Ochsenbine v. Village of CadizOchsenbine v. Village of Cadiz
{¶ 1} This timely appeal comes for consideration upon the record in the trial court, the parties’ briefs, and their oral arguments before this court. It involves a property dispute between plaintiffs-appellants, Thomas and Kimberly Ochsenbine, and defendants-appellees, the village of Cadiz, John and Lоrrie Jackson, Michael and Jodi Best, Anthony and Gail DeWalt, Clifford and Pamela Hirt, Angela Kay Martin, and Patricia Smith. The Ochsenbines appeal the decision of the Harrison County Court of Common Pleas that quieted title over the property in the name of appellees. The Ochsenbines argue that appеllees failed to prove that they had any claim on the property, that the evidence regarding appellees’ claim is in conflict, and that the Ochsenbines own the property in question in fee simple.
{¶ 2} We disagree with the Ochsenbines’ argument that they own the property in question in fee simple. Howevеr, we agree that there are genuine issues of material fact regarding whether appellees own the property in question. Appellees’ affidavits claim they do, but the Ochsenbines’ expert testified that they could not, so there is a genuine issue regarding whether these individuals own the disputed property, аnd the trial court, improperly granted summary judgment on this issue. Its .decision is reversed, and this cause is remanded for further proceedings.
Facts
{¶ 3} In 1853, the Steubenville & Indiana Railroad Company (“SIRC”) acquired a right of way for the purpose of constructing and operating a railroad over a strip of land through appropriation proceedings in the Harrison County Probate Court. This property interest was acquired on property then belonging to Thomas Grimes and Henry Boyles. The appellees in this case are the successors in interest and title to Grimes and Boyles.
{¶ 5} When the Ochsenbines attempted to gain zoning variances for their property, questions of property ownership were raised and this action was brought. The Ochsenbines sued Cadiz and several other persons who owned real estate abutting the strip of land in question. With their complaint, the Ochsenbines sought to quiet title over the property in question and sought a judgment declaring that they were the owners of that property. The individual property ownеrs filed cross-claims seeking to quiet title in their names. The parties eventually filed cross-motions for summary judgment. The trial court concluded that the Ochsenbines had no ownership or other cognizable legal interest in the premises and granted appellees’ motions for summary judgment. In doing so, it quieted title for 'those рeople who were successors to Grimes and Boyles.
Standard of Review
{¶ 6} On appeal, the Ochsenbines’ sole assignment of error argues:
{¶ 7} “The Harrison County Common Pleas Court erred in granting plaintiffappellee’s [sic]'motion for summary judgment as material issues of fact remained to be determined and defendants-appellees were not entitled to judgment as a matter of law.”
{¶ 8} In ruling on a motion for summary judgment, the court must construe the record and all inferences therefrom in the opposing party’s favor.
Doe v. First United Methodist Church
(1994),
Action to Quiet Title
{¶ 10} The Ochsenbines argue that thе trial court erred by concluding that appellees, rather than the Ochsenbines, owned the property. In particular, they contend that appellees faded to prove that they were successors in title to Grimes and Boyles, that the Ochsenbines’ expert disputed their claims that they were the successors in interest to Grimes and Boyles, and that the instrument conveying the original property rights to the railroad company contained no word of reversion.
{¶ 11} An action to quiet title is a statutory cause of action under
{¶ 12} “An action may be brought by a person in possession of real property, by himself or tenаnt, against any person who claims an interest therein adverse to him, for the purpose of determining such adverse interest. Such action may be brought also by a person out of possession, having, or claiming to have, an interest in remainder or reversion in real property, against any person who claims to have an interest therein, adverse to him, for the purpose of determining the interests of the parties therein.”
{¶ 13} The purpose of any quiet-title action is to conclusively determine the allocation of property interests.
Lincoln Health Care, Inc. v. Keck,
11th Dist. No. 2002-L-006,
{¶ 14} The Ochsenbines argue that the rаilroad company’s original interest in the property was an indefeasible fee simple, rather than an easement, since the judgment entry granting its property interest in the land did not contain any reversionary language. Thus, they claim that they, as the successors in interest to the railroad company, are the rightful owners of the property.
{¶ 15} In Ohio, “a fee simple is the highest right, title and interest that one can have in land. It is the full and absolute estate in all that can be granted.”
Masheter v. Diver
(1969),
(¶ 16} The Ohio Supreme Court has framed the question as follows: if the conveying instrument refers to “land,” a fee is thereby conveyed; if the granting clause refers only to a “right,” then it сonveys only an easement.
