[Cite as Spurlock v. Pemberton, 2013-Ohio-4002.]
                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                     LAWRENCE COUNTY


GARY SPURLOCK and GLADYS                           :
SPURLOCK,
                                                   :
       Plaintiffs-Appellants/                          Case No. 13CA1
     Cross-Appellees,                              :

        vs.                                        :

JOHN PEMBERTON and JACKIE              : DECISION AND JUDGMENT ENTRY
PEMBERTON,
                            :
      Defendants-Appellees/
      Cross-Appellants.
_______________________________________________________________

                                           APPEARANCES:

COUNSEL FOR APPELLANTS/                  Craig A. Allen, 311 South Third Street,
 CROSS-APPELLEES:                        P.O. Box No. 1, Ironton, Ohio 45638

COUNSEL FOR APPELLEES/                  Richard F. Bentley, Wolfe & Bentley,
 CROSS-APPELLANTS:                    LLP, 425 Center Street, Ironton, Ohio        45638

_________________________________________________________________
CIVIL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 9-10-13
ABELE, J.

        {¶ 1} This is an appeal from a Lawrence County Common Pleas Court judgment in

favor of John and Jackie Pemberton (Pembertons) defendants below and

appellees/cross-appellant’s herein, on their counter-claim against Gary and Gladys Spurlock,

(Spurlocks) plaintiffs below and appellant’s herein. The Spurlocks assign the following errors

for review:

                FIRST ASSIGNMENT OF ERROR:
LAWRENCE, 13CA1                                                                                                                       2

                    “THE TRIAL COURT ERRED IN PERMITTING EVIDENCE OF
                    CROSS-APPELLANT, APPELLEE’S OWNERSHIP OF
                    PROPERTY BASED UPON AN UNRECORDED LAND
                    CONTRACT.”

                    SECOND ASSIGNMENT OF ERROR:

                    “THE TRIAL COURT ERRED IN DECIDING THE
                    CROSS-APPELLANT, APPELLEE HAD SECURED RIGHTS
                    TO THE LAND BY ADVERSE POSSESSION.”

                    THIRD ASSIGNMENT OF ERROR:

                    “THE TRIAL COURT ERRED IN DECIDING IT SHOULD
                    QUIET TITLE IN THE CROSS-APPELLANT, APPELLEES [.]”

          {¶ 2} The Pembertons raise the following cross-assignment of error for review1:

                    “THE TRIAL COURT ERRED IN OVERRULING THE
                    MAGISTRATE’S DECISION AS TO THE ADOPTION OF THE
                    SURVEY BY DEFENDANTS’ SURVEYOR; THEREFORE,
                    NOT GRANTING DEFENDANTS’ CLAIM FOR QUIET TITLE
                    BY DEED WAS AGAINST THE MANIFEST WEIGHT OF THE
                    EVIDENCE.

          {¶ 3} The parties are contiguous property owners. The Pembertons took possession of

their land in 1984 or 1985 under a “written agreement” that was frequently referred to as a land

contract.2 This contract was not recorded and, when the property was finally conveyed by deed

in 1994, the unrecorded contract was discarded.

          {¶ 4} The Spurlocks acquired their land two years later, in 1996. The dispute involves


          1
           Cross-appellants neglect to set forth in their brief, as App.R. 16(A)(3) requires, a separate statement of
assignments of error. Thus, we take the assignment of error from the argument portion of their brief.
          2
             John Pemberton’s testimony was somewhat confusing as to the actual date he took possession of the premises.
Early in the hearing, he testified he had “been there since 1982," but later in the hearing, he testified that it was 1984 or 1985.
Either way, for purposes of adverse possession, the precise date under these circumstances is unimportant.
LAWRENCE, 13CA1                                                                                                             3

a piece of property of undetermined size3 that lies north of Township Road 253. The

Pembertons claim that this land belongs to them, that they have used the land consistently since

the 1980s and that it was used by the Joseph family, their predecessors-in-title. The Spurlocks,

however, claim the property as a part of the land conveyed to them in 1996. They commenced

the instant action on July 26, 2010 and alleged that the Pembertons had trespassed on their

property continuously since 1998. The Spurlocks requested an injunction against such trespass

in the future and damages in excess of $25,000.

