[Cite as Harris v. Dayton Power & Light Co., 2016-Ohio-517.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 JOY HARRIS, et al.                                   :
                                                      :    Appellate Case No. 26796
         Plaintiffs-Appellees                         :
                                                      :    Trial Court Case No. 11-CV-4382
 v.                                                   :
                                                      :    (Civil Appeal from
 DAYTON POWER & LIGHT                                 :     Common Pleas Court)
 COMPANY, et al.                                      :
                                                      :
         Defendants-Appellants                        :


                                              ...........

                                              OPINION

                          Rendered on the 12th day of February, 2016.

                                              ...........

CHRISTOPHER B. EPLEY, Atty. Reg. No. 0070981, Christopher B. Epley Co., L.P.A.,
100 East Third Street, Suite 400, Dayton, Ohio 45402
      Attorney for Plaintiffs-Appellees, Neal and Joy Harris

JAMES PAPAKIRK, Atty. Reg. No. 0063862, and GREGORY E. HULL, Atty. Reg.
No. 0023520, Flagel & Papakirk, LLC, 50 East Business Way, Suite 410, Cincinnati, Ohio
45241
      Attorneys for Defendants-Appellants

                                            .............

FAIN, J.

        {¶ 1} Defendant-appellant the Dayton Power and Light Company (DP&L) appeals
                                                                                         -2-


from a summary judgment rendered in favor of plaintiffs-appellees Neal and Joy Harris.

DP&L contends that the trial court erred because the Harrises do not have standing to

pursue a quiet title action, and because the Harrises failed to present sufficient evidence

to meet all the elements of their claim for a prescriptive easement.

       {¶ 2} We conclude that the trial court did not err in rendering summary judgment

in favor of the Harrises. Accordingly, the judgment of the trial court is Affirmed.

 I. The Harrises Established All Elements of a Claim for a Prescriptive Easement

       {¶ 3} In June 2011, the Harrises filed a complaint against DP&L, entitling Count I

as an action seeking to quiet title based on a claim of easement by prescription. The

trial court rendered summary judgment in favor of DP& L on the easement-by-prescription

claim, and the Harrises appealed. We reversed the judgment and remanded the cause.

Harris v. Dayton Power & Light, 2d Dist. Montgomery No. 25636, 2013-Ohio-5234. The

facts as described in the first appeal are as follows:

              On May 25, 1973, Orlyn and Dorothy Harris acquired approximately

       130 acres of rural land in Germantown. They used the property as overflow

       for their farming operation and to graze livestock. A former railroad line cuts

       across the 130 acres. In April 1975, most of the property was sold to James

       and Pamela Glossip. The property sold to the Glossips represents all of the

       acreage to the west of the railroad line.

              The remaining 28 acres of the original 130 acres are currently owned

       by Neal and Joy Harris (the Harrises), who are the son and daughter-in-law

       of Orlyn and Dorothy Harris. This acreage is situated to the east of the

       railroad line. The 28 acres are divided into two parcels. The first parcel is a
                                                                                  -3-


little over fifteen cleared acres, and the second parcel contains a little over

twelve primarily wooded acres. The Harrises’ barn is located on the first

parcel; their house is located on the second parcel. There is a creek on the

second parcel.

       The Harrises wished to engage in recreational activities on the

wooded acreage of the second parcel. Both parcels abut the railroad line,

which is owned by DP&L. According to the Harrises, the only way to access

the wooded portion of the property is via the DP&L property. Moreover,

during periods of high water, the only way to access their home is via the

DP&L property.

       In June 2009, DP&L sent a letter to the Harrises informing them that

DP&L does not permit the unauthorized use of real property and that there

were no written lease agreements granting rights of use to the railroad

property. The Harrises unsuccessfully attempted to purchase the railroad

property from DP&L.

       In November 2009, DP&L sent a letter to the Harrises giving them

the right to enter over, upon, and through the railroad property for the

express purpose of ingress and egress, provided that no dangerous or

hazardous activity took place on the property and that no building or storage

would occur on the property.

       In June 2010, DP&L sent a letter to the Harrises revoking the

permission previously granted. DP&L cited prohibited dangerous activities

occurring on the property. The Harrises ceased all activity on the railroad
                                                                                          -4-


         property. In May 2011, DP&L granted the Harrises limited permission to use

         the railroad property on two days to access their property to remove

         equipment.

