Wischt v. Heirs of Mourer

[Cite as Wischt v. Heirs of Mourer, 2017-Ohio-8236.]

COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
JOHN WISCHT, ET AL : Hon. W. Scott Gwin, P.J.
: Hon. Craig R. Baldwin, J.
Plaintiffs-Appellees : Hon. Earle E. Wise, J.
:
-vs- :
: Case No. 17 CA 8
THE HEIRS OF PEARL RUTH :
MOURER, ET AL :
: OPINION
Defendants-Appellants

CHARACTER OF PROCEEDING: Civil appeal from the Guernsey County
Court of Common Pleas, Case No.
15CV000280

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 18, 2017

APPEARANCES:

For Plaintiffs-Appellees For Defendants-Appellants

BRETT HILLYER CHARLES PLUMMER
201 N. Main Street 139 West Eighth Street
P.O. Box 272 P.O. Box 640
Uhrichsville, OH 44683 Cambridge, OH 43725-0640
Guernsey County, Case No. 17 CA 8 2

Gwin, P.J.

{¶1} Appellants appeal the February 16, 2017 judgment entry of the Guernsey

County Court of Common Pleas denying their motion for summary judgment and granting

appellees’ motion for summary judgment.

Facts & Procedural History

{¶2} The parties in this matter are adjoining landowners of real estate on Boden

Road in Guernsey County. On July 15, 2015, appellees John and Lori Wischt filed a

complaint for quiet title and action to enforce settlement against appellants, the Heirs of

Ruth Pearl Mourer: Donald Mourer, Wanda Colvin, Wanita Oliver, Charles Mourer,

William Mourer, Timothy Mourer, Marsha Wilson, and Wayne Mourer. Appellees claimed

that, either via quiet title or via an agreed settlement, they had a right-of-way through

appellants’ property. Appellants filed an amended counterclaim against appellees for

adverse possession, prescriptive easement, ejectment, and trespass. Appellants claim

they, through adverse possession, have title to an eleven acre portion of appellees’ land.

{¶3} The chain of title to appellees’ property is as follows: appellees acquired

the property through a general warranty deed dated March 21, 2014, from James E. Kittle,

the trustee of the Cora E. Kittle Revocable Trust dated Feb. 23, 1993 to John and Lori

Wischt; the James and Cora E. Kittle Revocable Trust dated Feb. 23, 1993 acquired the

property via a quit-claim deed dated Feb. 23, 1993 from James and Cora Kittle. James

and Cora Kittle acquired the property via a warranty deed dated April 4, 1951 from Samuel

Gibson to James E. and Cora E. Kittle.

{¶4} The chain of title to appellants’ property is as follows: on April 1, 1949,

Arthur and Grace Mourer acquired the property via a deed from J.W. Angle and Grace
Guernsey County, Case No. 17 CA 8 3

Angle; via a deed dated December 11, 1967, Charles and Ruth Pearl Mourer acquired

the property from Arthur and Grace Mourer; on March 11, 2008, Charles and Ruth Pearl

Mourer signed a survivorship deed, deeding the property to themselves; on March 16,

2008, Ruth Pearl Mourer executed a transfer on death deed, from herself to her son

Donald Mourer, daughter Wanda Colvin, daughter Wanita Oliver, son Charles Mourer,

son William Mourer, son Timothy Mourer, daughter Marsha Wilson, and son Wayne

Mourer; and an affidavit dated June 29, 2015 by Donald Mourer provides that Ruth Pearl

Mourer died on April 29, 2015 and thus her interest in the property is terminated by her

death and her children are now the owners of the entire fee simple interest in the real

estate.

{¶5} The trial court issued a judgment entry on November 14, 2016. The trial

court: found appellees failed to provide any reliable evidence that an easement exists on

appellants’ property; dismissed appellees’ claim to quiet title alleging an easement on

appellants’ property; and dismissed appellees’ action to enforce settlement. The trial

court noted an issue remained as to the claimed adverse possession by appellants of an

eleven acre tract of land and stated it would come on for further hearing.

