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Canton Asphalt Co v. Daniel J. Fosnaught

November 14, 2011

CANTON ASPHALT CO.,
APPELLEE/CROSS-APPELLANT
v.
DANIEL J. FOSNAUGHT,
APPELLANT/CROSS-APPELLEE.



CHARACTER OF PROCEEDING: Civil appeals from the Stark County Court of Common Pleas, Case No. 2009CV00644

The opinion of the court was delivered by: Gwin, P.J.

Cite as Canton Asphalt Co. v. Fosnaught,

JUDGES:

Hon. W. Scott Gwin, P.J. Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J.

OPINION

JUDGMENT: Affirmed

{¶1} Defendant-appellant Daniel J. Fosnaught appeals a judgment of the Court of Common Pleas of Stark County, Ohio, which overruled the parties' objections and adopted and approved the decision of the magistrate to whom the matter was referred. The court found Fosnaught had not met his burden of proving he had a prescriptive easement or an easement by necessity over property owned by Plaintiff-appellee Canton Asphalt Company. The court found an agreement between the parties which gave Fosnaught a permissive license over Canton Asphalt's property was enforceable. Fosnaught assigns three errors to the trial court:

{¶2} "I. THE TRIAL COURT ERRED IN FAILING TO FIND THAT FOSNAUGHT HAS A PRESCRIPTIVE EASEMENT OVER THE DRIVEWAY.

{¶3} "II. THE TRIAL COURT ERRED IN FAILING TO FIND THAT FOSNAUGHT HAS AN EASEMENT BY NECESSITY OVER THE DRIVEWAY.

{¶4} "III. THE TRIAL COURT ERRED IN FINDING THE AGREEMENT BETWEEN CANTON ASPHALT AND FOSNAUGHT ENFORCEABLE WHEN IT IS VOIDABLE BASED UPON MUTUAL MISTAKE OF FACT."

{¶5} The trial court also found Canton Asphalt's claim to quiet title is a collateral attack on a prior judgment, and found Canton Asphalt was not entitled to recover its legal fees and court costs. From this portion of the decision Canton Asphalt assigns two errors:

{¶6} Cross assignments of error:

{¶7} "I. THE TRIAL ERRED IN DENYING CANTON ASPHALT'S MOTION FOR RECOVERY OF LEGAL FEES/COURT COSTS BECAUSE CANTON ASPHALT WAS THE ONLY PREVAILING PARTY IN THE LITIGATION ENSUING FROM THE AGREEMENT BETWEEN CANTON ASPHALT AND FOSNAUGHT.

{¶8} "II. THE TRIAL COURT ERRED IN DISMISSING CANTON ASPHALT'S QUIET TITLE/ADVERSE POSSESSION CLAIM WITHOUT VISITING THE SUBSTANTIVE MERITS TEHREOF AND IN RULING THAT IT CONSTITUTED A COLLATERAL ATTACK UPON A JUDGMENT."

{¶9} The two appeals have been consolidated.

{¶10} The magistrate made extensive findings of fact. She found Fosnaught is the owner of 12.5 acres of land situated in the Southeast Quarter of Section 13, Jackson Township, Stark County, Ohio. The property has been in the Fosnaught family since July 7, 1960. Fosnaught also has become the owner of 0.023 acres of land, more or less, situated in the Southeast Quarter of Section 13, Jackson Township, Stark County, Ohio by virtue of a judgment entry recorded in a prior case. This smaller parcel is a narrow strip that extends from Whipple Avenue to the Fosnaught property.

{¶11} A driveway consisting of 0.06 acres extends from Whipple Avenue to the larger parcel of Fosnaught's property. The driveway includes Fosnaught's 0.023 acres and an additional 0.037 acres, of which Canton Asphalt is the record owner. Canton Asphalt's property is also a long narrow strip that lies side by side with Fosnaught's property. Thus the source of the problem is that the driveway Fosnaught uses for access to Whipple Avenue is wider than Fosnaught's parcel, and overlaps onto Canton Asphalt's 0.037 acres. In this action, Fosnaught claims ownership of the property of which Canton Asphalt is the record owner, while Canton Asphalt claims ownership of the other side of the driveway of which Fosnaught is the record owner.

{¶12} The magistrate found since acquiring the property in 1960, the Fosnaught family, their invitees, and others have used the driveway continuously for ingress and egress to the Fosnaught property. They have used it for cars, pickup trucks, semitrucks and large trailers.

{¶13} The Fosnaughts have used the property to store U-Haul trucks, scrap metal, and cars waiting to be crushed. The Fosnaughts leased a portion of the property to a car dealership to store new cars, and the lessee used the driveway to transport the cars on and off the Fosnaught property. The Fosnaughts have also used the property to raise cows, a bull, a pony, a horse, chickens, turkeys and goats, and have planted corn there. At the time the matter was heard, Fosnaught used the property to store approximately 600 salvage vehicles, using the driveway to transport these vehicles on and off his property. Fosnaught also presently has goats there, and uses the driveway for access to care for the goats.

{¶14} The parties were involved in a prior lawsuit over this property in 2006. While the matter was pending, in March and April of 2007, they entered into an interim agreement giving Fosnaught a license to use the entire driveway to access Whipple Avenue. At the time the parties entered into an agreement, they both believed Canton Asphalt held title to the entire driveway. Subsequently, the parties learned a portion of the driveway belonged to a third party. Fosnaught sued the third party, asserting adverse possession, and took a default judgment. Canton Asphalt attempted to intervene in the case after the judgment, but the court overruled its motion to intervene. Canton Asphalt did not appeal that decision.

{ΒΆ15} In the case at bar, Canton Asphalt claimed adverse possession of the property Fosnaught had acquired from the third party, and argued the court should find it was the owner of the entire driveway. The court found this was ...


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