Harris v. Dayton Power & Light, 2d Dist. Montgomery No. 25636, 2013-Ohio-5234,

¶ 3-8.

         {¶ 4} After we reversed, and remanded the case, both parties moved for summary

judgment. The Harrises supported their motion with affidavits from both Neal and Joy

Harris. In his affidavit, Neal avers that his parents bought the property in 1973, when he

was ten years old, and since 1973 his family used the railroad property to access their

property. Neal’s affidavit establishes that his parents gave one parcel to him in 1994, and

that he inherited the other parcel in 2005, when his mother died. Neal’s affidavit avers

that since 1994, he and his wife used the railroad property regularly for access to their

property, and that his family’s use has been continual and open since 1973. In her

affidavit, Joy explained that since their home on the property was completed in 1997, they

have continually used the right of way “to access the woods for various activities including

four-wheeling,    blackberry-picking,   mushroom-hunting,     camping,    horseback-riding,

exercising, hauling firewood, giving hay-rides, and livestock grazing.” Dkt. #5.

         {¶ 5} DP&L also moved for summary judgment, supported by their depositions of

both Neal and Joy Harris. In her deposition, Joy admitted that she had no knowledge of

the use of the property prior to the time when she began dating Neal around 1990, and

that her knowledge of the property use before she moved there was limited to what Neal

had told her. In Neal’s deposition, he explained that his parents never lived at the property

where he currently resides, but that they used all of the property for growing crops and
                                                                                             -5-


as pasture for cows and pigs, which necessarily required the animals to cross the railroad

line to access both parcels of land. Neal testified that the cows were free roaming, all

year round, and that the pigs were seasonal – they did not stay outside in winter. Both

Joy and Neal testified that they continued to grow crops and farm pigs on the property,

but did not use the land for pasturing cows after they built and moved into their residential

home on the property in 1997. Joy testified that they stopped raising pigs on the property

in 2009, when DP&L prohibited their access across the railroad line, but they continue to

use their land for growing crops, and pasturing horses. Joy and Neal testified that they

have never used the railroad line property for farming crops — it was only used to provide

access between their parcels of land.

       {¶ 6} Neal testified that he relies on a wood burning stove to heat his home, but he

now has no access to the wooded area of his property, where he had previously obtained

the wood needed for heat through the winter. Neal testified that when the railroad owned

the railroad bed, it was maintained by the railroad. Neal also testified that after the railroad

property was purchased by DP&L it was not maintained, causing problems on his land,

due to flooding and weed overgrowth, which reduces the land that can be farmed.

       {¶ 7} The trial court rendered summary judgment in favor of the Harrises, citing

as facts established by Neal’s affidavit that his family has continually, since 1973, used

the railroad property to access their property. The trial court also found that the Harrises

proved all the elements of their claim for a prescriptive easement, including continuous

use of the property because the use made by the Harris family for more than 21 years

was substantially similar. The trial court rejected DP&L’s claim that the Harrises lacked

standing to bring this action. The trial court concluded that the Harrises’ exclusive
                                                                                         -6-


possession of the property was not necessary to prove an easement by prescription.

From the summary judgment rendered against it, DP&L appeals.

                                 II. Standard of Review

      {¶ 8} We have previously explained our role in reviewing summary judgments:

             When reviewing a summary judgment, an appellate court conducts

      a de novo review. Village of Grafton v. Ohio Edison Co., 77 Ohio St.3d 102,

      105, 671 N.E.2d 241 (1996). “De Novo review means that this court uses

      the same standard that the trial court should have used, and we examine

      the evidence to determine whether as a matter of law no genuine issues

      exist for trial.” Harris v. Dayton Power & Light Co., 2d Dist. Montgomery No.

      25636, 2013–Ohio–5234, ¶ 11 (quoting Brewer v. Cleveland City Schools

      Bd. of Edn., 122 Ohio App.3d 378, 383, 701 N.E.2d 1023 (8th Dist.1997)

      (citing Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116, 413 N.E.2d 1187

      (1980)). Therefore, the trial court's decision is not granted any deference by

      the reviewing appellate court. Brown v. Scioto Cty. Bd. Of Commrs., 87 Ohio

      App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993).

             Civ. R. 56 defines the standard to be applied when determining

      whether a summary judgment should be granted. Todd Dev. Co., Inc. v.

