Wagoner v. Obert
| Decision Date | 31 December 2008 |
| Docket Number | No. 07 CA 31.,07 CA 31. |
| Citation | 905 N.E.2d 694,180 Ohio App.3d 387,2008 Ohio 7041 |
| Parties | WAGONER et al., Appellants, v. OBERT et al., Appellees. |
| Court | Ohio Court of Appeals |
Maguire & Schneider, Columbus, for appellees Winona Donnall and Home Connection Realty.
John Harker, for appellees Martin and Rosemary Kellenbarger.
{¶ 1} This appeal involves a dispute over two acres of property that are titled to appellants, Donald and Glenna Wagoner, and upon which appellees and cross-appellants, Michael and Rebecca Obert, constructed a leach bed for a household septic system. Both the Wagoners and the Oberts appealed the jury's verdict and the trial court's denial of their motions for judgment notwithstanding the verdict, or in the alternative, motions for new trial. Additional appellees are Winona Donnall and Home Connection Realty and Martin and Rosemary Kellenbarger.
{¶ 2} The facts and procedural history of the matter are as follows:
{¶ 3} This appeal concerns a dispute over approximately two acres of land located in Fairfield County, Ohio. The two-acre parcel in dispute was originally a portion of a 14-acre tract of land owned by Mr. and Mrs. Hill. In 1975, the Hills hired George Beiter to survey and split their 14-acre tract of land. As part of the survey protocol, Beiter used half-inch iron survey pipes to mark the boundary lines of the property. Beiter also prepared a legal description of the property and filed it with the Fairfield County Engineer's office.
{¶ 4} On May 17, 1975, appellees Martin and Rosemary Kellenbarger purchased 6.05 acres of the unimproved 14 acres of property from the Hills. Thereafter, Jeff McCandish purchased the remaining 7.96 acres of the original 14 acres owned by the Hills. In 1977, appellants, Donald and Glenna Wagoner, purchased the 7.96 acreage from McCandish. The 7.96 acres of property initially purchased by McCandish and later transferred to the Wagoners is located just north of the Kellenbargers' property.
{¶ 5} In 1975 and 1976, the Kellenbargers cleared the property, erected a house and shed, and fenced off what they believed to be the boundary of their property, which included the two acres in dispute. The address of the property is 7920 Dupler Road, Sugar Grove, Fairfield County, Ohio. As part of the home construction, the Kellenbargers paid for a septic tank for their home and believed that a septic tank had been installed, but they had no documentation of a related construction expense. Furthermore, the Fairfield County Department of Health has no record relative to any application being made by the Kellenbargers to install a private septic system or any record of a septic system being inspected by the agency.
{¶ 6} From 1975 until 2004, the Kellenbargers claimed that they made exclusive use of the land that they believed they had purchased from the Hills, including the approximately two acres in dispute. The Kellenbargers stated that they built a wood shed, raised goats, and built a dog kennel with a concrete pad on the two adjacent acres. Mr. Kellenbarger also stated that he hunted the entire property on a regular basis.
{¶ 7} On July 11, 2003, the Kellenbargers purchased a new residence in Fairfield County, Ohio, vacated the home at 7920 Dupler Road, and hired realtor Leanne Henry to list the now vacant property. On September 23, 2003, as part of the listing procedures, Henry reviewed, and the Kellenbargers executed, a form published by the Fairfield County Health Department stating the requirements for septic inspections. The septic-inspection form informs the home owner that if a home is being sold, an inspection of the septic system may be required by the lending institution and/or the health department. The form further states that if the septic system has not been pumped within the last four years, "it must be pumped by a licensed septic pumper." Finally, the form advised the Kellenbargers that pursuant to Ohio Adm.Code 3701-29-07, a minimum capacity septic tank for a three-bedroom home must be 1,500 gallons in one- or two-tank compartments.
{¶ 8} The Kellenbargers also completed a residential property disclosure form in which they stated that the septic system servicing the property consisted of a leach field, that they did not know the date of the last septic-system inspection, and that they were unaware of any current leaks, backups, or other material problems with the septic system servicing the property. The Kellenbargers did not check the boxes on the residential disclosure form that would have indicated that their property was serviced with a septic tank or a private sewer, or that they had a general knowledge of the type of septic system that serviced the property. Finally, on the form, the Kellenbargers certified that there were no boundary disputes involving the property.
