Rising v. Litchfield Bd. of Twp. Trustees
2012 Ohio 2239
Ohio Ct. App.2012Background
- Rising sought a prescriptive easement over a driveway leading to his Avon Lake Road property.
- Rising and his parents allegedly used the Norwalk Road driveway continuously since 1951 to access the Avon Lake Road property.
- Litchfield Township acquired the Norwalk Road property in 1999 and barricaded the driveway in 2010.
- The trial court granted Litchfield summary judgment and denied Rising summary judgment; the issue was whether Rising could establish an easement by prescription against a municipality.
- The appellate court found potential pre-1999 usage could vest a prescriptive easement and that genuine issues of material fact remained; judgment was affirmed in part, reversed in part, and remanded.
- Costs were taxed equally to both parties.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by granting summary judgment for Litchfield | Rising contends he may establish a prescriptive easement by tack, potentially pre-1999. | Litchfield argues no prescriptive right can vest against municipal property and that Rising failed to meet elements. | Yes; grant of summary judgment reversed; genuine issue of material fact remains. |
| Whether the trial court correctly denied Rising's summary judgment motion | Rising asserts entitlement to summary judgment on his prescriptive easement claim. | Litchfield maintains there is no basis for a prescriptive easement as a matter of law. | No; Rising's motion was properly denied. |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (Ohio 1996) (summary judgment burden and de novo review)
- Dresher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (burden on movant under Civ.R. 56(C))
- Wyatt v. Ohio Dept. of Transp., 87 Ohio App.3d 1 (11th Dist.1993) (adverse possession generally cannot be asserted against the state or its subdivisions)
- Zipf v. Dalgarn, 114 Ohio St. 291 (1926) (tacking of adverse uses requires privity and continuous use)
- Renner v. Johnson, 2 Ohio St.2d 195 (Ohio 1965) (timing of an easement by prescription)
- Wood v. Kipton, 160 Ohio App.3d 591 (2005) (requirements for proving prescriptive easement and tacking)