[Cite as Hardert v. Neumann, 2014-Ohio-1770.]


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

SCOTT HARDERT, ET AL.,                :    Case No. 13CA977
                                      :
     Plaintiffs-Appellees,            :
                                      :    DECISION AND
     v.                               :    JUDGMENT ENTRY
                                      :
JEAN A. NEUMANN,                      :
                                      :    RELEASED: 04/23/14
     Defendant-Appellant.             :
______________________________________________________________________
                            APPEARANCES:

Harry J. Finke, IV, Graydon Head & Ritchey LLP, Cincinnati, Ohio, for appellant.

David E. Grimes, West Union, Ohio, for appellee.
______________________________________________________________________
Harsha, J.

        {¶1}    Jean Neumann appeals the trial court’s judgment in favor of Scott Hardert,

Michael Hardert and Linda Hardert-Owens (the Harderts) on their claim of adverse

possession. Neumann argues that the Harderts did not prove that their use of the

disputed land was open and notorious for the requisite 21 years. Specifically, she

contends that although the Harderts planted crops on the disputed land from 1982 until

1997, from 1998 until 2010 they merely maintained the property by mowing the grass

and cutting weeds, which is legally insufficient to establish the open and notorious

elements of the adverse possession.

        {¶2}    However, there is no bright line rule that holds growing hay and/or mowing

grass is insufficient, when taken in conjunction with the totality of the circumstances, to

establish a party’s use as open and notorious. The trial court did not err as a matter of

law by considering all of the Harderts’ activities on the disputed property. The
Adams App. No. 13CA977                                                                     2

undisputed evidence showed that when the Harderts’ father acquired the second tract of

land he removed two parallel rows of trees and a fence that separated his property from

Neumann’s. He also added topsoil and began to farm his land and the disputed

property as one continuous field. He also enrolled the land in a federal conservation

program. Thus, there was some competent, credible evidence to support the trial

court’s judgment that the Harderts had established the elements of open and notorious

use; its judgment was not against the manifest weight of the evidence.

                                        I. FACTS

       {¶3}   The parties are adjacent land owners in Adams County, Ohio. The

Harderts own a farm with two distinct tracts. The first tract is 102.935 acres and lies

west of Neumann’s land. This tract of land has been in the Hardert family since 1954.

The second tract of land is 19.036 acres and was acquired by the Harderts’ father in

1982. This tract of land is north and east of Neumann’s property. Neumann owns an

adjacent farm, which she acquired in 1958. This tract includes a strip of land 16.5 feet

wide and approximately 857.83 feet long (0.142 acres) that divides the Harderts’ two

parcels. This strip is directly connected to the rest of Neumann’s land at south end and

extends to the north to an oak tree. The oak tree however is approximately 100 feet

from Grange Hall Road and thus Neumann’s strip does not extend all the way to the

roadway. Nevertheless, when the Harderts’ father acquired his second tract of land, it

was subject to an existing outlet or right of way from Neumann’s strip of land to Grange

Hall Road. This 0.142 acre strip of land and outlet or right of way is the disputed

property.
Adams App. No. 13CA977                                                                        3

       {¶4}   When the Harderts acquired the second tract of land, there were two

parallel rows of trees and a fence that were on or near Neumann’s 0.142 acre strip and

separated the two pieces of property. The Harderts’ father removed the trees and

fence, added top soil, and began farming both tracts and the disputed property as one

piece of land. The Hardert family continued farming the land, including the disputed

property, until 1998 when they put the land into the federal Conservation Reserve

Program (CRP). From 1998 through 2010, the land was taken out of production and

converted into a “grass field.” The Harderts inherited the land from their father upon his

death in 2006.

       {¶5}   In 2010 after Neumann made plans to fence in the disputed property and

build a road, the Harderts filed a complaint asserting claims of trespass and adverse

possession of Neumann’s 0.142 acre strip of land. Neumann filed counterclaims of

trespass, interference with an easement, a declaration that she was entitled to an

easement by necessity and adverse possession, along with several affirmative

defenses. Specifically she alleged the Harderts had destroyed the roadbed, trees and

fence on her property and planted crops, thereby denying her use of her property and

the easement.

