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Perry v. Davis

Court of Appeals of Ohio, Second District

September 20, 2013

MARLA J. PERRY Plaintiff-Appellee
v.
DELBERT DAVIS, et al. Defendants-Appellants

Civil appeal from Common Pleas Court T.C. NO. 12CV295

ROBERT A. WINEBERG, Atty. Reg. No. 0039771, Attorney for Plaintiff-Appellee

JACOB M. JEFFRIES, Atty. Reg. No. 0078470, Attorney for Defendants-Appellants

OPINION

DONOVAN, J.

(¶ 1} This matter is before the Court on the Notice of Appeal of Delbert and Karen Davis. The Davises and Marla Perry own adjoining parcels of land in Christiansburg, and the Davises appeal from the decision of the trial court which determined the disputed location of the property line between the parties on Perry's motion for declaratory judgment. We hereby reverse the judgment of the trial court.

(¶ 2} By way of background, the record reflects that Perry resides at 21 Pike Street. There is confusion in the record regarding the address of the Davises. We note that in their answer, the Davises admitted that they reside at 19 Pike Street, which is immediately east of 21 Pike Street, but in his testimony, Delbert stated that his address is 17 Pike Street, and that his "second property" is 19 Pike Street. 17 Pike Street is directly east of 19 Pike Street. At issue is the property line between 19 Pike Street and 21 Pike Street. All three properties are situated on the north side of Pike Street, which is perpendicular to Main Street to the east. 19 and 17 Pike Street are within "out lot 43" of the original village of Christiansburg, while Perry's property is immediately west of the original Christiansburg boundary. "In lot" 35 is between the eastern edge of out lot 43 and Main Street. First Street is north of and parallel to Pike Street.

(¶ 3} On September 24, 2012, Perry filed a "Complaint for Declaratory Judgment and Injunctive Relief" According to Perry, the Davises, "began pouring gravel and made other preparations for what appeared to be a driveway and possibly leading to a garage yet to be built." Perry asserted, "based upon the survey of Mark Scholl, Registered Surveyor No. 6599 * * * Defendants' new construction is trespassing upon her property * * * ." Perry asserted that the "proposed construction violates the Christiansburg Building and Zoning Code requiring all new construction to be not less than five (5) feet from the property line." Finally, Perry asserted, the "survey of Mark Scholl shows a property line discrepancy of approximately two (2) feet at the northeast corner of Plaintiff s property and the northwest corner of Defendant[']s property a[s] to where the correct corner is located. The dispute as to where the property line exists narrows as the line runs from Plaintiffs northeast corner to her southeast corner." Perry sought declaratory relief as to the location of the property line between the parties and to enjoin further construction by the Davises. Perry attached Scholl's survey to her complaint. She also filed a "Motion" for a temporary restraining order "enjoining the Defendants from continuing their construction * * *."

(¶ 4} On September 28, 2012, the Davises filed an Answer, in which they denied that Scholl's survey is accurate, and alleged that a recorded survey by Wallace Lynn Geuy is an "accurate survey for the lot of Defendants, and that the plat appended hereto and incorporated herein as Exhibit B accurately depicts the lot lines of the Plaintiff and Defendants." The Davises admitted that they "poured a concrete pad, " and they asserted "that the pad was placed there so that a movable shed could be placed thereon."

(¶ 5} On November 9 and 29, 2012, the court heard the testimony of Geuy, Delbert Davis, Scholl, and Mike Cozad, another surveyor. Geuy testified that he is a professional engineer and licensed professional surveyor, and that he was employed by the Ohio Department of Transportation for 31 years both as an engineer and surveyor. According to Geuy, "every winter for four or five years, I was part of the chief survey crew and responsible for doing the research and actually excavating and identifying the monuments, " namely "section corners and quarter corners on the secondary routes" throughout "District 7" in Ohio. He stated that he also performed surveys throughout Champaign County from 1964 to 1988 on a part-time basis. Geuy stated that subsequent to his 1989 retirement from the State of Ohio, he "was involved with the Simon Kenton Trail between Urbana and Springfield. And that included preparing the plans and doing all the research on the right-of-way to verify the old railroad right-of-way in Clark and Champaign County, " on a full time basis. In total, Geuy estimated that he performed 20 to 30 surveys a year, and he stated that he "did considerable research for the subdivision in the south side of Christiansburg about ten years ago."

(¶ 6} Geuy stated that Delbert Davis contacted him in September, 2007 and "asked to have the box monumentation replaced that had been torn out by a tree and stump removal operation across the back of the lot." Geuy stated that he surveyed the Davises' property, and that he verified his survey in August of 2012, after being informed by Delbert Davis that "his neighbor had engaged another surveyor that claimed that they discovered a 2-foot encroachment on the back corner of the lot."

(¶ 7} In the course of his survey, Geuy stated that he "went back to - - actually, I went back when Ohio became a state and to the surveying and methods that were used then." Geuy provided a written summary of his findings which provides in part, "Ohio was the first State to be formed out of the Northwest territory and thus became the location for experimenting with many systems of subdividing public lands." Geuy stated that a copy of the original plat of Christiansburg, which was formerly known as Addison, was recorded on October 18, 1817, 14 years after Ohio became a state. Geuy stated that the initial plat "was just a drawing" that contained "no dimensions and no street ways."

