[Cite as Pottmeyer v. Douglas, 2010-Ohio-5293.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                   WASHINGTON COUNTY

Larry and Linda Pottmeyer,                        :              Case No. 10CA7

        Plaintiffs-Appellees,                     :

        v.                                        :              DECISION AND
                                                                 JUDGMENT ENTRY
James Douglas and                                 :
Stephanie Lenhart, et al.,
                                                  :              Released 10/21/10
        Defendants-Appellants.
                                :
______________________________________________________________________
                            APPEARANCES:

Michael D. Buell, BUELL & SIPE CO., L.P.A., Marietta, Ohio, for appellants.

Ethan Vessels, FIELDS, DEHMLOW & VESSELS, Marietta, Ohio, for appellees.
______________________________________________________________________
Harsha, J.

        {¶1}    Stephanie Lenhart and James Douglas are appealing the order of the

Washington County Court of Common Pleas that quieted title to a tract of their land and

granted an easement for access to that tract in favor of Larry and Linda Pottmeyer.1

Larry built a machinery shed and maintained a garden in the disputed tract beginning in

the late 1960s and early 1970s. He also bulldozed and graveled an area for access to

the machinery shed and garden. The court found that Larry acquired ownership of the

garden area and the land upon which the original machinery shed was built by adverse

possession. The court determined that Larry failed to establish ownership of the gravel

access area by adverse possession but granted him an easement for its use.




1
 For simplicity, we will refer to the Appellants Stephanie and James Douglas in the singular as
“Stephanie” and the Appellees Pottmeyers as “Larry.”
Washington App. No. 10CA7                                                                   2


       {¶2}   On appeal, Stephanie contends that Larry failed to prove adverse

possession of the garden area by clear and convincing evidence. She argues that Larry

failed to demonstrate that he “exclusively” and “continuously” possessed the garden

area for the required period of adverse possession – twenty-one years. Stephanie

points to the testimony of two neighbors who alleged that Larry abandoned the garden

area for several years while the true owners planted, plowed, and maintained it.

However, evidence in the record supports the trial court’s finding of Larry’s “exclusive”

and “continuous” use of the garden area. Flatly contradicting the neighbors’ testimony,

Larry testified that he alone planted, plowed, and maintained the garden every year.

Apparently, the court believed Larry and rejected the neighbors’ contrary testimony.

This is a credibility determination that we must defer to on appeal.

       {¶3}   Stephanie also argues that by sharing the produce of the garden with the

true owners of the disputed tract, Larry could not have possessed the land exclusively.

We reject this argument as well. “Exclusivity” for purposes of adverse possession looks

at acts that indicate ownership by the adverse possessor and acts that exclude true

owners from exercising ownership. Larry’s gratuitous sharing of the produce of his

garden with neighbors was consistent with ownership of the garden, i.e., owners

commonly share the bounty of their gardens with others.

       {¶4}   Next, Stephanie argues that the trial court failed to apply a presumption of

permissive use between family members when addressing both the garden and the

shed. Because Larry began using the disputed tract when it was owned by his brother

John Pottmeyer, Stephanie contends Larry did not overcome the presumption that his

use of his brother’s land was by permission. However, because Stephanie failed to
Washington App. No. 10CA7                                                                             3


properly raise this argument at trial, or in her proposed findings of fact and conclusions

of law post-trial, she has waived it for purposes of appeal. Consequently, we affirm the

decision of the trial court.

                               I. Facts Surrounding the Property Dispute

       {¶5}    This dispute originates in a plot of land located south of County Highway

60 in Adams Township, Washington County, Ohio. Ralph and Helen Pottmeyer owned

the plot and in 1964 they conveyed a small portion of it -- 1.21 acres -- to their son John

Pottmeyer. John’s plot was bounded on the west by land owned by Paul and Viola

Tullius. It was bounded on the south and east by what remained of the Ralph

Pottmeyer plot. County Highway 60 was the northern boundary.

