[Cite as Carson v. Duff, 2017-Ohio-8199.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
FAYETTE COUNTY
MICHAEL R. CARSON, TRUSTEE, et al., :
CASE NOS. CA2017-03-005
Plaintiffs-Appellants, : CA2017-03-007
: OPINION
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:
ROSCOE DUFF, DECEASED, et al., :
Defendants-Appellees. :
CIVIL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
Case No. 13CVH00471
Kiger & Kiger Lawyers, David V. Kiger and James A. Kiger, 132 South Main Street,
Washington C.H., Ohio 43160-2275, for plaintiffs-appellants
William E. Peelle, 1929 Rombach Avenue, P.O. Box 950, Wilmington, Ohio 45177, for
plaintiffs-appellants
Daniel W. Drake, 6383 Myers Road, P.O. Box 171, Bloomingburg, Ohio 43106, for
defendants-appellees
Jeffrey L. Wright, 145 North South Street, Wilmington, Ohio 45177, for defendants-appellees
Jess C. Weade, Fayette County Prosecuting Attorney, 110 East Court Street, Washington
C.H., Ohio 43160, for defendant, Fayette County Treasurer
S. POWELL, J.
{¶ 1} Plaintiffs-appellants, Michael and Mary Ann Carson, individually and as trustees
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for their respective revocable trusts, appeal from the decision of the Fayette County Court of
Common Pleas denying their adverse possession claim following a bench trial in a dispute
over real property with defendants-appellees, Jacqueline Loudner, Ronald Pope, and James
E. Duff. For the reasons outlined below, we affirm.
{¶ 2} This case had previously been appealed to this court in Carson v. Duff, 12th
Dist. Fayette No. CA2015-06-013, 2016-Ohio-5093. As part of that decision, we recited the
following facts:
This case involves a disputed 102 acre tract of farmland located
in Fayette County. The property was conveyed several times
over the years, eventually to the Duff Farm Company, which
conveyed the land to appellants.
Prior to the sale of the property, a title search was conducted,
which disclosed appellees' fractional interest in the property.
Appellants claim the "cloud" in title, appellees' fractional interest,
was the result of a mistake in the transfer of a deed in the chain
of title and filed a quiet title action.
The following facts are relevant to this appeal. Since 1966,
Dwight Duff and his successors in interest have continuously
farmed the 102 acre tract. The trial court stated in its judgment
entry "[t]he tract of land has been enrolled in various federal crop
programs and the county real estate taxes have been kept
current. This tract has never been subdivided since its creation
in 1966. There is no evidence in the record of any act
inconsistent with complete ownership of the entire interest in the
tract."
The trial court also noted that appellees had no knowledge of
their respective interests in this tract of land until the quiet title
action was filed. Appellees claim to the property is through
inheritance by reference to the chain of title.
Following discovery, appellants moved for summary judgment
claiming, in part, that Dwight Duff and his successors had
successfully acquired the fee title of the property through
adverse possession, which was then conveyed to them.
Appellees filed a motion in opposition and also moved for
summary judgment on the basis that, as record title owners and
tenants in common, they were entitled to judgment as a matter of
law. The trial court ruled in favor of appellees, finding that
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appellants failed to establish the "higher standard" of review for
cotenants in an adverse possession claim. As the title record
holders, the trial court granted judgment in favor of appellees,
therefore finding their fractional interest in the disputed property
to be valid.
Id. at ¶ 2-6.
{¶ 3} On appeal, we reversed the trial court's decision granting summary judgment to
appellees upon finding the trial court employed the wrong standard of review and that, when
considering the complicated facts at issue, the case was better suited to be resolved
following a trial, not summary judgment. Id. at ¶ 20-22. The matter was therefore remanded
to the trial court for further proceedings.
