[Cite as Stark Cty. Park Dist. v. Dickerhoff, 2018-Ohio-4319.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STARK COUNTY PARK DISTRICT,                         :            JUDGES:
                                                    :            Hon. John W. Wise, P.J.
        Plaintiff - Appellee                        :            Hon. Patricia A. Delaney, J.
                                                    :            Hon. Craig R. Baldwin, J.
-vs-                                                :
                                                    :
PATRICIA DICKERHOFF, ET AL.,                        :            Case No. 2017CA00231
                                                    :
        Defendants - Appellants                     :            OPINION



CHARACTER OF PROCEEDING:                                         Appeal from the Stark County Court
                                                                 of Common Pleas, Case No. 2015-
                                                                 CV-01786


JUDGMENT:                                                        Affirmed



DATE OF JUDGMENT:                                                October 23, 2018


APPEARANCES:

For Plaintiff-Appellee                                           For Defendants-Appellants

SARAH K. RATHKE                                                  BRUCE L. INGRAM
Squire Patton Boggs (US) LLP                                     THOMAS H. FUSONIE
4900 Key Tower                                                   DANIEL E. SHUEY
127 Public Square                                                Vorys, Sater, Seymour and Pease, LLP
Cleveland, Ohio 44114                                            52 East Gay Street, PO Box 1008
                                                                 Columbus, Ohio 43216-1008
RACHAEL A. HARRIS
Squire Patton Boggs (US) LLP
2550 M. St, NW
Washington D.C. 20037
Stark County, Case No. 2017CA00231                                                     2

Baldwin, J.

        {¶1}   Appellants are Patricia Dickerhoof, individually and as trustee for the Gene

L. and Patricia Dickerhoof Trust, Daniel Dickerhoof, individually and as Trustee for the

Gene L. And Patricia Dickerhoof Trust, and Doug Dickerhoof, individually and as

beneficiary of the Gene L. And Patricia Dickerhoof Trust. They appeal the July 31, 2017

decision of the trial court finding that appellee acquired title to the property, evidentiary

rulings of the trial court, the verdict of the jury finding that appellants’ adverse possession

claim was not proven, and the trial court’s denial of their motion to amend its orders to

provide for access over the appellee’s property. Appellee is the Stark County Park

District.


                        STATEMENT OF FACTS AND THE CASE

        {¶2}   In this case we review the results of a bench trial finding that the appellee

acquired record title to a strip of land that bisected appellants’ property and the results of

a jury trial, whose verdict rejected appellants’ contention they obtained title of the same

strip of property through adverse possession. The trial court ordered bifurcation of the

claims because the quiet title action was a purely legal, equitable argument whereas

adverse possession requires resolution of disputed facts. The bench trial preceded the

jury trial as a practical necessity. If the court had determined appellee had not acquired

title, the adverse possession claim would be moot.

        {¶3}   The appellants, collectively referenced by the trial court as the Dickerhoof

Family, came into possession of approximately 51 acres of real property in 1970. Before

they acquired title to the property, a railroad had established a line that ran through the

farm, but the railway had been abandoned and was unused when the Dickerhoof Family
Stark County, Case No. 2017CA00231                                                 3


purchased the property.     Appellants contend they cleared the property of scattered

railroad ties, spikes and other debris, leveled the railroad bed and used the property as

part of their farm beginning in 1972. They contend they have used it continuously,

exclusively, openly and notoriously for farming related purposes for at least twenty one

years prior to appellee purchasing the rail line.

       {¶4}   In 1997 American Premier Underwriters, the purported record owner of the

unused railroad line, approached appellee about purchasing the strip of property that ran

across appellants’ and several neighboring properties.       Appellee was interested in

acquiring the property to add to its park program and began negotiations with American

Premier Underwriters.

       {¶5}   Appellee purchased the property in 1997, paying $49,700.00 for this parcel

and several others to extend what appellee describes as the Iron Horse Trail, a

recreational use trail.   Appellee encountered delays in obtaining the proper legal

description and survey due to the nature of railroad lines and how railroads typically

described the property they acquired. The deed for the parcels was filed after the surveys

were completed in 2001.

       {¶6}   The purchase did generate some controversy when it became known that

the American Premier Underwriters, Inc., was auctioning many parcels, but that the strip

that crossed the appellants’ property would not be included in the auction.            Gene

Dickerhoof, predecessor in title to the appellants, was disappointed to discover that the

parcel that divided his land was not part of the auction and that it had been purchased by

appellee. Gene Dickerhoof later retained an attorney, John Morris, who contacted the

appellee’s Director, Robert Fonte, and contended that because the property was subject
Stark County, Case No. 2017CA00231                                                   4


to a reversionary clause in the original deed to the railroad, his client was the owner of

the property. He threatened legal action and sent a second letter demanding a response,

but curiously did not mention adverse possession and did not initiate any legal action.

       {¶7}   The Park Director, Robert Fonte and Gene Dickerhoof’s attorney, discussed

the claims of the parties for four years, but reached no resolution.

       {¶8}   On August 28, 2015, appellee filed an action to quiet title in the property

and, on November 16, 2015 filed an amended complaint including a claim to quiet title

and a claim for declaratory relief. Appellants filed an answer and counterclaim, denying

that the appellee had title and requesting that the court grant them an order to quiet title,

declaratory relief and that acquired title to the property through adverse possession.

Appellants asserted in an affirmative defense that, in the alternative, they had a

prescriptive easement to conduct farm activities on the subject property and that they had

an easement by necessity. Appellants also contended that the deed that created the

disputed corridor, referenced as the Styers deed, contained a reversionary clause that

was triggered when the railroad abandoned the line. Title to the property reverted to their

possession as a result, by their interpretation of the deed. Appellants and appellee filed

motions for summary judgment and both were denied. Appellants filed several motions in

limine that were addressed by the trial court.

       {¶9}   The Trial Court determined that the parties were not entitled to a jury for the

quiet title action, so a bench trial was scheduled to be followed immediately by a jury trial

regarding the adverse possession claim.

       {¶10} The bench trial was conducted on July 24, 2017 and the only witness to

testify was Robert Fonte, appellee’s Executive Director. During his tenure with appellee
Stark County, Case No. 2017CA00231                                                   5


he participated in the acquisition of the subject property and was able to identify several

exhibits that addressed ownership and location of the subject property. Appellee’s

exhibits included a title examination, a plat map completed by a registered surveyor and

several deeds. Appellant had the opportunity to cross examine Mr. Fonte and objected

to the admission of several exhibits for lack of foundation or because the documents

contained hearsay statements. Appellants’ objections were overruled with few

exceptions.

       {¶11} Appellants did not present any evidence or argument at the bench trial

regarding their claim of quiet title or the existence, location, size or necessity of any

easement. Appellants moved for dismissal, the motion was overruled and the trial court

found that appellee held record title and that the Styers deed did not create a reversionary

interest.

       {¶12} The jury trial began the following day and was limited to appellants’ claim of

adverse possession. At the outset of the trial, the court explained to the jury that appellee

“purchased this Railroad Corridor property in 1997 and it has been determined through a

separate proceeding that the Park District is the titled owner of this Railroad Corridor

property.” (Transcript, Volume No. I, page 7, lines 15-20, July 25, 2017).

       {¶13} Appellants’ sole witness was Daniel Dickerhoof, son of Eugene Dickerhoof,

the prior owner of the farm. Mr. Dickerhoof was four years old when his father acquired

the property, and he lived in Columbus, Ohio for several years while he attended college,

but he testified without hesitation about the use of the abandoned rail line by his family.

He spoke at length about the railroad ties, spikes and other debris his family cleared from

the line. The family removed cinders from the rail line and leveled the area so it could be
Stark County, Case No. 2017CA00231                                                    6


used for planting or pasture. He testified that the family had part of the property leveled

with a bulldozer in 1975 to further facilitate the use of the property and that the railroad

bed was used for access to the pastures. He remembered that his family began planting

in the northern section of the property in 1975 and the southern half of the property in

1978.