       {¶6}   Following a bench trial, the trial court entered judgment: 1.) for the

Harderts on Neumann’s claim for adverse possession of the outlet or right way on their

second plot from the oak tree to Grange Hill Road and permanently enjoined her from

trespassing on this portion of the Harderts’ property; 2.) for the Harderts on their claim

of adverse possession of the strip of land from the oak tree to the tree line to the south;

3.) for the Harderts on Neumann’s claim of easement by necessity; and 4.) denying both
Adams App. No. 13CA977                                                                     4

parties’ claims for adverse possession of the strip of land in the wooded area. This

appeal followed.

                             II. ASSIGNMENTS OF ERROR

       {¶7}   Neumann raises two assignments of error for our review:

       1. THE TRIAL COURT ERRED IN ENTERING JUDGMENT IN FAVOR
       OF APPELLEES ON THEIR ADVERSE-POSSESSION CLAIM WHEN,
       AS A MATTER OF LAW, THE EVIDENCE BEFORE THE COURT
       FAILED TO SHOW THAT APPELLEES HAD OPEN, NOTORIOUS,
       CONTINUOUS, AND ADVERSE USE OF THE PROPERTY IN
       QUESTION FOR A PERIOD OF 21 YEARS.

       2. THE TRIAL COURT ERRED IN ENTERING JUDGMENT IN FAVOR
       OF APPELLEES ON THEIR ADVERSE POSSESSION CLAIM WHEN
       THAT JUDGMENT WAS AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE.

                                 III. LAW AND ANALYSIS

                                  A. Standard of Review

       {¶8}   Our review of an adverse possession claim depends on whether a party is

challenging a trial court’s evidentiary determination or legal conclusion. Dean v. Cox,

4th Dist. Lawrence No. 11CA10, 2012-Ohio-782, ¶ 20. Without deference to the court’s

determination, we conduct a de novo review of a party’s challenges to the trial court’s

choice or application of law. Id. Conversely, we apply a deferential review to a party’s

claims that the trial court’s conclusions are against the manifest weight of the evidence.

Id. Because we construe Neumann’s first assignment of error as challenging the trial

court’s application of law, we conduct a de novo review.

                           B. Elements of Adverse Possession

       {¶9}   Under the doctrine of adverse possession, a plaintiff can acquire legal title

to another’s real property if the plaintiff proves exclusive possession that is open,
Adams App. No. 13CA977                                                                      5

notorious, continuous, and adverse for 21 years. Houck v. Bd. of Park Commrs. of the

Huron Cty. Park Dist., 116 Ohio St.3d 148, 2007-Ohio-5586, 876 N.E.2d 1210, ¶ 10.

The failure to prove any of these elements results in failure to acquire title by adverse

possession. Grace v. Koch, 81 Ohio St.3d 577, 579, 692 N.E.2d 1009 (1998). Because

a successful claim of adverse possession results in the legal titleholder forfeiting

ownership without compensation, the doctrine is disfavored and the elements of

adverse possession are stringent. Id. at 580.

                                 C. Open & Notorious Use

       {¶10} Neumann argues that the Harderts did not prove that their use of the

disputed land was open and notorious for the requisite 21 years. Specifically, she

contends that although the Harderts planted crops on the disputed land from 1982 until

1997, from 1998 until 2010 they merely maintained the property by growing hay,

mowing the grass and cutting weeds, which are legally insufficient to establish the open

and notorious elements of adverse possession.

