[Cite as McKenna v. Boyce, 2012-Ohio-5163.]


                                      COURT OF APPEALS
                                  MUSKINGUM COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


                                              :   JUDGES:
KEVIN H. McKENNA AND LINDA S.                 :   W. Scott Gwin, P.J.
(MADDEN) McKENNA                              :   William B. Hoffman, J.
                                              :   Julie A. Edwards, J.
                    Plaintiffs-Appellants     :
                                              :   Case No. CT 2012-0014
-vs-                                          :
                                              :
                                              :   OPINION
JARROD D. BOYCE AND MELISSA
M. BOYCE, et al.,

                 Defendants-Appellees




CHARACTER OF PROCEEDING:                           Civil Appeal from Muskingum County
                                                   Court of Common Pleas Case No.
                                                   CC2011-0305

JUDGMENT:                                          Affirmed

DATE OF JUDGMENT ENTRY:                            October 30, 2012

APPEARANCES:

For Plaintiffs-Appellants                          For Defendants-Appellees

PETER N. CULTICE                                   JAN ALLEN BAUGHMAN
Cultice Law Firm                                   Allen, Baughman & Martin
58 N. Fifth Street                                 58 N. 5th Street, Heritage Suites
Zanesville, Ohio 43701                             Suite 102
                                                   Zanesville, Ohio 43701
[Cite as McKenna v. Boyce, 2012-Ohio-5163.]


Edwards, J.

        {¶1}    Plaintiffs-appellants, Kevin McKenna and Linda (Madden) McKenna,

appeal from the February 1, 2012, Judgment Entry of the Muskingum County Court of

Common Pleas granting the Motion for Summary Judgment filed by defendants-

appellees Jarrod and Melissa Boyce while denying the Motion for Summary Judgment

filed by plaintiff-appellants.

                               STATEMENT OF THE FACTS AND CASE

        {¶2}    Appellants are the owners of real property located at 4885 Adamsville

Road in Zanesville, Ohio. Appellants acquired title to such property in 1980. Appellees

are the owners of real property located at 4855 Adamsville Road in Zanesville, Ohio.

Appellees acquired title to the property in August of 2008.

        {¶3}    The chain of title to appellees’ property is as follows:

        {¶4}    Warranty deed recorded August 11, 1976 transferring property from Allan

W. Spencer and Mary A. Spencer to Cecil B. Bennett and Emma Bennett.

        {¶5}    Warranty deed transferring property on September 22, 2000 from the

Bennetts to Larry and Diane Walls.

        {¶6}    Warranty deed transferring property on June 13, 2003 from Larry Walls to

James Harris and Lisa Harris.

        {¶7}    Deed on Decree or Order of Sale transferring property on July 5, 2007,

from Muskingum County Sheriff to U.S. National Bank Association as Trustee for Credit

Suisse First Boston.

        {¶8}    Special Warranty deed recorded on October 30, 2007 transferring title

from U.S. National Bank Association, as Trustee, to Danny L. and Kathryn L Boyce.
Muskingum County App. Case No. CT 2012-0014                                               3


       {¶9}   Warranty deed recorded on August 29, 2008 transferring property from

Danny L. and Kathryn L. Boyce to appellees.

       {¶10} In turn, the chain of title to appellants’ property is as follows:

       {¶11} Warranty deed recorded on June 18, 1957 transferring title from Herbert

Reed and Adda Reed to Earl Schenk.

       {¶12} Warranty deed recorded on June 15, 1964 transferring title from Earl and

Dorothy Schenk to Robert and Caterine Ferguson.

       {¶13} Warranty deed recorded on September 3, 1980 transferring title from

Robert and Caterine Ferguson to appellants.

       {¶14} In 2010, appellees, who were planning on erecting a fence around their

property, hired professional surveyor Peter Dinan to conduct a survey of their property

after an issue arose over the property line. Dinan marked appellees’ property lines,

including the northern property line which is the dividing line between appellants’

property and appellees’ property. Dinan determined that the property line between the

two properties was the same line as described in previous deeds dating back to 1957.

The property had been originally surveyed in 1957 and also in 2003. In his affidavit,

Dinan stated, in relevant part, as follows:

       {¶15} “5. On September 7, 2010, I went to the Boyce property to perform the

survey.

