[Cite as Perry v. Davis, 2013-Ohio-4078.]

 IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO 

MARLA J. PERRY : 

Plaintiff-Appellee : C.A. CASE NO. 2013 CA 6 

v. : T.C. NO. 12CV295 

DELBERT DAVIS, et al. : (Civil appeal from 

 Common Pleas Court) 

Defendants-Appellants : 

 : 

 . . . . . . . . . . 

O P I N I O N

Rendered on the 20th day of September , 2013. 

 . . . . . . . . . . 

ROBERT A. WINEBERG, Atty. Reg. No. 0039771, 4 W. Main Street, Suite 723, 

Springfield, Ohio 45502 

Attorney for Plaintiff-Appellee 

JACOB M. JEFFRIES, Atty. Reg. No. 0078470, 133 S. Main Street, New Carlisle, Ohio 

45344 

Attorney for Defendants-Appellants 

 . . . . . . . . . . 

DONOVAN, J. 
[Cite as Perry v. Davis, 2013-Ohio-4078.]

{¶ 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.” 
3

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 Plaintiff’s 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 
4

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 
5

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 
6

fourteen rods1

 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.” 

 1

Geuy stated that the terms “perch,” “pole” and “rod” are interchangeable. 

{¶ 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 
7

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, 
8

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. 

Perry’s deed provides as follows: 

Commencing at the Southwest corner of Outlot Number 43 in the 

original plat of the Town of Addison (now the village of Christiansburg, 

Ohio), running thence West to the original East line; thence North ten rods; 

thence East to the Northwest corner of the Southwest quarter of said Lot 

number 43, thence South 10 rods to the place of beginning. 

{¶ 17} Geuy noted that since Perry’s lot has no east and west dimension, the only 

way to determine its metes and bounds is by reference to other monuments that have been 
9

made previously according to “prior monumentation.” According to Geuy, “A diligent 

search of all records has not resulted in a definite east/west dimension for the tract located at 

21 West Pike Street. And based on the above summary and testimony of the recorded 

information and physical evidence I found [in] 2007, and the obvious confusion in the 

original records, it’s my opinion that no encroachment can exist” from the Davises’ property 

to the Perry property. The following exchange occurred: 

Q. So, in fact, if there is any doubt as to, by surveying standards, if 

there is any doubt as to which of these lots would be in question, it would be 

the Plaintiff’s lot and not the Defendant’s lot? 

A. Correct. 

Q. Why is that once again? 

A. There is no recorded dimensions for the east/west width for the 

Plaintiff’s lot. In the absence of being able to verify exactly where Howell’s 

original east line was by recorded dimension there is nothing. 

{¶ 18} In response to questions from the court, Geuy indicated that it is standard 

practice in Champaign County to refer to McCullough’s notes in the engineer’s office, and 

that McCullough’s notes predate Geuy’s survey by “about 40 years.” Geuy stated that he is 

certain that the remnants of the wooden post he found “was the post that Mr. McCullough 

referred to in his survey,” although Geuy stated that he does not know who placed the 

wooden post. 

{¶ 19} Scholl testified that he is a licensed professional land surveyor in the State of 

Ohio. He stated that he became licensed in 1978. He stated that he has been a member of 
10

“the Professional Land Surveyors of Ohio,” and that he has “attended numerous conferences 

and listened to a lot of speakers on the aspects of land surveying, writing legal descriptions, 

boundary retracement, construction staking, anything that falls within the realm of what a 

surveyor does.” 

{¶ 20} Scholl stated that he surveyed Perry’s property at 21 Pike Street in October 

of 2011, and he identified his drawing of the survey. Scholl described the process of 

completing Perry’s survey as follows: 

* * * We went to the courthouse and retraced her deed, got a copy of 

her deed, the adjoining deeds, any plats that affected the property, and any 

other surveys that we could find so we could go out to the field and do our 

research. 

Upon going out into the field, one of our first points of items I do is 

locate the street right-of-way lines, I’m talking about Pike Street and Main 

Street. And the practice that we have adopted over the years is to locate the 

curb improvement on those two streets because those curb improvements 

were generally put in by a survey crew or an engineer when they constructed 

the streets. Those curbs are typically parallel to one another, and we split - - 

what we call split the curbs, measure the curb width west of our job and east 

of our job with our block we are working in so we could be down there close 

to Main Street in the intersection of Pike Street, then we could create the 

centerline of those curbs. We did the same thing on Main Street. 

