[Cite as Carson v. Duff, 2017-Ohio-8199.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            FAYETTE COUNTY




MICHAEL R. CARSON, TRUSTEE, et al.,               :
                                                        CASE NOS. CA2017-03-005
        Plaintiffs-Appellants,                    :               CA2017-03-007

                                                  :            OPINION
   - vs -                                                      10/16/2017
                                                  :

ROSCOE DUFF, DECEASED, et al.,                    :

        Defendants-Appellees.                     :



         CIVIL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
                             Case No. 13CVH00471



Kiger & Kiger Lawyers, David V. Kiger and James A. Kiger, 132 South Main Street,
Washington C.H., Ohio 43160-2275, for plaintiffs-appellants

William E. Peelle, 1929 Rombach Avenue, P.O. Box 950, Wilmington, Ohio 45177, for
plaintiffs-appellants

Daniel W. Drake, 6383 Myers Road, P.O. Box 171, Bloomingburg, Ohio 43106, for
defendants-appellees

Jeffrey L. Wright, 145 North South Street, Wilmington, Ohio 45177, for defendants-appellees

Jess C. Weade, Fayette County Prosecuting Attorney, 110 East Court Street, Washington
C.H., Ohio 43160, for defendant, Fayette County Treasurer



        S. POWELL, J.

        {¶ 1} Plaintiffs-appellants, Michael and Mary Ann Carson, individually and as trustees
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for their respective revocable trusts, appeal from the decision of the Fayette County Court of

Common Pleas denying their adverse possession claim following a bench trial in a dispute

over real property with defendants-appellees, Jacqueline Loudner, Ronald Pope, and James

E. Duff. For the reasons outlined below, we affirm.

       {¶ 2} This case had previously been appealed to this court in Carson v. Duff, 12th

Dist. Fayette No. CA2015-06-013, 2016-Ohio-5093. As part of that decision, we recited the

following facts:

              This case involves a disputed 102 acre tract of farmland located
              in Fayette County. The property was conveyed several times
              over the years, eventually to the Duff Farm Company, which
              conveyed the land to appellants.

              Prior to the sale of the property, a title search was conducted,
              which disclosed appellees' fractional interest in the property.
              Appellants claim the "cloud" in title, appellees' fractional interest,
              was the result of a mistake in the transfer of a deed in the chain
              of title and filed a quiet title action.

              The following facts are relevant to this appeal. Since 1966,
              Dwight Duff and his successors in interest have continuously
              farmed the 102 acre tract. The trial court stated in its judgment
              entry "[t]he tract of land has been enrolled in various federal crop
              programs and the county real estate taxes have been kept
              current. This tract has never been subdivided since its creation
              in 1966. There is no evidence in the record of any act
              inconsistent with complete ownership of the entire interest in the
              tract."

              The trial court also noted that appellees had no knowledge of
              their respective interests in this tract of land until the quiet title
              action was filed. Appellees claim to the property is through
              inheritance by reference to the chain of title.

              Following discovery, appellants moved for summary judgment
              claiming, in part, that Dwight Duff and his successors had
              successfully acquired the fee title of the property through
              adverse possession, which was then conveyed to them.
              Appellees filed a motion in opposition and also moved for
              summary judgment on the basis that, as record title owners and
              tenants in common, they were entitled to judgment as a matter of
              law. The trial court ruled in favor of appellees, finding that

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                appellants failed to establish the "higher standard" of review for
                cotenants in an adverse possession claim. As the title record
                holders, the trial court granted judgment in favor of appellees,
                therefore finding their fractional interest in the disputed property
                to be valid.

Id. at ¶ 2-6.

       {¶ 3} On appeal, we reversed the trial court's decision granting summary judgment to

appellees upon finding the trial court employed the wrong standard of review and that, when

considering the complicated facts at issue, the case was better suited to be resolved

following a trial, not summary judgment. Id. at ¶ 20-22. The matter was therefore remanded

to the trial court for further proceedings.