       {¶16} “6. As is my usual custom, I first drove past the property to see what I

could observe from the road From the road, I noticed that one corner (the front northern

side of the Boyce property) was marked by a 1” x 2” x 4’ lath (tomato stake) visible from

the road. I observed a line of pine trees. I also noticed a distinct line indicating how the
Muskingum County App. Case No. CT 2012-0014                                              4


grass had been mowed by the property owners to the north (the McKennas), from a

telephone pole at the front of the property to a line of pine trees. I saw no evidence of a

mow line from the McKenna side that extended past (or south of) the pine trees.

        {¶17} “7. I then pulled into the Boyce property and started my survey work. I

went to the lath that I had observed from the road and established the first point. At the

location of that lath was an axle placed by surveyor A.T. Connor in 1957. The axle was

somewhat covered by sod, but was easy to locate due to the 4 foot lath with a pink

ribbon at its top. Additionally, there was no vegetation or other thing obstructing the

visibility of the lath.

        {¶18} “8. From the starting point, I continued counter clockwise around the

property. I took the deed distances and went around the whole circumference of the

Boyce property. I located steel pins and located all 4 axles that had been in place since

being set by surveyor A.T. Connor in 1957. The axle at the northwest corner (between

the McKenna and Boyce properties and opposite the first axle I located at the northeast

corner) was well-marked above ground and had a plastic bucket around it.

        {¶19} “9. I had no trouble establishing the property lines, and set approximately

four 4 foot long 1” x 2” lath along the property line between the Boyce and McKenna

properties.

        {¶20} “10. The property line that I located and established for Jarrod Boyce

between his and the McKenna property is absolutely the same line as described in

previous deeds dating back to the original split of the property in 1957.

        {¶21} “11. The survey monuments as personally located by me are the same

survey monuments as described in previous deeds and as were present and
Muskingum County App. Case No. CT 2012-0014                                              5


established by surveyor A.T. Connor in 1957 (whose name and monuments are

described as well in the current deed of record for Jarrod Boyce and Melissa Boyce).

         {¶22} “12. A clearly visible line of pine trees stands between the Boyce and

McKenna residences. With respect to the pine trees and the legally described property

line dividing the Boyce and McKenna properties, the following is true:

         {¶23} “a. from the axle at the northeast corner (nearest Adamsville Road) to the

first pine tree, the first pine tree stands upon the deed line (the deed lines goes through

the tree);

         {¶24} “b. the remainder of the pine trees, to the back of the property, stand upon

the Boyce property (the deed line is north of the trees; the trees are south of the deed

line);

         {¶25} “c. at the back of the property, to the axle at the northwest corner, there

are pine trees again upon the deed line.”

         {¶26} The trees that Dinan referred to were planted in the mid 1960’s as a

windbreak by Wayne Burr, Jr. and his father, who resided at 4885 Adamsville Road,

which is now appellant’s property. Burr and his wife held a brief land contract. The row

of trees runs the length of the property.


         {¶27} In the Spring of 1981, Cecil Bennett allegedly had indicated to appellants

that an east/westerly line of shrubs that was situated approximately ten (10) feet south

of the southern tree line designated the properly line between the two subject

properties. Appellants asserted that they owned, through adverse possession, the .205

acres located between their property and appellees’ property. The strip extended at its
Muskingum County App. Case No. CT 2012-0014                                           6


widest point 18.9 feet beyond the record property line and tree line onto appellees’

property.

      {¶28} On May 27, 2011, appellants filed a “Complaint to Quiet Title, Adverse

Possession, Trespass and Damages” against appellees and against Danny and Kathryn

Boyce. The case was a refiled case. The previous case had been voluntarily dismissed

by appellants after the trial court denied the parties’ respective Motions for Summary

Judgment.    Appellant specifically, in their complaint, alleged that they had openly

possessed, maintained and treated as their own all of the property that was located

north of the shrub line, which consists of approximately .205 acres, and that appellees

had actively trespassed on and damaged and destroyed appellants’ property.

Appellees filed an answer and counterclaim on June 28, 2011. Appellees, in their

counterclaim, asked that if they were evicted or turned out of possession of their land,

they be awarded compensation for the value of improvements that they had made to the

same prior to the commencement of appellants’ suit and that they be granted a

prescriptive easement for their septic system.

      {¶29} On August 30, 2011, appellants file an amended complaint to add the

mortgage holder of appellees property.

      {¶30} On January 6, 2012, appellees filed a Motion for Reconsideration, asking

that the trial court reconsider its denial of the Motion for Summary Judgment that they

had filed in the previous case. On the same date, appellees filed a Motion for Summary

Judgment. On January 24, 2012, appellants filed a Motion for Summary Judgment and

a response to appellees’ motion. Pursuant to a Judgment Entry filed on February 1,

2012, the trial court granted appellees’ Motion for Reconsideration and their Motion for
Muskingum County App. Case No. CT 2012-0014                                                7


Summary Judgment while denying the Motion for Summary Judgment filed by

appellants.