        {¶14} Mr. Dickerhoof’s father installed barb wire fence to exclude pedestrians from

the corridor after 1972, yet in 1978, bicyclists were using the property. That fence has

been altered over the years to allow for livestock to graze. Daniel Dickerhoof testified

that the corridor was now bounded by a fence and that he installed no trespassing signs

at both ends of the corridor as it entered his property, and the fence and the signs were

still present. Because the railroad bed has been leveled on the appellants’ property, he

claimed that there was a noticeable difference in the elevation of the corridor on the

appellants’ property as compared to the abutting properties.

        {¶15} Mr. Dickerhoof identified an aerial photograph of the property as well as a

plat map to show the current state of the property at the purported location of the rail line.

Mr. Dickerhoof admitted during cross examination that he was not aware of the fact that

deeds conveying the property between Dickerhoof family members contained a reference

to the abandoned rail line and that his family did not take any steps to remove that

reference. He also acknowledged that the Dickerhoof family attorney was John Morris

and that Mr. Morris had claimed title for his family, but not on the basis of adverse

possession.

        {¶16} The appellants provided no further evidence at the jury trial. Appellee

moved to dismiss the complaint by directed verdict and that motion was denied.
Stark County, Case No. 2017CA00231                                                  7


       {¶17} Appellee offered the testimony of Robert Fonte and retired Judge R.R.

Denny Clunk. Robert Fonte, Park Director, described the appellee’s process of acquiring

property as part of a long term plan for the appellee. The appellee, under the direction of

Mr. Fonte, had previously purchased abandoned rail lines, so Mr. Fonte was familiar with

the process as well as the difficulties associated with the purchase of railroad property.

       {¶18} Appellee retained the services of a title examiner to confirm that American

Premier Underwriters had authority to sell the property to the Park District. Thereafter the

Park District purchased the property for $49,700 and retained a surveyor to provide a

proper legal description. Due to the difficulty and complicated nature of the survey and

the fact that seventeen parcels were involved, the survey was not complete until 2001.

Mr. Fonte noted that the surveyor entered the properties to complete the survey, and to

his knowledge, the surveyor had no difficulty entering the appellants’ property and did not

encounter any farming activity on the railroad corridor. The surveyor provided appellee

a map showing the railroad corridor as it crossed the appellants’ property.

       {¶19} Mr. Fonte communicated with the attorney for appellants’ predecessor in

interest, Gene Dickerhoof, after the appellee had purchased the property. Had the

appellee not purchased this property it would have been made available to the general

public at auction. When American Premier Underwriters disclosed that the corridor had

been purchased by the appellee, appellee was the subject of many complaints of

underhanded tactics to obtain the property. Appellee conducted a well-attended town hall

meeting in 1998 to address the objections and complaints and Gene Dickerhoof’s

attorney attended. Mr. Fonte was present and attempted to explain the appellee’s actions

and future plans, but his explanation did not satisfy John Morris, attorney for Gene
Stark County, Case No. 2017CA00231                                                     8


Dickerhoof. Attorney Morris complained that the original deed to the corridor contained

a reversionary clause that was activated when the railroad abandoned the property. He

repeated this position in a letter delivered to the appellee, but never contended that the

Dickerhoofs held title by adverse possession. Mr. Fonte communicated with Mr. Morris

regarding the Dickerhoof farm for four years, but the issue of adverse possession was

never mentioned.

       {¶20} Mr. Fonte met with the Dickerhoof family in 2009 and walked their property,

including the railroad corridor. Mr. Fonte noticed that despite the appellants’ assertion of

use of the corridor for farm purposes, it was still identifiable as the railroad corridor. Mr.

Fonte visited the property in the Spring of 2017 and took a photograph from the road

looking toward the Dickerhoof property at the point of the corridor. When asked whether

he was able to discern “what use the Dickerhoofs were making, if any, to the right of way”

he replied “None”. (Transcript, p. 474, lines 17-21) And, despite Daniel Dickerhoof’s

testimony that he installed “No Trespassing” signs and fence at the corridors, none was

visible. He also did not notice any change in the elevation of the railroad corridor, rebutting

Mr. Dickerhoof’s testimony regarding the leveling of the railroad bed as it entered

appellants’ property.

       {¶21} Retired Judge R.R. Denny Clunk testified on behalf of the appellee

regarding his recollection of the Alliance Rotary Club’s involvement with the railroad

corridor on several parcels including the appellants’ property. Judge Clunk was a

practicing attorney in 1971 and a member of the Alliance Rotary Club. The Club planned

to create a walking path from Alliance to Minerva, but the plan was delayed due to

obstructions. The Club filed an action against the property owners, included Gene
Stark County, Case No. 2017CA00231                                                 9


Dickerhoof as a defendant, and requested a temporary restraining order. The property

owners filed a counterclaim. The temporary restraining order was granted and the case

was dismissed in 1972.

       {¶22} Judge Clunk walked the entire length of the corridor to determine what

would be required to make it usable for the public. The Rotary Club retained a bulldozer

operator who plowed a path at least eight feet wide all the way through the corridor,

including the Dickerhoof property, and the Club attempted to repair some bridges along

the new path in the early 1970s. Judge Clunk did note that the path was used by

motorbikes and ATV’s, but he admitted that the club ceased its efforts to create a public

trail due to the time commitment required and the controversy over the path. Judge Clunk

did not visit the rail line after 1972.

       {¶23} Judge Clunk remained active in the community during the 1970s, and he

believes he would have heard about the Dickerhoof’s retaining a bulldozer to work on the

path, but he did not. He also did not hear that the Dickerhoof’s were farming the corridor.

Finally, Judge Clunk identified a document created by him in 1970, a chronology of the

1970 litigation that contains a reference to a lease between Dickerhoof and the Railroad

that was terminated by the railroad to allow the Rotary Club unrestricted access from

Alliance to Minerva.

       {¶24} At the conclusion of its case, appellee offered exhibits into evidence.

Appellants objected to several on hearsay and foundation grounds, but most were

admitted over appellants’ objections.

       {¶25} The jury returned a verdict for the appellee. While the jury found that the

appellants had exclusively and adversely possessed the property for over twenty-one
Stark County, Case No. 2017CA00231                                                   10


years, it rejected the claim that appellants’ possession was open and notorious. The trial

court rendered judgment based upon the jury verdict on July 31, 2017 and completed

findings of fact and conclusions of law regarding the bench trial.

       {¶26} On August 11, 2017 appellants filed a motion to amend the July 31, 2017

judgments to include a finding that appellants were entitled to crossings over the subject

property they claim were described in the Styers deed. Appellants also requested the

court include Civ.R. 54 (B) statements of “no just cause for delay” because codefendants

had not yet been dismissed from the case despite a reported settlement agreement.

       {¶27} Appellee opposed that portion of the motion that requested a finding that

appellants were entitled to crossing over the disputed property. Appellees also filed a

motion to enforce the settlement agreement with the appellants’ codefendants. While that

motion was pending, the trial court denied the appellants’ motion to amend the July 31,

2017 judgment stating: “that issue was never raised before this court, was not briefed by

the parties, and was not addressed by the parties at either the bench trial or jury trial.

Whether the existing instruments of record require the farm crossings to be built is not

presently an issue before this court as having not been properly raised in a timely fashion.”

(Entry, October 11, 2017, Docket 112). On that same date, the trial court notified

appellants’ codefendants that they would be given the opportunity to show cause why

judgment should not be rendered against them for failing to appear at the trial and failing

to complete the purported settlement agreement that was represented to the court at trial.

(Entry, October 11, 2017, Docket 113).
Stark County, Case No. 2017CA00231                                                11


      {¶28} The remaining parties dismissed all claims without prejudice on November

29, 2017 and November 30, 2017. Appellants filed a notice of appeal on December 22,

2017 and submitted five assignments of error:

      {¶29} “I. THE TRIAL COURT ERRED IN NOT DISMISSING THE PARK

DISTRICT'S QUIET TITLE CLAIM, AND SUBSUMED DECLARATORY JUDGMENT

CLAIMS, AGAINST THE DICKERHOOFS FOR LACK OF STANDING AT THE TIME

PLAINTIFF FILED ITS COMPLAINT AGAINST THE DICKERHOOFS.”

