Hall v. Dasher , 2022 Ohio 1735 ( 2022 )


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  • [Cite as Hall v. Dasher, 
    2022-Ohio-1735
    .]
    COURT OF APPEALS
    STARK COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    JUDGES:
    MARY S. HALL, INDIVIDUALLY AND                :       Hon. Earle E. Wise, P.J.
    AS CO-TRUSTEE OF HALL LIVING                  :       Hon. W. Scott Gwin, J.
    TRUST, ET AL                                  :       Hon. Wiliam B. Hoffman, J.
    :
    Plaintiffs-Appellees    :
    :       Case No. 2021CA00111
    -vs-                                          :
    :
    CAROLEE DASHER                                :       OPINION
    Defendant-Appellant
    CHARACTER OF PROCEEDING:                          Civil appeal from the Stark County Court of
    Common Pleas, Case No. 2020CV00725
    JUDGMENT:                                         Affirmed
    DATE OF JUDGMENT ENTRY:                           May 24, 2022
    APPEARANCES:
    For Plaintiffs-Appellees                          For Defendant-Appellant
    DEAN A. YOUNG                                     WARNER MENDENHALL
    507 Canton Road                                   190 North Union Street, Ste. 201
    Akron, OH 44312                                   Akron, OH 44304
    [Cite as Hall v. Dasher, 
    2022-Ohio-1735
    .]
    Gwin, J.
    {¶1}     Appellant Carolee Dasher appeals the judgment entry of the Stark County
    Court of Common Pleas awarding appellees Mary and Robin Hall a prescriptive easement
    over appellant’s property, and awarding the Halls’ adverse possession of a narrow strip
    of appellant’s easternmost property.
    Facts & Procedural History
    {¶2}     Appellees own three parcels of real estate located in Lake Township. They
    are known as Tax Parcel #2201353 (addressed at 3662 Edison Street NW), Tax Parcel
    #2200247 (located to the south of 3662 Edison Street NW and north of 12981 Millview
    Avenue NW), and Tax Parcel #2200395 (addressed at 12981 Millview Avenue NW).
    Appellees purchased Parcel #2200395 in 1979, and constructed a garage on that
    property in 1990. Appellees purchased Parcel #2200247 in 1986; they constructed a
    garage on that property in 1996. Appellees purchased Parcel #2201353 at sheriff’s sale
    in 2018.       The property had previously been owned by Thomas Kiss (“Kiss”), who
    purchased the property in 1972, and constructed a driveway in 1975. There is an asphalt
    drive (“Spring Avenue”) that runs across a portion of appellant’s property adjacent to its
    eastern boundary and extending south from Edison Street to connect with properties
    located to the north. Appellees have used Spring Avenue to access their properties since
    purchasing them.
    {¶3}     Appellant is the owner of the real property known as Tax Parcel #2200885,
    with the address of 3960 Edison Street NW. She moved into the property on October 30,
    2017. At the time appellant purchased her property, she believed Spring Avenue was a
    dedicated roadway. When she moved in, Spring Avenue was marked by a street sign, a
    Stark County, Case No. 2021CA00111                                                          3
    stop sign, and a “no outlet” sign. The signs were removed sometime after October 30,
    2017. Shortly after purchasing her property, appellant contacted Lake Township to
    request maintenance on Spring Avenue. Lake Township officials advised appellant that
    Spring Avenue was not a township road.
    {¶4}   On November 30, 2019, appellant contacted the Uniontown Police
    Department to report trespassing based upon appellees’ use of Spring Avenue. The
    officer declined to arrest appellees and advised appellant to file a written report. Based
    upon the officer’s refusal to arrest appellees, appellant filed a complaint against the
    officer. Appellant’s complaint was determined to be unfounded, and no further action was
    taken. Appellant again contacted the police in 2020 to have appellees arrested for
    trespass due to the use of Spring Avenue.
    {¶5}   Appellant filed a document with the Stark County Recorder on January 13,
    2020, purporting to redefine the Spring Avenue right-of-way to exclude appellees and
    others from its use. Appellant also publicly declared her intent to construct a fence to limit
    appellees’ use of Spring Avenue.
    {¶6}   On April 24, 2020, appellees filed a complaint against appellant for
    declaratory judgment and injunctive relief. Appellees averred they, along with members
    of the general public, have used a portion of appellant’s property, measuring 240’ in length
    and 16’ in width, running along the entire east boundary line of appellant’s parcel, for
    travel by motor vehicles and foot traffic, in an open and continuous way for a period in
    excess of 21 years.
    {¶7}   Appellant filed an answer and counterclaims for quiet title and trespass on
    June 4, 2020. Appellees filed an answer to appellant’s counterclaims on June 29, 2020.
    Stark County, Case No. 2021CA00111                                                       4
    Michael Aube (“Aube”) filed a motion to intervene on November 6, 2020, which the trial
    court granted. Aube filed his complaint on December 14, 2020.
    {¶8}   Appellees filed a motion for summary judgment on their complaint on April
    26, 2021. Appellees attached numerous affidavits and exhibits to their motion. Appellant
    filed a motion for partial summary judgment, as to her trespass claims, on May 5, 2021.
    Appellees filed a supplement to their motion for summary judgment, and simultaneously
    filed a motion to amend their complaint to include an adverse possession claim with
    regards to the land between the eastern line of the prescriptive easement and appellant’s
    eastern boundary line. The parties each filed responses and replies to the motions.
    {¶9}   In their motion, appellees submitted numerous affidavits of neighbors,
    stating appellees have used Spring Avenue to access their properties since moving in,
    and that others have used Spring Avenue in the same manner for 41 years. Appellees
    also included multiple other exhibits, including a March 1995 certified copy of a Lake
    Township map that lists “Spring Avenue,” but has an asterisk by it. The map legend
    provides this asterisk “indicates private streets.”