       {¶11} The Harderts agree they stopped harvesting crops after 1997 because

their father enrolled the land into the CRP, but counter that prior to that time they

performed significant alterations to the disputed land that changed its character,

including removing two parallel rows of trees and fence that bordered the disputed

property, adding topsoil, removing the dirt road and making the land into one continuous

field. Therefore, they argue that the trial court properly found that they proved exclusive

possession that was open and notorious for 21 years.
Adams App. No. 13CA977                                                                    6

       {¶12} The trial court’s entry shows that it considered whether the Harderts had

proven each element of adverse possession, including open and notorious use. In its

entry the court stated:

               The first element is open. Possession is open if the use is without
       concealment. Here the evidence is that Jack Hardert, within a year of
       buying [the second tract], removed both rows of trees, filled in the low
       spots with top soil, combined both fields and commenced farming the two
       fields as one. This occurred in an area that is close to and visible to traffic
       on Grange Hall Road. The Court finds that Plaintiffs have proven the first
       element of open regarding their adverse possession claim.

              The second element of an adverse possession claim is notorious.
       The use must be known to some who might reasonably be expected to
       communicate his knowledge to the owner or so patent that the true owner
       of the property could not be deceived as to the property’s use. The
       removal of two tree lines, filling holes with top soil, removing a lane and
       combining two fields is not a small project that would go unnoticed by
       someone driving by on Grange Hall Road. Furthermore, the Harderts
       commenced farming the northern end of the [disputed property] belonging
       to the Neumanns for period exceeding twenty one years. This court finds
       that such events are so patent that the true owner (the Neumanns) could
       not be deceived as to the use of the property by someone other than the
       owner. The court finds that the Plaintiffs have proven, by clear and
       convincing evidence, that the possession was notorious.

       {¶13} “‘Open’ and ‘notorious’ use requires that the actual use be of a character

that is capable of giving the legal owner notice.” Dunn v. Ransom, 4th Dist. Pike

No.10CA806, 2011-Ohio-4253, ¶ 78. For possession to be considered open, the

property must be used “‘without attempted concealment.’” Id., quoting Hindall v.

Martinez, 69 Ohio App.3d 580, 584, 591 N.E.2d 308 (3rd Dist.1990). To be notorious

the use must be “‘known to some who might reasonably be expected to communicate

their knowledge to the owner if he maintained a reasonable degree of supervision.’”

Dunn at ¶ 78, quoting Hindall at 584. “In other words, the use of the property must be
Adams App. No. 13CA977                                                                      7

so patent that the true owner of the property could not be deceived as to the property’s

use.” Hindall at 583.

       {¶14} We agree that by themselves incidental “activities conducted merely to

maintain the land, such as mowing, are generally not sufficient to establish adverse

possession.” Stover v. Templeton, 4th Dist. Lawrence No. 95CA32, 1996 WL 112683,

*2 (Mar. 11, 1996). However, each claim of adverse possession must be decided upon

its particular facts and contrary to Neumann’s arguments, there is no “bright line” rule

regarding such activities as cutting hay and mowing grass. Thompson v. Hayslip, 74

Ohio App.3d 829, 832-833, 600 N.E.2d 756 (4th Dist.1991). This “allows the court to

consider the unique nature of the real property in question,” which “is necessary since a

use which notifies an owner in one locale that another is asserting an adverse claim to

his land, may not be a sufficient use to so notify an owner in another area.” Id. at 833.

And although mowing and incidental maintenance by themselves may not always be

“sufficiently open and notorious to establish adverse possession, such activity is

‘relevant evidence of open and notorious use, and when combined with other activities

under the proper circumstances it may help to establish adverse possession.’” Franklin

v. Massillon Homes II, L.L.C., 184 Ohio App.3d 455, 2009-Ohio-5487, 921 N.E.2d 314,

¶ 25 (5th Dist.), quoting Kaufman v. Geisken Ents., Ltd., 3rd Dist. Putnam No. 12-02-04,

2003-Ohio-1027, ¶ 31.

