Sabina bike trail lawsuit remains active following judge’s rulings


By Gary Huffenberger - ghuffenberger@wnewsj.com



Larry Fair, right foreground, points to a map in connection with a property dispute at a June 2016 session of Sabina Village Council. From left are Councilman Jim Mongold, Sabina Village Administrator Rob Dean and Sabina Police Chief Keynon Young.


News Journal file photo

WILMINGTON — A Sabina couple’s lawsuit regarding a property dispute over a section of a new bike trail will go on after an attempt to get all the couple’s claims dismissed was denied in part.

The dispute concerns ownership of about 1.5 acres of a 25-acre farm deeded to Larry and Bertha Fair after they bought it at a 1973 public auction. The 1.5 acres in dispute is a strip of land, once a railroad corridor, that is 1,352 feet long by about 48 feet wide.

Defendants in the May 2016 civil action filed by the Fairs are the Clinton County Park District and the Board of Clinton County Commissioners. The Park District asserts it bought the property in question in 2011 from the Dayton Power and Light Company.

Clinton County Common Pleas Judge John W. “Tim” Rudduck issued a 12-page decision on the defendants’ request for a summary judgment in their favor.

Among the judge’s rulings in the decision: The Board of Clinton County Commissioners will not be dismissed as a party to the suit; the Fairs’ trespass claim is dismissed (for which they had sought a monetary judgment); and the Fairs’ injunctive relief claim remains alive.

It is undisputed that the legal description of the farm found in the Fairs’ 1973 deed includes the 1.5 acres in question, wrote Rudduck.

That also holds true in prior deeds recorded in 1958 and 1939. But the descriptions in the 1973, 1958 and 1939 deeds do not match the descriptions in the farm’s 1925 and 1930 deeds, stated the judge.

In the 1925 and 1930 deeds, the 1.5 acres were carved out and there is language stating the 1.5 acres belonged to the C & M.V. Railway Company, the judge wrote.

Rudduck wrote he agrees with the Park District that the 1925 and 1930 deeds language — which state the 1.5 acres belonged to the railroad — permanently removed the 1.5 acres from future farm deed transfers.

Accordingly, wrote Rudduck, that made any future transfer of the 1.5 acres void, “somewhat like a sale of the Brooklyn Bridge by a non-owner. No one can transfer what they do not own.”

The judge also wrote, “For approximately 34 years before the Fairs purchased the farm, deeds to the farm mistakenly included the 1.5 acres as evidenced by the legal descriptions in the prior 1939 and 1958 deeds. Those prior owners of the farm and the Fairs together held color of title [a term of art] to the farm including the 1.5 acres for approximately 77 years before the Fairs filed this action.”

The Fairs paid property taxes on the farm, which included the 1.5 acres of disputed property, stated Rudduck.

The judge dismissed the Fairs’ trespass claim because both the Park District and the Board of County Commissioners are governmental subdivisions that enjoy government immunity from claims such as trespass, he wrote.

But governmental immunity does not necessarily confer immunity from a claim for injunctive relief, added Rudduck.

“A governmental entity may not take property without just compensation. If the trier of fact concludes plaintiffs [Fairs] own the disputed 1.5 acres without restriction, defendants (both governmental subdivisions) may be ordered to pursue more constitutional methods of acquiring such land or give it back,” wrote the common pleas judge.

The next hearing will be Jan. 31 at the county courthouse before Magistrate Mary H. McElwee in the Clinton County Court of Common Pleas Civil Division.

Reach Gary Huffenberger at 937-556-5768.

Larry Fair, right foreground, points to a map in connection with a property dispute at a June 2016 session of Sabina Village Council. From left are Councilman Jim Mongold, Sabina Village Administrator Rob Dean and Sabina Police Chief Keynon Young.
http://www.wnewsj.com/wp-content/uploads/sites/22/2018/01/web1_l_fair_p_f.jpgLarry Fair, right foreground, points to a map in connection with a property dispute at a June 2016 session of Sabina Village Council. From left are Councilman Jim Mongold, Sabina Village Administrator Rob Dean and Sabina Police Chief Keynon Young. News Journal file photo

By Gary Huffenberger

ghuffenberger@wnewsj.com

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