       {¶6}    Later, the Ralph Pottmeyers conveyed to the Tulliuses a 1.38 acre parcel

of land south of and abutting John’s plot. Consequently, John was bounded on the west

and south by the Tulliuses, on the east by the Ralph Pottmeyers, and on the north by

County Highway 60.

       {¶7}     In 1969 the Ralph Pottmeyers conveyed their remaining land to Larry. In

1974 Larry constructed a building to store machinery on a strip of land near the

southern boundary of John’s plot and the Tullius’ abutting land to the south. Larry

apparently believed that he owned this land. Neither John nor the Tulliuses attempted

to stop him from building the shed.2 Paul Tullius in fact helped him with the

construction. Larry also bulldozed the area in front of the machinery shed and spread

limestone.



2
 In 1997 Larry added a western extension to the original equipment shed. The court found that Larry did
not acquire the land upon which the extension was located by adverse possession. Larry has not cross-
appealed on that issue.
Washington App. No. 10CA7                                                                   4


       {¶8}   In the disputed strip, there was also a garden which had been in existence

prior to the Ralph Pottmeyer conveyances. Larry and John agreed that Larry

maintained this garden since he was conveyed his land in 1969.

       {¶9}   In 1977, a boundary dispute arose. John wanted to build a tennis court

and contacted a surveyor to identify the southern boundary of his land. An unknown

surveyor (John could not recall the surveyor’s name and had no records relating to the

survey), told John that the machinery shed was on his property, i.e., that the southern

boundary of his property was south of the machinery shed. When John told Larry about

this, Larry disagreed and hired his own surveyor.

       {¶10} Larry’s surveyor, Robert Schultheis, conducted a survey and determined

that John’s southern boundary was actually north of the machinery shed. However,

Schultheis found that the gravel area in front of the machinery shed was on John’s

property. The discrepancy in the surveys appears to be related to the relocation of

County Highway 60, which was used as the northern boundary of the legal descriptions.

However, this fact has little bearing on the outcome of the appeal.

       {¶11} John apparently decided that the dispute was not worth further argument.

At trial he explained, “I wasn’t going to get into a big argument over a few feet.” From

that point on, John took no action concerning the boundary dispute.

       {¶12} In 1987 John conveyed his property to the Raneys, who transferred it to

the Wardens in 1994. Robert Warden, then divorced, transferred the property to the

Drayers in 1998. Stephanie purchased the property from the Drayers’ Estate in 2006.

       {¶13} In 2008, Larry filed suit against Stephanie and asked the Washington

County common pleas court to quiet title in his favor to the strip of land containing the
Washington App. No. 10CA7                                                                 5


machinery shed and extension, the gravel area, and the garden. Larry argued that he

owned this area in fee simple by deed or had acquired it through adverse possession.

       {¶14} The trial court sitting as fact-finder received testimony from Larry and John

Pottmeyer on behalf of Larry. Stephanie Lenhart, James Douglas, and Paul and Viola

Tullius testified on Stephanie’s behalf. After receiving proposed findings of fact and

conclusions of law from both parties, the court found that the Ralph Pottmeyers

conveyed the disputed strip of land to John Pottmeyer. Thus, Stephanie was the record

owner of the disputed tract. However, the court found clear and convincing evidence

that Larry acquired the land upon which the machinery shed and the garden area are

located by adverse possession.

       {¶15} The twenty-one year period of adverse possession for the equipment

building began to run in 1974 and therefore would have ended in 1995, assuming no

intervening acts interrupted any of the necessary elements of adverse possession. In

this regard, the court examined whether the dispute between John and Larry in 1977

destroyed adversity. It found that John’s hiring of a surveyor to assess his boundary did

not disrupt the adverse period because it did not result in any effort to recover

possession of property. Furthermore, the court determined that John did not “consent”

to Larry’s use of the disputed area by doing nothing, but merely “acquiesced.” The

court explained: “[a]quiescence because one wishes to avoid a dispute does not have

the same legal effect as permission. The Court has been unable to find any cases,

other than between parent and child, where the relationship between the parties has

prevented the acquisition of prescriptive rights. [Stephanie] has provided no such

authority to the Court.” Accordingly, the court held that the brief boundary dispute in
Washington App. No. 10CA7                                                                  6


1977 did not interrupt Larry’s period of adverse possession because John had done

nothing to affirmatively take possession of the property or assert his ownership rights.

