## Facts

- Leonard L. Grace, Jr. owned parcel 43; Anthony and Elizabeth Koch owned adjacent parcel 44.
- A 34-foot strip of land lay between the Kochs’ driveway and a split-rail fence; the strip was entirely within parcel 43 and not on the boundary line.
- Grace had built the fence north of the driveway to keep livestock off parcel 44; the driveway itself encroached about five feet onto parcel 43.
- When Grace sold parcel 44 to the Kochs in 1970, Grace obtained and conveyed an easement allowing the Kochs to use the existing driveway despite the encroachment.
- The Kochs knew when they bought parcel 44 that they did not own the strip, which remained part of parcel 43.
- The Kochs nonetheless used the strip as a side yard over many years (e.g., parking, a swing set, planting a tree, storage, and a carport).
- In 1970, Anthony Koch asked for and received express permission from Grace (and Grace’s parents) to mow the strip.
- In 1991 Grace became the owner of parcel 43 and in 1992 mortgaged it to Mayflower Savings & Loan.
- In July 1992, Grace objected when Koch spread gravel on the strip and asserted trespass; the dispute led to litigation.
- At trial, the Kochs conceded they would not have used the strip without permission.

## Issues

1. What burden of proof applies to an Ohio claim of title by adverse possession.
2. Whether the Kochs proved adverse possession of the 34-foot strip, including whether their use was “adverse” rather than permissive, for the required statutory period.

## Decision

- The Ohio Supreme Court affirmed the court of appeals, rejecting the trial court’s finding that the Kochs acquired the strip by adverse possession.
- The Court held that adverse possession must be proved by clear and convincing evidence.
- Applying that standard, the Kochs failed to establish the required elements, particularly adversity/hostility in light of permissive use.
- Title remained with Grace, subject to Mayflower’s mortgage interest.

## Legal Principles

- To acquire title by adverse possession in Ohio, the claimant must prove by clear and convincing evidence: exclusive possession and open, notorious, continuous, and adverse use for twenty-one years.
- Failure to prove any element defeats the adverse possession claim.
- Adverse possession is disfavored because it divests a record titleholder without compensation; therefore, courts require rigorous proof.
- Use that begins with the owner’s permission is not adverse; the claimant bears the burden to show a clear shift from permissive use to hostile possession for the full statutory period.

## Conclusion

The court clarified that Ohio adverse possession claims require clear and convincing evidence of all elements for twenty-one years and denied title where the claimant’s long-term use of the disputed strip was permissive rather than hostile to the record owner.


Grace v. Koch, 81 Ohio St. 3d 577, 692 N.E.2d 1009 (Ohio 1998)