Leonard L. Grace v. Anthony H. Koch and Elizabeth A. Koch
| Decision Date | 09 October 1996 |
| Docket Number | 96-LW-4451,C-950802 |
| Court | Ohio Court of Appeals |
| Parties | LEONARD L. GRACE, JR., Plaintiffs-Appellants and MAYFLOWER SAVINGS, LOAN CO. v. ANTHONY H. KOCH and ELIZABETH A. KOCH, Defendants-Appellees APPEAL |
Civil Appeal From: Hamilton County Court of Common Pleas
Barrett & Weber and C. Francis Barrett, Esq., No. 0022371, 400 Atlas Building, 524 Walnut Street, Cincinnati, Ohio 45202 3114, for Plaintiff-Appellant Leonard L. Grace, Jr.,
Barrett & Weber and M. Michele Fleming, Esq., No. 0022391, 400 Atlas Building, 524 Walnut Street, Cincinnati, Ohio 45202 3114, for Plaintiff-Appellant Mayflower Savings & Loan Co.,
Gregory R. Wilson, Esq., No. 0007795, 250 East Fifth Street, Suite 1500, Cincinnati, Ohio 45202, for Defendants-Appellees.
This case concerns a strip on a parcel of land bounded by a fence and a driveway that plaintiff-appellant Leonard L. Grace Jr. claims by title and the defendants-appellees, Anthony H. and Elizabeth A. Koch (pronounced "Cook"), claim by adverse possession.
As early as the 1930s, Grace's parents owned a large tract of land that included parcels 43 and 44 on Wuest Road in Colerain Township. In 1960, Grace's parents gave him title to parcel 44 and kept title to parcel 43. Grace constructed a house on parcel 44 facing eastward with parcel 43 adjoining on the north side. Probably for some reason other than to give future employment to lawyers, Grace built a driveway for his house that straddled the boundary line between parcels 43 and 44. The boundary line between the parcels lies in the center of the driveway.
Grace lived in the house from 1960 to 1970. He and his father built a split rail fence on parcel 43 approximately thirty-four feet north of the property line between the parcels and roughly twenty-nine feet north of the edge of the driveway. This fence only loosely followed the property line along the north side of the Kochs' property, and a connecting wire fence cut across the west side of the Kochs' parcel without regard for the boundary. The fence served as a buffer between the Kochs' parcel and the portion of parcel 43 used as a livestock pasture, and is one of the predominating features in this litigation. The fence lost its primary function when the last of the livestock died in 1979 or 1980. The fence then fell into disrepair and large sections were nonexistent by the time of this dispute.
In 1970, Grace sold his house and the property on parcel 44 to the Kochs. The Kochs allege that Grace told them at that time that the boundary was the edge of the driveway. Prior to the sale, Koch's father inquired whether the property up to the fence could be purchased, and Grace informed him (and the Kochs) that this land was part of parcel 43, which belonged to his parents.
Grace obtained an easement from his parents for the use of the portion of the driveway that encroached into parcel 43, which he conveyed to the Kochs along with parcel 44. The Kochs testified that they did not know where their property line was, but that they knew that the portion between the driveway and the fence was not theirs. The Kochs also testified that they thought the easement gave them access to an additional five feet north of the driveway, which left twenty-nine feet between the easement and the fence to parcel 43, owned at that time by Grace's parents. The Kochs, however, stated that they immediately began using the strip up to the fence as their side yard and continue to use it in this manner even today. Thus, the easement is between the property the Kochs own by title and the strip the Kochs claim by adverse possession. We now refer to the disputed section of parcel 43 from the driveway to the fence as "the strip."
Grace moved away from 1970 until 1986, at which time he returned to a separate parcel located on Wuest Road. Upon the demise of his father, Grace became the owner of parcel 43, which included the strip from the fence to the midpoint of the Kochs' driveway. At some point, Anthony Koch asked Grace for permission to mow the grass in the strip and Grace expressly granted permission. Koch further testified that he would not have used the strip without permission from Grace. On the other hand, Koch testified that he never asked permission to use the strip.
Neighbors testified that they assumed that the Kochs owned the strip up to the fence, but Anthony Koch never told anyone that he owned the strip. One of the reasons for the neighbors' assumption was Grace's use of the strip before he sold the house and parcel 44 to the Kochs--thus, the neighbors believed that the strip "went with" the house.