      {¶16} The court found Larry had used the garden area continuously since he

acquired his land in 1969 and met all elements required to vest title adversely. Thus, he

acquired it in 1990. However, the court found that Larry failed to establish ownership by

adverse possession of the gravel area in front of the machinery shed. Nonetheless, the

court granted Larry an easement over it for access to the machinery building and

garden.

      {¶17} Stephanie filed a timely appeal of this decision.

                                     II. Assignment of Error

      {¶18} Stephanie assigns a single error for our review:

      THE TRIAL COURT ERRED WHEN IT ENTERED A PARTIAL VERDICT IN

      FAVOR OF APPELLEES.

                                    III. Adverse Possession

      {¶19} Stephanie divides her assignment of error into two principal arguments.

First, she contends that Larry did not establish by clear and convincing evidence that he

maintained – “exclusive possession” and “continuous possession” of the garden area for

the requisite twenty-one year time period. Second, regarding both the machinery shed

and the garden area, she contends that the trial court failed to consider a presumption

against adverse possession that arises between members of the same family.

                                      A. The Garden Area

                                     1. Standard of Review
Washington App. No. 10CA7                                                                    7


       {¶20} The parties dispute the proper standard of review. Stephanie did not

specifically refer to our standard of review in her Appellant’s Brief. In his brief, Larry

contends that Stephanie’s arguments concerning the garden are in the nature of a

manifest weight claim. In her Reply Brief, Stephanie disputes that she is raising a

weight of the evidence argument. Rather she argues “[we] do not challenge the trial

court’s finding that [Larry] and other individual [sic] with their permission grew and

harvested the garden. * * * Rather [we challenge] whether that factual finding serves as

a sufficient basis to conclude that [Larry] adversely possessed the real property in

question.” (Emphasis sic.)

       {¶21} Typically, appeals on adverse possession claims challenge the manifest

weight of the evidence supporting the various elements of adverse possession. See

Stover v. Templeton (Mar. 11, 1996), Lawrence App. No. 95CA32, 1996 WL 112683, at

*1, fn. 1. Some of the arguments in Stephanie’s brief appear to be in the nature of a

manifest weight claim, while others appear to be legal in nature. To the extent we

construe any of Stephanie’s arguments as challenges to the manifest weight of the

evidence, we will apply deferential review. In other words, we will not substitute our

judgment “for that of the trial court when there exists competent and credible evidence

supporting the findings of fact and conclusions of law.” State v. Schiebel (1990), 55

Ohio St.3d 71, 74, 564 N.E.2d 54. This is because issues relating to the credibility of

witnesses and the weight to be given the evidence are primarily for the trier of fact. As

the Court explained in Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461

N.E.2d 1273: “[t]he underlying rationale of giving deference to the findings of the trial

court rests with the knowledge that the trial judge is best able to view the witnesses and
Washington App. No. 10CA7                                                                8


observe their demeanor, gestures and voice inflections, and use these observations in

weighing the credibility of the proffered testimony.” However, to the extent we construe

Stephanie’s arguments as challenges to the trial court’s choice or application of law, our

review is de novo. See Stover, supra, at *1.

                                2. The Law of Adverse Possession

       {¶22} Adverse possession is a recognized, but not favored, common law method

of obtaining title to real property. See Grace v. Koch, 81 Ohio St.3d 577, 580, 1998-

Ohio-607, 692 N.E.2d 1009. “Viewed from its ultimate effect, it is the ripening of hostile

possession, under proper circumstances, into title by lapse of time.” 2 Ohio

Jurisprudence 3d, Adverse Possession and Prescription § 1, citing Am. Jur. 2d, Adverse

Possession § 2. The party seeking to gain title through adverse possession bears the

burden of establishing its elements. Thompson v. Hayslip (1991), 74 Ohio App.3d 829,

832, 600 N.E.2d 756.