{¶ 4} On December 1, 2016, the trial court held a bench trial to determine appellants'
adverse possession claim. During trial, the trial court heard testimony from several witnesses
regarding the property at issue and admitted numerous documents outlining the title history
and transfers of the property beginning in the mid-1960s onward. This included testimony
about an alleged family meeting that took place some 50 years prior in an effort to effectuate
a transfer of the property to its intended recipient through a "swap" of deeds, a predecessor
to appellants herein. However, as one witness testified, not a single word has been said
about the property for over 50 years prior to the property being sold to appellants in 2012.
Nevertheless, there was also testimony that a title search discovered a defect in the
property's chain of title. Specifically, testimony was elicited that "there were heirs where their
interest was never transferred away," thereby rendering appellants and appellees cotenants
of the property at issue.
{¶ 5} On March 2, 2017, after both parties submitted closing memoranda to the trial
court, the trial court issued a decision denying appellants' adverse possession claim. In so
holding, the trial court determined appellants "failed to prove by clear and convincing
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evidence any definite and continuous assertion of adverse rights, by themselves nor by their
predecessors in title," so as to support their adverse possession claim against appellees,
their cotenants. Appellants now appeal from the trial court's decision, raising two
assignments of error for review. For ease of discussion, appellants' two assignments of error
will be addressed together.
{¶ 6} Assignment of Error No. 1:
{¶ 7} THE DECISION OF THE TRIAL COURT HOLDING THAT APPELLANTS
FAILED TO SUSTAIN THEIR BURDEN OF PROOF OF ADVERSE POSSESSION OF THE
102.032 ACRE TRACT OF FARMLAND AS AGAINST CO-TENANTS IS ERRONEOUS AS A
MATTER OF LAW AND IS AGAINST THE MANIFEST WEIGHT AND NOT SUPPORTED
BY THE EVIDENCE.
{¶ 8} Assignment of Error No. 2:
{¶ 9} THE TRIAL COURT ERRED WHEN IT CONCLUDED THAT DUFF'S (DWIGHT
DUFF) AND HIS SON AND WIFE, HAVE TO ENGAGE IN UNEQUIVOCAL ACTS WHICH
CONSTITUTES AN OUSTER OF HIS SIBLINGS WHICH WERE CO-TENANTS.
{¶ 10} In their two assignments of error, appellants make the same basic argument
that they did previously; namely, that the trial court erred by denying their adverse possession
claim as that decision was against the manifest weight of the evidence. We disagree.
Standard of Review: Manifest Weight of the Evidence
{¶ 11} "The standard of review for a manifest weight challenge in a civil case is the
same as that applied to a criminal case." Dunn v. Clark, 12th Dist. Warren No. CA2015-06-
055, 2016-Ohio-641, ¶ 8, citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶
17. Thus, in considering a manifest weight challenge, a reviewing court weighs the evidence
and all reasonable inferences, considers the credibility of witnesses and determines whether
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in resolving conflicts in the evidence, the finder of fact clearly lost its way and created a
manifest miscarriage of justice warranting reversal and a new trial ordered. Hacker v. House,
12th Dist. Butler No. CA2014-11-230, 2015-Ohio-4741, ¶ 21, citing Eastley at ¶ 20. A
judgment will not be reversed as being against the manifest weight of the evidence where the
judgment is supported by some competent, credible evidence going to all essential elements
of the case. Sterling Constr., Inc. v. Alkire, 12th Dist. Madison No. CA2016-12-032, 2017-
Ohio-7213, ¶ 8.
The Law of Adverse Possession and Cotenants
{¶ 12} "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 v. Koch, 81 Ohio St.3d 577, 579 (1998). As it relates to cotenants,
however, "[a] tenant in common cannot assert title by adverse possession against his co-
tenant unless he shows a definite and continuous assertion of adverse right by overt acts of
unequivocal character clearly indicating an assertion of ownership of the premises to the
exclusion of the right of the co-tenant." Gill v. Fletcher, 74 Ohio St. 295, 305-306 (1906).
