Pottmeyer v. Douglas , 2010 Ohio 5293 ( 2010 )

[Cite as Pottmeyer v. Douglas, 2010-Ohio-5293.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
Larry and Linda Pottmeyer, : Case No. 10CA7
Plaintiffs-Appellees, :
v. : DECISION AND
JUDGMENT ENTRY
James Douglas and :
Stephanie Lenhart, et al.,
: Released 10/21/10
Defendants-Appellants.
:
______________________________________________________________________
APPEARANCES:
Michael D. Buell, BUELL & SIPE CO., L.P.A., Marietta, Ohio, for appellants.
Ethan Vessels, FIELDS, DEHMLOW & VESSELS, Marietta, Ohio, for appellees.
______________________________________________________________________
Harsha, J.
{¶1} Stephanie Lenhart and James Douglas are appealing the order of the
Washington County Court of Common Pleas that quieted title to a tract of their land and
granted an easement for access to that tract in favor of Larry and Linda Pottmeyer.1
Larry built a machinery shed and maintained a garden in the disputed tract beginning in
the late 1960s and early 1970s. He also bulldozed and graveled an area for access to
the machinery shed and garden. The court found that Larry acquired ownership of the
garden area and the land upon which the original machinery shed was built by adverse
possession. The court determined that Larry failed to establish ownership of the gravel
access area by adverse possession but granted him an easement for its use.
1
For simplicity, we will refer to the Appellants Stephanie and James Douglas in the singular as
“Stephanie” and the Appellees Pottmeyers as “Larry.”
Washington App. No. 10CA7 2
{¶2} On appeal, Stephanie contends that Larry failed to prove adverse
possession of the garden area by clear and convincing evidence. She argues that Larry
failed to demonstrate that he “exclusively” and “continuously” possessed the garden
area for the required period of adverse possession – twenty-one years. Stephanie
points to the testimony of two neighbors who alleged that Larry abandoned the garden
area for several years while the true owners planted, plowed, and maintained it.
However, evidence in the record supports the trial court’s finding of Larry’s “exclusive”
and “continuous” use of the garden area. Flatly contradicting the neighbors’ testimony,
Larry testified that he alone planted, plowed, and maintained the garden every year.
Apparently, the court believed Larry and rejected the neighbors’ contrary testimony.
This is a credibility determination that we must defer to on appeal.
{¶3} Stephanie also argues that by sharing the produce of the garden with the
true owners of the disputed tract, Larry could not have possessed the land exclusively.
We reject this argument as well. “Exclusivity” for purposes of adverse possession looks
at acts that indicate ownership by the adverse possessor and acts that exclude true
owners from exercising ownership. Larry’s gratuitous sharing of the produce of his
garden with neighbors was consistent with ownership of the garden, i.e., owners
commonly share the bounty of their gardens with others.
{¶4} Next, Stephanie argues that the trial court failed to apply a presumption of
permissive use between family members when addressing both the garden and the
shed. Because Larry began using the disputed tract when it was owned by his brother
John Pottmeyer, Stephanie contends Larry did not overcome the presumption that his
use of his brother’s land was by permission. However, because Stephanie failed to
Washington App. No. 10CA7 3
properly raise this argument at trial, or in her proposed findings of fact and conclusions
of law post-trial, she has waived it for purposes of appeal. Consequently, we affirm the
decision of the trial court.
I. Facts Surrounding the Property Dispute
{¶5} This dispute originates in a plot of land located south of County Highway
60 in Adams Township, Washington County, Ohio. Ralph and Helen Pottmeyer owned
the plot and in 1964 they conveyed a small portion of it -- 1.21 acres -- to their son John
Pottmeyer. John’s plot was bounded on the west by land owned by Paul and Viola
Tullius. It was bounded on the south and east by what remained of the Ralph
Pottmeyer plot. County Highway 60 was the northern boundary.
{¶6} Later, the Ralph Pottmeyers conveyed to the Tulliuses a 1.38 acre parcel
of land south of and abutting John’s plot. Consequently, John was bounded on the west
and south by the Tulliuses, on the east by the Ralph Pottmeyers, and on the north by
County Highway 60.
{¶7} In 1969 the Ralph Pottmeyers conveyed their remaining land to Larry. In
1974 Larry constructed a building to store machinery on a strip of land near the
southern boundary of John’s plot and the Tullius’ abutting land to the south. Larry
apparently believed that he owned this land. Neither John nor the Tulliuses attempted
to stop him from building the shed.2 Paul Tullius in fact helped him with the
construction. Larry also bulldozed the area in front of the machinery shed and spread
limestone.
