[Cite as Allread v. Holzapfel, 2013-Ohio-3269.]




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

 RICHARD D. ALLREAD, et al.                           :
                                                      :     Appellate Case No. 2012-CA-11
          Plaintiffs-Appellants                       :
                                                      :     Trial Court Case No. 12-CV-245
 v.                                                   :
                                                      :
 RONALD S. HOLZAPFEL, et al.                          :     (Civil Appeal from
                                                      :     (Common Pleas Court)
          Defendants-Appellees                        :
                                                      :
                                                  ...........

                                                  OPINION

                                Rendered on the 26th day of July, 2013.

                                                  ...........

STEPHEN E. KLEIN, Atty. Reg. #0014351, Klein, Tomb & Eberly, LLP, 240 Bohanan Drive,
Vandalia, Ohio 45377
      Attorney for Plaintiffs-Appellants, Richard D. Allread, et al.

GARY L. BROWN, Atty. Reg. #0005410, 414 Walnut Street, Suite B, Greenville, Ohio 45331
     Attorney for Defendant-Appellees Ronald S. Holzapfel, et al.

SCOTT D. RUDNICK, Atty. Reg. #0000853, 121 West Third Street, Greenville, Ohio 45331
     Attorney for Defendant-Appellee, The Farmers State Bank

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

FAIN, P.J.

        {¶ 1}     Plaintiffs-appellants Richard and Phyllis Allread appeal from a judgment

rendered against them in their action to quiet title to a five-foot strip of land abutting the southern
                                                                                                      2


surveyed boundary of their property, following a bench trial. The Allreads contend that the trial

court erred by rejecting their claims of adverse possession and acquiescence. They also contend

that the trial court erred by allowing them an easement by necessity to maintain a line of trees

along the middle of the five-foot strip.

         {¶ 2}   Both the Allreads’ adverse-possession and acquiescence claims are predicated

upon a line of trees that they had planted along the middle of the five-foot strip, having

erroneously believed the trees to have been planted just inside their side of the boundary line

between the properties. Defendant-appellee Jill Holzapfel testified that it was her practice to

mow the grass along the northern side of the trees.        This testimony, which the trial court

evidently credited, was sufficient to establish that the Allreads’ use of the property was not

exclusive against the true owners, the Holzapfels, entering their property and asserting their right

to possession. Consequently, the trial court did not err in rejecting the adverse-possession claim.

         {¶ 3}   There is no evidence that the Allreads and the Holzapfels and the Holzapfels’

predecessors in title mutually recognized and treated the line of trees as if it were the boundary

line between the properties. Therefore, the trial court did not err in rejecting the acquiescence

claim.

         {¶ 4}   Finally, we conclude that the trial court did err in allowing the Allreads an

easement of necessity to maintain the trees. As the Allreads point out, they did not request an

easement. Furthermore, the easement to maintain the trees is not necessary for them to make use

of the land they own, since the trees are on land owned by the Holzapfels. Accordingly, that part

of the judgment of the trial court granting an easement of necessity is Reversed and Vacated, and

the judgment is Affirmed in all other repects.
[Cite as Allread v. Holzapfel, 2013-Ohio-3269.]
                            I. Some Trees Grow in Greenville Township

        {¶ 5}     Richard and Phyllis Allread were the owners of property abutting Hartzell Road,

in Greenville Township, Darke County, Ohio. In 1980, they planted some trees about three to

four feet inside what they believed to be the southern border of their property, extending east

from Hartzell Road.        The line of trees consisted of deciduous trees planted at twenty-foot

intervals, with pine trees planted in the gaps between the deciduous trees. The deciduous trees

they planted survive today. The pine trees have been short-lived, requiring regular replacement.

The trees were planted without any objection by the Allreads’ southern neighbor, Dan Mannix.

        {¶ 6}     The line of trees the Allreads planted did not extend all the way to their western

border. The last fifty feet consisted of forty feet of natural ground, and ten feet of fill dirt.

There were no structures or plants along this portion of the five-foot strip, other than grass. The

focus of the trial, and of the Allreads’ claims, was the tree-line.

        {¶ 7}     In 1982, Dan Hicks and his wife and family succeeded Mannix as the Allreads’

southern neighbors. In 1992, the defendants-appellees, Ronald and Jill Holzapfel, acquired the

property to the south of the Allreads.