    {¶10} Appellees also attached to their motion a certified copy of a complaint and
    judgment entry from the Stark County Common Pleas Court in 1970. Butler v. Imhoff,
    Stark C.P. No. 114383 (Aug. 17, 1970). In the complaint filed on April 13, 1970, the
    plaintiffs (eight property owners of properties surrounding appellees’ properties), alleged
    that William Imhoff, the predecessor-in-interest to appellant’s property, erected barriers
    over the alleyway extending from Edison Street N.W. southwardly approximately 816 feet
    in the form of metal poles, wooden poles, and signs. On August 12, 1970, the trial court
    issued a judgment entry in the case. The trial court found the plaintiffs had an easement
    Stark County, Case No. 2021CA00111                                                        5
    by prescription for roadway purposes over the property owned by William Imhoff. The
    easement covers the same location at issue in this case. The court then stated the
    roadway was a private road and ordered the plaintiffs to erect a permanent sign at the
    entrance to the alleyway stating “Private Drive – Residents Only.” Further, “said sign shall
    be permanent in nature and portray such words in a clear and legible manner, so that the
    same are capable of notice and apparent to persons entering said roadway from the
    public thoroughfare known as Edison Street (Route 619).” Additionally, the trial court
    ordered William Imhoff not to interfere with the “Private Drive” sign.
    {¶11} Appellant submitted an affidavit in support of her summary judgment motion
    and in response to appellees’ motion.         She also submitted records maintained by
    township and county officials. “Spring St.” is listed on a road inventory sheet in June of
    1954. A 2001 Lake Township Road Department form references a pot hole repair on
    Spring Avenue. Appellant also provided a report (dated January 1, 1954) submitted by
    Lake Township to the Director of Highways, which included Spring Avenue as part of its
    inventory and certification of the “actual number of miles of rural Township roads under
    the statutory jurisdiction which are used by and maintained for the public by the Township
    Trustees of Lake Township.” However, the list of streets attached to the report, including
    Spring Avenue, states it is a list of “Private Rds.”
    {¶12} Appellant also submitted an e-mail from 2008, in which an employee from
    the Stark County Engineer’s Office sent a request to the Ohio Department of
    Transportation to have Spring Avenue removed from its inventory as a public road. The
    e-mail states, “Lake Township has a street that has been maintained under the
    assumption that it was a public street. Once they found out it was a private street they
    Stark County, Case No. 2021CA00111                                                      6
    ceased maintenance for legal purposes. The Trustees, along with myself, would like to
    [sic] request that the street be removed from the inventory as a public street * * *.” The
    e-mail did not request that Spring Avenue be vacated or abandoned as a public road.
    {¶13} The trial court issued a judgment entry on August 17, 2021.
    {¶14} With regards to appellees’ motion to amend complaint, the trial court
    granted appellees’ motion to include a claim for adverse possession as to the narrow
    portion of appellant’s property between the eastern border of Spring Avenue and the
    eastern border of appellant’s property.
    {¶15} The trial court found there was not a common law dedication of Spring
    Avenue; rather, the evidence establishes that Lake Township incorrectly assumed it
    owned Spring Avenue, when it did not. Further, that any maintenance or inclusion of
    Spring Avenue as a public road was not the result of an offer and acceptance of Spring
    Avenue as a common law dedication; rather, the evidence demonstrates that both the
    maintenance and inclusion of Spring Avenue as a public road was because of a mistake.
    The court found the affidavit of Thomas Imhoff insufficient to support a finding of common
    law dedication, as there was no evidence to refute the fact that there was no formal or
    implied acceptance by Lake Township, and any maintenance done was purely by
    mistake.
    {¶16} The trial court determined appellees’ use of Spring Avenue was done
    openly, notoriously, continuously, and adverse to appellant for more than the required
    statutory period of 21 years. Specifically, the court found appellees use of Spring Avenue
    has existed since 1979 as to Parcel #2200395, since 1986 as to Parcel #2200247, and
    since the early 1970’s, by way of tacking, as to parcel #2201351. Thus, the court granted
    Stark County, Case No. 2021CA00111                                                       7
    an easement 240’ long and 16’ wide. The easement specifically includes the berm portion
    of appellant’s eastern property.
    {¶17} The trial court denied appellant’s motion for partial summary judgment on
    her trespass claim, and granted appellees’ judgment on the trespass claim since an
    easement exists as to Spring Avenue.
    {¶18} With regards to appellees’ adverse possession claim, the trial court found
    appellees satisfied all of the elements necessary, by clear and convincing evidence, to
    acquire title by adverse possession to the grass and landscaping area located between
    the eastern border of the asphalt drive and the eastern border of appellant’s property,
    including, but not limited to, the asphalt apron used to enter the concrete driveway off of
    Spring Avenue (Parcel #2201353).
    {¶19} The trial court found appellees’ use of the subject area was more than mere
    maintenance of the land, as, in addition to mowing and planting in the subject area,
    appellees maintain a drainage drywell that was constructed by Kiss and maintain the
    asphalt apron. Further, appellees removed debris from the property. Accordingly, the
    trial court denied appellant’s motion for summary judgment as to trespass on the grass,
    landscaping, and apron area, and granted appellees’ motion for summary judgment.
    {¶20} The trial court ordered appellees to submit a final judgment entry.
    {¶21} Appellees submitted a final judgment entry in accordance with the trial
    court’s August 17th decision. The trial court signed the judgment entry on September 20,
    2021. The judgment entry includes the metes and bounds description of the prescriptive
    easement. Further, the judgment entry permanently enjoins appellant from: obstructing
    or interfering with passage of any persons or vehicles for ingress and egress over the
    Stark County, Case No. 2021CA00111                                                        8
    portion of land subject to the easement; placing any structure, device, or fence that would
    interfere with travel across the portion of land subject to the easement; and obstructing
    or limiting appellees’ access to the established driveway to the property at 3662 Edison
    Street and to the properties south of appellant.
