[Cite as Wilson v. Britton, 2019-Ohio-3333.]


                           IN THE COURT OF APPEALS OF OHIO
                              FOURTH APPELLATE DISTRICT
                                 WASHINGTON COUNTY

ROBERT A. WILSON, ET AL.,                        :
                                                 :        Case No. 18CA24
        Plaintiffs-Appellees,                    :
                                                 :
        vs.                                      :        DECISION AND JUDGMENT
                                                 :        ENTRY
JULIE BRITTON,                                   :
                                                 :
        Defendant-Appellant.                     :        Released: 08/14/19

                                           APPEARANCES:

William L. Burton and Donald W. Burton, Marietta, Ohio, for Appellant.

Matthew Carlisle and Adam J. Schwendeman, Marietta, Ohio, for Appellees.


McFarland, J.

        {¶1} This is an appeal from a Washington County Court of Common Pleas

judgment entry in favor of Appellees, Robert and Deva Wilson, which held that

Appellant, Julie Britton, committed civil trespass and ordered her to remove

mobile homes and other personal property from Appellees’ property. The entry

also denied Appellant’s counterclaim for adverse possession. Because we find the

trial court did not err, we affirm the judgment of the trial court.

                                               FACTS

        {¶2} Appellees filed a complaint against Appellant on March 24, 2017 and

an amended complaint on April 28, 2017 alleging that Appellee committed a civil
Washington App. No. 18CA24                                                       2

trespass because her real and personal property (e.g. mobile homes) encroached on

Appellees’ real property. Appellant filed an answer and counterclaim on May 24,

2017 asserting that she had acquired Appellees’ encroached property by adverse

possession.

      {¶3} In granting judgment in favor of Appellees, the trial court made the

following findings of fact and conclusions of law:

              “Appellant purchased a parcel of property from a sheriff’s

       sale on March 1, 1996. The deed was dated April 10, 1996 and

       recorded May 6, 1996. Parcel Number 34-64780.000 describes

       0.25 acres, more or less. Plaintiffs acquired the adjacent property

       by deed recorded on October 20, 2016. A survey revealed that

       Defendant’s mobile home encroached on the property of Plaintiffs

       with the line passing through the middle of the home. Aerial

       photos submitted as joint Exhibits C, E, and O and testimony

       adduced at trial establish that essentially the entire area occupied by

       Defendant and the various outbuildings are on Plaintiffs’ property.

       Defendant’s testimony acknowledged that she was unsure of the

       actual property line and that a surveyor she had hired at some point

       had quit, did not complete the survey, and said, “There wasn’t

       enough room to put anything, even a tent. She testified variously
Washington App. No. 18CA24                                                     3

      that she had “thought” or “assumed” that the area occupied by her

      predecessors was the area she had purchased. In fact, the exhibits

      show her quarter acre to be a hillside, which was uninhabitable.

                On the evidence before it, the Court finds:

   1. Plaintiffs established by a preponderance of the evidence the

      location of their property line.

   2. The tax map line as depicted on Joint Exhibit C indicates the

      Plaintiffs’ property line.

   3. The two mobile homes and personal property as seen on Joint Trial

      Exhibit C are encroaching on Plaintiffs’ property and constitute a

      civil trespass.

   4. Defendant has failed to establish adverse possession by clear and

      convincing evidence.

      Upon these findings, the Court Orders Defendant to remove the

      mobile homes and other miscellaneous personal property from

      Plaintiffs’ real property within six (6) months after this Order, that

      any personal property at the site after that date shall be considered

      abandoned with its ownership reverting to Plaintiffs, that each party

      be responsible for their own attorney fees and that costs be assessed

      to Defendant.”
Washington App. No. 18CA24                                                      4

      {¶4} It is from this judgment that Appellant appeals, asserting three

assignments of error.

                           ASSIGNMENTS OF ERROR

      “I.    THE TRIAL COURT ERRED IN RULING FOR APPELLEE
             ROBERT A. WILSON.

      II.    THE TRIAL COURT MISTAKENLY APPLIED THE DATES
             OF DEED EXECUTION AND RECORDATION TO THE
             TWENTY-ONE YEAR PERIOD FOR ADVERSE
             POSSESSION, INSTEAD OF THE DATE OF ACTUAL
             POSSESSION.

      III.   THE TRIAL COURT IGNORED THE ESTABLISHED
             PRINCIPAL OF “TACKING” WHEN IT ANALYZED
             ADVERSE POSSESSION.”

                             STANDARD OF REVIEW

      {¶5} “An appeal of a ruling on an adverse possession claim is usually

reviewed under a ‘manifest weight of the evidence’ standard of review.” Nolen v.

Rase, 4th Dist. Scioto No. 13CA3536, 2013-Ohio-5680, ¶ 9, citing Thompson v.

Hayslip, 74 Ohio App.3d 829, 600 N.E.2d 756 (4th Dist. 1991); see also Spurlock

v. Pemberton, 4th Dist. Lawrence No. 13CA1, 2013-Ohio-4002, at ¶ 17; Pottmeyer

v. Douglas, 4th Dist. Washington No. 10CA7, 2010-Ohio-5293, ¶ 21. In a

manifest weight of the evidence review [w]e must review the entire record, weigh

the evidence and all reasonable inferences, consider the credibility of the

witnesses, and determine whether, in resolving conflicts in the evidence, the trier

of fact clearly lost its way and created such a manifest miscarriage of justice that
Washington App. No. 18CA24                                                       5

the [judgment] must be reversed and a new trial granted. In re C.L.C., 4th Dist.

Highland No. 08CA3, 2008-Ohio-3312, ¶ 22, citing State v. Smith, 4th Dist.

Pickaway App. No. 06CA7, 2007-Ohio-502, ¶ 41. However, “a reviewing court

may not simply ‘reweigh[ ] the evidence and substitute[ ] its judgment for that of

the [trier of fact].’ ” Rudolph v. Chisnell, 9th Dist. Wayne No. 08CA0012, 2008-

Ohio-4998, ¶ 6, quoting State v. Wilson, 113 Ohio St.3d 382, 865 N.E.2d 1264,

2007-Ohio-2202 at ¶ 40. “[A]n appellate court will not reverse a trial court's

decision on this issue if it is supported by some competent, credible evidence.”

Rase, 4th Dist. Scioto No. 13CA3536, 2013-Ohio-5680, at ¶ 9, citing Eastley v.

Volkman, 132 Ohio St.3d 328, 972 N.E.2d 517, 2012-Ohio-2179, at ¶ 14. “[The

weight-of-the-evidence] standard of review is highly deferential and even the

existence of ‘some’ evidence is sufficient to support a court's judgment and to

prevent a reversal.” Id., citing Barkley v. Barkley, 119 Ohio App.3d 155, 159, 694

N.E.2d 989 (4th Dist. 1997).

      {¶6} Initially, we note that in addition to finding that Appellant did not

prove her counterclaim of adverse possession by clear and convincing evidence,

the trial court also concluded that Appellant committed a civil trespass because her

property was encroaching on Appellees’ property. Appellant has not challenged

that finding of civil trespass in this appeal. She challenges only the trial court’s

conclusion that she did not prove adverse possession of Appellees’ property.
Washington App. No. 18CA24                                                          6

                            ASSIGNMENT OF ERROR I

       {¶7} In her first assignment of error, Appellant contends the trial court erred

in holding that she did not prove adverse possession. Appellant claims the trial

court’s decision is against the manifest weight of the evidence in that she has

submitted “competent credible evidence at trial to support each element of adverse

possession.”

       {¶8} “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.” Rase, 4th Dist. Scioto No.

13CA3536, 2013-Ohio-5680, ¶ 9, citing Grace v. Koch, 81 Ohio St.3d 577, 692

N.E.2d 1009 (1998), at the syllabus, Edgington v. Newman, 4th Dist. Adams App.

No. 11CA917, 2012-Ohio-4962, at ¶ 10. Failure of proof as to any of the elements

results in failure to acquire title by adverse possession. Grace v. Koch, 81 Ohio

St.3d 577, 579, 1998-Ohio-607, 692 N.E.2d 1009, citing Pennsylvania Rd. Co. v.

Donovan, 111 Ohio St. at 349-350, 145 N.E. 479 at 482.

       {¶9} “Clear and convincing evidence is the degree of evidence necessary to

elicit in the mind of the trier of fact a firm belief * * * as to the allegations to be

established.” Amsbary v. Brumfield, 177 Ohio App.3d 121, 2008-Ohio-3183, 894

N.E.2d 71, ¶ 13 (4th Dist.), citing In re Haynes, 25 Ohio St.3d 101, 104, 495

N.E.2d 23 (1986). But, “[t]he law generally disfavors the transfer of property by
Washington App. No. 18CA24                                                       7

adverse possession; therefore, claims based on adverse possession are to be strictly

construed in favor of the person who has title to the property.” Bierhup v. Leaco,

Inc., 4th Dist. Jackson No. 94 CA 742, 1995 WL 389292, at *2, citing Montieth v.

