Arnholt v. Carlisle ( 2011 )

[Cite as Arnholt v. Carlisle, 2011-Ohio-2948.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
WILLIAM ARNHOLT, et al. JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiffs-Appellees Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case No. 10 CA 91
JOHN CARLISLE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case No. 08 CV 1045
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 6, 2011
APPEARANCES:
For Plaintiffs-Appellees For Defendant-Appellant
J. ANDREW CRAWFORD DAVID Q. WIGGINTON
REESE, PYLE, DRAKE & MEYER SCHALLER, CAMPBELL & UNTIED
Post Office Box 919 Post Office Box 309
36 North 2nd Street 32 North Park Place
Newark, Ohio 43058-0919 Newark, Ohio 43055
Licking County, Case No. 10 CA 91 2
Wise, J.
{¶1} Defendant-Appellant John Carlisle appeals from the decision of the
Licking County Court of Common Pleas, granting a claim of adverse possession over
part of his real property in favor of Plaintiffs-Appellees William Arnholt, et al. The
relevant facts leading to this appeal are as follows.
{¶2} In 1973, Appellee William Arnholt and his then-wife, Marie K. Arnholt,
purchased approximately 5.8 acres of land at 6961 Palmer Road in a rural area of Etna
Township, Licking County, for the purpose of building their marital residence. The
residence was completed in the summer of 1976, at which time appellee and Marie
moved in. The couple remained there until 1993, when they were divorced. Pursuant to
their divorce decree, Marie continued to reside in the home until 1995, at which time the
youngest child became emancipated. In 1995, appellee and his present wife, Gail
Arnholt, took possession of the home.
{¶3} The record reveals the existence of a natural stream running at the south-
southeastern rear edge of appellees’ Palmer Road property. South of the stream is an
old barbed-wire farm fence that appellee began treating as the southern boundary line
of the property after he purchased his acreage.1 At that time, the area around the
stream had only a few trees; appellee over the years planted as many as 150 saplings
near the sides of the stream. He also buttressed the stream banks with old bricks and
tiles. Appellee additionally began mowing the area behind the house south to the
aforesaid farm fence on the far side of the stream. Appellee also stored construction
materials and automobiles not far from the stream. Essentially, the present disputed
1
We will herein refer to William Arnholt as “appellee” or “Appellee Arnholt,” in the
singular.
Licking County, Case No. 10 CA 91 3
area is (1) a wedge-shaped extension of appellees’ back yard, due south of the original
southern boundary of appellees’ parcel and north and west of said farm fence, and (2) a
strip of land extending therefrom along the creek in roughly a southwest to northeast
fashion, also north and west of the farm fence.
{¶4} Appellant Carlisle is the owner of an adjoining parcel upon which sits the
disputed area. The parcel was previously owned by Donald Householder; after a
foreclosure action in 2008, the Householder property was sold to appellant. In the spring
of that year, appellant considered building a small bridge over the stream and clearing
some brush from that area. Appellant contracted for the services of a surveyor in May
2008, and several arguments thereafter broke out between appellant and appellees.
{¶5} On May 21, 2008, appellees filed a complaint in the Licking County Court
of Common Pleas alleging civil trespass and seeking title to the disputed property area
on the grounds of adverse possession. On July 1, 2008, appellees filed their first
amended complaint. On July 8, 2008, appellant filed an answer and counterclaim, and
an amended answer and counterclaim the next day. Appellees filed a second amended
complaint on September 21, 2009. Appellant filed an answer and counterclaim thereto
on September 28, 2009.
{¶6} Both sides filed motions for summary judgment on February 16, 2010.
Both motions were denied on April 12, 2010.
{¶7} The matter proceeded to a trial commencing on June 29, 2010. Pursuant
to a motion in limine filed by appellees, the trial court limited the testimony of appellee’s
former wife Marie K. Arnholt to her personal knowledge concerning the property
boundaries. Appellant’s counsel proffered Marie’s testimony, outside of the jury’s
Licking County, Case No. 10 CA 91 4
presence, regarding her asserted lack of intent to claim the adverse possession
property.
{¶8} At the close of appellees’ evidence, appellant moved for a directed verdict,
which the trial court denied.
