{¶ 30} I respectfully dissent from the majority because I would find that the adversity element for adverse possession requires a specific intent to use another's property as one's own and adverse to the true owner's rights.
{¶ 31} Initially, I would address the issue of the applicable standard of review. Normally, when this court reviews a trial court's determination that the elements of adverse possession have been met, it "will not reverse the judgment of the trial court as being against the manifest weight of the evidence if the judgment is based upon some competent, credible evidence that speaks to all of the material elements of the case." Gatehouse v. Geiser, 9th Dist. No. 05CA0037,2006-Ohio-766, 2006 WL 401276, at ¶ 10, quoting Morrisv. Andros, 158 Ohio App.3d 396, 2004-Ohio-4446,815 N.E.2d 1147, at ¶ 18. See, also, Heiney v. Godwin, 9th Dist. No. 22552, 2005-Ohio-5659, 2005 WL 2758487, at ¶ 13. However, when an appellant challenges a trial court's legal conclusions, this court affords them no deference and reviews them de novo. Morris at ¶ 18.
{¶ 32} Specifically, Bridge has made the argument that intent to claim title is an essential element of adversity pursuant to Grace v. Koch (1998),81 Ohio St.3d 577, 692 N.E.2d 1009, and that the trial court erred as a matter of law when it found that Evanich adversely used his property despite evidence that Evanich had absolutely no intent to claim title to the disputed tract. Essentially, Bridge's argument is that the trial court failed to correctly apply the law, to wit, the intent test for adversity; and such an argument clearly falls within the realm of a legal challenge. Accordingly, I would apply the de novo standard of review.Morris, 158 Ohio App.3d 396, 2004-Ohio-4446,815 N.E.2d 1147, at ¶ 18.
{¶ 33} "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." Grace,81 Ohio St.3d at 579, 692 N.E.2d 1009. In Grace, the Supreme Court added that for possession to be adverse "`there must have been an intention on the part of the person in possession to claimtitle, 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.'" (Emphasis sic.) Grace, 81 Ohio St.3d at 581,692 N.E.2d 1009, quoting Lane v. Kennedy (1861),13 Ohio St. 42, 47.
{¶ 34} Adverse possession is a disfavored doctrine in Ohio. See Grace, 81 Ohio St.3d at 580,692 N.E.2d 1009; Morris, 158 Ohio App.3d 396,2004-Ohio-4446, 815 N.E.2d 1147, at ¶ 12. As such, the doctrine's elements are stringent. Id. *Page 662 Therefore, I would opt to interpret Grace's intent requirement strictly and conclude that in order for possession to be adverse, the party in possession must have the knowing intent to use another's property as his own, adverse to the true owner's rights. Anything short of such intent is insufficient to establish the adversity required to justify "a legal title holder forfeiting ownership to an adverse holder without compensation." Id., citing Grace, 81 Ohio St.3d at 580,692 N.E.2d 1009.
{¶ 35} The record in the present matter indicates a lack of any intent at all on the part of Evanich. In his deposition, Evanich testified that he erected the planter and planted the foliage on what he believed was his own property. Additionally, Evanich testified that he actively attempted to remain on his own lot by running a string from an iron survey pin to what he thought was another lot survey marker. Further, Evanich testified that had he known he was utilizing his neighbor's property, he would not have proceeded without asking permission. Finally, Evanich testified that he would not have intentionally crossed a property line to place the plantings. At the trial, Evanich confirmed his deposition testimony, stating that he never would have planted on the property if he had known it did not belong to him.
{¶ 36} As the majority points out, this case presents a case of mutual mistake. That is, each party believed that the disputed property was owned by Evanich. I am also aware of the litany of cases affording the protection of the adverse possession doctrine to "one who has honestly entered and held possession in the belief that the land was his own."Vanasdal v. Brinker (1985), 27 Ohio App.3d 298, 299,27 OBR 343, 500 N.E.2d 876. However, "there are no equities in favor of a person seeking to acquire property of another by adverse holding." See Grace, 81 Ohio St.3d at 580,692 N.E.2d 1009, citing 10 Thompson on Real Property (Thomas Ed.1994) 108, Section 87.05. I see no reason why in the case of mutual mistake, this court should put the rights of the adverse possessor ahead of those of the true owner.
{¶ 37} Based on the foregoing, I would hold that the trial court erred as a matter of law in that it failed to consider the impact of Evanich's lack of intent on the adversity of the use. This failure is evinced by the fact that the trial court found that Evanich adversely used Bridge's property despite undisputed evidence that he did not intend to do so but only sought to beautify what he thought was his own property. Accordingly, I would reverse the lower court's judgment, and therefore, I respectfully dissent. *Page 663