Update: On March 25, 2020, the Bilinoviches and Rails-to-Trails settled their claims against each other. The claims of the Koprivecs and the Koontzes are still pending.

“If a licensee is on the property of the title holder performing acts that would ordinarily require the permission of the owner, the exclusivity of the adverse-possession claimant would be interrupted.”

Justice DeWine, Majority Opinion

On February 7, 2018, the Supreme Court of Ohio handed down a merit decision in Koprivec v. Rails-to-Trails of Wayne Cty., 2018-Ohio-465. (According to the Reporter’s Note, the case was actually decided on January 24, 2018, while Justice O’Neill was still on the Court, but released on February 7, 2018, after O’Neill had left the Court.) This case involves issues both of deed construction and adverse possession. Justice DeWine wrote the opinion for the majority.  The position of the various justices will be further set forth in this post, as the adverse possession issues in the case are fact-intensive and complicated.  The case was argued May 16, 2017.

Case Background

In 2009, Rails-to-Trails bought an old abandoned railroad corridor by quitclaim deed, intending to create a public multipurpose trail. Three of the adjacent property owners– the Koprivecs, the Bilinoviches, and the Koontzes (collectively, “the landowners”)—challenged Rails-to-Trails’ ownership of parts of that corridor.

In 2011, the landowners filed suit to establish ownership by adverse possession of the sections of the corridor next to their respective properties. While there is some question about whether the 21 year period began to run in 1987 or 1989, the issue germane to this appeal is whether the landowners can prove exclusivity for the requisite 21 year period.

The Koontzes and the Bilinoviches also claimed that under an 1882 deed, those sections of the corridor adjacent to their properties reverted to them when the corridor ceased being used as a railroad.

Rails-to-Trails argued the landowners cannot prove exclusive possession of their parts of the corridor because of certain license agreements between Consolidated Rail Corporation (Conrail), the then-owner of the corridor, and two telecommunications companies, to install fiber-optic cables and other maintenance activities undertaken by employees of those companies, and also because of certain maintenance work and walking along the corridors by railroad-company employees after 1987. So Rails-to-Trails filed counterclaims for declaratory judgment and to quiet title.

Both sides moved for summary judgment in the case. The trial court granted summary judgment to Rails-to-Trails on all the landowners’ claims, and on its counterclaims. The trial court found that the 1882 deed did not create a determinable fee, meaning that the property would not revert to the grantors when it ceased being used as a railroad.  And as for the adverse possession claims, the trial court found the landowners failed to meet the exclusivity prong because  of the license agreements with the telecommunications companies, the activities of company employees on the land, and an inspection of the corridor by a railroad-company employee.

The Ninth District affirmed in part and reversed in part. The appeals court affirmed as to the deed, agreeing the land did not revert to the landowners if no longer used for railroad purposes. But the appeals court reversed on the adverse-possession claims, finding the license agreements and activities of the telecommunications companies were insufficient as a matter of law to defeat the exclusivity elements of the adverse possession claims.  The appeals court also held that there were genuine issues of material fact about the activities of the railroad-company employee that made summary judgment inappropriate.

Read the oral argument preview of the case here and the analysis of the argument here.

Key Precedent

In re Copps Chapel Methodist Episcopal Church, 120 Ohio St. 309 (1929). (When a deed does not include an express reverter clause, or provision of reversion “of the property to the heirs of the grantor,” a fee simple absolute is created. Using language like “so long as” merely creates a covenant, which is insufficient for reversion.)

Grace v. Koch, 81 Ohio St.3d 577 (1998) (“[T]o acquire title by adverse possession, a party must prove by clear and convincing evidence, exclusive possession and open, notorious, continuous, and adverse use for a period of twenty-one years.”)

Walker v. Lucas Cty. Bd. of Commrs., 73 Ohio App.3d 617 (6th Dist. 1991) (Finding a fee simple interest when limiting language was in the granting clause.)

Hinman v. Barnes, 146 Ohio St. 497 (1946) (“[I]f the intention of the parties is apparent from an examination of the deed ‘from its four corners,’ it will be given effect regardless of the technical rule of construction.”)

