The Ohio Court of Appeals, Ninth Judicial District (C.A. No.14CA0022-M, dated August 3, 2015) reversed and remanded a judgment issued by
the Medina County Court of Common Pleas (the County Court) regarding whether or
not a prescriptive easement has been established.
The plaintiff in the proceeding is Robert R. Rising, Jr.
(Mr. Rising), who brought a quiet title action and injunctive proceedings
against the Litchfield Board of Township Trustees (Litchfield). Mr. Rising’s parents owned certain land in Litchfield
Township. While their land had access to the main roads, Mr. Rising and his parents
before him, often used a strip of land across a neighboring parcel as a cut
through for more convenient access to Avon Lake Road (the Driveway).
Litchfield acquired title to the neighboring parcel in 1999
and in 2010 blocked access to the Driveway. Mr. Rising sued Litchfield claiming
he had acquired title to access the Driveway via a prescriptive easement. The County
Court initially found in favor of Litchfield, holding that Litchfield, as a
township, was not subject to adverse possession claims. Mr. Rising appealed and
won on that initial issue under a prior Court of Appeals decision (11CA0079-M).
The Court of Appeals in that decision held that if the evidence shows the prescriptive
easement arose prior to Litchfield’s ownership of the neighboring land then it
would have taken title subject to the prescriptive easement. The Court of
Appeals also stated that Mr. Rising and his parents were in privity, allowing
Mr. Rising to tack the number of years the Driveway was used by his parents if
he could establish his parents used the property in the same or similar manner
and that the use was continuous, open, notorious and adverse. The case was
remanded back to the County Court to make these factual determinations.
The County Court then held that Mr. Rising failed to meet
the 21 year continuous use requirement due to a 1 year period in which he was
attending college out of town and a 4 year period in which he lived nearby in
Grafton, Ohio. These ‘gaps’ was used to find that the adverse use was ‘abandoned’
and therefore defeat Mr. Rising’s ability to tack his current use onto that of
this parents. This determination was made despite unrebutted testimony regarding
his regular visits during such time period and use of the Driveway by Mr.
Rising and his father during such visits. [If
you’re coming to the belief that the County Court really seemed to want to help
out the township trustees, I can understand. It’s my thought as well.]
The Court of Appeals smacked this down as well. In a
previous Ohio Court of Appeals decision (Queen v. Hanna, 4th Dist.
Scioto No. 11CA3447, 2012-Ohio-6291, quoting Dunn v. Ransom, 4th
Dist. Pike No. 10CA806, 2011-Ohio-4253), the court stated, “The acts of the
prescriptive claimant do not need to be daily or constant; rather, occasional
use that will fairly indicate an uninterrupted use to the true owner will
suffice….Abandonment of the use of the easement may destroy the necessary
continuity, but temporary and reasonable breaks in the possession does not have
that effect.” Based on the foregoing reasoning, the Court of Appeals found the
County Courts decision on the lack of a 21 year continuous use to be in error.
Because the County Court based its decision against Mr.
Rising on the lack of 21 years of continuous use, it never addressed the other
elements of adverse possession, namely, that the use must be open, notorious
and adverse. The Court of Appeals remanded the case back to the County Court to
consider whether these additional elements were established by clear and
convincing evidence.
Anyone want to take bets on how the County Court decides on
these remaining issues? I personally look forward to the next installment of
the Court of Appeals decision on this case.
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Showing posts with label Prescriptive Easement. Show all posts
Showing posts with label Prescriptive Easement. Show all posts
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