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2007-0863. Evanich v. Bridge, Slip Opinion No. 2008-Ohio-3820.
Lorain App. No. 05CA008824, 170 Ohio App.3d 653, 2007-Ohio-1349. Judgment affirmed.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Opinion: http://www.supremecourtofohio.gov/rod/docs/pdf/0/2008/2008-Ohio-3820.pdf
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(Aug. 5, 2008) The Supreme Court of Ohio ruled today that the intent of one person to possess another’s property is objective rather than subjective, and held that a party claiming ownership of property via the legal doctrine of “adverse possession” meets the legal requirement for such a claim by clear and convincing evidence if the claimant can show that he possessed the disputed property and treated it as his own for a period of 21 years. The Court’s 7-0 decision was authored by Justice Judith Ann Lanzinger.
The case involved a dispute over ownership of an irregular strip of land less than 1/100th of an acre in size that forms the boundary between two residential lots in an Elyria subdivision. In 1967, William and Roselyn Evanich established what they believed to be an accurate boundary line between one side of their lot and an adjacent, undeveloped lot. In fact, the line established by the Evaniches encroached slightly into the adjacent lot. Unaware of the encroachment, the Evaniches installed a mixed border of split rail fencing, railroad ties and sandstone blocks along the line they had established, inside of which they planted various shrubs and ground cover to create a decorative landscape border. A house was later built on the lot next door. In 1977 Steven and Margaret Bridge purchased and moved into that property. The two families continued to occupy their homes for the next 25 years without discovering that part of the Evaniches’ landscaping encroached upon the Bridges’ property.
In 2002, the Bridges sent a letter to the Evaniches indicating that a recent survey had determined that some of their fencing and landscaped beds extended across the lot line into the Bridges’ property. The Bridges asked the Evaniches to take action to remedy the encroachment. The Evaniches refused, and instead filed a court action seeking a declaration that, because their fence and landscape beds had continuously and openly occupied a portion of the Bridges’ lot for more than 21 years, the Evaniches had acquired legal ownership of that strip of land through adverse possession.
The Lorain County Court of Common Pleas granted the Evaniches’ adverse possession claim and awarded them legal ownership of the disputed strip of property. On review, the 9th District Court of Appeals voted 2-1 to affirm the trial court’s ruling. The Bridges sought and were granted a review of the case by the Supreme Court.
Writing for a unanimous Court in today’s decision, Justice Lanzinger rejected the Bridges’ argument that the Evaniches should not have been granted ownership via adverse possession because their 1967 construction of landscape beds beyond the limits of their own property was not a deliberate act but rather a mistake – and they therefore had not met the legal requirement of showing “intent” to take possession of property that was not theirs.
“It is well established in Ohio that to succeed in acquiring title by adverse possession, the claimant must show exclusive possession that is open, notorious, continuous, and adverse for 21 years,” wrote Justice Lanzinger. ... “We have never held that a claimant must establish subjective intent to acquire title to real property of another to prevail on an adverse possession claim.”
Citing Yetzer v. Thoman, an 1866 decision in which the Supreme Court of Ohio addressed the specific issue of whether a party claiming adverse possession must demonstrate a subjective intention to possess property that he knows belongs to someone else, Justice Lanzinger noted that the Yetzer Court rejected the use of a subjective standard, holding instead that: “‘If [the adverse possessor] intends a wrongful disseizin (deliberate seizure of another’s property), his actual possession for [the relevant time] gives him a title; or if [the adverse possessor] occupies what he believes to be his own, a similar possession gives him a title. Into the recesses of his mind, his motives or purposes, his guilt or innocence, no inquiry is made. It is for this obvious reason that it is the visible and adverse possession, with an intention to possess, that constitutes its adverse character, and not the remote views or belief of the possessor.’ In other words, title may be acquired ‘irrespective of any question of motive or of mistake.’”
In this case, Justice Lanzinger wrote, “The court of appeals concluded that the Evaniches acted in a way consistent with true ownership by installing landscaping that included railroad ties, stone blocks, fencing, bushes, flowers, and at least one tree. It held that the Evaniches possessed the necessary intent based on their exclusive control over the property for 35 years. Seeing no error in the court of appeals’ conclusion that the Evaniches took possession of the disputed property via adverse possession, we therefore affirm the judgment of the court of appeals.”
Contacts
Stephen G. Meckler, 440.324.5353, for Steven and Margaret Bridge.
Frank S. Carlson, 440.930.4001, for William and Roselyn Evanich.