       {¶ 4} On December 1, 2016, the trial court held a bench trial to determine appellants'

adverse possession claim. During trial, the trial court heard testimony from several witnesses

regarding the property at issue and admitted numerous documents outlining the title history

and transfers of the property beginning in the mid-1960s onward. This included testimony

about an alleged family meeting that took place some 50 years prior in an effort to effectuate

a transfer of the property to its intended recipient through a "swap" of deeds, a predecessor

to appellants herein. However, as one witness testified, not a single word has been said

about the property for over 50 years prior to the property being sold to appellants in 2012.

Nevertheless, there was also testimony that a title search discovered a defect in the

property's chain of title. Specifically, testimony was elicited that "there were heirs where their

interest was never transferred away," thereby rendering appellants and appellees cotenants

of the property at issue.

       {¶ 5} On March 2, 2017, after both parties submitted closing memoranda to the trial

court, the trial court issued a decision denying appellants' adverse possession claim. In so

holding, the trial court determined appellants "failed to prove by clear and convincing


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evidence any definite and continuous assertion of adverse rights, by themselves nor by their

predecessors in title," so as to support their adverse possession claim against appellees,

their cotenants.     Appellants now appeal from the trial court's decision, raising two

assignments of error for review. For ease of discussion, appellants' two assignments of error

will be addressed together.

       {¶ 6} Assignment of Error No. 1:

       {¶ 7} THE DECISION OF THE TRIAL COURT HOLDING THAT APPELLANTS

FAILED TO SUSTAIN THEIR BURDEN OF PROOF OF ADVERSE POSSESSION OF THE

102.032 ACRE TRACT OF FARMLAND AS AGAINST CO-TENANTS IS ERRONEOUS AS A

MATTER OF LAW AND IS AGAINST THE MANIFEST WEIGHT AND NOT SUPPORTED

BY THE EVIDENCE.

       {¶ 8} Assignment of Error No. 2:

       {¶ 9} THE TRIAL COURT ERRED WHEN IT CONCLUDED THAT DUFF'S (DWIGHT

DUFF) AND HIS SON AND WIFE, HAVE TO ENGAGE IN UNEQUIVOCAL ACTS WHICH

CONSTITUTES AN OUSTER OF HIS SIBLINGS WHICH WERE CO-TENANTS.

       {¶ 10} In their two assignments of error, appellants make the same basic argument

that they did previously; namely, that the trial court erred by denying their adverse possession

claim as that decision was against the manifest weight of the evidence. We disagree.

                   Standard of Review: Manifest Weight of the Evidence

       {¶ 11} "The standard of review for a manifest weight challenge in a civil case is the

same as that applied to a criminal case." Dunn v. Clark, 12th Dist. Warren No. CA2015-06-

055, 2016-Ohio-641, ¶ 8, citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶

17. Thus, in considering a manifest weight challenge, a reviewing court weighs the evidence

and all reasonable inferences, considers the credibility of witnesses and determines whether

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in resolving conflicts in the evidence, the finder of fact clearly lost its way and created a

manifest miscarriage of justice warranting reversal and a new trial ordered. Hacker v. House,

12th Dist. Butler No. CA2014-11-230, 2015-Ohio-4741, ¶ 21, citing Eastley at ¶ 20. A

judgment will not be reversed as being against the manifest weight of the evidence where the

judgment is supported by some competent, credible evidence going to all essential elements

of the case. Sterling Constr., Inc. v. Alkire, 12th Dist. Madison No. CA2016-12-032, 2017-

Ohio-7213, ¶ 8.

                    The Law of Adverse Possession and Cotenants

      {¶ 12} "To acquire title by adverse possession, the party claiming title must show

exclusive possession and open, notorious, continuous, and adverse use for a period of

twenty-one years." Grace v. Koch, 81 Ohio St.3d 577, 579 (1998). As it relates to cotenants,

however, "[a] tenant in common cannot assert title by adverse possession against his co-

tenant unless he shows a definite and continuous assertion of adverse right by overt acts of

unequivocal character clearly indicating an assertion of ownership of the premises to the

exclusion of the right of the co-tenant." Gill v. Fletcher, 74 Ohio St. 295, 305-306 (1906).

