Rising v. Litchfield Twp. Bd. of Trustees
2015 Ohio 3091
Ohio Ct. App.2015Background
- Robert R. Rising, Jr. owns property at 3933 Avon Lake Road; an approximately 16×40 ft portion of adjoining Norwalk Road property was used as a driveway for ingress/egress by his parents and him for decades.
- Litchfield Township acquired the Norwalk Road property in 1999 and barricaded the driveway in 2010, prompting Rising to sue to quiet title and for injunctive relief, claiming a prescriptive easement.
- At summary-judgment stage the trial court granted the township judgment; this court reversed in part on appeal, allowing the claim to proceed if Rising’s easement vested before 1999.
- On remand a bench trial occurred; the trial court found Rising failed to show continuous use for 21 years because Rising was “absent” 1970–71 and 1974–79 and refused to allow tacking of his parents’ use to his own.
- The appellate court held Rising’s unrebutted testimony showed sufficient, non‑abandoned use (at least weekly visits and his parents’ continued use) from 1974–1979 to allow tacking and remanded for the trial court to decide remaining elements (privity already found).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rising established a prescriptive easement by 21 years of open, notorious, adverse, continuous use | Rising: His and his parents’ continuous use (tackable) predates 1999 and meets the 21‑year requirement | Township: Easement cannot vest against municipal land and there were breaks in continuous use (Rising absent 1970–71, 1974–79) | Court: Trial court erred finding a break 1974–79; remanded to determine remaining tacking elements and whether Rising’s post‑tacking use meets prescriptive elements |
| Whether tacking of predecessor’s use applies | Rising: He is in privity with his parents and may tack their use to reach 21 years | Township: Implicitly disputed sufficiency of predecessor’s continuous use; also argued municipal immunity from prescriptive easements | Court: Privity found earlier; factfinder must assess whether other tacking elements (same manner, continuous, adverse, open, notorious) are satisfied by clear and convincing evidence |
Key Cases Cited
- Eastley v. Volkman, 132 Ohio St.3d 328 (2012) (standard for manifest‑weight review in civil cases)
- Wood v. Kipton, 160 Ohio App.3d 591 (2005) (elements of prescriptive easement)