2
In 1997 Larry added a western extension to the original equipment shed. The court found that Larry did
not acquire the land upon which the extension was located by adverse possession. Larry has not cross-
appealed on that issue.
Washington App. No. 10CA7 4
{¶8} In the disputed strip, there was also a garden which had been in existence
prior to the Ralph Pottmeyer conveyances. Larry and John agreed that Larry
maintained this garden since he was conveyed his land in 1969.
{¶9} In 1977, a boundary dispute arose. John wanted to build a tennis court
and contacted a surveyor to identify the southern boundary of his land. An unknown
surveyor (John could not recall the surveyor’s name and had no records relating to the
survey), told John that the machinery shed was on his property, i.e., that the southern
boundary of his property was south of the machinery shed. When John told Larry about
this, Larry disagreed and hired his own surveyor.
{¶10} Larry’s surveyor, Robert Schultheis, conducted a survey and determined
that John’s southern boundary was actually north of the machinery shed. However,
Schultheis found that the gravel area in front of the machinery shed was on John’s
property. The discrepancy in the surveys appears to be related to the relocation of
County Highway 60, which was used as the northern boundary of the legal descriptions.
However, this fact has little bearing on the outcome of the appeal.
{¶11} John apparently decided that the dispute was not worth further argument.
At trial he explained, “I wasn’t going to get into a big argument over a few feet.” From
that point on, John took no action concerning the boundary dispute.
{¶12} In 1987 John conveyed his property to the Raneys, who transferred it to
the Wardens in 1994. Robert Warden, then divorced, transferred the property to the
Drayers in 1998. Stephanie purchased the property from the Drayers’ Estate in 2006.
{¶13} In 2008, Larry filed suit against Stephanie and asked the Washington
County common pleas court to quiet title in his favor to the strip of land containing the
Washington App. No. 10CA7 5
machinery shed and extension, the gravel area, and the garden. Larry argued that he
owned this area in fee simple by deed or had acquired it through adverse possession.
{¶14} The trial court sitting as fact-finder received testimony from Larry and John
Pottmeyer on behalf of Larry. Stephanie Lenhart, James Douglas, and Paul and Viola
Tullius testified on Stephanie’s behalf. After receiving proposed findings of fact and
conclusions of law from both parties, the court found that the Ralph Pottmeyers
conveyed the disputed strip of land to John Pottmeyer. Thus, Stephanie was the record
owner of the disputed tract. However, the court found clear and convincing evidence
that Larry acquired the land upon which the machinery shed and the garden area are
located by adverse possession.
{¶15} The twenty-one year period of adverse possession for the equipment
building began to run in 1974 and therefore would have ended in 1995, assuming no
intervening acts interrupted any of the necessary elements of adverse possession. In
this regard, the court examined whether the dispute between John and Larry in 1977
destroyed adversity. It found that John’s hiring of a surveyor to assess his boundary did
not disrupt the adverse period because it did not result in any effort to recover
possession of property. Furthermore, the court determined that John did not “consent”
to Larry’s use of the disputed area by doing nothing, but merely “acquiesced.” The
court explained: “[a]quiescence because one wishes to avoid a dispute does not have
the same legal effect as permission. The Court has been unable to find any cases,
other than between parent and child, where the relationship between the parties has
prevented the acquisition of prescriptive rights. [Stephanie] has provided no such
authority to the Court.” Accordingly, the court held that the brief boundary dispute in
Washington App. No. 10CA7 6
1977 did not interrupt Larry’s period of adverse possession because John had done
nothing to affirmatively take possession of the property or assert his ownership rights.
{¶16} The court found Larry had used the garden area continuously since he
acquired his land in 1969 and met all elements required to vest title adversely. Thus, he
acquired it in 1990. However, the court found that Larry failed to establish ownership by
adverse possession of the gravel area in front of the machinery shed. Nonetheless, the
court granted Larry an easement over it for access to the machinery building and
garden.
{¶17} Stephanie filed a timely appeal of this decision.
II. Assignment of Error
{¶18} Stephanie assigns a single error for our review:
THE TRIAL COURT ERRED WHEN IT ENTERED A PARTIAL VERDICT IN
FAVOR OF APPELLEES.
III. Adverse Possession
{¶19} Stephanie divides her assignment of error into two principal arguments.
