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Case No. 99CV442

Judge Joseph Cirigliano

Judgment Entry

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This case was tried to the Court on August 23 and 24, 2000. One issue before the Court is the validity of a lease (“Lease”) originally entered into by the predecessors-in-interest to the parties herein, the owner/lessor, Milan Canal Company and the lessee Wheeling & Lake Erie Railroad Company (“Wheeling Railroad”). The second issue before the Court is whether plaintiff has acquired any ownership interest in the property at issue by virtue of a quitclaim deed from the Wheeling Railroad, The third issue the Court has been asked to decide is whether Plaintiff has gained any interest in the property at issue by adverse possession.

Findings of Fact

The lease was originally signed on July 12, 1881, and is recorded with the Erie County Recorder’s Office, and entered into evidence by stipulation. Pursuant to the Lease, the Milan Canal Company leased to the Wheeling Railroad certain land (the “Leased Property”), which is described in the attached Exhibit A. The term of the lease is 99 years, renewable forever, and the annual rent is Fifty Dollars ($50.00). The Lease further requires that the lessee, its successors, and assigns maintain and operate a railroad for public transportation and travel. Upon the abandonment of the Leased Property for railway purposes, or upon the failure for six months to pay the stated annual rent of fifty dollars ($50.00) to the lessor after the same became due and payable, the Lease becomes void and the real estate reverts to the lessor. The Lease was renewed for its second 99-year term in 1980.

The Leased Property was ultimately conveyed to Key Trust Company of Ohio, NA, Trustee of the Testamentary Trust of Verna Lockwood Williams (“Key Trust”). It is undisputed that the Railroad failed to pay annual rental for the Leased Property after 1989 until a check for $300.00 was transmitted to Key Trust, Trustee for Verna Lockwood Trust, in September 1995. The payment was rejected.

By 1988, the Norfolk and Southern Railway Company, predecessor in interest to the Wheeling Railroad, filed an abandonment of service application before the Interstate Commerce Commission with respect to the Leased Property, which was granted. Thereafter, the Railroad removed railroad tracks and ballast from the Leased Premises, making the property unfit for the purpose of operating a railway. In October 1995, the Wheeling Railroad transferred its interest in the Leased Property to Plaintiff by quitclaim deed, which was recorded on June 1, 1998.

In the year 2000, Defendant Key Trust, transferred all of its right, title, and interest as successor-in-interest to the original lessor, to the remaining Defendants.

Having assessed the credibility of the witnesses who testified at trial and the reliability of the documents submitted into evidence, the Court finds that the Milan Canal Company, the predecessor in title to Defendant Key Trust Company of Ohio, NA, Trustee (“Key Trust”), acquired its real property interests to construct the canal (the “Milan Canal Property”) solely by way of two instruments and no others:

(a) A conveyance from Kneel and Townsend dated May 10, 1838, recorded May 29, 1852, in Volume 10 of Deeds, Page 23 of Erie County Records (the “Townsend Conveyance”); and

(b) A conveyance from Ebeneser Merry dated April 21, 1838, recorded October 29, 1852, in Volume 10 of Deeds, Page 25 of Erie County Records (the “Merry Conveyance”).

The Milan Canal Property consisted of a roughly three mile long corridor of property the northern terminus being known as Lock. 1, which was located where the Milan Canal joined the Huron River on property now owned by Wikel Farms, Ltd., just north of Mason Road, inSection 2, Milan Township, Erie County, Ohio. Neither Kneeland Townsend nor Ebeneser Merry conveyed to the Milan Canal Company any interest in real property north of Lock. 1.

The only lands owned by the Milan Canal Company at the time of the Lease was executed lay within the boundaries of the Kneeland Townsend property and the Ebeneser Merry Property, neither of which lay north of Lock. 1.

Conclusion of Law

It is axiomatic that a seller cannot transfer any greater interest in land than that which the seller possesses. In the instant case, the Wheeling Railroad had a leasehold interest in the property at issue, which is evidenced by Exhibit A. The Court hereby finds the lease, which was enterd into by Wheeling Railroad and Key Trust, a valid lease. The court finds that the Lease was materially breached by the Wheeling Railroad for the nonpayment of rent for a period of more than six months, and because the property was abandoned for the purpose of operating a railroad. The lease, thereby, became void by its clear terms. The Court finds that there was no evidence presented by either party to show that the parties to the Lwease did not intend an ordinary and common meaning to be given to the words contained therein, or that there was any mistake by either party in entering into the Lease. See Hinman v. Barnes 146 Ohio St. 497 (1946); and Greenfield v. Aetna Cas. Co., 75 Ohio App. 122 (1944).

Further, the Court finds that the Lease, which was for a term of 99 years and renewable forever, did not confer a fee simple estate under Ohio law to the Wheeling Railroad because it was aware that its interest could be forfeited to the lessor upon its breach of the lease covenants. Therefore, the fee simple remains in the lessor, its heirs, devisees, or assigns. See Rawson v. Brown 104 Ohio State 548 (1922); and Quill v. R.A. Investment Corporation 124 Ohio App.3d 653 (1997).

