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Litigation that arose from a drainage improvement project completed in 2002 has finally ended with a decision by the Ohio Supreme Court.  The court announced today that it will not accept the case for review, which allows the ruling by the Third District Court of Appeals in favor of the Henry County Engineer to remain in place.

Richard and Rodney Rohrs sued the county engineer  and several staff members in 2005 after a drainage project completed by the county flooded several acres of a farm field the Rohrs had rented from Gerald Westhoven.  In the late 1990s, Westhoven approached the Henry County Engineer about flooding problems on Westhoven's farm and the possibility of cleaning out the open drainage ditch that ran between his land and the county road.  The engineer proposed an alternative solution, to lay drainage tiles and fill the ditch, and offered to classify the work as a road safety improvement project to be handled through the engineer's budget rather than through the petition ditch process that would result in assessments on property owners.

The county engineer installed the new drainage system in 2002.  Westhoven entered into a lease for the land with the Rohrs in the Spring of 2003.  The Rohrs planted a tomato crop on the parcel; by July, part of the field was under water.   After the harvest season, the county engineer and Westhoven attempted to locate a drainage tile that could be the source of the flooding but they could not find any tile in the flooded area.  The county then installed a new catch basin near Westhoven's property to resolve the flooding problem, with plans to tie in any field tile that Westhoven might later discover on his land.  The Rohrs continued to lease the farmland from Westhoven.

According to witness testimony, the cause of the 2003 flooding was a drainage tile and catch basin just south of Westhoven's property that had been cut off during construction of the road improvement project drainage system; the engineer's staff  had filled the tile and catch basin because it did not appear to be a functioning tile and did not exist on any of the county's plans.  Excavation on the Westhoven property several years later revealed a drainage tile located just 15 feet from the filled tile and catch basin.  The newly discovered tile, which Westhoven had not previously reported to the engineer,  had a seed bag stuffed into its outlet, which was near the filled catch basin.   The Rohrs claimed that the engineer's staff had intentionally stuffed the seed bag into the functioning tile, while the engineer's staff claimed they did not know about the tile.   The county surmised that the seed bag had been used in the previous filling of the tile and catch basin that they had believed to be non-functioning.

The Rohrs sought $70,000 for losses to their 2003 tomato crop as a result of the flooding.  Their legal causes of action included several tort claims and violations of federal and state due process rights.  They also asked the court for a writ of mandamus to order the county to compensate them for a partial "taking" of their property by the county engineer.   The Henry County Court of Common Pleas, after seven years of litigation, rejected each of the Rohrs' claims.

The Rohrs appealed with no avail to the Third District Court of Appeals.  The appellate court agreed with the trial court's conclusion that state law prevented tort liability for the flooding because the county was entitled to governmental immunity under Ohio Revised Code 2744.02(A)(1) i.  The court stated that the Rohrs had failed to prove that any of the law's exceptions to governmental immunity applied to the situation.  In response to the Rohrs' argument that the county had committed a partial "taking" of property, the appeals court agreed with the trial court that a "taking" had not occurred for three reasons:  because the flooding was accidental and incidental rather than an intentional taking of property, because the alleged taking was not for a public use as required by the Constitution and because the Rohrs had other remedies for their harm, such as a tort claim against Westhoven and the failed tort claims against the county engineer.  As such other remedies were available, the court also agreed with the trial court that the Rohrs failed to prove violations of their due process rights.

In their request for a review by the Ohio Supreme Court, the Rohrs focused on the lower courts' conclusions that a "taking" had not occurred.  The Henry County Farm Bureau and the Ohio Farm Bureau filed a brief in support of the Rohrs, urging the Supreme Court to accept the case and review the takings issue.  The Court today declined to accept the case by a vote of 5--2 with Justices Paul Pfeifer and Judith French dissenting.  Without a review by the Ohio Supreme Court, the appellate court decision stands as the final resolution of the case.

The decision of the Third District Court of Appeals in State ex rel. Rohrs v. Germann is available here.

Peggy Hall, Asst. Professor, OSU Extension Agricultural & Resource Law Program

We often explain the Ohio Recreational User's Statute to farmland owners because the  law provides liability protection when someone asks to hunt, fish, snowmobile or conduct other recreational activities on the farm.  As long as the landowner grants permission for the use and does not receive a fee from the recreational user, the landowner does not owe a legal duty to assure that the premises are safe for the user.  This immunity from liability encourages those who own non-residential land to open the land for recreational activities.