         {¶ 5} The Pembertons denied liability in trespass and asserted several defenses. They

also counterclaimed and alleged, inter alia, outright ownership of the disputed land or,

alternatively, that they acquired ownership through adverse possession.

         {¶ 6} At the hearing before the Magistrate, each side testified as to their ownership

interests in the disputed land. However, the bulk of the evidence concerned two surveys.

Lawrence Murphy's 1997 survey shows that the Spurlocks own the area in dispute, while Thomas

Snyder's 2011 survey shows that the Pembertons are the owners. Both surveyors, not

unexpectedly, criticized the methods the other used. The Snyder survey, as noted several times,

shows Township Road 253 running entirely through the Pemberton land. This means that the

Spurlocks have no access to the road and Gary Spurlock testified that his property has no other

access other than that road.

         {¶ 7} The Magistrate's decision concluded that the Snyder survey is “more credible” and

recommended that the complaint be dismissed and that title be quieted in favor of the


         3
            Lawrence Murphy testified that, although he “never really sat down and figured it out,” he estimated that the
disputed land is “something like a half acre.”
LAWRENCE, 13CA1                                                                                       4

Pembertons. Having so recommended, the Magistrate declined to rule on the Pembertons’

adverse possession claim expressly finding it to be “moot.”

        {¶ 8} The Spurlocks objected to that decision, and the trial court disagreed with the

magistrate on the issue of which survey is more credible. However, although the court found the

disputed land to be part of the Spurlock property, it also found sufficient evidence to show that

the Pemberton’s acquired it by adverse possession. This appeal and cross-appeal followed.

                                                    I

        {¶ 9} In their first assignment of error, the Spurlocks assert that the magistrate erred by

allowing testimony that the Pembertons claimed ownership of their property from the 1980s on

the basis of an unrecorded land contract.

        {¶ 10} Initially, we point out that claims of error on appeal should be based on a trial

court's actions, rather than the magistrate's actions. Hartley v. Jones, 3rd Dist. Hancock App. No.

5–12–35, 2013-Ohio-2381, at ¶20. This is because a trial court conducts a de novo review to

determine whether to adopt, or to reject, a Magistrate’s recommendation. Id. Thus, the judgment

that constitutes the final order is always that of the trial court, not the magistrate.

        {¶ 11} Second, we find no authority for the Spurlocks’ argument in the two statutes they

cite to support their assignment of error. R.C. 5313.02(C) requires a land contract vendor to

record the instrument within twenty days of it being signed. R.C. 5313.04 provides that, if the

vendor fails to do so, “the vendee may enforce such provisions in a municipal court, county

court, or court of common pleas . . .” We, however, find found nothing in the statutes that

renders an unrecorded land contract void, or has anything to do with the propriety of testimony

about such instruments in a court proceeding.
LAWRENCE, 13CA1                                                                                       5

       {¶ 12} Third, whether the Pembertons were land contract vendees, or mere tenants as the

Spurlocks argue, is largely superfluous. Even if the Josephs remained the owners of the

property until the 1994 deed was recorded to transfer ownership rights to the Pembertons, as the

trial court noted in its judgment, and as we discuss in our review of the next assignment of error,

considerable evidence was adduced to establish that the Pembertons used the disputed piece of

land as if it belonged to them. Accordingly, regardless of who owned the land north of

Township Road 253 between 1984 and 1994, someone, either the Josephs or the Pembertons,

adversely used the land the Spurlocks now claim as theirs.

       {¶ 13} Finally, even if we assume, arguendo, that Pemberton’s testimony concerning the

unrecorded land contract should not have been permitted at the hearing, the Magistrate’s decision

to allow that evidence constitutes harmless error. See Civ.R. 61. The trial court’s January 2,

2013 judgment states in pertinent part:

       “Although the Defendants talked about an unrecorded land contract that has been
       since destroyed, the Court did not have the benefit of this document, its legal
       description or any other facts concerning that document and can therefore, form
       no legal conclusions as to that document.”

       {¶ 14} Thus, the trial court afforded the alleged instrument no weight in ruling for the

Pembertons. Thus, even if testimony about the contested tract was improper, the Spurlocks have

suffered no prejudice.

       {¶ 15} For all of these reasons, we find no merit in the first assignment of error and it is

hereby overruled.