{¶9} At the conclusion of the evidence, the jury found, inter alia, in favor of
appellees on their claim for adverse possession. The court thereupon issued an order
directing appellees to obtain a legal description of the property and to prepare a final
judgment entry.
{¶10} On August 12, 2010, appellant filed a notice of appeal. He herein raises
the following four Assignments of Error:
{¶11} “I. THE JURY’S CONCLUSION THAT THE APPELLEES ADVERSELY
POSSESSED THE PROPERTY OF THE APPELLANT SUCH THAT THEY RECEIVED
TITLE TO THE PROPERTY WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶12} “II. THE TRIAL COURT ERRED IN ITS TREATMENT OF THE
TESTIMONY OF MARIE K. ARNHOLT BY GRANTING [APPELLEES’] MOTION IN
LIMINE PROHIBITING THE TESTIMONY OF KATHY ARNHOLT REGARDING HER
INTENTIONS WITH REGARD TO THE PROPERTY, LIMITING HER TESTIMONY AT
TRIAL, AND FAILING TO FIND THAT [APPELLANT] WAS ENTITLED TO SUMMARY
JUDGMENT.
{¶13} “III. THE JURY’S CONCLUSION THAT THE [APPELLEES] ‘ADVERSELY
POSSESSED’ THE PROPERTY SOUTH AND EAST OF THE STREAM WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
Licking County, Case No. 10 CA 91 5
{¶14} “VI. THE COURT ERRED BY FAILING TO GRANT APPELLANT’S
MOTION FOR DIRECTED VERDICT AT THE CLOSE OF ALL THE EVIDENCE
BASED UPON THE APPELLEE’S FAILURE TO SUBMIT SUFFICIENT EVIDENCE
REGARDING THE BOUNDARY OF THE ADVERSELY POSSESSED PROPERTY.
ALTERNATIVELY, THE DECISION OF THE JURY REGARDING THE BOUNDARIES
OF THE PROPERTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
I.
{¶15} In his First Assignment of Error, appellant argues the jury’s finding that
appellees had proven their claim of adverse possession was against the manifest
weight of the evidence. We disagree.
{¶16} As a general rule, we neither weigh the evidence nor judge the credibility
of the witnesses in analyzing manifest weight arguments in civil cases. Our role is to
determine whether there is relevant, competent and credible evidence upon which the
fact finder could base his or her judgment. Witt v. Watson, Stark App.No. 2004 CA
00297, 2005-Ohio-3290, ¶ 18, citing Cross Truck v. Jeffries (February 10, 1982), Stark
App.No. CA-5758. See, also, C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d
279, 280, 376, 376 N.E.2d 578.
{¶17} To acquire title by adverse possession, a party must 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 (1998), 81 Ohio St.3d 577,
692 N.E.2d 1009. Failure of proof as to any of the elements results in failure to acquire
title by adverse possession. Id. at 579, citing Pennsylvania Rd. Co. v. Donovan, 111
Ohio St. 341, 349-350, 145 N.E. 479. Furthermore, “[a] successful adverse possession
Licking County, Case No. 10 CA 91 6
action results in a legal titleholder forfeiting ownership to an adverse holder without
compensation. Such a doctrine should be disfavored, and that is why the elements of
adverse possession are stringent.” Id. at 580.
{¶18} In the case sub judice, appellees presented evidence of their following
activities on the disputed property:
Use Dates of use
Tree planting and growth of trees 1976-2008
Mowing to stream 1976-2008
Reinforce stream bank Late 70’s-2008
Store Volkswagen vehicles 1978-1988
Store construction materials 1981-1998
Construct and maintain grape arbor 1984-2008
Construct encroaching barn 1996-2008
Construct levy and creek pond 1997-2008
{¶19} Appellant presents two basic challenges to the jury’s finding of adverse
possession in the case sub judice: First, appellant contends that Appellee Arnholt did
not occupy the residence and property in question from May 1993 until October 1995, a
period of approximately thirty months, and thus the continuousness requirement of
adverse possession was not met. Secondly, appellant maintains that appellees did not
demonstrate when Arnholt’s actions of tree planting first became adverse for purposes
of meeting the twenty-one-year requirement.