        {¶ 8}     There was an incident in which Phyllis Allread became concerned that the

Holzapfel children were playing on the Allreads’ side of the property line. She told them to stay

on their side of the line. Later, Phyllis Allread became concerned about the Holzapfels’ dogs.

She complained to the Dog Warden, and the Holzapfels were cited.

        {¶ 9}     Shortly after this, the Holzapfels hired a surveyor to determine exactly where the

boundary was between the two properties. The surveyor reported that the boundary was actually

one to two feet north of the tree line. When the Allreads learned of this, they, too, hired a

surveyor. His findings confirmed those of the Holzapfels’ surveyor. This action ensued.
                                                                                                  4


                                  II. The Course of Proceedings

       {¶ 10} The Allreads brought this action against the Holzapfels to quiet title to a five-foot

strip of land south of the surveyed boundary line. The Allreads claimed the strip under the

doctrines of adverse possession and acquiescence.

       {¶ 11} The action was tried to the bench. Phyllis and Richard Allread, Ronald and Jill

Holzapfel, and one surveyor, testified at the trial.

       {¶ 12} The trial court rendered a judgment against the Allreads on their

adverse-possession and acquiescence claims to quiet title. The trial court did, however, allow

the Allreads an easement by necessity to maintain the trees:

               While not proving their claim for adverse possession, the Plaintiffs have

       established a claim for use of Defendants’ land immediately surrounding the trees

       for purposes of maintaining the trees. An easement by necessity may be granted

       where entrance onto adjoining land is necessary for proper maintenance of one’s

       [sic] own lands. In this case, such easement is granted to the Plaintiffs since the

       trees planted by Plaintiffs require upkeep and since the trees are growing over both

       properties. However, such easement does not allow replacement of trees that die

       nor does it allow placement of any improvements onto Defendants’ land. Costs

       of maintenance – and removal – are to be born [sic] by Plaintiffs. Further, this

       easement is limited to a term of 10 years hereafter so that the Court does not create

       an impediment to Defendants’ title nor establish a right in perpetuity.

       {¶ 13} From the judgment, the Allreads appeal. The Holzapfels have neither appealed

nor cross-appealed.
                                                                                                      5


       {¶ 14} The Allreads’ First Assignment of Error is as follows:

                THE TRIAL COURT ERRED BY FAILING TO DECLARE THAT

       PLAINTIFF-APPELLANTS ACQUIRED TITLE TO THE DISPUTED STRIP

       BY ADVERSE POSSESSION OR BY ACQUIESCENCE.



              III. The Allreads Failed to Prove that Their Possession and Use of

              the Disputed Strip Was Exclusive Against the True Owners Entering

                 onto Their Property and Asserting Their Right to Possession

       {¶ 15} In support of their First Assignment of Error, the Allreads first contend that they

are entitled to fee simple title to the disputed five-foot strip under the doctrine of adverse

possession.

       {¶ 16} The doctrine of adverse possession, being a means by which someone without

even colorable title to land may acquire fee simple title as a result of the owner’s mere inaction,

is disfavored in the law. Grace v. Koch, 81 Ohio St.3d 577, 580, 1998-Ohio-607, 692 N.E.2d

1009. “[T]o establish adversity, ‘[t]he tenant must unfurl his flag on the land, and keep it flying

so that the owner may see, if he will, that an enemy has invaded his dominions and planted his

standard of conquest.’ ” Id., at 581, quoting Darling v. Ennis (1980), 138 Vt. 311, 313, 415 A.2d

228, 230.

       {¶ 17} Adverse possession must be proven by clear and convincing evidence. Grace v.

Koch, at 580-581.

       {¶ 18} “Use of the property must be exclusive against the true owner entering the

property and asserting his right to possession.”       Grace v. Koch, 1st Dist. Hamilton No.
                                                                                                                                              6


C-950802, 1996 WL 577843 (Oct. 9, 1996), affirmed 81 Ohio St.3d 577, supra.1

         {¶ 19} In the case before us, Jill Holzapfel, who regularly mowed the grass, testified that

she mowed the grass on the north side of the tree line:

                    Q. And how would you mow?

                    A. Up to the trees and then around it and back through.

                    Q. And what kind of a mower were you using?

                    A. John Deere with a 54-inch deck on it.

                    Q. Okay. So you mowed – be to the north side of the trees then?

                    A. Be to the north side of the trees, yes.

                    Q. It would be between the Allreads’ southern driveway boundary and the

         tree line. You mowed in between there to some extent.