       {¶23} Clear and convincing evidence is required to establish each element of

adverse possession. Grace at syllabus. “Clear and convincing evidence” is “‘more than

a mere “preponderance of the evidence,” but not to the extent of such certainty as

required “beyond a reasonable doubt” in criminal cases, and which will produce in the

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

established.’” Ohio State Bar Assn. v. Reid, 85 Ohio St.3d 327, 331, 1999-Ohio-374,

708 N.E.2d 193, quoting Cross v. Ledford (1954), 161 Ohio St. 469, 120 N.E.2d 118, at

paragraph three of the syllabus.

       {¶24} The elements of adverse possession are “exclusive possession and open,

notorious, continuous, and adverse use for a period of twenty-one years.” Grace at
Washington App. No. 10CA7                                                                   9


syllabus; see, also, R.C. 2305.04 (establishing statute of limitations to recover title to or

possession of real property at twenty-one years). Given the nature of adverse

possession claims, each case is to be decided on its particular facts. See Thompson at

833.

                                3. Exclusive Possession and Use

       {¶25} Stephanie argues that Larry failed to establish that he exclusively

possessed the garden area for twenty-one years. She points to the testimony of Paul

and Viola Tullius, who stated that they saw the Raneys and the Wardens maintain the

garden and did not see Larry maintain the garden until after Warden sold the property in

1998. In response, Larry argues that he testified that he was the only person who

planted the garden each year, the only person who plowed it, and that he did not allow

anyone else to perform these tasks. He admits that he would tell his neighbors that

they could help themselves to crops from the garden. Larry contends that this

testimony provides a sufficient basis for the trial court’s finding that “[t]he annual

growing and harvesting of the garden was done by [Larry] or others with [Larry’s]

permission.” Larry also asserts that the trial court may have discredited Paul Tullius’

testimony due to his age, physical and mental condition, and because he admitted bias

at trial, i.e., he confessed he would like to see Stephanie win the lawsuit because Larry

named him as a necessary party in his original pleading.

       {¶26} To demonstrate exclusive use, an adverse claimant bears the burden of

establishing clear and convincing evidence of: (1) use of the property that would

characterize an owner’s use; and (2) use of the property that is “exclusive of the true

owner entering onto the land and asserting his right to possession.” Crown Credit Co.
Washington App. No. 10CA7                                                                  10

v. Bushman, 170 Ohio App.3d 807, 2007-Ohio-1230, 869 N.E.2d 83, at ¶53, citing

Klinger v. Premier Properties (Nov. 17, 1997), Logan App. No. 8-97-10, 1997 WL

722771, in turn citing Walls v. Billingsley (Apr. 28, 1993), Allen App. No. 1-92-100, 1993

WL 135808. See, also, Thompson, supra, at 833.

       {¶27} Stephanie’s argument here is clearly challenging the manifest weight of

the evidence. In effect, Stephanie contends that the Tullius’ testimony, had it been

given more weight by the trial court, should have precluded the court from finding clear

and convincing evidence of exclusive use. Credibility determinations of this sort are

almost exclusively reserved for the fact-finder. The trial court was free to accept all,

part, or none of the Tullius’ testimony that contradicted Larry’s assertions regarding

exclusive use of the garden area. See Holm v. Smilowitz (1992), 83 Ohio App.3d 757,

778-779, 615 N.E.2d 1047.

       {¶28} As Larry contends, there is some competent and credible evidence in the

record that he exclusively used or possessed the garden area. Planting, plowing,

general maintenance, and harvesting of a garden plot is conduct consistent with its

ownership. Larry offered this sort of evidence when he testified that no one other than

himself planted, plowed or otherwise tended to the garden. However, he admitted

allowing the subsequent owners of the John Pottmeyer plot -- with whom he “got along

with great” -- to pick crops from the garden.

