Merriner v. Goddard, 2009 Ohio 3253 (Ohio App. 6/25/2009)
| Decision Date | 25 June 2009 |
| Docket Number | No. 08-MO-2.,08-MO-2. |
| Parties | Charles T. Merriner, et al., Plaintiffs-Appellants, v. Stephanie A. Goddard, et al., Defendants-Appellees. |
| Court | Ohio Court of Appeals |
Mark Morrison, 117 N. Main Street, Woodsfield, Ohio 43793, for Plaintiffs-Appellants.
James W. Peters, 107 West Court Street, Woodsfield, Ohio 43793, for Defendants-Appellees.
Judges: Hon. Gene Donofrio, Hon. Joseph J. Vukovich, Hon. Mary DeGenaro.
{¶1} Plaintiffs-appellants Charles T. Merriner, et al. appeal a decision of the Monroe County Common Pleas Court ruling in favor of defendants-appellees Stephanie M. Goddard, et al. on appellants' action to quiet title involving a claim of adverse possession, following a bench trial. On appeal, appellants raise numerous issues including the trial court's application of adverse possession law to this case, weight of the evidence, applicability of the doctrines of acquiescence and equitable estoppel, and disqualification of defense counsel.
{¶2} The subject of this adverse possession case involves a small strip of land and what constitutes the property line between the northern and southern portions of plot 47 in the Village of Sardis, Lee Township, Monroe County, Ohio. A century-old large building that has been used for various commercial and residential purposes sits on the northern portion. A residential home with a detached garage sits on the southern portion.
{¶3} Appellants are the descendants of Marvin Merriner who purchased the northern portion back in 1946. He ran a confectionery from a portion of the building and the remainder of the building was divided into apartments, one of which he resided in and the others he rented. When he bought the building, a long narrow row of dense "Rose of Sharon" bushes ran along the southern portion of the building. The bushes stood approximately 11 feet from the building. For years, many considered or thought that the bushes signified the dividing line between the two subplots.
{¶4} Upon his father's death in 1964, Charles Merriner took ownership of the northern portion. He, his wife, and other family members used the property as a summer vacation home until moving there permanently in 1977. In 1998, Charles Merriner died and the property passed to his heirs, appellants herein. Appellants renovated the building and, in 2002, opened part of the building as a restaurant called Marv's Place.
{¶5} When Marvin Merriner purchased the northern portion of lot 47 in 1946, Eileen Maienknecht lived in the house with her mother on the southern portion. When Eileen Maienknecht was 21 years old, she and her mother moved and Oma Stalder took up residence in the house on the southern portion for the next 30 years. Oma Stalder's niece, Clara Klay and her husband, then took ownership of the property. Clara Klay and her husband sold the property to Dan Straub in 1995. Straub in turn sold it to appellee Stephanie Goddard and her husband, Mike Goddard, in 2001. Two marriages later, Stephanie Goddard became the sole owner of the property in 2005. Later, appellee Gary Thompson began living with Stephanie Goddard and the two became joint owners and have since married.
{¶6} Wanting to improve their southern side of the lot, appellees had a survey completed for the property on March 1, 2007. The survey indicated that the northern boundary line of the southern portion of lot 47 was just 5.27 feet from the southern edge of the large building sitting on the northern portion of the lot. In other words, the distance between appellants' building (Marv's Place) and the boundary line to appellees' property was only 5.27 feet. This meant that the dividing line extended 6 feet north beyond the "Rose of Sharon" bushes which actually sat completely on the southern portion of the lot and were not the true boundary line between the northern and southern portions of the lot.
{¶7} A week later, appellees removed the "Rose of Sharon" bushes and subsequently began construction of a fence between the northern and southern portions of lot 47. Appellants kept a garbage dumpster next to their building on a concrete pad which extended more than 5.27 feet beyond the building. Thus, the concrete pad had to be cut and the dumpster moved onto the sidewalk in order to complete construction of the fence. Appellees also had a detached garage and driveway constructed in addition to landscaping at a total cost of approximately $40,000.00.
{¶8} On August 20, 2007, appellants sued appellees to quiet title to the disputed strip of property claiming adverse possession. They also sought injunctive relief to prevent appellees from completing their construction improvements. The case eventually proceeded to a two day bench trial occurring on January 4th and 14th, 2008. Each side presented extensive testimonial evidence as well as copies of deeds, the new survey commissioned by appellees, and photographs taken of the area over the years.
