# Wurzelbacher v. Colerain Township Board of Trustees

> Ohio Court of Appeals · June 28, 1995 · 105 Ohio App. 3d 97

URL: https://www.frixlaw.com/law-library/cases/3731466

## Case

- **Full name:** WURZELBACHER Et Al., Appellants, v. COLERAIN TOWNSHIP BOARD OF TRUSTEES Et Al., Appellees
- **Court:** Ohio Court of Appeals
- **Decided:** June 28, 1995
- **Citations:** 105 Ohio App. 3d 97; 663 N.E.2d 713
- **Precedential status:** Published
- **Opinion:** Dissent by Doan
- **Judges:** Gorman, Sundermann, Doan
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3731466

## Opinion text

Doan, Judge,
dissenting.
I would hold that William and Linda Zoz did not meet their burden of proof in showing that the cost of constructing the fence would be greater than the increase in value to their property as a result of the addition of the fence, as placed upon them by the Supreme Court in accordance with
Glass v. Dryden
(1969), 18 Ohio St.2d 149 , 47 O.O.2d 313 , 248 N.E.2d 54 . The only evidence
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presented to the board of trustees was the lay testimony of Joe Wurzelbacher and William Zoz. William Zoz specifically testified that he did not have an opinion on the effect a partition fence would have on the value of his property and further stated that he was not qualified to give an opinion on that subject. Although the evidence presented by Joe Wurzelbacher was equally subjective, he did not have the burden of proof in establishing whether the costs of constructing the fence would be greater than the increase in the value of the land. I believe that William and Linda Zoz were required to introduce objective evidence of the measurement of enhancement of the fence to the land in comparison to the costs of the fence to meet their burden of proof and to be relieved from the obligation imposed upon a landowner by R.C. 971.04 to share in the construction of a partition line fence. See
McDonald v. Guyan Twp. Trustees
(Feb. 21, 1995), Gallia App. No. 94CA21, unreported, 1995 WL 75392 . The portion of William Zoz’s testimony cited by the majority — that he did not believe that the addition of a fence would add or subtract from the value of his property — is, in my opinion, simply insufficient to meet the burden of proof. The majority’s distinction of
McDonald
is irrelevant to my analysis of this case since the burden of proof was upon William and Linda Zoz and not upon James Wurzelbacher. The Zozes were required to put forth evidence to support their opposition to the apportionment of the cost of the fence to meet their burden of proof regardless of the evidence presented by Wurzelbacher.
Because the burden of proof was on William and Linda Zoz, and because no competent evidence existed in the record before the board of trustees or the trial court that the costs of constructing a partition fence would be greater than any increase in value to the property owned by William and Linda Zoz, I would hold that the decision of the board of trustees was not supported by the preponderance of substantial, reliable and probative evidence, and that the holding of the trial court affirming the board of trustees was therefore against the manifest weight of the evidence. Accordingly, I would find merit in the first assignment of error and would reverse the judgment of the trial court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3731466. Public record. Not legal advice.