                    A. Yes. To some extent. Not completely up and down. To some

         extent.

                    ***

                    Q. And when you mowed north of the tree line, was there any objection

         by the Allreads about that?

                    A. No, sir.

         {¶ 20} Although the testimony quoted above is not entirely unequivocal, in our view it

permitted the trial court to find that Jill Holzapfel mowed the grass on the north side of the tree

line, without objection by the Allreads. This testimony was disputed. The Allreads testified


           1
            Although the Supreme Court of Ohio, in affirming the First District Court of Appeals, cited the opinion of the court of appeals
 approvingly, it decided the case on the issue of adversity, and never reached the issue of exclusivity.
                                                                                                    7


that they never saw the Holzapfels mowing north of the tree line, and never saw evidence, in the

form of grass clippings, that the Holzapfels mowed north of the tree line. Nevertheless, the trial

court, as the finder of fact, was permitted to credit Jill Holzapfel’s testimony.

       {¶ 21} By contrast, in Kaufman v. Gieskan Enterprises, Ltd., 3d Dist. Putnam No.

12-02-04, 2003-Ohio-1027, ¶ 41 - 42, where the titleholders testified that they had picked

branches and occasionally mowed in the disputed area, and the trial court rendered judgment for

the party claiming adverse possession, the court of appeals affirmed, holding that “[f]rom the

record and resulting judgment, it is apparent” that the trial court concluded that the testimony of

the titleholders concerning their alleged use of the disputed area lacked credibility. In the case

before us, it is apparent from the evidence and the resulting judgment that the trial court credited

Jill Holzapfel’s testimony that she mowed the grass north of the tree line.

       {¶ 22} The issue, then, is whether an owner’s mowing grass on a strip of land claimed

by an adverse possessor is sufficient to defeat the element of exclusivity required to sustain a

claim of adverse possession. This issue is close.

       {¶ 23} In Beener v. Spahr, 2d Dist. Clark No. 2000-CA-40, 2000 WL 1840066, *8 (Dec.

15, 2000), we held that a claim of adverse possession can be established solely by mowing grass

in the disputed area. This panel has some reservations about the correctness of that holding, in

view of the heavy presumptions against adverse possession. See Ballard v. Tibboles, 6th Dist.

Ottawa No. 91-OT-013, 1991 WL 251957, *5 (Nov. 8, 1991). Nevertheless, even if mowing

grass is not sufficient to establish adverse possession, we conclude that it is sufficient to destroy

the element of exclusivity required for adverse possession. The disfavored status of adverse

possession, together with the requirement of its proof by clear and convincing evidence,
                                                                                                     8


establishes an asymmetry between what is required to prove adverse possession and what is

required to disprove it. This asymmetry was touched upon in the context of permissive versus

hostile use in Grace v. Koch, 1st Dist., 1996 WL 577843, supra, at *7: “A twilight between the

occupier’s burden to prove hostile use and the titleholder’s burden to prove permissive use cuts

against the occupier claiming hostile use.”

       {¶ 24} In Christian v. Root, 2d Dist. Darke No. 1218, 1989 WL 20292, *4-5 (March 9,

1989), we considered a titleholder’s testimony that he was on the disputed land “approximately

once a year” to “hunt game and mushrooms and fish” to be sufficient to defeat the element of

exclusivity required for adverse possession, illustrating that it does not take much use of land by

the titleholder to defeat the exclusivity element of adverse possession.

       {¶ 25} We conclude that Jill Holzapfel’s act of mowing the grass on the north side of the

tree line is sufficient, if barely, to defeat the element of exclusive possession and use required for

adverse possession.



