Summary
finding reasonable necessity when the plaintiffs used a 12-foot strip of land for ingress and egress, hauling coal and wood, and "other domestic uses"
Summary of this case from Cadwallader v. ScovannerOpinion
No. 22172
Decided June 11, 1930.
Real property — Implied easements arise, when — Ownership unity severed, long continued, necessary and manifestly permanent use — Injunction by grantees to protect implied easement for ingress and egress.
1. While implied grants of easements are not favored, being in derogation of the rule that written instruments shall speak for themselves, the same may arise when the following elements appear: (1) A severance of the unity of ownership in an estate; (2) that before the separation takes place, the use which gives rise to the easement shall have been so long continued and obvious or manifest as to show that it was meant to be permanent; (3) that the easement shall be reasonably necessary to the beneficial enjoyment of the land granted or retained; (4) that the servitude shall be continuous as distinguished from a temporary or occasional use only.
2. Where a group of lots are the property of a common owner, and the occupants of such lots, upon which are located dwelling houses and outbuildings, have used a twelve-foot strip adjoining the rear thereof as a way of ingress and egress and as a means of reaching the rear of such premises for the purposes of hauling coal, wood, and other domestic uses, which way is plainly visible and known to be generally so used for many years, and from the character of which it may be fairly presumed that the common owner intended its preservation as reasonably necessary to the convenient enjoyment of the property, by making an exception of such twelve-foot strip in all deeds for such lots, such way becomes, when the lands are severed and pass into other hands, an easement by implication and a permanent appurtenance to such property, and passes as such to the various grantees; injunction will lie to protect the same.
ERROR to the Court of Appeals of Lucas county.
This is an action to reverse the Court of Appeals of Lucas county. The original action was brought in the court of common pleas of that county by the defendants in error, Vasco Wentworth and others, who as plaintiffs in that court sought to enjoin the erection of a garage by the plaintiffs in error, Frank Ciski and Anna Ciski, defendants below, on a certain 12-foot strip of land lying immediately west of their property. This strip of land lies at the rear of the lots owned by both the plaintiffs and the defendants, and is claimed to be subject to a right of way by plaintiffs, who filed the petition.
Briefly stated, the facts out of which the controversy arises are as follows: The lots of land owned by both plaintiffs and defendants are located in what is known as T.P. Brown's addition to the city of Toledo, Lucas county, Ohio, and are a part of a tract bounded as follows: On the north by Avondale avenue, on the east by Junction avenue, on the south by an alley running west from Junction avenue, and on the west by the west line of lot 476 in said Brown's addition, all in the city of Toledo. This ground as originally laid out consisted of three lots, Nos. 474, 475 and 476, each approximately 40 feet wide and 150 feet long, in the T.P. Brown addition, which lots ran north and south, fronting for their north line on Avondale avenue. Lot 474 was the most easterly of the three, and fronted lengthwise on Junction avenue. Lot 475 adjoined lot 474 on the west and lay between lot 474 and lot 476, and lot 476 adjoined lot 475 on the west side thereof.
After the laying out of the T.P. Brown addition, the property seems to have been divided into somewhat different form, by carving crosswise five smaller lots out of the original three lots, so as to give a frontage to each of about 30 feet on Junction avenue, extending back across the full width of lots 474, 475, and 476. All the lots above referred to, namely, 474, 475 and 476, were at one time owned by a Mrs. Hannah E. Molaney. Her purchase was made on September 5, 1902. Subsequent to that date she began selling off these five crosswise lots to various purchasers, making the descriptions so that they extended lengthwise through lots 474 and 475, and into lot 476 to a point 12 feet east of the west line of lot 476, leaving the 12-foot strip, the subject of this controversy. On October 31, 1906, she sold the southernmost lot, with a frontage of 26.75 feet, to one Joseph Drella, which by mesne conveyances became the property of Frank Ciski and Anna Ciski, plaintiffs in error herein. On March 25, 1909, Mrs. Molaney conveyed to the predecessors in title of the Wentworths the next crosswise lot, north of the one she had theretofore sold to Ciskils predecessor in title. The description in the deed is as follows: "The north thirty (30) feet of the southerly fifty-six and seventy-five hundredths (56.75) feet of lots four hundred seventy-four (474), four hundred seventy-five (475) and four hundred seventy-six (476), T.P. Brown's Addition to the City of Toledo, Lucas County, Ohio, except the westerly twelve (12) feet thereof."
The next lot north of that was sold by her to the predecessors in title of Nick and Josephine Bonowicz, and the description of the property conveyed is as follows: "The thirty (30) feet south of the north sixty (60) feet of lots four hundred seventy-four (474), four hundred seventy-five (475) and four hundred seventy-six (476) in T.P. Brown's Addition to the City of Toledo, Lucas County, Ohio; except the westerly twelve (12) feet thereof."