       {¶31} Appellants now raise the following assignment of error on appeal:

       {¶32} “THE MUSKINGUM COUNTY, OHIO, COURT OF COMMON PLEAS

(TRIAL COURT) ERRED AS A MATTER OF LAW IN ITS DECISION GRANTING

SUMMARY JUDGMENT TO DEFENDANTS-APPELLEES AND IN NOT GRANTING

SUMMARY       JUDGMENT        TO    PLAINTIFFS-APPELLANTS            IN   FINDING     THAT

DEFENDANTS-APPELLEES ARE THE LEGAL AND RIGHTFUL OWNERS OF .205

ACRES OF GROUND LOCATED BETWEEN THE HOMES OF PLAINTIFFS-

APPELLANTS AND DEFENDANTS-APPELLEES.”

                                                 I

       {¶33} Appellants, in their sole assignment of error, argue that the trial court erred

in granting summary judgment in favor of appellees while denying appellants’ Motion for

Summary Judgment on appellants’ adverse possession claim. We disagree.

       {¶34} Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212, (1987). As

such, we must refer to Civ.R. 56(C) which provides, in pertinent part: “Summary

judgment shall be rendered forthwith if the pleading, depositions, answers to

interrogatories, written admissions, affidavits, transcripts of evidence in the pending

case and written stipulations of fact, if any, timely filed in the action, show that there is

no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law. * * * A summary judgment shall not be rendered unless it
Muskingum County App. Case No. CT 2012-0014                                               8


appears from such evidence or stipulation and only from the evidence or stipulation, that

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

party against whom the motion for summary judgment is made, such party being

entitled to have the evidence or stipulation construed most strongly in the party's favor.”

       {¶35} Pursuant to the above rule, a trial court may not enter summary judgment

if it appears a material fact is genuinely disputed. Vahila v. Hall, 77 Ohio St.3d 421, 429,

1997–Ohio–259, 674 N.E.2d 1164, citing Dresher v. Burt, 75 Ohio St.3d 280, 1996-

Ohio-107, 662 N.E.2d 264.

       {¶36} “To acquire title by adverse possession, a party 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, 692

N.E.2d 1009, syllabus (1981).

       {¶37} In order for possession to be considered open, “the use of the disputed

property must be without attempted concealment. * * * To be notorious, a use must be

known to some who might reasonably be expected to communicate their knowledge to

the owner * * * [or] so patent that the true owner of the property could not be deceived

as to the property's use.” Kaufman v. Geisken Enterprises, Ltd., 3rd Dist. No. 12-02-04,

2003-Ohio-1027, ¶ 31.

       {¶38} In order for possession to be considered “hostile”, the Ohio Supreme

Court has stated that any use of the land inconsistent with the rights of the titleholder is

adverse or hostile. Kimball v. Anderson, 125 Ohio St. 241, 244, 181 N.E. 17 (1932).

       {¶39} In order for use to be considered continuous and exclusive, “‘[u]se of the

property does not have to be exclusive of all individuals. Rather, it must be exclusive of
Muskingum County App. Case No. CT 2012-0014                                              9


the true owner entering onto the land and asserting his right to possession. It must also

be exclusive of third persons entering the land under their own claim of title, or claiming

to have permission to be on the premises from the true title holder. If the title holder

enters onto the land without asserting, by word or act, any right of ownership or

possession, his presence on the land does not amount to an actual possession, and the

possession may properly be attributed to the party who is on the land exercising or

claiming exclusive control thereof. It is not necessary that all persons be excluded from

entering upon and using the premises.’” Kaufman, supra, at ¶ 39, quoting Walls v.

Billingsley, 3rd Dist. No. 1-92-11, 1992 WL 198131 (Aug. 18, 1992), citing 4 Tiffany,

Real Property (1975) 736, Section 1141.

      {¶40} In order to establish the necessary twenty-one year period, a party may

add to their own term of adverse use any period of adverse use by prior succeeding

owners in privity with one another. Zipf v. Dalgarn, 114 Ohio St. 291, 151 N.E. 174,

syllabus (1926).

       {¶41} Clear and convincing evidence is that proof which establishes in the minds

of the trier of fact a firm conviction as to the allegations sought to be proved. Cross v.

Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954). Where a party must prove a

claim by clear and convincing evidence, a reviewing court must examine the record to

determine whether the trier of fact had sufficient evidence before it to satisfy the

requisite degree of proof. State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54

(1990).