                   IV. The Allreads Failed to Prove that the Line of Trees

                 Was a Line Mutually Recognized and Treated by the Parties

                    as if it Were the Boundary Line Between the Properties

       {¶ 26} The Allreads also invoked the doctrine of acquiescence to support their quiet title

action. “The doctrine of acquiescence is applied in instances where adjoining land owners

occupy their respective properties up to a certain line and mutually recognize and treat that line as

if it were the boundary separating their properties.” Ballard v. Tibboles, supra, at *5. The

cases finding acquiescence typically involve a fence erected to demark the boundary between
                                                                                                  9


properties, although one case involved a state highway serving that purpose. Burkitt v. Shepard,

4th Dist. Pike No. 05CA744, 2006-Ohio-3673.

       {¶ 27} Like a claim of adverse possession, a claim of acquiescence requires clear and

convincing proof. Thomas v. Wise, 6th Dist. Sandusky No. S-06-043, 2007-Ohio-3467, ¶ 17.

       {¶ 28} Ballard v. Tibboles, supra, involved rose bushes planted by the claimant on the

titleholder’s side of the property line. The court of appeals held, at *6, that there was a genuine

issue of fact whether the titleholders had acquiesced to the boundary line represented by the rose

bushes, requiring reversal of the summary judgment that had been rendered against them:

               Further, the deposition testimony of the parties created a question of fact as

       to whether the Ballards acquiesced in the roses being a mutually recognized

       boundary. In this respect, this cause is not analogous to those cases where the

       parties mutually construct and maintain a fence for a period of years and then one

       of the parties or his successor in interest seeks to have the true line supplant the

       boundary established by acquiescence. Bobo [v. Richmond, 25 Ohio St. 115

       (1874)] (improvements by both parties up to line); Helbling v. The Werk Realty

       Co. (1913), 2 Ohio App. 478 (Both parties maintained the fence. Prevailing party

       farmed disputed property.). Therefore, we find that a question of fact as to

       acquiescence exists in this case, and appellees could not prevail on the basis of

       that doctrine on their motion for summary judgment.

       {¶ 29} In Ballard, the titleholders had helped in planting the rose bushes allegedly

recognized by both owners as demarking the boundary line. Id., at *5.

       {¶ 30} In Bobo v. Richmond, supra, the titleholder had built a fence to demark his
                                                                                                     10


boundary line, and then claimed that he owned property on the other side of that line. The

defense that he had acquiesced to the line he had established by the fence was held to be a good

defense in the action. Id., at 116. By contrast, in the case before us, it is the Allreads who

planted the trees, not the titleholder. Unlike the owner in Bobo who worked an estoppel against

himself by erecting the fence, the Allreads seek to work an estoppel against the Holzapfels as a

result of the tree line the Allreads planted.

        {¶ 31} In Burkitt v. Shepard, supra, State Route 772 was the line in which the titleholder

was alleged to have acquiesced. The court of appeals, at ¶ 22, rejected evidence of activity on

the other side of State Route 772 as proof that the titleholders had not acquiesced in the highway

as the boundary line:

                The rebuttal evidentiary materials consisted of two Morris Burkitt

        affidavits. The first was included in their summary judgment motion and stated,

        inter alia, that “[p]rior to and following the 1991 survey ... [he] maintained the

        land north of State Route 772 by mowing the pasture, bush hogging the area,

        maintaining fence line, as well as livestock that was included within the fourteen

        (14) acres north of State Route 772.” We do not believe that this establishes that

        Burkitt and his wife regarded the land north of the roadway as their own. These

        acts may have been performed gratis for either his mother-in-law or sister-in-law.

        Further, nothing in the affidavit explicitly states that Burkitt considered that any

        land north of State Route 772 belonged to him and his wife.

        {¶ 32} We conclude that Burkitt is distinguishable. As noted, the two sets of property

owners in that case were relatives. Thus, the acts performed by the titleholders north of State
                                                                                                        11


Route 772 could be discounted as merely intended to assist their relatives to the north. Also

significant in that case is the fact that the titleholders had been able to see, in plain view, their

nephew building a house on the area that they actually owned north of State Route 772. Id. ¶ 26.

 These facts present a stronger case for acquiescence than the facts in the case before us.

       {¶ 33} Both Ronald and Jill Holzapfel testified that they understood the boundary

between their property and the Allreads’ to be in the general area of the line of trees, which, in

fact, it was, lying just one to two feet north of the trees. Neither of the Holzapfels testified that

they understood that the tree line was the boundary line between the properties. On these facts,

the trial court could find that acquiescence in the line of trees as the line demarking the boundary

between the properties was not proven by clear and convincing evidence.

