Oral Argument Preview: Do Activities of Licensee Utilities Affect the Exclusivity of Adverse Possession? Don Koprivec et al. v. Rails-to-Trails of Wayne County.

Read the analysis of the oral argument here.

On May 16, 2017, the Supreme Court of Ohio will hear oral argument in the case of Don Koprivec et al. v. Rails-to-Trails of Wayne County, 2016-0704. This case was accepted on jurisdictional appeal and cross-appeal. At issue on appeal is whether the actions of licensees on property interrupts the “exclusive possession” of an adverse possessor. The issue raised in the cross-appeal is whether the deed created a fee simple determinable or absolute.

Case Background

This case is a dispute over property rights to an old abandoned railroad corridor (the “Disputed Property”) that spans over eight miles and runs through three parcels of land owned by the Koprivecs (purchased in 1981), Bilinoviches (purchased in 1996) and Koontzes, (purchased in 1998) (collectively, “Landowners”). From east to west, the Disputed Property abuts the northern section of the Koprivec property, travels through the Bilinovich property, and runs along the southern boundary of the Koontz property. (See helpful photo on p. 2 of Rails-to-Trails’ Brief)

In 2009, the non-profit organization, Rails-to-Trails of Wayne County (“Rails-to-Trails”), bought the Disputed Property from its predecessor in interest, Norfolk Southern Railway Company, successor by merger to Conrail Corporation (“the Railroad”), with the intent of converting it into a public trail.

The Bilinoviches and Koontzes (“Cross-Appellants”), purchased their properties from the Wiley Family. This land was subject to a deed originating in 1882. These sections of the Disputed Property were originally conveyed by the Bussard family to the Akron Rail Road Company (“Bussard Deed”).

Since their purchases, all of the Landowners exercised control, and openly used the Disputed Property. The Cross-Appellants’ predecessor-in-interest (the Wiley family) exercised this same control. The area was regularly used and cared for by the Landowners, no trespassing signs were posted, structures were built, and there were multiple instances of “running out” or otherwise reporting trespassers who ventured onto the property.

By the 1970s, the Disputed Property was no longer used for trains. In 1988, the Railroad removed the rails, and in 1989 the Railroad removed the wooden ties. In the 1990’s and 2000’s, during the period of ownership by the Railroad, the area was inspected by a property manager of the railroad. Further, at some point during the Railroad ownership, AT&T and Sprint (“Licensees”) were granted a 15 year license, with two 15 year renewal options, to the Disputed Property to install and maintain fiber optic cables throughout the Disputed Property. In 2007, one of the Licensees conducted a clearing project on the Disputed Property; however, it is disputed whether this project extended to the sections adjoining the Landowners’ property.

In February of 2011, the Landowners filed a declaratory judgment action to quiet title to the Disputed Property on the grounds of adverse possession. They sought a declaration that they had adversely possessed the Disputed Property for the requisite time period and should be found to be record title holder of that property.

Rails-to-Trails counterclaimed for declaratory judgment, to quiet title and for trespass, essentially asking to be declared the sole, exclusive owner of the Disputed Property.  Both sides moved for summary judgment. The trial court granted summary judgment to Rails-to-Trails.

The case went to the Ninth District, which originally dismissed for lack of a final appealable order. The trial court again granted summary judgment to Rails-to-Trails, finding that the licensing agreements with the predecessor RR and AT&T and Sprint to install and maintain fiberoptic cable, the activities to maintain those cables, including a 2007 right-of-way brush clearing, and the inspection of the corridor by one of the RR’s employees all were enough to defeat the exclusivity element of adverse possession.  The trial court also refused to grant summary judgment to the Landowners on Rails-to-Trails counterclaims. The Landowners appealed.

Court of Appeals Decision

In a decision authored by Judge Schafer, with Judges Hensal and Moore concurring in the judgment only, the Ninth District reversed in part, finding the trial court erred in granting summary judgment to Rails-to-Trails on the Landowners’ adverse possession claims and on its counterclaims for declaratory judgment and to quiet title. It held the license agreements and activities of utility company employees were insufficient as a matter of law to defeat the exclusivity prong of adverse possession. Judge Shafer’s opinion also found that the trial court did not err in denying summary judgment to the Koprovics on their adverse possession claims, nor in denying summary judgment to the Koontzes and Bilinoviches on their adverse possession claim based on reverter language in the Bussard deed.  The appeals court found that that deed language created a fee simple absolute, not a fee simple determinable. The matter was remanded to the trial court for further proceedings.

In her separate concurrence, Judge Hensal sought to clarify the licenses at issue in this case. The licenses held by AT&T and Sprint were irrevocable during the 15 year terms. Because of this interest, she would find that the licenses were essentially easements, and therefore would not interrupt the adverse possessors’ exclusive use of the property.