      Morgan, 116 Ohio St.3d 461, 463, 880 N.E.2d 88 (2008). Summary

      judgment is proper when the trial court finds: “(1) that there is no genuine

      issue as to any material fact; (2) that the moving party is entitled to judgment

      as a matter of law; and (3) that reasonable minds can come to but one

      conclusion, and that conclusion is adverse to the party against whom the
                                                                                         -7-


       Motion for Summary Judgment is made, who is entitled to have the

       evidence construed most strongly in his favor.” Fortune v. Fortune, 2d Dist.

       Greene No. 90–CA–96, 1991 WL 70721, *1 (May 3, 1991) (quoting Harless

       v. Willis Day Warehouse Co., 54 Ohio St.2d 64, 67, 375 N.E.2d 45 (1978)).

       The initial burden is on the moving party to show that there is no genuine

       issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292–93, 662

       N.E.2d 264 (1996). Once a moving party satisfies its burden, the nonmoving

       party may not rest upon the mere allegations or denials of the party's

       pleadings. Dotson v. Freight Rite, Inc., 2d Dist. Montgomery No. 25495,

       2013-Ohio-3272, ¶ 41 (citation omitted).

Stephan v. State, 2d Dist. Miami No. 2015-CA-15, 2015-Ohio-4516, ¶ 41, citing Cincinnati

Ins. Co. v. Greenmont Mut. Hous. Corp., 2d Dist. Montgomery No. 25830, 2014-Ohio-

1973, ¶ 17-18.

                     III. The Harrises’s Standing Is Not a Disputed Issue

       {¶ 9} For its First Assignment of Error, DP&L asserts as follows:

              THE TRIAL COURT ERRED BY HOLDING THAT APPELLANT THE

       DAYTON POWER & LIGHT COMPANY WAIVED ITS ARGUMENT THE

       APPELLEES NEAL AND JOY HARRIS LACKED STANDING BY NOT

       PURSUING THE ARGUMENT IN THE EARLIER APPEAL TO THIS

       COURT.

       {¶ 10} DP&L argues that because standing is required before a court’s subject-

matter jurisdiction is invoked, it is never waived. DP&L also asserts that it did not waive

the issue of standing, because it did raise it in the first motion for summary judgment, and
                                                                                           -8-


in a footnote in its brief in the first appeal. In support of its argument, DP&L relies on the

holding in Dominion Homes, Inc. v. Shinoskie, 10th Dist. Franklin No. 01AP-794, 2002-

Ohio-2298, and Clark v. Hubbard, 8 Ohio 382 (1838). Both of these cases were quiet

title actions, seeking to clarify fee simple title to real property. In Clark, the Supreme

Court of Ohio held that to pursue fee simple title through a quiet title action, the

complainant must affirmatively allege and prove actual possession of the land in

controversy. Clark at pg. 385.

       {¶ 11} A property line dispute led to a lawsuit between the builder of a residential

development and the adjoining property owner in Dominion Homes, Inc. v. Shinoskie,

10th Dist. Franklin No. 01AP-794, 2002-Ohio-2298. In Dominion Homes, the court held

that the developer did not have standing to pursue the quiet title action because it had

already sold the four lots abutting the property line. Id. at ¶ 18. The court’s decision

focused on the language of R.C. 5303.01, governing actions to quiet title, which provides

that an action may be brought by a person in possession of real property, or by a person

out of possession if the person has a remainder or reversion interest in the real property.

Id. at ¶¶ 17-18. Dominion Homes is distinguishable from the case before us because the

Harrises are seeking a prescriptive easement, which is not the same as a quiet title action

seeking fee simple title to property. Consequently, they need only show a possessory

interest in the estate in which they seek to quiet title – an easement of access in this case.

       {¶ 12} An easement is a right, without profit, created by grant or prescription, which

the owner of one estate, called the dominant estate, may exercise in or over the estate of

another, called the servient estate, for the benefit of the former. Malone v. Bd. of Zoning

Appeals of Xenia Twp., 2d Dist. Greene No. 06-CA-62, 2007-Ohio-3812, ¶ 10, citing
                                                                                            -9-

Trattar v. Rausch, 154 Ohio St. 286, 95 N.E.2d 685 (1950), paragraph one of the syllabus.

“An easement in or over the land of another may be acquired only by grant, express or

implied, or by prescription”. Trattar at paragraph two of the syllabus. “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, *2

(Sept. 21, 1998). “Prescription is, in essence, a form of adverse possession. They differ

in that prescription grants the adverse user an easement or incorporeal rights in the

property, while adverse possession grants the adverse user legal title.” Id. at fn 6.

