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Alva L. Queen v. Marie Hanna

December 13, 2012

ALVA L. QUEEN, PLAINTIFF-APPELLANT,
v.
MARIE HANNA, ET AL., DEFENDANTS-APPELLEES.



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

Cite as Queen v. Hanna,

DECISION AND JUDGMENT ENTRY

{¶1} This appeal involves "Blackacre" and "Whiteacre" and "the bundle of sticks" known to law professors and their students as property rights. And as is often the case with such archaic matters, it is usually known to practicing lawyers and judges as a PITA. Alva Queen brought a quiet title action against Marie Hanna, Michael Hanna, Joyce Hanna, the unknown heirs of Sylvester Birch, and the unknown heirs of the unknown heirs of Sylvester Birch with regard to a private road. This road connects the Hanna land to a public road and runs along the northeast border of two tracts of land Queen owns, which we will refer to as the "Queen property" and the "Eric Martin property."*fn2 The trial court granted the Hannas a default judgment against the unknown heirs on the issue of fee simple ownership of the private road. In addition, the court found that Queen's properties did not have a prescriptive easement over the road.

{¶2} Queen contends that the court erred when it granted the Hannas a default judgment on the issue of fee simple ownership. We agree but for different reasons than Queen advances. The trial court heard evidence on the issue of fee simple ownership, and this evidence shows that the unknown heirs own the road, not the Hannas. Therefore, the court abused its discretion by issuing a default judgment contrary to the evidence.

{¶3} Next, Queen argues that the court's finding that he failed to show 21 years of continuous use of the private road to access the Queen property was against the manifest weight of the evidence. However, by Queen's own testimony the earliest time someone used the private road to access a trailer on the Queen property was 1980. There was at minimum a five-year period from 1987 to 1992 when no one used the private road for this purpose. The court could reasonably conclude such a gap constituted an abandonment of use. And because 21 years have not elapsed since the prescriptive easement clock started to run again in 1992, the court's finding was not against the manifest weight of the evidence.

{¶4} Finally, Queen claims that the court's finding that he failed to show 21 years of continuous use of the private road to access the Eric Martin property was against the manifest weight of the evidence. We agree. The undisputed evidence at trial established that Queen and his predecessors continuously used the private road to access the Eric Martin property for the requisite time period. Thus, we conclude the court's finding was against the manifest weight of the evidence. We affirm the trial court's judgment in part, reverse it in part, and remand for further proceedings.

I. Facts

{¶5} In 2006, Alva Queen filed a quiet title action against Marie Hanna regarding a private road that connected her land to Martin Road (a public road) and that runs along the northeast border of Queen's land. Queen alleged that he owned the private road in fee simple and that Marie had an easement by deed. He claimed that Marie had interfered with his use of the road. In addition, Queen alleged that the parties disputed the location of the common boundary line between their properties and the location of the easement. Queen asked the trial court to resolve these issues and enjoin Marie from interfering with his use of the road. In her answer, Marie claimed that she owned the road in fee simple and filed a counterclaim against Queen for trespass.

{¶6} Queen later came to believe that Sylvester Birch obtained fee simple ownership of the road by virtue of a 1914 deed. Presuming Birch was now deceased, Queen argued that the unknown heirs of Sylvester Birch owned the road in fee simple, that Marie at most had an easement by deed, and that Queen had a prescriptive easement. The parties filed briefs on the issue, and the court issued a judgment entry finding that Marie was the fee simple owner.*fn3 Afterwards, Marie conveyed her land to her children, Michael and Joyce, and reserved a life estate for herself.

{¶7} Subsequently, Queen filed an amended complaint with leave of court, naming Marie, Michael, Joyce, the unknown heirs of Sylvester Birch, and the unknown heirs of the unknown heirs as defendants. He alleged that Birch obtained fee simple ownership of the road in 1914, was presumed dead, and the identity and whereabouts of Birch's heirs was unknown and could not be ascertained. Queen alleged that the Hannas claimed an interest in the road and that he had a prescriptive easement regardless of who owned the road. In addition, Queen claimed that a controversy existed over the common boundary line between his property and the road. He asked the court to determine the boundary line and find that he established a prescriptive easement over the road. The Hannas filed a joint answer to the amended complaint and asked that "their Counter Claim as set forth previously be adjudicated and that they be granted the relief as demanded therein."*fn4 The unknown heirs were served by publication and did not file an answer to the amended complaint.

{¶8} Marie passed away, and the court conducted a bench trial, where Queen, Michael, and Joyce participated. During trial, the court heard testimony about two properties Queen owns, which we refer to as the "Queen property" and the "Eric Martin property." The Queen property is bordered on the southeast by Martin Road and is partially bordered on the northeast by the private road. The Eric Martin property is bordered on the northeast by the private road. The remainder of the property is surrounded by the Queen property. Thus, the Eric Martin property is landlocked. It can only be accessed from the private road or the Queen property. See footnote 2 and the Appendix.

