Demmitt v. McMillan
| Decision Date | 09 April 1984 |
| Citation | 16 Ohio App.3d 138,474 N.E.2d 1212,16 OBR 146 |
| Parties | , 16 O.B.R. 146 DEMMITT et al., Appellees, v. McMILLAN et al., Appellants. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. In order to prevail on a claim for adverse possession, the claimant must establish that his possession was open, notorious, exclusive, adverse, hostile and continuous for more than twenty-one years. Such elements must usually be established by a preponderance of the evidence.
2. The existence of a family relationship between the parties imposes upon the claimant the burden of proving his claim of adverse possession by clear and convincing evidence.
Lagos, Lagos & Baader and James H. Lagos, Springfield, for appellees.
Schlafman & Fodal Co., L.P.A., and Joe R. Fodal, Fairborn, for appellants.
This appeal arises from a judgment of the Clark County Common Pleas Court in favor of the plaintiffs, Billie L. and Anita E. Demmitt, declaring them as sole owners of certain real property described in their complaint. The court further granted injunctive relief in the plaintiffs' favor restraining the defendants, Charles and Valerie McMillan, from coming onto and causing damage to the disputed property. The plaintiffs and defendants are adjoining owners of two plots of land in Clark County, Ohio. The McMillans acquired their property by deed from the executor of Ray L. McClellan's estate on or about May 18, 1981. The Demmitts acquired their parcel of land by purchase from Karl Schaffner on or about July 1, 1975. Schaffner acquired the property via his parents shortly after his father, Roy Schaffner, passed away in 1967.
The disputed parcel is dimensionally rectangular in shape and is situated between the parties' respective properties. It runs twenty-five feet along the south side at New Carlisle-Springfield Pike (east-west), 411.32 feet (north-south) along the boundary between the adjoining properties, and 54.3 feet along the north side (east-west), which property consists of somewhere between one-fourth and one-third of an acre.
The record reveals that the two properties were at one time owned by Roy Schaffner, father of both Kenneth and Karl Schaffner. The senior Schaffner deeded the west property to his son Kenneth sometime around 1935-1936. This property is presently owned by Charles and Valerie McMillan. Roy Schaffner retained ownership of the adjoining tract until his death in 1967. This tract of land descended to Karl Schaffner who later sold it to Billie and Anita Demmitt.
Kenneth Schaffner resided on the tract of land conveyed to him by his father with his wife, Ruth, until his death sometime around 1946. Ruth Schaffner then became owner of the west tract of land and continued to reside next to her in-laws, Roy and Nellie Schaffner. In the late 1940's Ruth married one Howard Craig. After the marriage she conveyed a one-half interest in the property to Howard. The Craigs resided on the property until 1957. They then leased the premises until it was sold in 1963.
On the eastern portion of what was once the Craig's property there is a swale or ditch. In 1950 Howard Craig decided to put up a fence on their land in order to keep his sheep from going down into the ditch. He stated in a stipulated deposition that he asked Roy Schaffner if it would be all right to do so. Craig then dug the fence posts and Schaffner either stretched the barbed wire fence, or at least assisted Craig in doing so. This fence stretched along the edge of the ditch nearly the entire length north and south of the adjoining lands. The fence was placed to the west of the actual boundary line leaving approximately one-third of an acre of the Craig's property to the east unenclosed. It is this property which is the subject matter of the present dispute. Craig testified that when he put up the fence he was fully aware that his property extended beyond the fence line. He stated that he measured his actual boundary at that time.
The record reveals testimony to the effect that in the late 1930's or early 1940's Schaffner planted walnut trees on the disputed property. He also used this land prior to 1950 for the grazing of his hogs. After the fence went up in 1950 Schaffner continued to use the disputed parcel for growing and harvesting alfalfa and hay. He also continued to graze his hogs in this area. In 1959 the Schaffners rebuilt their house and installed a leach field that extended the tile basin into the disputed land. Roy Schaffner continued using this land until his death in 1967. Craig stated he made no use of this land since 1950 other than to occasionally mow the weeds and thistles along the fence line.
In 1963 the Craigs sold their property including the disputed portion to Ray and Helen McClellan. Roy Schaffner continued to use the disputed property up to the fence line. The McClellans never made an objection to this use even though their deed apparently indicated that they in fact owned the land beyond the fence. After acquiring title to the adjoining property in 1967-1968, Karl Schaffner continued to use the disputed land. He testified he performed some rock work in the ditch area in 1969 to prevent erosion.
In 1972 Karl Schaffner sold his property to Billie and Anita Demmitt. At the time they purchased the land they believed they owned up to the fence line and continued using this property as their own until 1981. At that time the McClellans conveyed their interest in the adjoining tract to Charles and Valerie McMillan. The McMillans originally thought that they were only acquiring the land up to the fence, but soon after acquiring title had a survey conducted that revealed their property extended beyond that.
The McMillans then attempted to remove the fence and claim ownership of the land. This action prompted the Demmitts to bring the present legal proceeding. They argued that they had acquired title to the disputed property by adverse possession. They therefore requested the trial court to declare them sole owners of the disputed strip of land. In addition they sought injunctive relief to prevent the defendants from coming onto and causing damage to the disputed parcel of land.
The trial court found in favor of the plaintiffs. In its judgment entry the court concluded the following:
The entry went on to state that:
From this judgment the defendants-appellants...
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