First, she contends that Larry did not establish by clear and convincing evidence that he
maintained – “exclusive possession” and “continuous possession” of the garden area for
the requisite twenty-one year time period. Second, regarding both the machinery shed
and the garden area, she contends that the trial court failed to consider a presumption
against adverse possession that arises between members of the same family.
A. The Garden Area
1. Standard of Review
Washington App. No. 10CA7 7
{¶20} The parties dispute the proper standard of review. Stephanie did not
specifically refer to our standard of review in her Appellant’s Brief. In his brief, Larry
contends that Stephanie’s arguments concerning the garden are in the nature of a
manifest weight claim. In her Reply Brief, Stephanie disputes that she is raising a
weight of the evidence argument. Rather she argues “[we] do not challenge the trial
court’s finding that [Larry] and other individual [sic] with their permission grew and
harvested the garden. * * * Rather [we challenge] whether that factual finding serves as
a sufficient basis to conclude that [Larry] adversely possessed the real property in
question.” (Emphasis sic.)
{¶21} Typically, appeals on adverse possession claims challenge the manifest
weight of the evidence supporting the various elements of adverse possession. See
Stover v. Templeton (Mar. 11, 1996), Lawrence App. No. 95CA32, 1996 WL 112683, at
*1, fn. 1. Some of the arguments in Stephanie’s brief appear to be in the nature of a
manifest weight claim, while others appear to be legal in nature. To the extent we
construe any of Stephanie’s arguments as challenges to the manifest weight of the
evidence, we will apply deferential review. In other words, we will not substitute our
judgment “for that of the trial court when there exists competent and credible evidence
supporting the findings of fact and conclusions of law.” State v. Schiebel (1990), 55
Ohio St. 3d 71, 74, 564 N.E.2d 54. This is because issues relating to the credibility of
witnesses and the weight to be given the evidence are primarily for the trier of fact. As
the Court explained in Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, 80, 461
N.E.2d 1273: “[t]he underlying rationale of giving deference to the findings of the trial
court rests with the knowledge that the trial judge is best able to view the witnesses and
Washington App. No. 10CA7 8
observe their demeanor, gestures and voice inflections, and use these observations in
weighing the credibility of the proffered testimony.” However, to the extent we construe
Stephanie’s arguments as challenges to the trial court’s choice or application of law, our
review is de novo. See Stover, supra, at *1.
2. The Law of Adverse Possession
{¶22} Adverse possession is a recognized, but not favored, common law method
of obtaining title to real property. See Grace v. Koch, 81 Ohio St. 3d 577, 580, 1998-
Ohio-607, 692 N.E.2d 1009. “Viewed from its ultimate effect, it is the ripening of hostile
possession, under proper circumstances, into title by lapse of time.” 2 Ohio
Jurisprudence 3d, Adverse Possession and Prescription § 1, citing Am. Jur. 2d, Adverse
Possession § 2. The party seeking to gain title through adverse possession bears the
burden of establishing its elements. Thompson v. Hayslip (1991), 74 Ohio App. 3d 829,
832, 600 N.E.2d 756.
{¶23} Clear and convincing evidence is required to establish each element of
adverse possession. Grace at syllabus. “Clear and convincing evidence” is “‘more than
a mere “preponderance of the evidence,” but not to the extent of such certainty as
required “beyond a reasonable doubt” in criminal cases, and which will produce in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.’” Ohio State Bar Assn. v. Reid, 85 Ohio St. 3d 327, 331, 1999-Ohio-374,
708 N.E.2d 193, quoting Cross v. Ledford (1954), 161 Ohio St. 469, 120 N.E.2d 118, at
paragraph three of the syllabus.
{¶24} The elements of adverse possession are “exclusive possession and open,
notorious, continuous, and adverse use for a period of twenty-one years.” Grace at
Washington App. No. 10CA7 9
syllabus; see, also, R.C. 2305.04 (establishing statute of limitations to recover title to or
possession of real property at twenty-one years). Given the nature of adverse
possession claims, each case is to be decided on its particular facts. See Thompson at
833.
3. Exclusive Possession and Use
{¶25} Stephanie argues that Larry failed to establish that he exclusively
possessed the garden area for twenty-one years. She points to the testimony of Paul
and Viola Tullius, who stated that they saw the Raneys and the Wardens maintain the
garden and did not see Larry maintain the garden until after Warden sold the property in
1998. In response, Larry argues that he testified that he was the only person who
planted the garden each year, the only person who plowed it, and that he did not allow
anyone else to perform these tasks. He admits that he would tell his neighbors that
they could help themselves to crops from the garden. Larry contends that this
testimony provides a sufficient basis for the trial court’s finding that “[t]he annual
growing and harvesting of the garden was done by [Larry] or others with [Larry’s]
permission.” Larry also asserts that the trial court may have discredited Paul Tullius’
testimony due to his age, physical and mental condition, and because he admitted bias
at trial, i.e., he confessed he would like to see Stephanie win the lawsuit because Larry
named him as a necessary party in his original pleading.
