Peggy Kirk Hall, Asst. Professor, OSUE Agricultural & Resource Law Program
A recent decision by the Ohio Court of Appealsaddressed two important legal standards: the proof necessary to claim title to another's land by adverse possession andconditions allowinga trial courtto set asidea jury's verdict.
The case, Kiesel v. Hovis,centers on aland disputebetweentwo adjacent farms in Sandusky County, Ohio. A recent land survey established a new legal description and a boundary line between the farms; the survey placed the boundary line 126 feet east of a ditch that the Kieselshad previously considered theboundary. Since the new boundary reduced their parcel by seven acres, the Kiesels filed a lawsuit, claiming title to the seven acres of land by adverse possession.
Adverse possession is an old law; its historical purpose was to encourage settlement of the frontier by rewarding "squatters" who put land into productive use. Today, adverse possession is a controversial law used to try to resolve misunderstandings about boundaries established long ago. A party claiming land by adverse possessionmust prove that he orhis predecessorshad exclusive, continuous possession of the disputed land for at least 21 years and that the possession was open, notorious and adverse to the legal title holder. If the party proves each element of adverse possession, the court will order a new deed that changes title to the property.
Offering Evidenceto ProveAdverse Possession
Landowners often ask what type of evidence will prove the elements of adverse possession. In this case, the Kiesels offered proof throughthe testimony of severalwitnesses. Two farmers testifiedthat they had farmed the disputed landfor the Kiesels' predecessor from 1975 to 1993, although one farmerstated that hedidn't believe all of the land had belonged to the predecessor. The Kiesels also testified, stating that they hadowned the land since 1993, had farmed up to the ditch for ten years, had placed theland into the Conservation Enhancement Reserveprogram in 2003 and still received annual payments from the government for the land.
Hovis, the neighboring landowner and defendant in the case, offered witnesses to dispute the Kiesels' claims. The surveyor for Hovis testified that the new boundary line was consistent with oldlegal descriptions for other parcelsand with old tax maps. The surveyor also stated that early maps did not show the ditch; a ditch did not appear on any governmentmap until 1959. Hovis called a witness from the county auditor's office, who testified thatthe new survey line was consistent with old tax maps and that the auditor's office had ordered the new survey because the old legal description was ambiguous. Hovis alsotestified that his father had owned the land since 1966, that he and his father had paid taxes for the disputed strip since that time, and that his father and theowner previous to Kiesels were friends but that he didn't know whether theyhad an agreement about the use of theland in question. In reference to whether he had given the Kiesels permission to use the land, Hovis testified that he had never said anything but had consented to the use by his inaction, asit was difficult to get his equipment across the ditch to access the land.
Who Gets the Land?
As is often the situation in adverse possession cases, the jurysided with the legal title holder. A unanimous verdict by the jury rejected the Kiesels' claim of adverse possession and ruled in favor of Hovis.
A Court's Power to Set Aside a Jury Verdict
After the jury verdict, theKiesels asked the court for a “judgment notwithstanding the verdict.” Thismotion argues that the court shouldset aside a jury verdictbecausereasonable minds could have come to only one conclusion based on the evidence submitted, and that conclusionwas opposite the jury’s decision.The trial court agreed and granted the Kiesels' motion to replace the jury’s verdict, commenting that the jury had “lost its way.”Hovis immediately appealed the court’s decision to the court of appeals, arguing that sufficient evidence existed to refute the claim of adverse possession, the trial court had used the wrong standard for determining whether to set aside the jury's decision, and the trial court had invaded the “province of the jury.”
The Review by the Court of Appeals
The Sixth District Court of Appeals reinstated the jury’s verdict. The trial court’sconclusion that the jury had “lost its way” was "patently the wrong standard to use," the court of appeals stated. Instead, the trial court should have determined whether reasonable minds could have disagreedon the decision. Examining all ofthe witness testimony, the appeals court concluded that the testimony was not conclusive either way; reasonable minds could have examined the evidence andreached different conclusions about whether theKiesels had provenadverse possession. For this reason, the trial court erred by setting aside the jury's verdict.
Lessons Learned
The case reminds us once again of the difficulty of proving adverse possession. Imagine the jury's challenge: whether to take land from one landowner and give it to another. The difficulty of this task is likely one reason thatadverse possession claims are hard to win; another could be that "permission"for the use by the title owneris a defense to the claim that the use was "adverse" or against the wishes of the owner. While the Kiesels and predecessorshad clearly used the land in dispute for more than 21 years, they weren't able to convince the jury that their use wasadverse. Hovis, on the other hand, apparently established enough evidence to suggest that both he and his predecessor had allowed the use of the landsince it was on the other side of the ditch and not easily accessible, thereby giving permission for the use.The law of adverse possession does not allow a party to claim the land of one who has given permission or "acquiesced" in the use of his or her land by another, even if the other party mistakenly believes he or she owns the land.
This case alsoreminds us about the role of juries and judges in our legal system. While a trial court judge can disagree with a jury, the judge does not haveautomatic authorityto deprive the jury ofits decision. Only if there's nouncertainty about the interpretation of evidence--no room forreasonable minds to disagreeabout what the evidence proves--can a court step in and replace a jury's verdict. This is an important principle of our legal process, intended to balance power between the people and the courts.
Time will tell whether the Kiesels invoke another significant component of our legal process--the right torequest areview of the appellate court's decision by the Ohio Supreme Court. The appellate court's decision in Kiesel v. Hovis is here.
