Ordinary Lawn Maintenance Is Not “Open and Notorious” Enough to Start Ohio’s 21-Year Adverse-Possession Clock

1. Introduction

In NC Ents., L.L.C. v. Norfolk & W. Ry. Co., Slip Opinion No. 2026-Ohio-1429 (Apr. 24, 2026), the Supreme Court of Ohio reversed summary judgment that had awarded two narrow parcels of railroad-owned land to a neighboring commercial owner by adverse possession. Appellee NC Enterprises, L.L.C. (“NC Enterprises”) claimed it had openly, notoriously, continuously, exclusively, and adversely used the parcels for 21 years. Appellant Norfolk Southern Railway Company (“Norfolk Railway”)—the record title owner—contested that claim.

The dispositive issue was narrow but consequential: whether NC Enterprises’ early-period acts—consisting only of landscaping and lawn maintenance—were “open and notorious” enough to put the title owner on notice and thus begin running Ohio’s 21-year adverse-possession period under R.C. 2305.04.

2. Summary of the Opinion

The court held that, even assuming NC Enterprises could satisfy other adverse-possession elements, it failed as a matter of law to show 21 years of open-and-notorious possession. Before July 22, 1999 (the latest possible start date), NC Enterprises’ only conduct on the disputed parcels was ordinary lawn and landscape maintenance. The court concluded that such maintenance is not “obvious and apparent enough” to hold the title owner accountable for knowing an adverse possessor is claiming the land.

Because NC Enterprises’ first clearly open-and-notorious act (erecting a fence) occurred in September 2000—short of the required 21-year period before Norfolk Railway refuted the claim in July 2020—the court reversed the Ninth District’s affirmance of summary judgment for NC Enterprises. It remanded with instructions to grant Norfolk Railway summary judgment on adverse possession and to address NC Enterprises’ unresolved unjust-enrichment claim.

3. Analysis

3.1. Precedents Cited

A. Summary-judgment framework

  • Smith v. McBride, 2011-Ohio-4674, ¶ 12 (quoting Civ.R. 56(C)): reaffirmed the governing standard— no genuine issue of material fact and entitlement to judgment as a matter of law.
  • State ex rel. Parker v. Russo, 2019-Ohio-4420, ¶ 5: confirmed de novo review of summary judgment.

These authorities mattered because the Supreme Court did not merely remand for factfinding—it concluded reasonable minds could reach only one conclusion on the “open and notorious” element given the undisputed timing and nature of the pre-September 2000 acts.

B. Ohio’s core adverse-possession formulation and its strictness

  • Grace v. Koch, 1998-Ohio-607, syllabus: the canonical statement—clear and convincing evidence of exclusive possession and open, notorious, continuous, and adverse use for 21 years.
  • Pennsylvania RR. Co. v. Donovan, 111 Ohio St. 341, 349-350 (1924) (cited in Grace): failure on any element defeats the claim.
  • Dietrick v. Noel, 42 Ohio St.18, 21 (1884): emphasized the oppositional nature of adverse possession—possession “in opposition” to title.

The majority used Grace not only for the elements but also to stress that adverse possession is “disfavored” and “stringent,” setting the tone for a demanding view of what counts as notice-giving conduct.

C. When the clock must have started

The court fixed July 22, 2020 (Norfolk Railway’s written refutation) as the endpoint for calculating backward 21 years, making July 22, 1999 the latest permissible start date. This anchored the case in a timing problem: NC Enterprises’ fence (September 2000) and drainage pipes (2011) could not carry the “open and notorious” element back far enough.

D. Intent and the meaning of “adverse”

  • Evanich v. Bridge, 2008-Ohio-3820, ¶ 12: no intent to take is required, but there must be intent to occupy and treat as one’s own.
  • Yetzer v. Thoman, 17 Ohio St. 130, 133 (1866), quoting French v. Pearce, 8 Conn. 439, 443 (1831): adverse character comes from visible adverse possession with intent to possess.
  • Humphries v. Huffman, 33 Ohio St. 395, 402 (1878): adversity turns on intent to possess, not subjective motives.

Notably, the majority accepted that NC Enterprises likely intended to treat the parcels as its own; the case turned instead on whether that intent was communicated to the world through sufficiently obvious acts.