We then create the right-of-way lines for those streets because they 
11

were platted at 60 feet wide and 5 feet wide. That is the best representation I 

feel as the years of experience that I accumulated that is the best 

representation of where those street right-of-way lines are. 

And these older plats, like Christiansburg * * * most of the pins that 

are in there are retracement pins from the other surveyors. They’re not 

original pins. * * * When this plat was done in 1817,* * * they used whatever 

is readily available to them at the time. It was usually wooden stakes to 

mark the lot corners, and these plats were not developed in a one-year period. 

 They took several years to develop. So the lots kind of got surveyed by 

maybe this surveyor one year, then two or three years later they might have 

brought another surveyor in to lay out a few more in this plot. 

{¶ 21} Consistent with Geuy, Scholl stated that the line between 21 and 19 Pike 

Street is the “outer plat boundary of the original plot of Christiansburg.” Scholl stated that 

there is very little information available regarding the original plat. He stated, “You can 

read through the verbiage of some of the other deeds, and find out that the lots are five poles 

wide, and I think it’s nine poles deep; and they’re all parallel * * * to Main Street and Pike 

Street.” Scholl stated that his “job” was to “recreate that outer boundary, first of that plat 

and then to construct the interior lot lines parallel to those two streets, and that is in my 

opinion the best way to recreate those lines.” Scholl continued, “[o]nce we have done that, 

then we look to see if there are existing monuments or other surveyor lines in there that 

would collaborate with that or agree with that, and then I am more than happy to use 

somebody else’s property pins if I think they’re set correctly.” 
12

{¶ 22} Scholl further testified as follows: 

* * * And so when we created those lot lines parallel to Main Street 

and parallel to Pike Street, I don’t have a problem with using the front pins 

that we found in there that were set by Lynn Geuy, but when we set out the 

parallel side lines to Main Street, those lots rear corners are not in agreement 

with what Lynn Geuy said. And so I set new pins, showed, you know, what 

technically the deed overlap is. That’s what you call that. 

{¶ 23} Scholl, like Geuy, noted that Perry’s original deed “has no width on the front 

or back of her parcel.” He stated that “the correct method in my opinion is to establish the 

plat of Christiansburg or Outlot 43, the west line of Outlot 43, which by plat definition is 

parallel with Main Street.” Scholl stated that to then calculate the width of Perry’s property, 

“we had to create the alley on the west side of her property.” Scholl stated the Wilson Bright 

Addition Plat “calls that this is a 12-foot alley. One of the tax maps shows it as a 12-foot 

alley, and * * * I guess survey notes I’ve been told there by Lynn or Bill McCullough, and I 

didn’t see his name on the copy of the notes I have, * * * and each shows that’s a 12-foot 

alley, and Mike Cozad who surveyed the lots up there on First Street and in the Wilson 

addition, we found his pins and his survey drawings, and he shows that as a 12-foot alley.” 

{¶ 24} Scholl testified as follows: 

* * * We created that 12-foot alley based on the Mike Cozad pins and 

the width of the property owner to the north which is the Zerkle property. 

The Zerkle property deed says they own 88 feet. Their lot is 88 feet wide in 

the front and back. * * * 
13

And so when we created the 12-foot alley using the Cozad pins, that 

12-foot alley gave Mr. Zerkel a width on the back of his lot of 89.13 feet. So 

he has 1.13 feet of surplus that the deed said he should have 88. That’s not 

too bad in there. 

When we went back out there to check our survey, when I found out 

this was going to go to court, we wanted to update our survey, see if anything 

had changed. Lynn Geuy had set a pin at Marla Perry’s northwest corner 

along the alley where he thinks a 10-foot alley exists measuring from the Mike 

Cozad pins. If you would use that, then Mr. Zerkle to the north ends up with 

90 feet, 90.13 feet. * * * So we had to establish the east line of that 12-foot 

alley to determine where Marla Perry’s property line is along the alley so that 

the distance between the front of her property and the back of her property that 

we have shown on this survey is a result of what is left in there. She has * * * 

what you call junior rights in that versus senior rights that the plat has senior 

rights, that it was there first. 

