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Ohio State University Extension


Ohio law on adverse possession

Peggy Kirk Hall, Asst. Professor, OSUE Agricultural & Resource Law Program     

A recent decision by the Ohio Court of Appeals addressed two important legal standards: the proof necessary to claim title to another's land by adverse possession and conditions allowing a trial court to set aside a jury's verdict.

The case, Kiesel v. Hovis, centers on a land dispute between two adjacent farms in Sandusky County, Ohio.   A recent land survey established a new legal description and a boundary line between the farms; the survey placed the boundary line 126 feet east of a ditch that the Kiesels had previously considered the boundary.   Since the new boundary reduced their parcel by seven acres, the Kiesels filed a lawsuit, claiming title to the seven acres of land by adverse possession.

Adverse possession is an old law; its historical purpose was to encourage settlement of the frontier by rewarding "squatters" who put land into productive use.  Today, adverse possession is a controversial law used to try to resolve misunderstandings about boundaries established long ago.  A party claiming land by adverse possession must prove that he or his predecessors had exclusive, continuous possession of the disputed land for at least 21 years and that the possession was open, notorious and adverse to the legal title holder.   If the party proves each element of adverse possession, the court will order a new deed that changes title to the property.

Offering Evidence to Prove Adverse Possession

Landowners often ask what type of evidence will prove the elements of adverse possession.  In this case, the Kiesels offered proof through the testimony of several witnesses.   Two farmers testified that they had farmed the disputed land for the Kiesels' predecessor from 1975 to 1993, although one farmer stated that he didn't believe all of the land had belonged to the predecessor.   The Kiesels also testified, stating that they had owned the land since 1993, had farmed up to the ditch for ten years,  had placed the land into the Conservation Enhancement Reserve program in 2003 and still received annual payments from the government for the land.

Hovis, the neighboring landowner and defendant in the case, offered witnesses to dispute the Kiesels' claims.  The surveyor for Hovis testified that the new boundary line was consistent with old legal descriptions for other parcels and with old tax maps.  The surveyor also stated that early maps did not show the ditch; a ditch did not appear on any government map until 1959.  Hovis called a witness from the county auditor's office, who testified that the new survey line was consistent with old tax maps and that the auditor's office had  ordered the new survey because the old legal description was ambiguous.  Hovis also testified that his father had owned the land since 1966, that he and his father had paid taxes for the disputed strip since that time, and that his father and the owner previous to Kiesels were friends but that he didn't know whether they had an agreement about the use of the land in question.  In reference to whether he had given the Kiesels permission to use the land, Hovis testified that he had never said anything but had consented to the use by his inaction, as it was difficult to get his equipment across the ditch to access the land.

Who Gets the Land?

As is often the situation in adverse possession cases, the jury sided with the legal title holder.  A unanimous verdict by the jury rejected the Kiesels' claim of adverse possession and ruled in favor of Hovis.

A Court's Power to Set Aside a Jury Verdict

After the jury verdict, the Kiesels asked  the court for a “judgment notwithstanding the verdict.”  This motion argues that the court should set aside a jury verdict because reasonable minds could have come to only one conclusion based on the evidence submitted, and that conclusion was opposite the jury’s decision.   The trial court agreed and granted the Kiesels' motion to replace the jury’s verdict, commenting that the jury had “lost its way.”   Hovis immediately appealed the court’s decision to the court of appeals, arguing that sufficient evidence existed to refute the claim of adverse possession, the trial court had used the wrong standard for determining whether to set aside the jury's decision, and  the trial court had invaded the “province of the jury.”

The Review by the Court of Appeals

The Sixth District Court of Appeals reinstated the jury’s verdict.  The trial court’s conclusion that the jury had “lost its way” was "patently the wrong standard to use," the court of appeals stated.  Instead, the trial court should have determined whether reasonable minds could have disagreed on the decision.  Examining all of the witness testimony, the appeals court concluded that the testimony was not conclusive either way;  reasonable minds could have examined the evidence and reached different conclusions about whether the Kiesels had proven adverse possession.  For this reason, the trial court erred by setting aside the jury's verdict.

Lessons Learned

The case reminds us once again of the difficulty of proving adverse possession.  Imagine the jury's challenge:  whether to take land from one landowner and give it to another.   The difficulty of this task is likely one reason that adverse possession claims are hard to win; another could be that "permission" for the use by the title owner is a defense to the claim that the use was "adverse" or against the wishes of the owner.   While the Kiesels and predecessors had clearly used the land in dispute for more than 21 years, they weren't able to convince the jury that their use was adverse.  Hovis, on the other hand, apparently established enough evidence to suggest that both he and his predecessor had allowed the use of the land since it was on the other side of the ditch and not easily accessible, thereby giving permission for the use.  The law of adverse possession does not allow a party to claim the land of one who has given permission or "acquiesced" in the use of his or her land by another, even if the other party mistakenly believes he or she owns the land.

This case also reminds us about the role of juries and judges in our legal system.  While a trial court judge can disagree with a jury, the judge does not have automatic authority to deprive the jury of its decision.  Only if there's no uncertainty about the interpretation of evidence--no room for reasonable minds to disagree about what the evidence proves--can a court step in and replace a jury's verdict.   This is an important principle of our legal process, intended to balance power between the people and the courts.

Time will tell whether the Kiesels invoke another significant component of our legal process--the right to request a review of the appellate court's decision by the Ohio Supreme Court. The appellate court's decision in Kiesel v. Hovis is here.

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