ABELE
J.
This
is an appeal from a Ross County Common Pleas Court judgment
in a quiet title action brought by Geneva P. Turpen,
plaintiff below and appellee herein, against W. Max
O'Dell, Morgan O'Dell, and Brewer & Brewer Sons,
Inc., defendants below and appellants herein.
Appellants assign the following errors:
FIRST
ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED IN FAILING TO FIND THAT THE
DEFENDANT-APPELLANTS (`APPELLANTS') HAD OWNERSHIP OF THE
DISPUTED PROPERTY BY DEED TITLE. [REFERENCE: ENTRY AT
P.4]"
SECOND
ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED IN FINDING THAT THE PRESENT
LOCATION OF THE SCIOTO RIVER CONSTITUTED A BOUNDARY BY
PRESCRIPTION WITHOUT EVIDENCE OF ANY AGREEMENT TO THE ALLEGED
BOUNDARY. [REFERENCE: ENTRY AT P.5-6]"
Appellants own land west of the Scioto River. Appellee owns
land
east of the Scioto River. Both parties claim ownership of
an
approximately thirty-seven acre half-moon shaped parcel of
land
that lies east of the relatively straight present course of
the
Scioto River, but west of an eastward-curving line that
allegedly
served as the course of the Scioto River during a
period
of time beginning between 1860 and 1906 and ending by
1938. A
thin oxbow lake currently lies in a portion of that
eastward-curving
line.
On
January 2, 1996, appellee commenced the instant action to
quiet
title to the disputed thirty-seven acres of land. In the
second
claim of the complaint, appellee alleged that she has been
in
"undisputed, notorious, open, hostile, continuous, and
exclusive"
possession of the disputed land for more than twenty
one
years. On February 2, 1996, appellants filed an answer and
counterclaim.
In the counterclaim, appellants requested the
trial
court to quiet title to the disputed land in their names.
The
trial court heard the matter on April 3-4, 1997. The
trial
court admirably and accurately heard the evidence,
recognized
inconsistencies in the evidence, and recounted the
evidence.
The trial court wrote in pertinent part as follows:
"Defendants in Exhibit `F', a map prepared by the
U.S. Department of the Interior Geological Survey, has
produced evidence that in 1906, the date of the survey, the
oxbow lake is located at roughly the same spot as the river
was alleged to have been there then. By the year 1938 the
course of the Scioto River had changed, and, instead of
looping to the east of the present channel, looped off to the
west of it. (There is no dispute that the river today was
created by dredging which was assisted by a flood in 1959 and
that the rules of accretion do not apply to the channeling
done by the defendant at that time.)
Assuming for the moment the accuracy of the 1906 survey, it
can thus be concluded that sometime between 1906 and the late
1930's a change in the direction of the flow took place.
It may also be stated with perhaps a lesser degree of
accuracy that the point upriver where the change took place
is at approximately the same spot as the `old river bed',
referred to in deeds in Plaintiff's line of title after
the early 1940s.
The question then becomes one of whether, over this period of
time, the change came about as a result of avulsion or
accretion, the latter working against the interests of the
defendant.
The early survey was done without the benefit of aerial
photography, and assuming that it was current and not a
carryover from past surveys, a change in the riverbed
developed, going from a course to the east to a course to the
west, over a period of thirty years, or more if the
assumption is not correct. Perhaps the one essential
attribute of accretion is that the changes it brings be slow
or `imperceptible.'
There is no evidence before the court other than speculation
of nonexpert witnesses as to what must have brought this
change about. One possibility that holds a degree of credence
is that gradually two channels developed and reached, without
flooding, roughly equivalent levels, hence giving the area in
dispute the character of a large island. This is consistent
with the testimony of Milton Kitchen who referred to
`Brewer's Island' in the `middle of the river.
Neither party elected to inquire about the meaning of this
testimony.
* * *
By the 1940's plaintiff's deed description was
changed to add wording about the river and `the old river
bed'. This may refer to the area on the east where the
oxbow lake may be located or to the area common to both
parties above the area in dispute where the Scioto still
flows as before. Again one enters into the arena of
speculation where no definite conclusions may be drawn.
