Wischt v. Heirs of Mourer
2017 Ohio 8236
| Ohio Ct. App. | 2017Background
- adjoining landowners in Guernsey County dispute right-of-way or easement through neighbor’s land; quiet title and settlement enforcement claim filed; mortgage/chain of title traced for appellees and appellants; adverse possession claim alleged by Mourers' heirs; trial court denied appellees' easement/settlement claims and later granted summary judgment to appellees on adverse possession issue; Kittle deposition evidence and timeline of permission events central to whether possession was permissive or adverse.
- appellees claimed an easement or established settlement enforceable right-of-way; appellants argued they acquired title via adverse possession to an eleven-acre tract; Kittle testified he granted permission through his father to Mourers to water cattle; permission not revoked despite ownership changes; use argued to be open, notorious, exclusive, and continuous; trial court ultimately found permission existed and adverse possession failed.
- the chain of title shows appellees acquired property in 2014 via a trust deed, while appellants traced to Mourers through multiple deeds and transfers from 1949 onward; the trial court found no reliable evidence of an easement and granted summary judgment for appellees on quiet title and settlement claims; the dispositive issue became whether Mourers’ use of the eleven acres was adverse possession rather to be condemned.
- the appellate court held there was no genuine issue of material fact that permission existed and use was not adverse possession; summary judgment for appellees affirmed.
- the court relied on the permissive-use framework and refused to adopt Eckman’s broad permissive-to-adverse standard for family members; Galbraith’s pasture-case rationale supported that pasture use alone is insufficient to establish adverse possession absent evidence of exclusivity and improvements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there is a genuine issue of material fact about permission to Mourers | Wischt: permission existed via Kittle’s father; continuous since 1950s | Mourers were not the occupiers after 2008; no continuous permission; prior permission cannot ripen | No genuine issue; permission proven and adverse possession fails |
| Whether Mourers’ use was adverse possession | Wischt: use was open, notorious, exclusive, continuous for 21 years | Mourers’ use was permissive or not exclusive; not adverse | Summary judgment for appellees; no adverse possession |
| Whether open, notorious, continuous elements were proven | Wischt: evidence shows notice to owner via pasture use | No clear and convincing evidence; Oliver affidavit self-serving | Not proven; elements not satisfied |
| Whether the affidavit of Wanita Oliver created a material fact issue | Oliver corroborates 1967 use | Self-serving, uncorroborated; insufficient to defeat summary judgment | No material fact issue; trial court did not err |
Key Cases Cited
- Grace v. Koch, 81 Ohio St.3d 577 (Ohio 1998) (open/notorious use and possession standards in adverse-possession analysis)
- McKenna v. Boyce, 2012-Ohio-5163 (Ohio App.3d 2012) (mowing/maintenance not sufficient for adverse possession)
- Galbraith v. J.J. Detweiler Enterprises, Inc., 164 Ohio App.3d 332 (Ohio App. 2005) (pasture land adverse-possession cases require exclusivity and potential owner use remains)
- Eckman v. Ramunno, 2010-Ohio-4316 (Ohio 7th Dist. 2010) (permissive use analysis not adopted; focus on occupier and permission)
- Patterson v. Licking Township, 2017-Ohio-1463 (Ohio App.5th Dist. 2017) (self-serving affidavits insufficient to create material fact)