{¶20} In regard to appellant’s first challenge, it is well-established that in seeking
to establish the necessary twenty-one year period, a party may add his own term of
adverse use to any period of adverse use by a prior succeeding owner in privity with the
current owner. See Wetzler v. Eagleson's, Inc., Guernsey App. No. 01 CA14, 2002-
Ohio-1838, citing Zipf v. Dalgarn (1926), 114 Ohio St. 291, 151 N.E. 174. The chain of
adverse use by succeeding owners is known as tacking, and the chain may not be
Licking County, Case No. 10 CA 91 7
broken. Id. In addition, “[a]n adverse possessor need only establish an occupation or
use of the land that would be made by an owner of the same type of land, taking into
account the uses for which the land is suited.” King v. Hazen, Ashtabula App.No. 2005-
A-0031, 2006-Ohio-4823, ¶ 61, citing Allison v. Shepherd (1979), 285 Ore. 447, 451-
452, 591 P.2d 735, 738.
{¶21} As noted in our recitation of facts, Appellee Arnholt was dispossessed of
the Palmer Road house and property for thirty months in the period of 1993 to 1995,
pursuant to the terms of his divorce from Marie Arnholt. During that time, he ceased his
tree-planting activities, did not mow the grass, and did not add construction materials to
the disputed outside storage area. However, upon our review of the record,
photographic exhibits, and transcript, we find the jury could have at least properly
concluded that tacking was proven during the thirty months in question. The large
numbers of trees planted by Appellee Arnholt continued to thrive on areas then owned
by Householder, appellant’s predecessor in interest, and even though Arnholt did not
access the construction materials stored on the adverse possession property, there is
no demonstration in the record that he abandoned these materials during the thirty
month period. Furthermore, Marie and the children continued to mow the now-disputed
area down to the creek bank, and the burn pit continued to be used. During Marie’s
possession of the property, additional items such as a truck cap and some animal
kennels were added to the area in question. We thus find no basis to disturb the jury’s
conclusion on this basis.
{¶22} In regard to appellant’s second “manifest weight” challenge, we have
recognized that “[i]n order for possession to be considered open, the use of the disputed
Licking County, Case No. 10 CA 91 8
property must be without attempted concealment. * * * To be notorious, a use must be
known to some who might reasonably be expected to communicate their knowledge to
the owner * * * [or] so patent that the true owner of the property could not be deceived
as to the property's use.” Franklin v. Massillon Homes II, L.L.C. 184 Ohio App.3d 455,
461, 921 N.E.2d 314, 2009-Ohio-5487, citing Kaufman v. Geisken Ents., Ltd., Putnam
App. No. 12-02-04, 2003-Ohio-1027, ¶ 31 (internal quotations omitted). Appellant
essentially urges that Appellee Arnholt’s hardwood tree planting, particularly during the
first few years, was not significant enough to demonstrate a commencement of open
and notorious adverse use, taking into consideration the rural residential environs of
Palmer Road. However, appellees presented testimony from Arnholt’s sister and
brother-in-law that the area in question was originally mostly open, with a smattering of
large mature trees, allowing the jury to conclude that the ongoing sapling planting would
have been visible to Householder and other interested observers. Furthermore,
because the action was not filed until 2008, the jury could have utilized any date
between 1976 and 1987 as the starting point for the commencement of Arnholt’s open
and notorious tree planting to meet the prerequisites for appellees’ adverse possession
claim.
{¶23} Accordingly, appellant’s First Assignment of Error is overruled.
II.
{¶24} In his Second Assignment of Error, appellant argues the trial court erred in
its treatment of the testimony of Appellee’s former spouse, Marie K. Arnholt, by granting
appellees’ motion in limine prohibiting the testimony of Marie regarding her intentions
Licking County, Case No. 10 CA 91 9
with regard to the property, limiting her testimony at trial, and failing to find that
appellant was entitled to summary judgment. We disagree.
{¶25} This Court has recognized that Ohio law does not require proof of
subjective purpose in a claim of adverse possession. See, e.g., Goodin v. Sforza (Dec.
6, 1989), Licking App. No. CA-3444, 1989 WL 154646, citing Yetzer v. Thoman (1866),
17 Ohio St. 130. Also, when a boundary line is in dispute, it is not necessary to show
knowledge or wrongful intent on the part of the adverse claimant. See Keller v. Russell
(June 9, 2000), Scioto App.No. 99 CA 2659, citing Coburn v. Gebauer (Jan. 11, 1996),
Seneca App. No. 13-95-14; Goetz v. Miller (Apr. 24, 1981), Ottawa App. No. OT-80-26.