      {¶30} “II. THE TRIAL COURT ERRED IN FAILING TO DISMISS THE PARK

DISTRICT'S CLAIM AND INSTEAD RULING THAT THE PARK DISTRICT HOLDS

RECORD TITLE TO THE ABANDONED RAILROAD CORRIDOR FOLLOWING THE

BENCH TRIAL.”


      {¶31} “III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN

ADMITTING INADMISSIBLE EVIDENCE DURING THE JURY TRIAL.”

      {¶32} “IV. THE JURY'S VERDICT IN FAVOR OF THE PARK DISTRICT

REGARDING THE DICKERHOOFS' ADVERSE POSSESSION CLAIM WAS AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE.”

      {¶33} “V. THE TRIAL COURT ERRED IN REFUSING THE DECLARE THE

RIGHTS OF THE DICKERHOOFS TO CROSS THE DISPUTED PROPERTY.(SIC)”


                                         ANALYSIS

      {¶34} The first two assignments of error address the results of the bench trial that

was limited to the issue of the quiet title claims and defenses. Assignments three, four

and five claim error at the jury trial regarding adverse possession only. We begin our

review with the first two assignments.
Stark County, Case No. 2017CA00231                                                    12


                            FIRST ASSIGNMENT OF ERROR

       {¶35} Appellants assert, in their first assignment of error, that the trial court erred

by refusing to dismiss appellee’s complaint for quiet title for lack of standing, citing the

language of R.C. 5303.01 which states in part that: “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.”

Appellants cite to our decision in Paden v. Miller, 5th Dist. Guernsey No. 00CA29, 2001

WL 1782890, where “ [w]e agree[d] with the trial court. Appellant lacked standing to

pursue an action to quiet title pursuant to R.C. 5303.01. Because the statute requires

either possession or a claim of an interest in remainder or reversion, we find summary

judgment was properly granted as to Appellant's action for quiet title.“ Id at *3.

       {¶36} We review the interpretation of R.C. 5303.01 de novo with no deference to

the trial court’s analysis. Brennaman v. R.M.I. Co., 70 Ohio St.3d 460, 1994-Ohio-322,

639 N.E.2d 425 (1994), amended, 71 Ohio St.3d 1211, 643 N.E.2d 138 (1994). Further,

an unambiguous statute must be interpreted so as to give effect to the words explicitly

used by the legislature, rather than deleting words or inserting words that were not used.

State v. Taniguchi, 74 Ohio St.3d 154, 1995-Ohio-163, 656 N.E.2d 1286 (1995).

       {¶37} We agree that R.C. 5303.01 generally requires that the party seeking the

relief of quiet title be in possession to establish standing to proceed. Appellee contends

that its constructive possession of the real property was sufficient to satisfy the

requirement of the statute. The cases cited by appellee support recognition of

constructive possession only when the evidence of actual possession is, at best,

inconclusive. In Village of Procterville v. Boston, 4th Dist. Lawrence No. 1730, 1985 WL
Stark County, Case No. 2017CA00231                                                     13


9484 the Court noted that “[t]he plaintiff in an action to quiet title must be in possession,

either actual or at least constructive, of the land at issue in order to maintain the action.”

Id at *4. That court relied on the holding in Haban v. Suburban Home Mortg. Co., 40 Ohio

Law Abs. 78, 57 N.E.2d 97 (2nd Dist.1943) for its definition of “constructive possession.”

However, that Court held that “where actual possession is found in neither party,

constructive possession is sufficient to support the action.” Id at 98. The record in the

case at bar does not establish the condition precedent of actual possession being in

neither party, so constructive possession provides no relief for appellee.

       {¶38} Appellee relies on the case of City of Cleveland Hts. v. City of Cleveland,

8th Dist. Cuyahoga No. 79167, 2001 WL 1400015, to support its argument that the

reference in R.C. 5303.01 to political subdivisions of the state establishes standing for

appellee. The relevant section of the Code states: “Whenever the state or any agency or

political subdivision thereof has, or appears to have, an interest in real property adverse

to the person in possession claiming the right thereto, the state or such agency or such

political subdivision may be made a party in any action brought under this section.” This

court is not convinced this language provides standing to the appellee as it states that an

“agency or political subdivision *** may be made a party in any action brought under this

section” (emphasis added) but it does not state that the political subdivision may bring the

action. The case cited by appellee is not helpful as the plaintiffs in that case were political

subdivisions, but they were in possession of title to the property, and, in fact, were

attempting to foist title onto a different political subdivision. Therefore, that case provides

no support for appellee’s argument that the cited section of R.C. 5303.01 grants standing

to appellee.
Stark County, Case No. 2017CA00231                                                        14


       {¶39} Finally, appellee contends that the appellants asserted their own quiet title

claim as well as a request for declaratory judgment in a counterclaim and that those

claims were adjudicated by the court. Appellee contends, relying on Slane v. Mentz, 10th

Dist. Franklin No. 77AP-155, 1977 WL 200365 that the nature of a civil action established

by the complaint may be changed by an affirmative defense or counterclaim of the

defendant. The Supreme Court of Ohio addressed similar circumstances and concluded:

              It is argued by counsel for the defendants in error that the petition

       and proof of plaintiff below were insufficient to sustain an action **187 to

       quiet title, because of failure to plead and prove possession. A complete

       answer to that contention is that Wells and Keith in their cross-petition asked

       for the same relief, and the cause was actually heard upon their cross-

       petition. The defendants thereby sought to sustain their own affirmative

       action to quiet title, which plaintiff resisted successfully in the trial court, but

       unsuccessfully in the appellate court.

Logan Gas Co. v. Keith, 117 Ohio St. 206, 214, 158 N.E. 184, 186–87, 5 Ohio Law Abs.

422 (1927). See also W.C. McBride, Inc., v. Murphy, 111 Ohio St. 443, 446, 145 N.E.

855, 856 (1924) and Village of Procterville v. Boston, 4th Dist. Lawrence No. 1730, 1985

WL 9484, *4, fn 1.


       {¶40} We hold the Logan Gas Co precedent is applicable to the case at bar. The

appellants, in their counterclaim, asked for an order quieting title, so this cause was

actually heard upon the counterclaim. The trial court adopted that analysis in its July 31,

2017 Memorandum of Decision where it concluded that “additionally, the court notes that
Stark County, Case No. 2017CA00231                                                      15


defendants asserted a counterclaim in this case which included a claim for quiet title under

R. C. §5303.01, so this court has both the authority and the obligation to render a decision

on the quiet title action regardless of whether this court treated it as an action by plaintiff

against defendants, or the reverse.” (Memorandum of Decision with Findings of Fact and

Conclusions of Law Following Bench Trial, July 31, 2017, page 5, Docket 99)

       {¶41} For the forgoing reasons, we find the court did not err in rendering a decision

regarding the quiet title action and appellants’ first assignment of error is overruled.


                           SECOND ASSIGNMENT OF ERROR

       {¶42} Appellants argue, in their second assignment of error that the trial court

erred by failing to dismiss the appellee’s claim, finding that the appellee holds record title

to the abandoned railroad corridor, and that a purported reversionary clause did not

defeat appellee’s title. The appellants’ assignment of error attacks both the trial court’s

finding that appellee received title to the property and the court’s interpretation of the

alleged reversionary language in the Styers deed. With regard to the trial court’s

application of the law to the facts, we review the record to determine if the judgment was

against the manifest weight of the evidence. With regard to the interpretation of language

of the deed, our review is de novo. Maxwell v. Fry, 12th Dist. Butler No. CA2007-11-284,

2009-Ohio-1650, ¶ 12.

       {¶43} The appellee has the burden to prove that it holds title to the disputed

property. Carson v. Second Baptist Church, 10th Dist. Franklin No. 09AP-922, 2011-

Ohio-1025, ¶ 14. Appellee relied upon the testimony of Robert Fonte, Director of appellee,

and his identification and discussion of several exhibits to establish appellee’s title. Exhibit

1 was the starting point for the chain of title. This exhibit, described throughout the bench
Stark County, Case No. 2017CA00231                                                   16


trial and the jury trial as the Styers deed, described the strip of property transferred from

Mary and James Styers to Cleveland, Youngstown and Pittsburgh Railroad Company.