    {¶22} Appellant filed a motion for relief from judgment pursuant to Civil Rule 60(B)
    on September 22, 2021, arguing she was deprived of her ability to answer or otherwise
    respond to appellees’ amended complaint. Appellees filed a response on September 28,
    2021.
    {¶23} On October 5, 2021, the trial court denied appellant’s motion for relief from
    judgment. The court reasoned that the adverse possession claim was already included
    in appellees’ original complaint. Further, the facts surrounding the adverse possession
    claim were fully briefed by the parties. Thus, there was no surprise or prejudice to
    appellant.
    {¶24} The trial court entered a final judgment entry nunc pro tunc on October 5,
    2021 that includes the precise legal description and tax parcel number of intervening
    plaintiff Aube’s property.
    {¶25} Appellant appeals the final judgment entry of the Stark County Court of
    Common Pleas and assigns the following as error:
    {¶26} “THE TRIAL COURT ERRED IN GRANTING APPELLEES’ MOTION FOR
    LEAVE TO AMEND THEIR COMPLAINT TO INCLUDE AFFIRMATIVE RELIEF OF
    ADVERSE POSSESSION AND FAILING TO ALLOW APPELLANT TO ANSWER THE
    AMENDED COMPLAINT BEFORE GRANTING JUDGMENT ON THE AMENDMENT.
    Stark County, Case No. 2021CA00111                                                      9
    {¶27} “II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
    TO APPELLEES BY AWARDING THEM A PRESCRIPTIVE EASEMENT.
    {¶28} “III. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
    TO APPELLEES BY AWARDING THEM RELIEF OF ADVERSE POSSESSION.”
    I.
    {¶29} In her first assignment of error, appellant argues the trial court committed
    error in granting appellees’ motion for leave to amend their complaint to include a claim
    for adverse possession.
    {¶30} Many of the arguments made by appellant as to the granting of the leave to
    amend came in the form of a Civil Rule 60(B) motion filed after the trial court issued the
    judgment entry granting the motion to amend. However, appellant states in her brief that
    she is not appealing the denial of the Civil Rule 60(B) motion.
    {¶31} A trial court’s determination whether to grant a motion for leave to amend a
    complaint will not be reversed on appeal absent an abuse of discretion. Cantleberry v.
    Holbrook, 5th Dist. Richland No. 12CA75, 
    2013-Ohio-2675
    ; Wilmington Steel Products,
    Inc. v. Cleveland Elec. Illuminating Co., 
    60 Ohio St.3d 120
    , 
    573 N.E.2d 622
     (1991). In
    order to find an abuse of discretion, we must determine the trial court’s decision was
    unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment.
    Blakemore v. Blakemore, 
    5 Ohio St.3d 217
    , 
    450 N.E.2d 1140
     (1983).
    {¶32} Civil Rule 15 provides leave should be freely given when “justice so
    requires” and to “amend pleadings to conform to the evidence.” Key Bank Nat’l Assn v.
    Bolin, 5th Dist. Stark No. 2010 CA 00285, 
    2011-Ohio-4532
    ; Hall v. Bunn, 
    11 Ohio St.3d 118
    , 
    464 N.E.2d 516
     (1984); Cantleberry v. Holbrook, 5th Dist. Richland No. 12CA75,
    Stark County, Case No. 2021CA00111                                                      10
    
    2013-Ohio-2675
    . Courts have focused on whether there is a showing of bad faith, undue
    delay, or prejudice to the opposing party. Turner v. Central Local School Dist., 
    85 Ohio St.3d 95
    , 
    706 N.E.2d 1261
    ; Key Bank Nat’l Assn. v. Bolin, 5th Dist. Stark No. 2010 CA
    00285, 
    2011-Ohio-4532
    . Prejudice to an opposing party is the most critical factor to be
    considered in determining whether to grant leave to amend. Hoskinson v. Lambert, 5th
    Dist. Licking No. 06 CA 037, 
    2006-Ohio-6940
    .
    {¶33} In this case, there is no indication of bad faith by appellees. Further, there
    is no evidence the amendment caused undue delay or prejudice to appellant. In her
    response to appellees’ motion for leave to amend, appellant stated she objected to the
    amendment to the complaint because the trial was scheduled in approximately two
    months and summary judgment motions had been filed. However, after appellees moved
    to amend the complaint, the trial court continued the trial court indefinitely and granted
    appellant an extension of time to respond to appellees’ motions.
    {¶34} Additionally, the adverse possession claim was fully briefed by both parties.
    Appellant fully addressed the adverse possession claim in her June 2, 2021 reply. In the
    reply, appellant argued that, as a matter of law, appellees’ claims were insufficient to
    establish adverse possession. Further, appellant moved for summary judgment on her
    claims for appellees’ alleged trespass on the strip of land consisting of the asphalt drive
    and the grassy area east of the asphalt drive, and submitted a document showing the true
    boundary line. Adverse possession was also at issue in the briefing of that motion.
    {¶35} Appellant contends the trial court could not properly grant summary
    judgment when appellant did not have an opportunity to respond to the allegations in the
    amended complaint. As detailed above, the trial court moved the trial date, and both
    Stark County, Case No. 2021CA00111                                                          11
    parties, including appellant, fully briefed the issue. The parties specifically argued as to
    whether adverse possession was prohibited as a matter of law. Appellant had sufficient
    notice of the assertion of the claim so that she was not prejudiced.
    {¶36} Finally, the initial pleadings in this case were sufficient for a determination
    by the trial court. Civil Rule 8(A) requires a “short and plain statement of the claim
    showing that the party is entitled to relief.” In appellees’ complaint, they asserted claim
    to appellant’s property running along the entire eastern boundary line and stated the use
    was adverse to appellant’s property rights. In response to appellees’ complaint, appellant
    stated in her counterclaim for quiet title and trespass, that “Plaintiffs’ claim entitlement to
    possession of a portion of Defendant’s property as set forth in Plaintiffs’ complaint.