       {¶15} Moreover, enrollment of land in the CRP is not akin to mere incidental

mowing of a neighbor’s boundary. Subject to non-relevant exceptions, in order to be

eligible for CRP enrollment a farmer must have owned or operated the land for at least

12 months prior to the previous sign-up period. The program is administered by the
Adams App. No. 13CA977                                                                      8

federal Farm Service Agency and requires applicants to competitively bid their land in

order to receive a long-term contract that pays the farmer to remove land from

agricultural production in return for a yearly rental payment. After removing the land

from production farmers are required to plant and maintain species such as warm

weather grasses that improve the quality of the land and surrounding water, prevent soil

erosion, and increase wildlife habitat. See generally, Farm Service Agency,

Conservation Programs,

http://www.fsa.usda.gov/FSA/webapp?area=home&subject=copr&topic=crp (accessed

Mar. 18, 2014).

       {¶16} Thus, the trial court did not err as a matter of law by considering the

Harderts’ specific changes to the land, including enrollment in the CRP and associated

mowing, as indicative of adverse possession. We overrule Neumann’s first assignment

of error. See Thompson at 833.

                             D. Manifest Weight of the Evidence

       {¶17} Next we turn to Neumann’s second assignment of error and consider

whether the trial court’s conclusion that the Harderts had obtained title to the disputed

property is against the manifest weight of the evidence. Under this assignment of error,

she again argues that the Harderts did not establish the open and notorious elements

for the required 21 years because after 1997 they only maintained the disputed property

by mowing the grass field.

       {¶18} We will not reverse a trial court’s judgment as against the manifest weight

“if it is supported by some competent, credible evidence.” Nolen v. Rase, 4th Dist.

Scioto No. 13CA3536, 2013-Ohio-5680, ¶ 9, citing Eastley v. Volkman, 132 Ohio St.3d
Adams App. No. 13CA977                                                                        9

328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 14; Shemo v. Mayfield Hts., 88 Ohio St.3d 7,

10, 722 N.E.2d 1018 (2000); C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279,

376 N.E.2d 578, at the syllabus (1978). “This standard of review is highly deferential

and even the existence of ‘some’ evidence is sufficient to support a court’s judgment

and to prevent a reversal.” Nolen at ¶ 9.

       {¶19} Here, the undisputed evidence showed that the Harderts’ father acquired

the second tract of land in 1982, after which he removed two rows of parallel trees and

a fence that separated his land from the disputed land. He also added topsoil, filled in

low spots in the land, removed a road that occasionally intersected with the disputed

property and began farming his land and the disputed property as one. As the trial court

stated “this [was] not a small project that would [have] gone unnoticed.”

       {¶20} The Harderts also testified that their family and the Neumanns were not on

good terms and they had no knowledge that the Neumanns had ever given their father

permission to remove the trees. Neumann also testified that she did not believe her

husband would have given the Harderts permission to cross over the disputed land

when planting crops. Moreover, Neumann herself admitted that the Harderts “chang[ed]

the look of the whole area” by plowing the road and removing the trees and fence.

These changes to the land lasted until 2010, and were capable of giving Neumann, the

legal owner, notice that someone was adversely possessing her land. The Harderts

made no attempt to conceal their use, and in fact believed they owned the disputed

property until they initiated this action. Finally, we already found that enrollment in the

CRP and its associated maintenance activities can be the type of activities that were
Adams App. No. 13CA977                                                                     10

consistent with notice to the owner that another is asserting an adverse interest in the

land.

                                   IV. CONCLUSION

        {¶21} There was some competent, credible evidence to support the trial court’s

finding that the Harderts’ use of the disputed property was open and notorious for the

required 21 year period necessary to establish adverse possession. Accordingly, we

cannot say its judgment was against the manifest weight of the evidence. We overrule

both of Neumann’s assignments of error and affirm the trial court’s judgment.

                                                            JUDGMENT AFFIRMED.
Adams App. No. 13CA977                                                                   11

                                   JUDGMENT ENTRY

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

         The Court finds there were reasonable grounds for this appeal.

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

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

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

Abele, P.J. & Hoover, J.: Concur in Judgment and Opinion.



                                   For the Court




                                   BY: ________________________________
                                       William H. Harsha, Judge




                                 NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