Both of these deeds contained clauses conveying the appurtenances belonging to such properties. The remaining two lots of the five crosswise lots were sold to others, not parties to this lawsuit, the deeds to which lots contain the same exception of the 12-foot strip.
Before Mrs. Molaney purchased these lots there appear to have been small dwelling houses or cottage homes erected thereon, occupying practically the land acquired, leaving a small space between the buildings, the largest space being about 7 feet between the Bonowicz home and the next property north, upon which there is now erected a two-story brick building, in which is conducted a store. On the rear of these lots were various outbuildings, consisting of coal houses, or small barns; or garages were built and maintained.
The 12-foot strip excepted by Mrs. Molaney in each of her deeds was the westernmost 12 feet of lot 476, and extended between Avondale avenue, on the north, and the east and west alley running out of Junction avenue, on the south, and lay immediately in the rear of all the lots sold by Mrs. Molaney.
Some years after Mrs. Molaney made these conveyances she seems to have left Toledo and removed to Chicago, and in 1927 quit-claimed her interest in the southern 86.25 feet of the 12-foot strip to one Walter Kasprzyk, who in turn conveyed such interest as he might have therein to the defendants below, Frank Ciski and Anna Ciski.
The record shows that before Mrs. Molaney bought this property, and at the time of her conveyance of these properties to the various grantees, down to about the time of the commencement of these proceedings, this 12-foot strip lying in the rear of said properties was used for the purpose of hauling coal to the coal houses, as a means of reaching Avondale avenue from points south, for delivering wood into the barns and sheds of the respective owners, and for the purposes of automobiles and trucks, and peddlers; and, further, the 12-foot strip was occupied for the purposes of a public sewer connecting the respective properties.
At the north end the owner erected a fence, with a gate at Avondale avenue, and put in certain cement construction. With the exception of this cement work on the northerly part of the 12-foot strip, the same was unpaved down to the alley on the south.
About June 21, 1928, the plaintiffs in error, defendants below, Frank Ciski and Anna Ciski, commenced the construction of a building to be used for garage purposes on this 12-foot strip at the southerly end thereof, completely blocking and closing the driveway in question. The plaintiffs below, the Wentworths and the Bonowiczs, began this action in the common pleas court seeking to enjoin the erection of such building, and asked, upon final hearing, for a permanent injunction preventing the same. The averments of the petition as to the claims of the plaintiffs below are as follows: "That they, and each of them and their immediate predecessors have been in open, notorious, peaceful, continuous, uninterrupted, adverse, peaceable possession, for more than twenty-one (21) years last past, of their said respective pieces of property as herein described. That during all of said time, and for more than twenty-five (25) years last past, these plaintiffs and predecessors in title have had egress and ingress to said property along and over the following described real estate to wit: West twelve (12) feet of lot 476, T.P. Brown's Add. to Toledo, Lucas County, Ohio. That said Twelve (12) feet was further reserved for purposes of ingress and egress to the respective properties of the plaintiffs herein and others in warranty deeds dated March 25, 1909, wherein Hannah E. Molancy deeded said respective properties to the plaintiffs herein. That said last described property has not only been used by the plaintiffs and their predecessors in title but by the public in general for alley purposes."
The answer filed by the Ciskis was in the nature of a general denial. Upon hearing, the common pleas court dismissed the petition of plaintiffs, and an appeal was prosecuted to the Court of Appeals, which court heard the case upon appeal and found that the "plaintiffs have an easement in a twelve (12) foot strip of land constituting a driveway extending from the walk on Avondale avenue and running south to a public alley between said Avondale avenue and Belmont avenue and more particularly described as follows: The west twelve feet of Lot No. 476 in T.P. Brown's Addition to the City of Toledo, Lucas County, Ohio."
An injunction was allowed and mandatory order made that the obstruction be removed. To reverse this decree error is now prosecuted to this court.
Mr. Percy R. Taylor and Mr. George N. Fell, for plaintiffs in error.
Mr. John E. Connell and Mr. Stanley A. Konczal, for defendants in error.
The journal entry of the Court of Appeals does not disclose upon what ground that court based the decree granting to the plaintiffs below the easement in question. The petition prayed for the injunction upon two grounds: First, a prescriptive right, and, second, an easement by implication, passing as an appurtenance under the conveyance of plaintiffs and those under whom they claimed.
The rights of these plaintiffs in this 12-foot strip we think arise by implication from the conveyances made to their predecessors in title from the common owner, and in turn transmitted to the plaintiffs as appurtenances to the land conveyed. "In order to determine the intent the court will take into consideration the circumstances attending the transaction, the particular situation of the parties, and the state of the thing granted." 19 Corpus Juris, 914.