Landowners always have "what if" type questions when we explain this law.  Recently, the Ohio Supreme Court answered one of those "what if" questions:  what if I modify the property in some way and create a hazardous condition that causes an injury; does the Recreational User's Statute still protect me from liability?  The Supreme Court's response:  yes.  But the court was not in complete agreement on the issue.

The accident at the heart of the case occurred when an 18 year old boy went sledding in a park owned by the City of Circleville, Ohio.  The boy slid head first into a wooden railroad tie which the city had transported to the park from a construction site.  The city planned to temporarily store the railroad tie and other construction debris at the park because no storage space was available at its maintenance facility.  Upon hitting the railroad tie, the boy broke his neck and became paraplegic.

In its decision in the lawsuit filed by the boy, the trial court determined that the city was immune from liability because of the Recreational User's Statute, which grants recreational immunity to governmental as well as private landowners.  The boy appealed the case to the Fourth District Court of Appeals, which affirmed the trial court's decision.  The Ohio Supreme Court agreed to review the case.

The question before the court was whether the city's action of placing the railroad ties in the park created an exception from the immunity provided by the Recreational User's Statute.  The boy's legal counsel argued that storage of the railroad ties and other construction debris in the park had changed the property's essential character so that it was no longer a recreational property and should not fall under the protection of the Recreational User's Statute.   A majority of the court disagreed, concluding that the city’s alleged creation of a hazard on the premises did not affect the city’s immunity.

"We cannot accept as reasonable any contention that the presence of a railroad tie in a public park changes its essential character as a recreational space,” wrote Justice Sharon Kennedy.  “Critics may claim that our decision reaches a harsh result.  However, the language of the recreational-user statute is plain; a property owner owes no duty to a recreational user to keep the property safe for entry or use.  Creating an exception to this immunity is a policy decision that comes within the purview of the General Assembly, not the courts. … [W]e will not create an exception by judicial fiat.”

Justice William O’Neill entered a dissenting opinion, joined by Justice Paul Pfeifer, who also wrote a separate dissent.   “[L]et’s be accurate here — we are not talking about a single railroad tie," stated Justice O'Neill.  "That tie that crippled this child was part of an overall scheme of disposal of huge mounds of debris that the city had incredibly decided to place in the middle of a recreational park! Cover it with a light dressing of snow, and the perfect killing field was created. . . . [T]he city made a decision to dump huge mounds of debris into a city-owned park. When it did that, it lost its “recreational user” immunity entirely."

In his dissent, Justice Pfeifer questioned the protection afforded by the Recreational User's Statute.  The immunity provisions in those statutes, he stated, "provide unreasonable and unconstitutional protection to government entities that own property."

What does the Court's decision mean for agricultural landowners? 

While the case did not involve an agricultural property, the decision does have impact for agricultural landowners.  A few lessons from the case:

Affirmation of broad landowner immunity.  The court's decision affirms the broad immunity afforded by Ohio's Recreational User's Statute.  We often hear questions such as "but what if I left my equipment out in the field?" or "but what if they fall into that hole I just dug?"   Based on the court's decision, the landowner has no duty to make the property safe and won't be liable for injuries caused by any "hazards" the landowner created on the property.   Remember that this immunity applies to "recreational users"-- property visitors who have the landowner's permission to engage in recreational activities such as hunting, fishing and snowmobiling on non-residential property and who haven't paid the landowner for the recreational activity (with an exception for hunting lease payments; landowners may receive hunting lease payments and still retain recreational user immunity).

Take recreational permission seriously.   This lawsuit arose because someone suffered a serious injury.  Even with immunity protection, landowners should think twice about allowing recreational users on the property when highly dangerous situations are present.  If there's a good chance that someone could suffer harm from the situation, avoid the potential of harm and simply don't grant permission for people to be on the property.

Immunity comes at a cost.    While it can prevent landowner liability, the Recreational User's Statute can't stop a harmed party from taking the landowner to court.    The city incurred not only the costs of defending itself through three court hearings, involving attorney fees and the city's time, but also the cost of negative publicity.  Surely, more responsible land management decisions would have cost less and kept someone from suffering harm.

The Ohio Supreme Court's decision in Pauley v. Circleville is available here.  The Ohio Recreational User's Statute is in Ohio Revised Code Sections 1533.18 and 1533.181.

