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11th District’s decision may affect future lakefront property cases
RICHARD WEINER
Legal News Reporter
Published: January 15, 2013
The 11th District Court of Appeals has ruled on a three-way property dispute among two lakeside property owners and the Village of Brady Lake in Portage County.
The case, Violante v. Village of Brady Lake, 2012-Ohio-6220, decided December 31, 2012, concerns issues of deed interpretation, public taking of property, riparian rights, and adverse possession, among others. This article primarily concerns deed language.
The Village of Brady Lake, which currently has a population of a little under 500, originated as a summer resort in the late 1800’s. From that time until it became an independent township in 1993, it was incorporated as a part of Franklin Township.
The central feature of the village is Brady Lake, and most of the homes in the village cluster around that small body of water. The village had previously taken possession of the lake itself in 1983.
This case arose after Ellen and Mehmet Barisha placed some fill dirt in the lake in order to construct a dock.
The Violante and Barisha families own residential real estate parcels next to one another on the lake. The two pieces of real property were once one parcel.
The Violantes felt that the fill dirt was placed on their property, and sued the Barishas and the township—the Barishas for violation of the Violante’s use of their own property, and the village for not doing anything to stop them. In fact, when the village surveyed the property lines as a result of the Violante’s complaints to them, they decided that the Violantes had placed some of their own personal property on land owned by Brady Lake, and the village ordered them to remove it.
The trial court complaint had three counts: trespass of Barisha on Violante property; a quiet title claim to decide that the property claimed by the village belonged to the Violantes, and a claim that the Barishas took land belonging to the Violantes.
The trial court held against the Violantes on all counts, and the appellate court concurred with the lower court’s ruling.
A central part of the appellate court’s opinion, and one that may affect other lakefront property cases, was a discussion on deed language construction of the deeds to the two parcels.
The two parcels were created in 1965, long before either party acquired their real estate.
A 1934 deed for the parcel before it was divided set the boundaries of the land as “along the margin of Lake Brady.” That was that deed that was the basis of the division of the one parcel into two.
The original deed for the land that became the Barisha’s also set the boundary as the line along the lake front.
The original deed for the land that become the Violante’s, however, contained language that put the boundaries at a set of iron pipes that apparently hugged the shoreline, but did not specifically mention the lake. Additionally, the property’s 1966 survey map indicated the iron pipes, and also contained a sketch of the lake shoreline.
At the trial, the Violantes brought in circumstantial evidence of prior transactions and deeds in order to attempt to create an implied deed or contract that would attach the boundary of the lake to the property.
Among the evidence was the fact that the other half of the original property did have lakefront language in its deeds, and that the iron pipes could be an implied lake boundary, based upon prior deed language.
The Violantes were trying to prove that the language of the deed was ambiguous, to the point that the iron pipes in the deed could be interpreted as meaning the lake’s shoreline, and that a court could infer contract language to that effect if the terms of the deed were not clear on its face.
The appellate court (as did the trial court) was having none of that. The unanimous decision, authored by Judge Diane V. Grendell, quoted a 1916 case to the effect that the intent of the parties is manifested in the words of the instrument. In looking at only the words in the deed, even though history may be interpreted otherwise, the language only mentions the iron pipes, and not the water line.
So, even though one piece of property became two, at the time that the two deeds were executed, the property lines diverged, and remained that way.
The appellate court also found with the trial court on all other issues, and the appeal was dismissed.