[Cite as Homes v. Guess, 2018-Ohio-2691.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
BONNIE L. HOLMES, ET AL. : JUDGES:
: Hon. John W. Wise, P.J.
Plaintiffs-Appellees : Hon. W. Scott Gwin, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
ROY GUESS, ET AL. : Case No. 2017CA00201
:
Defendants-Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2016CV00994
JUDGMENT: Affirmed
DATE OF JUDGMENT: July 9, 2018
APPEARANCES:
For Plaintiffs-Appellees For Defendants-Appellants
ROBERT E. SOLES, JR. ALEX ROBERTSON
KARA DODSON 2210 South Union Avenue
6545 Market Avneue North Alliance, OH 44601
North Canton, OH 44721
Stark County, Case No. 2017CA00201 2
Wise, Earle, J.
{¶ 1} Defendants-Appellants, Roy and Ruth Guess and Phillip and Angela
Guess, appeal the September 20, 2017 decision of the Court of Common Pleas of Stark
County, Ohio, granting judgment in favor of Plaintiffs-Appellees, Bonnie and Bethany
Holmes.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On November 1, 2011, appellants Roy and Ruth purchased a property in
Maximo, Ohio. Appellants Phillip and Angela moved into the property in April 2012.
Appellants Roy and Ruth had purchased the property from the Estate of Betty Jean Shea.
Ms. Shea had owned the property from 1955 until her death in 2010.
{¶ 3} On April 21, 2015, appellee Bonnie purchased a property adjacent to the
Guess property. Appellee Bethany moved into the property in May 2015. Appellee
Bonnie had purchased the property from U.S. Bank. U.S. Bank acquired the property
through a foreclosure action against John and Melanie Baker in December 2014. The
Bakers had purchased the property from John and Mary Lou Hoskins in July 2004. The
Hoskins purchased the property in May 1983.
{¶ 4} The boundary line between the two properties is comprised of the eastern
edge of the Holmes property and the western edge of the Guess property. Because the
Holmeses wanted to build a fence along the boundary line, a survey was conducted. The
survey revealed the observed property line was not the true property line; portions of the
Holmes' house, roof overhang, flower bed, shed, down spouting, and leach beds were
located on the Guess property. As a result, on April 29, 2016, appellees filed a complaint
against appellants for adverse possession or in the alternative, a prescriptive easement,
Stark County, Case No. 2017CA00201 3
seeking a declaration that appellee Bonnie is the fee simple owner of approximately eight
feet of the western portion of the Guess property. Appellees also made claims for private
and public nuisance, and sought injunctive relief.
{¶ 5} Appellants Roy and Ruth counterclaimed, seeking quiet title and ejectment
and alleging frivolous conduct.
{¶ 6} A bench trial before a magistrate was held on March 17, 2017. By decision
filed April 13, 2017, the magistrate found in favor of appellees. The magistrate found
appellee Bonnie established adverse possession over the "disputed strip" and
established a prescriptive easement regarding a downspout, and was entitled to $295.00
in damages from appellant Phillip. Appellants filed objections. By judgment entry filed
September 20, 2017, the trial court overruled the objections and approved, confirmed,
and adopted the magistrate's decision.
{¶ 7} Appellants filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶ 8} "THE COURT IN ITS JUDGMENT ENTRY OF SEPTEMBER 20, 2017,
ERRED IN AWARDING TO PLAINTIFF THE REAL ESTATE DESCRIBED IN ITS ENTRY
UNDER PLAINTIFF'S CLAIM OF ADVERSE POSSESSION FOR THE REASON THAT
PLAINTIFF FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT
PLAINTIFF'S POSSESSION WAS EXCLUSIVE AND PLAINTIFF'S USE WAS
CONTINUOUS FOR A PERIOD OF TWENTY-ONE YEARS."
Stark County, Case No. 2017CA00201 4
II
{¶ 9} "THE COURT IN ITS JUDGMENT ENTRY OF SEPTEMBER 20, 2017
ERRED IN AWARDING PLAINTIFF THE REAL ESTATE DESCRIBED IN SAID ENTRY
UNDER PLAINTIFF'S CLAIM OF ADVERSE POSSESSION FOR THE REASON THAT
PLAINTIFF FAILED TO PROVIDE BY CLEAR AND CONVINCING EVIDENCE THAT
PLAINTIFF HAD ADVERSELY POSSESSED ALL PORTIONS OF THE REAL ESTATE
AWARDED BY THE TRIAL COURT."
III
{¶ 10} "THE COURT IN ITS JUDGMENT ENTRY OF SEPTEMBER 20, 2017
ERRED IN AWARDING PLAINTIFF THE REAL ESTATE DESCRIBED IN THE ENTRY
UNDER PLAINTIFF'S CLAIM OF ADVERSE POSSESSION AS PLAINTIFF FAILED TO
PROVIDE PROOF BY CLEAR AND CONVINCING EVIDENCE OF THE EXACT
BOUNDARIES OF HER CLAIM IN CONFORMITY WITH O.R.C. 315.251(A)."