Rails to Trails appealed, and the Bilinoviches and Koontzes cross-appealed to the Supreme Court of Ohio.

Votes to Accept the Case


Yes: Justices O’Neill, Pfeifer, Lanzinger, and O’Donnell

No: Chief Justice O’Connor, and Justices Kennedy and French.


Yes: Justices O’Neill, Pfeifer, Lanzinger, Kennedy, and French.

No: Chief Justice O’Connor, Justice O’Donnell

 Key Statutes and Precedent

Sperry v. Pond, 5 Ohio 387, 389 (1832) (A deed containing the language, “so far as” or “and no further,” creates a fee simple determinable. In this case a fee simple determinable was created with the phrases, “so long as. . . and no longer.”)

1835 Ohio Legislative Act, Sect. 3. (Incorporated and regulated the Akron Rail Road Company. Stated that the company “shall be capable in law of purchasing, holding, selling, leasing and conveying estates, real, personal and mixed, so far as the same shall be necessary for the purposes hereinafter mentioned, and no further . . .”) (emphasis added.)

In re Copps Chapel Methodist Episcopal Church, 120 Ohio St. 309, 310 (1929). (When a deed does not includes 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, but is insufficient for reversion.)

Hinman v. Barnes, 146 Ohio St. 497, 508 (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.”)

Board of County Com’rs of Van Wert Cty. v. Consolidated Rail Corp., 14 Ohio Misc. 2d 4 (Van Wert C.P. 1983) (“[T]o creat a fee simple determinable . . . there must be the limiting words, such as “so long as,” and if these words are contained in the habendum clause rather than in the granting clause, then there must also be a provision for forfeiture or reversion.”)

PCK Properties v. Cuyahoga Falls, 112 Ohio App. 492 (9th Dist.1960) (even though the deed contained the language “so long as,” the deed granted a fee simple absolute because there was no other language establishing reversion or forfeiture in the event the land would no longer be used for the agreed upon purpose.)

Rieddle v. Buckner, 629 N.E.2d 860 (Ind. App. 1994)( If land is subject to an easement, use of the easement does not affect the element of exclusive possession.)

Grace v. Koch, 81 Ohio St.3d 577, 580 (1998) (“to 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.”)

Cronin v. Standish, 2006-Ohio-4293 (6th Dist.) (Third party’s installation of an underground utility on disputed property does not defeat an adverse possession claim.)

Evanich v. Bridge, 2008-Ohio-3820 (For adverse possession in Ohio, a party must have exclusive possession of the property and the use of the property must be open, notorious, continuous, and adverse for 21 years.)

Franklin v. Massillon Homes II, LLC, 2009-Ohio-5487, ¶ 27 (5th Dist.) (Exclusive possession by the adverse possessor must be exclusive to the true owner and its permitted users.)

Ormandy v. Dudzinski, 2011-Ohio-5005 (9th Dist.) (Claims of adverse possession “must be strictly construed in favor of the title owner.” While the “use of the property does not have to be exclusive to all individuals,” a party must show that (1) the true owner did not enter the property, asserting his possessory right, and (2) no third-parties entered the property with a claim of title or claimed “to have permission to be on the premises from the true title holder.”)

Snyder v. Ohio Dept. of Natural Resources, 2014-Ohio-3942 (The language of a deed is to be construed to “carry out the intent of the parties.”)

Adverse Possession Claim

Rails-to-Trails’ Argument

In deciding this case, the appeals court fundamentally erred by failing to consider the Licensees. The classification of these Licensees as “utilities” was a mistake that needs to be cured. Furthermore, no rationale was given for this arbitrary categorization, and it will likely lead to ambiguity and uncertainty in future property disputes. The better rule is that all activities of a title holder’s permitted users must be considered.

The appellate court’s misplaced reliance on Cronin and cases outside of Ohio are not applicable to this situation. None of these cases address whether the “activities” of third-parties sever exclusive possession by the adverse possessor(s). These activities within the 21-year time period (1996 and 2007), were open and notorious. These actions clearly supplant any claims of exclusive possession.

The appeals court also failed to consider the actions of Rail-to-Trail’s predecessor-in-interest. One of the managers of the then title holder Railroad entered the Disputed Property at least four times. Any of these actions severed the claim of adverse possession. The Landowners’ argument that the actions of the Licensees or by railway staff were done with their consent or invitation is not supported by the record. For example, AT&Ts project in 2007 was conducted without the consent of the Bilinoviches.

The cases that the Landowners rely upon incorrectly frame the issues and are easily distinguishable. They only address the existence of utility-easements, not the actual activities of the Licensees as demonstrated in this case. AT&T and Sprint conducted above-ground maintenance and clearing activities on the Disputed Property during the 21 years. The acts of these permitted users must be considered when evaluating whether there was “exclusive possession.” Therefore, The Ninth District should be reversed, and summary judgment should be reinstated for Rails-to-Trails.

