A Summit County business failed to provide enough evidence to claim ownership of two neighboring parcels of land it had maintained since 1997, but are actually owned by Norfolk Southern Railway Company, the Supreme Court of Ohio ruled today.

In a 5-2 decision, the Supreme Court rejected a claim by NC Enterprises that it acquired nearly 1.5 acres of Norfolk Railway property by “adverse possession.” The Court reversed a ruling by the Ninth District Court of Appeals, which found that NC Enterprises’ lawn maintenance activities and subsequent fencing and drainage improvements to the land met the requirements for acquiring ownership.

Writing for the Court majority, Justice Daniel R. Hawkins explained that to acquire land owned by another through adverse possession, NC Enterprises had to provide clear and convincing evidence that it “openly, exclusively, notoriously, adversely, and continuously used and possessed [the two parcels] for over 21 years.”

Justice Hawkins wrote that NC Enterprises’ lawn maintenance activities were not open and notorious, meaning generally known or conspicuous, to put Norfolk Railway on notice that the neighboring company was claiming the land to be its own. Because 21 years had not elapsed between the time NC Enterprises fenced and installed drainage pipes and when Norfolk Railway objected to NC Enterprises’ claim of ownership, the land remains with the railway, the Court concluded.

The Court ordered the Summit County Common Pleas Court to grant summary judgment in Norfolk Railway’s favor.

Chief Justice Sharon L. Kennedy and Justices R. Patrick DeWine, Joseph T. Deters, and Megan E. Shanahan joined Justice Hawkins’ opinion. Justice Patrick F. Fischer dissented without a written opinion.

In a dissenting opinion, Justice Jennifer Brunner wrote the Supreme Court was acting as a “super fact-finder” in granting summary judgment in favor of Norfolk Railway, especially since the Ninth District and the trial court sided with NC Enterprises.

While the more obvious fencing and drainage work began later, she wrote that it is hard to believe Norfolk Railway was unaware that someone else was maintaining the lawn, trees, and vegetation on the property. Because reasonable minds could dispute who owns the property, the matter should be sent back to the trial court for more fact-finding, rather than the Supreme Court establishing a rule that lawn maintenance itself cannot establish adverse possession, she wrote.

New Neighbor Starts Landscaping Railway Land
Norfolk Railway owns three parcels of land in Tallmadge near Munroe Falls Road. Two long parcels of land totaling just under 1.4 acres abut the railway’s larger 34.2 acres parcel in Tallmadge. The long, narrow parcels run alongside property NC Enterprises purchased in 1997. About four months after acquiring the property, NC Enterprises began regular landscaping maintenance of its own property and the two neighboring parcels, believing they were part of its newly acquired property.

The company hired independent contractors to perform tasks such as mowing, weeding, fertilizing, trimming bushes and trees, mulching, planting, and doing spring and winter cleanups. NC Enterprises continued to hire contractors to do the work through 2021.

NC Enterprises did nothing on the railway parcels other than landscaping until September 2000, when it erected a fence between a section of the parcels and the road to deter theft. Three years later, it added a barbed wire fence. In 2011, the company installed drainage pipes on its property and the two parcels to alleviate flooding.

Ownership Dispute Ensued
NC Enterprises believed it owned the parcels until Norfolk Railway posted a for-sale sign for them in 2021. The railway had listed the parcels for sale at various times between 2003 and 2020, though it is unclear whether for-sale signs were placed on the property.

In July 2020, NC Enterprises notified Norfolk Railway that it claimed ownership of the two parcels by adverse possession. The railway responded that it was refuting the company’s ownership.

In 2021, NC Enterprises filed a declaratory judgment action in the Summit County Common Pleas Court, seeking a ruling that the company met the requirements to claim ownership by adverse possession. In 2022, NC Enterprises also asked the trial court for summary judgment, arguing that through landscape maintenance, the erection of a chain-link fence, and the installation of drainage pipes, it presented enough evidence to claim ownership of the parcels. Norfolk Railway objected and filed its own request for summary judgment, arguing NC Enterprises failed to establish that it was in possession of the land for the required 21-year period.

The trial court agreed with NC Enterprises, and the railway appealed to the Ninth District, which affirmed the trial court’s decision. Norfolk Railway appealed to the Supreme Court.

Supreme Court Analyzed Adverse Possession Requirements
Justice Hawkins explained that Ohio recognizes the right to acquire land through adverse possession, but the Court had emphasized that adverse possession is disfavored and that “the elements of adverse possession are stringent.” NC Enterprises must satisfy all of the required elements for the entire 21-year period to claim ownership. Because Norfolk Railway became aware of NC Enterprises' intentions in July 2020, NC Enterprises had to prove that its possession started on or before July 1999.

NC Enterprises had to provide clear and convincing evidence that it openly and notoriously possessed the land, the Court noted. What constitutes “open and notorious” possession is based on the circumstances, the opinion stated. Citing its 1856 Williams v. Spriggs decision, the Court stated that open and notorious acts must be “acts which accompany possession of property, in order to give constructive notice, which can be seen and understood – something that will induce inquiry.”

The Court noted what is not open and notorious, including the Court’s holding in the Williams case. The Court found hanging laundry on another’s property was not enough notice to constitute open and notorious possession. In its 1998 Grace v. Koch decision, the Court quoted a 1980 Vermont Supreme Court decision, which described open and notorious possession to be like “unfurling a ‘flag on the land and keep[ing] it flying so the owner may see, if he will, that an enemy has invaded his dominions and planted his standard of conquest.’”

Supreme Court Examined Steps Taken by Company
The Court explained that fences have played a prominent role in many early Ohio cases, though whether fencing constitutes open and notorious possession has varied. In the present case, the court described NC Enterprises’ installation of the fence and years later, the drainage pipes, as open and notorious acts. However, those efforts started after July 1999, so they had not taken place over 21 years. Only the lawn maintenance activities occurred prior to 2000, the opinion noted.

“Mowing the grass and trimming the bushes are not sufficient to notify the world that NC Enterprises had exercised dominion over the parcels. These types of lawn-maintenance activities are more in the nature of hanging laundry … than of unfurling a flag,” the opinion stated.

The Court found that lawn maintenance cannot be the only adverse act to start the 21-year clock to establish adverse possession.

Jury, Not Supreme Court, Should Consider Case, Dissent Maintained
The majority’s finding that NC Enterprises is not entitled to summary judgment and allowed to take ownership of the property does not mean the Court should rule that Norfolk Railway still owns it, Justice Brunner wrote. The Court should leave the fact-finding to juries and trial courts, the dissent stated.

By siding with Norfolk, the Court has instead “announced a rule stating that lawn-maintenance activities, as a matter of law, can never constitute an adverse use for purposes of establishing an adverse-possession claim,” she wrote. Justice Brunner noted that adverse possession matters depend on the individual situations of the dispute, and it is a question for a jury whether lawn maintenance activities could be enough.

She wrote that a commercial property owner like Norfolk Railway should know when someone else was maintaining its property, and if nothing else, “an owner’s bookkeeper or manager should notice there are no expenditures for the lawn maintenance.” She would remand the case to the trial court for further proceedings.

2024-0776. NC Ents. LLC v. Norfolk & W. Ry. Co., Slip Opinion No. 2026-Ohio-1429.

View oral argument video of this case.

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