellees’ lawyer specifically permitting them use of the private road. Even if they

had received the letter, Appellants contend that twenty-one years of adverse use of

the private roadway had already been established. Appellants argue that even

though their predecessor Mr. Wilde asked for permission to use the roadway, he did

not own either Appellants’ property at the time, thus any permission given to him is

irrelevant. Similarly, Appellants argue that although several people testified that they

had been given permission through the years to use the road, none of them owned

any of the relevant properties.

{¶8} In response, Appellees state that their lawyer sent all the Appellants a

certified letter in 2009 which expressly granted them a revocable license to use the

private road. This license was later revoked in an October 12, 2011 certified letter.

Appellees argue that Mr. Wilde testified that he twice received permission to use the

private road. The first instance occurred in the 1970’s. As a result of the leases he
 -4-

held at that time, Mr. Wilde was given a license to use the road for purposes of

removing hay from what was then the Urban property, the property now owned by

Appellants. Mr. Wilde testified that he used this license from the 1970’s through the

1980’s. Then, in 2009, Mr. Wilde again asked for and received permission from

Appellees to use the road.

{¶9} To establish an easement by prescription, “a claimant must show, by

clear and convincing evidence, a use of the disputed property that is open, notorious,

adverse, and continuous for twenty-one years.” Coleman v. Penndel Co., 123 Ohio

App.3d 125, 130, 703 N.E.2d 821 (7th Dist.1997), citing J.F. Gioia, Inc. v. Cardinal

Am. Corp., 23 Ohio App.3d 33, 491 N.E.2d 325 (8th Dist.1985). All four elements

must be proved.

{¶10} All parties agree that this private road was used for years to access the

properties in question. They agree the use was open and notorious. The sole

argument concerns whether Appellants used the roadway without permission: that

is, adversely. Thus, our discussion will focus on this element. Hostile or adverse use

refers to any use of property that is inconsistent with the rights of the owner. Smith v.

Sebastiani, 7th Dist. No. 05 MA 57, 2006-Ohio-2189, ¶10, citing Vanasdal v. Brinker,

27 Ohio App.3d 298, 298, 500 N.E.2d 876 (9th Dist.1985).

{¶11} When the use is permissive, it is not adverse. Coleman, supra, at 130.

When permissive use has been granted, such use cannot ripen into adverse use.

Eckman v. Ramunno, 7th Dist. No. 09 MA 162, 2010-Ohio-4316, ¶47. However,

permissive use does not automatically extend to a subsequent possessor. Id. The
 -5-

owner of the affected property can extend the permission to the subsequent owner

by granting that possessor permission to use the land. Id.

{¶12} Once the occupier has set forth a prima facie case that the use may be

adverse, the landowner must then prove the use was permissive by a preponderance

of the evidence standard. Eckman, supra, at ¶25. If the landowner is able to prove

permissive use, the burden shifts back to the occupier who must ultimately prove the

use was adverse by clear and convincing evidence. Id. at ¶26, 28.

{¶13} Appellees have presented some evidence that their use of the private

roadway was adverse. Mrs. Andrews testified that disputes regarding the road arose

while Mr. Long lived on what is now Appellees’ property. According to her testimony,

Mr. Long would place electric cables on the road while his cows crossed the

roadway. On one occasion, Mr. Andrews removed the cables in order to access the

road and did not put the cables back in place, which prompted Mr. Long to call the

police. Mr. Andrews testified that Mr. Long also called the police regarding their

children speeding down the roadway. While not entirely clear that Appellants have

made a prima facie case, as Appellants have presented some evidence showing

adverse use of the roadway, we must next determine if Appellees can rebut this

evidence.

{¶14} A discussion of permissive use must begin with the current possessors,

as any permission granted to such possessor automatically ends a claim of adverse

possession. The record reflects that a 2009 certified letter from Appellees’ attorney

to Appellants was admitted into evidence. The letter granted Appellants a revocable
 -6-

license to use the road. While Appellants claim that they never received this certified

letter, other evidence showing permissive use appears in the record. Most recently,

in 2011, Appellees began closing and locking a gate which prevented access to the

roadway. Appellees provided both the Starrs and the Andrews with a key to unlock

the gate. None of the parties dispute this fact. After a disagreement arose about the

gate, Appellees sent Appellants another certified letter. This letter revoked the 2009

license to use the private roadway. Both the Starrs and Andrews admit receipt of this

letter.

{¶15} Prior to the locked gate, there were other instances of permissive use.

The record reflects that when Appellees were repairing damage to the road, Mr.

Andrews approached Appellees and offered to contribute to the cost of the repairs.