This is an extremely high standard to establish since possession by one cotenant is

presumed to be possession by all. Grace at 579, fn. 1, citing Ferenbaugh v. Ferenbaugh,

104 Ohio St. 556, 559 (1922). Suffice it to say, it is a difficult task for one cotenant to

adversely possess property from other cotenants. Hoosier v. Heirs, 4th Dist. No. 14CA846,

2014-Ohio-5810, ¶ 26.

                                         Analysis

      {¶ 13} Appellants initially argue the trial court erred by denying their adverse

possession claim since there was evidence presented at trial indicating appellees knew the

property at issue was to belong to appellants' predecessors. Although not particularly clear,

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appellants imply that because appellees were tangentially aware that a family meeting took

place some 50 years prior that resulted in their predecessors coming into possession of their

own respective parcels of real property through a "swap" of deeds, this proves their

predecessors never intended the property at issue to be shared. However, although the

record indicates that at least one of the appellees had heard that a family meeting took place

in 1966, another testified that he knew "nothing about a meeting that occurred." Moreover,

when asked about whether there was any discussion about the property at issue after that

meeting supposedly took place, one appellee testified that she "had no knowledge of that

until 2000."

       {¶ 14} Regardless, even if appellants' allegations were true, there is no dispute that

the property's chain of title contains a defect. As a result, we fail to see the significance of

appellees' knowledge in regards to any intended ownership of the property as it relates to

appellants' adverse possession claim. Simply stated, regardless of appellees' alleged

knowledge of whether a family meeting took place some 50 years prior, it was appellants who

were saddled with the burden of proof to establish their adverse possession claim, including

proof that they or their predecessors engaged in "overt acts of unequivocal character"

indicating their ownership of the property to the exclusion of appellees. The trial court clearly

agreed with this rationale considering it denied appellants' adverse possession claim.

Therefore, as discussed more fully below, based on the facts and circumstances of this case,

the trial court did not err by finding appellants failed to satisfy the extremely high standard

necessary to establish their adverse possession claim.

       {¶ 15} Appellants next argue the trial court erred by denying their adverse possession

claim when it found neither they nor their predecessors engaged in any "overt acts of

unequivocal character" indicating their ownership of the property to the exclusion of


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appellees. However, while it is true that appellants and their predecessors farmed the

property exclusively for more than 50 years, received rents and profits from the land, as well

as paid the necessary real estate taxes and insurance on the property, just as the trial court

found, this is insufficient to establish an adverse possession claim against appellees.

Although taken from a case that is now nearly 200 years old, it nevertheless holds true that

"a silent possession, accompanied with no act which can amount to an ouster, or give notice

to his co-tenant that his possession is adverse, ought not, we think, to be construed into an

adverse possession." M'Clung v. Ross, 18 U.S. 116, 124 (1820).

       {¶ 16} As noted above, the requirements for establishing an adverse possession claim

are high, especially when the claim is presented against a cotenant. In this case, appellants

provided no evidence that either they or their predecessors did any overt act that could be

considered an assertion of ownership to the exclusion of appellees, a requirement under the

law of this state to bring a successful adverse possession claim against a cotenant. This is

true irrespective of the fact that appellees may have only recently become aware of their

fractional interest in the property. See generally Heirs, 2014-Ohio-5810 at ¶ 29 (overt act to

the exclusion of cotenants still required for adverse possession claim even where those

cotenants were unaware of the property). "[P]ossession of and improvements to the property

are insufficient to meet the extremely high standard." Reel v. Reel, 11th Dist. No. 2016-T-

0038, 2016-Ohio-8116, ¶ 47. Therefore, because we find no error in the trial court's decision

denying appellants' adverse possession claim, the trial court's decision was not against the

manifest weight of the evidence. Accordingly, appellants' two assignments of error are

without merit and overruled.

       {¶ 17} Judgment affirmed.


       HENDRICKSON, P.J., and RINGLAND, J., concur.
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