Hall v. Dasher
| Decision Date | 24 May 2022 |
| Docket Number | 2021CA00111 |
| Citation | 190 N.E.3d 108 |
| Parties | Mary S. HALL, Individually and as Co-Trustee of Hall Living Trust, et al., Plaintiffs-Appellees v. Carolee DASHER, Defendant-Appellant |
| Court | Ohio Court of Appeals |
DEAN A. YOUNG, 507 Canton Road, Akron, OH 44312, For Plaintiffs-Appellees.
WARNER MENDENHALL, 190 North Union Street, Ste. 201, Akron, OH 44304, For Defendant-Appellant.
{¶1} Appellant Carolee Dasher appeals the judgment entry of the Stark County Court of Common Pleas awarding appellees Mary and Robin Hall a prescriptive easement over appellant's property, and awarding the Halls’ adverse possession of a narrow strip of appellant's easternmost property.
{¶2} Appellees own three parcels of real estate located in Lake Township. They are known as Tax Parcel #2201353 (addressed at 3662 Edison Street NW), Tax Parcel #2200247 (located to the south of 3662 Edison Street NW and north of 12981 Millview Avenue NW), and Tax Parcel #2200395 (addressed at 12981 Millview Avenue NW). Appellees purchased Parcel #2200395 in 1979, and constructed a garage on that property in 1990. Appellees purchased Parcel #2200247 in 1986; they constructed a garage on that property in 1996. Appellees purchased Parcel #2201353 at sheriff's sale in 2018. The property had previously been owned by Thomas Kiss ("Kiss"), who purchased the property in 1972, and constructed a driveway in 1975. There is an asphalt drive ("Spring Avenue") that runs across a portion of appellant's property adjacent to its eastern boundary and extending south from Edison Street to connect with properties located to the north. Appellees have used Spring Avenue to access their properties since purchasing them.
{¶3} Appellant is the owner of the real property known as Tax Parcel #2200885, with the address of 3960 Edison Street NW. She moved into the property on October 30, 2017. At the time appellant purchased her property, she believed Spring Avenue was a dedicated roadway. When she moved in, Spring Avenue was marked by a street sign, a stop sign, and a "no outlet" sign. The signs were removed sometime after October 30, 2017. Shortly after purchasing her property, appellant contacted Lake Township to request maintenance on Spring Avenue. Lake Township officials advised appellant that Spring Avenue was not a township road.
{¶4} On November 30, 2019, appellant contacted the Uniontown Police Department to report trespassing based upon appellees’ use of Spring Avenue. The officer declined to arrest appellees and advised appellant to file a written report. Based upon the officer's refusal to arrest appellees, appellant filed a complaint against the officer. Appellant's complaint was determined to be unfounded, and no further action was taken. Appellant again contacted the police in 2020 to have appellees arrested for trespass due to the use of Spring Avenue.
{¶5} Appellant filed a document with the Stark County Recorder on January 13, 2020, purporting to redefine the Spring Avenue right-of-way to exclude appellees and others from its use. Appellant also publicly declared her intent to construct a fence to limit appellees’ use of Spring Avenue.
{¶6} On April 24, 2020, appellees filed a complaint against appellant for declaratory judgment and injunctive relief. Appellees averred they, along with members of the general public, have used a portion of appellant's property, measuring 240’ in length and 16’ in width, running along the entire east boundary line of appellant's parcel, for travel by motor vehicles and foot traffic, in an open and continuous way for a period in excess of 21 years.
{¶7} Appellant filed an answer and counterclaims for quiet title and trespass on June 4, 2020. Appellees filed an answer to appellant's counterclaims on June 29, 2020. Michael Aube ("Aube") filed a motion to intervene on November 6, 2020, which the trial court granted. Aube filed his complaint on December 14, 2020.
{¶8} Appellees filed a motion for summary judgment on their complaint on April 26, 2021. Appellees attached numerous affidavits and exhibits to their motion. Appellant filed a motion for partial summary judgment, as to her trespass claims, on May 5, 2021. Appellees filed a supplement to their motion for summary judgment, and simultaneously filed a motion to amend their complaint to include an adverse possession claim with regards to the land between the eastern line of the prescriptive easement and appellant's eastern boundary line. The parties each filed responses and replies to the motions.