       {¶42} Failure of proof on any of the elements of adverse possession results in

failure to acquire title by adverse possession. Grace, supra at 579. “A successful
Muskingum County App. Case No. CT 2012-0014                                               10


adverse possession action results in a legal titleholder forfeiting ownership to an

adverse holder without compensation. Such a doctrine should be disfavored, and that is

why the elements of adverse possession are stringent.” Id., at 580, citing 10 Thompson

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

       {¶43} It is the visible and adverse possession with intent to possess which

constitutes the adverse character of the occupancy. Grace, 81 Ohio St.3d at 581. In

other words, “‘there must have been an intention on the part of the person in possession

to claim title, so manifested by his declarations or his acts, that a failure of the owner to

prosecute within the time limited, raises a presumption of an extinguishment or a

surrender of his claim.’ (Emphasis sic.)” Grace, 81 Ohio St.3d at 581, quoting Lane v.

Kennedy, 13 Ohio St. 42, 47, 1861 WL 90 (1861). Courts do not require the title owner

of the property to receive actual notice of adverse possession as long as that owner is

charged with knowledge of adverse use when one enters into open and notorious

possession of the land under a claim of right. Vanasdal v. Brinker, 27 Ohio App.3d 298,

299, 500 N.E.2d 876 (9th Dist. 1985). The adverse occupancy of the land must be

sufficient to notify the real owner of the extent of the adverse claim. Humphries v.

Huffman, 33 Ohio St. 395, 404, 1878 WL 6 (1878).

       {¶44} Each case of adverse possession rests on its own peculiar facts. Bullion v.

Gahm, 164 Ohio App.3d 344, 349, 2005-Ohio-5966, 842 N.E.2d 540, citing Oeltjen v.

Akron Associated Invest. Co., 106 Ohio App. 128, 130, 153 N.E.2d 715 (9th Dist. 1958).

       {¶45} At issue in the case sub judice is whether or not appellants’ use of the

land was sufficient to establish adverse possession. Mere maintenance of land, such as

mowing grass, cutting weeds, planting a few seedlings, and minor landscaping, is
Muskingum County App. Case No. CT 2012-0014                                                  11

generally not sufficient to constitute adverse possession. See Montieth v. Twin Falls

United Methodist Church, 68 Ohio App.2d 219, 428 N.E.2d 870 (9th Dist. 1980);

Robinson v. Armstrong, 5th Dist. No. 03CA12, 2004-Ohio-1463.1 In Grace, supra, the

Ohio Supreme Court found that mowing grass, parking cars, recreational use, and

placement of firewood, oil drums, and a swing set on a strip of land presented a close

case. The Court, in Grace, concluded, however, that the record did not contain clear

and convincing evidence that the Graces, the title owners, were on notice that their

dominions had been invaded and thus that adverse possession had not been

established.

       {¶46} In Murphy v. Cromwell, 5th Dist. No. CT2004-0003, 2004-Ohio-6279, this

Court held that the appellants had failed to prove, by clear and convincing evidence,

that their use of the property was sufficiently adverse. The appellants, in Murphy, had

cleaned up branches, mowed and raked the property, walked the dog across the

property and fertilized the same.

       {¶47} In the case sub judice, appellants alleged that their possession of the .205

acres at issue commenced in the spring of 1981 when Cecil Bennett allegedly told them

where the property line between their property and appellees’ property was located.

Both appellants, in their affidavits attached to their January 24, 2012 Motion for

Summary Judgment, indicated that since approximately the Spring of 1981, they had

“…openly and exclusively maintained property which lies north of the mutually

respected property boundary specified by a east/west line of shrubs approximately eight

to ten feet south of approximately the entire length of the line of pine trees between the


1                           th
 See also, Nixon v. Parker, 5 Dist. No. 04 CA 84, 2005-Ohio-2375. In Nixon, this Court held that
mowing and flower gardening were insufficient to constitute adverse possession.
Muskingum County App. Case No. CT 2012-0014                                                 12


properties knows as 4855 Adamsville Road and known as 4885 Adamsville Road as our

own property, which includes open and exclusive exercise of dominion over the

notorious ‘landmark’ line of pine trees as property of 4885 Adamsville Road that have

existed approximately eight to ten feet north of that same line of shrubs.”

