[Cite as Homes v. Guess, 2018-Ohio-2691.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



BONNIE L. HOLMES, ET AL.                    :      JUDGES:
                                            :      Hon. John W. Wise, P.J.
        Plaintiffs-Appellees                :      Hon. W. Scott Gwin, J.
                                            :      Hon. Earle E. Wise, Jr., J.
-vs-                                        :
                                            :
ROY GUESS, ET AL.                           :      Case No. 2017CA00201
                                            :
        Defendants-Appellants               :      OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Court of Common
                                                   Pleas, Case No. 2016CV00994




JUDGMENT:                                          Affirmed




DATE OF JUDGMENT:                                  July 9, 2018




APPEARANCES:

For Plaintiffs-Appellees                           For Defendants-Appellants

ROBERT E. SOLES, JR.                               ALEX ROBERTSON
KARA DODSON                                        2210 South Union Avenue
6545 Market Avneue North                           Alliance, OH 44601
North Canton, OH 44721
Stark County, Case No. 2017CA00201                                                      2

Wise, Earle, J.

      {¶ 1} Defendants-Appellants, Roy and Ruth Guess and Phillip and Angela

Guess, appeal the September 20, 2017 decision of the Court of Common Pleas of Stark

County, Ohio, granting judgment in favor of Plaintiffs-Appellees, Bonnie and Bethany

Holmes.

                        FACTS AND PROCEDURAL HISTORY

      {¶ 2} On November 1, 2011, appellants Roy and Ruth purchased a property in

Maximo, Ohio. Appellants Phillip and Angela moved into the property in April 2012.

Appellants Roy and Ruth had purchased the property from the Estate of Betty Jean Shea.

Ms. Shea had owned the property from 1955 until her death in 2010.

      {¶ 3} On April 21, 2015, appellee Bonnie purchased a property adjacent to the

Guess property. Appellee Bethany moved into the property in May 2015. Appellee

Bonnie had purchased the property from U.S. Bank. U.S. Bank acquired the property

through a foreclosure action against John and Melanie Baker in December 2014. The

Bakers had purchased the property from John and Mary Lou Hoskins in July 2004. The

Hoskins purchased the property in May 1983.

      {¶ 4} The boundary line between the two properties is comprised of the eastern

edge of the Holmes property and the western edge of the Guess property. Because the

Holmeses wanted to build a fence along the boundary line, a survey was conducted. The

survey revealed the observed property line was not the true property line; portions of the

Holmes' house, roof overhang, flower bed, shed, down spouting, and leach beds were

located on the Guess property. As a result, on April 29, 2016, appellees filed a complaint

against appellants for adverse possession or in the alternative, a prescriptive easement,
Stark County, Case No. 2017CA00201                                                     3


seeking a declaration that appellee Bonnie is the fee simple owner of approximately eight

feet of the western portion of the Guess property. Appellees also made claims for private

and public nuisance, and sought injunctive relief.

      {¶ 5} Appellants Roy and Ruth counterclaimed, seeking quiet title and ejectment

and alleging frivolous conduct.

      {¶ 6} A bench trial before a magistrate was held on March 17, 2017. By decision

filed April 13, 2017, the magistrate found in favor of appellees. The magistrate found

appellee Bonnie established adverse possession over the "disputed strip" and

established a prescriptive easement regarding a downspout, and was entitled to $295.00

in damages from appellant Phillip. Appellants filed objections. By judgment entry filed

September 20, 2017, the trial court overruled the objections and approved, confirmed,

and adopted the magistrate's decision.

      {¶ 7} Appellants filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

      {¶ 8} "THE COURT IN ITS JUDGMENT ENTRY OF SEPTEMBER 20, 2017,

ERRED IN AWARDING TO PLAINTIFF THE REAL ESTATE DESCRIBED IN ITS ENTRY

UNDER PLAINTIFF'S CLAIM OF ADVERSE POSSESSION FOR THE REASON THAT

PLAINTIFF FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT

PLAINTIFF'S POSSESSION WAS EXCLUSIVE AND PLAINTIFF'S USE WAS

CONTINUOUS FOR A PERIOD OF TWENTY-ONE YEARS."
Stark County, Case No. 2017CA00201                                                       4


                                            II

      {¶ 9} "THE COURT IN ITS JUDGMENT ENTRY OF SEPTEMBER 20, 2017

ERRED IN AWARDING PLAINTIFF THE REAL ESTATE DESCRIBED IN SAID ENTRY

UNDER PLAINTIFF'S CLAIM OF ADVERSE POSSESSION FOR THE REASON THAT

PLAINTIFF FAILED TO PROVIDE BY CLEAR AND CONVINCING EVIDENCE THAT

PLAINTIFF HAD ADVERSELY POSSESSED ALL PORTIONS OF THE REAL ESTATE

AWARDED BY THE TRIAL COURT."