(¶ 8} In completing his survey, Geuy stated that he employed the practices of the surveying trade. Geuy stated that a transfer of "all of the original plat of Christiansburg, " from Robert Smith to James Smith, was recorded in Deed Volume I, page 433, on October 8, 1828. According to Geuy, "this plat does give some insight with the intended size of the lots by indicating in lots that contain one-fourth acre and five perches. Outlots will contain one acre." He stated that a perch is 16 and a half feet. Geuy explained that an acre is comprised of 160 square perches, and a quarter acre is comprised of 40 square perches. He stated that the in lots were comprised of a total of 45 square perches, namely five perches by nine perches, while the out lots were 16 perches by ten perches.

(¶ 9} Geuy stated that in 1836 "James Smith transferred to A.G. McFarland the southwest corner of Outlot 43, being 25 [perches] from the southeast corner of [in] lot 35, which is the west line of Main Street. And that confirms the lot sizes from Volume I on page 433 of the 16 perches wide plus the 9 perches for the in lot, which equals 25 perches."

(¶ 10} Geuy noted that on April 8, 1853, the Daniel Howell Addition was recorded, which was comprised of five lots. The record reflects that the Howell addition is also on the north side of Pike Street, west of out lot 43. Geuy stated no "alleys and no streets are shown" between out lot 43 and the Howell addition. Geuy stated that Howell sold lot number one of the addition, the most eastern lot of thereof, to John Collins on March 20, 1968, in Deed Volume 40, page 124. Then, according to Geuy, on April 14, 1874, Howell sold a "10-foot wide access" to Collins. Exhibit F is a copy of the deed for the access, and it provides in part: "Commencing at the north east corner of lot No. One (1) of Howells Addition to the town of Addison, running East ten feete (sic) (10) thence North fourteen rods[1] thence West ten feete to a stone and thence south fourteen rods to the place of beginning." Geuy stated that the alley extended to First Street.

(¶ 11} Geuy stated that on January 12, 1897, the Craven/Pearson Estate transferred to Lucretia J. Andrews "a tract being 4 rods of the west side of Outlot 43 and also a tract commencing at the southwest corner of Outlot 43 and running west to Daniel Howell's original east line." Geuy noted that "there is no east/west dimensions on that tract between the Outlot 43 and Howell's east line."

(¶ 12} Geuy stated that on "July 23, 1901, deed book 487 John Wilson sold 3.25 acres to Adam Bright. This description makes reference to the 10-foot alley or access that was transferred to John Collins in 1874 and recorded in 1899." Geuy stated that the Wilson and Bright Addition Plat, dated December 18, 1908, recorded January 22, 1909, includes the 3.25 acres, and the "plat shows a 12-foot-and-a-half wide alley between Pike Street and First Street * * * . This is the first time for an alley to be officially platted and recorded in this location. If the east side of the 10-foot access was Howell's east line, then the 12-foot alley shown on the plat creates a 2-foot overlap on the adjoining. And that would be a problem." Geuy stated, "it's my opinion that the 12-foot alley width is an error because Daniel Howell did not hold the 2-foot width in question when his addition was platted." Geuy stated that there are "survey pins along the west side of the alley that were set by - - I can't think of the surveyor's name. I know he was from Miami County." Geuy stated that he located the alley pins.

(¶ 13} When asked if his survey of the Davis property was in compliance with the prior work done by "Mr. McCullough, " a former county surveyor, Geuy responded as follows:

Yes. That's another idiosyncracy of Champaign County. Survey plats for the last 50 years or so have not been recorded as such. I can go to Logan County or Lima County and the original survey, number one plat, is in the plat book there to look at.
You have to go from deed descriptions. And Mr. McCullough worked for the county as a surveyor for years. And when he retired, he brought all of his notes in. The County Engineer's office has probably four file drawers full of notes and plats that he drew. So unless you know the system in Champaign County it's hard to find them. It's hard enough to find them when you do know where to start looking.

(¶ 14} Geuy stated that in the absence of plats, the standards of his business require him to "take into consideration the occupation lines and any previous surveys that have been monumented. Which in this case Mr. McCullough did considerable research according to his notes and set pins going to several adjoining properties." Geuy testified that McCullough's "original plat that is in the file cabinet as well as the deed calls for a wood post at the northeast corner" of 17 Pike Street. According to Geuy, in 2007, he found "remnants of a wood post, which [McCullough's] survey was about 40 years old." Geuy stated that he used an iron "pin I found on the north side of Pike Street and the wood post and staked the deed distances east and west from there for the two lots that Mr. Davis had." Geuy's survey indicates that he found the iron pin at the southeast corner of 17 Pike Street, and that he set an iron pin at the northeast corner of 17 Pike based upon the wooden post.

(¶ 15} The following exchange occurred:

Q. Now, subsequent to finding this wood post and using it for reference for your monumentation did you have occasion to - - when it was brought into question, did you have occasion to go back and try to determine all of the thoughts and ideas Mr. McCullough had had when he set that post?
A. Yeah. I reviewed that and that's where I run into all this history lesson that I've testified to.

Geuy stated that subsequent to his survey of the Davis property, Paul Clapsaddle surveyed the adjoining property to the east and "used the monuments that I used to set pins on Mr. Davis' lot." Geuy's written summary provides, "I hesitate to disturb, move or change a line that has been monumented, recorded and accepted for many years."

(¶ 16} Geuy stated that there is an "undetermined strip width" between the original east line of Howell's addition and out lot 43, which is where Perry's property is located. ...


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