Adverse possession:

Nolen v. Rase, 2013-Ohio-5680 (Ohio Ct. App., Scioto County Dec. 17, 2013)

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.

Nolen v. Rase, 2013-Ohio-5680, P9 (Ohio Ct. App., Scioto County Dec. 17, 2013)

we readily conclude that ample evidence supports a finding of adverse possession for the requisite twenty-one years. Debra Rase testified that she and her husband maintained the land up to the fence line since they acquired the property in 1987. We readily acknowledge that Carl Nolen testified that he maintained his property on the other side of the boundary line after the fence's [**6] construction. However, the opposing witnesses disputed that assertion.

[*P13] HN4A trial court, as the trier of fact, is free to believe all, some or none of the testimony of any witnesses.

Nolen v. Rase, 2013-Ohio-5680, P12-P13 (Ohio Ct. App., Scioto County Dec. 17, 2013) we find no error in the trial court's ruling regarding the boundary of the two properties. Accordingly, we hereby overrule both of appellants' assignments of error and affirm the trial court's judgment. | The doctrine of acquiescence is applied in instances when adjoining land owners occupy their respective propereties up to a certain line and mutually recognize and treat that line as if it is the boundary that separates their properties. See Robinson v. Armstrong, Guernsey App. No. 03CA12, 2004 Ohio 1463, at P35; McConachie v. Meeks (Sep. 21, 1999), Richland App. No. 98CA90, 1999 Ohio App. LEXIS 4736; Turpen v. O'Dell (Oct. 14, 1998), Washington App. No. 97CA2300, 1998 Ohio App. LEXIS 4909. Acquiescence rests on the practical reality that oftentimes, the true boundary [**9] line location is uncertain and neighbors may themselves establish boundaries. Richardson v. Winegardner (Nov. 2, 1999), Allen App. No. 1-99-56, 1999 Ohio 917. To apply this doctrine: (1) adjoining landowners must treat a specific line as the boundary; and (2) the line must be so treated for a period of years, usually the period required for adverse possession. Robinson, supra at P35; Matheson v. Morog (Feb. 2, 2001), Erie App. No. E-00-17, 2001 Ohio App. LEXIS 325; McGregor v. Hanson (Jun. 16, 2000), Geauga App. No. 99-G-2228, 2000 Ohio App. LEXIS 2666

Burkitt v. Shepherd, 2006-Ohio-3673, P15 (Ohio Ct. App., Pike County July 11, 2006)Appellants acquired their acreage from Daisy Smith in 1967 and 1977. More than twenty-one years elapsed before appellants claimed any land north of State Route 772. Furthermore, Daisy made several transfers, some as early as 1982, of the land north of the highway, and appellantes did not object or claim that their mother (and mother-in-law) transferred their property. Thus, a sufficient period of time has elapsed to invoke the doctrine of acquiescence. ID.Appellants, a daughter and son-in-law, sued appellees, a sister, a nephew and his wife, a bank, and a water company, in the Pike County Court of Common Pleas (Ohio) to quiet title to certain real estate and sued appellee surveyor for negligence and breach of contract. The trial court granted summary judgment in favor of each appellee, and the daughter and son-in-law appealed. Summary judgement affirmed. Id.The court of appeals spoke at length about adverse possession being disfavored. [**1012] We agree. HN2A successful adverse possession action results in a legal titleholder forfeiting ownership to an adverse holder without compensation. Such a doctrine should be disfavored, and that is why the elements of adverse possession are stringent. See 10 Thompson on Real Property (Thomas Ed. 1994) 108, Section 87.05 ("there are no equities in favor of a person seeking to acquire property of another by adverse holding"). We believe that the burden of proof should be equally rigorous. A substantial majority of our sister states agree and already apply the clear and convincing evidentiary standard, or a variant thereof, to adverse possession claims. n2 We hold that to acquire title by adverse possession, [*581] 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, 81 Ohio St. 3d 577, 580-581 (Ohio 1998)There is no question that the Kochs used the strip. They mowed the grass, parked cars in the strip, and their children played in [***9] the strip. The Kochs also placed firewood, oil drums, and a swing set in the strip. 4 While we consider the case a close one, we conclude that the record does not contain clear and convincing evidence that Grace or his parents were on notice that their dominions had been invaded in 1971. The Kochs asked for the Graces' permission before proceeding to mow the strip. Mr. Koch conceded that he knew that the strip belonged to Grace and that he never would have used it without permission. Absent clear and convincing evidence of the adversity of the Kochs' claim to the strip for the entire statutory period, adverse possession must fail. Id. |