                                                 II

       {¶ 16} We jointly consider the Spurlocks’s second and third assignment of error because
LAWRENCE, 13CA1                                                                                      6

they assert that the trial court erred by quieting title in favor of the Pembertons by virtue of

adverse possession.

       {¶ 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.” See Grace v. Koch, 81 Ohio St.3d 577, 692 N.E.2d 1009 (1998), at

the syllabus; also see Edgington v. Newman, 4th Dist. Adams App. No. 11CA917,

2012-Ohio-4962, at ¶10. An appeal of a ruling on an adverse possession claim is usually

considered under a “manifest weight of the evidence” standard of review. See Thompson v.

Hayslip, 74 Ohio App.3d 829, 600 N.E.2d 756 (4th Dist. 1991); Pottmeyer v. Douglas, 4th Dist.

Washington No. 10CA7, 2010-Ohio-5293, at ¶21. In other words, an appellate court will not

reverse the trial court’s decision on the issue if it is supported by some competent, credible

evidence. See Eastley v. Volkman, 132 Ohio St.3d 328, 972 N.E.2d 517, 2012-Ohio-2179, at ¶14;

Shemo v. Mayfield Hts., 88 Ohio St.3d 7, 10, 722 N.E.2d 1018 (2000); C.E. Morris Co. v. Foley

Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578, at the syllabus (1978). This standard of review

is highly deferential and even the existence of “some” evidence is sufficient to support a court's

judgment and prevent a reversal. See Barkley v. Barkley, 119 Ohio App.3d 155, 159, 694 N.E.2d

989 (4th Dist. 1997); Willman v. Cole, 4th Dist. Adams App. No. 01CA725, 2002-Ohio-3596, at

¶24.

       {¶ 18} In the case sub judice, William Douglas testified that he was familiar with this

area of the township for more than fifty years and knew that the Joseph family used the land

(now claimed by the Pembertons) for more than thirty years. Charles Jones testified that the

Pembertons used the land in dispute as a “garden spot” and John Pemberton’s uncle had lived in
LAWRENCE, 13CA1                                                                                                           7

“a little camper” on the area between 1985 and 1990. John Pemberton testified that he was

familiar with the property since the 1960s when, apparently, he worked for the Joseph family.

He testified that Ms. Joseph used the disputed area as a garden where she grew “strawberries and

watermelons and mush melons and stuff.”

         {¶ 19} As for his claim to the land, John Pemberton testified that he took “possession” in

1985. He further stated that the Josephs had kept old farm equipment on the land, that he gave

away to get rid of it, and even leased a temporary right-of-way over the land so that the Ice Creek

Land Company could access timber behind that property. It is worth repeating, as we said

previously, that whether Pemberton engaged in these acts as a land contract vendee or a tenant is

beside the point. The fact remains that the Pembertons, or their predecessors-in-title, exercised

control over the land longer than the twenty-one year time period.

         {¶ 20} The Spurlocks adduced no evidence in opposition to contradict this evidence and

their counter-argument on appeal is that because the land contract was not recorded, no tacking

of adverse use of the Josephs and Pembertons should be permitted. We disagree.4

         {¶ 21} First, appellants cite no authority for that proposition of law and we have found no

support in our research. Second, as we discussed previously, even if the unrecorded land

contract is disregarded, the fact remains that the Josephs adversely used the property (or allowed

their tenants to adversely use it) until its conveyance to the Pembertons in the 1990s. We see no

reason why the Josephs' use prior to 1994, and use the Pembertons' use after that date, should not


         4
             The “tacking” doctrine holds adverse use by prior owners in the chain-of-title can be combined to establish the
twenty-one year time frame. See Zipf v. Dalgarn, 114 Ohio St. 291, 295-296, 151 N.E. 174 (1926); McNeely v. Langan, 22 Ohio
St. 32, (1871).
LAWRENCE, 13CA1                                                                                                           8

be tacked together to determine the adverse possession claim.

         {¶ 22} Thus, we readily conclude that sufficient evidence exists in the record to support

the trial court’s adverse possession judgment. We also find no error in the trial court’s judgment

to quiet title in favor of the Pembertons.

         {¶ 23} Accordingly, for these reasons, the assignments of error are without merit and are

hereby overruled.