Black’s Law Dictionary 816 (10th Ed.2014) (Defining the granting clause as “[t]he words that transfer an interest in a deed,” and defining the habendum clause as “the part of a . . . deed . . . that defines the extent of the interest being granted and any conditions affecting the grant.”)

1 Tiffany, Law of Real Property, § 29 (3d Ed.1939) (The use of the word “forever” is indicative of an intent to convey a fee simple absolute).

2 Thompson on Real Property, § 20.02 (The use of limiting language, like “until,” “during,” or “so long as,” in a deed typically creates a fee simple determinable.)

4 Tiffany, Law of Real Property, § 1141 (3d Ed.1975) (Mere presence on the disputed property will not defeat the exclusivity requirement of adverse possession. Instead, the true owner must “assert[], by word or act, any right of ownership or possession” of the property.)

 Herrick v. Cleveland, 4 Ohio C.D. 684 (1893) (“Adverse possession in law means exclusive possession, where someone else is excluded who claims the right to possess.”)

Savransky v. Cleveland, 4 Ohio St.3d 118 (1983) (“[A]n adverse party may not rest upon the mere allegations or denials of his pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial.”)

Light v. Ohio Univ., 28 Ohio St.3d 66 (1986) (Defining a “licensee” as “a person who enters the premises of another by permission or acquiescence.”)

Westfield Ins. Co. v. Galatis, 2003-Ohio-5849, syllabus (“A prior decision of the Supreme Court may be overruled where (1) the decision was wrongly decided at that time, or changes in circumstances no longer justify continued adherence to the decision, (2) the decision defies practical workability, and (3) abandoning the precedent would not create an undue hardship for those who have relied upon it.”)

Dissent Precedent

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.  Factual disputes that are irrelevant or unnecessary will not be counted”)

Merit Decision

Scorecard

The justices unanimously rejected the argument by the Bilinoviches and the Koontzes that the disputed corridor section adjacent to their respective properties reverted to them when the corridor stopped being used for railroad purposes. The court found the deed created a fee simple absolute, but not for the reasons the court of appeals did. But Justice Fischer, concurring in judgment only, and joined by Chief Justice O’Connor, disagreed with the majority’s repudiation of the Copps Chapel case, on the deed issue.

On the issue of adverse possession, all the justices agreed the trial court properly granted summary judgment to Rails-to-Trails on the adverse possession claim of the Bilinoviches. Opinion author DeWine, and Justices French, Kennedy, Fischer, and Chief Justice O’Connor agreed summary judgment was not appropriate on the adverse possession claims of the Koontzes or the Koprivecs. Justices O’Donnell and O’Neill would have affirmed the trial court entirely on the adverse possession claims, which, in case you are lost, means the landowners could not claim the land was theirs on that basis. However Justice O’Donnell wrote nothing at all about this except his conclusion, while Justice O’Neill wrote lots, but Justice O’Donnell did not join O’Neill’s partial dissent.

The Deed

Remember, all the justices rejected the argument by the Bilinoviches and the Koontzes that the property reverted to them under the 1882 deed when the property ceased being used as a railroad. The court of appeals had also rejected that argument, but relied on the 1929 Copps Chapel case in reaching its conclusion.  The majority agrees with the court of appeals’ holding about the deed, but not its reasoning, finding Copps Chapel “an unsuitable precedent” on which to decide this case.

Copps Chapel

The habendum clause in the deed conveying property to a church in this case included the language “to have and to hold…unto the said grantees and their successors…so long as said lot is held and used for church purposes. According to the majority, under long settled law, language like “so long as” created a fee simple determinable, meaning if the property wasn’t going to be used for church purposes any more, it reverted back to the grantor.

Copps Chappel held the only way a fee simple determinable could be created was to include language explicitly stating that the property would revert to the grantor upon the happening of a stated event. It was in reliance on Copps Chapel that the court of appeals found the deed did not revert in this case to the Bilinoviches or the Koontzes.

A majority repudiates reliance on Copps Chapel, which it describes as an outlier, “in favor of a simple rule that a deed should be construed by examining the four corners of the deed to determine the intent of the grantor.”  The plain language of the deed controls. In this case, those four corners evidence an intent to convey a fee simple absolute.

