Glander v. Mendenhall , 39 Ohio Law. Abs. 104 ( 1943 )

OPINION

BY THE COURT:

The status of the appeal in this court is somewhat uncertain. The suit in the trial court was for an injunction mandatory and otherwise. The relief was granted to the plaintiffs in part as prayed for according to the judgment entry, and from this judgment appeal was noted as upon questions of law and fact. Thereafter an appeal bond was given. Up to this stage everything that was .done by way of procedural steps for review was as upon appeal of questions of law and fact.

Succeeding the giving of the bond, a bill of exceptions was prepared, tendered to the trial judge, settled and allowed and filed in the trial court and with this court. Pursuant to the filing of the bill of exceptions an assignment of errors setting up six grounds thereof was filed in the appeal. It will be noted that all steps succeeding the giving of the appeal bond were those which are regularly associated with an appeal on questions of law. Thereafter, but long after rule day, if the appeal is upon questions <x law, counsel for defendant-appellant filed their briefs. Thereafter a motion to dismiss the appeal for failure to file briefs within rule was male and overruled. In the entry journalizing the entry on the motions, conn.sel stipulated “that the transcript of evidence taken in the Common Pleas Court and filed in this cause, is a true and correct statement of said testimony, and that said testimony shall constitute all of the evidence in this cause, and that said cause shall be submitted to this court on said transcript of evidence.” Nothing further respecting the type of appeal is set out in this entry, a,nd under its terms the appeal could be either upon questions of law or upon questions of law and fact.

The type of appeal In this court makes material difference in the approach to the questions presented. If an appeal on questions of law only, then we may review on the weight of the evidence only, if the judgment is manifestly against its weight. If the appeal is upon questions of law and fact, we consider all evidential questions originally, weigh the evidence and test its credibility, as though the cause arose in the first instance in this court.

So that we may meet our obligation which ever type of appeal is presented, we have considered the cause from both aspects.

The sole question for determination is whether or not the plaintiff had a prescriptive right to the use of a driveway between the properties of the plaintiffs and of the defendant, and extending from Walnut Street on the east to the York property on the west and.running parallel with Third Street which is to the south of the claimed right-of-way.

On the evidence there can be. no question, in fact it is conceded that the driveway has been in common use by the plaintiffs, their predecessors in title and the defendant and his predecessor for a number of years more than twenty-one. There is no substantial dispute although it is not conceded that the plaintiffs, their predecessors in title and those having business on their properties where they abutted the driveway, used the driveway for ingress and egress to and from said properties without any claim of consent or right granted from the defendant to so use the driveway. It is contended by the defendant that he was not cognizant of the adverse character of the user and that he was not able to distinguish between vehicles moving along the alley or driveway to and from the properties of the plaintiffs from those which were moving to and from the elevator and places of business of the defendant.

The trial judge held and we are required to hold that in view of the different types of business which were conducted by the plaintiffs and their predecessors in title on the lots and parts of lots involved, it is probable that the defendant was put upon notice throughout the requisite period of time to constitute a prescriptive right, that the driveway was being used adversely to his rights.

There can be no doubt that the use to which the plaintiffs and those wño had business with them put the driveway was not exclusive, and that the defendant, at all times, used thi.v alley in common with them and the plaintiffs. This common use, however, is insufficient to prevent the operation of the doctrine of prescriptive right as to an easement when all the elements thereof are present.

Maher & Marchal, Greenville, for plaintiffs-appellees. George W. Porter, Greenville, and James Thomas, Greenville, for defendant-appellant.

The use to which plaintiffs put the driveway in question was not that which would be incidental to residential property, but was for business purposes and was frequent and extensive. Located upon the lots involved were buildings wherein was conducted the business of the American Express Company, operating numerous delivery wagons and moving into and out of the driveway, no doubt, many times each day, a saloon and a grocery with the attendant activities which are incidental to such businesses. So that the character of the use by the plaintiffs must have been obvious to the defendant.

We have been favored with the written opinion of Judge Klapp, who heard the-case in the Court of Common Pleas, and might well be content to rest the judgment in this court upon that opinion. It is well considered and sound both upon the issues of fact and upon the propositions of law presented. We adopt it as a part of this decision.

. It is our judgment that whether this cause is' heard upon appeal on questions of law or on questions of law and fact, the judgment oj this court must be the same as in the trial court. Cause remanded.

BARNES, P.J., HORNBECK and GEIGER, JJ., concur.