       {¶29} In this regard, Stephanie contends that Larry’s “sharing” of the crops with

his neighbors, i.e., Stephanie’s predecessors in interest and the record owners of the

garden area, would preclude a finding of exclusive use. This aspect of Stephanie’s
Washington App. No. 10CA7                                                                  11


argument is legal in nature, i.e., she proposes that this sort of “sharing” of property

precludes a finding of exclusive use as a matter of law.

       {¶30} Stephanie cites Yoho v. Robertson (Apr. 19, 1991), Carroll App. No. 590,

1991 WL 66207, for the proposition that “sharing” of property by an adverse claimant

with a true owner precludes a finding of exclusive use or possession. In Yoho, the

adverse claimant owned a quarter-interest in land as a tenant in common with his three

siblings. Id. at *1. The claimant alleged that in 1954 he entered into a written agreement

to acquire all interest in the property from the sibling co-tenants. In 1988, two of the

siblings sought to partition the property. The claimant defended the suit on the basis

that he owned the property via the written agreement. Id. at *2. In the alternative, he

argued that he acquired it by adverse possession. Id. at *3.

       {¶31} At trial, the court rejected the written agreement because it did not qualify

as a deed. Id. at *2. The trial court also rejected the claimant’s argument that he

acquired the property by adverse possession. Id. at *3. The appellate court affirmed,

noting that the undisputed facts established that the claimant had not occupied the land

exclusively because two sibling co-tenants resided on the property during the alleged

period of adverse possession. Id.

       {¶32} Thus, Yoho is distinguishable. First, the status of the parties as co-

tenants is a point of distinction. In a tenancy in common, co-tenants have the same

rights to the use and possession of the property. Collins v. Jackson (1986), 34 Ohio

App.3d 101, 103, 517 N.E.2d 269. Therefore, a co-tenant adverse claimant generally

cannot acquire property held in co-tenancy by mere possession of the property because

that possession is presumed consistent with the other co-tenants’ right to enter the land
Washington App. No. 10CA7                                                                 12

at any time. Farmers’ & Merchants’ Natl. Bank v. Wallace (1887), 45 Ohio St. 152, 164-

165, 12 N.E. 439 (“his possession will be regarded, not only as a declaration of his own

proprietary rights, but those of his co-tenants as well.”); see, also, Grace, supra, at 580,

fn.1. Therefore, a co-tenant seeking to adversely possess property in co-tenancy must

demonstrate a “positive and overt act connected with his exercise of ownership, such as

will manifest an unmistakable intention on his part to exclude his co-tenants from the

enjoyment of the property.” Farmers at 165. Consequently, it is a difficult task for one

co-tenant to adversely possess property from other co-tenants. He must do something

more than merely possess or use the property.

       {¶33} In our case, Larry was a trespasser, not a co-tenant. Larry’s use of the

garden area would not be, as in the case of a co-tenancy, also consistent with the rights

of the true owners. Even though Larry had no right to enter into the garden area, for

twenty-one years he exclusively plowed, planted, and maintained the garden to the

exclusion of the true owners. Larry’s actions in this regard were consistent with sole

ownership of the property.

       {¶34} Second, the “sharing” at issue in Yoho was of the residential use of the

premises. But here, Larry gratuitously “shared” the crops of a small garden area with

the true owners. Because co-tenants have equal right to the use and enjoyment of the

property in a tenancy in common, residing on that property or receiving crops from it

could be a use consistent with shared ownership.

       {¶35} But here, there was no co-tenancy relationship and Larry said he gave the

Raneys and Wardens permission to enter into the garden area only to remove crops.

This, he explained, was because they were good neighbors. Unless the facts suggest
Washington App. No. 10CA7                                                                13


otherwise, gratuitous sharing of produce from a garden by an adverse claimant is

consistent with the adverse claimant’s ownership. In fact, it is a quite normal and

common occurrence between neighbors with good relations. Therefore, the fact that

Larry shared crops from his garden with his neighbors would not preclude a finding by

clear and convincing evidence of exclusive use and possession of the property.

