[Cite as Sandfoss v. Morrow, 2019-Ohio-5371.]



                                    IN THE COURT OF APPEALS

                          TWELFTH APPELLATE DISTRICT OF OHIO

                                          WARREN COUNTY




DANIEL SANDFOSS, et al.,                        :

      Appellants,                               :      CASE NO. CA2019-01-002

                                                :             OPINION
   - vs -                                                     12/30/2019
                                                :

VILLAGE OF MORROW, OHIO,                        :

      Appellee.                                 :




         CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                             Case No. 16CV88849



Dearie, Fischer & Mathews, LLC, John A. Fischer, Greene Town Center, 70 Birch Alley, Suite
240, Beavercreek, Ohio 45440, for appellants

Surdyk, Dowd & Turner Co., LPA, Jeffrey C. Turner, Dawn M. Frick, 8163 Old Yankee Street,
Suite C, Dayton, Ohio 45458, for appellees



        HENDRICKSON, P.J.

        {¶ 1} Plaintiffs, Daniel Sandfoss, Mary Rutterer, Barbara Reimer, James Cook, and

Aleta Cook (collectively, "Plaintiffs"), appeal from a decision of the Warren County Court of

Common Pleas, which granted summary judgment in favor of defendant-appellee, the village
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of Morrow, Ohio ("Morrow"). For the reasons discussed below, this court affirms the trial

court decision.

       {¶ 2} In July 2016, Plaintiffs sued defendant Clinton County Trails Coalition

("Coalition"). The complaint asserted a claim to quiet title to certain real property owned by

Coalition ("subject property"). Plaintiffs claimed the subject property was part of an old

railway easement that traversed their respective properties. Plaintiffs further alleged that

Coalition had received its interest in the subject property by quitclaim deed from a railroad

company. That deed had purported to transfer the former railroad corridor to Coalition in fee

simple. Plaintiffs alleged that, at best, the railroad company had transferred an easement,

which easement was earlier abandoned by the railroad company.

       {¶ 3} Plaintiffs asked the court to terminate the easement and revert title of the

subject property to them. Plaintiffs subsequently filed an amended complaint adding Morrow

as a party defendant after Coalition moved to dismiss on the basis that it had sold the subject

property to Morrow. The court thereafter dismissed Coalition from the case.

       {¶ 4} In answering the complaint, Morrow pled that it held the subject property in fee

simple. After both sides completed discovery, the parties filed competing motions for

summary judgment.

       {¶ 5} The summary judgment evidence indicated that Coalition purchased the subject

property in 1993 from Penn Central Corporation ("Penn"). The subject property was part of a

former railway corridor. Coalition paid Penn $47,000 and Penn provided Coalition with a

quitclaim deed, which transferred a fee simple interest. The deed or other records that would

demonstrate how Penn acquired its interest in the railway apparently could not be located

and therefore were not presented in evidence.

       {¶ 6} Coalition purchased the land with the intent of making it a public trail but

ultimately did not build the trail for various reasons. Coalition then sold the tract to Morrow.
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In the course of that transaction, Morrow received an attorney's certificate of title, which

certified that "the fee simple title to said premises is vested in [Coalition]* * *." The attorney

further certified that the title was marketable and free from encumbrances.

       {¶ 7} The court issued its decision denying Plaintiffs' motion for summary judgment.

With respect to the Sandfoss/Rutterer and Cook properties, the court found that the subject

property did not enter those properties and those plaintiffs had not established any other

ownership interest in the subject property.1 The court found that the evidence indicated that

the subject property ran through the Reimer property, but that Reimer also had failed to

establish that she held any title to the subject property. Additionally, the court found that

Plaintiffs had not shown that Penn held the subject property as an easement and concluded

that there were no genuine issues of fact for trial. Accordingly, the court denied Plaintiffs'

motion for summary judgment. On the same basis, the court granted Morrow's motion for

summary judgment as to Plaintiffs' claims.

       {¶ 8} Plaintiffs appeal, raising two assignments of error.

       {¶ 9} Assignment of Error No. 1:

       {¶ 10} THE TRIAL COURT ERRED BY GRANTING MORROW'S SUMMARY

JUDGMENT MOTION.

       {¶ 11} Plaintiffs argue that the absence of any evidence of how Penn obtained the

subject property created a genuine issue of fact for trial because the court should have

presumed, as a matter of law, that the subject property was an easement. Plaintiffs further

argue that the trial court ignored evidence that created genuine issues of fact on whether

Plaintiffs held ownership interests in the subject property. Finally, Plaintiffs contend that the

court ignored evidence that Penn abandoned the easement.


1. Sandfoss and Rutterer are husband and wife and own the same property. For ease of discussion, the court
will refer to them collectively as "Sandfoss."
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       {¶ 12} This court reviews summary judgment decisions de novo. Ludwigsen v.