    Defendant seeks an order declaring Plaintiffs’ purported claim to be invalid and
    unenforceable by Plaintiffs and quieting title to Defendant * * * Defendant asks this Court
    quiet the title to Defendant against the adverse claim made by Plaintiffs.” In appellees’
    answer to the counterclaim, they state, “they claim entitlement to use of a portion of
    Defendant’s property under established principles of law” and that the trespass/quiet title
    claims are barred by the statute of limitations, which occurred more than 21 years prior
    to the filing of the counterclaim. Wagoner v. Obert, 5th Dist. Fairfield No. 07 CA 31, 2008-
    Ohio-7041 (adverse possession may be asserted as an affirmative defense to bar the
    owner of the record title from asserting by reason of the running of a 21-year statute of
    limitations). Thus, the trial court did not commit error in ruling on the adverse possession
    claim.
    {¶37} Appellant’s first assignment of error is overruled.
    Stark County, Case No. 2021CA00111                                                         12
    II.
    Summary Judgment Standard
    {¶38} Civil Rule 56 states, 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 most 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.
    {¶39} A trial court should not enter 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 Inds. Of Ohio, Inc., 
    15 Ohio St.3d 321
    , 
    474 N.E.2d 271
     (1984). A
    Stark County, Case No. 2021CA00111                                                        13
    fact is material if it affects the outcome of the case under the applicable substantive law.
    Russell v. Interim Personnel, Inc., 
    135 Ohio App.3d 301
    , 
    733 N.E.2d 1186
     (6th Dist.
    1999).
    {¶40} 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
    .
    {¶41} In her second assignment of error, appellant contends the trial court
    committed error in granting summary judgment to appellees on their prescriptive
    easement claim.
    {¶42} “Prescription is the acquisition of an easement, over the property of another,
    through adverse use of that property.”        Crawford v. Matthews, 4th Dist. Scioto No.
    97CA2555, 
    1998 WL 720734
     (Sept. 21, 1998). Prescriptive easements are not favored
    in the law. 
    Id.
    {¶43} Under Ohio law, in order to obtain a prescriptive easement, a landowner
    using adjacent property must prove, by clear and convincing evidence, that such use was
    open, notorious, adverse to the neighbor’s property rights, continuous, and in place for at
    least twenty-one years. Williams v. Phillips, 5th Dist. Licking No. 98CA00072, 
    1999 WL 436813
     (June 3, 1999).
    {¶44} Appellees submit their own affidavits and numerous affidavits of neighbors
    stating appellees’ use of the roadway was open, notorious, adverse to appellant’s rights,
    continuous, and in place for at least twenty-one years.
    Stark County, Case No. 2021CA00111                                                       14
    {¶45} Appellant does not dispute the facts contained in these affidavits, but seeks
    to combine two separate legal concepts in order to argue the trial court committed error
    in granting the motion for summary judgment: (1) the prohibition against adverse
    possession and/or prescription against government property and (2) common law
    dedication. Appellant contends that because Spring Avenue became property of Lake
    Township at some point via common law dedication, the period for the alleged adversity
    is not twenty-one years, as property by a government entity is not subject to claims for
    either adverse possession or prescription.
    {¶46} Early Ohio Supreme Court cases allowed adverse possession claims
    against municipalities. Lessee of City of Cincinnati v. First Presbyterian Church, 
    8 Ohio 298
    , 
    1838 WL 5
     (Dec. 1, 1838); Cincinnati v. Evans, 
    5 Ohio St. 594
    , 
    1855 WL 94
    (December 1855).
    {¶47} However, modern appellate court cases have held the state and political
    subdivisions are not subject to property loss by adverse possession or prescription, and
    have limited the holdings in the early Supreme Court cases to instances where there are
    large and valuable structures built on the city’s property. Nusekabel v. Cincinnati Public
    School Employees Credit Union, Inc., 
    125 Ohio App.3d 427
    , 
    708 N.E.2d 1015
     (1st Dist.
    Hamilton 1997); 1540 Columbus Corp. v. Cuyahoga Cty., 
    68 Ohio App.3d 713
    , 
    589 N.E.2d 467
     (8th Dist. 1990).
    {¶48} The rationale is that the same “vigilance” is not expected of a state or
    political subdivision as is expected of private person to “repel” the invasion of his or her
    rights. Houck v. Bd. of Park Commrs. of the Huron Cty. Park Dist., 
    116 Ohio St.3d 148
    ,
    
    2007-Ohio-5586
    , 
    876 N.E.2d 1210
    . While the Ohio Supreme Court has not explicitly ruled
    Stark County, Case No. 2021CA00111                                                         15
    on this issue, it has favorably cited Nusekabel and 1540 Columbus in a case determining
    that property owned by a park district established pursuant to R.C. Chapter 1545 is not
    subject to adverse possession. 
    Id.
    {¶49} The legal theory that adverse possession and/or prescriptive easements
    cannot be had against the state or a political subdivision has been limited in its application
    to cases in which the political subdivision or municipality is a party in the case, and has
    not been extended to cases in which private citizens assert the rights of the state or
    political subdivision. Nusekabel v. Cincinnati Public School Employees Credit Union, Inc.,
    
    125 Ohio App.3d 427
    , 
    708 N.E.2d 1015
     (1st Dist. Hamilton 1997) (appellant is the City of
    Cincinnati, who argues their property is not subject to prescriptive easement); Rising v.
    Litchfield Board of Township Trustees, 9th Dist. Medina No. 11CA0079-M, 2012-Ohio-
    2239 (township argues can’t have prescriptive easement against its property); Neitz v.