       {¶ 34} The Allreads’ First Assignment of Error is overruled.



                     V. The Trial Court Erred in Allowing the Allreads

                        an Easement by Necessity in the Disputed Strip

       {¶ 35} The Allreads’ Second Assignment of Error is as follows:



               THE TRIAL COURT ERRED BY GRANTING AN EASEMENT OF

       NECESSITY.

       {¶ 36} At the end of the judgment of the trial court, as quoted in Part II, above, the trial

court allowed the Allreads an easement by necessity to maintain the trees they had planted in the

disputed five-foot strip. They contend that the trial court had no authority to do so.

       {¶ 37} First, as the Allreads point out, they did not seek the relief the trial court ordered.
                                                                                                        12


 They claimed title to the disputed strip, not an easement to maintain the trees they planted on the

disputed strip.

       {¶ 38} The Supreme Court of Ohio described the nature of an easement by necessity in

Renner v. Johnson, 2 Ohio St.2d 195, 197, 207 N.E.2d 751 (1965):

                  Where an owner of two parcels of land subjects one of them to an

       easement in favor of the other and where such owner sells the dominant parcel

       without providing for that easement in his grant and where the enjoyment of such

       easement is reasonably necessary to the beneficial enjoyment of the parcel

       granted, it may reasonably be inferred that the parties mutually intended there

       should have been a grant of such easement. Because of the right of the grantee to

       require reformation of the deed to set forth the mutual intent of the parties, it is

       often held that the grant of such an easement will be implied. See Ciski v.

       Wentworth (1930), 122 Ohio St. 487, 172 N.E. 276.

       {¶ 39} “An implied easement or way of necessity is based upon the theory that without it

the grantor or grantee, as the case may be, can not make use of his land. It has been stated that

‘necessity does not of itself create a right of way, but is said to furnish evidence of the grantor’s

intention to convey a right of way and, therefore, raises an implication of grant.’ ” Trattar v.

Rausch, 154 Ohio St. 286, 293, 95 N.E.2d 685 (1950).

       {¶ 40} Both the Renner and Trattar cases involved an implied grant of an easement

when the ownership of one parcel of land was severed from the ownership of an adjoining parcel

of land, with the result that the owner of one parcel required access through the other in order to

make use of his land. In Renner, the owners of one parcel required an easement across the other
                                                                                                13


in order to gain access to public sewer and water lines. In Trattar, the owners of one parcel

required an easement of access across the other in order to enter upon their property.

       {¶ 41} In the case before us, no implied grant of easement has been shown to have been

created at a time when ownership of the property now owned by the Allreads was severed from

the ownership of the property now owned by the Holzapfels. When the trees were planted in

1980, the two parcels were owned by different persons.

       {¶ 42} Furthermore, maintenance of the trees they have planted is not necessary for the

Allreads to make use of their land. “On a severance of ownership of property, a use to which

one part of the property has been subjected for the benefit of another part will not be recognized

as an implied easement unless the use is reasonably necessary to the enjoyment of the dominate

estate; convenience alone is not enough.” Trattar v. Rausch, paragraph six of syllabus. The

evidence in the record does not support a finding that the Allreads must have an easement across

the Holzapfels’ property in order to make use of the Allreads’ land.

       {¶ 43} If one property owner’s mere enjoyment of the aesthetic character of some

feature upon an adjacent property were deemed to be sufficient to support a finding of an

easement by necessity, then property owners could enforce legal rights to limit the ability of the

owners of adjacent property to exercise dominion over their own land. We do not understand

this to be the law of Ohio where the creation of a nuisance is not involved.

       {¶ 44} The Allreads’ Second Assignment of Error is sustained.



                                        VI. Conclusion

       {¶ 45} The Allreads’ First Assignment of Error having been overruled, and their Second
                                                                                                 14


Assignment of Error having been sustained, that part of the judgment of the trial court granting

them an easement by necessity, and ordering them to bear the expenses of maintaining and

removing the trees, is Reversed and Vacated; and the judgment of the trial court is Affirmed in all

other respects.

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

HALL and WELBAUM, JJ., concur.




Copies mailed to:

Stephen E. Klein
Gary L. Brown
Scott D. Rudnick
Hon. Jonathan P. Hein