This deed was extensively discussed by Mr. Fonte and admitted into evidence without

objection at the bench trial. Appellee used other exhibits to demonstrate it had received

title to that strip of property from American Premier Underwriters in 1997.

       {¶44} Mr. Fonte identified the deed appellee contends conveyed the disputed

property to it as Exhibit 21. Mr. Fonte was permitted to testify that this deed described the

property that was purchased from the railroad and that with the delivery of the deed,

appellee gained title. Mr. Fonte reviewed portions of Exhibit 21 with counsel and

confirmed that portion of the railroad corridor described in this exhibit extends from

Louisville Street to Salem Church Street, corresponding to the roads that border

appellants’ property where the rail line enters and exits as reflected in appellee’s Exhibit

41.

       {¶45} Appellee next offered Exhibit 14, the title examination for the subject

property commissioned by appellee. Mr. Fonte explained that appellee typically obtained

title examinations to insure that the seller has the right to transfer the property and that

the title exam in this case confirmed that American Premier Underwriters, Inc. could

convey the subject property to appellee. Mr. Fonte noted that the title examination traced

ownership of the property back to the Styers deed which was cited by its volume and

page number within the examination. Then, after discussing the need for a survey, the

process of obtaining a survey and the complications caused by the fact the subject was

railroad property, Mr. Fonte identified a copy of the plat and survey completed by

Constitution Land and Surveying, Ltd, at appellee’s request, marked as Exhibit 22. In
Stark County, Case No. 2017CA00231                                                    17


Exhibit 22, Mr. Fonte identified the portion of the property that is the subject of this

litigation as it passes through appellants’ property. Mr. Fonte confirmed, without objection,

that the property description in the corrected quit claim deed, Exhibit 29, accurately

described the property shown in Exhibit 22. He specifically identified Item 10, page 4 of

Exhibit 29 as a description of the intersection of the railroad with the appellants’ property.

       {¶46} Mr. Fonte explained that the title examination, the survey and the parcel

descriptions all refer to the same properties described in the Styers deed and the deed

that conveyed title to the appellee.

       {¶47} Mr. Fonte described a letter he received from Attorney John Morris in 1998

after appellee purchased the property. Attorney Morris asserted his clients, appellants’

predecessor in title, held title to the property due a reversionary clause that was triggered

by the abandonment of the rail line. Mr. Fonte identified Exhibit 17 as the letter and

acknowledged that he spent four years talking with Mr. Morris about the Dickerhoof

property and the rail line without reaching an agreement. Mr. Fonte confirmed that the

letter contained a reference to the Styers transfer of the corridor to the railroad by

reference to Exhibit 1, the Styers deed, and he testified the property described in the letter

was the same property that was the subject of this case.

       {¶48} Appellee offered several exhibits at the conclusion of its case, including the

title exam, the survey and the letter from Attorney Morris. Appellants objected to the

admission of those exhibits citing a lack of foundation and a violation of the hearsay rule.

We find the appellee provided sufficient foundation and that the documents are exempt

from the hearsay rule.
Stark County, Case No. 2017CA00231                                                     18


                                 STANDARD OF REVIEW

       {¶49} The trial court has discretion regarding the admission of evidence and “we

give further deference to a judge's decision when the evidence is introduced in a bench

trial.” State v. Fautenberry, 72 Ohio St.3d 435, 439, 650 N.E.2d 878 (1995). Unless the

record indicates otherwise, the judge is presumed to have considered only admissible

evidence.” Cleveland v. Welms, 8th Dist. No. 87758, 169 Ohio App.3d 600, 2006-Ohio-

6441, 863 N.E.2d 1125, ¶ 27.

       {¶50} As a general rule, all relevant evidence is admissible. Evid.R. 402; cf.

Evid.R. 802. The term “abuse of discretion” connotes more than an error of law or

judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable.

Wilmington Steel Products, Inc. v. Cleveland Elec. Illum. Co., 60 Ohio St.3d 120, 122,

573 N.E.2d 622 (1991). Absent an abuse of discretion resulting in material prejudice to

the defendant, a reviewing court should be reluctant to interfere with a trial court's decision

in this regard. State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343 (1987). It is well

settled that a trial court has broad discretion in the admission or exclusion of evidence,

and so long as such discretion is exercised in line with the rules of procedure and

evidence, its judgment will not be reversed absent a clear showing of an abuse of

discretion with attendant material prejudice. Rigby v. Lake Cty., 58 Ohio St.3d 269, 271,

569 N.E.2d 1056 (1991). Moreover, error predicated on an evidentiary ruling does not

warrant reversal of the trial court's judgment unless the court's actions were inconsistent

with substantial justice and affected the substantial rights of the parties. Evid.R. 103(A);

Civ.R. 61. Poppy v. Whitmore, 8th Dist. Cuyahoga No. 84011, 2004-Ohio-4759, ¶ 38.
Stark County, Case No. 2017CA00231                                                 19


                               EVIDENCE RULE 803(15)

      {¶51} Appellant objected to exhibits claiming their consideration was prohibited

because they contained hearsay or lacked foundation. The critical exhibits offered by

appellee, including the title examination and the survey are documents that purport to

establish or affect an interest in property and whose statements are consistently relevant

to the purpose of the document. The record contains no evidence to establish that

dealings with the property since the document was made have been inconsistent with the

truth of the statement or the purport of the document. Consequently, these documents

are exempt from the Hearsay Rule pursuant to Evid. R. 803(15) which states:

      The following are not excluded by the hearsay rule, even though the

      declarant is available as a witness:

             A statement contained in a document purporting to establish

             or affect an interest in property if the matter stated was

             relevant to the purpose of the document, unless dealings with

             the property since the document was made have been

             inconsistent with the truth of the statement or the purport of

             the document.


      {¶52} This Rule has been the basis of holdings that personal pension account

records were not barred by the hearsay rule, Yasinow v. Yasinow, 8th Dist. Cuyahoga

No. 86467, 2006-Ohio-1355, ¶ 83, and that documents that would otherwise be

considered hearsay may be used to prove chain of title regarding patent assignments.

Embs v. Jordan Outdoor Enterprises, Ltd., S.D.Ohio No. 2:03CV895, 2005 WL 2250681,

*4 (Addressing the application of the identical language in the Federal Rules of Evidence).
Stark County, Case No. 2017CA00231                                                    20

See also Wells Fargo Bank v. Maxfield, 12th Dist. No. CA2016-05-089, 2016-Ohio-8102,

75 N.E.3d 864, cause dismissed sub nom. Wells Fargo Bank Natl. Assn. v. Maxfield, 149

Ohio St.3d 1460, 2017-Ohio-5540, 76 N.E.3d 1232, ¶ 59 (Exempting a Corrective

Mortgage Assignment).

       {¶53} The comments to the Rule note “[t]he rule is consistent with prior Ohio law”

and provide a list of examples including a particularly relevant case, Garrett v. Hanshue,

53 Ohio St. 482, 497 (1895), where a title abstract was admitted to prove title. We find

that Rule 803(15) exempts the title examination and the survey from the hearsay rule.


                                 EVIDENCE RULE 803(8)


       {¶54} The documents presented by appellee, including the title exam, the survey

and the letters to Mr. Fonte in his role as the Park Director, qualify as “Records, reports,

statements, or data compilations, in any form, of public offices or agencies, setting forth

*** the activities of the office or agency *** .” Evid.R. 803(8). The Appellee Park District

is a public entity, a status the appellants tacitly admit when they argue in their reply brief

that status as a political subdivision does not grant standing to appellee. Mr. Fonte

testified that the acquisition of this property is part of a long range plan of appellee and

that appellee has acquired railroad property in the past.        He testified that appellee

commissioned the completion of the title exam to insure that the title could be transferred

from American Premier Underwriters, Inc. and that the survey was ordered by appellee

to satisfy requirements for an up to date and accurate description. Mr. Fonte testified to

the receipt of letters from an attorney representing Gene Dickerhoof, appellants’

predecessor in title, objecting to the use of the Dickerhoof property for Park District

purposes and asserting a claim of title by reversion. The letters regarding the property,
Stark County, Case No. 2017CA00231                                                  21


title examination, and survey document the activities of the appellee, a public office, in

the planning, negotiation and purchase of the railroad property. Nothing in the records

shows or implies any doubt that the source of the records or other circumstances indicate

lack of untrustworthiness, so we conclude that these exhibits qualify for the exception to

the hearsay rule under Evid. R. 803(8).

