COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72263 FRANK V. ROCCO, ET AL. : : Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION CITY OF FAIRVIEW PARK, OHIO : ET AL. : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 12, 1998 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-298645 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: ELI MANOS (#0006468) ANTHONY J. COYNE (#0039605) THOMAS B. BRALLIAR, JR. (#0064521) Mansour, Gavin, Gerlack & Manos Co. LPA. 55 Public Square, Suite 2150 Cleveland, Ohio 44113-1994 (CONTINUED ON NEXT PAGE) For Defendant-Appellee City of Fairview Park: ALAN E. JOHNSON (#0018279) LEO R. WARD (#0000575) Ward & Associates Co., L.P.A. 1265 W. 6th St., 4th Floor Cleveland, Ohio 44113 -ii- PATRICK F. ROCHE (#0025959) Law Director City of Fairview Park Davis and Young Co., L.P.A. 1700 Midland Building 101 Prospect Avenue, West Cleveland, Ohio 44115-1027 For Defendant-Appellee, Board of Park Commissioners of the Cleveland Metropolitan Park District: ELLIOT S. AZOFF (#0025724) ROBERT C. PETRULIS (#0040947) Baker & Hostetler, LLP 3200 National City Center 1900 East 9th Street Cleveland, Ohio 44114-3485 SPELLACY, P.J.: Plaintiffs-appellants, Regina L. Rocco and the estate of Frank V. Rocco ( appellants ), appeal the judgment of the trial court granting the summary judgment motions of defendants-appellees, City of Fairview Park, Ohio ( Fairview Park ) and the Board of Park Commissioners of the Cleveland Metropolitan Park District -2- ( Cleveland Metroparks ). Appellants assign the following errors for our review: I. THE COURT OF COMMON PLEAS ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEES, BECAUSE THE RECORD CONTAINS NO EVIDENCE THAT THE CITY OF FAIRVIEW PARK EVER HELD AN INTEREST IN THE PROPERTY DESCRIBED AS OLD LORAIN ROAD . II. THE COURT OF COMMON PLEAS ERRED IN CONCLUDING THAT ADVERSE POSSESSION AND THE ABANDONMENT ARE INDISTINCT LEGAL CONCEPTS. Finding appellants' appeal to lack merit, the judgment of the trial court is affirmed. I. On November 20, 1995, appellant, Frank V. Rocco, now deceased, and his wife, Regina L. Rocco, filed a complaint in the Cuyahoga County Common Pleas Court against Fairview Park and Cleveland Metroparks. Appellants also listed Able Fence & Guardrail Co., Able/SS, Inc. and Markie Construction Company as defendants to the action. Count I of appellants' complaint alleged that defendants took their property interest in Old Lorain Road without payment of just compensation and due process in violation of the Fifth and Fourteenth Amendments of the United States Constitution. Count II of appellants' complaint set forth a claim for inverse condemnation. Count III of appellants' complaint alleged a claim for trespass. On March 20, 1996, appellants filed a motion for summary judgment. On April 22 and 23, 1996, appellees Fairview Park and -3- Cleveland Metroparks respectively, filed separate motions for summary judgment. On June 21, 1996, Fairview Park filed a motion to strike affidavit testimony of Regina Rocco which was filed on June 12, 1996. On July 31, 1996, the trial court denied appellants' summary judgment motion, granted the summary judgment motions filed by Fairview Park and Cleveland Metroparks and granted Fairview Park's motion to strike affidavit of Regina Rocco. On August 15, 1996, appellants filed a motion for relief from judgment. Appellants' motion, however, was treated by the trial court as a motion for reconsideration pursuant to Civ.R. 54(B) since appellants' claims against the other named defendants remained pending after the court ruled on the parties' motions for summary judgment. On March 3, 1997, the trial court, in its findings of fact and conclusions of law, reaffirmed its judgment denying appellants' motion for summary judgment and motion to strike the affidavit of Regina Rocco. Further, the trial court reaffirmed its judgment granting appellees' separate motions for summary judgment. On April 15, 1997, appellants, pursuant to Civ.R. 41(A), dismissed all claims against Markie Construction Co., Able Fence and Guardrail and Able/SS, Inc. II. In 1958, appellant Frank V. Rocco acquired by warranty deed a certain parcel of land located in the City of Fairview Park, County of Cuyahoga, State of Ohio. The warranty deed described part of -4- the boundary of Frank Rocco's parcel as extending along the center line of Old Lorain Road, * * * but