                                   4. Continuous Use

      {¶36} Stephanie also argues that Larry failed to offer clear and convincing

evidence that he continuously used the garden area for twenty-one years. Stephanie

suggests that Larry did not continuously maintain the garden during the time period

when the Raneys purchased the property (1987) until Warden sold the property (1998).

This proposition also attacks the weight of the evidence. Paul Tullius claimed that he

did not see Larry maintain the garden until after Warden sold the property in 1998. In

response, Larry contends that he testified that he planted and maintained the garden

each year during the alleged period of adverse possession.

      {¶37} To demonstrate continuous use an adverse claimant must show that there

was no “substantial interruption” in his use of the property. Bullion v. Gahm, 164 Ohio

App.3d 344, 2005-Ohio-5966, 842 N.E.2d 540, at ¶20. Daily or weekly use is not

required, as long as the use shown is continuous enough to indicate “prolonged and

substantial use.” Id. quoting Ault v. Prairie Farmers Co-Operative Co. (1981), Wood

App. No. WD-81-21, 1981 WL 5788.

      {¶38} The court found that “[t]he garden area and access to it were used by

[Larry] continuously since he acquired his land. The annual growing and harvesting of

the garden was done by [Larry] or others with his permission.” Again, there is
Washington App. No. 10CA7                                                                    14


competent and credible evidence in the record to support this finding. Larry testified

that a garden existed in that area for over forty years before he owned the property. He

stated that he continued to care for the garden and planted it each year since he took

possession of his land in 1969. Although the Tullius’ testimony clearly contradicted

Larry’s assertion concerning the garden – the trial court was free to accept all, part, or

none of this testimony. The trial court could rely on Larry’s testimony to establish clear

and convincing evidence of continuous use.

       {¶39} Apparently in the alternative, Stephanie suggests that Larry’s use of the

garden was too infrequent or occasional to establish continuous use. Larry testified that

he planted, plowed, and maintained the garden each year beginning in 1969. The

parties testified that the garden was used predominantly in late spring, the summer, and

into early fall and lay dormant the remainder of the year. In the case of a small garden

area, under most circumstances annual planting, plowing, maintenance, and harvesting

during the productive seasons, and non-use during non-productive seasons amounts to

substantial and prolonged use, i.e., it is consistent with an owner’s use of the property.

Consequently, we hold that Larry presented some competent and credible evidence that

supports the trial court’s finding of exclusive and continuous use of the garden area for

the requisite time period.

       B. The Presumption Concerning Adverse Possession between Family Members

       {¶40} In her second issue, which relates to both the garden and the shed,

Stephanie contends that the trial court failed to apply a presumption that arises

regarding adverse possession claims between family members. Stephanie cites Arthur

v. Arthur (Dec. 4, 1997), Jackson App. No. 97CA797, 1997 WL 764477 and Kallner v.
Washington App. No. 10CA7                                                                   15

Wells, Scioto App. No. 05CA3030, 2006-Ohio-4634, for the proposition that use of

property by family members is presumed to be permissive. Stephanie implies that (1)

Larry submitted insufficient evidence to overcome this presumption; and (2) the trial

court erred by failing to include this presumption in its decision. In response, Larry

argues that Stephanie failed to present this argument either at trial or in her proposed

findings of fact and conclusions of law post-trial and has waived it for purposes of

appeal. In the alternative, Larry contends that neither Arthur nor Kallner is controlling

and even if they are, the evidence submitted was sufficient to overcome such a

presumption, i.e., he “burst the bubble” of the presumption.

       {¶41} The failure to raise an argument before the trial court typically results in a

waiver of that argument for purposes of appeal. Stores Realty Co. v. Cleveland (1975),

41 Ohio St.2d 41, 43, 322 N.E.2d 629. In her Reply Brief, Stephanie argues she did not

waive the presumption of permissive use between family members because she

disputed that John “acquiesced” to Larry’s position regarding the boundary dispute by

doing nothing, i.e., she contested the consent element.