{¶9} Since appellants' claimed title to the disputed portion by adverse possession, the central issue of the trial became how various owners of the two portions and neighbors treated the "Rose of Sharon" bushes and surrounding area over the years. Appellants presented the testimony of numerous people who, over the years, considered the "Rose of Sharon" bushes the boundary line. Charles Merriner's daughter, appellant Sharon Davis, remembered spending summers on the property. She recalled mowing up to the bushes and pruning the bushes. She also produced several photographs of family members trimming the bushes over the years from 1970 until they were removed in April 2007. She always considered the bushes the boundary line between their property and the southern portion of the lot.
{¶10} Eileen Maienknecht lived in a home with her mother on the southern portion of the lot now owned by appellees from 1946 to 1954. She testified to mowing the lawn up to the bushes with the understanding that it was the boundary line.
{¶11} After Maienknecht and her mother moved away, Oma Stalder lived in the home for the next 30 years. Her niece, Clara Klay, testified that, in 1968, Stalder asked the Merriner's for permission to plant snow ball plants amongst the "Rose of Sharon" bushes.
{¶12} Leland Jackson, a lifelong resident of Sardis and a friend of the Merriner family believed that the bushes belonged to the Merriners and constituted the property line. After Marvin Merriner died in 1946, but before Charles Merriner took up permanent residence in the building, Jackson used the basement of the building and maintained the building and the land, including mowing up to the "Rose of Sharon" bushes.
{¶13} Gary Wichterman also periodically mowed the property for the Merriners from the mid-1980's until Charles Merriner died in 1998. Charles Merriner had instructed him to mow up to the "Rose of Sharon" bushes.
{¶14} Appellees began their side of the case by calling Dan Straub and his wife, Kendra, to testify about their ownership of the southern portion from June 1995 to May 2001. He testified that he believed that the property line was a railroad tie that lay on the ground beyond the "Rose of Sharon" bushes and closer to the Merriner's building. He maintained his own yard up to the railroad tie. He erected a white corner fence post parallel to the bushes, but maintained that it had nothing to do with the boundary line.
{¶15} Another Sardis resident, Eugene Conley, testified about mowing the grass on the southern portion for Oma Stalder from 1966 to 1978. He recalled mowing around both sides of the bushes up to the Merriner's building.
{¶16} A neighbor, Joseph Conley, mowed the area from 1999 until 2005 as a neighborly gesture, noting that the Merriner building had sat vacant for some time. He testified that he mowed the area as close to the Merriner building as he could get beyond the bushes.
{¶17} Appellee Stephanie Goddard, who purchased the southern portion from the Straubs in 2001, testified that she, like the Straubs, mowed up to the railroad tie and behind the "Rose of Sharon" bushes. She never saw anyone else other than Joseph Conley mow the area. She also trimmed the bushes and thought the Merriner building was vacant and falling into disrepair.
{¶18} On March 4, 2008, the trial court entered judgment in favor of appellees, the owners of the southern portion, finding that appellants had failed to prove by clear and convincing evidence each of the elements of adverse possession and that appellants were estopped from asserting ownership by adverse possession. The court issued a detailed and thorough 11-page opinion. In reaching its conclusion, the court found that although appellants' possession of the property may have been open and obvious for over 21 years, the possession was not adverse or hostile and exclusive. (03/04/2008 J.E., p. 7, ¶¶34-39.) The court also found that appellants' possession of the land was not exclusive. (03/04/2008 J.E., p. 7, ¶¶40-42.) This appeal followed.
{¶19} "To acquire title by adverse possession, a party must prove, by clear and convincing evidence, exclusive possession and open, notorious, continuous, and adverse use for a period of twenty-one years." Grace v. Koch (1998), 81 Ohio St.3d 577, 692 N.E.2d 1009, syllabus. In order to establish the necessary twenty-one year period, a party may add to their own term of adverse use any period of adverse use by prior succeeding owners in privity with one another. Zipf v. Dalgarn (1926), 114 Ohio St. 291, 151 N.E. 174, syllabus. Clear and convincing evidence is that proof which establishes in the minds of the trier of fact a firm conviction as to the allegations sought to be proved. Cross v. Ledford (1954), 161 Ohio St. 469, 477, 120 N.E.2d 118. Where a party must prove a claim by clear...
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