       {¶55} We also conclude that the testimony of Robert Fonte provided sufficient

foundation for these exhibits. “The threshold for admission is quite low as the proponent

need only submit “evidence sufficient to support a finding that the matter in question is

what its proponent claims.” State v. Nixon, 11th Dist. No. 2013-P-0098, 2014-Ohio-4303,

20 N.E.3d 404, ¶ 33. Mr. Fonte played a pivotal role in this transaction such that his

testimony provided the jury a rational basis to find the documents submitted were what

he represented them to be.


       {¶56} The unrebutted testimony of Robert Fonte provided sufficient evidence to

support the trial court’s decision to find the appellee acquired title to the property. The

description in the Styers deed, the acknowledgment of that description in the letter issued

by the Dickerhoof family attorney, the title examination and the survey all support the

conclusion that the appellee acquired title to the railroad corridor and we cannot find that

this is an “exceptional case in which the evidence weighs heavily against” the courts’

decision, State v. Thompson, infra at 387 and thus the trial court’s decision is not against

manifest weight of the evidence.
Stark County, Case No. 2017CA00231                                                   22


                              REVERSIONARY PROVISION


       {¶57} Appellant next claims, still within the second assignment of error, the trial

court erred when it did not find that the Styers deed contained a reversionary clause that

was triggered when the railroad ceased using the strip of property that bisects their

property. The Appellant states that the case relied upon by the trial court has been

abrogated by the Ohio Supreme Court and contends the currently applicable precedent

mandates a decision in their favor.

       {¶58} The trial court relied on Petition of Copps Chapel M.E. Church, 120 Ohio St.

309, 166 N.E. 218, 7 Ohio Law Abs. 255 (1929) but shortly after the trial of this case, the

Ohio Supreme Court abrogated the Copps requirement that the deed contain explicit

language requiring the reversion upon the fulfillment of the condition. Instead, the Ohio

Supreme Court held that the descriptive phrase, “so long as” or the words “during” or

“until” when used in the deed could be sufficient to create a fee simple estate subject to

a reversion. Koprivec v. Rails-to-Trails of Wayne Cty., 153 Ohio St.3d 137, 2018-Ohio-

465, 102 N.E.3d 444 (2018), ¶¶ 31-32. Appellant contends that the Styers deed, the

purported root of title in this case, contains language that is sufficiently analogous to the

language in Koprivec that a reversion is created.

       {¶59} Appellee notes that the Court in Koprivec found that the deed before it did

not create a reversion and that the language in the Styers deed is more similar to the

language in the deed in Koprivec. Appellee contends we should come to the same

conclusion and affirm the finding of the trial court.
Stark County, Case No. 2017CA00231                                                           23


       {¶60} As this assignment involves the interpretation of the language of a deed and

no factual issues, our standard of review is de novo. The relevant language of the Styers

deed (appellee’s Trial Exhibit 1) is:

              Witneseth (sic) that said party of the first part [Mary and James

       Styers] . . . have granted, bargained, sold, aliened, remised, released,

       conveyed and confirmed, and by these presents, do grant, bargain, sell,

       alien, remise, release, convey and confirm unto the said party of the second

       part [Cleveland, Youngstown and Pittsburgh Railway Company], and to its

       successors and assigns forever, all that certain piece or parcel of land

       situate in the Township of Washington in County of Stark, in the State of

       Ohio, described as follows:

       [Excerpted real estate dimensions of the property].

              Together with all and singular the tenements, hereditaments and

       appurtenances thereunto belonging, or in anywise appertaining, and the

       reversion and reversions, remainder and remainders, rents, issues and

       profits thereof, and also all the estate right, title, interest, dower and right of

       dower, prosperity, possession, claim and demand whatsoever of said party

       of the first part, both in law and in equity of in and to the above granted

       premises with the hereditaments and appurtenances. To have and to hold

       the above granted premises with the appurtenances and every part thereof,

       unto the said party of the second part, its successors and assigns, to their

       proper use and behalf forever for the use and purposes of the party of the

       second part for track and a roadway for said Company, and the proper
Stark County, Case No. 2017CA00231                                                     24


       appendages to such track and roadway to conveniently operate said

       railroad, and for no other use or purpose. Provided always and these

       presents are upon this express condition, that the said party of the second

       part shall construct its railroad on said premises.

       {¶61} The holding of Koprivec requires that we review the language in the deed

for the phrase “so long as” or “as long as”, the words “until” or “during” or some analogous

language to determine whether a reversion has been created. We have reviewed the

quoted language and the entire deed and no such language appears. The deed clearly

describes a restriction on the use of the property, but does not expressly state or imply in

any portion of the deed that a violation of that restriction would result in a reversion of the

title of the property to the grantor or their successors. We find that no reversion has been

created.

       {¶62} Instead of a reversion, this language establishes a restriction or covenant

regarding the use of the land. “A restrictive covenant is a “private agreement, [usually] in

a deed or lease, that restricts the use or occupancy of real property, [especially] by

specifying lot sizes, building lines, architectural styles, and the uses to which the property

may be put.” *835 Canton v. State, 95 Ohio St.3d 149, 2002-Ohio-2005, 766 N.E.2d 963,

¶ 28 (2002), citing Black's Law Dictionary 371 (7th Ed.Rev.1999). In the context of

property law, a “covenant” denotes a contract that is either personal or “runs with the

land.” Maasen v. Zopff, 12th Dist. Warren Nos. CA98–10–135, 1999 WL 552747 (July 26,

1999), *3. Restrictions running with the land are “intended to limit the grantee's use of the

land to specified purposes, with the object of protecting the interests of all landowners in

the same allotment.” Id.
Stark County, Case No. 2017CA00231                                                    25


       {¶63} The deed contains language expressing the expectation that the grantee

will use the property “to conveniently operate said railroad, and for no other use or

purpose” but it contains no language qualifying the transfer of the property as being

effective only for “so long as” the property is used to operate the railroad and we cannot

add such language. The intention of the parties is clear and “the first rule of deed

construction in Ohio is that when the parties' intention is clear from the four corners of the

deed, we will give effect to that intention.” Koprivec, supra at ¶29.

       {¶64} Further, as noted by the trial court, the deed grants all rights to any reversion

or reversions to the railroad. Consequently, even if we had found a reversion existed it

appears that all rights to that reversion were conveyed to the railroad and to their

successors in interest.

       {¶65} For the forgoing reasons, we find that the trial court’s decision was

technically correct under the law that was applicable at the time the decision was rendered

because the deed did not contain any express language containing a reversion. Under

Koprivec we are obligated to review the language in the four corners of the deed for

language that would support a reversion. When we do so, we find that the deed contains

a restrictive covenant, analogous to the deed described in Koprivec, but no reversionary

language.    Appellant assertion regarding that issue is overruled and their second

assignment of error is overruled.

                                       JURY TRIAL

       {¶66} We now turn to appellants’ assignments of error three through five, which

concern only the rulings and decisions arising from the jury trial conducted to decide

appellants’ claim of adverse possession.
Stark County, Case No. 2017CA00231                                                    26


                            THIRD ASSIGNMENT OF ERROR

       {¶67} In their third assignment of error, appellants contend the trial court received

inadmissible evidence during the jury trial to their prejudice. Our standard of review is

abuse of discretion. “The admission or exclusion of relevant evidence rests in the sound

discretion of the trial court.” Sage, supra at 180. The term “abuse of discretion” connotes

more than an error of law or judgment; it implies that the court's attitude is unreasonable,

arbitrary, or unconscionable. Wilmington Steel Products, Inc. v. Cleveland Elec. Illum.