E. The “open and notorious” lineage: notice as the organizing principle

  • Henrietta Twp. v. Brownhelm Twp., 9 Ohio 76, 77 (1839): early articulation—possession must be “open and notorious” to signal intent.
  • Williams v. Sprigg, 6 Ohio St. 585, 595 (1856): constructive notice requires visible acts that “induce inquiry.”
  • State ex rel. A.A.A. Invests. v. Columbus, 17 Ohio St.3d 151, 153 (1985): actual knowledge by the owner is unnecessary.
  • Clark v. Potter, 32 Ohio St. 49, 63-64 (1876), quoting Lessee of Ewing v. Burnet, 36 U.S. 41, 52-53 (1837): no categorical requirement of fence/building, but acts must indicate a “notorious claim”; limitation period rationale is the owner’s forfeited right to sue after an “invasion” of rights.
  • Humphries v. Huffman, 33 Ohio St. at 403-404: referenced “substantial inclosure” and that occupancy must give notice of the claim’s extent; later quoted in Evanich v. Bridge, 2008-Ohio-3820, ¶ 8.

These cases supplied the opinion’s central theme: the open-and-notorious element exists to make the owner fairly “accountable” for knowing a hostile claim is being asserted—even if the owner does not in fact know.

F. Fences: relevant but not talismanic

  • Lane v. Kennedy, 13 Ohio St. 42, 47 (1861): a “mere fence” (there, a “worm fence”) may be insufficient to manifest intent to permanently appropriate.
  • Clark v. Potter and Lessee of Ewing v. Burnet: improvements are not always necessary, but acts must still be notorious.

The majority did not announce “a fence is required.” Instead, it treated NC Enterprises’ fence as the first act in this record that clearly converted ambiguous maintenance into a visible assertion of dominion—just too late for the 21-year period.

G. Appellate-court formulations of “open and notorious”

  • Dunn v. Ransom, 2011-Ohio-4253, ¶ 78 (4th Dist.): open and notorious requires use capable of giving the owner notice.
  • Hardert v. Neumann, 2014-Ohio-1770, ¶ 13 (4th Dist.), quoting Dunn v. Ransom, quoting Hindall v. Martinez, 69 Ohio App.3d 580, 583 (3d Dist. 1990): notoriety must be known to persons likely to communicate it to an owner exercising reasonable supervision.
  • Hindall v. Martinez, 69 Ohio App.3d at 583: use must be so patent the true owner could not be deceived.

By citing these intermediate appellate cases, the majority showed continuity—not novelty—in the notice-based test, while tightening application to routine maintenance.

H. Negative examples: what is not open and notorious

  • Gill v. Fletcher, 74 Ohio St. 295, 305 (1906): “secret trespass” is not open and notorious (noted as superseded on other grounds by statute as stated in Peppertree Farms, L.L.C. v. Thonen, 2022-Ohio-395, ¶ 17-21).
  • Elster v. Springfield, 49 Ohio St. 82, 94 (1892): subsurface occupation is not open and notorious.
  • Williams v. Sprigg, 6 Ohio St. at 594-595: hanging clothes to dry is insufficient.

The court’s key analogy was that mowing and trimming resemble “hanging laundry” (ambiguous, neighborly, non-claiming conduct) rather than a clear assertion of possession.

I. The “flag on the land” metaphor

  • Grace v. Koch, 1998-Ohio-607, ¶ 15, quoting Darling v. Ennis, 138 Vt. 311, 313 (1980): the adverse possessor must “keep [a] flag” flying, signaling invasion and claim.

The majority used this metaphor to emphasize that the owner’s accountability arises only when the claimant’s conduct is unmistakably claim-like.

J. Dissent authorities on institutional role and factfinding

  • Smathers v. Glass, 2022-Ohio-4595, ¶ 30, 46: the dissent invoked de novo review while arguing that disagreement about inferences suggests a triable fact issue.
  • Acuity, A Mut. Ins. Co. v. Progressive Specialty Ins. Co., 2023-Ohio-3780, ¶ 32 (Brunner, J., dissenting): cited to criticize “error correction” and “super fact-finder” tendencies.
  • Vanasdal v. Brinker, 27 Ohio App.3d 298, 299 (9th Dist. 1985): the dissent relied on this to argue for a “reasonable owner” lens and lack of actual-knowledge requirement.
  • Ohio Const., art. IV, § 2(B)(2)(e): cited in the dissent regarding the court’s jurisdictional role.