In Evanich v. Bridge, 119 Ohio St.3d 260, 893 N.E.2d 481, the Ohio Supreme Court
held, at the syllabus: “In a claim for adverse possession, the intent to possess another's
property is objective rather than subjective, and the legal requirement that possession
be adverse is satisfied by clear and convincing evidence that for 21 years the claimant
possessed property and treated it as the claimant's own.” (Emphasis added).
{¶26} As discussed in appellant’s first assigned error, the record provides
competent, credible evidence of Appellee Arnholt’s tacking and continued in absentia
use of the adverse possession property during the 1993 through 1995 period. We thus
find additional discussion of the issue of Marie’s testimony to be merely academic. In
other words, the jury’s finding of adverse possession was supported by evidence of
continuous use regardless of Marie’s claimed lack of subjective intent to claim
ownership of the property in question.
{¶27} Appellant nonetheless argues that Evanich, supra, addresses only the
issue of the claimant’s intent in a case of mutual mistake of boundary, and does not
Licking County, Case No. 10 CA 91 10
apply to the present situation wherein Marie Arnholt was a temporary possessor.
Appellant also theorizes that allowing tacking via a temporary possessor who lacks
subjective intent would invite cases of “involuntary” adverse possession. However, we
find these arguments unpersuasive.
{¶28} We thus turn to the question of the denial of summary judgment. Such
proceedings present an appellate court with the opportunity of reviewing the evidence in
the same manner as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio
St.3d 35, 36, 506 N.E.2d 212. We refer to Civ.R. 56, which provides, in pertinent part:
“Summary judgment shall be rendered forthwith if the pleadings, depositions, answers
to interrogatories, written admissions, affidavits, transcripts of evidence in the pending
case and written stipulations of fact, if any, timely filed in the action, show that there is
no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. * * * 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.”
{¶29} Appellant maintains that Marie Arnholt’s summary judgment affidavit
unequivocally shows she did not intend to possess the adverse possession property
during the time she possessed the Palmer Road property. However, based on our
above conclusions regarding the issue of the motion in limine and the fact that the case
proceeded to a full jury trial and verdict, we find further redress of summary judgment to
be unnecessary. See Sanders v. Mt. Sinai Hospital (1985), 21 Ohio App.3d 249, 256.
Licking County, Case No. 10 CA 91 11
{¶30} Accordingly, appellant’s Second Assignment of Error is overruled.
III.
{¶31} In his Third Assignment of Error, appellant challenges the jury’s finding
that appellees proved their claim of adverse possession regarding the portion of land
south and east of the stream, i.e., the strip between the stream and the old fence.
{¶32} We reiterate that as a general rule, we neither weigh the evidence nor
judge the credibility of the witnesses in analyzing manifest weight arguments in civil
cases. Our role is to determine whether there is relevant, competent and credible
evidence upon which the fact finder could base his or her judgment. Witt, supra, at ¶ 18.
{¶33} It is well-established that an adverse possessor’s claim is limited to the
property actually occupied or possessed. See, e.g., Oeltjen v. Akron Associated Inv. Co.
(1958), 106 Ohio App. 128. In the case sub judice, the judgment entry describes the
adverse possession property as “being bounded *** on the south by an old barbed wire
occupation fence which runs along the south side of the small creek, and the jury was
so instructed.” Judgment Entry, August 11, 2010, at 1.