{¶26} To demonstrate exclusive use, an adverse claimant bears the burden of
establishing clear and convincing evidence of: (1) use of the property that would
characterize an owner’s use; and (2) use of the property that is “exclusive of the true
owner entering onto the land and asserting his right to possession.” Crown Credit Co.
Washington App. No. 10CA7 10
v. Bushman, 170 Ohio App. 3d 807, 2007-Ohio-1230, 869 N.E.2d 83, at ¶53, citing
Klinger v. Premier Properties (Nov. 17, 1997), Logan App. No. 8-97-10, 1997 WL
722771, in turn citing Walls v. Billingsley (Apr. 28, 1993), Allen App. No. 1-92-100, 1993
WL 135808. See, also, Thompson, supra, at 833.
{¶27} Stephanie’s argument here is clearly challenging the manifest weight of
the evidence. In effect, Stephanie contends that the Tullius’ testimony, had it been
given more weight by the trial court, should have precluded the court from finding clear
and convincing evidence of exclusive use. Credibility determinations of this sort are
almost exclusively reserved for the fact-finder. The trial court was free to accept all,
part, or none of the Tullius’ testimony that contradicted Larry’s assertions regarding
exclusive use of the garden area. See Holm v. Smilowitz (1992), 83 Ohio App. 3d 757,
778-779, 615 N.E.2d 1047.
{¶28} As Larry contends, there is some competent and credible evidence in the
record that he exclusively used or possessed the garden area. Planting, plowing,
general maintenance, and harvesting of a garden plot is conduct consistent with its
ownership. Larry offered this sort of evidence when he testified that no one other than
himself planted, plowed or otherwise tended to the garden. However, he admitted
allowing the subsequent owners of the John Pottmeyer plot -- with whom he “got along
with great” -- to pick crops from the garden.
{¶29} In this regard, Stephanie contends that Larry’s “sharing” of the crops with
his neighbors, i.e., Stephanie’s predecessors in interest and the record owners of the
garden area, would preclude a finding of exclusive use. This aspect of Stephanie’s
Washington App. No. 10CA7 11
argument is legal in nature, i.e., she proposes that this sort of “sharing” of property
precludes a finding of exclusive use as a matter of law.
{¶30} Stephanie cites Yoho v. Robertson (Apr. 19, 1991), Carroll App. No. 590,
1991 WL 66207, for the proposition that “sharing” of property by an adverse claimant
with a true owner precludes a finding of exclusive use or possession. In Yoho, the
adverse claimant owned a quarter-interest in land as a tenant in common with his three
siblings. Id. at *1. The claimant alleged that in 1954 he entered into a written agreement
to acquire all interest in the property from the sibling co-tenants. In 1988, two of the
siblings sought to partition the property. The claimant defended the suit on the basis
that he owned the property via the written agreement. Id. at *2. In the alternative, he
argued that he acquired it by adverse possession. Id. at *3.
{¶31} At trial, the court rejected the written agreement because it did not qualify
as a deed. Id. at *2. The trial court also rejected the claimant’s argument that he
acquired the property by adverse possession. Id. at *3. The appellate court affirmed,
noting that the undisputed facts established that the claimant had not occupied the land
exclusively because two sibling co-tenants resided on the property during the alleged
period of adverse possession. Id.
{¶32} Thus, Yoho is distinguishable. First, the status of the parties as co-
tenants is a point of distinction. In a tenancy in common, co-tenants have the same
rights to the use and possession of the property. Collins v. Jackson (1986), 34 Ohio
App.3d 101, 103, 517 N.E.2d 269. Therefore, a co-tenant adverse claimant generally
cannot acquire property held in co-tenancy by mere possession of the property because
that possession is presumed consistent with the other co-tenants’ right to enter the land
Washington App. No. 10CA7 12
at any time. Farmers’ & Merchants’ Natl. Bank v. Wallace (1887), 45 Ohio St. 152, 164-
165, 12 N.E. 439 (“his possession will be regarded, not only as a declaration of his own
proprietary rights, but those of his co-tenants as well.”); see, also, Grace, supra, at 580,
fn.1. Therefore, a co-tenant seeking to adversely possess property in co-tenancy must
demonstrate a “positive and overt act connected with his exercise of ownership, such as
will manifest an unmistakable intention on his part to exclude his co-tenants from the
enjoyment of the property.” Farmers at 165. Consequently, it is a difficult task for one
co-tenant to adversely possess property from other co-tenants. He must do something
more than merely possess or use the property.