This is an extremely high standard to establish since possession by one cotenant is
presumed to be possession by all. Grace at 579, fn. 1, citing Ferenbaugh v. Ferenbaugh,
104 Ohio St. 556, 559 (1922). Suffice it to say, it is a difficult task for one cotenant to
adversely possess property from other cotenants. Hoosier v. Heirs, 4th Dist. No. 14CA846,
2014-Ohio-5810, ¶ 26.
Analysis
{¶ 13} Appellants initially argue the trial court erred by denying their adverse
possession claim since there was evidence presented at trial indicating appellees knew the
property at issue was to belong to appellants' predecessors. Although not particularly clear,
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appellants imply that because appellees were tangentially aware that a family meeting took
place some 50 years prior that resulted in their predecessors coming into possession of their
own respective parcels of real property through a "swap" of deeds, this proves their
predecessors never intended the property at issue to be shared. However, although the
record indicates that at least one of the appellees had heard that a family meeting took place
in 1966, another testified that he knew "nothing about a meeting that occurred." Moreover,
when asked about whether there was any discussion about the property at issue after that
meeting supposedly took place, one appellee testified that she "had no knowledge of that
until 2000."
{¶ 14} Regardless, even if appellants' allegations were true, there is no dispute that
the property's chain of title contains a defect. As a result, we fail to see the significance of
appellees' knowledge in regards to any intended ownership of the property as it relates to
appellants' adverse possession claim. Simply stated, regardless of appellees' alleged
knowledge of whether a family meeting took place some 50 years prior, it was appellants who
were saddled with the burden of proof to establish their adverse possession claim, including
proof that they or their predecessors engaged in "overt acts of unequivocal character"
indicating their ownership of the property to the exclusion of appellees. The trial court clearly
agreed with this rationale considering it denied appellants' adverse possession claim.
Therefore, as discussed more fully below, based on the facts and circumstances of this case,
the trial court did not err by finding appellants failed to satisfy the extremely high standard
necessary to establish their adverse possession claim.
{¶ 15} Appellants next argue the trial court erred by denying their adverse possession
claim when it found neither they nor their predecessors engaged in any "overt acts of
unequivocal character" indicating their ownership of the property to the exclusion of
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appellees. However, while it is true that appellants and their predecessors farmed the
property exclusively for more than 50 years, received rents and profits from the land, as well
as paid the necessary real estate taxes and insurance on the property, just as the trial court
found, this is insufficient to establish an adverse possession claim against appellees.
Although taken from a case that is now nearly 200 years old, it nevertheless holds true that
"a silent possession, accompanied with no act which can amount to an ouster, or give notice
to his co-tenant that his possession is adverse, ought not, we think, to be construed into an
adverse possession." M'Clung v. Ross, 18 U.S. 116, 124 (1820).
{¶ 16} As noted above, the requirements for establishing an adverse possession claim
are high, especially when the claim is presented against a cotenant. In this case, appellants
provided no evidence that either they or their predecessors did any overt act that could be
considered an assertion of ownership to the exclusion of appellees, a requirement under the
law of this state to bring a successful adverse possession claim against a cotenant. This is
true irrespective of the fact that appellees may have only recently become aware of their
fractional interest in the property. See generally Heirs, 2014-Ohio-5810 at ¶ 29 (overt act to
the exclusion of cotenants still required for adverse possession claim even where those
cotenants were unaware of the property). "[P]ossession of and improvements to the property
are insufficient to meet the extremely high standard." Reel v. Reel, 11th Dist. No. 2016-T-
0038, 2016-Ohio-8116, ¶ 47. Therefore, because we find no error in the trial court's decision
denying appellants' adverse possession claim, the trial court's decision was not against the
manifest weight of the evidence. Accordingly, appellants' two assignments of error are
without merit and overruled.
{¶ 17} Judgment affirmed.
HENDRICKSON, P.J., and RINGLAND, J., concur.
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