It is undisputed that Grace's parents never used the strip and Grace rarely used the strip upon obtaining title to it. Anthony Koch alleges that he parked cars and trucks on the strip, stored firewood and materials on it, planted a tree in 1986, temporarily set up a swingset, and constructed a carport in 1983 that extended very slightly over the strip boundary.
Grace and the Kochs had an amicable relationship from 1970 to 1991, and Grace's son would often visit the Kochs. Then in 1992, the relationship soured because of the noise from Anthony Koch's race cars. In July 1992, Koch graded a portion of the strip and placed gravel on it for greater parking space. Grace and Koch then became embroiled in an altercation. Grace ordered Koch to cease trespassing on Grace's property and called the police, who quite properly did not intervene, recognizing the "civil" nature of the dispute. Grace parked his truck in the strip to prevent Koch from any further gravel spreading. A month later, Grace removed the remaining portions of the fence that he and his father had built. A month after that, Grace filed a complaint against the Kochs for trespass and damages.
The Kochs filed a counterclaim to quiet title in them through adverse possession, and for damages resulting from Grace's entry onto the strip and removal of the fence. Grace mortgaged parcel 43, which on paper title includes the strip, in January 1992 to plaintiff-appellant Mayflower Savings & Loan, Co. ("Mayflower"), which was joined as a party. After a bench trial, the trial judge found that the Kochs owned the strip by adverse possession. The court further found that the fence was contained in the strip and found that Grace's removal of the fence entitled the Kochs to damages of $577.49.
Grace and Mayflower have appealed and assert in four assignments of error that the trial court erred by:
(1) declaring the Kochs to be the owners of the strip; (2) ruling that the Kochs held title to the strip despite the lack of notice to Mayflower of their adverse possession claim; (3) awarding damages to the Kochs based on excluded evidence; and (4) ruling that the Kochs had not trespassed on Grace's property.
Adverse possession has been considered by many judges and legal scholars, who, through their combined wisdom, have invented and perpetuated a system whereby an occupier of another's land obtains title to that land--but only if the occupation is wrongful.(fn1)
One pair of commentators has stated, "It is hard to imagine a notion more in contravention of the ideals set forth in the U.S. Constitution protecting life, liberty and property."(fn2) In a perceptive law review article, these writers state that prescriptive easements and adverse possession are "relics of the past" that reward the "theft of land."(fn3) Adverse possession represents the forced infringement of a landowner's rights, a decrease in value of the servient estate, the encouraged exploitation and development of land, the generation of animosity between neighbors, a source of damages to land or loss of land ownership, the creation of forced, involuntary legal battles, and uncertainty and perhaps the loss of property rights to landowners with seisin.(fn4)
Thus, adverse possession is disfavored in the law, and for good reason. See Montieth v. Twin Falls United Methodist Church (1980), 68 Ohio App.2d 219, 428 N.E.2d 870. The instant case is only another example of the legal battles engendered by this relic of the law, which, like common law marriage, served a purpose in earlier times, but has now outlasted its original utility.
Just as common law marriage served a purpose on the frontier, where no courthouse existed to register the marriage, adverse possession made sense in an era when boundaries were unclear, the surveyor's art was unperfected, metes and bounds descriptions used rocks and trees, and the recording system was rudimentary. In our time of precise measurements and efficient recordation of titles, adverse possession has become a legal doctrine without practical justification. Yet because adverse possession has been suffered to exist for generations, its abolition should come from the legislature, as with common law marriage in R.C. 3105.12(B)(1).(fn5) The legislature abolished adverse possession of registered land in 1913. See G.C. 8572-85 (predecessor section to R.C. 5309.89).
Over the centuries, courts have established the necessary elements of adverse possession. Although the elements vary slightly by state, an occupier of land in Ohio must demonstrate that his possession of the land was:
(1) actual; (2) open and notorious; (3) hostile; (4) exclusive; and (5) continuous over a twenty-one-year period, at the end of which time, an action to recover title to or possession of real property is barred by the statute of limitations. See, e.g., Demmitt v. McMillan (1984), 16 Ohio App.3d 138, 474 N.E.2d 1212;(fn6) R.C. 2305.04 (statute of limitations).(fn7)
The trial court found that the Kochs acquired title to the strip between the driveway and the remains of the fence by...
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