Justice Fischer, concurring in judgment only, disagrees with the majority’s repudiation of Copps Chapel, since no party challenged the validity of that decision in the case, and in effectively overruling it, Fischer criticizes the majority for failing to conduct the Galatis test for overturning precedent.  Chief Justice O’Connor joined this concurrence.

Onward, to Adverse Possession

Bottom Line

Justice DeWine cites Powell on Real Property for the general rule which is, that “exclusive possession can be shown by acts that would ordinarily be exercised by an owner in appropriating land to the owner’s own use and to the exclusion of others.” The majority also determines that the claims of the landowners must be analyzed individually.

Just so you know, here is where the trail ends: there are genuine issues of material fact about whether the activities of the telecommunications companies interrupted the exclusivity of the landowners’ possession, but the acts of a railroad company employee unequivocally interrupted that exclusivity on the Bilinovich property.

Activities of the Telecommunications Companies  

Adverse possession must be exclusive, not only as to true owners, but also to other third persons entering the land claiming permission from the true owner. That includes licensees. A license alone, like an easement for utilities, doesn’t interfere with that exclusivity, but more does. And here, there was more.

Licensees’ Activities on the Bilinovich Section

Brian Bilinovich testified that on two occasions, employees of the telecommunications companies came onto the corridor at his request to mark the location of the utility lines and to seek permission to trim some trees. Since both were done with his permission, and without any claim of ownership by the companies, neither interrupted the Bilinoviches’ exclusive possession.

In 2007, one of the telecommunications companies undertook a large, right-of-way clearing project.  The majority finds this type of project was the type of “possessory activity” that one would expect an owner, or someone acting with the owner’s permission, to undertake, but since by affidavit Bilinovich denied seeing any clearing activity on his section, and claimed to clear his part himself, there are genuine issues of material act as to whether the activities of the telecommunications companies interfered with the Bilinoviches’ exclusive possession.

Licensees’ Activities on the Koontz and Koprivec Sections

Rails-to-Trails makes the same argument about the 2007 clearing project—that it defeats the claims of exclusive possession of the other two landowners. These owners also claimed they cleared their own sections, which meant the company employees skipped clearing there. Same result—genuine issues of material fact on exclusivity.

Activities by Conrail

Rails-to-Trails also argued that actions of prior-title-holder Conrail’s employees must be taken into account.

Conrail Activity on Koontz Section

Rails-to-Trails relies on the affidavit of Judith Wiley, the Koontzes’ predecessor-in-interest, who claims that in the 1990’s a person on the right-of-way identified himself to her as a railroad-company employee and advised her “not to trespass on the railroad right of way.” But as the court of appeals found, the landowners introduced substantial evidence contradicting this affidavit, putting Wiley’s credibility at issue, and making summary judgment inappropriate. So, the majority finds the appeals court was correct in reversing the grant of summary judgment on the Koontzes’ adverse-possession claim.

Conrail Activity on the Bilinovich Section

Different story here. A railroad employee named Solomon Jackson entered into extensive discussions with Bilinovich about a sale or lease of the corridor to Bilinovich. As part of those discussion, in early 2002, Jackson and Bilinovich walked the corridor together, although they never reached a deal.

“It is hard to imagine a more direct assertion of ownership over a piece of property than a title holder standing on his property, inspecting it with another, and offering to lease it to that person. Nevertheless, the court of appeals disregarded these activities,” wrote DeWine. Finding that the railroad company unequivocally took action that would be taken by an owner, exclusive possession by the Bilinoviches was interrupted as a matter of law.  The court of appeals was wrong in reversing summary judgment in favor of Rails-to-Trails on the Bilinoviches’ claim.

Conrail Activity on the Koprivec Section

Rails-to-Trails didn’t make any argument about the actions of railroad-company employees on this tract, relying strictly on the actions of the telecommunications companies.  So the appeals court did not err in reversing the trial court’s grant of summary judgment to Rails-to-Trails on this basis against the Koprivecs.

Justice O’Neill’s Dissent

Justice O’Neill disagrees with the majority that there are genuine issues of material fact on the adverse possession claims of the Kopivecs and the Koontzes. He thinks the trial court correctly granted summary judgment to Rails-to-Trails on these claims.

