Koprivec v. Rails-To-Trails of Wayne Cnty.

153 Ohio St.3d 137

102 N.E.3d 444

2018 Ohio 465

KOPRIVEC et al., Appellees; Bilinovich et al., Appellees and Cross–Appellants,

v.RAILS-TO-TRAILS OF WAYNE COUNTY, Appellant and Cross–Appellee.

No. 2016–0704

Supreme Court of Ohio.

Submitted May 16, 2017

Decided January 24, 2018^*

Vorys, Sater, Seymour and Pease, L.L.P., Thomas H. Fusonie, and Daniel E. Shuey, for appellees Don and Carolyn Koprivec and for appellees and cross-appellants Brian and Laura Bilinovich and Joseph D. and Michelle K. Koontz.

Walter Haverfield, L.L.P., Ralph E. Cascarilla, and Bonnie S. Finley, for appellant and cross-appellee.

Chad A. Endsley, Leah Curtis, and Amy Milam, urging reversal for amici curiae Ohio Farm Bureau Federation and Wayne County Farm Bureau.

DeWine, J.{¶ 1} This case involves a dispute about ownership of an abandoned rail corridor. It pits a nonprofit organization, Rails-to-Trails of Wayne County ("Rails-to-Trails"), which seeks to develop the corridor into a bike trail, against three landowners, who claim ownership of the sections of the corridor adjacent to their properties. We have before us issues of deed construction and adverse possession.

{¶ 2} The first issue involves construction of an 1882 deed by which part of the corridor was conveyed to a railroad company. Two of the landowners contend that the deed created a fee simple determinable and that when the property stopped being used for railroad purposes, it reverted to them as successors of the original grantors. Relying on an oft-criticized decision of this court, In re Petition of Copps Chapel Methodist Episcopal Church , 120 Ohio St. 309, 166 N.E. 218 (1929), the court of appeals held that the deed did not create a fee simple determinable because it did not contain reverter language. We decline to rely on Copps Chapel , but based on the plain language within the four corners of the deed, we nonetheless affirm the decision below that the deed created a fee simple absolute.

{¶ 3} The second set of issues involves the court of appeals' determination that there exist genuine issues of material fact that preclude summary judgment in favor of Rails-to-Trails on the three landowners' adverse-possession claims. To prove adverse possession, claimants must show that they had open, notorious, continuous, and adverse use and exclusive possession for 21 years. Grace v. Koch , 81 Ohio St.3d 577, 692 N.E.2d 1009 (1998), syllabus. Our focus here, as it was in the courts below, is on the exclusivity of the landowners' possession. We are asked to determine whether licenses that the railroad company that previously owned the corridor granted to two telecommunications companies for fiber-optic cables and associated corridor-maintenance activities by the companies are sufficient to defeat the landowners' claims that for 21 years, they exclusively possessed the land. We hold that the licenses alone fail to demonstrate that the landowners' possession was not exclusive. We further hold that while activities undertaken on the corridor pursuant to licenses could be sufficient to interrupt exclusivity, in this case genuine issues of material fact about the activities preclude summary judgment.

{¶ 4} We also must determine whether activities undertaken by the railroad company were sufficient to negate the exclusivity element of the landowners' adverse-possession claims. We hold that for two of the three landowners issues of fact exist that preclude summary judgment in favor of Rails-to-Trails but not for the third. So we affirm the judgment of the court of appeals in part and reverse it in part.

I. BACKGROUND

{¶ 5} In 2009, Rails-to-Trails purchased an old railroad corridor with the intention of converting the land into a public multipurpose trail. Three owners of adjacent properties challenge Rails-to-Trails' ownership of parts of the corridor. They are the Koprivecs, the Bilinoviches, and the Koontzes (collectively, "the landowners").

{¶ 6} In 2011, the landowners filed suit to establish their ownership of the sections of the corridor next to their respective properties. All three landowners asserted that they had adversely possessed those sections of the corridor. As the case developed, the Koontzes and the Bilinoviches also claimed that under an 1882 deed, the sections of the corridor adjacent to their properties reverted to them when the corridor stopped being used as a railroad.

A. The 1882 Deed

{¶ 7} The Bilinoviches and the Koontzes trace ownership of the sections of the corridor next to their properties back to an 1882 conveyance to the Akron Branch Rail Road Company. The deed granted the property to the railroad company "and to its assigns forever." In its habendum clause, the deed provided that the grant was "forever for the purpose of constructing and using thereon a Rail Road." The Bilinoviches and the Koontzes construe the deed as creating a fee simple determinable. In other words, they argue, when the land stopped being used as a railroad, the sections adjacent to the properties they now own reverted back to them as the successors in interest of the original grantors.