    Village of Lakemore, 9th Dist. Summit No. 19730, 
    2000 WL 1796384
     (Nov. 15, 2000)
    (Village of Lakemore is the appellee, arguing can’t have prescriptive easement against
    municipality); Anderson v. Village of Alger, 3rd Dist. Hardin No. 6-98-10, 
    1999 WL 378377
    (May 14, 1999) (appellee Village of Alger argues can’t have adverse possession on
    government land); Bonham v. Hamilton, 12th Dist. Butler No. CA2006-02-0030, 2007-
    Ohio-349 (appellee City of Hamilton argued no adverse possession against municipality);
    Law v. Lake Metroparks, 11th Dist. Lake No. 2006-L-072, 
    2006-Ohio-7010
    , affirmed 
    116 Ohio St.3d 322
    , 
    2007-Ohio-6749
    , 
    878 N.E.2d 1046
     (parks district is a political subdivision
    of the State; thus, its property cannot be taken by adverse possession); 1540 Columbus
    Corp. v. Cuyahoga Cty, 
    68 Ohio App.3d 713
    , 
    589 N.E.2d 476
     (8th Dist. 1990) (no adverse
    possession against appellee Cuyahoga County); City of Bryan v. Killgallon, 6th Dist.
    Stark County, Case No. 2021CA00111                                                     16
    Williams No. 22551, 
    1981 WL 5791
     (Sept. 25, 1981) (city is appellee; title by adverse
    possession can’t be acquired against a municipal corporation just as it cannot be acquired
    against a state); Wyatt v. Ohio Dept. of Transp., 
    87 Ohio App.3d 1
    , 
    621 N.E.2d 822
     (11th
    Dist. 1993) (no adverse possession against State of Ohio; State of Ohio is appellee); City
    of Cleveland Hts. v. City of Cleveland, 8th Dist. Cuyahoga No. 79167, 
    2001 WL 1400015
    (Nov. 8, 2001) (properties in question maintained by East Cleveland and Cleveland
    Heights, so adverse possession cannot be applied against them); Wilson v. S. Euclid,
    8th Dist. Cuyahoga No. 103067, 
    2016-Ohio-3258
     (no adverse possession against South
    Euclid).
    {¶50} However, in this case, appellant, as a private citizen, seeks to enforce the
    rights of the township, despite the fact the township is not a party in this case.
    {¶51} We seriously question whether the holding that adverse possession and/or
    prescriptive easements cannot be had against the state or a political subdivision is
    applicable in a case where the party seeking to utilize this theory is a private citizen,
    without the state or political subdivision being a party in the case, and when the
    unrebutted evidence demonstrates any action taken by the township was a mistake.
    Unlike in the cases cited above, Lake Township is not subject to the loss of any property
    in this case, as they have stated Spring Avenue is not a public road. The person subject
    to the loss by prescription or adverse possession in this case is appellant.
    {¶52} However, even if we move to the second portion of appellant’s argument,
    we find the trial court did not commit error in finding common law dedication inapplicable
    in this case.
    Stark County, Case No. 2021CA00111                                                       17
    {¶53} Generally, three elements are necessary to constitute a proper and
    complete common law dedication. Mastera v. City of Alliance, 
    43 Ohio App.3d 120
    , 
    539 N.E.2d 1130
     (5th Dist. 1987). A common law dedication can be proven upon the showing
    of the following three elements: (1) the existence of an intention on the part of the owner
    to make such dedication; (2) an actual offer on the part of the owner, evidenced by some
    unequivocal act, to make such dedication; and (3) the acceptance of such offer by or on
    behalf of the public. 
    Id.
    {¶54} The intention to dedicate may be either express or implied.          
    Id.
       The
    evidence showing an intent to dedicate must be clear and convincing. Becker v. Cox,
    12th Dist. Butler No. CA84-04-044, 
    1985 WL 8688
     (June 10, 1985). Both parties agree
    there is no express dedication in this case. However, appellant argues the affidavit of
    Thomas Imhoff demonstrates intent to dedicate because Thomas Imhoff “always thought
    it was a road” and “in the 1970’s or 1980’s, it was named Spring Avenue. A sign to that
    effect was put up.” Thomas Imhoff is the son of the previous owner of appellant’s
    property, William Imhoff.
    {¶55} We find this affidavit is not sufficient to create a genuine issue of material
    fact due to the Stark County Court of Common Pleas’ holding in Butler v. Imhoff. The
    evidence demonstrates the roadway known as Spring Avenue was judicially declared to
    be a private road in August of 1970. The unrebutted evidence demonstrates William
    Imhoff did not intend to make a dedication to the public, and did not make an unequivocal
    act to make a dedication to the public. Rather, he placed poles and signs across the
    roadway, and sought to protect his rights during litigation.
    Stark County, Case No. 2021CA00111                                                       18
    {¶56} While, “intention to dedicate may be demonstrated by the use of the
    property by the public, with mere silent acquiescence therein of the owner, for a period
    sufficient to warrant the inference of an intention to dedicate,” William Imhoff did not
    silently acquiesce to public use; rather, the Stark County Common Pleas Court held there
    was a prescriptive easement over his land after he attempted to keep the public out, the
    court ordered the installation of a permanent “Private Drive” sign, and specifically ordered
    Imhoff not to interfere with the “Private Drive” sign. Mastera v. City of Alliance, 
    43 Ohio App.3d 120
    , 
    539 N.E.2d 1130
     (5th Dist. 1987). Similarly, the township cannot impliedly
    accept public dedication of a road that has been judicially declared to be a private road.
    A determination which would hold that Spring Avenue is or was a public road via common
    law dedication would ignore the 1970 decision by the court.
    {¶57} Acceptance may also be expressed or implied. 
    Id.
     Appellant argues the
    placement of the street signs and maintenance of the road by the township is sufficient to
    constitute acceptance because “acceptance can be manifested by improvements to or
    maintenance of a road” and because acceptance “may result from the continuous use of
    such property by the public, for a period sufficient to warrant an inference of acceptance.”
    
    Id.
    {¶58} Appellant does not dispute that the unrebutted evidence demonstrates the
    maintenance done by the township was a mistake. However, appellant argues this does
    not matter in the common law dedication context. Appellant cites Mastera in support of
    her argument that mistaken belief by a political subdivision does not defeat the
    acceptance element of common law dedication. However, Mastera does not discuss
    mistake with regards to common law dedication. Neither of the parties cite, and this
    Stark County, Case No. 2021CA00111                                                          19
    Court’s research has failed to find, any caselaw that deals with the interplay between
    mistake and common law dedication, and their potential application in the prescription
    and adverse possession context.