       {¶42} Specifically, Stephanie argues that she brought up the issue of permissive

use between family members during her attorney’s cross-examination of John

Pottmeyer. The discussion concerned the boundary line dispute in 1977:

Q: Okay. Now, did -- when you -- first of all, you hired a surveyor and he determined
that the boundary was different than where Larry thought it was and in fact, where you
thought it was?

A: Right.

Q: So you now have two surveyors saying different things?

A: Yes.
Washington App. No. 10CA7                                                                      16


Q: Did you and Larry have disagreements over it?

A: Well, yeah. He -- he agreed with his and well, I said, I don't know. I said --

Q: Well, you had a surveyor.

A: Yeah.

Q: Did you not agree with him?

A: Well, I -- yes, I agreed with him. I had to. I don't -- I don't -- I'm not a surveyor.

Q: Okay. Well, I notice in the -- in the notes from Mr. Mulryan’s survey or somewhere,
that Mr. Schultheis refers to the surveying project as Larry Pottmeyer versus John
Pottmeyer. It sounded like there was a dispute.

A: Well, there was a dispute over the line and who was right and who was wrong, and I
don’t -- like I says, and I didn’t care.

***
Q; Okay, well, you built -- you built -- you saw him build the building.

A: Yes.

Q: And in 1977, you got into a dispute about it. Do you ever remember him changing
the size of the building while you were there, at a later date?

A: No, I don’t remember.

Q: Okay. So, in 1977, you knew there was a dispute, you knew you might own it?

A: Well, I, yeah, there was a dispute on the two surveyors, yes.

Q: Okay. And what you’re telling us is, if you owned it, you didn’t care if he used it?

A: Well, I -- I wasn’t going to get in a big fight over a few feet of ground, if that’s what
you’re asking.

Q: Because he’s your brother?

A: Well, no, I don’t care who it would have been.

Q: Okay. But at least, from 1977 on, you knew that -- that there was a dispute? You
knew it wasn’t -- that it might be your property, it might be his?

A: Right.
Washington App. No. 10CA7                                                                17



Tr. 56-59. (Emphasis supplied.)

       {¶43} Stephanie contends that the italicized remarks above indicate that she

was injecting the issue of permissive use between family members into the trial.

Assuming this to be true, we find nothing addressing this issue in Stephanie’s proposed

findings of fact and conclusions of law.

       Moreover, it seems clear from the above testimony that John never indicated he

gave permission to Larry to use the property. Instead, he was unsure of whether he

owned the land upon which the machinery shed was built. He recognized that he might

own it, but he was not sure. Either way, John did not feel that it was an issue worth

pursuing. And when asked if he did not pursue the boundary line dispute because his

brother was involved, John stated that it did not matter that it was his brother. His

testimony indicates that he was simply no longer interested in determining the true

boundary and it would not have mattered who the dispute was with. Accordingly, we

hold that Stephanie did not preserve this issue for purposes of appeal.

                                          IV. Conclusion

       {¶44} We hold that the trial court properly vested title in the garden area to Larry

through adverse possession. The record contains some competent and credible

evidence that Larry exclusively and continuously possessed and used the garden area

for twenty-one years. Additionally, Stephanie has waived her argument on the

applicability of a presumption of permissive use between family members. Thus, we

affirm the decision of the trial court.

                                                                 JUDGMENT AFFIRMED.
Washington App. No. 10CA7                                                              18


                                  JUDGMENT ENTRY

       It is ordered that the JUDGMENT IS AFFIRMED and that Appellants shall pay
the costs.

      The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the
Washington County Common Pleas Court to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the date of
this entry.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

Abele, J. & Kline, J.: Concur in Judgment and Opinion.



                                  For the Court




                                  BY: ________________________________
                                      William H. Harsha, Judge




                                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.
