Ohio Court of Appeals Issues “Prescriptive Easement” Decision Addressing “Tacking” and Continuous Use Requirements

August 10, 2015

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.