    {¶59} Additionally, with regards to the relationship between the legal concepts of
    common law dedication and adverse possession or prescription, the “continuous” element
    (which appellant contends is defeated by the alleged common law dedication), focuses
    on the acts of the owner (appellant) and the adverse user (appellees). Ohio law is clear
    that continuous use is “use that is neither interrupted by the acts of the owner nor
    abandoned by the adverse user” through the 21-year statute of limitations. Miller Land
    Co. v. McCaleb, 4th Dist. Scioto No. 19CA898, 
    2020-Ohio-79
    . In this case, even if the
    township mistakenly put up a sign and performed some maintenance on Spring Avenue,
    neither the acts of the owner (William Imhoff or appellant) nor any abandonment by
    appellees occurred through the 21-year statute of limitations.
    {¶60} In the cases in this district analyzing whether there is common law
    dedication of a public road, the state or political subdivision is a party to the case. Mastera
    v. City of Alliance, 
    43 Ohio App.3d 120
    , 
    539 N.E.2d 1130
     (5th Dist. 1987) (city is the
    defendant in the case); Williams v. Morgan County, 5th Dist. Morgan No. 00 CA 11, 
    2001 WL 1773873
     (June 13, 2001) (plaintiff sued township, arguing a road was dedicated by
    common law); Ickes v. Lawrence Township, 
    161 Ohio App.3d 711
    , 
    2005-Ohio-3195
    , 
    831 N.E.2d 1068
     (plaintiff filed suit against the township seeking determination whether
    roadway was a public roadway); Westerville v. Subject Property, Etc., 5th Dist. Delaware
    No. 08-CAE-03-0007, 
    2008-Ohio-4521
     (City of Westerville is plaintiff arguing common
    law dedication); Landmark, Inc. v. Bd. of Stark Cty. Commrs., 5th Dist. Stark No. CA-
    Stark County, Case No. 2021CA00111                                                      20
    4683, 
    1978 WL 217465
     (Feb. 1, 1978) (trial court found common law dedication of 20-
    foot strip of county road); Welch v. Conrail, Inc., 5th Dist. Stark No. 7420, 
    1988 WL 82167
    (Aug. 1, 1988) (City of Massillon is a defendant). See also other districts, Becker v. Cox,
    12th Dist. Butler No. CA84-04-044, 
    1985 WL 8688
     (party Ross Twp. Trustees argued
    against common law dedication); Snyder v. Monroe Twp. Trustees, 
    110 Ohio App.3d 443
    ,
    
    674 N.E.2d 741
     (2nd Dist. 1996) (political subdivision is defendant/appellee who argued
    there was a common law dedication of easement over the plaintiff’s property to reach the
    park); State ex rel. Fitzthum v. Turinsky, 
    172 Ohio St. 148
    , 
    174 N.E.2d 240
     (1961) (writ
    of mandamus against township trustees to require the township to repair and maintain a
    road).
    {¶61} Appellant seeks to expand the theory of common law public dedication to a
    situation in which the state or political subdivision is not a party in the case, and where
    the undisputed evidence is that any maintenance done by the political subdivision was a
    mistake. We decline to so in this case because: (1) there is unrebutted evidence that any
    maintenance done by the township was a mistake and (2) there was a specific judicial
    determination in 1970 that the roadway known as Spring Avenue is a private road.
    Adversity
    {¶62} Appellant argues even if the doctrine of common law dedication does not
    apply in this case, appellees still cannot meet all the elements of a prescriptive easement
    and adverse possession because there is no adversity.          Appellant contends since
    appellees believed the road was a public road, they lacked the adversity needed to
    produce a prescriptive easement or adverse possession because they believed they were
    using it with permission.
    Stark County, Case No. 2021CA00111                                                         21
    {¶63} A use is “adverse” when it is without the permission of, and is inconsistent
    with the rights of, the property owner.      Crawford v. Matthews, 4th Dist. Scioto No.
    97CA2555, 
    1998 WL 720734
     (Sept. 21, 1998), citing 4 Tiffany, Real Property 804-805 (3
    Ed. 1975) (when wrongful possession was taken under the impression the land belonged
    to the government, the statute of limitations for adverse possession runs because the
    possession is adverse to the rightful owner, who is not excused from asserting his rights).
    “It is not necessary that there be a heated controversy, a manifestation of ill will, or enemy
    between the parties.” 
    Id.
     “When one uses a way over the land of another without
    permission as a way incident to his own land, and continues to do with the knowledge of
    the owner, such use is, of itself, adverse.” Pavey v. Vance, 
    56 Ohio St. 162
    , 
    46 N.E. 898
    (1897). Any use of the land inconsistent with the rights of the titleholder is adverse or
    hostile. Kimball v. Anderson, 
    125 Ohio St. 241
    , 
    181 N.E. 17
     (1932).
    {¶64} The case appellant cites in support of her argument is from the Fourth
    District, Vance v. Roa, 4th Dist. Lawrence No. 99 CA 23, 
    2000 WL 1283075
     (Sept. 7,
    2000), and stated the subjective belief of the appellants that the road was a public
    roadway negates the suggestion that the use was adverse. This conflicts with the Fourth
    District’s holding in Crawford, which provides that subjective belief that someone is using
    the property permissibility is “of no consequence.” Crawford v. Matthews, 4th Dist. Scioto
    No. 97CA2555, 
    1998 WL 720734
     (Sept. 21, 1998). Further, in Vance, the Fourth District
    did not actually decide this issue, as the appellants in the case both testified they had no
    evidence to establish their use of the roadway was adverse because the prior owner of
    the property in question had given keys to neighbors to unlock the fence over the road,
    and their use of the road was infrequent. As this Court has previously stated, ““Ohio law
    Stark County, Case No. 2021CA00111                                                      22
    does not require proof of subjective purpose in a claim of adverse possession.” Arnholt
    v. Carlisle, 5th Dist. Licking No. 10CA91, 
    2011-Ohio-2948
    ; Nixon v. Parker, 5th Dist.