B. The Adverse–Possession Claims

{¶ 8} All three landowners assert that they adversely possessed their portions of the rail corridor. While there is some question about when the 21–year period began to run—the landowners maintain that the period commenced in 1987 when, they claim, the corridor's then owner, Consolidated Rail Corporation ("Conrail"), completed removal of its rails and wooden ties from the corridor; Rails-to-Trails counters that removal of the rails and ties from the property was not completed until 1989—the question here is whether the landowners can prove exclusive possession.

{¶ 9} Rails-to-Trails denies that the landowners had exclusive possession of their portions of the corridor. It points to the license agreements between Conrail and the telecommunications companies and to various maintenance activities undertaken pursuant to those licenses by employees of the telecommunications companies on the corridor after 1987. Rails-to-Trails also claims that railroad-company employees walked along the corridor and did work to maintain the corridor after 1987.

C. The Proceedings Below

{¶ 10} In response to the landowners' lawsuit, Rails-to-Trails filed counterclaims seeking to establish its own claim of title. On cross-motions for summary judgment, the trial court entered summary judgment in favor of Rails-to-Trails on all the landowners' claims and on Rails-to-Trails' declaratory-judgment and quiet-title claims.

{¶ 11} The trial court found that under Copps Chapel , the 1882 deed did not create a determinable fee because it did not contain reversionary language; that is, the deed did not explicitly say that the property would revert to the grantors when it ceased being used as a railroad. As for the adverse-possession claims, the trial court found that the landowners could not meet the exclusivity element because their possession had been interrupted by (1) the license agreements with the telecommunications companies, (2) the activities of the telecommunications companies on the land, and (3) the inspection of the corridor by a railroad-company employee.

{¶ 12} The Ninth District Court of Appeals affirmed in part and reversed in part. The court affirmed the trial court's judgment on the deed issue raised by the Bilinoviches and the Koontzes. Relying on Copps Chapel , the court held that the 1882 deed created a fee simple absolute because the deed did not contain a provision stating that the land would revert to the grantors if it was no longer used for railroad purposes. 2016-Ohio-1141, 61 N.E.3d 676, ¶ 38 (lead opinion).

{¶ 13} The court of appeals reversed the trial court's summary judgment in favor of Rails-to-Trails on the adverse-possession claims. The appellate court held that the license agreements and the activities of the telecommunications companies conducted pursuant to those agreements were insufficient as a matter of law to defeat the exclusivity element of the landowners' adverse-possession claims. Id. at ¶ 15 (lead opinion). The court further determined that there were genuine issues of material fact about the activities of the railroad-company employee that made summary judgment inappropriate. Id. at ¶ 17 (lead opinion).¹

{¶ 14} We accepted Rails-to-Trails' discretionary appeal challenging the reversal of the trial court's summary judgment on the adverse-possession issues. We also accepted jurisdiction over the cross-appeal of the Bilinoviches and the Koontzes challenging the court of appeals' decision on the deed issue.

II. ANALYSIS

{¶ 15} First, we consider the deed-construction issue raised by the Bilinoviches and the Koontzes in the cross-appeal. Second, we consider the adverse-possession issues raised in Rails-to-Trails' appeal.

A. The Deed Issue

{¶ 16} In rejecting the argument of the Bilinoviches and the Koontzes that the corridor sections adjacent to their properties reverted to them when the corridor stopped being used as a railroad, the court of appeals relied on the Copps Chapel decision. Thus, we must start with a discussion of that case.

1. The Copps ChapelDecision

{¶ 17} In CoppsChapel , this court considered a deed conveying property to a church. The habendum clause contained the phrase, "To have and to hold * * * unto the said grantees and their successors * * * so long as said lot is held and used for church purposes." 120 Ohio St. at 311, 166 N.E. 218. Under longstanding principles of deed interpretation, such language—"so long as"—had been understood to create a fee simple determinable; that is, if the property ceased to be "held and used for church purposes," it would revert to the grantor. But in Copps Chapel , the court held that "without any provision for forfeiture or reversion, such statement is not a condition or limitation of the grant." Id. at syllabus. Thus, Copps Chapel seemed to announce a rule that the only way that a determinable fee could be created was by including...