{¶ 25} Scholl’s plat of his survey shows the location of the Cozad pin, and Scholl 

stated, from that pin, “we measured across to the east 12 feet to create the east side of that 

12-foot alley, and then that line was projected down to intersect with Pike Street, then we set 

a railroad spike there when we did our survey in October of 2011.” Scholl noted that Perry’s 

deed provides that from the southwest corner, her property runs west to Daniel Howell’s 

original east line, which he stated is a “pretty vague location. * * * my opinion is it would be 

the east line of the 12-foot alley.” Scholl stated that “the plat that was recorded at the time 
14

kind of overrides that 10-foot access for lot 1 to be used for access to First Street.” Scholl 

further noted his lines running north from the front pins on Pike Street are parallel to Main 

Street, and that Geuy’s lines tilt to the west. 

{¶ 26} On cross-examination, when asked why he referred to the alley as a 12-foot 

alley, Scholl responded, the “platted subdivision of Wilson and Bright addition called that a 

12-foot alley. The Cozad surveys that were done up on the First Street area called that a 

12-foot alley, and the 1972 Bill Mcullough notes called that a 12-foot alley.” He stated that 

he “used the 12-foot alley to determine the west line only” of Marla Perry’s property, and that 

he did not “use it to determine where her east line is.” Scholl stated that the “senior line is 

the original platted lot line when that plat was recorded in 1815,” and that the subsequent 

divisions within outlot 43 are “subject to a surveyor’s interpretation.” Scholl stated that he 

has not done any other surveys in Christiansburg. 

{¶ 27} In response to questions from the court, Scholl stated that the “land in dispute 

between my survey and the Lynn Geuy survey in the back at the rear is 1.78 feet difference, 

discrepancy or overlap, which amounts to be about 1 foot 9 3/8 inches, and then that tapers 

down to the same point out front at Pike Street. So it’s a tiny triangular piece of ground.” 

{¶ 28} Finally, Mike Cozad, a professional registered surveyor, testified that he has 

surveyed the area west of the property at issue, and that the plat he utilized to do so 

represented the alley to the west of Perry’s property as a 12-foot alley. Cozad stated that he 

reviewed the surveys of Geuy and Scholl. He stated that outlot 43 is rectangular and parallel 

to Main Street, and that its north and south boundary lines should be parallel to Main Street. 

On cross-examination, Cozad stated that he used the plat of the Wilson Bright Addition to 
15

Christiansburg to determine the location of the 12-foot alley. 

{¶ 29} The decision of the trial court provides as follows: 

* * * 

Testimony established that the property line between Plaintiff and 

Defendants was in dispute. Surveyors differed on where the property line is. 

Each surveyor explained his method of survey. Each survey appears to be 

valid. 

There is no standard of surveying that resolves such a conflict. 

The land in dispute is a pie-shaped wedge. 

The maximum width of the land in dispute is approximately two feet. 

The Court divides the disputed land in half and a new survey shall 

accomplish that division. Each side will pay one half of those costs. 

The Defendants have poured a concrete pad. The pad does not violate 

Christiansburg ordinances. Defendant cannot put a shed or building closer 

than five (5) feet to the new property line. 

{¶ 30} The Davises assert one assignment of error herein as follows: 

“THE TRIAL COURT’S DECISION ORDERING THE DISPUTED LAND TO BE 

DIVIDED IN HALF BETWEEN APPELLANT AND APPELLEE WAS AGAINST THE 

MANIFEST WEIGHT OF THE EVIDENCE.” 

{¶ 31} The Davises assert that Geuy’s survey “is more credible than Scholl’s 

survey” because Geuy “followed the steps of the original surveyor while Scholl did not.” 

Perry asserts that “[d]ifference in opinion of the surveyors is not unusual. However, the trial 
16

court had more than enough competent, credible evidence upon which to base its decision. 

Therefore, the Decision of the trial court is not against the manifest weight of the evidence.” 

{¶ 32} The standard set forth for manifest-weight-of-the-evidence appellate review 

in State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), applies also in civil cases. 

Eastly v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 17. In applying 

this standard, the appellate court, reviewing the entire record, weighs the evidence and all 

reasonable inferences, considers the credibility of witnesses and determines whether in 

resolving conflicts in the evidence, the factfinder clearly lost its way and created such a 

manifest miscarriage of justice that the judgment must be reversed and a new trial ordered. 

The discretionary power to grant a new trial should be exercised only in the exceptional case 

in which the evidence weighs heavily against the judgment. State v. Martin, 20 Ohio 

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983), cited approvingly in Thompkins at 387. 

{¶ 33} As the Davises assert, as “a general rule, the party asserting that the actual 

location of a boundary line is not the true location has the burden of proving that issue.” 