Confusion at Federal Level Leaves Farmers Unsure of SPCC Rule Compliance    

Peggy Hall, Asst. Professor, OSU Extension Agricultural and Resource Law Program

A common joke among attorneys is that the answer to every legal question is "maybe," and that answer is appropriate when asking whether farms will be exempted from complying with the Oil Spill Prevention, Containment and Countermeasure (SPCC) rule.

May 10, 2013 was the compliance deadline for the EPA rule requiring SPCC plans for farms storing above a threshold amount of oil.  But several legislators have spoken out against the regulation and intend to exempt most farms from its requirements.   As we reported in an earlier post, legislators successfully delayed EPA's ability to enforce the SPCC rule against farms until September 23, 2013, and also drafted the legislation to exempt many farms from the SPCC rule.  But while the Senate and House have each passed proposals with SPCC exemption language, they've used two different bills to do so--the Senate's Water Resources Development Act and the House's Farm Bill.  Neither bill has passed both chambers and the SPCC exemption remains in limbo today, the date after which the EPA may begin enforcing the rule.

In mid-August, two sponsors of the exemption, Senators Inhofe (R-OK) and Pryor (R-AR), sent a letter to EPA Administrator Gina McCarthy regarding SPCC enforcement.  The letter clarified that Congress plans to exempt most farms from the rule and suggested that the EPA should not attempt to retroactively enforce the rule back to the original compliance date of May 10, 2013.  Time will tell whether the senators' letter will prevent EPA from penalizing farms that did not have an SPCC plan by May 10 but had an oil spill anytime after the May 10 compliance deadline.

What Should Farmers do about SPCC Plans now?

Farmers who have been waiting to see if Congress would exempt them from the SPCC rule have to make a decision:  comply now or risk penalties for non-compliance.  A few considerations may help the decision-making process:

• Operating without an SPCC plan carries financial risk.  If a farm that is subject to the SPCC rule does not have a plan but does have an oil spill that discharges into a waterway, the farm will incur additional penalties for failing to have and implement an SPCC plan.  These penalties vary depending upon the size of the facility and the severity of the spill; our research revealed recent fines ranging from $1,500 to over $55,000.  Our research also shows the cost of an SPCC plan from a certified engineer or consulting firm to begin at around $1,000, with higher costs for larger farms.
• Only certain farms must comply with SPCC.   Farms that store less than 1,320 gallons of diesel, gasoline, hydraulic oil, lube oil, crop oil or vegetable oil aboveground or less than 42,000 gallons below ground do not need an SPCC plan.   All other farms might need an SPCC plan if it's possible that spilled oil could discharge into a waterway.  To learn more about whether a farm is subject to the SPCC plan rule, visit here.
• Smaller, lower-risk farms can "self-certify" their SPCC plan.  The SPCC rule allows farms with smaller oil storage and no history of significant oil spills ("Tier I farms") to create and implement an SPCC plan; other farms require certification by an engineer.  The EPA provides a model template for  Tier I farms on their website.  Be aware, however, that preparing the plan requires some work:  a thorough assessment of the farm's oil storage, selection and installation of appropriate containment measures and proper training and response practices.  For those who don't want to prepare their own plan, consider a consultant.  Consulting companies offer services such as assessment, consultation, plan development, certification and future inspections.
• A farm may be able to seek a compliance deadline extension.   The SPCC rule allows a farm that couldn't meet the compliance deadline to submit a written request for an extension to the EPA regional administrator for the state where the farm is located.  There are several reasons EPA may grant an extension:  because a Professional Engineer (PE) isn’t available to create and certify a plan, if the farm is located in an area impacted by floods, or because facility modifications could not be completed before the deadline.  For more on seeking an extension, visit this link.
• Insurance coverage may be at risk.  Non-compliance with the law can negate insurance coverage; most insurers would likely deem the failure to have an SPCC plan after September 23, 2013 as "non-compliant."
• Oil storage containment is good risk management.  Even without the SPCC rule, assessing and managing oil storage and handling practices on the farm can pay off.  Consider the recent case of an Ohio farm with a leaking oil tank that polluted a nearby waterway; the farm paid over $15,000 in fines and cleanup costs.

While "maybe" is a good answer to whether Congress will exempt many farms from the SPCC rule, it isn't a good answer to whether farmers should ignore the SPCC regulation because of the confusion in Congress.  For more on SPCC and agriculture, visit the EPA's web page.      

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.