{¶ 9} The Kellenbargers' property at 7920 Dupler Road remained vacant for approximately a year. In April 2004, the Kellenbargers hired a new realtor, Winona Donnall of Home Connection Realty. Donnall asked the Kellenbargers to complete a new residential property disclosure form. On the new form, the Kellenbargers indicated that they had a private septic and filtration bed on the property and that they were not aware of any leaks, backups, or other material problems with the septic system. The Kellenbargers also left the box marked "septic tank" blank. Finally, the Kellenbargers certified that they were not aware of any boundary disputes.
{¶ 10} Appellees and cross-appellants, Michael and Rebecca Obert, began looking for acreage in Fairfield, Ohio. On July 17, 2004, the Oberts and the Kellenbargers executed a real estate purchase contract for the 6.05 tract of land located at 7920 Dupler Road. The purchase agreement gave the Oberts a 20-day inspection grace period.
{¶ 11} On August 1, 2004, Mr. Obert and Mr. Kellenbarger walked the property. Mr. Kellenbarger stated that he used red spray paint to mark the northernmost boundary of the property. Mr. Kellenbarger also showed Mr. Obert the supposed location of the underground septic system. Mr. Kellenbarger advised Mr. Obert that the septic tank was buried between the garage/pole barn and a large poplar tree. Mr. Kellenbarger also told Mr. Obert that the line to the leach field ran down the hill behind the garage.
{¶ 12} After the purchase contract was executed, realtor Winona Donnall contacted Independent Health Services ("IHS") to perform the necessary inspections Donnall requested an inspection of the water well and the septic/aeration system, and a termite inspection.
{¶ 13} On August 3, 2004, Bruce Carpenter, a licensed sanitarian, conducted the requested inspections. Carpenter followed inspection protocols for water, sewer, and termite inspections. In a subsequent report, he stated that he was unable to find any septic tank risers and that he could not verify the size and/or type of the property's septic tank or leaching system. He further noted that the septic tank would need to be pumped and risers installed per Fairfield County regulations. In the report, he also stated that he did not locate any problems with the septic system, but that problems might not become apparent until daily operation of the system was resumed. Donnall received Carpenter's report but did not notify the Oberts of the septic concerns and/or insure that the septic tank was pumped and that risers were installed.
{¶ 14} On August 11, 2004, a mortgage survey was performed on the property pursuant to Ohio Adm.Code 4733-38-01.1 The mortgage survey showed the true boundary of the 6.05-acre property. The true boundaries did not include the two acres of property in dispute. Instead, the mortgage survey showed that two acres of property in dispute along the northern boundary belonged to the Wagoners. The Oberts denied ever seeing the mortgage survey prior to the closing on the property.
{¶ 15} On August 13, 2004, the property closed. At the property closing, both the Oberts and the Kellenbargers initialed Carpenter's report. The Oberts paid the Kellenbargers $180,000 for the property and took immediate possession. The Oberts proceeded to maintain and use the two acres in dispute.
{¶ 16} On March 4, 2005, the Oberts received a $40 bill from the Fairfield County Health Department, advising them that they had not renewed their private-septic-system operation permit. The Oberts had never been advised that a septic-system permit was necessary for their property and contacted the Fairfield County Health Department for more information. Steve Deeter, a registered sanitarian employed by the health department, responded to the Oberts' property to conduct a septic-system inspection. Upon inspection, Deeter discovered that the property's sewage was being dumped at the end of a pipe approximately 150 feet from the Oberts' house into a ravine. Deeter did not find any septic system for the property and advised the Oberts that it was against county health regulations to live in a house that is not serviced by an approved septic system.
{¶ 17} The Oberts then worked with the Fairfield County Health Department to install a septic system. The leach system for the septic system was installed underground on the two-acre parcel of property that is in dispute, which the Oberts believed they owned, but which was legally titled to the Wagoners. They chose the two acres because it was the only other level area of land on which they could install a leach bed for the septic system.
{¶ 18} The excavation and other work for the septic system took place in May and June 2005. The cost of the new septic system was approximately $7,738.30.
{¶ 19} During this time, Mrs. Wagoner became aware that an area of property was being excavated by the Oberts. The Wagoners were concerned that the...
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