{¶33} In our case, Larry was a trespasser, not a co-tenant. Larry’s use of the
garden area would not be, as in the case of a co-tenancy, also consistent with the rights
of the true owners. Even though Larry had no right to enter into the garden area, for
twenty-one years he exclusively plowed, planted, and maintained the garden to the
exclusion of the true owners. Larry’s actions in this regard were consistent with sole
ownership of the property.
{¶34} Second, the “sharing” at issue in Yoho was of the residential use of the
premises. But here, Larry gratuitously “shared” the crops of a small garden area with
the true owners. Because co-tenants have equal right to the use and enjoyment of the
property in a tenancy in common, residing on that property or receiving crops from it
could be a use consistent with shared ownership.
{¶35} But here, there was no co-tenancy relationship and Larry said he gave the
Raneys and Wardens permission to enter into the garden area only to remove crops.
This, he explained, was because they were good neighbors. Unless the facts suggest
Washington App. No. 10CA7 13
otherwise, gratuitous sharing of produce from a garden by an adverse claimant is
consistent with the adverse claimant’s ownership. In fact, it is a quite normal and
common occurrence between neighbors with good relations. Therefore, the fact that
Larry shared crops from his garden with his neighbors would not preclude a finding by
clear and convincing evidence of exclusive use and possession of the property.
4. Continuous Use
{¶36} Stephanie also argues that Larry failed to offer clear and convincing
evidence that he continuously used the garden area for twenty-one years. Stephanie
suggests that Larry did not continuously maintain the garden during the time period
when the Raneys purchased the property (1987) until Warden sold the property (1998).
This proposition also attacks the weight of the evidence. Paul Tullius claimed that he
did not see Larry maintain the garden until after Warden sold the property in 1998. In
response, Larry contends that he testified that he planted and maintained the garden
each year during the alleged period of adverse possession.
{¶37} To demonstrate continuous use an adverse claimant must show that there
was no “substantial interruption” in his use of the property. Bullion v. Gahm, 164 Ohio
App.3d 344, 2005-Ohio-5966, 842 N.E.2d 540, at ¶20. Daily or weekly use is not
required, as long as the use shown is continuous enough to indicate “prolonged and
substantial use.” Id. quoting Ault v. Prairie Farmers Co-Operative Co. (1981), Wood
App. No. WD-81-21, 1981 WL 5788.
{¶38} The court found that “[t]he garden area and access to it were used by
[Larry] continuously since he acquired his land. The annual growing and harvesting of
the garden was done by [Larry] or others with his permission.” Again, there is
Washington App. No. 10CA7 14
competent and credible evidence in the record to support this finding. Larry testified
that a garden existed in that area for over forty years before he owned the property. He
stated that he continued to care for the garden and planted it each year since he took
possession of his land in 1969. Although the Tullius’ testimony clearly contradicted
Larry’s assertion concerning the garden – the trial court was free to accept all, part, or
none of this testimony. The trial court could rely on Larry’s testimony to establish clear
and convincing evidence of continuous use.
{¶39} Apparently in the alternative, Stephanie suggests that Larry’s use of the
garden was too infrequent or occasional to establish continuous use. Larry testified that
he planted, plowed, and maintained the garden each year beginning in 1969. The
parties testified that the garden was used predominantly in late spring, the summer, and
into early fall and lay dormant the remainder of the year. In the case of a small garden
area, under most circumstances annual planting, plowing, maintenance, and harvesting
during the productive seasons, and non-use during non-productive seasons amounts to
substantial and prolonged use, i.e., it is consistent with an owner’s use of the property.
Consequently, we hold that Larry presented some competent and credible evidence that
supports the trial court’s finding of exclusive and continuous use of the garden area for
the requisite time period.
B. The Presumption Concerning Adverse Possession between Family Members
{¶40} In her second issue, which relates to both the garden and the shed,
Stephanie contends that the trial court failed to apply a presumption that arises
regarding adverse possession claims between family members. Stephanie cites Arthur
v. Arthur (Dec. 4, 1997), Jackson App. No. 97CA797, 1997 WL 764477 and Kallner v.