Recognizing the gaps in the proof with regard to the course
of this busy river and its meanderings, the court applies the
legal presumption found in 78 Am. Jur 2d, Sec. 427 at p. 874
that if there is a question of a course change being an
accretion or an avulsion, in the absence of clear evidence to
the contrary, the change was not by avulsion. The rationale
of this presumption is to assure to those having access to
riparian rights the continued use thereof, plus a degree of
stability of title amidst change. Thus accretion may be said
to have moved the boundary between the parties during the
first third of this century from the eastern extreme of the
river to the western, and the defendant's claim of
ownership to the old river bed is lost. Such is the finding
of the court.
From a reading of the pleadings and hearing the testimony and
arguments, plaintiff does not claim the property to the
western extremity of the early 1940s, but only to the channel
as it exists today, and perhaps for a while longer since it
is presently wide and straight and perhaps less given to
straying.
If color of title of each party reaches to the Scioto River
and given the ambivalent nature of the course of the river,
how then is a boundary to be established? Each party claims
possession adversely and accordingly each party must carry
the burden of proof with respect thereto.
* * * Adverse possession seems to be of little avail to
either party in this case, given a shifting boundary and,
secondly, with little actual use on the part of either party.
* * *
* * *
The court has found no clear title in the disputed area owing
to either party. The wanderings of the river have left no one
line. Only the running of time can now fix the boundary. With
the digging of the channel in 1959 and the passing of time a
high levee has grown on the east side of the river, only to
be breached with high water going in to gradually fill the
old oxbow lake. A natural boundary has been fixed by the
running of time. The case of Rutledge v. The Presbyterian
Church of Johnstown (1914) 3 Ohio App. 177 suggests this
result:
It is well settled that a line may be established by an
agreement of the parties and occupancy of land for a long
period of years; and that when a line is established by
prescription, it continues to be the line between the lands
abutting thereon.
While there is no evidence of the parties trying in 1959 to
reach an agreement on the new channel, certainly the change
was apparent to all in the area and tacit assent is implied
as no court action resulted as in 1993. Arguably, it was
against plaintiff's property interests at that time,
cutting off access to the west.
The case of Bebout v. Peffers, (Aug. 18, 1986) Knox
App. No. 86-CA-02, unreported, is instructive, pointing out
the inadequacies of the adverse possession law and showing
how it has been contorted to reach an approximation of a just
result. Judge Milligan is a respected legal scholar and his
discussion of Charles C. Callahan's difficulties with
adverse possession again requires the boundary be the Scioto
river as it now exists. Charles C. Callahan was perhaps
the legal scholar on property law in this century.
If mutual mistake or the unknowable meanderings of an old
river make a line sufficiently indefinite, then the law of
adverse possession should not apply and prescription after 21
years must control, there being nothing constant nor anything
to survey.
Accordingly, judgment is granted to the plaintiff for title
to the real estate to her west extending to the center of the
Scioto River as it currently flows, with costs being charged
against the defendant."
Thus,
the trial court concluded that: (1) neither party has clear
title to the disputed area, which lies between the relatively
straight present course of the river and the river's
alleged pre-1938 curve to the east; (2) gaps in proof exist
regarding what caused the river's alleged pre-1938 change
to a curve to the west; (3) because gaps in proof exist, the
alleged pre-1938 change is presumed to have resulted from
accretion rather than from avulsion; (4) because the alleged
pre-1938 change is presumed to have resulted from accretion,
the river remained the boundary between the parties during
and after the alleged pre-1938 change from an eastward curve
to a westward curve; (5) appellants created the present
course of the river by channeling in 1959; (6) neither party
has presented sufficient evidence to prove adverse possession
in the disputed property; and (7) because the parties from
1959 until 1993 acquiesced that the relatively straight
present course of the river was the boundary between their
lands, the present course of the river has become the
boundary.
Appellant filed a timely notice of appeal.
In the
first assignment of error, appellants...