{¶9} In their motion, appellees submitted numerous affidavits of neighbors, stating appellees have used Spring Avenue to access their properties since moving in, and that others have used Spring Avenue in the same manner for 41 years. Appellees also included multiple other exhibits, including a March 1995 certified copy of a Lake Township map that lists "Spring Avenue," but has an asterisk by it. The map legend provides this asterisk "indicates private streets."
{¶10} Appellees also attached to their motion a certified copy of a complaint and judgment entry from the Stark County Common Pleas Court in 1970. Butler v. Imhoff , Stark C.P. No. 114383 (Aug. 17, 1970). In the complaint filed on April 13, 1970, the plaintiffs (eight property owners of properties surrounding appellees’ properties), alleged that William Imhoff, the predecessor-in-interest to appellant's property, erected barriers over the alleyway extending from Edison Street N.W. southwardly approximately 816 feet in the form of metal poles, wooden poles, and signs. On August 12, 1970, the trial court issued a judgment entry in the case. The trial court found the plaintiffs had an easement by prescription for roadway purposes over the property owned by William Imhoff. The easement covers the same location at issue in this case. The court then stated the roadway was a private road and ordered the plaintiffs to erect a permanent sign at the entrance to the alleyway stating "Private Drive – Residents Only." Further, "said sign shall be permanent in nature and portray such words in a clear and legible manner, so that the same are capable of notice and apparent to persons entering said roadway from the public thoroughfare known as Edison Street (Route 619)." Additionally, the trial court ordered William Imhoff not to interfere with the "Private Drive" sign.
{¶11} Appellant submitted an affidavit in support of her summary judgment motion and in response to appellees’ motion. She also submitted records maintained by township and county officials. "Spring St." is listed on a road inventory sheet in June of 1954. A 2001 Lake Township Road Department form references a pot hole repair on Spring Avenue. Appellant also provided a report (dated January 1, 1954) submitted by Lake Township to the Director of Highways, which included Spring Avenue as part of its inventory and certification of the "actual number of miles of rural Township roads under the statutory jurisdiction which are used by and maintained for the public by the Township Trustees of Lake Township." However, the list of streets attached to the report, including Spring Avenue, states it is a list of "Private Rds."
{¶12} Appellant also submitted an e-mail from 2008, in which an employee from the Stark County Engineer's Office sent a request to the Ohio Department of Transportation to have Spring Avenue removed from its inventory as a public road. The e-mail states, The e-mail did not request that Spring Avenue be vacated or abandoned as a public road.
{¶13} The trial court issued a judgment entry on August 17, 2021.
{¶14} With regards to appellees’ motion to amend complaint, the trial court granted appellees’ motion to include a claim for adverse possession as to the narrow portion of appellant's property between the eastern border of Spring Avenue and the eastern border of appellant's property.
{¶15} The trial court found there was not a common law dedication of Spring Avenue; rather, the evidence establishes that Lake Township incorrectly assumed it owned Spring Avenue, when it did not. Further, that any maintenance or inclusion of Spring Avenue as a public road was not the result of an offer and acceptance of Spring Avenue as a common law dedication; rather, the evidence demonstrates that both the maintenance and inclusion of Spring Avenue as a public road was because of a mistake. The court found the affidavit of Thomas Imhoff insufficient to support a finding of common law dedication, as there was no evidence to refute the fact that there was no formal or implied acceptance by Lake Township, and any maintenance done was purely by mistake.
{¶16} The trial court determined appellees’ use of Spring Avenue was done openly, notoriously, continuously, and adverse to appellant for more than the required statutory period of 21 years. Specifically, the court found appellees use of Spring Avenue has existed since 1979 as to Parcel #2200395, since 1986 as to Parcel #2200247, and since the early 1970's, by way of tacking, as to parcel #2201351. Thus, the court granted an easement 240’ long and 16’ wide. The easement specifically includes the berm portion of appellant's eastern property.
{¶17} The trial court denied appellant's motion for partial summary judgment on her trespass claim, and granted appellees’ judgment on the trespass claim since an easement exists as to Spring Avenue.
{¶18} With regards to appellees’ adverse possession claim, the trial court found appellees satisfied all of the elements necessary, by...
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