No. 1422 | Ohio Ct. App. | Apr 4, 1928
“In this case the burden of proof is upon the plaintiff to prove all- the essential elements of his claim by a preponderance of the evidence, and this burden remains upon him throughout the entire trial. These essential elements are well stated by Judge Follett, in his opinion on pg. 21 of the 42 OS. Reports, in the case of Dietrick v. Noel, and are the following, to wit:
Adverse possession must be actual, open, continuous, hostile, and exclusive. The very essence of an adverse possession is, that' the holder claims the right to his possession, not under, but in opposition to the title to which his possession is alleged to be adverse. Nor is possession adverse when it is held by agreement with the true owner.
In this case there is no evidence of an express agreement made beween Memmer and Schmidt at the time the fence was moved, and the only evidence we have upon that subject is what Schmidt testifies to (Memmer being dead) — that he moved the fence to accommodate his brother-in-law and also to prevent the fence from being partially destroyed when the driveway was used, and that he moved it upon his own ground; and from that time in 1902 until 1914, the time that the plaintiff testified he paved the driveway, there is no evidence of any overt act by the plaintiff and his predecessors that they claimed to own this property, except the occasional use to .which they put the driveway.
The. evidence, in our judgment, =hows that the plaintiff and his predecessors in title held and used said 12-inch strip under and not in opposition to the title of the defendants and their predecessors. The. relationship of the original parties, the reasons given for the removal of the fence, and the reasonable and proper inferences to be drawn therefrom, the uses to which the driveway was put, and all of the circumstances as shown bv the evidence, convince us that the plaintiff is not entitled to claim, the 12-inch strip for any purpose over the objection of the defendants.
But assuming that the plaintiff has established his claim by some evidence that he has a right by prescription, we think that the defendant has shown by the evidence of Schmidt and the inferences to be drawn therefrom. that the original use was started by permission.
The plaintiff not having sustained the burden and proved bis case bv a preponderance of the evidence, his petition is dismissed, at his costs.”