By Joe Pinchot
Herald Staff Writer
Superior Court has affirmed a Mercer County judge’s ruling that a Hermitage couple had not proved that they possessed land in the city even though they had used it for years.
Robert W. and Kathy M. Piston of 2209 Hazen Road, bought a 43-acre parcel in 2008 in Hermitage that shares a property line with the home property of Keith A. and Sherrie L. Hughes, 1360 Skyline Drive.
A dispute arose over a 75-by 90-foot portion of the tract that the Hugheses believed they owned when they bought their property in 1984, but conceded after the Pistons sued that the Pistons had title to the land.
The Hugheses argued that they had taken legal ownership of the portion through “adverse possession,” by using it as an extension of their backyard. A shed already existed on the portion when they bought their property and they added another shed, a fire pit, swings and a garden, and periodically cut grass and weeds.
Adverse possession is an “extraordinary doctrine which permits one to achieve ownership of another’s property by operation of law,” according to case law.
To prove adverse possession, someone must show that they had “actual, continuous, exclusive, visible, notorious, distinct and hostile possession of ... land for 21 years,” according to case law.
Case law also established that the determination of actual possession is done on a case-by-case basis, based on the character of the property, and the standard for proving adverse possession of woodland is “rather strict,” said Mercer County Common Pleas Court Judge Christopher J. St. John, whose Aug. 18, 2011, ruling, which followed a non-jury trial, was appealed.
A woodlands is not merely trees but also includes brush, watercourses, ponds, valleys and rock formations St. John said.
The evidence of a forester hired by the Pistons showed that the disputed portion is “within the tree line of the larger 43-acre tract” and “would be grown up brush had it not been mowed by defendants.
The Hugheses needed to prove that they had established a home on the lot, “substantially cultivated” part of it or built a “substantial enclosure” around it to show actual possession of the portion, he said.
St. John ordered the Hugheses to remove all structures and changes from the disputed portion, and awarded possession of it to the Pistons.
Both sides appealed but Superior Court only considered the Hugheses’ appeal, which disputed that the land was woodlands and that they had not proven adverse possession.
A three-judge panel of Superior Court said Nov. 9 that they were only to determine whether St. John’s findings were supported by evidence and that he properly applied the law, and concluded that his opinion met both criteria.
The lawsuit arose after the Pistons discovered that homeowners had built sheds on their property, and notified the city. City officials sent letters to the homeowners who had not acquired building permits and directed them to remove the sheds, St. John said. The Hugheses did not remove their sheds, and the lawsuit was filed Sept. 2, 2009.