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2 of 93 DOCUMENTS
ALBERT KEIM, Plaintiff-Appellant v. NOAH RABER, et al., Defendants-Appellees
Case No. CA-487
COURT OF APPEALS OF OHIO, FIFTH APPELLATE DISTRICT, HOLMES
COUNTY
1993 Ohio App. LEXIS 6372

December 13, 1993, Entered

PRIOR HISTORY:
[*1] CHARACTER OF
PROCEEDING: Civil Appeal from the Court of
Common Pleas. Case No. 91-C-220, 45-15120

amended complaint, appellant reiterated his original

adverse possession claim (Count 1) and alleged a second
claim involving a right of way.

DISPOSITION: JUDGMENT: Affirmed

The matter came on for bench trial and at the

conclusion of appellant's case in chief, and pursuant to
Civ.R. 50, the trial court granted appellees' motion for
directed verdict as to appellant's first claim. The court
then took under advisement the second claim and
rendered a decision/order filed July 16, 1992, in which it
rendered judgment in favor of appellees and against
appellant on the second claim [*2] and dismissed the
complaint.

COUNSEL: For Plaintiff-Appellant: JOHN L.

WOODARD, 121 W. 3rd Street, P.O. Box 584, Dover,
Ohio 44622.
For Defendants-Appellees: MARK W. BASERMAN,
STEIMEL & BASERMAN, 111 South Clay Street,
Millersburg, Ohio 44654-1307.
JUDGES: Hon. W. Scott Gwin, P.J., Hon. William B.
Hoffman, J., Hon. Sheila G. Farmer, J.
OPINION BY: SHEILA G. FARMER
OPINION
OPINION
FARMER, J.
Appellant, Albert Keim, filed a quiet title/adverse
possession complaint in the Court of Common Pleas of
Holmes County against appellees Noah Raber, et al. By

Appellant timely requested Civ.R. 52 findings of fact

and conclusions of law and the court filed same as
requested. The court adopted verbatim appellees'
proposed findings (filed August 28, 1992) which did not
address the second claim. Keim v. Raber (Apr. 5, 1993),
Holmes App. No. CA-471, unreported. On remand, the
trial court reissued its findings of fact and conclusions of
law on June 21, 1993, dismissing appellant's amended
complaint as to both Count 1 and Count 2.
Appellant timely filed a notice of appeal and this
matter is now before this court for consideration.
Assignments of error are as follows:
ASSIGNMENT OF ERROR NO. I

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1993 Ohio App. LEXIS 6372, *2

THE TRIAL COURT COMMITTED

REVERSIBLE ERROR IN DISMISSING
COUNT ONE "FOR FAILURE TO
PRODUCE EVIDENCE TO SHOW
ENCLOSURE (SIC) OF THE AREA."
ASSIGNMENT OF ERROR NO. II
SEASONAL
USE
OF
THE
PROPERTY IS SUFFICIENT TO
ESTABLISH ADVERSE POSSESSION.
ASSIGNMENT OF ERROR NO. III
DISMISSAL OF PRESCRIPTIVE
EASEMENT FOR INGRESS AND
EGRESS AS TO COUNT TWO OF
PLAINTIFF-APPELLANT'S
COMPLAINT IS ERRONEOUS AND
MANIFESTLY
AGAINST
THE
WEIGHT OF THE EVIDENCE.
I, II
Appellant claims that the trial court [*3] erred in
dismissing Count 1 for quiet title for failure to produce
evidence to show inclosure of the area and that the
possession was adverse. We disagree.
The trial court and appellees rely on Humphries v.
Huffman (1978), 33 Ohio St. 395, 403, for the proposition
that adverse possession fails for lack of inclosure:
The party who enters without color of
title, and who relies on adverse possession
only as a defense against a legal title, must
show a substantial inclosure, an actual
occupancy, a pedis possessio, which is
definite, positive, and notorious, to
countervail such legal title. Jackson v.
Woodruff, 1 Cowen, 285; Jackson v.
Shoemaker, 2 Johns. 234; Doe v.
Campbell 10 Johns. 477.
The issue of "adverse possession rests on its peculiar
facts." Montieth v. Twin Falls United Methodist Church,
Inc. (1980), 68 Ohio App.2d 219, 224, 428 N.E.2d 870.
The trial court, in its judgment entry dated June 21,
1993, at Finding of Fact 5, found the following:

5. The 0.3 acre was referred to as

triangular or triangle piece of tract at trial
of this matter, but was not enclosed. (See
Joint Exhibit One) (R 57/4 and 74/15)
As a result of that [*4] finding, the trial court, in its
Conclusion of Law 1, found against appellant as to Count
1 of the amended complaint:
A) Plaintiff failed to produce evidence to
sufficiently identify enclosure of the area
claimed to be adversely possessed.
B) Plaintiff failed to produce evidence
to show enclosure of the area claimed to
be adversely possessed.
Inclosure is defined as "land surrounded by some
visible obstruction." Black's Law Dictionary (6 Ed. 1990)
763. The trial court cites to the record when finding this
fact and following conclusions. T.57. There is a
difference between the survey not showing a "closure,"
and lack of inclosure as defined above. While it is true
that an action in quiet title must provide a correct survey,
in the case sub judice, legal closure is found. The lack of
"inclosure" alone may not defeat a claim to adverse
possession, but may be one of the factors. Humphries.
The trial court did not base its decision only on the
issue of "inclosure," as evident by Conclusion of Law 1:
C) Plaintiff failed to show continuous
possession of the property for twenty-one
years prior to filing this action. Montieth
v. Twin Fall (sic) United Methodist [*5]
Church, 68 Ohio App. 2d 219, 420, 428
N.E.2d 870 NE 2d (870 Summit Cty.,
1980).
D) Plaintiff's seasonal use of the property
for some but not all years is not sufficient
to establish adverse possession.
E) Use by others of the property failed
to establish the degree of adversity
necessary to establish adverse possession.

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1993 Ohio App. LEXIS 6372, *5

There is evidence of seasonal gardening (T.43), and

sporadic farming (T.116), and some years it was not
farmed (T.82). Others also used the foot path to the store
with a foot bridge. T.15-16. Clearly, the possession was
not solely limited to appellant. We will not reverse a
judgment supported by some competent, credible
evidence as against the manifest weight of the evidence.
C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio
St.2d 279, 376 N.E.2d 578.
As we noted above, the determination of adverse
possession succeeds or fails on the particular facts.
Monteith. To establish adverse possession, appellant
bears the burden of proving that appellant's possession
was "hostile and adverse and be accompanied by visible
acts which outwardly demonstrate occupation and
ownership." Id. at 222.
The trial court further found that the "use by others
[*6] of the property failed to establish the degree of
adversity necessary to establish adverse possession."
Conclusions of Law 1(E), based on Findings of Fact 8, 9,
10, 11 and 12.
Upon our review, we find the judgment to be
supported by competent, credible evidence.
Assignments of Error I and II are overruled.
III
Appellant claims that the trial court erred in
dismissing his claim for a "prescriptive easement of
ingress and egress." Appellant argues that this decision
was against the manifest weight of the evidence. We
disagree.
As previously stated, a judgment supported by
competent, credible evidence will not be reversed as
against the manifest weight of the evidence. C.E. Morris.
A land owner obtains a prescriptive easement for a
specific use of adjacent property when such use was
open, notorious, adverse to the neighbor's property rights,

continuous and in place for at least twenty-one years.

J.F. Gioia, Inc. v. Cardinal American Corp. (1985), 25
Ohio App.3d 33. The land owner claiming the
prescriptive easement has the burden of proving each of
the elements. Id. The trial court found, in Finding of Fact
15, the following:
15. Plaintiff had a conversation [*7]
with defendant Joe Erb and received
permission to use the area of the claimed
right-of-way, to go back and forth (R
32/15) and give plaintiff a right of way (R
32/22).
Upon review, we find that the record fails to
establish a right of way by prescription and the judgment
is supported by competent, credible evidence.
Assignment of Error III is overruled.
The judgment of the Court of Common Pleas of
Holmes County, Ohio, is hereby affirmed.
By Farmer, J.
Gwin, P.J. and
Hoffman, J. concur.
JUDGMENT ENTRY
For the reasons stated in the Memorandum-Opinion
on file, the judgment of the Court of Common Pleas of
Holmes County, Ohio, is affirmed.
Sheila G. Farmer
W. Scott Gwin
William B. Hoffman
JUDGES