3.2. Legal Reasoning

  1. Element-by-element focus, but dispositive on “open and notorious.” Applying Grace v. Koch, the court treated “open and notorious” as independently fatal: even perfect proof of exclusivity, continuity, and adversity cannot cure insufficient notoriety during the full statutory period.
  2. Notice—not aesthetics or effort—is the yardstick. The opinion framed “open and notorious” as an objective notice function: the acts must be “obvious and apparent enough” to charge the owner with knowledge of an adverse claim. Routine maintenance can be seen as benign upkeep rather than a hostile claim.
  3. Timing controls the outcome. Because Norfolk Railway refuted the claim on July 22, 2020, NC Enterprises needed open-and-notorious possession from on or before July 22, 1999. The court held that pre-July 22, 1999 conduct was only lawn/landscape maintenance, and the first unambiguously claim-like act (the fence) arrived in September 2000.
  4. Maintenance alone does not start the limitations period. The court explicitly concluded “the required 21-year period for an adverse-possession claim cannot begin if the only ‘adverse’ acts are lawn maintenance.” This is both a holding on the open-and-notorious element and a practical rule about when the clock starts.
  5. Summary judgment for the title owner is appropriate where the timeline is undisputed. Given the dates and character of the acts, the court held “reasonable minds can come to but one conclusion,” satisfying Smith v. McBride and Civ.R. 56(C).

3.3. Impact

  • Higher evidentiary bar for “maintenance-based” adverse-possession claims. Claimants who rely heavily on mowing, trimming, weeding, mulching, or seasonal cleanup—especially on marginal strips, railroad remnants, and boundary-adjacent parcels— now face a clear doctrinal headwind on the “open and notorious” element.
  • Earlier, unambiguous acts matter. The decision pushes litigants to identify an early “flag-planting” act (e.g., a visible enclosure, a structure, a marked boundary, a conspicuous improvement) that objectively signals an adverse claim—not merely care-taking consistent with neighborly behavior.
  • More adverse-possession disputes may shift to unjust enrichment or other equitable theories. Because the court remanded for consideration of unjust enrichment, parties who improved or maintained another’s land without satisfying adverse-possession elements may increasingly litigate restitutionary remedies instead of title transfer.
  • Procedural effects: more defense-side summary judgments. Where the record fixes the “first notorious act” date, defendants (title owners) have a stronger argument to end cases at summary judgment by showing the notorious period falls short of 21 years.

4. Complex Concepts Simplified

Adverse possession
A way to gain title to land by possessing it like an owner—openly and against the owner’s rights—for a legally required time (in Ohio, 21 years), proved by clear and convincing evidence.
Open and notorious
Possession that is visible and obvious enough that a reasonably attentive title owner would have reason to know someone is asserting control over the land. The owner need not actually know (State ex rel. A.A.A. Invests. v. Columbus), but the claimant’s conduct must be unambiguous.
Clear and convincing evidence
A higher standard than “more likely than not.” The evidence must produce a firm belief or conviction in the truth of the claim.
Summary judgment (Civ.R. 56(C))
A pretrial ruling that resolves a claim when the material facts are not genuinely disputed and the law requires judgment for one side. Courts do not weigh credibility at this stage, but they may decide that only one conclusion is legally permissible.
Why mowing is treated as ambiguous
The majority viewed mowing/trimming as conduct that can look like ordinary upkeep (or even a neighborly act), not necessarily a hostile claim of dominion— akin to the non-claiming conduct described in Williams v. Sprigg (hanging clothes to dry).

5. Conclusion

NC Ents., L.L.C. v. Norfolk & W. Ry. Co. crystallizes a practical rule within Ohio’s longstanding notice-based doctrine: ordinary lawn and landscape maintenance—without more—does not satisfy the “open and notorious” element and therefore does not start the 21-year adverse-possession clock. The court reaffirmed that adverse possession is disfavored and demands stringent proof, and it treated unmistakable notice to the title owner as the core function of notoriety. Going forward, litigants should expect courts to scrutinize whether early conduct truly “flies the flag” of an adverse claim, and where it does not, title owners may obtain summary judgment even when years of maintenance are undisputed.