Co., 60 Ohio St.3d 120, 122, 573 N.E.2d 622 (1991). Absent an abuse of discretion

resulting in material prejudice to the defendant, a reviewing court should be reluctant to

interfere with a trial court's decision in this regard. State v. Sage, 31 Ohio St.3d 173, 180,

510 N.E.2d 343 (1987). Moreover, error predicated on an evidentiary ruling does not

warrant reversal of the trial court's judgment unless the court's actions were inconsistent

with substantial justice and affected the substantial rights of the parties. Evid.R. 103(A);

Civ.R. 61. Poppy v. Whitmore, 8th Dist. Cuyahoga No. 84011, 2004-Ohio-4759, ¶ 38.


       {¶68} Appellants contend that the erroneous introduction of irrelevant and

improper evidence led the jury to conclude that that the appellants’ exclusive, continuous,

and adverse possession was not open and notorious for twenty-one years. Appellants

submitted a list of the alleged erroneously admitted evidence:

              Various deeds from 1970-1993 regarding the transfer of the

       Dickerhoof Farm. See Trial Exs. 9, 10, 11; Tr. Vol. IV, at 547-548;

              Testimony and documents related to the Park District's documentary

       "due diligence" prior to purchasing the railroad property. See Tr. Exs. 14,

       22; Tr.Vol. IV, at 548-549, 554;
Stark County, Case No. 2017CA00231                                                 27


              Letters from counsel representing Dan Dickerhoofs' father in 1998

       and 1999 not expressly asserting adverse possession claim. See Trial Exs.

       17, 20; Tr. Vol. IV, at549-550, 554;

              A 1998 newspaper article about a meeting debating trails. See Trial

       Ex. 18; Tr.Vol. IV, at 550-551;

              A 2004 deed regarding the transfer of the Dickerhoof Farm. See Trial

       Ex. 25; Tr. Vol. IV, at 555-556;

              Testimony about how the Dickerhoofs did not expressly state an

       adverse possession claim to Mr. Fonte in 2009, Tr. Vol. III, at 443-444, that

       the Park District offered to "accommodate" the Dickerhoofs in 2009 id., at

       471, and Mr. Fonte's impression of the disputed property in 2009, id., at

       472-475;

              Testimony about inconvenience to the Park District and public

       officials to prepare for trial. Tr. Vol. III, at 475-477.

       {¶69} Appellants assert that the exhibits described in this assignment are

irrelevant to the issue of whether appellants have provided clear and convincing evidence

that they and their predecessors were in possession of the contested property and that

their possession and use of the property was exclusive, continuous, open and notorious

for twenty-one years prior to the appellee acquiring title. We conclude appellants’ focus

is unduly limited and that the exhibits are relevant to the elements of adverse possession

and the credibility of appellants’ witness.

       {¶70} Appellants’ relied entirely upon the testimony of Daniel Dickerhoof to

provide clear and convincing evidence for all elements of adverse possession, so his
Stark County, Case No. 2017CA00231                                                 28


credibility was paramount and subject to challenge by appellee. “Generally, a witness's

credibility is put at issue whenever he or she testifies,” Redman v. Watch Tower Bible &

Tract Soc. of Pennsylvania, 69 Ohio St.3d 98, 1994-Ohio-514, 630 N.E.2d 676 (1994),

and the credibility of a witness may be attacked. Evid.R. 607(A). If the jury chose to

discount any of Mr. Dickerhoof’s testimony, appellants’ claim could fail. Appellee was

cognizant of this issue, and presented evidence that the trial court could reasonably

interpret as an attack on the credibility of Mr. Dickerhoof.

       {¶71} Mr. Dickerhoof’s testimony was based, in part, on his memory as a very

young child. He was four years old when his family purchased the property and appellants

are claiming that their possession began soon after that purchase. Mr. Dickerhoof moved

from the property in 1990 and lived in Columbus for a period of time, so the appellants’

sole witness was very young at the beginning of the critical twenty-one year time period

and was absent from the property for some time during the end of that time.             Mr.

Dickerhoof’s absence from the property, his youth, in his lack of knowledge regarding

deeds, letters and newspaper articles provides some evidence that Mr. Dickerhoof’s

knowledge of events and transactions regarding the disputed property was limited,

unreliable and should be rejected.

       {¶72} Appellants presented Mr. Dickerhoof’s testimony to establish that their claim

to the property vested through adverse possession prior to appellee’s purchase in 1997.

Appellee used deeds, letters from family attorneys and newspaper articles to challenge

that assertion by demonstrating that Mr. Dickerhoof was unaware of the fact that

appellants and their predecessors in title made no claim of adverse possession prior to

this case but, instead, relied upon an allegation that a reversionary clause provided
Stark County, Case No. 2017CA00231                                                   29


appellants’ title. He was also not aware of the deeds executed by Dickerhoof family

members that continued to reflect the railroads interest in the corridor that bisected their

property. The exhibits presented by appellee served to offer some evidence that Mr.

Dickerhoof’s knowledge was subject to gaps and that, consequently, his recollection

regarding the appellants’ possession and use may also suffer gaps.

       {¶73} Appellants presented testimony describing what steps they took to

incorporate the rail line into their farm and make it evident to the world that they own that

parcel. Appellee offered several exhibits as evidence of actions the appellants did not

take to notify the world of their claim. Appellants did not remove the description of the

railroad corridor from their deeds, did not assert adverse possession through counsel,

and included the corridor in a drawing submitted as an exhibit. (Dickerhoof Exhibit 2). The

jury was entitled to receive all of this evidence, consider the credibility of the witnesses

and the weight of the evidence and render a decision based on the same. For this reason,

as well as the reasons discussed below, we find that the trial court did not abuse its

discretion in admitting the evidence described by appellant in this assignment.

       {¶74} Appellants contend that deeds that reflect the continued existence of the

railroad line in the appellants’ property (Exhibits 9, 10, and 11) were improperly admitted,

yet they did not object to the presentation of the documents or testimony during the trial

of the matter. Each document was presented to the witness and the relevant portions

were read aloud to the jury without any objection by appellants. The title examination and

the survey (Exhibit 14 and Exhibit 22) received virtually the same treatment by the

appellants. When asked to identify Exhibit 14, appellants’ counsel stated “objection,

hearsay” but that objection was overruled. The witness then responded to questions
Stark County, Case No. 2017CA00231                                                 30


about the content and effect of the title examination without objection. The testimony

regarding Exhibit 22, the survey, was interrupted by one objection, then the question was

rephrased and answered without objection. The balance of the testimony regarding

Exhibit 22 was not interrupted by any further objection.

      {¶75} Because extensive testimony regarding exhibits was received without

objection, admission of those exhibits over objection is not an abuse of discretion. State

v. Shaw, 7th Dist. Jefferson No. 03 JE 14, 2004-Ohio-5121, ¶¶ 17, 18. Further, the deeds

are relevant to demonstrate what actions appellant failed to take to make their use and

possession more open and more notorious and the survey and title exam assisted the

jury in understanding the timing of the purchase as it relates to the possession of the

property by appellants.

      {¶76} Appellant submitted a “continuing objection” to Exhibit 17, (the letter from

John Morris to Robert Fonte) but the grounds for the objection are not clear in the record.

Ultimately, that document was admitted only for purposes of impeachment. Appellee

questioned Mr. Dickerhoof extensively about another letter from John Morris to Robert

Fonte, Exhibit 20, but made no objection at the time the testimony was offered. We believe

the testimony at trial was such that the subsequent admission of the document was not

an abuse of discretion. Shaw, supra.

      {¶77} Exhibit 18, a newspaper article regarding the “Packed Meeting” about the

use of the rail line by the appellee was submitted to the witness and extensively reviewed

before the jury without any objection.