Lakeside Plaza, L.L.C., 12th Dist. Madison No. CA2014-03-008, 2014-Ohio-5493, ¶ 8.

Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there are no genuine issues

of material fact to be litigated, (2) the moving party is entitled to judgment as a matter of law

and, (3) when all evidence is construed most strongly in favor of the nonmoving party,

reasonable minds can come to only one conclusion, and that conclusion is adverse to the

nonmoving party. Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369-70 (1998).

       {¶ 13} An action to quiet title is a statutory cause of action, which is described as

follows:

              An action may be brought by a person in possession of real
              property, by himself or tenant, against any person who claims an
              interest therein adverse to him, for the purpose of determining
              such adverse interest. Such action may be brought also by a
              person out of possession, having, or claiming to have, an interest
              in remainder or reversion in real property, against any person
              who claims to have an interest therein, adverse to him, for the
              purpose of determining the interests of the parties therein.

R.C. 5303.01. "The purpose of any quiet-title action is to conclusively determine the

allocation of property interests." Scarberry v. Lawless, 4th Dist. Lawrence No. 09CA18,

2010-Ohio-3395, ¶ 18, citing Lincoln Health Care, Inc. v. Keck, 11th Dist. Lake No. 2002-L-

006, 2003-Ohio-4864, ¶ 23. "The burden of proof in a quiet title action rests with the

complainant as to all issues which arise upon essential allegations of the complaint." Didday

v. Bradburn, 12th Dist. Clermont Nos. CA99-05-049, CA99-06-059, 2000 Ohio App. LEXIS

614, *4 (Feb. 22, 2000), citing Duramax, Inc. v. Geauga Cty. Bd. of Commrs., 106 Ohio

App.3d 795, 798 (11th Dist.1995).

       {¶ 14} The Sixth District Court of Appeals affirmed the grant of summary judgment to a

railroad company in a similar case where the plaintiff landowners failed to present evidence

that they held title to a railway corridor. Blausey v. Norfolk Southern Corp., 6th Dist. Ottawa,

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No. OT-04-056, 2005-Ohio-5021. The landowners owned property adjacent to a railroad line

and sued to quiet title to the land as it was being transitioned into a public trail. Id. at ¶ 6.

The landowners were not able to produce evidence of how the railroad company originally

acquired the land. Id. at ¶ 7, 17. The landowners also could not prove that they had any

interest in the railroad corridor based on the title work produced in discovery. Id. at ¶ 17.

The appeals court held that the landowners had not demonstrated that they could meet their

burden of proof to quiet title and affirmed the trial court's summary judgment decision. Id.

       {¶ 15} Likewise, after completing discovery and title work, Plaintiffs produced no

evidence demonstrating how Penn acquired the subject property. The evidence also showed

that the subject property did not encroach upon the Sandfoss and Cook properties and only

encroached upon the Reimer property.          While there may have been some evidence

indicating that the former railway was an easement, Plaintiffs presented no evidence

indicating a genuine issue of fact concerning whether they held an ownership or reversionary

interest in the railway. Therefore, the trial court properly granted summary judgment.

       {¶ 16} However, Plaintiffs argue that the trial court failed to apply a legal presumption

that "transfers of property to railroads for railroad purposes" are presumed to be easements

unless proven otherwise. In other words, Plaintiffs are arguing that the burden of proof was

on Morrow to prove that it owned the property in fee simple.

       {¶ 17} For this proposition, Plaintiffs cite a case from the Eleventh District Court of

Appeals. Grandview Golf Club, Inc. v. Baltimore & Ohio RR Co., 11th Dist. Geauga No.

1211, 1985 Ohio App. LEXIS 8821 (Oct. 11, 1985). Grandview involved landowners

attempting to quiet title to land that had formerly been used as a railroad corridor. In finding

for the landowners, the court stated, "Ohio courts have held that instruments granting a

portion of land to railroads for railroad purposes are presumed to be granting rights-of-ways



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by easement, unless proven otherwise." Id. at *5, citing Cincinnati, Hamilton & Dayton Ry.

Co. v. Wachter, 70 Ohio St.113 (1904); and Junction RR Co. v. Ruggles, 7 Ohio St. 1 (1857).

       {¶ 18} Upon review of Wachter and Ruggles, this court concludes that neither case

supports the proposition of law set forth in Grandview. The issue in Wachter was whether a

landowner could build a private crossing over a railroad that traversed her property. Id. at

paragraph two of the syllabus. In Ruggles, the question was whether an easement granted

to a railroad company was capable of being sold and transferred. Id. at 7.

       {¶ 19} In Blausey, the appellants presented the court with the same argument, which it

rejected:

              Appellants cite to [Wachter] and [Ruggles] in support of their
              argument that they do not have the burden to prove their title to
              the land in railroad cases such as this one. Upon a review of
              these cases, we find that neither case supports appellants'
              argument. In both cases, the issue addressed is the extent of the
              rights of the parties, not which party bears the burden of
              establishing title to the property at issue.

