[Cite as Pottmeyer v. Douglas, 2010-Ohio-5293.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

WASHINGTON COUNTY 

Larry and Linda Pottmeyer, : Case No. 10CA7 

 Plaintiffs-Appellees, : 

 v. : DECISION AND

 JUDGMENT ENTRY

James Douglas and : 

Stephanie Lenhart, et al., 

 : Released 10/21/10 

 Defendants-Appellants. 

 : 

______________________________________________________________________ 

APPEARANCES: 

Michael D. Buell, BUELL & SIPE CO., L.P.A., Marietta, Ohio, for appellants. 

Ethan Vessels, FIELDS, DEHMLOW & VESSELS, Marietta, Ohio, for appellees. 

______________________________________________________________________ 

Harsha, J. 

{¶1} Stephanie Lenhart and James Douglas are appealing the order of the 

Washington County Court of Common Pleas that quieted title to a tract of their land and 

granted an easement for access to that tract in favor of Larry and Linda Pottmeyer.1 

Larry built a machinery shed and maintained a garden in the disputed tract beginning in 

the late 1960s and early 1970s. He also bulldozed and graveled an area for access to 

the machinery shed and garden. The court found that Larry acquired ownership of the 

garden area and the land upon which the original machinery shed was built by adverse 

possession. The court determined that Larry failed to establish ownership of the gravel 

access area by adverse possession but granted him an easement for its use. 

 

1

 For simplicity, we will refer to the Appellants Stephanie and James Douglas in the singular as 

“Stephanie” and the Appellees Pottmeyers as “Larry.” 
Washington App. No. 10CA7 2 

{¶2} On appeal, Stephanie contends that Larry failed to prove adverse 

possession of the garden area by clear and convincing evidence. She argues that Larry 

failed to demonstrate that he “exclusively” and “continuously” possessed the garden 

area for the required period of adverse possession – twenty-one years. Stephanie 

points to the testimony of two neighbors who alleged that Larry abandoned the garden 

area for several years while the true owners planted, plowed, and maintained it. 

However, evidence in the record supports the trial court’s finding of Larry’s “exclusive” 

and “continuous” use of the garden area. Flatly contradicting the neighbors’ testimony, 

Larry testified that he alone planted, plowed, and maintained the garden every year. 

Apparently, the court believed Larry and rejected the neighbors’ contrary testimony. 

This is a credibility determination that we must defer to on appeal. 

{¶3} Stephanie also argues that by sharing the produce of the garden with the 

true owners of the disputed tract, Larry could not have possessed the land exclusively. 

We reject this argument as well. “Exclusivity” for purposes of adverse possession looks 

at acts that indicate ownership by the adverse possessor and acts that exclude true 

owners from exercising ownership. Larry’s gratuitous sharing of the produce of his 

garden with neighbors was consistent with ownership of the garden, i.e., owners 

commonly share the bounty of their gardens with others. 

{¶4} Next, Stephanie argues that the trial court failed to apply a presumption of 

permissive use between family members when addressing both the garden and the 

shed. Because Larry began using the disputed tract when it was owned by his brother 

John Pottmeyer, Stephanie contends Larry did not overcome the presumption that his 

use of his brother’s land was by permission. However, because Stephanie failed to 
Washington App. No. 10CA7 3 

properly raise this argument at trial, or in her proposed findings of fact and conclusions 

of law post-trial, she has waived it for purposes of appeal. Consequently, we affirm the 

decision of the trial court. 

I. Facts Surrounding the Property Dispute 

{¶5} This dispute originates in a plot of land located south of County Highway 

60 in Adams Township, Washington County, Ohio. Ralph and Helen Pottmeyer owned 

the plot and in 1964 they conveyed a small portion of it -- 1.21 acres -- to their son John 

Pottmeyer. John’s plot was bounded on the west by land owned by Paul and Viola 

Tullius. It was bounded on the south and east by what remained of the Ralph 

Pottmeyer plot. County Highway 60 was the northern boundary. 

{¶6} Later, the Ralph Pottmeyers conveyed to the Tulliuses a 1.38 acre parcel 

of land south of and abutting John’s plot. Consequently, John was bounded on the west 

and south by the Tulliuses, on the east by the Ralph Pottmeyers, and on the north by 

County Highway 60. 

{¶7} In 1969 the Ralph Pottmeyers conveyed their remaining land to Larry. In 

1974 Larry constructed a building to store machinery on a strip of land near the 

southern boundary of John’s plot and the Tullius’ abutting land to the south. Larry 

apparently believed that he owned this land. Neither John nor the Tulliuses attempted 

to stop him from building the shed.2 Paul Tullius in fact helped him with the 

construction. Larry also bulldozed the area in front of the machinery shed and spread 

limestone. 

 

2

 In 1997 Larry added a western extension to the original equipment shed. The court found that Larry did 

not acquire the land upon which the extension was located by adverse possession. Larry has not crossappealed on that issue. 
Washington App. No. 10CA7 4 

{¶8} In the disputed strip, there was also a garden which had been in existence 

prior to the Ralph Pottmeyer conveyances. Larry and John agreed that Larry 

maintained this garden since he was conveyed his land in 1969. 

{¶9} In 1977, a boundary dispute arose. John wanted to build a tennis court 

and contacted a surveyor to identify the southern boundary of his land. An unknown 

surveyor (John could not recall the surveyor’s name and had no records relating to the 

survey), told John that the machinery shed was on his property, i.e., that the southern 

boundary of his property was south of the machinery shed. When John told Larry about 

this, Larry disagreed and hired his own surveyor. 

{¶10} Larry’s surveyor, Robert Schultheis, conducted a survey and determined 

that John’s southern boundary was actually north of the machinery shed. However, 

Schultheis found that the gravel area in front of the machinery shed was on John’s 

property. The discrepancy in the surveys appears to be related to the relocation of 

County Highway 60, which was used as the northern boundary of the legal descriptions. 

However, this fact has little bearing on the outcome of the appeal. 

{¶11} John apparently decided that the dispute was not worth further argument. 

At trial he explained, “I wasn’t going to get into a big argument over a few feet.” From 

that point on, John took no action concerning the boundary dispute. 

{¶12} In 1987 John conveyed his property to the Raneys, who transferred it to 

the Wardens in 1994. Robert Warden, then divorced, transferred the property to the 

Drayers in 1998. Stephanie purchased the property from the Drayers’ Estate in 2006. 

{¶13} In 2008, Larry filed suit against Stephanie and asked the Washington 

County common pleas court to quiet title in his favor to the strip of land containing the 
Washington App. No. 10CA7 5 

machinery shed and extension, the gravel area, and the garden. Larry argued that he 

owned this area in fee simple by deed or had acquired it through adverse possession. 

{¶14} The trial court sitting as fact-finder received testimony from Larry and John 

Pottmeyer on behalf of Larry. Stephanie Lenhart, James Douglas, and Paul and Viola 

Tullius testified on Stephanie’s behalf. After receiving proposed findings of fact and 

conclusions of law from both parties, the court found that the Ralph Pottmeyers 

conveyed the disputed strip of land to John Pottmeyer. Thus, Stephanie was the record 

owner of the disputed tract. However, the court found clear and convincing evidence 

that Larry acquired the land upon which the machinery shed and the garden area are 

located by adverse possession. 

{¶15} The twenty-one year period of adverse possession for the equipment 

building began to run in 1974 and therefore would have ended in 1995, assuming no 

intervening acts interrupted any of the necessary elements of adverse possession. In 

this regard, the court examined whether the dispute between John and Larry in 1977 

destroyed adversity. It found that John’s hiring of a surveyor to assess his boundary did 

not disrupt the adverse period because it did not result in any effort to recover 

possession of property. Furthermore, the court determined that John did not “consent” 

to Larry’s use of the disputed area by doing nothing, but merely “acquiesced.” The 

court explained: “[a]quiescence because one wishes to avoid a dispute does not have 

the same legal effect as permission. The Court has been unable to find any cases, 

other than between parent and child, where the relationship between the parties has 

prevented the acquisition of prescriptive rights. [Stephanie] has provided no such 

authority to the Court.” Accordingly, the court held that the brief boundary dispute in 
Washington App. No. 10CA7 6 

1977 did not interrupt Larry’s period of adverse possession because John had done 

nothing to affirmatively take possession of the property or assert his ownership rights. 

{¶16} The court found Larry had used the garden area continuously since he 

acquired his land in 1969 and met all elements required to vest title adversely. Thus, he 

acquired it in 1990. However, the court found that Larry failed to establish ownership by 

adverse possession of the gravel area in front of the machinery shed. Nonetheless, the 

court granted Larry an easement over it for access to the machinery building and 

garden. 

{¶17} Stephanie filed a timely appeal of this decision. 

II. Assignment of Error 

{¶18} Stephanie assigns a single error for our review: 

THE TRIAL COURT ERRED WHEN IT ENTERED A PARTIAL VERDICT IN 

FAVOR OF APPELLEES. 

III. Adverse Possession 

{¶19} Stephanie divides her assignment of error into two principal arguments. 

First, she contends that Larry did not establish by clear and convincing evidence that he 

maintained – “exclusive possession” and “continuous possession” of the garden area for 

the requisite twenty-one year time period. Second, regarding both the machinery shed 

and the garden area, she contends that the trial court failed to consider a presumption 

against adverse possession that arises between members of the same family. 

A. The Garden Area 

1. Standard of Review 
Washington App. No. 10CA7 7 

{¶20} The parties dispute the proper standard of review. Stephanie did not 

specifically refer to our standard of review in her Appellant’s Brief. In his brief, Larry 

contends that Stephanie’s arguments concerning the garden are in the nature of a 

manifest weight claim. In her Reply Brief, Stephanie disputes that she is raising a 

weight of the evidence argument. Rather she argues “[we] do not challenge the trial 

court’s finding that [Larry] and other individual [sic] with their permission grew and 

harvested the garden. * * * Rather [we challenge] whether that factual finding serves as 

a sufficient basis to conclude that [Larry] adversely possessed the real property in 

question.” (Emphasis sic.) 

{¶21} Typically, appeals on adverse possession claims challenge the manifest 

weight of the evidence supporting the various elements of adverse possession. See 

Stover v. Templeton (Mar. 11, 1996), Lawrence App. No. 95CA32, 1996 WL 112683, at 

*1, fn. 1. Some of the arguments in Stephanie’s brief appear to be in the nature of a 

manifest weight claim, while others appear to be legal in nature. To the extent we 

construe any of Stephanie’s arguments as challenges to the manifest weight of the 

evidence, we will apply deferential review. In other words, we will not substitute our 

judgment “for that of the trial court when there exists competent and credible evidence 

supporting the findings of fact and conclusions of law.” State v. Schiebel (1990), 55 

Ohio St.3d 71, 74, 564 N.E.2d 54. This is because issues relating to the credibility of 

witnesses and the weight to be given the evidence are primarily for the trier of fact. As 

the Court explained in Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 

N.E.2d 1273: “[t]he underlying rationale of giving deference to the findings of the trial 

court rests with the knowledge that the trial judge is best able to view the witnesses and 
Washington App. No. 10CA7 8 

observe their demeanor, gestures and voice inflections, and use these observations in 

weighing the credibility of the proffered testimony.” However, to the extent we construe 

Stephanie’s arguments as challenges to the trial court’s choice or application of law, our 

review is de novo. See Stover, supra, at *1. 

2. The Law of Adverse Possession 

{¶22} Adverse possession is a recognized, but not favored, common law method 

of obtaining title to real property. See Grace v. Koch, 81 Ohio St.3d 577, 580, 1998-

Ohio-607, 692 N.E.2d 1009. “Viewed from its ultimate effect, it is the ripening of hostile 

possession, under proper circumstances, into title by lapse of time.” 2 Ohio 

Jurisprudence 3d, Adverse Possession and Prescription § 1, citing Am. Jur. 2d, Adverse 

Possession § 2. The party seeking to gain title through adverse possession bears the 

burden of establishing its elements. Thompson v. Hayslip (1991), 74 Ohio App.3d 829, 

832, 600 N.E.2d 756. 

{¶23} Clear and convincing evidence is required to establish each element of 

adverse possession. Grace at syllabus. “Clear and convincing evidence” is “‘more than 

a mere “preponderance of the evidence,” but not to the extent of such certainty as 

required “beyond a reasonable doubt” in criminal cases, and which will produce in the 

mind of the trier of facts a firm belief or conviction as to the facts sought to be 

established.’” Ohio State Bar Assn. v. Reid, 85 Ohio St.3d 327, 331, 1999-Ohio-374, 

708 N.E.2d 193, quoting Cross v. Ledford (1954), 161 Ohio St. 469, 120 N.E.2d 118, at 

paragraph three of the syllabus. 

{¶24} The elements of adverse possession are “exclusive possession and open, 

notorious, continuous, and adverse use for a period of twenty-one years.” Grace at 
Washington App. No. 10CA7 9 

syllabus; see, also, R.C. 2305.04 (establishing statute of limitations to recover title to or 

possession of real property at twenty-one years). Given the nature of adverse 

possession claims, each case is to be decided on its particular facts. See Thompson at 

833. 

3. Exclusive Possession and Use 

{¶25} Stephanie argues that Larry failed to establish that he exclusively 

possessed the garden area for twenty-one years. She points to the testimony of Paul 

and Viola Tullius, who stated that they saw the Raneys and the Wardens maintain the 

garden and did not see Larry maintain the garden until after Warden sold the property in 

1998. In response, Larry argues that he testified that he was the only person who 

planted the garden each year, the only person who plowed it, and that he did not allow 

anyone else to perform these tasks. He admits that he would tell his neighbors that 

they could help themselves to crops from the garden. Larry contends that this 

testimony provides a sufficient basis for the trial court’s finding that “[t]he annual 

growing and harvesting of the garden was done by [Larry] or others with [Larry’s] 

permission.” Larry also asserts that the trial court may have discredited Paul Tullius’ 

testimony due to his age, physical and mental condition, and because he admitted bias 

at trial, i.e., he confessed he would like to see Stephanie win the lawsuit because Larry 

named him as a necessary party in his original pleading. 

{¶26} To demonstrate exclusive use, an adverse claimant bears the burden of 

establishing clear and convincing evidence of: (1) use of the property that would 

characterize an owner’s use; and (2) use of the property that is “exclusive of the true 

owner entering onto the land and asserting his right to possession.” Crown Credit Co. 
Washington App. No. 10CA7 10 

v. Bushman, 170 Ohio App.3d 807, 2007-Ohio-1230, 869 N.E.2d 83, at ¶53, citing 

Klinger v. Premier Properties (Nov. 17, 1997), Logan App. No. 8-97-10, 1997 WL 

722771, in turn citing Walls v. Billingsley (Apr. 28, 1993), Allen App. No. 1-92-100, 1993 

WL 135808. See, also, Thompson, supra, at 833. 

{¶27} Stephanie’s argument here is clearly challenging the manifest weight of 

the evidence. In effect, Stephanie contends that the Tullius’ testimony, had it been 

given more weight by the trial court, should have precluded the court from finding clear 

and convincing evidence of exclusive use. Credibility determinations of this sort are 

almost exclusively reserved for the fact-finder. The trial court was free to accept all, 

part, or none of the Tullius’ testimony that contradicted Larry’s assertions regarding 

exclusive use of the garden area. See Holm v. Smilowitz (1992), 83 Ohio App.3d 757, 

778-779, 615 N.E.2d 1047. 

{¶28} As Larry contends, there is some competent and credible evidence in the 

record that he exclusively used or possessed the garden area. Planting, plowing, 

general maintenance, and harvesting of a garden plot is conduct consistent with its 

ownership. Larry offered this sort of evidence when he testified that no one other than 

himself planted, plowed or otherwise tended to the garden. However, he admitted 

allowing the subsequent owners of the John Pottmeyer plot -- with whom he “got along 

with great” -- to pick crops from the garden. 

{¶29} In this regard, Stephanie contends that Larry’s “sharing” of the crops with 

his neighbors, i.e., Stephanie’s predecessors in interest and the record owners of the 

garden area, would preclude a finding of exclusive use. This aspect of Stephanie’s 
Washington App. No. 10CA7 11 

argument is legal in nature, i.e., she proposes that this sort of “sharing” of property 

precludes a finding of exclusive use as a matter of law. 

{¶30} Stephanie cites Yoho v. Robertson (Apr. 19, 1991), Carroll App. No. 590, 

1991 WL 66207, for the proposition that “sharing” of property by an adverse claimant 

with a true owner precludes a finding of exclusive use or possession. In Yoho, the 

adverse claimant owned a quarter-interest in land as a tenant in common with his three 

siblings. Id. at *1. The claimant alleged that in 1954 he entered into a written agreement 

to acquire all interest in the property from the sibling co-tenants. In 1988, two of the 

siblings sought to partition the property. The claimant defended the suit on the basis 

that he owned the property via the written agreement. Id. at *2. In the alternative, he 

argued that he acquired it by adverse possession. Id. at *3. 

{¶31} At trial, the court rejected the written agreement because it did not qualify 

as a deed. Id. at *2. The trial court also rejected the claimant’s argument that he 

acquired the property by adverse possession. Id. at *3. The appellate court affirmed, 

noting that the undisputed facts established that the claimant had not occupied the land 

exclusively because two sibling co-tenants resided on the property during the alleged 

period of adverse possession. Id. 

{¶32} Thus, Yoho is distinguishable. First, the status of the parties as cotenants is a point of distinction. In a tenancy in common, co-tenants have the same 

rights to the use and possession of the property. Collins v. Jackson (1986), 34 Ohio 

App.3d 101, 103, 517 N.E.2d 269. Therefore, a co-tenant adverse claimant generally 

cannot acquire property held in co-tenancy by mere possession of the property because 

that possession is presumed consistent with the other co-tenants’ right to enter the land 
Washington App. No. 10CA7 12 

at any time. Farmers’ & Merchants’ Natl. Bank v. Wallace (1887), 45 Ohio St. 152, 164-

165, 12 N.E. 439 (“his possession will be regarded, not only as a declaration of his own 

proprietary rights, but those of his co-tenants as well.”); see, also, Grace, supra, at 580, 

fn.1. Therefore, a co-tenant seeking to adversely possess property in co-tenancy must 

demonstrate a “positive and overt act connected with his exercise of ownership, such as 

will manifest an unmistakable intention on his part to exclude his co-tenants from the 

enjoyment of the property.” Farmers at 165. Consequently, it is a difficult task for one 

co-tenant to adversely possess property from other co-tenants. He must do something 

more than merely possess or use the property. 

{¶33} In our case, Larry was a trespasser, not a co-tenant. Larry’s use of the 

garden area would not be, as in the case of a co-tenancy, also consistent with the rights 

of the true owners. Even though Larry had no right to enter into the garden area, for 

twenty-one years he exclusively plowed, planted, and maintained the garden to the 

exclusion of the true owners. Larry’s actions in this regard were consistent with sole 

ownership of the property. 

{¶34} Second, the “sharing” at issue in Yoho was of the residential use of the 

premises. But here, Larry gratuitously “shared” the crops of a small garden area with 

the true owners. Because co-tenants have equal right to the use and enjoyment of the 

property in a tenancy in common, residing on that property or receiving crops from it 

could be a use consistent with shared ownership. 

{¶35} But here, there was no co-tenancy relationship and Larry said he gave the 

Raneys and Wardens permission to enter into the garden area only to remove crops. 

This, he explained, was because they were good neighbors. Unless the facts suggest 
Washington App. No. 10CA7 13 

otherwise, gratuitous sharing of produce from a garden by an adverse claimant is 

consistent with the adverse claimant’s ownership. In fact, it is a quite normal and 

common occurrence between neighbors with good relations. Therefore, the fact that 

Larry shared crops from his garden with his neighbors would not preclude a finding by 

clear and convincing evidence of exclusive use and possession of the property. 

4. Continuous Use 

{¶36} Stephanie also argues that Larry failed to offer clear and convincing 

evidence that he continuously used the garden area for twenty-one years. Stephanie 

suggests that Larry did not continuously maintain the garden during the time period 

when the Raneys purchased the property (1987) until Warden sold the property (1998). 

This proposition also attacks the weight of the evidence. Paul Tullius claimed that he 

did not see Larry maintain the garden until after Warden sold the property in 1998. In 

response, Larry contends that he testified that he planted and maintained the garden 

each year during the alleged period of adverse possession. 

{¶37} To demonstrate continuous use an adverse claimant must show that there 

was no “substantial interruption” in his use of the property. Bullion v. Gahm, 164 Ohio 

App.3d 344, 2005-Ohio-5966, 842 N.E.2d 540, at ¶20. Daily or weekly use is not 

required, as long as the use shown is continuous enough to indicate “prolonged and 

substantial use.” Id. quoting Ault v. Prairie Farmers Co-Operative Co. (1981), Wood 

App. No. WD-81-21, 1981 WL 5788. 

{¶38} The court found that “[t]he garden area and access to it were used by 

[Larry] continuously since he acquired his land. The annual growing and harvesting of 

the garden was done by [Larry] or others with his permission.” Again, there is 
Washington App. No. 10CA7 14 

competent and credible evidence in the record to support this finding. Larry testified 

that a garden existed in that area for over forty years before he owned the property. He 

stated that he continued to care for the garden and planted it each year since he took 

possession of his land in 1969. Although the Tullius’ testimony clearly contradicted 

Larry’s assertion concerning the garden – the trial court was free to accept all, part, or 

none of this testimony. The trial court could rely on Larry’s testimony to establish clear 

and convincing evidence of continuous use. 

{¶39} Apparently in the alternative, Stephanie suggests that Larry’s use of the 

garden was too infrequent or occasional to establish continuous use. Larry testified that 

he planted, plowed, and maintained the garden each year beginning in 1969. The 

parties testified that the garden was used predominantly in late spring, the summer, and 

into early fall and lay dormant the remainder of the year. In the case of a small garden 

area, under most circumstances annual planting, plowing, maintenance, and harvesting 

during the productive seasons, and non-use during non-productive seasons amounts to 

substantial and prolonged use, i.e., it is consistent with an owner’s use of the property. 

Consequently, we hold that Larry presented some competent and credible evidence that 

supports the trial court’s finding of exclusive and continuous use of the garden area for 

the requisite time period. 

B. The Presumption Concerning Adverse Possession between Family Members 

{¶40} In her second issue, which relates to both the garden and the shed, 

Stephanie contends that the trial court failed to apply a presumption that arises 

regarding adverse possession claims between family members. Stephanie cites Arthur 

v. Arthur (Dec. 4, 1997), Jackson App. No. 97CA797, 1997 WL 764477 and Kallner v. 
Washington App. No. 10CA7 15 

Wells, Scioto App. No. 05CA3030, 2006-Ohio-4634, for the proposition that use of 

property by family members is presumed to be permissive. Stephanie implies that (1) 

Larry submitted insufficient evidence to overcome this presumption; and (2) the trial 

court erred by failing to include this presumption in its decision. In response, Larry 

argues that Stephanie failed to present this argument either at trial or in her proposed 

findings of fact and conclusions of law post-trial and has waived it for purposes of 

appeal. In the alternative, Larry contends that neither Arthur nor Kallner is controlling 

and even if they are, the evidence submitted was sufficient to overcome such a 

presumption, i.e., he “burst the bubble” of the presumption. 

{¶41} The failure to raise an argument before the trial court typically results in a 

waiver of that argument for purposes of appeal. Stores Realty Co. v. Cleveland (1975), 

41 Ohio St.2d 41, 43, 322 N.E.2d 629. In her Reply Brief, Stephanie argues she did not 

waive the presumption of permissive use between family members because she 

disputed that John “acquiesced” to Larry’s position regarding the boundary dispute by 

doing nothing, i.e., she contested the consent element. 

{¶42} Specifically, Stephanie argues that she brought up the issue of permissive 

use between family members during her attorney’s cross-examination of John 

Pottmeyer. The discussion concerned the boundary line dispute in 1977: 

Q: Okay. Now, did -- when you -- first of all, you hired a surveyor and he determined 

that the boundary was different than where Larry thought it was and in fact, where you 

thought it was? 

A: Right. 

Q: So you now have two surveyors saying different things? 

A: Yes. 
Washington App. No. 10CA7 16 

Q: Did you and Larry have disagreements over it? 

A: Well, yeah. He -- he agreed with his and well, I said, I don't know. I said -- 

Q: Well, you had a surveyor. 

A: Yeah. 

Q: Did you not agree with him? 

A: Well, I -- yes, I agreed with him. I had to. I don't -- I don't -- I'm not a surveyor. 

Q: Okay. Well, I notice in the -- in the notes from Mr. Mulryan’s survey or somewhere, 

that Mr. Schultheis refers to the surveying project as Larry Pottmeyer versus John 

Pottmeyer. It sounded like there was a dispute. 

A: Well, there was a dispute over the line and who was right and who was wrong, and I 

don’t -- like I says, and I didn’t care. 

*** 

Q; Okay, well, you built -- you built -- you saw him build the building. 

A: Yes. 

Q: And in 1977, you got into a dispute about it. Do you ever remember him changing 

the size of the building while you were there, at a later date? 

A: No, I don’t remember. 

Q: Okay. So, in 1977, you knew there was a dispute, you knew you might own it? 

A: Well, I, yeah, there was a dispute on the two surveyors, yes. 

Q: Okay. And what you’re telling us is, if you owned it, you didn’t care if he used it?

A: Well, I -- I wasn’t going to get in a big fight over a few feet of ground, if that’s what 

you’re asking. 

Q: Because he’s your brother? 

A: Well, no, I don’t care who it would have been. 

Q: Okay. But at least, from 1977 on, you knew that -- that there was a dispute? You 

knew it wasn’t -- that it might be your property, it might be his? 

A: Right. 
Washington App. No. 10CA7 17 

Tr. 56-59. (Emphasis supplied.) 

{¶43} Stephanie contends that the italicized remarks above indicate that she 

was injecting the issue of permissive use between family members into the trial. 

Assuming this to be true, we find nothing addressing this issue in Stephanie’s proposed 

findings of fact and conclusions of law. 

Moreover, it seems clear from the above testimony that John never indicated he 

gave permission to Larry to use the property. Instead, he was unsure of whether he 

owned the land upon which the machinery shed was built. He recognized that he might 

own it, but he was not sure. Either way, John did not feel that it was an issue worth 

pursuing. And when asked if he did not pursue the boundary line dispute because his 

brother was involved, John stated that it did not matter that it was his brother. His 

testimony indicates that he was simply no longer interested in determining the true 

boundary and it would not have mattered who the dispute was with. Accordingly, we 

hold that Stephanie did not preserve this issue for purposes of appeal. 

IV. Conclusion 

{¶44} We hold that the trial court properly vested title in the garden area to Larry 

through adverse possession. The record contains some competent and credible 

evidence that Larry exclusively and continuously possessed and used the garden area 

for twenty-one years. Additionally, Stephanie has waived her argument on the 

applicability of a presumption of permissive use between family members. Thus, we 

affirm the decision of the trial court. 

JUDGMENT AFFIRMED. 
Washington App. No. 10CA7 18 

JUDGMENT ENTRY

 It is ordered that the JUDGMENT IS AFFIRMED and that Appellants shall pay 

the costs. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing the 

Washington County Common Pleas Court to carry this judgment into execution. 

 Any stay previously granted by this Court is hereby terminated as of the date of 

this entry. 

 A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. Exceptions. 

Abele, J. & Kline, J.: Concur in Judgment and Opinion. 

 For the Court 

 BY: ________________________________ 

 William H. Harsha, Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final judgment 

entry and the time period for further appeal commences from the date of filing 

with the clerk.