         {¶48} During her deposition, appellant Linda (Madden) McKenna testified as

follows when asked how she had laid claim to the property since 1981:

         {¶49} “A. I maintained it. I mowed. I picked up branches, and those pine trees

are - - you know, they’re 45 years old, so they’re big. When the branches come down,

you’re talking 10, 12 feet of branches I would pull over on the side; and my dad would

come over, and we’d load them up and carry them out.

         {¶50} “Q. Okay. Did you do anything else to evidence that you believed you

owned that area, anything other than the mowing or the picking up of the branches?

         {¶51} “A. We would rake - - oh. When we first - - like a few years after we were

there, the tree roots – dirt needed filled in, so we filled that in to try to make it level and

nice when we was mowing on it.

         {¶52} “As the years went by and the trees have aged, the roots are showing

again, which is so big we can’t keep up with. We’d have to bring in a lot of topsoil to fill

it in.

         {¶53} “Q. Okay. Anything other than the picking up of the branches or the roots

or the mowing?

         {¶54} “A. We would trim, I mean, you know, trim around, and we would - - any

branches that would come down that needed cut off - - you know what I mean? - - that
Muskingum County App. Case No. CT 2012-0014                                                13


wouldn’t break clear off, we would cut them.”       Deposition of appellant Linda (Madden)

McKenna at 11-12.

       {¶55} When asked what other uses she made of the disputed property, she

testified that, other than maintaining the same, “[n]othing. I mean, it was just like the rest

of the yard. I mean, it was just part of the property.” Id at. 13.

       {¶56} In turn, the following testimony was adduced when appellant Kevin

McKenna was asked how he laid claim to the disputed area from 1981 on:

       {¶57} “Q. Did you do anything to make it yours?

       {¶58} “A. Treated it as every other square foot of property we own.

       {¶59} “Q. Okay. And how is that then?

       {¶60} “A. Whatever it needed: Mowing grass, trimming limbs, removing limbs,

burying roots, anything and everything that we’ve done to any part of our property that

needs maintenance.

       {¶61} “Q. Was there anything specific other than mowing, trimming, removing

limbs, or burying roots in this particular disputed area of the property?

       {¶62} “A. I don’t believe so. I think that sums up how we maintained all of our

property.

       {¶63} “Q. Did you ever place any fence along that disputed area?

       {¶64} “A. No.

       {¶65} “Q. Did you ever place any buildings upon that disputed area?

       {¶66} “A. No.
Muskingum County App. Case No. CT 2012-0014                                            14


      {¶67} “Q. After the conversation with Mr. Bennett and you commenced mowing,

removing limbs, burying roots, is that something you would have done if you had known

Mr. Bennett was mistaken about the property line?

      {¶68} “A. No.” Deposition of Kevin McKenna at 24-25.

      {¶69} Kevin McKenna further testified that he never did anything to close in the

area, did not erect a fence in the area and did not erect any buildings. Moreover, as

noted by appellees, appellants admitted that they never moved, planted anything or

maintained the land beyond the tree line, which is part of the disputed area. Appellant

Linda (Madden) McKenna, during her deposition testified that such area was allowed to

“grow up.” Deposition of appellant Linda (Madden) McKenna at 57.

      {¶70} Based on the foregoing, we find that the trial court correctly held that

appellant failed to prove, by clear and convincing evidence, that their use of the subject

property was sufficiently adverse and that, therefore, the trial court did not err in

granting appellees’ Motion for Summary Judgment while denying that filed by

appellants. We find that appellants’ use of the disputed property, as a matter of law,

was insufficient to establish adverse possession.
Muskingum County App. Case No. CT 2012-0014                                   15


       {¶71} Appellants’ sole assignment of error is, therefore, overruled.

       {¶72} Accordingly, the judgment of the Muskingum County Court of Common

Pleas is affirmed.




By: Edwards, J.

Gwin, P.J. and

Hoffman, J. concur

                                                   ______________________________



                                                   ______________________________



                                                   ______________________________

                                                                JUDGES

JAE/d0817
[Cite as McKenna v. Boyce, 2012-Ohio-5163.]


            IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT


KEVIN H. McKENNA AND                           :
LINDA S. (MADDEN) McKENNA                      :
                                               :
                       Plaintiffs-Appellants   :
                                               :
                                               :
-vs-                                           :       JUDGMENT ENTRY
                                               :
JARROD D. BOYCE AND                            :
MELISSA M. BOYCE, et al.,                      :
                                               :
                     Defendants-Appellees      :       CASE NO. CT2012-0014




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Muskingum County Court of Common Pleas is affirmed.             Costs

assessed to appellants.




                                                   _________________________________


                                                   _________________________________


                                                   _________________________________

                                                                JUDGES