                                                            III

         {¶ 24} We now turn to the Pembertons’s cross-assignment of error wherein they assert

that the trial court erred by overruling the Magistrate as to which survey was the most reliable.

However, because we have already affirmed the trial court’s judgment that granted judgment on

the basis of adverse possession, it is tempting to disregard this assignment of error as moot.

App.R. 12(A)(1)(c). Unfortunately, we cannot do that in light of the limited nature of the trial

court’s ruling.

         {¶ 25} The second count of the Pemberton counterclaim alleges that they had acquired

title through adverse possession and requests that title be quieted in their favor against “any

right” of the Spurlocks. The remedy the trial court awarded, however, quieted title in the real

estate “only . . . for the itemized uses which were made of it during the twenty-one year plus

period.” What the trial court did, in essence, is to hold that the Pembertons acquired an

easement by prescription.5 An easement allows only for limited use of the land, Fitzpatrick v.

Palmer, 186 Ohio App.3d 80, 2009-Ohio-6008, 926 N.E.2d 651, at ¶22 (4th Dist.); S.V., Inc. v.


         5
          For a discussion on adverse possession and easements by prescription, see Dunn v. Ransom, 4th Dist. Pike App. No.
10CA806, 2011-Ohio-4253, at ¶¶75-77.
LAWRENCE, 13CA1                                                                                                               9

Casey, 5th Dist. Delaware App. No. No. 12CAE070043, 2013-Ohio-1882, at ¶51, and, as noted

above, the trial court limited the Pembertons and their future successors-in-title to the uses that

have been made of the land thus far. This is a lesser estate than they would have received if the

trial court had accepted the Magistrate’s recommendations as the Snyder survey showed them

owning the land outright. Thus, we cannot disregard the cross-assignment of error as moot.6

         {¶ 26} That said, as to the Pembertons’ actual argument that the trial court erred by

rejecting the Magistrate’s recommendations and adopting the Murphy survey over the Snyder

survey, we find no reversible error. A trial court may adopt a magistrate’s finding as to the

credibility of witnesses, but is not required to do so. See State ex rel Dewine v. Ashworth, 4th

Dist. Lawrence App. No. 11CA16, 2012-Ohio-5632, at ¶37; Sweeney v. Sweeney, 10th Dist.

Franklin No. 06AP–251, 2006–Ohio–6988, ¶12–18. We also recognize that the trial court

expended considerable time (nearly four full pages of its decision) and cited specific passages

from the hearing transcript to explain why the court differed with the Magistrate's conclusion on

this issue. Moreover, Civ.R.53(D)(4)(b) expressly grants the trial court authority to reject the

magistrate’s decision. Thus, it is certainly within the court’s province to opt to accept the

Murphy survey over the Snyder survey.

         {¶ 27} As for the Pembertons’ argument that the trial court’s decision on their first

counterclaim (for quiet title) is against the manifest weight of the evidence, we again find no

reversible error. The Murphy survey, as well as the surveyor’s testimony, established that the

disputed land is within the Spurlock boundary line. Again, judgments supported by some


         6
            The Pembertons did not assign as error that the trial court gave them a different remedy than they requested in
their counterclaim, so we do not address that action.
LAWRENCE, 13CA1                                                                                    10

competent and credible evidence will not be reversed on appeal. Eastley, supra at ¶14; Shemo,

supra at 10; C.E. Morris Co., supra at the syllabus. Here, the record is replete with evidence to

support the trial court’s decision on this issue. For all these reasons, we find no merit to the

cross-assignment of error and it is hereby overruled.

       {¶ 28} Having considered all the errors the parties assigned and cross-assigned, we

hereby affirm the trial court’s judgment.

                                                              JUDGMENT AFFIRMED.
                                      JUDGMENT ENTRY

       It is ordered that the judgment be affirmed and that the parties equally divide the costs

herein taxed.

       The Court finds there were reasonable grounds for this appeal and cross-appeal.

       It is ordered that a special mandate issue out of this Court directing the Lawrence County

Common Pleas Court to carry this judgment into execution.

       A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

       McFarland, P.J. & Harsha, J.: Concur in Judgment & Opinion
                                                         For the Court




                                                             BY:
                                            Peter B. Abele, Judge
LAWRENCE, 13CA1                                                                              11




                                   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.