Hinman v. Barnes
(1946),
{¶ 17} In this case, there is some dispute regarding the words contained in the trial court’s journal entry establishing the railroad company’s interest in this property. Each of the individuals submitted affidavits citing a portion of the journal of the Harrison County Probate Court. According to their affidavits, the journal states that the apportionment action was “for the purposes of securing to said Corporation forever the right of way in, upon and across said parcel of land and for constructing and forever maintaining and keeping in repair thereon their rail road.” However, none of those individuals attached an actual copy of the document they purported to quote frоm to their affidavits.
{¶ 18} Cadiz attached a copy of a different journal entry to its motion for summary judgment. That journal entry was entered after a jury trial on the damages the railroad company had to pay Grimes and Boyles. It stated that the railroad company brought the suit to obtain “the right of way” and that it “shall hold the рroperty, rights and privileges in the statement and proceedings herein
{¶ 19} While there is some discrepancy between the language quoted by the individuals and the language in the journal entry in the file, the operative language in each is the same. Each of them refers to the interest the railroad company received as a “right.” As stated above, whеn the instrument states that it is conveying a “right,” then it conveys an easement instead of a fee simple.
Hinman,
{¶ 20} Since the Ochsenbines, as the railroad company’s successor in interest, had only an easement, they never had an ownership interest in the property. Thus, the trial court properly granted summary judgment against them on this issue.
The Appellees’ Ownership
{¶ 21} The Ochsenbines next argue that the trial court erred when quieting title in the names of the individuals who claimed that they wеre successors to Grimes and Boyles. They contend that the individuals did not adequately support their claims for purposes of summary judgment and that their evidence conflicts with that of the Ochsenbines’ expert witness. Furthermore, the Ochsenbines claim that their expert’s testimony conflicts with the evidence provided by appellees.
{¶ 22} In the first of these two issues, the Ochsenbines argue that appellees failed to meet their initial burden under
{¶ 23} “[A], party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party’s claims. The moving party cannot discharge its initial burden under
(¶ 24} In support of their argument that appellees did not meet their initial burden, thе Ochsenbines rely on the proposition in Dresher that the moving party may not simply make the conclusory assertion that the nonmoving party has no evidence to prove its case but must instead point to some evidence demonstrating that the nonmoving party has no evidence to prove its case.
{¶ 25} The Ochsenbines’ argument here is based on the self-serving nature of the evidence relied on by appellees in moving for summary judgment. Specifically, the Ochsenbines argue that the affidavits relied on by appellees are self-serving, conclusory, and speculative. There is, however, no case law supporting thе idea that the moving party may not rely on self-serving affidavits. To the contrary, “the rule of law regarding self-serving affidavits submitted during a summary judgment exercise applies only to the nonmoving party’s use of such affidavits.”
Belknap v. Vigorito,
11th Dist. No. 2003-T-0147,
{¶ 26} In Belknap, the plaintiff sued his attorney for malpractice. The defendant then moved for summary judgment, which the court grantеd. In support of his motion for summary judgment, the defendant attached a self-serving affidavit.
{¶ 27} On appeal, the plaintiff questioned whether the party moving for summary judgment could rely on self-serving testimony. The court held that “a moving party’s self-serving affidavit is adequate evidence under
{¶ 28} Here, appellees pointed to their own affidavits in support of their argument that title to the strip of land in question passed to them upon the railroad’s abandonment of the easement. Appellees’ affidavits stаted that they believed themselves to be the “successor in interest and title to Henry Boyles and Thomas Grimes,” the owners of the servient estate when the easement was originally granted. These affidavits clearly support appellees’ claims for the purposes of summary judgment, so they met their initial burden as rеquired by
{¶ 30} Appellees argue that Piccin’s affidavit does not actually create a genuine issue of mаterial fact since he failed to follow proper surveying protocols when reaching his conclusion. But appellees’ arguments ask us to weigh the evidence, determine the credibility of the various witnesses, and discount the credibility of Piccin’s affidavit. For the purposes of summary judgment, we must look at the еvidence in the light most favorable to the nonmovant, so we cannot discount Piccin’s affidavit, despite appellees’ allegations that he did not follow proper surveying procedures.
{¶ 31} Since the evidence regarding appellees’ ownership of the disputed property conflicts, the triаl court erred by granting appellees’ motion for summary judgment on this issue. While the land may not belong to the Ochsenbines, it is also not clear whether it was sold to appellees’ predecessors. It is possible that the land belongs to the heirs of Boyles and Grimes. These issues would have to be resolved on remand before the trial court can quiet title in appellees’ names. Accordingly, the judgment of the trial court is reversed and this cause is remanded for further proceedings.
Judgment accordingly.