{¶6} On December 9, 2016, appellants filed a motion for summary judgment

regarding the eleven acres. In their motion, appellants agreed that according to the

deposition of James Kittle (“Kittle”), who was the prior owner of appellees’ property, Kittle

agreed in the 1950’s that the Mourers could use the eleven acres. However, appellants

argued since Kittle had not been on or used the property since the 1950’s, no additional

consent was given since the 1950’s and what began as consensual use developed into

an adverse use. Attached to appellants’ motion for summary judgment is the affidavit of
Guernsey County, Case No. 17 CA 8 4

one of the appellants, Wanita Oliver. Wanita Oliver avers that she has personal

knowledge that, “her mother and father, Charles and Pearl, openly, continuously,

exclusively, adversely, and notoriously used this property referred to as the “11 acres”

since they purchased the property in 1967.” Further, that the Mourers have used the

referenced acreage as pasture and cattle accessible property since at least 1967.

{¶7} Appellees filed their own motion for summary judgment regarding the

eleven acres and argued that, pursuant to the deposition of Kittle, appellants’ parents

used the land with permission. Appellees also filed a response in opposition to appellants’

motion for summary judgment, again citing the deposition of Kittle.

{¶8} Kittle, now deceased, testified during his deposition that he sold the property

at issue to appellees and he had been on the property three times since purchasing it as

an investment property. Kittle stated his parents were friends of Charles and Pearl

Mourer. Further, that Charles and Pearl knew both him and his parents. Kittle had a

good relationship with Charles and Pearl and he kept in contact with them through the

years. Kittle stated he and Charles and Pearl had a “very good relationship” with regards

to the property. Kittle never had any issues with the Mourers.

{¶9} Kittle testified there was a fence dividing the property that had fallen down.

He and his father did not want to rebuild the fence, so his father, representing him, told

Charles and Pearl they could water their cows without building a fence. Kittle stated, “so

that gave the Mourers the right to water the cows from the spring that was on my

property.” Kittle was unsure of the exact date his father, representing him, gave this

permission to Charles and Pearl. However, he believes it was after the 1950’s, but before

his father died in 1975. Kittle stated he never revoked the right he gave to the Mourers,
Guernsey County, Case No. 17 CA 8 5

through his father, to water their cows. When asked how Kittle permitted the Mourers to

water their cows on his land, he testified that his father made the arrangements with

Charles Mourer. Kittle confirmed he gave his approval of the permission his father gave

to Charles.

{¶10} Kittle testified the property was timbered a couple of times. He had it

timbered just prior to when he sold it in 2014, it had been previously timbered

approximately ten or fifteen years ago, and at least once before his father died. Kittle

stated he did not use the part of the property at issue. Kittle testified that he never saw

any cattle or other animals on his land.

{¶11} The trial court issued a judgment entry on February 16, 2017 on appellants’

and appellees’ motions for summary judgment. The trial court found Kittle granted

permission to use the real estate to the Mourer family to water their cattle and this

permission was never revoked. Thus, the trial court granted appellees’ motion for

summary judgment and denied appellants’ motion for summary judgment.

{¶12} Appellants appeal the February 16, 2017 judgment entry of the Guernsey

County Court of Common Pleas and assign the following as error:

{¶13} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT BY

VIRTUE OF THE FACT THAT THERE IS A GENUINE ISSUE OF MATERIAL FACT

WHETHER PERMISSION WAS GRANTED TO CHARLES AND PEARL MOURER

WHEN THEY RECEIVED OWNERSHIP BY VIRTUE OF A WARRANTY DEED DATED

DECEMBER 11, 1967 AND RECORDED IN GUERNSEY COUNTY RECORD VOLUME

276, PAGE 163 (SEE “EXHIBIT D” ATTACHED HERETO).”
Guernsey County, Case No. 17 CA 8 6

Summary Judgment Standard

{¶14} Civil Rule 56(C) provides, in pertinent part:

Summary judgment shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, written admissions, affidavits,

transcripts of evidence, and written stipulations of fact, if any, timely filed in

the action, show that there is no genuine issue of material fact and that the

moving party is entitled to judgment as a matter of law. No evidence or

stipulation may be considered except as stated in this rule. A summary

judgment shall not be rendered unless it appears from the evidence or

stipulation, and only from the evidence or stipulation, that reasonable minds

can come to but one conclusion and that conclusion is adverse to the party

against whom the motion for summary judgment is made, that party being

entitled to have the evidence or stipulation construed mostly strongly in the

party’s favor. A summary judgment, interlocutory in character, may be

rendered on the issue of liability alone although there is a genuine issue as

to the amount of damages.