I, II, III
{¶ 11} In their three assignments of error, appellants claim the trial court erred in
awarding appellee Bonnie the disputed strip under the doctrine of adverse possession.
Specifically, appellants claim appellee Bonnie failed to show by clear and convincing
evidence that her possession was exclusive and continuous for a period of twenty-one
years and she adversely possessed all portions of the real estate awarded to her, and
she failed to provide proof of the exact boundaries of her claim pursuant to R.C.
315.251(A). We disagree.
{¶ 12} "To acquire title by adverse possession, a party must prove, by clear and
convincing evidence, exclusive possession and open, notorious, continuous, and adverse
Stark County, Case No. 2017CA00201 5
use for a period of twenty-one years." Grace v. Koch, 81 Ohio St.3d 577, 1998-Ohio-607,
692 N.E.2d 1009, syllabus. Clear and convincing evidence is that evidence "which will
provide in the mind of the trier of facts a firm belief or conviction as to the facts sought to
be established." Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph
three of the syllabus. See In re Adoption of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613
(1985). "Where the degree of proof required to sustain an issue must be clear and
convincing, a reviewing court will examine the record to determine whether the trier of
facts had sufficient evidence before it to satisfy the requisite degree of proof." Cross at
477. Sufficiency of the evidence "is a test of adequacy. Whether the evidence is legally
sufficient to sustain a verdict [decision] is a question of law." State v. Thompkins, 78 Ohio
St.3d 380, 386, 678 N.E.2d 541 (1997).
{¶ 13} As succinctly explained by this court in McKenna v. Boyce, 5th Dist.
Muskingum No. CT2012-0014, 2012-Ohio-5163, ¶ 37-40:
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] so patent that the
true owner of the property could not be deceived as to the property's use."
Kaufman v. Geisken Enterprises, Ltd., 3rd Dist. No. 12-02-04, 2003-Ohio-
1027, ¶ 31.
In order for possession to be considered "hostile", the Ohio Supreme
Court has stated that any use of the land inconsistent with the rights of the
Stark County, Case No. 2017CA00201 6
titleholder is adverse or hostile. Kimball v. Anderson, 125 Ohio St. 241,
244, 181 N.E. 17 (1932).
In order for use to be considered continuous and exclusive, " '[u]se
of the property does not have to be exclusive of all individuals. Rather, it
must be exclusive of the true owner entering onto the land and asserting his
right to possession. It must also be exclusive of third persons entering the
land under their own claim of title, or claiming to have permission to be on
the premises from the true title holder. If the title holder enters onto the land
without asserting, by word or act, any right of ownership or possession, his
presence on the land does not amount to an actual possession, and the
possession may properly be attributed to the party who is on the land
exercising or claiming exclusive control thereof. It is not necessary that all
persons be excluded from entering upon and using the premises.' "
Kaufman, supra, at ¶ 39, quoting Walls v. Billingsley, 3rd Dist. No. 1-92-11,
1992 WL 198131 (Aug. 18, 1992), citing 4 Tiffany, Real Property (1975)
736, Section 1141.
In order to establish the necessary twenty-one year period, a party
may add to their own term of adverse use any period of adverse use by
prior succeeding owners in privity with one another. Zipf v. Dalgarn, 114
Ohio St. 291, 151 N.E. 174, syllabus (1926).
{¶ 14} In the case sub judice, the magistrate heard testimony from six witnesses,
each appellee and appellee Bonnie's husband, appellant Phillip, a professional land
Stark County, Case No. 2017CA00201 7
surveyor, and a longtime backyard adjoining neighbor of the properties in question. The
magistrate made extensive and lengthy findings of fact and concluded the following in
part:
9. The evidence demonstrates that as far back as 1969, the owners
of the Holmes Property treated the Disputed Strip as their own, and the
owners of the Guess Property made no attempt to claim ownership over the
Disputed Strip until this dispute arose in 2016.
10. The use of the Disputed Strip by the various owners of the
Holmes Property was open, with no attempt of concealment, and was visible
to the owners of the Guess Property as well as those residing in the
neighborhood in several respects[.]
***
11. The Magistrate likewise concludes that the use of the Disputed
Strip was notorious. There was no question as to anyone who observed
the properties that the Disputed Strip was being used by the owners of the
Holmes Property.
12. Defendants have attempted to argue that the adverse use of the
Disputed Strip was not continuous because there was [a] 20 month period
where no one resided in the home on the Holmes Property and because
Phillip Guess testified he mowed the Disputed Strip several times during
that period.
Stark County, Case No. 2017CA00201 8
13. The Magistrate does not agree. Initially, the Magistrate found
Phillip Guess's testimony to not be credible. Even assuming, arguendo,
that the Magistrate did credit his testimony that he mowed the Disputed Strip
12 times, the Magistrate would conclude that the mere act of mowing the
Disputed Strip a few times-without more-is not sufficient to assert, by word
or act, any right of ownership or possession over the Disputed Strip.