       {¶ 13} The factual issue of whether the claimant has possession, a remainder

interest, or reversion interest in the property is not an element of a claim for a prescriptive

easement. An easement grants permission to use the land of another, not the exclusive

right to possess it. The elements necessary to prove a quiet title action seeking fee

simple title to real property are different than the elements necessary to prove a

prescriptive easement. To acquire fee simple title to real property by adverse possession,

a party must establish, by clear and convincing evidence, that the claimant has possessed

the land in an open, notorious, exclusive, adverse, and continuous manner for at least 21

years. Grace v. Koch, 81 Ohio St.3d 577, 579, 692 N.E.2d 1009 (1998). “The distinction

between the elements required to acquire a prescriptive easement and those required to

acquire title by adverse possession is limited to the land's exclusive use. Acquiring an

easement by prescription differs from acquiring title by adverse possession, in that

exclusivity is not an element required to establish an easement by prescription.” Vaughn

v. Johnston, 12th Dist. Brown No. CA2004-06-009, 2005-Ohio-942, ¶ 11 (internal citations

omitted).
                                                                                         -10-


       {¶ 14} In the present case, the Harrisses established that there is no genuine

issue of material fact that they and their predecessors have used the property at issue

since 1973. Therefore, the Harrises have standing to pursue a claim for a prescriptive

easement based on their use of the property.         Whether their use was adverse, or

continuous for a sufficient length of time, are factual elements of their claim, but those

issues do not implicate their standing to pursue the claim. We are also not persuaded that

the Harrises’ claim should fail based on how they chose to title Count I of their complaint,

identifying their claim as a quiet title action, rather than one seeking a declaratory

judgment for a prescriptive easement. Regardless of the title chosen for Count I, the text

of Count I alleges facts that, if proven by the requisite degree of proof, would establish

their claim for a prescriptive easement.

       {¶ 15} Accordingly, the First Assignment of Error is overruled.

           IV. The Trial Court Based its Judgment on Sufficient Evidence

       {¶ 16} For its Second Assignment of Error, DP&L asserts as follows:

              THE TRIAL COURT ERRED BY GRANTING THE MOTION FOR

       SUMMARY JUDGMENT OF APPELLEES JOY AND NEAL HARRIS AND

       DENYING THE MOTION FOR SUMMARY JUDGMENT OF APPELLANT

       THE DAYTON POWER & LIGHT COMPANY WHEN APPELLEES

       LACKED STANDING AND FAILED TO PRODUCE SUFFICIENT

       EVIDENCE TO SUPPORT THEIR PRESCRIPTIVE EASEMENT CLAIM.

       {¶ 17} DP&L argues that the Harrises’ summary judgment motion should fail

because they lack standing to pursue the claim, and because the Harrises failed to

present sufficient evidence on each element of the claim. As discussed above, we have
                                                                                        -11-


already concluded that the Harrises have standing to pursue their prescriptive easement

claim.

         {¶ 18} A party claiming a prescriptive easement has the burden of proving a use

of the property that is: (1) open; (2) notorious; (3) adverse to the neighbor’s property

rights; (4) continuous; and (5) at least 21 years in duration. J.F. Gioia, Inc. v. Cardinal

Am. Corp., 23 Ohio App.3d 33, 37, 491 N.E.2d 325 (8th Dist.1985). The claimant has the

burden of proving each element by clear and convincing evidence. Coleman v. Penndel

Co., 123 Ohio App.3d 125, 130, 703 N.E.2d 821 (7th Dist.1997).

         {¶ 19} Property is used “openly” when it is used “without attempted concealment,”

and it is used “notoriously” when its use is “known to some who might reasonably be

expected to communicate their knowledge to the owner if he maintained a reasonable

degree of supervision over his premises.” Hindall v. Martinez, 69 Ohio App.3d 580, 583,

591 N.E.2d 308 (3d Dist.1990). We agree with the trial court that the record contains

unrebutted evidence that the Harrises and their predecessors openly and notoriously

used the railroad right-of-way to access their two parcels of property, without

concealment, and in a manner of which the owner should, in the exercise of reasonable

diligence, have had knowledge.

