Barrett v. Wilmington
2016 Ohio 2776
Ohio Ct. App.2016Background
- Dorothy Barrett owned residential property at 642 Bernice Street since 1966; adjacent undeveloped property was platted and dedicated as a public right-of-way but never opened as a street.
- Barrett used the undeveloped strip for decades, placed permanent items (flagpole, small blacktop, "no trespassing" sign) and erected a partial fence/barricade that did not fully enclose the area.
- In 2015 Barrett filed a quiet-title action claiming adverse possession and fee simple title under the 21-year statutory period against the City of Wilmington; later defendants included Clinton County Open Lands (CCOL) and private neighbors.
- CCOL and individual defendants moved for summary judgment, arguing Barrett failed to meet the statutory fence-enclosure requirement of R.C. 2305.05 for adverse possession of municipal streets.
- The trial court granted summary judgment for defendants, finding Barrett did not fully enclose the street as required by R.C. 2305.05; Barrett appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether non-municipal parties (CCOL, neighbors) could raise R.C. 2305.05 | Barrett: statute is a defense only for the municipality; others lack standing to assert it | CCOL/defendants: as parties to the suit they may move for summary judgment and assert relevant legal defenses | Court: parties had standing to move for summary judgment; no error in considering R.C. 2305.05 |
| Whether Barrett acquired title by adverse possession of municipal right-of-way | Barrett: long, open, continuous, hostile, exclusive possession for 21 years; other permanent fixtures suffice for notice instead of a full fence | Defendants: R.C. 2305.05 requires full enclosure by a fence; Barrett did not completely enclose the property | Court: statute's fence requirement is mandatory; Barrett did not fully enclose the property, so adverse possession under R.C. 2305.05 fails |
Key Cases Cited
- Grace v. Koch, 81 Ohio St.3d 577 (1998) (elements for adverse possession require exclusive, open, notorious, continuous, and adverse use for 21 years)
- Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367 (1998) (summary judgment standard explained)
- Houck v. Board of Park Commissioners of the Huron County Park District, 116 Ohio St.3d 148 (2007) (general rule that adverse possession does not run against the state)