14. Additionally, even though no one was physically residing in the
house on the Holmes Property for 20 months, the Magistrate finds that the
owners of the Holmes Property were still continuously using the Disputed
Strip through the encroachments of the home, brick planter, shed, and
downspouts. Additionally, the owners of the Holmes Property were
maintaining the Disputed Strip by mowing. This is sufficient to constitute
continuous use.
15. The Magistrate likewise concludes that the use was continuous
for a period in excess of 21 years. The encroachments of the house,
roofline, and brick planter were present since at least 1969. The Disputed
Strip was maintained through mowing and other lawn care since at least
1969. The Disputed Strip was used by the owners of the Holmes Property
for recreational use since at least 1969. The down spouts have encroached
the Guess Property since at least 1991. The shed has encroached the
Guess Property since 1993 or 1994. All of this use continued until 2016
when this dispute arose which is a period in excess of 21 years.
Stark County, Case No. 2017CA00201 9
16. Finally, the use of the Guess Property by the owners of the
Holmes Property was adverse and hostile. There is no question that the
use of the Disputed Strip by the owners of the Holmes Property was
inconsistent with the property rights of the owners of the Guess Property.
{¶ 15} In reviewing the transcript of the trial, we find the magistrate's sixty-two
findings of fact and thirty-two conclusions of law to be supported by the record. T. at 26-
27, 32-36, 39-40, 42-43, 46, 101-112, 123-125, 137-140, 147, 163-164. Appellees have
demonstrated the elements of adverse possession pertaining to the disputed strip by clear
and convincing evidence.
{¶ 16} Appellants further argue appellees failed "to describe the boundaries
needed to sustain its claim" and cites R.C. 315.251 in support. Appellants' Brief at 20.
R.C. 315.251(A) states the following:
If a deed conveying title to real property is presented to the county
auditor for transfer, and the deed contains a legal description for land that
is a cut-up or split of the grantor's one or more existing parcels of land as
shown in the county auditor's records, or if the legal description of the land
conveyed in the deed is different from the legal description shown in the
prior deed to the grantor, a boundary survey plat in conformity with the new
description shall be submitted with the deed. The survey plat and
description shall satisfy the minimum standards for boundary surveys
promulgated by the board of registration for professional engineers and
Stark County, Case No. 2017CA00201 10
surveyors pursuant to Chapter 4733. of the Revised Code. If, in the opinion
of the county engineer, the survey plat and description satisfy those
standards, the county auditor shall accept the deed for transfer and a copy
of the survey plat shall be filed in the county engineer's survey file for public
inspection.
{¶ 17} In denying appellants' objection on the issue, the trial court found the
following in its judgment entry filed September 20, 2017:
Defendants also claim that Plaintiffs were required to present
evidence of a metes and bounds surveyed description and plat at trial in
order to succeed on their adverse possession claim. The Court notes that
no Ohio case has required such evidence as part of the proof of an adverse
possession claim, and Defendants have not provided any authority in
support of their argument that such is a necessity. The only case cited by
Defendants in support of such a contention, [is] Franklin v. Massillon
Holmes [sic] II, LLC, 184 Ohio App.3d 455, 2009-Ohio-5487, 921 N.E.2d
314 (5th Dist.). In that case, the trial court concluded-among other things-
that the plaintiff's adverse possession claim must fail because the plaintiff's
reference to landmarks such as fences and shrubs may not sufficiently
identify the boundaries. Id. at ¶12. However, the Fifth District Court of
Appeals actually reversed the trial court's determination, finding it was in
error. Id. at ¶34. The requirement proposed by Defendants would ultimately
prove unworkable. For instance, in this case, the Court could have
Stark County, Case No. 2017CA00201 11
determined that the new boundary should exist in any number of places-at
the roofline, at the edge of the planter, at the edge of the downspout, at the
edge of the shed-rendering it impossible to obtain a proposed plat in
advance of a judicial determination as to the proper boundary line.
The Magistrate's Decision found the existence of the boundary
based on the edge of a physical landmark-a fence-and a monument-the
bent post. It is axiomatic that stakes and monuments are "of prime
importance" in establishing boundaries, and may even control over metes
and bounds descriptions in certain cases. See Broadsword v. Kauer, 161
Ohio St. 524, 533-534, 120 N.E.2d 111 (1954). The Magistrate's Decision
provides sufficient guidance from which a boundary may be established.
From this decision, Plaintiffs may obtain a survey plat and description of the
type contemplated by R.C. 315.251.
{¶ 18} We concur with the trial court's analysis.
{¶ 19} Upon review, we find the trial court did not err in finding appellees
established their claim of adverse possession by clear and convincing evidence, and was
not required, based upon the facts in this case, to have a metes and bounds surveyed
description and plat to succeed on their adverse possession claim.
{¶ 20} Assignments of Error I, II, and III are denied.
Stark County, Case No. 2017CA00201 12
{¶ 21} The judgment of the Court of Common Pleas of Stark County, Ohio is
hereby affirmed.
By Wise, Earle, J.
Wise, John, P.J. and
Gwin, J. concur.
EEW/db 614