See, Hamil v. Carr, 21 Ohio St. 258, 272-72, 1871 WL 58 (1871). 

{¶ 34} The Davises rely in part upon Sellman v. Schaaf, 26 Ohio App.2d 35, 269 

N.E.2d 60 (3d.Dist.1971) and Sanders v. Webb, 85 Ohio App.3d 674, 621 N.E.2d 420 (4th 

Dist. 1993). 

{¶ 35} As noted by the Fifth District, “the law concerning the establishment of 

property boundaries, the propriety of a conducted survey and what priority that survey must 

be given in relation to prior and subsequent surveys has been extensively discussed in 

Broadsword v. Kauer, (1959), 161 Ohio St. 524, 120 N.E.2d 111 and Sellman v. Schaaf, 
17

(1971), 26 Ohio App.2d 35, 269 N.E.2d 60.” State v. Ross, 5th Dist. Coshocton No. 

09-CA-0024, 2010-Ohio-2931, ¶ 42. 

{¶ 36} As noted in Broadsword at 533-35: 

It is well settled that monuments are of prime importance in settling 

boundary disputes. The general rule is well stated in 6 Thompson on Real 

Property (Perm.Ed.), 519, Section 3327, as follows: 

“A ‘monument’ is a tangible landmark, and monuments, as a general 

rule, prevail over courses and distances for the purpose of determining the 

location of a boundary, even though this means either the shortening or 

lengthening of distance, unless the result would be absurd and one clearly not 

intended, or all of the facts and circumstances show that the call for course 

and distance is more reliable than the call for monuments. This rule does not 

apply when it is evident that the call for a natural object or established 

boundary line was made under a mistaken belief with reference to the survey. 

Generally, in determining boundaries, natural and permanent monuments are 

the most satisfactory evidence and control all other means of description, in 

the absence of which the following calls are resorted to, and generally in the 

order stated: First, natural boundaries; second, artificial marks; third, adjacent 

boundaries; fourth, course and distance, course controlling distance, or 

distance course, according to cirumstances (sic). Area is the weakest of all 

means of description. The ground of the rule is that mistakes are deemed more 

likely to occur with respect to courses and distances than in regard to objects 
18

which are visible and permanent. The reason assigned for this rule is that 

monuments are considered more reliable evidence than courses and distances. 

A description by course and distance is regarded as the most uncertain kind of 

description, because mistakes are liable to occur in the making of the survey, 

in entering the minutes of it, and in copying the same from the fieldbook. 

‘Consequently, if marked trees and marked corners be found conformably to 

the calls of the patent, or if watercourses be called for in the patent, or 

mountains or other natural objects, distances must be lengthened or shortened 

and courses varied so as to conform to those objects.’ When it comes to 

courses and distances, the latter yield to the former.” 

The trial courts of Ohio have long followed the principles announced 

above as is indicated by the discussion and citations contained in 5 Ohio 

Jurisprudence, 741 to 748, Boundaries, Sections 38 to 44. 

It is also settled that a public street or road or the boundary line of 

other property may be used as a monument. 

It is, however, definitely stated by all authorities that streets, roads, or 

property lines, which are themselves required to be located, can not be given 

controlling effect in fixing the boundaries of other lands. 8 American 

Jurisprudence, 747, Section 4; 11 C.J.S., Boundaries § 5, p. 545. 

{¶ 37} As further noted in Ross: 

* * * In circumstances where a certified surveyor has made a survey of 

a parcel of land and a plat is made and recorded, the monuments placed or 
19

ascertained, and boundary lines established by such monuments in the survey, 

are thereafter controlling. Sellman v. Schaaf, supra. In a subsequent survey, 

the re-surveyor should not run new lines, even where the first are full of errors. 

Sanders v. Webb (1993) 85 Ohio App.3d 674, 680, 621 N.E.2d 420, 424. It 

is the duty of the second surveyor to find where corners were placed, right or 

wrong, where they can be found, and then relocate the original lines and 

corners at the places established. Id. Only where it becomes impossible for 

a second surveyor to find where the first boundaries were established in the 

first survey, does the second survey turn to courses, distances, and still 

existing monuments to determine the boundaries. Sellman supra at 41-42. 

Ross, id.

{¶ 38} As this Court has previously noted: 

Minimum standards for boundary surveys have been established by the 

Ohio State Board of Registration for Professional Engineers and Surveyors. 

See Ohio Adm.Code Chapter 4733-37. The rules in this chapter were 

adopted based on statutory powers given to the board by R.C. 4733.07. 