Appellees believed the road maintenance was their responsibility and declined to

accept the offer, which is consistent with permissive use. Mrs. Andrews and Mrs.

Starr clearly acknowledged in their testimony that Appellees locked the gate to the

private road in 2011 and gave them a key. Again, this is evidence of permissive use.

The record shows that even if the 2009 certified letter was not received by

Appellants, all parties’ behavior is consistent with permissive use.

{¶16} Accordingly, we agree with the trial court’s determination that

Appellants’ use of the road was permissive. They have not established their adverse

use of the road. In order to establish easement by prescription, Appellants must

show not only adverse use, but that such use continued for a period of at least

twenty-one years. In order to calculate this period, a possessor of land can “tack on”
 -7-

years of adverse use by a predecessor, so long as they were continuous and

continuously adverse. We find no error in the trial court’s determination that

Appellants’ use was not adverse. But even if we were to find that Appellees did not

meet their burden to show Appellants’ use was permissive, neither Appellant has

owned their property for the requisite number of years and neither Appellant is able to

tack on any adverse use by their predecessors.

{¶17} We turn first to an examination of Appellants Andrews’ property. The

Andrews’ immediate predecessors in interest were the Wilde family and the Urban

family. The Urban family owned all of the land involved in this case until 1993, when

the Urbans executed two deeds: one-half interest in the property to Mr. and Mrs.

Wilde and one-half interest in the property to Mr. and Mrs. Andrews. We note that

Mr. and Mrs. Wilde are Mrs. Andrews’ parents. In 2008, Mr. and Mrs. Wilde deeded

their one-half interest in the property to Mr. and Mrs. Andrews. So the record reflects

that the Wildes owned an undivided one-half interest in Appellant Andrews’ property

from 1993 to 2008. The Andrews did not become sole owners until 2008.

{¶18} Shortly after obtaining the remaining one-half interest in the property,

the Andrews family was given permission to use the private road through the 2009

certified letter. Assuming for purposes of argument that these Appellants did not

receive the letter, they have another evidentiary problem. The record contains

evidence of permissive use granted to Mr. Wilde.

{¶19} Mr. Wilde requested and was granted permission to use Appellees’

roadway in order to move Mrs. Andrews’ modular home onto the property. It appears
 -8-

that at the time, Mr. Wilde and the Andrews family each still owned an undivided one-

half interest in the relevant property. Regardless, the permission was obtained for

the benefit of the Andrews. Mr. Andrews similarly discussed with Appellees his use

of the private roadway to bring in the modular home. Although he does not state that

he received permission, he does state that he discussed whether the modular home

would fit on the private roadway with Appellees, who told him they did not think he

would have a problem. As Mr. Wilde expressly sought and was expressly given

permission to use the private road, the use was not adverse.

{¶20} Mr. Wilde also testified that before he was given any interest in this land

by the Urbans, he had requested and been given permission to use the road to

remove hay from the Urban property. This permission was granted as part of a

series of lease agreements with the Urbans and with Appellees’ predecessors.

Again, as Mr. Wilde had a half interest in this property until 2008 and his use was

permissive, the Andrews cannot use any of the years Wilde owned an interest in the

property in order to establish twenty-one years of adverse use.

{¶21} Turning to the Appellant Starr family, the same problem arises. The

Starrs obtained their property from the Briggs family, who are Mrs. Starr’s parents.

When the Briggs obtained the deed to the property, the deed included the following

language “[i]ncluding the use of a private roadway.” (Tr., p. 14.) The Briggs deeded

the property to the Starrs in 2009. The language found in the Briggs’ deed is not

included in the Starrs’ deed, nor does Appellees’ deed reflect such a grant to the

other property owners. However, the language does serve as some evidence that at
 -9-

least Mr. and Mrs. Briggs believed they had permission to use the road. Thus, the

Starrs similarly cannot tack the years their predecessors used the road to their own

for purposes of calculating the requisite twenty-one year period.

{¶22} As Appellees have produced clear and convincing evidence that

Appellants and their predecessors had permission to use the private road, Appellees

have met their burden of proving that Appellants’ use of the driveway was not

adverse. Appellants have not met their reciprocal burdens in this matter.

Conclusion

{¶23} The record demonstrates that Appellants’ use of the private road was

permissive. As the use was permissive, Appellants cannot meet the twenty-one

years of adverse use element necessary to claim an easement by prescription.

Appellants have abandoned on appeal all other arguments regarding easements.

The trial court did not err in holding that Appellants did not establish an easement by

prescription. The judgment of the trial court is affirmed in full.

Donofrio, J., concurs.

DeGenaro, J., concurs.