{¶15} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the

undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311

(1981). The court may not resolve any ambiguities in the evidence presented. Inland

Refuse Transfer Co. v. Browning-Ferris Indus. of Ohio, Inc., 15 Ohio St.3d 321, 474

N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the
Guernsey County, Case No. 17 CA 8 7

applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733

N.E.2d 1186 (6th Dist. 1999).

{¶16} When reviewing a trial court’s decision to grant summary judgment, an

appellate court applies the same standard used by the trial court. Smiddy v. The Wedding

Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter

de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 1243.

{¶17} The party moving for summary judgment bears the initial burden of

informing the trial court of the basis of the motion and identifying the portions of the record

which demonstrate the absence of a genuine issue of fact on a material element of the

non-moving party’s claim. Drescher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996).

Once the moving party meets its initial burden, the burden shifts to the non-moving party

to set forth specific facts demonstrating a genuine issue of material fact does exist. Id.

The non-moving party may not rest upon the allegations and denials in the pleadings, but

instead must submit some evidentiary materials showing a genuine dispute over material

facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791 (12th Dist. 1991).

I.

{¶18} Adverse possession focuses on the acts of the one claiming prescriptive

ownership and requires proof of exclusive possession and open, notorious, continuous,

and adverse use for a period of twenty-one years. Grace v. Koch, 81 Ohio St.3d 577,

692 N.E.2d 1009 (1998). To prevail on a claim for adverse possession, a claimant must

establish these factors by clear and convincing evidence. Id. A party who fails to prove

any of the elements fails to acquire title through adverse possession. Id.
Guernsey County, Case No. 17 CA 8 8

{¶19} A successful adverse possession action results in a legal titleholder

forfeiting ownership to an adverse holder without compensation. Id. Such a doctrine

should be disfavored, and that is why the elements of adverse possession are stringent.

Id.

{¶20} Appellants contend the trial court erred in finding their use of the property

was not adverse. Appellants make two specific arguments: first, that since there is no

evidence permission was given by Kittle since 1975 after his father’s death or since

Charles and Pearl obtained title to the property in 1967, Kittle’s previous permission is not

sufficient to defeat a claim of adverse possession. Further, appellants argue the affidavit

of Wanita Oliver is sufficient to create a genuine issue of material fact as to whether

permission was granted to Charles and Pearl to use the land.

{¶21} Adverse use is described as non-permissive use. McCune v. Brandon, 85

Ohio App.3d 697, 621 N.E.2d 434 (5th Dist. 1993). Possession is not adverse if it is done

with the owner’s permission. Pavey v. Vance, 56 Ohio St. 162, 46 N.E. 898 (1897).

{¶22} Appellants encourage this Court to adopt the reasoning of the Seventh

District Court of Appeals in Eckman v. Ramunno, 7th Dist. Mahoning No. 09 MA 162,

2010-Ohio-4316. The Seventh District stated:

Although it is true that permission cannot ripen into adversity by mere lapse

of time, this concept applies only to those persons to whom the permission

was given. Where, for instance, the invited occupier leaves and a wholly

new occupier begins possession, the original permissive use is not

automatically extended. Rather, the landowner must renew his permission

to subsequent occupiers in order to avoid adverse possession and to
Guernsey County, Case No. 17 CA 8 9

maintain the express permission. In other words, although prior permissive

use of a predecessor is relevant to erase the adversity element for periods

within the relevant twenty-one year period, it does not make a current

occupier’s use permissive.

{¶23} We first note that this Court has not adopted the holding of the Seventh

District and has stated in previous cases that, “when the original entry onto another’s

property is permissive or conferred by grant, then any use reasonably consistent with

such a grant or permission is not adverse.” Rodgers v. Pahoundis, 178 Ohio App.3d 229,

2008-Ohio-4468, 897 N.E.2d 680 (5th Dist.); Heggy v. Lake Cable Recreation Assn.,

1977 WL 201024; Cox v. Kimble, 5th Dist. Guernsey No. 13 CA 32, 2015-Ohio-2470.

{¶24} However, even if we were to review this case under the analysis of Eckman,

we find summary judgment was appropriate. Unlike in Eckman, where the occupiers were

different, unrelated individuals throughout the twenty-one years, the occupiers of the

property since 1949 are family members. See Harris v. Dayton Power & Light Co., 2nd

Dist. Montgomery No. 26796, 2016-Ohio-517 (holding “when calculating years of

continuous adverse use, continuity is not broken by a change in ownership between

family members”).

