December 2017 - Parks & Recreation - 28

L AW R E V I E W

erty through a theory of acquisitive prescription or adverse possession " because
" Audubon had effectively abandoned the
park's public use " in the disputed area
containing the encroachments.
As described by the appeals court,
applicable state law would allow for
" acquisitive prescription " or adverse
possession as " a mode of acquiring
ownership of immovable property or
real rights by possession " under the following circumstances:
Property may be acquired by
ten-years possession, with just title
and good faith, or by thirty-years
possession, without the requirement
of just title or good faith. The party alleging acquisitive prescription
must prove, by a preponderance of
the evidence, the intent to possess as
owner and that his possession has
been continuous and uninterrupted,
peaceable, public, and unequivocal.
Every presumption is in favor of the
titleholder rather than the party alleging adverse possession...

the owner some notice that his
property is in jeopardy.
However, under the circumstances of
this case, the appeals court reiterated
acquisitive prescription or adverse possession would not apply because Audubon Park was a " public thing " and, as
such, this " public property was insusceptible to prescription. " In so doing,
the appeals court rejected the Band's
argument that the property occupied
by their patio and fence for more than
30 years was subject to adverse possession because the city had effectively
abandoned the public use and purpose
of Audubon Park on that 10-foot by
30-foot parcel.
Given the fact that public things,
such as Audubon Park, can only
be owned by the State or its political subdivision, it is clear that these
adjacent property owners cannot acquire any portion of Audubon Park
by the mere passage of time through
claims of adverse possession or acquisitive prescription.

State law, however, provided an exception that would
permit a " building " to remain if it " merely encroaches on a
public way without preventing its use... "

Acquisitive prescription does not
run in favor of a precarious possessor, that is, one who possesses with
the permission of the owner or on
behalf of the owner. The intent to
possess as owner must be express
rather than covert. Although the
intent may be implied from possession that is open, notorious, public,
continuous and uninterrupted, to
the exclusion of the owner, there
must be strong evidence that gives
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Parks & Recreation

The appeals court, therefore, affirmed
the judgment of the trial court, which
had concluded the Bands were " encroaching onto this public property and
were, therefore, required to remove the
encroachment at their own expense. "
Rails to Trails Farming
Similarly, in the case of Houck v. Board
of Park Commissioners of the Huron County Park District. 2007 Ohio 5586 (Ohio
10/25/2007), the issue before the Su-

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preme Court of Ohio was whether real
property owned by a park district could
be acquired by adverse possession. Richard Houck and others (Houcks) owned
property near a corridor of property that
was once owned by a railroad and accommodated railroad tracks. Sometime
prior to 1979, the railroad ceased its operations and removed the track, ties, ballast and other fixtures from its property
( " railroad property " ). Houcks alleged
that they entered the railroad property in
1979 and constructed a road, installed a
cable to limit access to the road, planted crops and otherwise used a drainage
ditch in cultivating their farm land.
In 1997, the Northwest Ohio Rails
to Trails Association, Inc. (NORTA),
purchased the railroad property. A year
later, NORTA sold the railroad property
to six park districts, as tenants in common for the purpose of constructing
a segment of a recreational trail that
will run through several northern Ohio
counties. In February 2001, the Huron
County Park Department sent a letter to
the Houcks, explaining that the railroad
property would be used for a recreational
trail when finances permitted, but until
then, the Houcks were welcome to use
the property.
In October 2003, the Houcks filed
suit asking the court to quiet title (i.e.,
establish legal ownership) to the railroad property in their favor. The Houcks
contended they had acquired title to the
railroad property by adverse possession,
i.e., they had engaged in at least 21 years
of continuous, exclusive, open and notorious possession adverse to the owners.
The Houcks alleged that the adverse
possession of approximately one-third
of the railroad property began in 1949
by a prior property owner. By " tacking " or combining that prior period of
possession onto the Houcks' possession
of the property since 1979, the Houcks
claimed the required 21-year period of
December 2017 - Parks & Recreation

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