Although authority interpreting the regulations is sparse, one court has held 

that the minimum boundary standards are “valid rules promulgated pursuant to 

the Board’s implied power.” Satterfield v. Ohio State Bd. of Registration For 

Professional Engineers & Surveyors (May 20, 1999), Adams App. No. 

98CA670, unreported, 1999 WL 339234, at 6. 

Ohio Adm.Code 4733-37-01 indicates that the rules adopted by the 
20

board are “intended to be the basis for all surveys relating to the establishment 

or retracement of property boundaries in the state of Ohio.” 

Green v. Lemarr, 139 Ohio App.3d 414, 425-26, 744 N.E.2d 212 (2d Dist. 2000). 

{¶ 39} Regarding research and investigation, Ohio Adm.Code 4733-37-02 

provides: 

(A) The surveyor shall consult deeds and other documents, including 

those for adjacent parcels, in order to assemble the best possible set of written 

evidence of every corner and line of the property being surveyed. 

(B) After all necessary written documents have been analyzed, the 

survey shall be based on a field investigation of the property. The surveyor 

shall make a thorough search for physical monuments, and analyze evidence 

of monumentation and occupation. In addition, the surveyor shall, when 

necessary, confer with the owner(s) of the property being surveyed. 

{¶ 40} “The identity and validity of a given monument, where in question, must be 

established by a preponderance of the evidence.” Owens v. Haunert, 137 Ohio App.3d 507, 

739 N.E.2d 5 (12th Dist. 2000). 

{¶ 41} Geuy and Scholl employed different methods to determine the location of 

the boundary line between 21 and 19 Pike Street, and the trial court found both methods to be 

“valid.” Geuy deferred to McCullough’s 1972 notes, survey and plat, which he described as 

the course of standard practice in Champaign County, and he located the remnants of a 

wooden post at the northeast corner of 17 Pike Street, as well as an iron pin on the southeast 

corner of 17 Pike Street, both of which he found to be controlling as to the western line of 19 
21

Pike Street. He then “staked the deed distance east and west from there for the two lots that 

Mr. Davis had,” namely 17 and 19 Pike Street. Since there is no definitive east/west 

dimension for Perry’s property, Geuy opined that “no encroachment can exist.” 

{¶ 42} Scholl testified that after referring to deed references and plats affecting 

Perry’s property, he went to the field and created lot lines parallel to Pike Street and Main 

Street based upon the location of the curbs of those streets. As noted, Guey and Scholl did 

not dispute the location of the southwest corner of out lot 43, the location of which was 

further confirmed by Geuy’s research. The dispute arose at the northwest corner, where 

Geuy’s lines tilted west of Scholl’s based upon the location of the wooden post noted in 

McCullough’s survey. 

{¶ 43} Having thoroughly reviewed the testimony of Geuy and Scholl, we conclude 

that the decision of the trial court to divide the disputed property in half by means of a new 

survey created a manifest miscarriage of justice. Scholl’s survey established the line between 

19 and 21 Pike Street without reference to the monument delineated in McCullough’s prior 

survey. In other words, the trial court’s decision to arbitrarily divide the disputed wedge of 

property in half is not supported by the greater amount of credible evidence. The Davises’ 

assigned error is sustained, and the judgment of the trial court is reversed. The matter is 

remanded with instructions to the trial court to issue an entry consistent with this opinion as it 

relates to the property line between 19 and 21 Pike Street, finding that Geuy’s survey 

properly established the location of the boundary between the parties. 

 . . . . . . . . . . 

FAIN, P.J., concurs. 
22

FROELICH, J., concurring on reversal and remand, dissenting on terms of remand: 

{¶ 44} The plaintiffs-appellees alleged that the defendant-appellants encroached on 

their property. Very experienced and competent surveyors opined on whether there was an 

encroachment. 

{¶ 45} A party - in this case the plaintiffs-appellees - that alleges an encroachment 

has the burden of proof. By dividing the disputed property in half, the trial court did not 

decide whether the plaintiffs-appellees had met their burden, but rather seemed to fashion 

what it believed to be an equitable resolution. However well-intended, this was not the 

prerogative of the finder of fact. 

{¶ 46} I would reverse and remand for a factual determination as to whether the 

burden of establishing an encroachment has been met. 

 . . . . . . . . . . 

Copies mailed to: 

Robert A. Wineberg 

Jacob M. Jeffries 

Hon. Nick A. Selvaggio