OSU Extension Agricultural Law Newsletter

OSU Extension Agricultural Law Newsletter
February 2001

How to reach me...

Apparently, a recent announcement provided the wrong telephone number for me. The correct number is (614) 247-7898. However, the best way to reach me is by e-mail at aglaw@osu.edu.

Agricultural Law Fact Sheets Now Available

I hope you have all received a copy of the first three fact sheets in the Agricultural Law Series. These are:
Eminent Domain in Ohio
Ohio Line Fence Law
Liability for Visitors to Farm Property

I also recently co-authored a fact sheet with Robert Fleming on farm leases, which is now in print and titled:
Legal and Management Aspects of Ohio Farmland Leases

These fact sheets are available on Ohioline at http://ohioline.osu.edu/lines/facts.html.

Business Organizations
What is a statutory agent and why must a corporation have one?

Ohio law requires a corporation to appoint a "statutory agent" when it files its Articles of Incorporation with the State. The statutory agent is the party upon whom any legal process, service or demand to the corporation can be served. The appointment of a statutory agent ensures that the corporation has a "contact person" for legal or judicial matters. The statutory agent may be an individual who is a resident of the state, or a domestic or foreign corporation licensed to do business in the state.

See O.R.C. 1701.07 for the requirement of a statutory agent.

Contracts
When is a verbal contract enforceable?

Certain types of verbal contracts are not enforceable. An Ohio law referred to as the "Statute of Frauds" requires that five types of contracts must be in writing: 1) a contract for the sale of land or an interest in land, 2) a contract that cannot be completely performed within one year, 3) a promise to answer for the debt of another, 4) a promise by an executor of an estate to personally pay for the debts of the estate, and 5) a promise made in exchange for marriage. A contract that falls under one of the Statute of Frauds categories cannot be enforced if it is not a written contract.

However, there are two exceptions to the Statute of Frauds, both of which are based upon fairness. Where one party partially performs on a verbal contract, the contract may be enforceable against the other party (termed "partial performance"). And where one party relies upon a verbal contract to his or her detriment, and such reliance was foreseeable by the other party, a court will enforce the verbal contract (termed "promissory estoppel" or "detrimental reliance"). In these situations, the party who has suffered a loss as a result of the verbal agreement may be able to enforce the agreement in court despite the lack of a written instrument.

Equine Liability
Are there specific liability concerns for activities involving horses?

Activities involving horses and other equine create unique liability questions due to the dangerous nature of equine activities. Is a provider liable for injuries to a person taking horseback riding lessons or a trail ride? What liability exposure does a landowner have when leasing out barn stalls for boarding horses? As a result of the often unavoidable dangers inherent with equine activities, Ohio enacted an Equine Activity Statute. Under this law, a provider, sponsor or organizer of a facility for "equine activities", or an operator, promoter or instructor at an equine facility is immune from liability for injuries that result from the" inherent risk" of the activity.

Two definitions are important to understanding the law's application. The injury must occur during an "equine activity", which the statute broadly defines to include events such as equine shows, fairs, competitions, performances or parades (but not horse races); training and instructing activities; equine rides, trips, hunts, roundups and cattle drives; providing veterinary or maintenance care; and breeding and boarding of equine. The injury must result from the "inherent risks" of the activity, which the law defines as the unpredictability of equine, an animal's propensities to react to sounds or other animals, or collisions with objects or other animals.

Note that there are two exemptions in the statute. First, the law does not apply if a sponsor or provider fails to try to determine a participant's level of ability. The sponsor fulfills this duty by asking the participant to represent his or her ability to safely engage in the activity or manage the equine. If it is apparent to the provider that the participant may not be able to complete the activity without injury, the sponsor has a duty to prevent the participant from participating in the activity. Second, the law does not exempt injuries caused intentionally or willfully, or injuries resulting from a landowner's provision of faulty equipment or failure to properly maintain the premises.

See O.R.C. 2305.321 for the full text of the Equine Activity Statute.

Fence Law
Are there legal limitations on the type of fence allowed in rural areas?

Yes. Certain types of fences are not permitted in Ohio under state law. A line fence may not be entirely composed of barbed or electric wire unless agreed to in writing by the adjoining landowner. Placing one or two strands of barbed wire at the top of another type of fence does not require a neighbor's approval if the wire is a least 48 inches from the ground. Fences composed of live vegetation are not permissible, with two exceptions: osage or blackthorn hedge may be used to create a line fence. Note that local laws may also address permitted types of fences, and may be more restrictive than the state law.

See O.R.C. 971.03, and OSU Fact Sheet ALS-1001-200, Ohio Line Fence Law.

Judicial System
What legal rights does a party have if he or she disagrees with the outcome of his or her court case?