    Licking No. 04 CA 84, 
    2005-Ohio-2375
    ; see also Evanich v. Bridge, 
    119 Ohio St.3d 260
    ,
    
    2008-Ohio-3820
    , 
    893 N.E.2d 481
     (in claim for adverse possession, the intent to possess
    another’s property is objective rather than subjective).
    {¶65} Dasher’s affidavit provides that, during her entire ownership of the property,
    appellees have entered onto her property (both the asphalt drive and area east of the
    asphalt drive) “without [her] authority.” Mary Hall confirmed they never asked permission
    to cross appellant’s lot, and, in 2019 and 2020, appellant called the Uniontown Police and
    wanted the police to bring criminal trespass charges against appellees due to their use of
    Spring Avenue. Dasher told the police this was going on years before she purchased the
    property. Mary Kiss stated that Tom Kiss never asked permission to use the Spring
    Avenue right-of-way to get to the northern parcel.
    {¶66} The statutory 21-year period begins to run from the time the possessor
    enters the property and achieves actual possession. 
    Id.
     The unrebutted evidence in this
    case shows appellees began using the roadway and berm on a continuous basis since
    1979 or 1986, and Kiss used the roadway and berm on a continuous and uninterrupted
    basis since 1975. Appellees’ and Kiss’ use of the property was adverse to appellant and
    her predecessor in title, even if appellees believed they were using the property
    permissively.
    Continuous Use of the Northern Parcel
    {¶67} Appellant also argues, specifically in regards to the northern property,
    appellees cannot establish the continuous use requirement.            Appellant contends
    Stark County, Case No. 2021CA00111                                                         23
    appellees cannot utilize tacking in order to achieve the required 21-year period as to the
    northern parcel previously owned by Kiss. Appellant advance two arguments in this
    regard: first, appellees cannot utilize tacking because purchasers of a tax foreclosure title
    are not in privity with the prior owners; second, since the residence located on the
    northern parcel burned down in 2016, Kiss and/or appellees could not use the easement
    in the “same and similar manner” as he previously did.
    {¶68} It is well-established that in seeking to establish the necessary period for a
    prescriptive easement or adverse possession, a party may add or “tack” his own term of
    adverse use to any period of adverse use by a prior succeeding owner in privity with the
    current owner. Zipf v. Dalgarn, 
    114 Ohio St. 291
    , 
    151 N.E. 174
     (1926). In order to tack,
    it must be established that “(a) the party and her predecessor are in privity; (b) the
    property was sequentially and continuously used; (c) the property was used in the same
    or similar manner; and (d) the use was open, notorious, and adverse to the title holder’s
    interest.” Williams v. Phillips, 5th Dist. Licking No. 98CA00072, 
    1999 WL 436813
     (June
    3, 1999), quoting McNeely v. Langan, 
    22 Ohio St. 21
     (1871). Privity has been defined as
    “the mutual or successive relationship to the same rights of property.” 
    Id.
    {¶69} With regards to appellant’s argument about lack of privity due to a sheriff’s
    sale, a plaintiff who takes title through a sheriff’s deed upon foreclosure sale is in privity
    with its predecessors in title. Berardi v. Ohio Turnpike Comm., 
    1 Ohio App.2d 365
    , 
    205 N.E.2d 23
     (8th Dist. Cuyahoga 1965). This is because at no time in a foreclosure sale
    does title vest in the sheriff; rather, the title remains with the original owner until vested
    directly in the purchaser through the sheriff sale. 
    Id.
     In this case, appellees were the
    Stark County, Case No. 2021CA00111                                                      24
    bidders at a sheriff’s sale, which was confirmed. The property was never forfeited to the
    state. Accordingly, the tacking was not broken.
    {¶70} As to appellant’s argument regarding whether post-fire the easement was
    used in the “same and similar manner” as it previously was, the issue is whether there
    was a substantial change in the mode of use. “The acts of the prescriptive claimant do
    not need to be daily or constant; rather, occasional use that will ‘fairly indicate an
    uninterrupted use’ to the true owner will suffice.” Miller Land Co. v. McCaleb, 4th Dist.
    Scioto No. 19CA898, 
    2020-Ohio-79
    .
    {¶71} The unrefuted affidavits submitted by appellees demonstrate Kiss used the
    paved portion of the easement and the asphalt apron in the same manner as appellees.
    John Lauby stated Kiss used the paved and asphalt portion of the road to access the
    driveway for the northern parcel. Kathryn Heisler stated Kiss used the alley to access his
    driveway, and that since appellees acquired the property in 2018, they have continued to
    use it in that manner. Thomas Imhoff averred Kiss always accessed his driveway from
    the road and appellees have continued to use the driveway in the same way Kiss did.
    Mary Kiss stated her brother established the driveway on his property in 1975, and from
    that time on, he used the Spring Avenue right-of-way to get to Edison Street.
    {¶72} In this case, the unrebutted evidence demonstrates there was not a
    substantial change in the mode of the use of the paved portion of the road and/or the
    asphalt apron by Kiss and/or appellees. The purpose for which the paved portion and
    asphalt portion was used has consistently been for ingress and egress to the northern
    parcel. There is still a garage located on the northern parcel. Therefore, we agree with
    the trial court that the unrebutted facts establish there has been no substantial change in
    Stark County, Case No. 2021CA00111                                                       25
    the mode or character of use. Harris v. Dayton Power & Light Co., 2nd Dist. Montgomery
    No. 26796, 
    2016-Ohio-517
    .