Landowners’ Argument

The Ninth District’s ruling that utilities (i.e. Licensees) did not interrupt the Landowner’s exclusive possession of the property was in accordance with Ohio’s precedent and should be affirmed.

This is a fact-intensive case, and Rails-to-Trails assertions of sporadic maintenance of subsurface utilities by Licensees fail to provide sufficient evidence of any interruption. For example, the Bilinoviches were treated like the owners by the Licensees—who asked permission to enter the property—and Rail-to-Trails could not offer evidence of any interruptions on the other Landowners’ properties.

The Landowners cited to a plethora of cases in Ohio and across the country, all of which hold that maintenance by Licensees that does not interrupt the adverse possessors’ use of the land is “insufficient to defeat an adverse possession claim.” Likewise, subsurface maintenance arguments raised would not, and do not affect the Landowners’ surface property rights.

Much as in Cronin, the actions of these utilities never “interrupted” the Landowners use of the Disputed Property. Rail-to-Trail’s attempts to circumvent Ohio law on point are without merit, and this Court should affirm the Ninth District.

Rails-to-Trails’ Proposed Proposition of Law No. 1

The activities of a title holder’s licensees as permitted users are properly considered in determining whether an alleged adverse possessor has exclusively possessed land for 21 years.

Rails-to-Trails’ Proposed Proposition of Law No. 2

All actions of the title holder must be considered when analyzing the exclusivity element of an adverse possession claim, especially if the property in dispute is underdeveloped, rural land.

Cross Appeal-the Deed

Cross-Appellants’ Argument

The Ninth District misinterpreted the Bussard Deed as a fee simple absolute.

In 1882, the Bussards conveyed a deed to the Akron Branch Railroad Company (“Bussard Deed”). The Bussard Deed incorporated the 1835 Legislative Act, which limits any conveyance granted to the Akron Rail Road Company to the purpose of railroad activities “and no further.” The parties intended for the Act’s limiting language to apply to the Bussard Deed. To find otherwise would contradict the intent of the parties. Therefore, when the Disputed Property was no longer being used for railroad purposes, possession reverted back to Cross-Appellants. The Bilinoviches and the Koontzes are the true owners, and therefore summary judgment should be granted in their favor.

Rails-to-Trials’ Argument

The Bussard Deed is completely devoid of the necessary provision(s) to establish reversion, and therefore is a fee simple absolute under Ohio law. The Cross-Appellants want to go beyond the four-corners of the Bussard Deed, contrary to precedent.

The 1835 Act that the Cross-Appellants assert is incorporated into the Bussard Deed is not even specifically mentioned. The only reference within the four-corners of the document is to “several acts of the legislature of the state of Ohio.” This attempt to import a reverter by reference from an outside document must fail. However, even if this language was incorporated, the Ninth District was correct in finding that (1) the incorporated language would have to have been in the habendum clause, not the granting clause, and (2) the Bussard Deed and the 1835 Act did not have “a provision for reversion in the event the land was no longer used for railroad purposes.” Therefore, there was no reversionary interest in the property, and this Court should affirm that the Bussard Deed created a fee simple absolute.

Cross-Appellants’ Proposed Proposition of Law No. 1

When interpreting a deed granting land to a railroad, language incorporated into the habendum clause granting the land “so far as” it is used for railroad purposes “and no further” creates a fee simple determinable that results in reversion when the land is no longer used for railroad purposes

Rails-to-Trials’ Proposed Counter Proposition of Law No. 1

When a deed contains no reversionary language, and no provision for reversion, either explicitly or by incorporation, it creates a fee simple absolute rather than a fee simple determinable.

 Amici in Support of Landowners/Cross-Appellants

The Ohio Farm Bureau Federation and Wayne County Farm Bureau (“Farm Bureau”) filed an amicus brief on behalf of the Landowners and Cross/Appellants. The Ninth District should be affirmed. The sporadic actions of the Licensees and a railroad employee did not interrupt the Landowners’ exclusive possession. This decision was consistent with settled law in Ohio, since the Licensees never “interrupted” the Landowners’ use of the Disputed Property. Also, all farm-owners could potentially be affected if the erroneous interpretation of the Bussard Deed—contrary to the intent of the parties—is allowed to stand. The Act was incorporated, and therefore created a fee simple determinable.

Farm Bureau’s Response to Rails-to-Trails’ Proposed Proposition of Law No. 1

The existence and sporadic maintenance of a subsurface utility does not interrupt an adverse possessor’s exclusive use of a property.

Farm Bureau’s Response to Rails-to-Trails’ Proposed Proposition of Law No. 2

The exclusivity element of an adverse possession claim is not defeated when there is neither evidence of a title holder actually taking any action on a property nor any evidence of a title holder asserting ownership or possession over a property.

Student Contributor: Jefferson Kisor

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