In most cases, a party has the right to appeal a court decision to a higher court. In Ohio, a party appeals a decision of a Common Pleas, Municipal or County Court to the appropriate district Court of Appeals. There are 12 appellate courts in Ohio, each composed of a three judge panel. The panel reviews the lower court's decision and either confirms or reverses the decision. The appellate court will not "retry" the case by reviewing the facts, but will review any legal or procedural errors raised by the appealing party. If the appealing party disagrees with the Ohio Court of Appeals' decision, the party may ask the Ohio Supreme Court to review the case. The Ohio Supreme Court must review certain cases, such as one requiring an interpretation of the Ohio Constitution, but in most cases the Court has the discretion to decide whether it will review a case. Generally, the Court will review the decision if it presents an issue of "public or great general interest". The Ohio Supreme Court is termed the "court of last resort" in Ohio, since it is the state's highest court. The only avenue of recourse after the Ohio Supreme Court would be review by a federal court such as the United States Supreme Court. A federal review would occur only if the case concerns an issue of federal importance, such as a violation of a constitutional right or interpretation of a federal law.

In addition to the right of appeal, a party may have other grounds for seeking relief from a court decision. Where injustices occur such as tampering with evidence, bribing or coercing jurors or witnesses, or hiding evidence, the injured party may be able to obtain a new trial or have the decision vacated.

Property Law
What is adverse possession?

Historically referred to as "squatter's rights", adverse possession is the acquisition of real property by hostile possession of the property for a certain period of time. In Ohio, a party can make a legal claim to property if the party continuously possesses the property for a period of 21 years and does so openly, without the landowner's permission, and adverse to the landowner's interests. In effect, the theory of adverse possession cuts off a landowner's right to assert his or her rights to his or her land if the landowner does not assert the rights within 21 years of the time that another party takes possession of the land.

While a party may claim title to land by adverse possession, the claim is not legally recognized unless declared valid by a court of law. However, Ohio courts disfavor the doctrine of adverse possession because it forces a landowner to forfeit ownership of the land. For this reason, the burden of proof upon a party claiming rights by adverse possession is rigorous. The court will agree with the claim only if the party clearly proves that each of the following elements existed for a period of 21 years: 1) exclusive possession of the land, 2) open use of the land, 3) notorious use (i.e., notable to others), 4) continuous possession of the land, and 5) adverse possession of the land (i.e., adverse to the landowner). As stated by the Vermont Supreme Court, "[t]he tenant must unfurl his flag on the land, and keep it flying so that the owner may see, if he will, that an enemy has invaded his dominions and planted his standard of conquest."

If a claimant does establish the required elements of adverse possession, the legal title to the property transfers when the court makes its entry declaring that adverse possession exists. A written deed transferring the property is not necessary.

See Grace v. Koch (1998), 81 Ohio St. 3d 577, a recent decision by the Ohio Supreme Court describing the requirements for adverse possession in Ohio.

Property Law
Trespassing four-wheelers damaged my crop. Do I have a legal remedy?

Yes. According to the Ohio Revised Code, "[n]o person, without privilege to do so, shall recklessly cut down, destroy, girdle, or otherwise injure a vine, bush, shrub, sapling, tree, or crop standing or growing on the land of another or upon public land." Using this provision, a crop owner can seek compensation for damages caused to his or her crop. The procedure requires that the crop owner take the matter to court and prove that the defending party damaged the crop without permission. The crop owner may be able to represent him/herself in small claims court, or may need the assistance of an attorney. If successful, the statute entitles the crop owner to "treble damages", which amounts to triple the amount of actual damages.

See O.R.C. 901.51.

Water Law
Can a neighbor change land elevations and drain surface water onto my property?

With respect to the disposition of surface water, Ohio abides by the doctrine of "reasonable use". The doctrine provides that "...Each possessor [of land] is legally privileged to make a reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others. He incurs liability only when his harmful interference with the flow of surface water is unreasonable..." The doctrine requires an understanding of "reasonableness", which is dependent upon individual circumstances but generally focuses on whether the gravity of the harm outweighs the utility of the land use that caused the harm. Factors such as the economic and social values of the land use are weighed against the amount of harm caused and the practicality of avoiding the harm. For example, where an upper landowner clears and grades land for a yard and creates a continuous flooding situation on a lower landowner, a court would examine the economic and social value of the new yard, consider whether there were practical options for preventing the flooding, and weigh those factors against the harm caused by the continual flooding of the lower landowner.

See McGlashlan v. Spade Rockledge Corp. (1980), 62 Ohio St.2d 55.

Legal Resources on the Internet

The Ohio Revised Code has moved! -You will now find the Code at http://onlinedocs.andersonpublishing.com/revisedcode/.

The Law and You - www.ohiobar.org/public/law&you/index.html - The Ohio State Bar Association has recently constructed a public site described as "an online handbook of general and everyday law affecting Ohio citizens". It's a very good resource that provides overviews of a wide range of legal topics, such as Contracts, Real Property Law and Probate Law.

Lexis-Nexis Universe - If you have the appropriate access to OhioLINK, take a look at Lexis, which you will find under the Business/Law Research Databases. I have found this to be the easiest way to find law from another state, or federal law. Lexis is very comprehensive, and up-to-date.

Prepared by Peggy Kirk Hall, Legal Educator