{¶34} Appellant asserts that the only use of the land area on the south and east
side of the stream, on the opposite side from appellees’ house, was Arnholt’s tree
planting. We have indeed recognized that “[m]ere maintenance of land, such as mowing
grass, cutting weeds, and minor landscaping, is generally not sufficient to constitute
adverse possession.” See Nixon v. Parker, Licking App.No. 04 CA 84, 2005-Ohio-2375,
¶ 22, citing Murphy v. Cromwell, Muskingum App. No. CT2004-0003, 2004-Ohio-6279,
¶ 55 (additional citations omitted). However, the record reveals testimony that Arnholt
planted approximately one-hundred trees in the south-of-the-stream area, particularly
Licking County, Case No. 10 CA 91 12
during the mid-seventies through the mid-eighties. See Tr. at 194-195, 381-382. See,
also, the map admitted as Plaintiffs’ Exh. 14. This effectively turned the area from a
fallow open field space into a wooded one. See Tr. at 307-308. Arnholt noted that he
had always been interested in arborist pursuits, and he specifically planted a variety of
hardwood species. See Tr. at 157-158, 191-192. Accordingly, we find the evidence in
this instance supported the conclusion that Arnholt’s planting and subsequent
caretaking actions regarding the trees to the south of the stream went beyond “mere
maintenance” and minor landscaping, such that the finding of adverse possession in
that area was not against the manifest weight of the evidence.
{¶35} Appellant’s Third Assignment of Error is overruled.
IV.
{¶36} In his Fourth Assignment of Error, appellant argues that the trial court
erred in denying his motion for directed verdict, or, in the alternative, that the jury’s
findings as to property boundaries were against the manifest weight of the evidence.
We disagree.
{¶37} Based on the structure of appellant’s assigned error, we must herein recite
two standards of review. The standard of review for the grant or denial of a motion for a
directed verdict is whether there is probative evidence which, if believed, would permit
reasonable minds to come to different conclusions as to the essential elements of the
case, construing the evidence most strongly in favor of the non-movant. Brown v.
Guarantee Title & Trust/Arta (Aug. 28, 1996), Fairfield App.No. 94-41, citing Sanek v.
Duracote Corp. (1989), 43 Ohio St .3d 169, 172, 539 N.E.2d 1114. A motion for a
directed verdict therefore presents a question of law, and an appellate court conducts a
Licking County, Case No. 10 CA 91 13
de novo review of the lower court's judgment. Howell v. Dayton Power & Light Co.
(1995), 102 Ohio App.3d 6, 13, 656 N.E.2d 957, 961. However, in analyzing manifest
weight arguments in civil cases, our role is to determine whether there is relevant,
competent and credible evidence upon which the fact finder could base his or her
judgment. Witt, supra, at ¶ 18.
{¶38} Appellant claims that appellees relied upon “scant evidence” regarding the
locations of the southern and western boundaries of the adverse possession property.
Appellant’s Brief at 23. He maintains this is confirmed by the court’s order, after the trial,
that appellees obtain a land survey and legal description to formally establish the new
boundaries of appellees’ property.
{¶39} The record reveals that the jury in this matter was given the following
instruction, without objection by either side:
{¶40} “The adverse possession property is bounded on the north by the south
and southeast deeded property lines contained in the Arnholts’ deed, on the east and
west by an extension south of the east and west deeded property lines contained in the
Arnholts’ deed, and on the south by an old barbed wire occupation fence which runs
along the south side of a small creek.” Tr. at 696.
{¶41} Both sides direct us to Galehouse v. Geiser, Wayne App.No. 05CA0037,
2006-Ohio-766, in which the Ninth District Court of Appeals approved a trial court’s
directive to obtain a post-judgment survey of the adverse possession area. Although
appellant seeks to distinguish Galehouse on its facts, we agree with appellees that the
case supports the trial court’s decision in the case sub judice. Upon review of the
substantial photographic, video, and testimonial evidence in the present record of the
Licking County, Case No. 10 CA 91 14
location of the old fence and any other challenged boundaries, we find there was
evidence presented which would at least permit reasonable minds to come to different
conclusions as to the element of the lower boundaries of the property. Therefore, the
trial court properly denied appellant’s motion for directed verdict. We further hold the
jury’s subsequent conclusions regarding the adverse possession boundaries were not
against the manifest weight of the evidence.
{¶42} Appellant’s Fourth Assignment of Error is overruled.
{¶43} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Licking County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Hoffman, J., concur.
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___________________________________
___________________________________
JUDGES
JWW/d 0512
Licking County, Case No. 10 CA 91 15
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
WILLIAM ARNHOLT, et al. :
:
Plaintiffs-Appellees :
:
-vs- : JUDGMENT ENTRY
:
JOHN CARLISLE :
:
Defendant-Appellant : Case No. 10 CA 91
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed.
Costs assessed to appellant.
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JUDGES