At the time of the conveyance of these lots from the common owner, the cottages and outbuildings had been erected thereon and were being occupied. The witnesses testify that this "way" was used to deliver coal "to the five properties there, a private driveway," and other circumstances appear in the record showing that at the time of these conveyances this way was being used as a means of ingress and egress from the rear of the properties in question to the dedicated alley on the south and to Avondale avenue on the north, down to the time of the erection of the gate at the north end. We think it clearly appears that the circumstances surrounding the parties at the date of the Original conveyances from a common owner, Mrs. Molaney, were such as manifested the intent that this 12-foot strip should be used as a way appurtenant to the various lots conveyed. The 12-foot strip was the visible means of ingress and egress to and from the rear of these premises, which for a considerable period of time had been used as such by those occupying the properties in question at the time of the acquiring thereof by a common owner in 1902, and was still so used at the time of her conveyance to the predecessors in title of the plaintiffs below.
When Mrs. Molaney, the common owner, began selling off these five lots, she put the exception of the 12-foot strip in each deed, and, as various periods of time elapsed between the conveyances, one, two, three, or more years, it is apparent that she herself desired and intended that this 12-foot strip should be a way by which access, ingress, and egress might be had to each of the five lots at the rear. She did this for her own protection for the benefit of the unsold lots, as well as for the various grantees in her deeds. We think the intentions of the parties to the various deeds executed by Mrs. Molaney, as deduced from the circumstances, situation, and conditions of the two estates, servient and dominant, were such as to imply an easement in this 12-foot strip on severance of the two estates from the common owner to the various grantees, and that the same was plainly visible and reasonably necessary to the enjoyment of such property. Her subsequent quitclaim of her interest in the southern 86.75 feet of the 12-foot strip, made in 1927, did not affect her previous conveyances, nor the circumstances under which the same were made.
While we recognize that the creation of easements by implication rests upon an exception to the general rule that written instruments shall speak for themselves, yet under proper circumstances the courts have recognized this doctrine. Certain elements are regarded as essential to the creation of an easement by implication, on the severance of unity of ownership in an estate. The same are well stated in the opinion in the case of Bailey v. Hennessey, 112 Wn. 45, at pages 48 and 49, 191 P. 863, as follows:
"Easements by implication arise where property has been held in a unified title, and during such time an open and notorious servitude has apparently been impressed upon one part of the estate in favor of another part, and such servitude, at the time that the unity of title has been dissolved by a division of the property or a severance of the title, has been in use and is reasonably necessary for the fair enjoyment of the portion benefited by such use. * * *
"In determining whether the facts of a particular case bring it within the application of this rule, it is necessary to determine the extent of the use, the character, and the surroundings of the property, the relationship of the parts separated to each other, and the reason for giving such construction to the conveyances as will make them effective according to what must have been the real intent of the parties; the foundation of the rule being that there shall be held to have been included in the conveyances all the rights and privileges which were incident and necessary to the reasonable enjoyment of the thing granted, practically in the same condition in which the entire property was received from the grantor."
In support of this view attention may be called to the cases cited in 19 Corpus Juris, 914, under note 18; 34 A. L. R., 233, and cases cited; 1 Thompson on Real Property, Sections 297, 325, 350; 9 Ruling Case Law, pages 754, 755, Sections 21, 22 and 23, page 804, Section 60; Scott v. Moore, 98 Va. 668, 37 S.E. 342, 81 Am. St. Rep., 749; Frate v. Rimenik, 115 Ohio St. 11, 152 N.E. 14. See, also, 26 L.R.A. (N.S.), 321, note: "The rule has been asserted and is well supported that when a continuous and apparent easement or servitude is imposed by the owner of land upon one portion of it for the benefit of another portion, a purchaser at either a private or a public sale, in the absence of an express revocation or agreement on the subject, takes the servient property subject to the easement or servitude. Zell v. First Universalist Soc., 119 Pa. 390, 4 Am. St. Rep., 654, 13 A. 447; Manbeck v. Jones, 190 Pa. 171, 42 A. 536; Cannon v. Boyd, 73 Pa. 179; Held v. McBride, 3 Pa. Super. 155; Ormsby v. Pinkerton, 159 Pa. 458, 28 A. 300; Geible v. Smith, 146 Pa. 276, 28 Am. St. Rep., 796, 23 A. 437; Overdeer v. Updegraff, 69 Pa. 110."
Entertaining the view that the surrounding circumstances attendant upon the parties at the date of the conveyances from the common owner to the predecessors in title of the plaintiffs below were such as to show no other intention than to create an easement by implication under such conveyances, and that the same passed as an appurtenance to the successors in title, we reach the conclusion that the Court of Appeals was right in finding that the plaintiffs below had an easement in the 12-foot strip in question and were entitled to an injunction to protect their enjoyment thereof, and the decree in the premises must be affirmed.
Decree affirmed.
MARSHALL, C.J., KINKADE, ROBINSON, JONES, MATTHIAS and ALLEN, JJ., concur.