Finally, the Court finds that the Plaintiff has not met its burden to establish any interest in the property at issue by adverse possession. To prevail on a claim for adverse possession a claimant must establish by a preponderance of the evidence that his possession of the land was open, notorious, exclusive, adverse, hostile, and continuous for more than twenty-one years. See Coleman v. Penndel Co. 123 Ohio App.3d 125 (1997); Demmitt v. McMillan (1984), 16 Ohio App.3d 138. The use is not adverse if it is either by permission, or accommodation for the owner. Hindall v. Martinez (1990), 69 Ohio App.3d 580.

In the instant case, it is undisputed that the lessee and its successors maintained railroad operations and train traffic and paid rent while maintaining the Leased Property from the inception of the Lease until sometime in the 1980’s, and then filed for abandonment of service in 1988. The Railroad and its predecessors-in-interest did not hold the Leased Property adverse to the lessor’s interest until, at the latest, 1989, when it stopped paying rent.

The Court finds that it was not until sometime after the Plaintiff acquired its quitclaim deed from the Wheeling Railroad in October 1999, that Plaintiff entered the Leased Premises adversely to the lessor, its successors, and assigns-in-interest. The Court finds that the Railroad was in active operations, paying rent, and otherwise complying with the Lease terms as late as 1986, or later, which was well within the last twenty-one years.

The description of the Leased Property in the Lease unambiguously describes it as consisting of all lands then owned by the Milan Canal Company within a 150 foot wide corridor from approximately the intersection of Maine and Union Streets in the Village of Milan northerly to the north of the mouth of the Huron River. The only lands owned by the Milan Canal Company at the time the Lease was executed lay within the boundaries of the Kneeland Townsend property and the Ebeneser Merry property, neither of which lay north of Lock. 1. Therefore, the Leased Property extends from the southern terminus of the old Milan Canal at or near the southerly end of the Milan Canal basin in the Village of Milan to its northerly terminus at the Huron River at the former location of Lock. 1 on premises now owned by Wikel Farms, Ltd. immediately north of Mason Road in Section 2, Milan Township, Erie County.


Judgment is in favor of Defendants and against Plaintiff.

Judgment in favor of Defendants and against Plaintiff, except as to the issue of the extent of the property covered by the Lease.

IT IS SO ORDERED

Judge Joseph Cirigliano

NOTE: This handwritten note was attached by the judge to the November 3, 2003 judgment entry (above in black ink).

NOTE: The following Exhibit A was also attached to the revised document.

EXHIBIT A

All those lands within a one hundred fifty (150) foot wide corridor conveyed to

the Milan Canal Company by Kneeland Townsend and Ebeneser Merry by

instruments dated May 10, 1838 and April 21, 1838, respectively, and recorded,

respectively on May 29, 1852, in Volume 10 of Deeds, Page 23 of Erie County

Records and October 29, 1852, in Volume 10 of Deeds, Page 25 of Erie County

Records, which lands have a northerly boundary at Lock 1 of the old Milan Canal,

which lock was located immediately north of Mason Road on lands now owned by

Wikel Farms. Ltd. at or near the intersection of the Milan Canal with the Huron

River, and extending southerly to the Canal’s turning basin in the City of Milan,

Ohio.

NOTE: The purpose of this lawsuit was for Judge Cirigliano to rule on the validity of the lease, not change the lease's boundaries. The actual court-recorded lease description is:

Milan Canal Co. Lease to the RR in 1881- Legal Description

The following described real estate owned by said Milan Canal Company situated in the township of Milan and Huron in said County of Erie and State of Ohio:

Being all the land with all the rights and appurtenances thereof owned by said Milan Canal Company within the bounds of a strip of land One Hundred and Fifty feet (150) in width commencing at the Southerly end of the Canal Basin of said Milan Canal Company near the intersection of Maine and Union Streets in the Village of Milan in said Erie County Ohio and running thence in a Northerly direction to the mouth of the Huron River in the Village of Huron in said Erie County and which strip of land is bounded on the West by a line distant Fifty (50) feet from and running North paralel with the Central line of the Rail Road of the Wheeling and Lake Erie Railroad Company as now surveyed located and being constructed between said Villages of Milan and Huron and which said strip of land is bounded on the East by a line distant One Hundred (100) feet from and running North paralel with the said Central line of said Rail Road the East and West lines of said strip of land being One Hundred and Fifty feet apart and running North paralel with each other and with the Central line of said Rail Road from the said place of beginning to the said mouth of Huron River also all of the so called Dry Dock and all of the said Canal Basin and all of the upper and lower Docks of said Canal with all the grounds and priveleges connected therewith in addition to what is included in the said strip of land above described the said Dry Dock containing about 1 1⁄2 acres and the said Canal Basin containing 5 45/100 acres of land be the same more or less…

This legal description was signed before a Notary on Aug. 9, 1881 and recorded in Erie County Records Aug. 10, 1881. Volume 017, Pgs. 307-310. Erie County, Ohio.