Clement v. Fishler , 28 Ohio App. 392 ( 1927 )

Plaintiff, Orin C. Clement, brought an action in the court of common pleas of this county against Louis Fishler and other named defendants, in which he sought to establish his claim to an easement as appurtenant to premises described by him in the petition. The court below found in favor of the defendants, and the plaintiff appealed.

The evidence discloses that the plaintiff is the owner of the easterly 50 feet of the southerly 106 1/2 feet of lot No. 14 in Machen addition, Toledo, Lucas county, Ohio, and that the defendant, Harve W. Fisher is the owner and in possession of the westerly 50 feet of the easterly 100 feet of the said lot No. 14, as vendee under contract of sale, the legal title thereto being in the defendants Louis Fishler and the Commercial Savings Bank Trust Company. These properties are adjoining and front on the north side of Columbia street, and the property of the plaintiff, which is to the east of that of the defendant Harve W. Fisher, is at the northwest corner of Fulton and Columbia streets. There is a 4-family apartment on plaintiff's property and an 8-family apartment on the property of the defendant Harve W. Fisher. At the commencing of this action in the court below, and for about 35 years prior thereto, there was a walkway of flagstone extending from the sidewalk in front of the properties to the rear thereof, 30 inches in width, 3 inches being on the property of the plaintiff and 27 inches on the property of the defendant Harve W. Fisher. Recently the property of the defendant Harve W. Fisher has been remodeled and changed from a 4-family to an 8-family apartment. In connection with the work of remodeling, the defendant Harve W. Fisher has constructed a 5-car garage in the rear of his lot, and in order to obtain ingress and egress for automobiles using such garage he has, since the commencement of this action, torn up the walkway in question and is about to put down a cement driveway upon his property, extending to his lot line, which would take up and include the 27 inches of the walkway above referred to.

The two apartment buildings, then double houses, and the walkway were originally constructed by Michael J. Malone, prior to 1892, and at that time he was the owner of both the lots. These buildings were about 15 feet apart and remain in the position in which they were originally erected, although changed into apartment houses, as stated. We have considered all the deeds in the chain of title of the two pieces of real estate as being in evidence.

We find that after Michael Malone had owned the two properties for a few years, the title to the two pieces became vested in separate owners, and that on December 22, 1902, Margaret Malone became the owner of both of them. December 17, 1903, she deeded the easterly 50 feet to one Gertrude Faller, through whom the plaintiff derives his title. Margaret Malone, however, retained title to the westerly 50 feet until May 7, 1925, when she deeded it to William Cutler and Louis Fishler, through whom the defendant Harve W. Fisher derives his title.

During the period of 24 years prior to July 1, 1915, the walkway in question was maintained where it was at the commencement of this suit, and during that time it served as a common entrance for both houses from Columbia street to the rear. It appears that when plaintiff's predecessor in title acquired title to the property, on December 22, 1902, the walkway in question was openly and to the knowledge of both the grantor and grantee used as a common way for the convenience of both. The walkway was reasonably necessary to the use and enjoyment of the land and materially added to its value, and when the common owner of both lots deeded away one of them, there was created in the grantee an easement by implication.

The principle applicable is well stated in 9 Ruling Case Law, 755, Section 22, from which we quote:

"The general rule is that where during the unity of title an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another, which at the time of the severance is in use and is reasonably necessary for the fair enjoyment of the other, then upon a severance of such ownership, there arises by implication of law a grant of the right to continue such use."

We also quote from the same authority, page 754, Section 21:

"This doctrine of the creation of easements by implication rests upon exceptions to the rule that written instruments shall speak for themselves. It was originally restricted to ways of necessity, which were implied upon a conveyance of land having no means of ingress or egress because it was for the public good that the land should not be unoccupied; but, as above noted, it has been broadly extended to include existing servitudes or quasi easements, and there is now some confusion as to its exact scope in the United States."

See, also, page 763, Section 27, of the same authority.

The principle has found sanction in Ohio: Frate v. Rimenik,115 Ohio St. 11, 152 N.E. 14; Baker v. Rice, 56 Ohio St. 463,47 N.E. 653; National Exchange Bank v. Cunningham, 46 Ohio St. 575, 22 N.E. 924.

We quote from the syllabus in Frate v. Rimenik, supra:

"Easements and servitudes created by a common owner of lands, which are plainly visible and from the character of which it may be fairly presumed that he intended their preservation as necessary to the proper, convenient, and reasonable enjoyment of the property, become, when the lands are divided and pass into other hands, permanent appurtenances thereto, and neither the owner of the dominant or of the servient portions of the land has power to adversely interfere with their proper use and enjoyment."

When the plaintiff's predecessor in title acquired the property and the easement appurtenant thereto, such easement would subsequently pass by deed without express reference being made therein to the appurtenances. Morgan v. Mason, 20 Ohio, 401, 411, 55 Am. Dec., 464.

Since July 1, 1915, the way has been used to reach the entrance to the cellarway of the apartment on plaintiff's premises by the janitor of the building, and perhaps by others, though for 8 or 9 years many of those seeking entrance to the rear of that building have made use of a new way which was constructed about 9 years ago, along the rear from Fulton street.

We are of the opinion that plaintiff, through his predecessors in title, has an easement by implication along the 30 inches which constituted the walkway, which gives him and those claiming under him, and those who may lawfully visit his premises, the right of ingress and egress, but there is also an easement of like kind existing in the defendant Harve W. Fisher, and those claiming under and through him. The defendant Harve W. Fisher may improve the walkway and may use the portion on his premises in any way he sees fit, including that of a driveway for automobiles, provided that he does not in any way interfere with or in any degree impair the easement of the plaintiff and those claiming under and through him.

Decree accordingly.

RICHARDS and LLOYD, JJ., concur.