2005-Ohio-5021 at ¶ 16. This court agrees that Wachter and Ruggles do not stand for the

proposition that the burden of proof is shifted in railroad quiet title actions.

       {¶ 20} Nevertheless, Plaintiffs argue that the language in the transfer instruments in

Wachter and Ruggles indicated a fee simple transfer and yet the Ohio Supreme Court

construed the transfers as easements. Upon review, the language used in the transfer

records was not a central issue discussed by the Court in either case. But, contrary to

Plaintiffs' argument, the language used did signal the grant of an easement. In Wachter, the

grantor "quitclaim[ed]" a "right of way." 70 Ohio St. at 116. In Ruggles, the grantor "quit-

claim[ed] * * * so much of said land as" the Ohio Railroad company is "authorized to take for

purposes of the location and construction of said [railroad]."). 7 Ohio St. at 2. Wachter and

Ruggles are further distinguishable because, unlike in this case, the original granting

instrument was available to construe.
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        {¶ 21} Next, Plaintiffs argue that genuine issues of material fact exist with respect to

whether they held ownership interests in the subject property. With respect to the Sandfoss

property, Plaintiffs point to a predecessor deed that transferred the Sandfoss property to an

earlier owner and included the phrase: "[s]ave and excepting from the above described tract

the three following parcels to-wit (1) 0.70 of an acre occupied by the 50 feet right-of-way of

the said C.A. & C.R.R * * *."2 Based upon this language, Plaintiffs argue "thus, the Sandfoss

property specifically includes the disputed property." Yet a plain reading of "save and

excepting" indicates that the deed specifically excluded transferring the subject property.

This reading is consistent with the expert opinion affidavit relied upon by the court, which

noted that the Sandfoss property only abutted the subject property.

        {¶ 22} Next, Plaintiffs argue that the court erred in declining to consider a separate

Sandfoss deed, which deed apparently described transferring a portion of the subject

property. The trial court observed that Mr. Sandfoss had testified in his deposition that he

prepared the deed and had "gleaned" the property description, explaining that he did not

conduct a survey, but instead "I took – I took papers and figured out what I thought was –

what we felt should be ours." The record reflects that Mr. Sandfoss submitted the deed to

the Warren County Recorder's office, which accepted it for recordation. But when Mr.

Sandfoss attempted to transfer the property at the Warren County Auditor's office, the office

refused the transfer. Accordingly, the transfer was never completed and Mr. Sandfoss and

his wife never paid taxes on the property. On this record, Plaintiffs have not established a

genuine issue of fact concerning ownership of a portion of the subject property based on this

deed.



2. "C.A. & C.R.R." is apparently a reference to a railroad company. The deed earlier refers to a "C.A. & C.R.R.
track" and, referring to the object, a "R.R. track." The reference to a "right of way" is some evidence that the
tract may have been an easement.


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       {¶ 23} With regard to the Reimer property, Plaintiffs argue that the summary judgment

evidence showed the subject property bisected the Reimer property. This is not in dispute

and was not ignored by the court. The court granted summary judgment with respect to the

Reimer property because Plaintiffs failed to produce evidence indicating a genuine issue for

trial as to whether Reimer held any ownership interest in the subject property.

       {¶ 24} With respect to the Cook property, Plaintiffs refer to a map that they submitted

into evidence with their summary judgment filing. This map shows the subject property as

belonging to Coalition. Other than to say this map is "unreliable," Plaintiffs make no other

argument concerning the Cooks' alleged ownership interest. The court did not mention the

map in its decision. But the deed by which the Cooks took title specifically excepted the

subject property. Accordingly, there is no genuine issue of fact for trial concerning the Cooks'

interest in the subject property.

       {¶ 25} Finally, Plaintiffs argue that the court ignored evidence that Penn had

abandoned the alleged easement prior to transferring it to Coalition. But whether Penn

abandoned an alleged easement or not is irrelevant because Plaintiffs did not present

evidence indicating any ownership or reversionary interest in the subject property. This court

overrules Plaintiffs' first assignment of error.

       {¶ 26} Assignment of Error No. 2:

       {¶ 27} THE TRIAL COURT ERRED BY OVERRULING THE PROPERTY OWNERS'

SUMMARY JUDGMENT MOTION.

       {¶ 28} In the second assignment of error, Plaintiffs reiterate the arguments set forth in

the first assignment of error. For the same reasons set forth in response to the first

assignment of error, this court finds no merit in Plaintiffs' second assignment of error and

overrules it as well.



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{¶ 29} Judgment affirmed.


S. POWELL and M. POWELL, JJ., concur.




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