{¶25} Further, while the property was owned by Arthur and Grace Mourer until

1967 and Kittle was unclear what year he gave his permission, in his deposition, Kittle

unequivocally states the permission was given, through his father, “to Charles.” The

neighborly relationship Kittle describes in his deposition is between himself, his parents,

Charles, and Pearl. Kittle never mentions permission with regards to Arthur and/or Grace
Guernsey County, Case No. 17 CA 8 10

and does not testify to any relationship his family had with Arthur and/or Grace. Arthur

and/or Grace are not mentioned at all in Kittle’s deposition.

{¶26} Pursuant to Eckman, the relevant inquiry is the permission as it relates to

the occupier of the property, not the owner of the property. Appellants have provided no

evidence disputing Kittle’s testimony or providing evidence that permission was given to

Arthur and/or Grace rather than Charles. Thus, Charles was the person, “to whom the

permission was given” and this permission given to Charles cannot ripen into adversity

by the mere lapse of time. The first date Charles was not the occupier of the property

was after his death in 2008. A period of twenty-one years has not elapsed since that date

and thus appellants cannot demonstrate adverse use for a period of twenty-one years.

Accordingly, summary judgment is appropriate in favor of appellees.

{¶27} Appellants next contend the affidavit of Wanita Oliver, an appellant in this

case, is sufficient to create a genuine issue of material fact as to permission. Wanita

Oliver’s affidavit provides, “her mother and father, Charles and Pearl, openly,

continuously, exclusively, adversely, and notoriously used this property referred to as the

“11 acres” since they purchased the property in 1967.” We first note that appellants did

not file a response to appellees’ motion for summary judgment. Rather, Oliver’s affidavit

was attached to appellants’ own motion for summary judgment.

{¶28} However, even if we consider this in response to appellees’ motion for

summary judgment, as we stated in Patterson v. Licking Township, 5th Dist. Licking No.

17-CA-3, 2017-Ohio-1463, “a self-serving affidavit that is not corroborated by any

evidence is insufficient to establish the existence of an issue of material fact.” Further,

“to conclude otherwise would enable the nonmoving party to avoid summary judgment in
Guernsey County, Case No. 17 CA 8 11

every case, crippling the use of Civ.R. 56 as a means to facilitate the early assessment

of the merits of the claims, pre-trial dismissal of meritless claims, and defining and

narrowing issues for trial.” Id., citing Bank of New York v. Bobo, 4th Dist. Athens No.

14CA22, 2015-Ohio-4601; see also State of Ohio v. $317.49 in U.S. Currency & Ruger

9MM Handgun, 5th Dist. Stark No. 2006-CA-00318, 2007-Ohio-475. If such affidavits

were permitted, a party could avoid summary judgment under all circumstances solely by

submitting a self-serving affidavit containing nothing more than bare contradictions of the

evidence offered by the moving party. TJX Companies, Inc. v. Hall, 183 Ohio App.3d

236, 2009-Ohio-3372, 916 N.E.2d 862 (8th Dist.).

{¶29} As in Patterson, in this case, appellant has not corroborated her affidavit

with any evidence or included in her affidavit any specific facts which establishes the

existence of an issue of material fact. Rather, her affidavit contains bare contradictions

of the evidence offered by appellees through Kittle’s deposition. Accordingly, the trial

court did not err in granting summary judgment to appellees.

{¶30} Finally though appellants contend the open, notorious, and continuous

elements of adverse possession are not in dispute, appellees disagree.

{¶31} In order for possession to be considered open, the “use of the disputed

property must be without attempted concealment.” To be notorious, a use must be known

to some who might reasonably be expected to communicate their knowledge to the owner

or is so patent that the true owner of the property could not be deceived as to the

property’s use. McKenna v. Boyce, 5th Dist. Muskingum No. CT 2012-0014, 2012-Ohio-

5163. The occupancy must give notice to the real owner of the extent of the adverse

claim. Franklin v. Massillon Homes, II, LLC, 184 Ohio App.3d 455, 2009-Ohio-5487, 921
Guernsey County, Case No. 17 CA 8 12

N.E.2d 314 (5th Dist. Stark). The Ohio Supreme Court quoted the Vermont Supreme

Court in stating, “the tenant must unfurl his flag on the land, and keep it flying so that the

owner may see, if he will, that an enemy has invaded his dominions and planted his

standard of conquest.” Grace v. Koch, 81 Ohio St.3d 577, 692 N.E.2d 1009 (1998),

quoting Darling v. Ennis, 138 Vt. 311, 415 A.2d 228 (1980).