                                            III

      {¶ 10} "THE COURT IN ITS JUDGMENT ENTRY OF SEPTEMBER 20, 2017

ERRED IN AWARDING PLAINTIFF THE REAL ESTATE DESCRIBED IN THE ENTRY

UNDER PLAINTIFF'S CLAIM OF ADVERSE POSSESSION AS PLAINTIFF FAILED TO

PROVIDE PROOF BY CLEAR AND CONVINCING EVIDENCE OF THE EXACT

BOUNDARIES OF HER CLAIM IN CONFORMITY WITH O.R.C. 315.251(A)."

                                         I, II, III

      {¶ 11} In their three assignments of error, appellants claim the trial court erred in

awarding appellee Bonnie the disputed strip under the doctrine of adverse possession.

Specifically, appellants claim appellee Bonnie failed to show by clear and convincing

evidence that her possession was exclusive and continuous for a period of twenty-one

years and she adversely possessed all portions of the real estate awarded to her, and

she failed to provide proof of the exact boundaries of her claim pursuant to R.C.

315.251(A). We disagree.

      {¶ 12} "To acquire title by adverse possession, a party must prove, by clear and

convincing evidence, exclusive possession and open, notorious, continuous, and adverse
Stark County, Case No. 2017CA00201                                                           5

use for a period of twenty-one years." Grace v. Koch, 81 Ohio St.3d 577, 1998-Ohio-607,

692 N.E.2d 1009, syllabus. Clear and convincing evidence is that evidence "which will

provide in the mind of the trier of facts a firm belief or conviction as to the facts sought to

be established." Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph

three of the syllabus. See In re Adoption of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613

(1985). "Where the degree of proof required to sustain an issue must be clear and

convincing, a reviewing court will examine the record to determine whether the trier of

facts had sufficient evidence before it to satisfy the requisite degree of proof." Cross at

477. Sufficiency of the evidence "is a test of adequacy. Whether the evidence is legally

sufficient to sustain a verdict [decision] is a question of law." State v. Thompkins, 78 Ohio

St.3d 380, 386, 678 N.E.2d 541 (1997).

       {¶ 13} As succinctly explained by this court in McKenna v. Boyce, 5th Dist.

Muskingum No. CT2012-0014, 2012-Ohio-5163, ¶ 37-40:



              In order for possession to be considered open, "the use of the

       disputed 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."

       Kaufman v. Geisken Enterprises, Ltd., 3rd Dist. No. 12-02-04, 2003-Ohio-

       1027, ¶ 31.

              In order for possession to be considered "hostile", the Ohio Supreme

       Court has stated that any use of the land inconsistent with the rights of the
Stark County, Case No. 2017CA00201                                                        6

      titleholder is adverse or hostile. Kimball v. Anderson, 125 Ohio St. 241,

      244, 181 N.E. 17 (1932).

             In order for use to be considered continuous and exclusive, " '[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.' "

      Kaufman, supra, at ¶ 39, quoting Walls v. Billingsley, 3rd Dist. No. 1-92-11,

      1992 WL 198131 (Aug. 18, 1992), citing 4 Tiffany, Real Property (1975)

      736, Section 1141.

             In order to establish the necessary twenty-one year period, a party

      may add to their own term of adverse use any period of adverse use by

      prior succeeding owners in privity with one another. Zipf v. Dalgarn, 114

      Ohio St. 291, 151 N.E. 174, syllabus (1926).



      {¶ 14} In the case sub judice, the magistrate heard testimony from six witnesses,

each appellee and appellee Bonnie's husband, appellant Phillip, a professional land
Stark County, Case No. 2017CA00201                                                   7


surveyor, and a longtime backyard adjoining neighbor of the properties in question. The

magistrate made extensive and lengthy findings of fact and concluded the following in

part:



               9. The evidence demonstrates that as far back as 1969, the owners

        of the Holmes Property treated the Disputed Strip as their own, and the

        owners of the Guess Property made no attempt to claim ownership over the

        Disputed Strip until this dispute arose in 2016.

               10. The use of the Disputed Strip by the various owners of the

        Holmes Property was open, with no attempt of concealment, and was visible

        to the owners of the Guess Property as well as those residing in the

        neighborhood in several respects[.]

               ***

               11. The Magistrate likewise concludes that the use of the Disputed

        Strip was notorious. There was no question as to anyone who observed

        the properties that the Disputed Strip was being used by the owners of the

        Holmes Property.

               12. Defendants have attempted to argue that the adverse use of the

        Disputed Strip was not continuous because there was [a] 20 month period

        where no one resided in the home on the Holmes Property and because

        Phillip Guess testified he mowed the Disputed Strip several times during

        that period.
Stark County, Case No. 2017CA00201                                                   8


           13. The Magistrate does not agree. Initially, the Magistrate found

     Phillip Guess's testimony to not be credible. Even assuming, arguendo,

     that the Magistrate did credit his testimony that he mowed the Disputed Strip

     12 times, the Magistrate would conclude that the mere act of mowing the

     Disputed Strip a few times-without more-is not sufficient to assert, by word

     or act, any right of ownership or possession over the Disputed Strip.