{¶9} Queen's parents purchased the Queen property from his aunt in 1971.

Queen testified that to his knowledge, his parents believed they owned the private road. In 2001, Queen obtained ownership of the Queen property. Queen and his family used the private road from 1971 to the present. Queen acknowledged they did not use the road every day or every week, just whenever they needed to. In addition, his brother, Walter Queen, put a trailer on the Queen property in 1980 or 1981 and lived there "five- six years, maybe." Walter used the private road to access the trailer. Queen introduced into evidence a photograph of the trailer, which had a deck built off of it. He also introduced a July 1985 photograph showing a wooden post that he claimed was on the Queen property in the course of building the deck. After Walter moved, Queen's parents rented that area of the property to Randy and Missy Keys, who put their own trailer on it. That occurred in 1992, 1993, or 1996. The Keys used the private road to access their trailer. Queen's daughter, Debbie Maynard, put a second trailer on the Queen property in 2002 or 2003. She lived there and also used the private road. When Maynard moved out in 2007, Queen purchased the trailer and rented it out. Queen indicated he also currently rents out the Keys' trailer.

{¶10} Queen testified that at one point his parents owned the Eric Martin property. They sold it to his sister, Jenny Carver, and her husband Ben around 1973. The Carvers lived there for four or five years before moving and selling the property to someone named Snyder. Queen testified that the government took the property from Snyder and sold it to Eric Martin, who rented it to other people. A deed in the trial exhibits indicates that the Secretary of Veterans Affairs conveyed the property to Eric in 1993. According to Queen, Eric had tenants who used the private road to access the land. Queen bought the property from Eric in 2009.*fn5 Queen now rents out a doublewide trailer on the property.

{¶11} Bill Martin, Eric Martin's father, testified that in 1980 or 1981 he put a trailer on a certain portion of the Queen property for Walter Queen. He cut in a road from the trailer to the private road. He installed a "complete sewer system." Bill claimed Walter kept the trailer there "several years." He identified the trailer in one of Queen's photographs.

{¶12} Michael Hanna testified that his parents purchased the Hanna property in 1967 and that he and Joyce now owned the land. He has lived on the Hanna property since the late 1960s when he was a teenager. The first time he ever saw Queen, Queen's parents or "anybody on their behalf" on the private road was 1999 or 2000. He testified before that time, one could not access the Queen property from the private road because of a fence. Michael denied that the Walter Queen trailer existed. Michael never saw a trailer in that location prior to 1999. The only trailers he ever saw on the Queen property are the two currently there.

{¶13} Joyce Hanna testified that she moved to the Hanna property in 1966 or 1967. She never saw Walter Queen's trailer on the Queen property in the 1980s. Prior to 1999, a four strand barb wire fence blocked the Queen property from the private road. In 1999, Queen cut the fence and made a driveway from the Queen property to the private road. Queen put trailers in after that. On direct examination, defense counsel asked Joyce if she had any problems with the Eric Martin property having an easement over the private road. Joyce did not and agreed with counsel's statement that "[t]hat's the way it's always been[.]" On cross-examination, Joyce testified that there was single wide trailer on the Eric Martin property when she moved to the Hanna property in 1967. She acknowledged that from 1967 until trial, the Eric Martin property had been accessed by the private road.

{¶14} During trial, Queen orally requested a default judgment against the unknown heirs for a prescriptive easement. The court did not resolve the motion at that time. After trial, Queen and the Hannas attempted to draft an agreed entry for default judgment against the unknown heirs. The Hannas requested a hearing because the parties could not agree on the wording of the entry. At the hearing, Queen argued that he was entitled to a default judgment on his claim for prescriptive easements. The Hannas argued that they were entitled to a default judgment against the unknown heirs on the issue of fee simple ownership.

{¶15} Subsequently, the court issued the following judgment entry:

The Court finds by Nunc Pro Tunc Judgment Entry dated June 10, 2009, this Court made a determination that the Hannas are the fee simple owners of the "contested roadway". However, later it was determined that the unknown heirs of Sylvester Birch were the lawful titled owners, and that they had not been a part of the litigation at the time of trial. The Court further finds that the unknown heirs of Sylvester Birch had been served by publication, and are in default of answer.

So again, this Court will make its original finding that Marie Hanna and Michael Hanna are the fee simple owners of the "contested roadway".*fn6

The sole issue remaining for this Court to determine is whether the Plaintiff has proven an easement by prescription against the owners in fee simple of the disputed road.

The Plaintiff[ ] has met [all of the requirements] with the exception of not showing [he] continuously used the roadway ...


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