{¶32} This Court has previously considered the open, notorious, exclusive and

continuous elements of adverse possession in several cases. McKenna v. Boyce, 5th

Dist. Muskingum No. CT 2012-0014, 2012-Ohio-5163 (affirming finding of summary

judgment against adverse possession because mowing, trimming, removing limbs, and

burying roots is not clear and convincing evidence of adverse possession); Murphy v.

Cromwell, 5th Dist. Muskingum No. CT2004-0003, 2004-Ohio-6279 (finding no clear and

convincing evidence of adverse possession when the appellants had cleaned up

branches, mowed the property, raked the property, fertilized the property, and walked the

dog across the property); Arnholt v. Carlisle, 5th Dist. Licking No. 10CA91, 2011-Ohio-

2948 (finding adverse possession not against the manifest weight of the evidence when

appellants planted 100 trees and took care of them since that went beyond “mere

maintenance” and minor landscaping); Franklin v. Massillon Homes, II, LLC, 184 Ohio

App.3d 455, 2009-Ohio-5487, 921 N.E.2d 314 (5th Dist.) (finding a genuine issue of fact

when there was evidence appellants removed a tree on the property, planted a tree on

the property, took care of the lawn, hired third parties to maintain the property at issue,

parked cars there, and told trespassers to leave the area); Robinson v. Armstrong, 5th

Dist. Guernsey No. 03 CA 12, 2004-Ohio-1463 (holding the use of the property was not

exclusive because others used the property to access other fields). We have held that
Guernsey County, Case No. 17 CA 8 13

“mere maintenance of land, such as mowing grass, cutting weeds, planting a few

seedlings, and minor landscaping, is generally not sufficient to constitute adverse

possession.” McKenna v. Boyce, 5th Dist. Muskingum No. CT 2012-0014, 2012-Ohio-

5163; see also Grace v. Koch, (finding mowing grass, parking cars, using the land for

recreation, placing a swing set, firewood, and oil drums on the property to be a close case

as to adverse possession).

{¶33} In this case, the only evidence presented is Wanita Oliver’s assertion in her

affidavit that Charles and Pearl Mourer used the referenced acreage as pasture and cattle

accessible property since at least 1967.

{¶34} In a case factually analogous to this case, in which the property at issue

was used for pasture, we noted that “there are a surprising number of Ohio cases dealing

with adverse possession of pasture land.” Galbraith v. J.J. Detweiler Enterprises, Inc.,

164 Ohio App.3d 332, 2005-Ohio-6300, 842 N.E.2d 124 (5th Dist.). We found the cases

dealing with adverse possession of pasture land, “stand for the proposition that claimant’s

use of the property must be exclusive and adverse to the title owner, and pasturing does

not necessarily exclude the title owner from using the property in other ways and for other

purposes” and held the finding of adverse possession was against the manifest weight of

the evidence when the land was used for pasture and appellees did not improve the

property. Id, citing Sams v. Nolan, 4th Dist. Ross No. 1326, 1987 WL 13947 (July 1,

1987) (finding possession not sufficiently adverse and exclusive even though the claimant

fenced the property to keep goats in the pasture and children out); Bierhup v. Leaco, Inc.,

4th Dist. Jackson No. 94 CA 742, 1995 WL 389292 (June 28, 1995) (finding repairing a
Guernsey County, Case No. 17 CA 8 14

fence on disputed land, using the land as pasture, and removing timber was insufficient

to establish adverse possession).

{¶35} Accordingly, we find, based upon our decision in Galbraith, the use of the

land for pasture and cattle accessible property is insufficient to establish the elements of

adverse possession when there is no evidence appellants’ improved the property or

prevented the title owner from using the property in other ways or for other purposes such

as timbering. Thus, we find the grant of summary judgment was also appropriate for this

reason.

{¶36} Based on the foregoing, we find the trial court did not err in granting

summary judgment to appellees. Appellants’ assignment of error is overruled. The

February 16, 2017 judgment entry of the Guernsey County Court of Common Pleas is

affirmed.

By Gwin, P.J.,

Baldwin, J., and

Wise, Earle, J., concur