Thursday, October 11th, 2007
By Shelley Grieshop
Land feud settled, felony charges dismissed
The discovery of a property line error led to the dismissal of felony charges against a Celina man accused of illegally removing trees and brush near farmland he owns in rural St. Marys.
Indictment charges of breaking and entering and theft, which were filed in April against Thomas Schmitmeyer, 39, 3154 Goettemoeller Road, were dismissed this week by Auglaize County Prosecutor Ed Pierce. Pierce told The Daily Standard the parties involved in the case had reached an agreement and that he felt "substantial justice" had taken place.
According to court records, Schmitmeyer last year asked his neighbors, George Wiss and Marilyn Kuenning, to remove branches, trees, brush and rusty barbed wire fence that hung across a crooked fence dividing the two properties. The debris in question reportedly encroached on Schmitmeyer's 100-acre parcel of farmland in the 2000 block of Waesch Road.
Wiss and Kuenning, who describe their property as wetlands, denied the request. Schmitmeyer then asked the pair if he could remove the debris for them, but they again turned him down.
In January, Schmitmeyer allegedly took matters into his own hands and trimmed the fence row so he could farm his entire field. His attorney, Robert Kehoe, later argued in court documents that it was his client's right to protect his land under the 14th Amendment of the U.S. Constitution, which says a homeowner cannot be deprived full use and enjoyment of his/her property.
Wiss and Kuenning reported the trimming of their property to the Auglaize County Sheriff's Office who contacted the prosecutor.
After a grand jury indicted Schmitmeyer for the act, land surveys were performed at the request of Kehoe and Pierce. The surveys reportedly showed the fence row was not the true dividing line after all. After months of discussion and evaluation by surveyors and attorneys, it was determined that most of the debris Schmitmeyer removed was actually from his own property, Kehoe said.
And, oddly enough, because the fence row and tree line had been the property line for so long, Schmitmeyer, Wiss and Kuenning agreed to make it the official boundary of the properties, Kehoe said. It was officially recorded as so with the county. The parties also agreed to share the cost of the surveyors and property cleanup, Kehoe added.
Although the landowners solved the civil problem, Schmitmeyer's felony charges remained pending and Schmitmeyer's case was subsequently left to the discretion of the prosecutor. Pierce said the unusual facts and circumstances of the case led him to dismiss the charges.
Schmitmeyer had faced up to a year in prison and a $2,500 fine.
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