Washington App. No. 10CA7 15
Wells, Scioto App. No. 05CA3030, 2006-Ohio-4634, for the proposition that use of
property by family members is presumed to be permissive. Stephanie implies that (1)
Larry submitted insufficient evidence to overcome this presumption; and (2) the trial
court erred by failing to include this presumption in its decision. In response, Larry
argues that Stephanie failed to present this argument either at trial or in her proposed
findings of fact and conclusions of law post-trial and has waived it for purposes of
appeal. In the alternative, Larry contends that neither Arthur nor Kallner is controlling
and even if they are, the evidence submitted was sufficient to overcome such a
presumption, i.e., he “burst the bubble” of the presumption.
{¶41} The failure to raise an argument before the trial court typically results in a
waiver of that argument for purposes of appeal. Stores Realty Co. v. Cleveland (1975),
41 Ohio St. 2d 41, 43, 322 N.E.2d 629. In her Reply Brief, Stephanie argues she did not
waive the presumption of permissive use between family members because she
disputed that John “acquiesced” to Larry’s position regarding the boundary dispute by
doing nothing, i.e., she contested the consent element.
{¶42} Specifically, Stephanie argues that she brought up the issue of permissive
use between family members during her attorney’s cross-examination of John
Pottmeyer. The discussion concerned the boundary line dispute in 1977:
Q: Okay. Now, did -- when you -- first of all, you hired a surveyor and he determined
that the boundary was different than where Larry thought it was and in fact, where you
thought it was?
A: Right.
Q: So you now have two surveyors saying different things?
A: Yes.
Washington App. No. 10CA7 16
Q: Did you and Larry have disagreements over it?
A: Well, yeah. He -- he agreed with his and well, I said, I don't know. I said --
Q: Well, you had a surveyor.
A: Yeah.
Q: Did you not agree with him?
A: Well, I -- yes, I agreed with him. I had to. I don't -- I don't -- I'm not a surveyor.
Q: Okay. Well, I notice in the -- in the notes from Mr. Mulryan’s survey or somewhere,
that Mr. Schultheis refers to the surveying project as Larry Pottmeyer versus John
Pottmeyer. It sounded like there was a dispute.
A: Well, there was a dispute over the line and who was right and who was wrong, and I
don’t -- like I says, and I didn’t care.
***
Q; Okay, well, you built -- you built -- you saw him build the building.
A: Yes.
Q: And in 1977, you got into a dispute about it. Do you ever remember him changing
the size of the building while you were there, at a later date?
A: No, I don’t remember.
Q: Okay. So, in 1977, you knew there was a dispute, you knew you might own it?
A: Well, I, yeah, there was a dispute on the two surveyors, yes.
Q: Okay. And what you’re telling us is, if you owned it, you didn’t care if he used it?
A: Well, I -- I wasn’t going to get in a big fight over a few feet of ground, if that’s what
you’re asking.
Q: Because he’s your brother?
A: Well, no, I don’t care who it would have been.
Q: Okay. But at least, from 1977 on, you knew that -- that there was a dispute? You
knew it wasn’t -- that it might be your property, it might be his?
A: Right.
Washington App. No. 10CA7 17
Tr. 56-59. (Emphasis supplied.)
{¶43} Stephanie contends that the italicized remarks above indicate that she
was injecting the issue of permissive use between family members into the trial.
Assuming this to be true, we find nothing addressing this issue in Stephanie’s proposed
findings of fact and conclusions of law.
Moreover, it seems clear from the above testimony that John never indicated he
gave permission to Larry to use the property. Instead, he was unsure of whether he
owned the land upon which the machinery shed was built. He recognized that he might
own it, but he was not sure. Either way, John did not feel that it was an issue worth
pursuing. And when asked if he did not pursue the boundary line dispute because his
brother was involved, John stated that it did not matter that it was his brother. His
testimony indicates that he was simply no longer interested in determining the true
boundary and it would not have mattered who the dispute was with. Accordingly, we
hold that Stephanie did not preserve this issue for purposes of appeal.
IV. Conclusion
{¶44} We hold that the trial court properly vested title in the garden area to Larry
through adverse possession. The record contains some competent and credible
evidence that Larry exclusively and continuously possessed and used the garden area
for twenty-one years. Additionally, Stephanie has waived her argument on the
applicability of a presumption of permissive use between family members. Thus, we
affirm the decision of the trial court.
JUDGMENT AFFIRMED.
Washington App. No. 10CA7 18
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellants shall pay
the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Washington County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.
Abele, J. & Kline, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.