subject to all legal highways. Frank Rocco and Regina Rocco ( appellants ) married in 1990, and appellant Frank Rocco passed away in January 1996. In 1910, the municipality known as the City of Fairview Park was incorporated. The portion of Old Lorain Road referenced in the Rocco Deed was located within the boundaries of the municipality when it was incorporated in 1910. Prior to the incorporation, the subject portion of Old Lorain Road was a Cuyahoga County road. On May 13, 1971, the Board of County Commissioners of Cuyahoga County purported to direct the vacation of Old Lorain Road, as a county road * * *. (See Exhibit C , Fairview Park's Motion for Summary Judgment). On September 21, 1987, the City Council of Fairview Park enacted Ordinance No. 87-36, which authorized the construction of an eight-foot wide (8') asphalt bikeway from Lorain Road (SR 10) to the Valley Parkway in the City of Fairview Park and Cleveland Metropolitan Park District, a distance of 0.30 miles more or less. (Exhibit D , Fairview Park's Motion for Summary Judgment). The bikeway was thereafter constructed on Old Lorain Road. III. In their first assignment of error, appellants maintain that the lower court erred in granting Fairview Park's and the Cleveland Metropark's motions for summary judgment. In particular, appellants contend that Fairview Park never held an interest in the property described as Old Lorain Road. -5- The test for granting a motion for summary judgment is set forth in Civ.R. 56 and in numerous cases interpreting the rule. The law is clear that: Summary judgment is appropriately rendered when no genuine issue as to any material fact remains to be litigated; the moving party is entitled to judgment as a matter of law; it appears from the evidence that reasonable minds can come but to one conclusion; and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Lovsin, et al. v. J.C. Penney Company, Inc., et al. (May 9, 1996), Cuyahoga App. No. 69520, unreported, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. The initial issue presented for our review is whether Fairview Park, in fact, obtained a legally cognizable interest in the land located within the boundaries of Old Lorain Road when it was incorporated in 1910. Appellants maintain that the warranty deed which Frank Rocco was presented with in 1958 established that appellants, not Fairview Park, owned a fee interest in the disputed property. The warranty deed specifically states that: Situated in the City of Fairview Park, County of Cuyahoga and State of Ohio, and known as being part of Original Rockport Township Section No. 13 and bounded and described as follows: Beginning at an angle point in the old center line of Lorain Road 60 feet wide, distant South 83 50' 39" East, measured along said center line, 321.11 feet from the intersection of said center line with the center line of Story Road; thence South 60 01' 16" along old center line of Lorain Road a distance of 44.94 feet; thence North 24 07' 21" East a distance of 157.13 feet to a point in the center line of old Lorain Road; then South 76 09' 40" -6- West along the center line of old Lorain Road a distance of 202.65 feet to the Northeasterly line of land conveyed to The Wilson Properties Company by deed recorded in Volume 4274, Page 449 of Cuyahoga County Records of Deeds; thence South 60 01' 16" East along the Northeasterly line of land so conveyed The Wilson Properties Company a distance of 117.31 feet; thence South 29 58' 44" West a distance of 16 feet to a point in the old center line of Lorain Road and place of beginning, be the same more or less, but subject to all the legal highways. In Sroka v. Green Cab Co. (1929), 35 Ohio App. 438, this court held that a county road loses its character as such as soon as it becomes located within the limits of an incorporated village. Thereafter it must be treated as one of the streets of the village. Sroka, supra citing City of Steubenville v. King (1873), 23 Ohio St. 610. A complete review of the record in the present case reveals that when Fairview Park was incorporated in 1910, Old Lorain Road, the disputed property, was clearly located within Fairview Park's boundaries. Although the official certified map of the 1910 incorporationdoes not expressly depict the subject portion of Old Lorain Road, Fairview Park's boundary lines clearly encompass the area in which Old Lorain Road was