Twin Falls United Methodist Church, Inc., 68 Ohio App.2d 219, 224, 428 N.E.2d

870 (1980), Demmit v. McMillan, 16 Ohio App.3d 138, 141, 474 N.E.2d 1212 (2nd

Dist. 1984), quoting 5 Thompson, Commentaries on the Modern Law of Real

Property (1979) 604, Section 2543.

      {¶10} In its findings of fact and conclusions of law, the trial court summarily

stated that “Defendant has failed to establish adverse possession by clear and

convincing evidence.” After reviewing the party’s arguments and the record, the

critical question appears to be whether Appellant possessed/used (hereinafter

“possessed”) the property for the required 21-year period.

      {¶11} Appellant argues that she began living on the property the day that she

purchased it, March 1, 1996, and that she lived on the property until the date that

Appellees filed their law suit on March 24, 2017. Therefore, Appellant argues, she

possessed it for 21 years and 23 days, which could satisfy the 21-year period of

adverse use required by adverse possession.

      {¶12} Appellant testified that she began living on the property in question on

March 1, 2016. However, she also testified that she hired a surveyor who told her

that “ ‘there’s not enough room here down by the road to put anything, not even a
Washington App. No. 18CA24                                                      8

tent. Not a camper, nothing.’ ” Consequently, Appellant testified that she “went

and rented a trailer spot.”

      {¶13} Appellant did not testify how long she rented a trailer spot, but it

nevertheless contradicts her testimony that she lived on the property beginning on

March 1, 2016. Accordingly, it is uncertain when Appellant began her possession

of the property, but it was later than March 1, 2016.

      {¶14} Appellant also testified that when Appellees purchased the property

adjacent to hers, she saw surveyors in the woods and orange flags. Appellant

claims that in July of 2017 Appellee Robert Wilson told her she “was on his

property and [she] needed to give him $10,000, or move.” Appellant told him she

“thought that it was [her] property.”

      {¶15} On cross examination Appellant stated that she was “pretty sure” that

Appellee Robert Wilson spoke to her in July of 2017. However, when she was

reminded that the lawsuit was filed prior to July of 2017, Appellees’ counsel stated

“then you would have spoken to him on a different date than you testified to,

correct? Appellant responded: “I spoke to him before the lawsuit, yes.”

      {¶16} Further, Appellee Robert Wilson testified that after the surveyor

revealed Appellant’s encroachment onto his property, he testified he spoke to

Appellant about the problem in February of 2017. He testified that he told

Appellant that she needed to buy the property or move.
Washington App. No. 18CA24                                                          9

       {¶17} Accordingly, there is also testimony that contradicts Appellant’s

assertion that she adversely possessed/used the property until March 24, 2017.

       {¶18} In light of the conflicting evidence as to whether Appellant possessed

the land in question for 21 continuous years, the need to construe adverse

possession claims “in favor of the person who has title to the property,” and the

requirement that Appellant must prove adverse possession by clear and convincing

evidence, we find that the trial court, the trier of fact in this case, did not lose its

way. We agree that Appellant did not prove, by clear and convincing evidence,

adverse possession of the property in question. Accordingly, we overrule

Appellant’s first assignment of error.

                            ASSIGNMENT OF ERROR II

       {¶19} In her second assignment of error, Appellant asserts the trial court

mistakenly applied the dates of deed execution and recordation to the 21-year

period for adverse possession, instead of the date of actual possession.

       {¶20} In its findings of fact, the trial court sets out the recording dates of

Appellant’s and Appellees’ deeds respectively, but it makes no mention of those

dates being used to determine the 21-year period required for adverse possession.

Rather, the trial court’s conclusion that Appellant did not prove adverse possession

is consistent with our analysis of Appellant’s first assignment of error, i.e. the trial

court did not lose its way in holding that Appellant did not clearly and
Washington App. No. 18CA24                                                        10

convincingly prove that she possessed the property in question for the required 21-

year time period.

      {¶21} Also, assuming for the sake of argument that the trial court relied on

the dates of the deeds to determine Appellant’s adverse possession of the property

in question, based on our analysis of Appellant’s first assignment of error, the error

would be harmless under Civ.R.61. Therefore, we overrule Appellant’s second

assignment of error.

                          ASSIGNMENT OF ERROR III

      {¶22} In her third assignment of error, Appellant alleges the trial court

ignored the established principal of “tacking” when it analyzed adverse possession.

Appellant argues that even if she did not adversely possess the property for the

required 21-year period, the time that she did adversely possess the property may

be “tacked” (i.e. added) onto the period of time the previous owner adversely

possessed the property in order to satisfy the required 21-year period for adverse

possession.