         {¶ 20} The element of adversity was established by unrebutted facts that the

Harrises’ use of the land was without DP&L’s permission from 1973 to 2009. “Use of a

claimed prescriptive easement is ‘adverse’ when it is without the permission of, or

inconsistent with the rights of the true property owner.” Dunn v. Ransom, 4th Dist. Pike

No. 10CA806, 2011-Ohio-4253, ¶ 91. Pertinent to the case before us, it has been

recognized that “[w]here one uses a way over the land of another without permission as
                                                                                        -12-


a way incident to his own land, and continues to do so with the knowledge of the owner,

such use is, of itself, adverse.” Pavey v. Vance, 56 Ohio St. 162, 46 N.E. 898 (1897),

paragraph one of the syllabus.

      {¶ 21} When calculating the years of continuous adverse use, it has been held

that the continuity is not broken by a change of ownership between family members. “[I]n

order to show that the adversity element existed for twenty-one years, the occupier may

‘tack’ his adverse use with the adverse use of his predecessors in privity.” Eckman v.

Ramunno, 7th Dist. Mahoning No. 09 MA 162, 2010-Ohio-4316, ¶ 41, citing Zipf v.

Dalgarn, 114 Ohio St. 291, 296, 151 N.E. 174 (1926).

       {¶ 22} DP&L argues that the Harrises failed to establish that their use of the

property was continuous for at least 21 years because their mode of use changed. DP&L

asserts that Orlyn and Dorothy Harris used the property from 1973 to 1994 for farming

purposes, but after the land was conveyed to their son and daughter-in-law, the Harrises

used the land for entirely different purposes – primarily recreational. We disagree with

this construction of the unrebutted facts. The property affected by the easement is an

unused railroad right-of-way, described as an abandoned elevated railroad bed, which

runs through the property, and which must be crossed in order for the Harrises to access

their two parcels of property. The Harrises and their predecessors did not use the railroad

land for farming or for recreational activities – they used it for ingress and egress from

one parcel to the other. Whether the Harrises are crossing the line with cows, horses,

pigs, or ATV’s is immaterial; the purpose for which the easement was used has

consistently been for ingress and egress between the two parcels. Therefore, we agree

with the trial court that the unrebutted facts establish that there has been no substantial
                                                                                          -13-


change in the mode or character of use that could adversely affect the element of

continuous use. See, e.g., Keish v. Russell, 4th Dist. Athens No. 94CA1618, 1995 WL

75388 (Feb. 17, 1995) (a change in use from daily use of a driveway for access to property

to a sporadic use is a change in frequency, not a change in character).

       {¶ 23} DP&L also argues that the Harrises cannot prove continuous adverse use

of the land because DP&L granted the Harisses permission to use the land in 2009, and

then revoked their permission to use the land in 2010. However, the unrebutted facts

establish that the Harrises’ claim for a prescriptive easement had already matured before

this attempt to disrupt their continued use. As we held in our opinion in the Harrises’ first

appeal:

              However, once the claimant’s use of the property has been open,

       notorious, and adverse to the servient property owner for a continuous

       period of 21 years, it is irrelevant whether the servient property owner

       subsequently grants the claimant permission to use the property. Wood v.

       Village of Kipton, 160 Ohio App.3d 591, 2005-Ohio-1816, 828 N.E.2d 173,

       ¶ 22-24 (9th Dist.). The only way to extinguish a matured prescriptive

       easement is for the titleholder to obstruct the easement in an open, adverse,

       and continuous manner for 21 years. Wood at ¶ 26, citing J.F. Gioia [23

       Ohio App. 3d 33, 491 N.E.2d 325 (8th Dist.1985)]. Furthermore, “‘[a] user’s

       acknowledgment that the title holder has the paramount right will not

       extinguish a fully matured prescriptive easement.’” Wood at ¶ 25 (9th Dist.),

       quoting J.F. Gioia at paragraph six of the syllabus.

Harris v. Dayton Power & Light Co., 2d Dist. Montgomery No. 25636, 2013-Ohio-5234, ¶
                                                                                        -14-


13.

       {¶ 24} We conclude that the record does provide sufficient evidence to establish

each element of the claim for a prescriptive easement, and that the trial court did not err

by rendering summary judgment in favor of the Harrises.         Accordingly, the Second

Assignment of Error is overruled.

                                     V. Conclusion

       {¶ 25} Both assignments of error having been overruled, the judgment of the trial

court is Affirmed.

                                          ..........



DONOVAN, P.J., and FROELICH, J., concur.


Copies mailed to:

Christopher B. Epley
James Papakirk
Gregory E. Hull
Hon. Richard Skelton