situated. Evidence in the record further reveals that Old Lorain Road was considered a county road prior to the incorporation of Fairview Park. In particular, in 1971, the Board of Cuyahoga County Commissioners purported to direct the vacation of Old Lorain Road as a county road. In the case sub judice, the record does not support appellants' assertion that the property which they acquired via -7- warranty deed in 1958 provided them with ownership interest to Old Lorain Road. The evidence, however, does support the conclusion that as of 1910, Fairview Park held an interest in Old Lorain Road. Accordingly, appellants' first assignment of error is without merit. IV. In their second assignment of error, appellants contend the trial court erred by failing to recognize abandonment as a distinct legal concept and subsequently granting appellees' motions for summary judgment based on the doctrine of adverse possession. In the present case, the trial court was presented with the question of whether Fairview Park could have lost possession of Old Lorain Road by informal abandonment or non-user. The trial court, following the holding of this court in Byerlyte Corp. v. Cleveland (1940), 32 Ohio Law Abs. 609, 615, citing Nail & Iron Co. v. Furnace Co. (1889), 46 Ohio St. 544, stated that the loss by mere abandonment, mere non-user, of the common right of highway, rests finally on no other or better footing than loss by adverse possession * * * . Subsequently, the trial court proceeded in determining ownership of Old Lorain Road by applying the doctrine of adverse possession. We agree with the trial court's analysis and result. Initially, we note, as did the trial court, that this court's decision in Byerlyte, supra is controlling and the doctrine of adverse possession will be applied by this court. -8- In order to gain title under the doctrine of adverse possession, * * * a party must establish that his possession was open, notorious, exclusive, adverse, hostile and continuous for more than twenty-one years. Davis v. Konjicija (February 12, 1993), Lake App. No. 92-L-008, unreported, at 6. However, it has generally been held that adverse possession cannot be applied against the state and its political subdivisions. 1540 Columbus Corporation v. Cuyahoga County (1990), 68 Ohio App.3d 713. R.C. 2305.05 provides an exception to the general principle that municipal corporations are not subject to property loss by adverse possession or prescription. R.C. 2305.05 provides an exception where a municipal street has not been open for public use, and an adjoining property owner fences it in and it remains in open, uninterrupted use for the twenty-one year period. Id. The only evidence presented by appellants that the said property was, in fact, enclosed by a fence for the required statutory time limit was the affidavit testimony of Regina L. Rocco attached to appellants' motion for summary judgment. The trial court, however, granted appellees' motion to strike this affidavit testimony and appellants do not contest the trial court's ruling on appellee's motion. Thus, this court cannot consider the contents of Mrs. Rocco's affidavit as evidence upon review of the case sub judice. The fence requirement set forth in R.C. 2305.05 is mandatory. When a fence is not constructed, the municipality is not on notice that the use of the land is hostile, and is not in the posture of -9- knowing it must act or lose its interest. Wyatt v. Ohio Dept. Of Transportation (1993), 87 Ohio App.3d 1. Thus, where a fence has not been erected, an adverse possession claim cannot survive. Based on the foregoing, we hold that there was insufficient evidence to support a claim of adverse possession. In particular, no evidence existed in the record that appellants had erected a fence on the property and maintained said fence for the twenty-one year statutory period. Therefore, the trial court's decision to grant appellees' motions for summary judgment was based on competent, credible evidence and its judgment did not constitute an abuse of discretion. Accordingly, appellants' second assignment of error is not well-taken. Judgment affirmed. It is ordered that appellees recover of appellants their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. -10- KENNETH A. ROCCO, J. and JAMES D. SWEENEY, J. CONCUR. LEO M. SPELLACY Presiding Judge N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .