[Cite as Gaskill v. Baughman, 2012-Ohio-2130.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

ALLEN COUNTY 

 

EARL D. GASKILL, 

 PLAINTIFF-APPELLEE, CASE NO. 1-11-62 

 v. 

JERRY BAUGHMAN, ET AL., O P I N I O N 

 DEFENDANTS-APPELLANTS. 

 

Appeal from Allen County Common Pleas Court 

Trial Court No. CV20090363 

Judgment Reversed and Cause Remanded 

Date of Decision: May 14, 2012 

 

APPEARANCES: 

Steven L. Diller for Appellants 

Jerry M. Johnson and Christine M. Bollinger for Appellee, 

Earl D. Gaskill 
Case No. 1-11-62 

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PRESTON, J. 

{¶1} Defendant-appellants, Jerry and Janice Baughman (“the Baughmans”), 

appeal the Allen County Court of Common Pleas’ decision granting partial 

summary judgment in favor of plaintiff-appellee, Earl D. Gaskill (“Gaskill”). For 

the reasons that follow, we reverse. 

{¶2} Gaskill purchased 181⁄2 acres of land from Susan Sees on April 16, 

1966. (Gaskill Deed). Mary Spicer (“Spicer”) owned 20 acres of land bordering 

the south of Gaskill’s parcel from that time until September of 2007. (Strayer 

Affidavit at ¶ 2); (Baughman Affidavit at ¶ 2). On September 13, 2007, the 

Baughmans purchased the 20 acre parcel from Spicer. (Baughman Affidavit at ¶ 

2); (Baughman Deed). 

{¶3} In the spring of 2008, Gaskill harvested hardwood trees located on the 

border of the two plots. (Gaskill Affidavit at ¶ 10). Gaskill separated the wood 

into piles intending to remove them at a later date. (Id.). 

{¶4} On April 23, 2008, the Baughmans hired Bacon & Associates, LLC to 

perform a survey of their property. (Baughman Affidavit at ¶ 4). Following the 

survey, the Baughmans authorized brush and wood to be cleared from a tree line 

on the north border of their property, claiming the tree line was part of their parcel. 

(Id. at ¶ 6). 
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{¶5} On November 21, 2008, Gaskill filed a complaint in the Lima 

Municipal Court. (Complaint). Gaskill alleged that the tree line was part of his 

property. (Id.). Gaskill also alleged that the Baughmans had removed the wood 

Gaskill had harvested and sought damages of $900. (Id.). On January 14, 2009, 

the Baughmans filed an answer and counterclaim alleging they were the owners of 

the tree line based on the survey. (Answer). 

{¶6} On April 9, 2009, the Lima Municipal Court transferred the case to the 

Allen County Court of Common Pleas because it involved a title dispute to real 

estate. (Doc. No. 1). 

{¶7} On September 21, 2009, the Baughmans filed a motion for summary 

judgment. (Doc. No. 5). On December 11, 2009, Gaskill filed a response to the 

Baughmans’ motion as well as his own motion for summary judgment. (Doc. No. 

14). On January 27, 2010, the trial court denied both motions because the parties’ 

conflicting surveys created a genuine issue of material fact, and Gaskill failed to 

argue he gained the land by adverse possession in his complaint prior to raising it 

on summary judgment. (Doc. No. 17). 

{¶8} On February 25, 2010, Gaskill filed an amended complaint alleging he 

had adversely possessed the disputed tree line. (Doc No. 20). Gaskill filed his 

answer to the Baughmans’ counterclaim on that same day. (Doc. No. 21). The 
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Baughmans filed their answer to Gaskill’s amended complaint on March 19, 2010. 

(Doc. No. 22). 

{¶9} On August 1, 2011, Gaskill filed a second motion for summary 

judgment. (Doc. No. 47). On August 15, 2011, the Baughmans filed their 

response to Gaskill’s motion. (Doc. No. 51). 

{¶10} On September 27, 2011, the Allen County Court of Common Pleas 

granted Gaskill’s motion in part. (Doc. No. 52). The trial court determined that 

Gaskill owned the disputed tree line under the doctrine of acquiescence. (Id.). The 

trial court stated that a genuine issue of material fact remained regarding whether 

the Baughmans had taken Gaskill’s wood, and denied Gaskill’s motion as to his 

claim for monetary damages. (Id.). The trial court certified that the judgment was 

a final, appealable order pursuant to Civ. R. 54. (Id.). 

{¶11} On October 24, 2011, the Baughmans filed a notice of appeal and 

now raise one assignment of error for our review. 

ASSIGNMENT OF ERROR 

THE TRIAL COURT ERRED IN GRANTING SUMMARY 

JUDGMENT IN APPELLEES’ FAVOR BECAUSE 

APPELLEES FAILED TO MEET THEIR BURDEN TO 

PROVE THAT NO GENUINE ISSUE OF MATERIAL FACT 

EXISTED AS TO THE ACQUISITION OF THE DISPUTED 

PROPERTY BY APPELLEE THROUGH THE DOCTRINE 

OF ACQUIESCENCE 
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{¶12} In their sole assignment of error, the Baughmans argue the trial court 

erred in granting Gaskill’s motion for summary judgment because there is a 

genuine issue of material fact regarding the location of the fence row. The trial 

court determined that Gaskill owned the property north of the fence row. The 

Baughmans contend that the trial court’s decision was in error because the 

affidavits submitted to the trial court provided contradictory evidence regarding 

whether the fence row included the disputed tree line. The Baughmans rely on 

Randy Strayer’s (“Strayer”) affidavit, where Strayer averred that the fence row 

and tree line were an open and obvious boundary, as well as Jerry Baughman’s 

affidavit where he averred that the cement posts were located within the tree line. 

(Strayer Affidavit at ¶ 9); (Baughman Affidavit at ¶ 3). The Baughmans argue 

that this evidence is contrary to the trial court’s determination that Gaskill owns 

the land north of the fence row, including the tree line, because it is unclear that 

the disputed tree line is north of the fence row. The Baughmans contend the trial 

court erred by granting summary judgment because this evidence creates a 

genuine issue of material fact. 

{¶13} We review a decision to grant summary judgment de novo. Doe v. 

Shaffer, 90 Ohio St.3d 388, 390 (2000). Summary judgment is proper where there 

is no genuine issue of material fact, the moving party is entitled to judgment as a 

matter of law, reasonable minds can reach but one conclusion when viewing the 
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evidence in favor of the non-moving party, and that conclusion is adverse to the 

non-moving party. Civ.R. 56(C); State ex rel. Cassels v. Dayton City School Dist. 

Bd. of Edn., 69 Ohio St.3d 217, 219 (1994). 

{¶14} In the present case, the trial court granted Gaskill’s motion for 

summary judgment based on the doctrine of acquiescence. (Doc. No. 52). The 

doctrine of acquiescence applies in cases where adjoining land owners mutually 

recognize and treat a specific line as the boundary separating their properties. 

Merriner v. Goddard, 7th Dist. No. 08-MO-2, 2009-Ohio-3253, ¶ 57, citing 

Robinson v. Armstrong, 5th Dist. No. 03CA12, 2004-Ohio-1463, ¶ 35. 

“Acquiescence rests upon the practical reality that the true location of most 

boundary lines is uncertain between two property owners, and that neighbors may 

establish between themselves a boundary * * *.” Richardson v. Winegardner, 3d 

Dist. No. 1-99-56, *3 (Nov. 2, 1999). Some jurisdictions establish specific 

elements for the doctrine of acquiescence because the doctrine is frequently 

confused and comingled with adverse possession. Thomas v. Wise, 6th Dist. No. 

S-06-043, 2007-Ohio-3467, ¶ 16. The Supreme Court of Ohio recognized the 

doctrine of acquiescence in Bobo v. Richmond, where it stated: 

[W]e hold the principle to be well settled that an agreement upon a 

division line between adjoining land-owners, different from the true 

line, the true line being certain, and not a disputed line, and 
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acquiescence by all the parties in such agreed line, for a length of 

time that would bar a right of real estate, would operate to prevent a 

party purchasing from one of such owners, with notice of the agreed 

line, from setting up a claim to any line other than that agreed upon, 

although the occupancy had not been such as, aside from the 

marking of the agreed line, would amount to a continuous possession 

of the entire premises up to the agreed line, for the whole time. 

25 Ohio St. 115, 122 (1874). Ohio courts have since applied the doctrine of 

acquiescence in instances where the adjoining landowners treated a specific line as 

the boundary for the period of time required for adverse possession. Matheson v. 

Morog, 6th Dist. No. E-00-017, *4 (Feb. 2, 2001); Burkitt v. Shepherd, 4th Dist. 

No. 05CA744, 2006-Ohio-3673, ¶ 15; Merriner at ¶ 57. 

{¶15} The trial court determined that Gaskill and Spicer, the owner of the 

property prior to the Baughmans, treated the fence row as the boundary for at least 

35 years. (Doc. No. 52). The evidence presented on summary judgment supports 

this finding. In his affidavit, Gaskill averred that he believed the fence row was 

the boundary between his and the Baughmans’ property. (Gaskill Affidavit at ¶ 6). 

Gaskill further averred that Spicer, his previous neighbor, had maintained the 

property south of the fence row and also treated the fence row as the boundary 

between the properties since he took possession of the land in 1966. (Id. at ¶ 8). In 
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his affidavit, Strayer averred that he was Spicer’s tenant farmer for 35 years. 

(Strayer Affidavit at ¶ 1-2). Strayer averred that Spicer informed him that the 

fence row was the boundary between her and Gaskill’s properties. (Id. at ¶ 3). 

Strayer also averred that during the 35 years that he farmed Spicer’s land, he only 

farmed south of the fence row. (Id. at ¶ 4). 

{¶16} We agree with the trial court that this evidence establishes that 

Gaskill and Spicer mutually treated the fence row as the boundary between their 

properties for at least 35 years, which is longer than the 21 years required to 

establish adverse possession. Bidlack v. Hubert, 3d Dist. No. 11-07-06, 2008-

Ohio-83, ¶ 27. However, we disagree that this evidence alone results in Gaskill 

owning the land through the doctrine of acquiescence after Spicer’s conveyance of 

her property to the Baughmans. 

{¶17} In Bobo, the Supreme Court of Ohio stated that an agreement 

between adjoining landowners that changed the boundary between their properties 

“would operate to prevent a party purchasing from one of such owners, with notice 

of the agreed line, from setting up a claim to any line other than that agreed upon * 

* *.” Bobo, 25 Ohio St. 115 at 122 (emphasis added). Further review of Ohio case 

law reveals that courts have used the doctrine of acquiescence in cases where the 

facts demonstrated the parties had notice of the agreed boundary. See Richardson, 

3d Dist. No. 1-99-56 (New owner admitted he knew the neighbor treated the 
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disputed land as part of his parcel because the new owner had purchased the 

property from a family member he visited frequently); Shepherd, 2006-Ohio-3673 

(Parties disputing the boundary had always viewed the road as the boundary 

through a mutual mistake); Powell v. Valandingham, 4th Dist. No. 10CA24, 2011-

Ohio-3208 (Neighbors had recognized a fence as the boundary between their 

properties for over 30 years); Simon v. Kreunz, 6th Dist. No. F-96-020 (Apr. 25, 

1997) (Parties had treated a fence and tree row as the boundary for 40 years); 

McGregor v. Hanson, 11th Dist. No. 99-G-2228 (June 16, 2000) (Barn was 

partially located on adjoining parcel from 1893 until quiet title action in 1987). 

{¶18} In the present case, there is a genuine issue of material fact regarding 

whether the Baughmans had notice of the agreed boundary. Unlike many of the 

prior cases where courts have applied the doctrine of acquiescence, the 

Baughmans were new purchasers and not a party to the agreement to treat the 

fence row as the boundary between the properties. See Burkitt; Powell; Simon. 

The evidence before this Court does not clearly address whether the Baughmans 

otherwise had notice that the fence row was treated as the boundary between the 

parcels. Gaskill argues that the fence row creates a clear boundary between the 

properties. Gaskill averred that a fence row existed between the properties that 

“had cement posts in place and old fencing attached” that separated the two 

parcels. (Gaskill Affidavit at ¶ 5). Gaskill further averred that the Baughmans 
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removed the fence row. (Id. at ¶ 11). Strayer averred that “the fence row and tree 

line were an open and obvious boundary between the two (2) farms.” (Strayer 

Affidavit at ¶ 9). The Baughmans disagree that the fence row was a clear 

boundary. Jerry Baughman averred that “there were a few posts (some of which 

were wrapped in wire) located within the disputed tree line” but failed to 

acknowledge the existence of a fence or fence row. (Baughman Affidavit at ¶ 3). 

Jerry Baughman also averred that he authorized the clearing of brush and wood 

from the tree line, but made no mention of the removal of the posts. (Id. at ¶ 6). 

Additionally, the deed conveying Spicer’s property to the Baughmans made no 

mention of the fence row as the boundary and stated that the land was “free and 

clear from all encumbrances.” (Baughman Deed). Since there is a genuine issue 

of material fact regarding whether the Baughmans had notice of the agreed 

boundary, we cannot conclude that Gaskill owns the disputed land through the 

doctrine of acquiescence. 

{¶19} We now turn to the question of whether, viewing the evidence in the 

light most favorable to the non-moving party, there is a genuine issue of material 

fact without applying the doctrine of acquiescence. The Baughmans and Gaskill 

each contend that they own the disputed tree line bordering their properties. 

(Gaskill Affidavit); (Baughman Affidavit). The Baughmans have presented a 

survey plat completed by Bacon & Associates, LLC (Bacon survey plat) as 
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evidence that they own the disputed property. The Baughmans argue that the 

boundary line from this survey is north of the disputed tree line. (Baughman 

Affidavit at ¶ 5). However, the Bacon survey plat does not indicate where the 

fence row and tree line are located in relation to the boundary between the 

properties. (Bacon survey plat). Thus, it is not clear whether the Baughmans own 

the disputed property based on the evidence presently before this Court. 

{¶20} In support of his contention that he owns the fence row and tree line, 

Gaskill has produced a survey plat completed by Brad Core (Core survey plat), 

photographs of the posts in the fence row, and photographs of the chopped wood. 

According to the Core survey, the boundary between the properties is south of the 

boundary established in the Bacon survey. (Core survey plat). The Core survey 

plat notes that a maple tree is located on the boundary between the properties 

along with a concrete corner post. (Id.). However, the Core survey plat does not 

make any other reference to the fence row or tree line. (Id). Similarly, Gaskill’s 

photographs do not demonstrate where the fence row and tree line are located in 

relation to one another, or where they are located in relation to the boundary 

established in the Core survey. The photographs of the posts from the fence row 

show a post in isolation, thus it is unclear whether the post is located north or 

south of the tree line, and whether the posts establish an obvious boundary 

between the properties. Gaskill’s photographs of the chopped wood also show the 
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wood in isolation, without any reference to the fence row or the tree line. 

Consequently, it is not clear from the evidence the parties have presented whether 

the Core survey or the Bacon survey establish the correct boundary between the 

properties. Viewing this evidence in the light most favorable to the non-moving 

party, we find that there are multiple issues of material fact regarding which 

survey is correct and where the fence row is located in relation to the tree line. 

Consequently, Gaskill is not entitled to summary judgment because he has not 

demonstrated that he has acquired the disputed land through the doctrine of 

acquiescence and, if the doctrine of acquiescence does not apply, there remain 

genuine issues of material fact precluding summary judgment. 

{¶21} The Baughmans’ assignment of error is, therefore, sustained. 

{¶22} Having found error prejudicial to the appellants herein in the 

particulars assigned and argued in his assignment of error, we reverse the 

judgment of the trial court and remand for further proceedings consistent with this 

opinion. 

Judgment Reversed and 

Cause Remanded 

WILLAMOWSKI and ROGERS, J.J., concur. 

/jlr