           14. Additionally, even though no one was physically residing in the

     house on the Holmes Property for 20 months, the Magistrate finds that the

     owners of the Holmes Property were still continuously using the Disputed

     Strip through the encroachments of the home, brick planter, shed, and

     downspouts.     Additionally, the owners of the Holmes Property were

     maintaining the Disputed Strip by mowing. This is sufficient to constitute

     continuous use.

           15. The Magistrate likewise concludes that the use was continuous

     for a period in excess of 21 years. The encroachments of the house,

     roofline, and brick planter were present since at least 1969. The Disputed

     Strip was maintained through mowing and other lawn care since at least

     1969. The Disputed Strip was used by the owners of the Holmes Property

     for recreational use since at least 1969. The down spouts have encroached

     the Guess Property since at least 1991. The shed has encroached the

     Guess Property since 1993 or 1994. All of this use continued until 2016

     when this dispute arose which is a period in excess of 21 years.
Stark County, Case No. 2017CA00201                                                       9


             16. Finally, the use of the Guess Property by the owners of the

      Holmes Property was adverse and hostile. There is no question that the

      use of the Disputed Strip by the owners of the Holmes Property was

      inconsistent with the property rights of the owners of the Guess Property.



      {¶ 15} In reviewing the transcript of the trial, we find the magistrate's sixty-two

findings of fact and thirty-two conclusions of law to be supported by the record. T. at 26-

27, 32-36, 39-40, 42-43, 46, 101-112, 123-125, 137-140, 147, 163-164. Appellees have

demonstrated the elements of adverse possession pertaining to the disputed strip by clear

and convincing evidence.

      {¶ 16} Appellants further argue appellees failed "to describe the boundaries

needed to sustain its claim" and cites R.C. 315.251 in support. Appellants' Brief at 20.

R.C. 315.251(A) states the following:



             If a deed conveying title to real property is presented to the county

      auditor for transfer, and the deed contains a legal description for land that

      is a cut-up or split of the grantor's one or more existing parcels of land as

      shown in the county auditor's records, or if the legal description of the land

      conveyed in the deed is different from the legal description shown in the

      prior deed to the grantor, a boundary survey plat in conformity with the new

      description shall be submitted with the deed.         The survey plat and

      description shall satisfy the minimum standards for boundary surveys

      promulgated by the board of registration for professional engineers and
Stark County, Case No. 2017CA00201                                                        10


      surveyors pursuant to Chapter 4733. of the Revised Code. If, in the opinion

      of the county engineer, the survey plat and description satisfy those

      standards, the county auditor shall accept the deed for transfer and a copy

      of the survey plat shall be filed in the county engineer's survey file for public

      inspection.


      {¶ 17} In denying appellants' objection on the issue, the trial court found the

following in its judgment entry filed September 20, 2017:



             Defendants also claim that Plaintiffs were required to present

      evidence of a metes and bounds surveyed description and plat at trial in

      order to succeed on their adverse possession claim. The Court notes that

      no Ohio case has required such evidence as part of the proof of an adverse

      possession claim, and Defendants have not provided any authority in

      support of their argument that such is a necessity. The only case cited by

      Defendants in support of such a contention, [is] Franklin v. Massillon

      Holmes [sic] II, LLC, 184 Ohio App.3d 455, 2009-Ohio-5487, 921 N.E.2d

      314 (5th Dist.). In that case, the trial court concluded-among other things-

      that the plaintiff's adverse possession claim must fail because the plaintiff's

      reference to landmarks such as fences and shrubs may not sufficiently

      identify the boundaries. Id. at ¶12. However, the Fifth District Court of

      Appeals actually reversed the trial court's determination, finding it was in

      error. Id. at ¶34. The requirement proposed by Defendants would ultimately

      prove unworkable.      For instance, in this case, the Court could have
Stark County, Case No. 2017CA00201                                                     11


      determined that the new boundary should exist in any number of places-at

      the roofline, at the edge of the planter, at the edge of the downspout, at the

      edge of the shed-rendering it impossible to obtain a proposed plat in

      advance of a judicial determination as to the proper boundary line.

             The Magistrate's Decision found the existence of the boundary

      based on the edge of a physical landmark-a fence-and a monument-the

      bent post.   It is axiomatic that stakes and monuments are "of prime

      importance" in establishing boundaries, and may even control over metes

      and bounds descriptions in certain cases. See Broadsword v. Kauer, 161

      Ohio St. 524, 533-534, 120 N.E.2d 111 (1954). The Magistrate's Decision

      provides sufficient guidance from which a boundary may be established.

      From this decision, Plaintiffs may obtain a survey plat and description of the

      type contemplated by R.C. 315.251.



      {¶ 18} We concur with the trial court's analysis.

      {¶ 19} Upon review, we find the trial court did not err in finding appellees

established their claim of adverse possession by clear and convincing evidence, and was

not required, based upon the facts in this case, to have a metes and bounds surveyed

description and plat to succeed on their adverse possession claim.

      {¶ 20} Assignments of Error I, II, and III are denied.
Stark County, Case No. 2017CA00201                                          12


      {¶ 21} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Wise, John, P.J. and

Gwin, J. concur.




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