Key to O’Neill was the unrebutted testimony by Judith Wiley, the Koontzes’ predecessor-in-title, that a railroad company employee walking along the rail corridor in the early to mid 1990’s told her not to trespass on the land.  Despite other testimony that the Wileys chased trespassers off their part of the corridor, parked on the property, and tried to sell it, the unrebutted fact that the railroad company employee told Wiley to stay off the rail corridor in the 1990’s ends the matter, for him.  No exclusive possession. And stating lack of knowledge is not the same as rebutting facts.

Also significant to O’Neill was the substantial unrebutted evidence about the entry by employees of the telecommunications company who entered to clear brush along the rail corridor.

“…I cannot agree that the act of entering and inspecting the land to assure access to the fiber-optic cable falls outside of the category of conduct that ‘would ordinarily require the permission of the owner,’” wrote O’Neill. “…[t]he record shows undisputed instances of the title holder and of work crews hired by the title holder’s licensee using—or in other words, possessing—the land.”

Bottom Line, Dissent

O’Neill would reinstate the trial court’s grant of summary judgment to Rails-to-Trails on all the adverse possession claims.

Case Syllabus

None

Concluding Observations

For some reason, law students think adverse possession dies in law school, and I saw a certain rolling of the eyes when I said the blog would preview this case.  I happen to find these cases very interesting, and no, they don’t die in law school.

First off, a compliment to Justice DeWine.  This is one of the clearest opinions I have read, and on a very complicated set of facts. A pleasure to read.

As for the deed issues, after argument, I wrote, “I confess to getting a bit lost in the weeds here, but I think a majority is going to agree with the court of appeals that the Bussard deed  does not contain the language of forfeiture or reversion, and thus created a fee simple absolute, not determinable.” I certainly didn’t know about the fine points of the Copps Chapel  dispute, but was a bit amused when, after criticizing the majority in LGR Realty, Inc. v. Frank & London Ins. Agency, Slip Opinion No. 2018-Ohio-334 for not just going ahead and overruling Kunz v. Buckeye Union Insurance Co. in that case, Justice DeWine certainly walked back Copps Chapel  in this one, stating that “going forward, there is no longer reason to rely on it,” and stating that “continued reliance on it” was “inappropriate,”  and that the rule in it was “incompatible with our case law that says to look to the plain language of the deed so as to honor the grantor’s intent,” but didn’t expressly overrule it. In the end despite hacking away at it until it must be on life support, DeWine declares Copps Chapel to be “an unsuitable precedent on which to decide the issue before us.” That’s sort of what Justice Kennedy said about Kunz in LGR Realty, which DeWine criticizes.

I thought the court would not buy summary judgment on the adverse possession claims.  I wrote this after argument:

“I think the high court will agree with the lead opinion from the appeals court that license agreements and activities of utility company employees are insufficient as a matter of law to defeat the exclusivity prong of adverse possession.   That holding would be an important one, favoring the Landowners.  But after that, the court will probably agree with the appeals court that there are factual disputes about other activities, such as brush clearing and inspection of the corridor by a railroad employee that need to be resolved to determine if the 21-year exclusivity period was met or broken. Justice DeWine seemed most strongly inclined in that direction, and Justice Fischer also seemed to be leaning that way. ”

Student Contributor Jefferson Kisor wrote this after argument:

“This case was incredibly fact-intensive, and riddled with disputes. The “clearing activity” in 2007 was just one of the issues discussed. The Bilinoviches did not contest that this occurred on the section of land abutting their property. However, the licensees allegedly asked Mr. Bilinovich’s permission to enter the property and treated him as the “true owner.” Furthermore, the Koontzes and Koprivecs disputed that the licensees did any “clearing” on their respective sections. Justice DeWine appeared very hesitant about reinstating summary judgment. His questions continually went back to the factual issues, referencing different instances in the record. Even though adverse possession is generally disfavored, I believe that Mr. Fusonie convinced the Court that summary judgment was improper. The mere existence of the license does not sever the adverse possessors’ exclusive possession, especially since these licensees were not asserting their dominion over the property. I am confident that the Court will find a genuine issue of material fact and remand this case to the trial court.”

This remand should be particularly interesting, and the blog shall continue to follow it. It looks like much is going to turn on whose version is believed about that 2007 clearing project.