      {¶23} The law provides that “[i]t is not necessary that possession for the full

21 years be continuous in one person, for the doctrine of tacking the possession of

successive owners has been adopted in Ohio.” Ault v. Prairie Farmers Co-

Operative Co., 6th Dist. Wood No. WD-81-21, 1981 WL 5788, *2, citing McNeely

v. Langan, 22 Ohio St.32 (1871).
Washington App. No. 18CA24                                                        11

      {¶24} “In order to tack a predecessor's use of property, an adverse

possession claimant initially must establish that the claimant and the predecessor

are in privity.” Cline v. Rogers Farm Enterprises, LLC, 4th Dist. Pickaway No.

16CA7, 2017-Ohio-1379, 87 N.E.3d 637, ¶ 34, citing Hawn v. Pleasant, 4th Dist.

Scioto No. 98CA2595, 1999 WL 366584, *6. But “privity, for adverse possession

purposes, does not require a contractual relationship between successive property

owners.” Id. at ¶ 38. Rather, privity requires “that one receive possession from the

other by some act such other or by operation of law.” (Emphasis added.) Bullion

v. Gahm, 164 Ohio App.3d 344, 2005-Ohio-5966, 842 N.E.2d 540, ¶ 19 (4th Dist.),

quoting Keezer v. Deatrick (1988), Paulding App. No. 11-87-8, 1988 WL 126760,

quoting 2 Ohio Jur.3d 525, et seq., Adverse Possession, Section 27. Most

important in this case, “the pertinent inquiries when evaluating privity in the

adverse possession context are whether the adverse claimant and the predecessor(s)

successively-and without interruption-occupied the property and whether a transfer

of possession by any means, in fact, occurred.” (Emphasis added.) Cline, 4th Dist.

Pickaway No. 16CA7, 2017-Ohio-1379, 87 N.E.3d 637 at ¶ 34, citing McNeely, 22

Ohio St. at 37 (1871). To demonstrate continuous use an adverse claimant must

show that there was no “substantial interruption” in his use of the property. Gahm,

164 Ohio App.3d 344, 2005-Ohio-5966, 842 N.E.2d 540, at ¶ 20. “[D]aily or

weekly use [is] [ ] not [ ] required, as long as the use shown is continuous enough
Washington App. No. 18CA24                                                      12

to indicate prolonged and substantial use.” Id. quoting Ault v. Prairie Farmers Co-

Operative Co., 6th Dist. Wood App. No. WD-81-21, 1981 WL 5788, see also

Pottmeyer v. Douglas, 4th Dist. Washington No. 10CA7, 2010-Ohio-5293, ¶ 37.

      {¶25} John A. Tullius, a witness for the Appellant, testified that his

grandparents lived on the property in question, and he (Tullius) spent a significant

amount of time on the property as a child. Tullius testified that there were several

structures on the property, including an “old house,” a “new house,” and a two-car

garage. Tullius testified that his family owned and lived on the property from 1957

until it was abandoned in “probably [the] early ‘90s, late ‘80s.”

      {¶26} Appellant claims that Olive Richie or his employer, Constitutional

Stone, was the owner of the property immediately prior to her purchase of the

property. However, Appellant fails to provide any citation to the record for this

assertion, and we cannot find any evidence of such ownership or adverse

possession in the record during this period. In fact, Appellant testified that when

she purchased the property, it was abandoned.

      {¶27} Accordingly, we find no evidence regarding the hostile possession of

the property in question by Tullius’ grandparents to the time that Appellant took

ownership/possession sometime in 1996, i.e. it was abandoned. At best from

Appellant’s perspective, this is a gap of at least several years in hostile possession

of the property.
Washington App. No. 18CA24                                                       13

         {¶28} Strictly construing this testimony, we find that this period of

abandonment was a “substantial interruption” in the continuous hostile possession

of the property so as to make tacking inapplicable. Compare Gahm, 164 Ohio

App.3d 344, 2005-Ohio-5966, 842 N.E.2d 540, ¶ 20 (4th Dist.) (four-month gap in

adverse possession did not interrupt continuity for purposes of an adverse

possession action). Accordingly, we overrule Appellant’s third assignment of

error.

                                     CONCLUSION

         {¶29} In holding “[Appellant] has failed to establish adverse possession by

clear and convincing evidence,” we find that the trial court, as the trier of fact in

this case, did not clearly lose its way so as to create a manifest miscarriage of

justice to justify a new trial. Accordingly, we affirm the judgment of the trial

court.

                                                          JUDGMENT AFFIRMED.
Washington App. No. 18CA24                                                     14

                              JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellant.

      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.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.

Abele, J. & Hess, J.: Concur in Judgment and Opinion.


                                       For the Court,


                                BY: ______________________________
                                    Matthew W. McFarland, 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.
