[Cite as Rising v. Litchfield Bd. of Twp. Trustees, 2012-Ohio-2239.]


STATE OF OHIO                     )                          IN THE COURT OF APPEALS
                                  )ss:                       NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

ROBERT RISING, JR.                                           C.A. No.   11CA0079-M

        Appellant

        v.                                                   APPEAL FROM JUDGMENT
                                                             ENTERED IN THE
LITCHFIELD BOARD OF TOWNSHIP                                 COURT OF COMMON PLEAS
TRUSTEES                                                     COUNTY OF MEDINA, OHIO
                                                             CASE No.   11CIV0064
        Appellee

                                  DECISION AND JOURNAL ENTRY

Dated: May 21, 2012



        WHITMORE, Presiding Judge.

        {¶1}     Plaintiff-Appellant, Robert Rising Jr., appeals from a judgment of the Medina

County Court of Common Pleas, which denied his motion for summary judgment and granted

Defendant-Appellee, Litchfield Board of Township Trustees’ (“Litchfield”), motion for

summary judgment. This Court affirms in part and reverses in part.

                                                        I

        {¶2}     Rising’s parents acquired 3933 Avon Lake Road in 1945. Rising purchased the

property from his father’s estate in 1980. One way for vehicles to access the Avon Lake Road

property is by the driveway of 9268 Norwalk Road, which sits north of the Avon Lake property.

Vehicles may also access Rising’s property by a driveway off of Avon Lake Road. According to

Rising’s affidavit, the driveway of 9268 Norwalk Road has been continuously used by either

Rising and/or his parents to access the Avon Lake Road property since 1951, when Rising was
                                               2


born. It is unclear, however, from Rising’s affidavit when his parents began using the Norwalk

Road driveway.

       {¶3}   In 1999, Litchfield Township purchased the Norwalk Road property. In 2010,

Litchfield barricaded the driveway, thereby preventing Rising from using it to access his Avon

Lake Road property. Rising filed suit to quiet title alleging that he had acquired title to the

driveway of 9268 Norwalk Road by prescriptive easement.            Cross motions for summary

judgment were filed. The trial court denied Rising’s motion, but granted Litchfield’s motion for

summary judgment finding that real property owned by a township is not subject to either

adverse possession or prescription. Rising now appeals and raises one assignment of error for

our review.

                                      Assignment of Error

       THE TRIAL COURT ERRED IN GRANTING DEFENDANTS-APPELLEES’
       MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF-
       APPELLANT’S MOTION FOR SUMMARY JUDGMENT.

       {¶4}   Within his only assignment of error, Rising argues that the court committed two

errors. First, Rising argues that the court erred when it granted Litchfield’s motion for summary

judgment. Second, Rising argues that the court erred when it denied his motion for summary

judgment. We agree that the court erred by granting summary judgment in favor of Litchfield,

but hold that the court properly denied Rising’s motion for summary judgment.

       {¶5}   To prevail on a motion for summary judgment, the moving party must show:

       (1) there is no genuine issue of material fact; (2) the moving party is entitled to
       judgment as a matter of law; and (3) it appears from the evidence that reasonable
       minds can come to but one conclusion when viewing evidence in favor of the
       nonmoving party, and that conclusion is adverse to the nonmoving party.

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). The party moving for summary

judgment bears the initial burden of informing the trial court of the basis for the motion and
                                                 3


pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher

v. Burt, 75 Ohio St.3d 280, 292-293 (1996). Specifically, the moving party must support the

motion by pointing to some evidence in the record of the type listed in Civ.R. 56(C). Id. Once

this burden is satisfied, the non-moving party bears the burden of offering specific facts to show

a genuine issue for trial. Id. at 293. The non-moving party may not rest upon the mere

allegations and denials in the pleadings but instead must point to or submit some evidentiary

material that demonstrates a genuine dispute over a material fact. Henkle v. Henkle, 75 Ohio

App.3d 732, 735 (12th Dist.1991). This Court reviews a trial court’s decision to grant or deny a

motion for summary judgment de novo. Grafton at 105.