      {¶78} Exhibit 25, another deed that reflected the continued existence of the rail

line in the legal description of the appellee’s property, did bring an objection because it
Stark County, Case No. 2017CA00231                                                     31


was dated 2004, purportedly after the time for vesting by adverse possession had

occurred. The Court overruled that objection and concluded that the date upon which title

to the property may have vested was an issue for the jury to decide, though the trial court

did make it clear that this ruling should not be interpreted as general approval of all

evidence outside the time period described by appellants.

       {¶79} Appellant submitted cases that it describes as prohibiting the introduction

of post vesting evidence in adverse possession cases as irrelevant because title has

already vested. While the cases affirm that the use need only exist for twenty-one years,

the holdings in those cases do not stand for the proposition that all facts that might arise

after the purported twenty-one year use are irrelevant and inadmissible. We cannot state

that facts relevant to whether the use was continuous, exclusive, open and notorious for

twenty one years will not arise after the expiration of the relevant time period. Further,

evidence regarding the credibility of a witness can arise at any time and may be offered

not to establish the elements of the claim, but to attack the witness’s credibility.

       {¶80} The Appellant next claims that the admission of testimony that appellee felt

a need to defend its purchase, that its actions would have changed had appellants notified

it of its adverse possession claim, that it had to prepare to rebut the appellants’ claim that

they paid property taxes on the disputed land and that the parties discussed an

accommodation of the Dickerhoof’s concerns at a 2009 meeting were inappropriately

permitted. The latter issue was the subject of a long discussion at the bench among the

trial court and the parties resulting in an agreed format for a question, so we are unwilling

to consider any objection to that question. With regard to the other issues we find that

even if we were to conclude this evidence was improperly admitted, ”there is no reason
Stark County, Case No. 2017CA00231                                                    32


to apprehend that the improper or irrelevant testimony could have had any influence upon

the jury.” Hovanec v. Ondak, 71 Ohio Law Abs. 58, 60–61, 124 N.E.2d 774, 777 (8th

Dist.1955). Unlike the party in Pearstein, infra, these matters were not presented in “great

detail and to a considerable extent” Pearlstein v. A.M. McGregor Home, 79 Ohio App.

526, 528, 47 Ohio Law Abs. 615, 73 N.E.2d 106 (8th Dist.1947) but were only a minor

part of two days of testimony. We cannot find that inclusion of this evidence impacted a

substantial right. (Evid.R. 103(A)).

       {¶81} The appellants next contend the trial court erred in allowing Park District to

testify at length and introduce documents regarding their "due diligence" in purchasing

the property and cites to Volume III pages 401-405 of the Transcript, but those pages

contain no objection to the testimony contained therein. Appellants complain of the

admission of the title exam, but only objected to the appellee asking the following:

       And why don't you go ahead and turn to Exhibit 14 in your binder. And can

       you tell us what Exhibit 14 is?

       MR. FUSONIE: Objection; hearsay.

       THE COURT: Overruled

       {¶82} The trial court did not abuse its discretion in overruling this objection.

       {¶83} Appellants also direct us to pages 405 to 411 of the transcript during which

their counsel complained of the appellees reference to obtaining a title exam. Appellants

did object and the trial court found that the appellees could introduce evidence regarding

the process and timing of obtaining title. The timing of acquiring title was inadvertently

emphasized by counsel for Appellant when he stated “The issue before the jury is whether

there was adverse possession that vested prior to them obtaining the quit-claim deed.”
Stark County, Case No. 2017CA00231                                                  33


(Page 406, pages 8-11). The trial court concluded the appellee could introduce the

evidence to describe when and how they acquired title, but no more. We do not find this

ruling an abuse of discretion.

       {¶84} The Appellant next complains of the Court permitting the lack of public

statement of adverse possession as evidence that the elements of adverse possession

were not satisfied. We addressed the admission of the exhibits that appellee used to

illustrate the absence of that information earlier and need not repeat our analysis here but

incorporate it by reference. We note that appellants did not object to appellee’s closing

argument and we disagree with their characterization of the goal of the argument.

Appellants suggest that the appellee argued that appellants were obligated to announce

their adverse possession claim to the world to preserve it. In fact, the argument is an

attempt to persuade the jury that the appellants and their attorney were aware of the law,

and concluded that the adverse possession claim was not established by the facts. The

trial court did not abuse its discretion by admitting the evidence or the argument,

particularly in the absence of an objection to the argument.

       {¶85} Appellant did not object to the argument regarding deeds at pages 586-587

of the transcript and we have previously addressed the issue of using the deeds as

exhibits. The argument only makes the point that deeds announce the status of the

property. As noted above, we find these exhibits are relevant to the credibility of the

appellants’ sole witness, and the issue of whether the use and possession was open and

notorious and therefore, the trial court did not abuse its discretion in allowing its

admission.
Stark County, Case No. 2017CA00231                                                    34


       {¶86} Finally, because we find that the trial court did not err, we find that the

cumulative error doctrine does not apply. In State v. Brown, 100 Ohio St.3d 51, 2003–

Ohio–5059, 796 N.E.2d 506, the Ohio Supreme Court recognized the doctrine of

cumulative error. However, as explained in State v. Bethel, 110 Ohio St.3d 416, 2006–

Ohio–4853, 854 N.E.2d 150, ¶ 197, it is simply not enough to intone the phrase

“cumulative error.” State v. Sapp, 105 Ohio St.3d 104, 2004–Ohio–7008, 822 N.E.2d

1239, ¶ 103. Appellants cite the doctrine of cumulative error, but gives no analysis or

explanation as to why or how the errors have had a prejudicial cumulative effect, but

simply concludes that the jury verdict is evidence that the jury was misled.

       {¶87} Further, where we have found that the trial court did not err, cumulative error

is simply inapplicable. State v. Carter, 5th Dist. Stark No. 2002CA00125, 2003–Ohio–

1313, ¶ 37. To the extent that we have found that any claimed error of the trial court was

harmless, or that claimed error did not rise to the level of plain error, we conclude that the

cumulative effect of such claimed errors is also harmless because taken together, they

did not materially affect the verdict. State v. Leonard, 104 Ohio St.3d 54, 89–90, 2004–

Ohio–6235, 818 N.E.2d 229, 270 at ¶ 185.

       {¶88} For those reasons we cannot conclude that the trial court abused its

discretion regarding the evidentiary rulings and the third assignment of error is overruled.

                          FOURTH ASSIGNMENT OF ERROR

       {¶89} In their fourth assignment of error, appellants argue that the jury’s verdict

was against the manifest weight of the evidence, relying solely on Daniel Dickerhoof’s

testimony about his family’s use of the property and contending that the appellee offered

no evidence regarding the use of the property from 1972 to 1997.
Stark County, Case No. 2017CA00231                                                       35

       {¶90} In Eastley v. Volkman, 132 Ohio St.3d 328, 972 N.E.2d 517, 2012–Ohio–

2179, the Ohio Supreme Court distinguished the terms “sufficiency” and “weight” in civil

cases, declaring that “manifest weight” and “legal sufficiency” are “both quantitatively and

qualitatively different,” in the same manner the Supreme Court previously held regarding

criminal cases in State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997),

paragraph two of the syllabus. The court found sufficiency of the evidence to be “a term

of art meaning that legal standard which is applied to determine whether the case may

go to the jury or whether the evidence is legally sufficient to support the jury verdict as a

matter of law. * * * In essence, sufficiency is a test of adequacy.” Eastley, ¶ 11, citing,

Thompkins, supra at 386 and Black's Law Dictionary 1433 (6th Ed.1990).

       {¶91} By contrast, the weight of the evidence concerns:

       the inclination of the greater amount of credible evidence, offered in a trial,

       to support one side of the issue rather than the other. It indicates clearly to

       the jury that the party having the burden of proof will be entitled to their

       verdict, if, on weighing the evidence in their minds, they shall find the greater

       amount of credible evidence sustains the issue which is to be established

       before them. Weight is not a question of mathematics, but depends on its

       effect in inducing belief.

Eastley at ¶ 12, citing Thompkins, supra at 387, and Black's, supra at 1594. (Emphasis

omitted).

