January 22, 2009

Court rules on ownership of 97/10,000ths of an acre

By Paul E. Pfeifer
Ohio Supreme Court Justice

Throughout history there have been countless border disputes, great and small. Germany and France battled over Alsace-Lorraine; Canada and the United States once got testy about the border of Alaska; even Ohio and Michigan squabbled over Toledo and surrounding territory. Now we can add to that list the Evanich-Bridge boundary quarrel.

It all began in 1965, when William Evanich bought a piece of land in a residential subdivision with his wife, Roselyn. The Evaniches built a house on the property and began landscaping in 1967.

Before he started landscaping, Evanich surveyed the property by running string from a survey stake at the rear of his lot to a stake at the front. Evanich assumed that the resulting line marked the edge of his land.

With his boundary defined, Evanich installed a split rail fence, decorative railroad ties, stone blocks, bushes, flowers and at least one tree. All of that landscaping was in place when, in 1977, Steven and Margaret Bridge bought the property next door.

In 2002, twenty-five years after moving in, the Bridges had their lot surveyed and discovered that Evanich's 1967 self-survey had included 97/10,000ths of an acre that belonged to the Bridges. Evanich had unwittingly landscaped along what he assumed was his lot line.

Upon making this discovery, the Bridges sent a letter to the Evaniches requesting removal of the split rail fence and other landscaping. The Evaniches refused, and instead filed a complaint in court to obtain a declaration of their rights through adverse possession.

What is adverse possession? It's a legal doctrine that says a plaintiff -- the Evaniches in this case -- can acquire legal title to another person's real property if he or she proves exclusive possession and open, notorious and continuous use adverse to the owner for a period of 21 years.

At trial, William Evanich testified that he had intended to landscape his own property only, and that he would not have planted where he did had he known that the property belonged to his neighbors.

The trial court concluded that the claim for adverse possession was proven by a preponderance of the evidence and judged in favor of William and Roselyn Evanich. But the Bridges appealed, arguing that the trial court had applied the wrong standard of proof.

The case was sent back to the trial court to apply the standard of clear and convincing evidence, but again the trial court ruled in favor of the Evaniches. So the Bridges appealed again, this time arguing that William and Roselyn were required to show that they took possession of the land with the intent to claim title to it.

Despite the Bridges' argument, the court of appeals affirmed the judgment of the trial court. After that, the border dispute came before us -- the Supreme Court of Ohio -- for a final review.

The doctrine of adverse possession is well established in Ohio, with Supreme Court cases on the subject dating back to the 1800s. Time and again we have determined that in order to succeed in acquiring title by adverse possession, the claimant must show exclusive possession that is open, notorious, continuous and adverse for 21 years. But the issue here is how the claimant's intent relates to the legal element of adversity.

We have never said that a claimant must establish subjective intent to acquire title to someone else's land in order to succeed in an adverse possession claim. Rather, the adversity element has been explained this way: "It is the visible and adverse possession with an intent to possess that constitutes the occupancy's adverse character, and not the remote motives or purposes of the occupant."

In a case on this subject from 1866, our court addressed the precise issue of whether the element of adversity requires that a person have the actual motive, the intent, to claim the property of another.

In that 1866 case, the court considered instructions that were given to the jury on adverse possession that stated: The person seeking adverse possession "must have knowingly and designedly taken and held the land... Occupancy by accident, or mistake, or ignorance of the dividing line, is not sufficient."

But that instruction was rejected as unprecedented, erroneous and "mischievous in its operation." Instead, the court in 1866 reaffirmed that possession is what matters.

The 1866 court said that 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."

As Justice Judith Ann Lanzinger wrote in our majority opinion, "In other words, title may be acquired 'irrespective of any question of motive or of mistake.' In a claim for adverse possession, intent is objective rather than subjective in determining whether the adversity element of adverse possession has been established, and the legal requirement that possession be adverse is satisfied by clear and convincing evidence that for 21 years the claimant possessed property and treated it as the claimant's own.

"This has been the law in Ohio for over 140 years, and we are unwilling to alter a rule that has successfully directed the application of the doctrine of adverse possession for so long."

The court of appeals concluded that the Evaniches acted in a way consistent with true ownership by installing landscaping that included railroad ties, the fence, the tree and all the rest. The court determined that the Evaniches possessed the necessary intent based on their exclusive control over the property for 35 years.

We saw no error in the court of appeals' conclusion that the Evaniches took possession of the disputed property via adverse possession. We therefore affirmed -- by a seven-to-zero vote -- the judgment of the court of appeals.

Thus ends another of history's border disputes.

EDITOR'S NOTE: The case referred to is: Evanich v. Bridge, 119 Ohio St.3d 260, 2008-Ohio-3820. Case No. 2007-0863. Decided Aug. 5, 2008. Majority opinion written by Justice Judith Ann Lanzinger.

Ohio Supreme Court Justice Paul E. Pfeifer is a Bucyrus native.