    {¶73} Finally, specifically as to appellees’ prescriptive easement claim, the
    unrebutted evidence demonstrates Kiss utilized the easement for 21-years prior to the
    sale of the property in 2018. The affidavit of Thomas Imhoff states Kiss had a driveway
    that was “always” accessed via the Spring Avenue easement. Mary Kiss stated her
    brother established the driveway in 1975 and, subsequent to that date, he adversely used
    the Spring right-of-way to access to get in and out of his driveway. Accordingly, the
    requisite time period for a prescriptive easement had already been achieved and the
    easement matured by the time appellees purchased the property.
    {¶74} Appellant’s second assignment of error is overruled.
    III.
    {¶75} In order to acquire title by adverse possession, a party most prove, by clear
    and convincing evidence, 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). The elements of adverse possession are stringent because a
    successful action “results in a legal titleholder forfeiting ownership to an adverse holder
    without compensation.” 
    Id.
     Failure of proof as to any of the elements results in the failure
    to acquire title by adverse possession. Pennsylvania R. Co v. Donovan, 
    111 Ohio St. 341
    , 
    145 N.E. 479
     (1924).
    {¶76} The element that distinguishes adverse possession from a prescriptive
    easement is exclusive use. Nusekabel v. Cincinnati Public School Employees Credit
    Union, Inc., 
    125 Ohio App.3d 427
    , 
    708 N.E.2d 1015
     (1st Dist. Hamilton 1997). While
    Stark County, Case No. 2021CA00111                                                      26
    exclusive use is not an element required to establish a prescriptive easement, it is an
    element required to establish adverse possession. 
    Id.
    {¶77} Many of appellant’s arguments as to adverse possession are the same as
    the arguments she advanced in opposition to a prescriptive easement. To the extent the
    arguments are the same and we have reviewed them above, we find appellant’s
    arguments to be not well-taken.
    {¶78} However, appellant also makes several additional arguments specific to the
    adverse possession claim.
    {¶79} Appellant contends the affidavits by the neighbors attached to appellees’
    motion for summary judgment demonstrate appellees’ use was not exclusive to them
    because other neighbors walked or drove over the disputed strip of land.
    {¶80} However, as this Court has previously stated, in order for use to be
    considered exclusive and continuous:
    [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.
    Stark County, Case No. 2021CA00111                                                       27
    {¶81} Welch v. Marlow, 5th Dist. Morgan No. 08 CA 8, 
    2009-Ohio-6145
    , citing 4
    Tiffany, Real Property (1975) 736, Section 1141; Franklin v. Massillon Homes II, LLC,
    
    184 Ohio App.3d 455
    , 
    2009-Ohio-5487
    , 
    921 N.E.2d 314
    .
    {¶82} Thus, a showing of exclusivity does not require a finding that no one other
    than appellees and Kiss entered onto the disputed strip of land. The fact that other
    neighbors traversed the strip of land does not defeat the element of exclusivity. Appellant
    did not assert her right to possession of the disputed strip until 2019. However, by that
    time, the 21-year period had already elapsed.
    {¶83} Further, appellant contends appellees’ use of the strip of land at issue is not
    legally sufficient for a finding of adverse possession. Appellant offers no evidence to
    dispute appellees’ assertions that they have maintained the asphalt apron, maintained
    the drywell, and performed various other activities on the strip of land. However, appellant
    contends these activities are not sufficient, pursuant to established law, to establish
    adverse possession, as these activities consist of the “mere maintenance of land,” which
    is insufficient to establish adverse possession.
    {¶84} This Court has previously held that, “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.” Robinson v. Armstrong, 5th
    Dist. Guernsey No. 03 CA 12, 
    2004-Ohio-1463
    . However, “although lawn maintenance
    alone is not sufficiently open and notorious to establish adverse possession, such activity
    is relevant evidence of open and notorious use, and when combined with other activities
    under the proper circumstances, it may help to establish an adverse possession.”
    Stark County, Case No. 2021CA00111                                                       28
    Franklin V. Massillon Homes II, LLC, 
    184 Ohio App.3d 455
    , 
    2009-Ohio-5487
    , 
    921 N.E.2d 314
     (5th Dist. Stark).
    {¶85} We find the trial court did not commit error in finding the unrebutted
    evidence demonstrates appellees’ and Kiss’ use was more than mere maintenance or
    minor landscaping of land. Appellees have maintained the drywell and asphalt apron.
    Kiss hauled in building and construction materials like concrete, stone, and brick onto the
    disputed strip of land. These materials filled the area between the garage and the
    pavement. Appellees did mow the grass, plant grass, and do other landscaping tasks,
    but they did additional tasks as well. Appellees rented a Bob Cat to haul in dirt to fill in
    ruts and grade and level the strip of land. Appellees also cleared numerous piles of
    salvage that were on the strip of land, and had to bring in trucks to haul the salvage. The
    items they hauled out via truck primarily consisted of construction materials like concrete
    stone and brick.
    {¶86} Further, several courts in Ohio have held that a party acquires title by
    adverse possession by erecting a permanent structure on the land, including cement or
    asphalt driveways. Veri v. Daley, 8th Dist. Cuyahoga No. 41722, 
    1980 WL 355194
     (Oct.
    9, 1980); Marcum v. Ellis, 6th Dist. Huron No. H-19-008, 
    2020-Ohio-2763
     (building a
    permanent structure on another’s land without permission is sufficient to constitute
    adverse possession after 21 years); Rader v. Brock, 12th Dist. Preble No. CA97-03-007,
    
    1997 WL 632843
     (Oct. 13, 1997) (permanent structure sufficient for adverse possession
    after 21 years).    Here, Kiss installed a permanent drainage drywell, as well as a
    permanent asphalt apron, which both remain on the disputed strip of land.
    {¶87} Appellant’s third assignment of error is overruled.
    Stark County, Case No. 2021CA00111                                              29
    {¶88} Based on the foregoing, the judgment entry of the Stark County Court of
    Common Pleas is affirmed.
    By Gwin, J.,
    Wise, Earle E., J., and
    Hoffman, J., concur
    [Cite as Hall v. Dasher, 
    2022-Ohio-1735
    .]