       {¶92} A reviewing court must not substitute its judgment for that of the trial court

where there exists some competent and credible evidence supporting the judgment
Stark County, Case No. 2017CA00231                                                  36

rendered by the trial court. Myers v. Garson, 66 Ohio St.3d 610,614 1993-Ohio-9, 614

N.E.2d 742 (1993).

       {¶93} The inviolate nature of the jury process and its authority as a fact finding

body is affirmed by Section 3, Article IV, Ohio Constitution, as “[n]o judgment resulting

from a trial by jury shall be reversed on the weight of the evidence except by the

concurrence of all three judges hearing the cause” on appeal. However, an appellate

court may not merely substitute its view for that of the jury, but must find that “the jury

clearly lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered.” Thompkins, supra, at 387. Accordingly,

reversal on manifest weight grounds is reserved for “the exceptional case in which the

evidence weighs heavily against” the jury’s decision. Thompkins, supra.

       {¶94} Parties asserting adverse possession “must prove, by clear and convincing

evidence, exclusive possession and open, notorious, continuous, and adverse use for a

period of twenty-one years. Grace v. Koch, 81 Ohio St.3d 577, 1998-Ohio-607, 692

N.E.2d 1009 (1998). The Ohio Supreme Court has defined “clear and convincing

evidence” as the measure or degree of proof that will produce in the mind of the trier of

fact a firm belief or conviction as to the allegations sought to be established. It is

intermediate, being more than a mere preponderance, but not to the extent of such

certainty as required beyond a reasonable doubt as in criminal cases. In re: Estate of

Haynes, 25 Ohio St.3d 101, 103–04, 495 N.E.2d 23(1986); see, also, State v. Schiebel,

55 Ohio St.3d 71, 74, 564 N.E.2d 54(1990). While the appellants cite to time, money an

effort invested in developing this property, “there are no equities in favor of a person
Stark County, Case No. 2017CA00231                                                 37

seeking to acquire property of another by adverse holding” Grace, supra at 880, citing 10

Thompson on Real Property (Thomas Ed.1994) 108, Section 87.05.

      {¶95} The appellants focus on documents and testimony presented by appellee,

contending that the trial court erred in admitting several exhibits and statements. We

have previously addressed the admission of those exhibits and testimony and will not

repeat our findings here.    Appellant overlooks evidence that was presented without

objection that the jury may have reasonably found of sufficient weight to conclude that the

appellants failed to demonstrate that their possession and use of the property was open

and notorious by clear and convincing evidence.

      {¶96} Mr. Dickerhoof testified regarding the use of the abandoned railroad

property for pasture and for planting and by his testimony suggested that the strip of

property in question was indistinguishable from the surrounding area of the farm, urging

the jury to conclude from that testimony that the use was open and notorious. When

asked about photographs of the area, Mr. Dickerhoof insisted that he took photographs

and gave them to his attorney but he admitted that none had been shown to the jury.

       {¶97} Mr. Dickerhoof also testified that he had installed a fence and no

trespassing signs at the points where the corridor crossed his property line, but no

photographs of the signs or fence was offered. The jury could reasonably draw a negative

inference from the failure to provide those photographs, particularly when the

photographs were submitted to counsel, as evidence that the use was not clearly and

convincingly open and notorious.

       {¶98} The Dickerhoof family began planting the northern half of the property 1975

and the southern portion in 1978. This statement by Mr. Dickerhoof was never clarified
Stark County, Case No. 2017CA00231                                                     38


and may have been relied upon by the jury to conclude that the possession of the property

did not become open and notorious until after 1978, far too late to establish adverse

possession by 1997 when the appellee purchased the property.

       {¶99} Further, the jury may have reasonably viewed the need to install a fence

and no trespassing signs at the points were the corridor intersected the appellants’

property border as evidence that after several decades the rail way line was still

identifiable and that a view of the property would not clearly and convincingly show open

and notorious use. The testimony that bicyclists were using the path in 1978, years after

the Dickerhoof family purportedly began farming the property, may also raise doubts that

the use was open and notorious. We have commented on Mr. Dickerhoof’s youth during

the first years of the critical time as well as his absence from the property during that time.

These gaps also serve as a basis for a jury to doubt appellants have presented clear and

convincing evidence that the use was continuous for twenty-one years.


       {¶100}        Counsel for appellee asked Mr. Fonte about his trip to the property

in the Spring of 2017 whether he was able to discern what use appellants were making

of the property. He replied “none.”

       {¶101}        Judge Clunk did not hear any mention of the Dickerhoof’s farming

the corridor after his Rotary club pursued litigation to preserve the right to use it and then

abandoned the project due to time constraints. He confirmed that he would have expected

to hear about the appellants’ use of the property if it had occurred. During his testimony

he discussed the leases that were associated with portions of the corridor, providing

evidence that the Dickerhoof’s use may not have been adverse.
Stark County, Case No. 2017CA00231                                                       39


       {¶102}         This testimony and evidence, if accepted by a jury, could lead to a

conclusion that appellants’ evidence was not clear and convincing.

       {¶103}         We have reviewed the entire record, weighed the evidence and all

reasonable inferences, considered the credibility of witnesses and after resolving any

conflicts in the evidence, we cannot find that the jury clearly lost its way and created such

a manifest miscarriage of justice that the decision must be reversed and a new trial

ordered. The appellants’ fourth assignment of error is overruled.


                             FIFTH ASSIGNMENT OF ERROR

       {¶104}         In their fifth assignment of error, appellants assert the trial court erred

by refusing to amend its entry of July 31, 2017 and declare the right of the appellants to

cross the railroad line.    Appellants asserted a right to an easement, a prescriptive

easement or an easement by necessity in the form of affirmative defenses. As previously

noted, the appellants offered no evidence in support of its claims in the bench trial. The

record in the jury trial does not contain any reference to an easement or any right to cross

the subject property. After receiving the trial court’s findings of fact and conclusions of

law, the appellants petitioned the trial court to amend its decision to include a declaration

of the appellants’ rights to cross the subject property.

       {¶105}         We have reviewed the record regarding the bench trial and the jury

trial and find that it contains no testimony or exhibit in support of appellants’ right to cross

the railroad property. The Styers Deed (appellee’s Trial Exhibit 1) does contain the

following phrase immediately after the metes and bounds description of the property to

be transferred: “Two farm crossings to be built for grantors at a convenience point [for]

grantee [R. N.].’ Neither the intent of this phrase nor issues regarding the size, location
Stark County, Case No. 2017CA00231                                                  40


and limitations regarding the use of any crossing as well as whether any right existed

after the appellee’s acquisition of the property were addressed during either the bench

trial or the jury trial. The appellants not only did not present any evidence regarding the

crossing, but they also did not make any specific request to the trial court to render such

a decision at any juncture during either trial.

       {¶106}        During the bench trial, the parties engaged in lengthy discussions

and argument regarding several issues. The trial court clearly asked the parties if there

were other issues or matters to be discussed and with the exception of proffering

testimony regarding possession of the property, the appellant offered nothing. This case

was pending for nearly two years before the jury verdict and was vigorously prosecuted

and defended, but, with the exception of the references in the appellants’ a&nswer to the

complaint, no clear reference to the need for a crossing over the property can be found

in the record.

       {¶107}        Appellants were seeking an order from the trial court regarding a

matter that could have been brought to the court’s attention at either trial, but was not.

“To require a trial court to grant a defendant judgment as a matter of law on an issue

never timely raised would fly in the face of fundamental rules of our adversarial system of

trial, which place specific responsibilities on parties involved in litigation to shape the

course of the trial.” Dardinger v. Anthem Blue Cross & Blue Shield, 98 Ohio St.3d 77,

2002-Ohio-7113, 781 N.E.2d 121, ¶ 146, citations omitted. The trial court correctly

decided this issue. Appellants’ fifth assignment of error is overruled.
Stark County, Case No. 2017CA00231                                                 41


      {¶108}          For the forgoing reasons, the decisions of the Stark County Court of

Common Pleas are affirmed.

By: Baldwin, J.

Wise, John, P.J. and

Delaney, J. concur.