       {¶6}    The trial court found that Rising’s claim of a prescriptive easement must fail

because the Norwalk Road property is owned by Litchfield, a political subdivision. See Wyatt v.

Ohio Dept. of Transp., 87 Ohio App.3d 1, 4 (11th Dist.1993) (“[G]enerally, adverse possession

cannot be applied against the state or its political subdivisions.”). The trial court, however, did

not appear to consider the possibility that Rising had established a prescriptive easement before

1999, when Litchfield purchased the property.

       {¶7}    “A prescriptive easement occurs when one can prove that he has used the land of

another (a) openly, (b) notoriously, (c) adversely to the property owner’s rights, (d) continuously,

and (e) for at least twenty-one years.” Wood v. Kipton, 160 Ohio App.3d 591, 2005-Ohio-1816,

¶ 13 (9th Dist.). A landowner does not have to use the property himself for the full twenty-one

years. Under certain circumstances the landowner may add on, or “tack,” the number of years

the land was adversely used by a predecessor in title.

       In order to tack adverse uses, 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) that the use
       was open, notorious, and adverse to the title holder’s interest.
                                                4


Gerstenslager v. Lloyd, 9th Dist. No. 16814, 1995 WL 66284, *3 (Feb. 15, 1995), quoting

Hindall v. Martinez, 69 Ohio App.3d 580, 584 (3d Dist.1990). Here, Rising and his parents are

in privity. Rising purchased the property from his father’s estate. Therefore, Rising may tack

the number of years the driveway was used by his parents if he can establish that his parents used

the property in the same or similar manner and that the use was continuous, open, notorious, and

adverse. See Gerstenslager at *3; Zipf v. Dalgarn, 114 Ohio St. 291 (1926), paragraph two of

the syllabus.

       {¶8}     Litchfield argues that summary judgment in its favor was proper because Rising

cannot meet all of the elements necessary to establish an easement by prescription. Specifically,

Litchfield argues that because Rising did not reside at the Avon Lake Road address for a five

year period in the 1970s, he cannot meet the continuous use for twenty-one years requirement.

However, in the 1970s the property was owned by his parents. If, as discussed above, Rising can

establish that his parents’ use of the property was similar, continuous, open, notorious, and

adverse, he may tack the number of years his parents adversely used the property to reach the

required twenty-one years.

       {¶9}     Litchfield further argues that it is entitled to summary judgment because

prescriptive easements cannot vest against land owned by municipalities. This argument would

only be relevant if Rising’s prescriptive easement vested some time after Litchfield purchased

the property in 1999. However, if Rising’s prescriptive easement vested prior to 1999, Litchfield

would have taken title subject to such easement.

       An easement by prescription arises because and when the statute of limitations
       bars an action against the one asserting such an easement. Thereafter, the owner
       of the servient parcel has no cause of action to interfere with such easement, and
       he can convey no right to assert such a cause of action to anyone, unless a right to
       do so may in effect arise by reason of recording acts or of some other statute.
                                                 5


Renner v. Johnson, 2 Ohio St.2d 195, 198 (1965).

       {¶10} Litchfield failed to meet its burden for summary judgment. Because it is possible

that Rising established a prescriptive easement before 1999, a genuine issue of material fact

remains and, therefore, the court erred in granting Litchfield’s motion for summary judgment.

Rising’s assignment of error as it relates to the granting of Litchfield’s motion for summary

judgment is sustained.

       {¶11} Having concluded that a genuine issue of material fact remains, the court did not

err when it denied Rising’s motion for summary judgment. Rising’s assignment of error as it

relates to the trial court’s denial of his motion for summary judgment is overruled.

                                                     III


       {¶12} Rising’s sole assignment of error is sustained in part and overruled in part. The

judgment of the Medina County Court of Common Pleas is affirmed in part, reversed in part, and

the cause is remanded for further proceedings consistent with the foregoing opinion.


                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
                                                6


period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                    BETH WHITMORE
                                                    FOR THE COURT



MOORE, J.
BELFANCE, J.
CONCUR.


APPEARANCES:

THEODORE J. LESIAK, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and DAVID J. FOLK, Assistant Prosecuting Attorney,
for Appellee.
