December 2017 - Parks & Recreation - 31

found adverse possession to be incompatible with legislation that recognized
a park district's " conservation of natural
resources " serves the " health and general
welfare of the community. "
To permit adverse possession of
park-district property would interfere with the public's enjoyment and
use of parklands as well as with a
park district's obligation to conserve
and protect park property.
Duty to Monitor Park Property?
The state Supreme Court also considered whether governmental entities, like
private property owners, should be " vigilant in monitoring its property for trespassers " over time to avoid a potential
claim of adverse possession. In the opinion of the state Supreme Court, it would
be contrary to public policy and impose
an unfair burden on governmental entities to require park property to continually monitor its lands for trespass and
encroachments by private parties:
The setting aside of land for future public use in order to provide
for orderly development is, in and
of itself, a valuable use of land resources. That the public might later
be deprived of the use of such land
by operation of the statute of limitation [i.e., 21 years for adverse
possession] imposes upon municipalities the burden of continual
inspection of all public lands. Such
a burden would be prohibitive and
contrary to the public interest.
Further, the state Supreme Court noted several public park agencies in Ohio
had filed " amicus curiae " (friend of the
court) briefs, indicating " park-district
property boundaries are difficult to monitor " for potential adverse possession due
to the following:
(1) the large amount of property
owned by park districts, (2) the remote nature of some of the property,

(3) the lack of resources to adequately monitor property boundaries, (4)
the lack of boundary markers, and
(5) environmental covenants with
the Ohio Environmental Protection
Agency that prevent fencing of some
park property.

Adverse Possession represents the
forced infringement of a landowner's rights, a decrease in value of the
servient estate [i.e., the land being
encroached upon], the encouraged
exploitation and development of
land, the generation of animosi-

...the difficulty of monitoring park property boundaries
was underscored by the substantial amounts of park
district properties spread across great distances.

Further, as noted by the state Supreme
Court, the difficulty of monitoring park
property boundaries was underscored by
the substantial amounts of park district
properties spread across great distances.
For example, as noted by the Supreme
Court, an inventory of the properties
within parks administered by Board
of Park Commissioners of the Lorain
County Metro Parks listed 22 different
park-district-owned properties that contain more than 5,170 acres of woods,
wetlands, ponds and fields, as well as
a section of a 65-mile recreational trail
within 500 square miles of Lorain County. Moreover, many of these acres in
park district properties were left in their
natural state.
Accordingly, in the opinion of the state
Supreme Court, " government entities
cannot be expected to be as vigilant as private property owners in monitoring their
property, " particularly park districts. Further, the court found: " The public should
not suffer for a government's negligence
or inattention to its property boundaries
because undeveloped land is a precious
commodity in today's crowded world. "
In so doing, the state Supreme Court recognized that " adverse possession is disfavored " by courts:

ty between neighbors, a source of
damages to land or loss of landownership, the creation of forced,
involuntary legal battles, and uncertainty and perhaps the loss of property rights to landowner.
In particular, the state Supreme Court
found " such disfavor especially acute "
for park district land because " adverse
possession of park property deprives the
public of the enjoyment of park property
and imposes a burdensome obligation on
park districts to monitor their property. "
Having found " adverse possession of
park-district property is against public
policy and the legal principles underlying adverse possession, " the state Supreme Court held park district property
is " not subject to adverse possession. "
As a result, the state Supreme Court concluded the park districts had " valid legal
title to the railroad property. " The state
Supreme Court, therefore, affirmed the
judgment of the lower courts in favor of
the defendant park districts.
James C. Kozlowski, J.D., Ph.D., is an Attorney
and Associate Professor in the School of
Recreation, Health and Tourism at George Mason
University (jkozlows@gmu.edu). Webpage with
link to law review articles archive (1982 to
present): http://mason.gmu.edu/~jkozlows.

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December 2017 - Parks & Recreation

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