Opinion
No. 30832.
1942-03-5
Vernon L. Marchal and Howard J. Tillman, both of Greenville, for plaintiffs. George W. Porter and James E. Thomas, both of Greenville, for defendant.
Suit by Anna Glander and others against J. W. Mendenhall to enjoin erection of fences or obstructions in a driveway and obstruction of plaintiff's use of a street by placing of coal cars, and dumping of coal and parking of defendant's automobile in the driveway.
Decree for plaintiff in part.
Cause remanded by the Court of Appeals, Ohio App. 68 N.E.2d 105.Vernon L. Marchal and Howard J. Tillman, both of Greenville, for plaintiffs. George W. Porter and James E. Thomas, both of Greenville, for defendant.
KLAPP, Judge.
Plaintiffs in their petition allege that they are owners of certain property in the city of Greenville, being parts of Lots 43 and 44, and that the defendant is the owner of parts of said lots, and there is a driveway or alley extending in a westerly direction from Walnut Street through the defendant's property, extending along the rear of the plaintiffs' property, and that this driveway has been used by the plaintiffs, their tenants and lessees as a means of ingress and egress to the rear of plaintiffs' property, and that said alley or driveway is 20 feet wide from Walnut Street to the east line of the property of Anna Glander and that from that point westerly along the rear of the plaintiffs' property to the north and south alley, the alley or driveway is 30 feet, and the plaintiffs' petition further avers that they and their predecessors in title have used this driveway or alley in said widths for more than 25 years last past and that the use has been open, notorious and adverse to the rights of the defendant and his predecessors in title, and that the defendant threatens to and is taking steps to build fences and place posts in said alley or driveway which will prevent the free use of the same by plaintiffs and their tenants and lessees; that the defendant has blocked the entrance to said driveway by placing coal cars and parking his automobile in driveway. Plaintiffs also complain in their petition that the defendant is blocking part of Walnut Street by causing coal cars to be parked thereon and by dumping coal in said public street, and that they have no adequate remedy at law, and for these reasons pray a temporary restraining order restraining the defendant from erecting or building fences or obstructions in the driveway, and ask for a mandatory order to remove the posts or obstructions already erected, and that after hearing that such restraining order be made permanent, that the rights of the plaintiffs to the use of the driveway be quieted against the defendant, and further asking that the defendant be enjoined from placing coal cars and dumping coal in Walnut Street and thereby obstructing the free use of the street by the plaintiffs.
The answer of the defendant admits the ownership of the property as set forth in the plaintiff's petition with title in plaintiffs and defendant, denies the existence of a driveway or alley across his portion of the lots described, and further denies all the other allegations in plaintiffs' petition.
This matter was heard to the Court and the testimony of numerous witnesses was produced, together with exhibits consisting of drawings and pictures showing the physical lay-out of these properties. The issue made up is simply whether or not the plaintiffs have an easement or right of way over the lands of the defendant. There is no claim of an actual grant of such right of way by defendant or his predecessors in title, but all of the evidence is to the effect that the plaintiffs have obtained such right of way of the defendant by prescription.
Very comprehensive and able briefs have been filed by counsel in this case and the issues have been carefully discussed, so that the work of the Court has been materially reduced. However, the very wealth of authority upon the subject and in some cases the rather fine differences which have been drawn from different statements of fact in the cases cited has caused the Court to give deliberate consideration to the application of the rules of law to the facts produced in evidence here.
These facts seem to be established. The ownership of the property is admitted. The use of the alley or driveway for more than twenty years by plaintiffs, their predecessors in title and tenants of the premises owned by plaintiffs is well established and this use has been for the purpose of ingress and egress to the rear entrances of the properties now owned by plaintiffs, by themselves and tenants or by persons having business with the occupants of said properties. The driveway or alley so used was constructed by defendant's predecessors in title and was used by them as well as by defendant in the operation of a grain and feed business, and more lately a coal business, there having been previously large elevator buildings upon said premises of the defendant in addition to the buildings now still standing upon defendant's property.
Aside from the buildings the premises of the defendant have not been enclosed by fences which blocked these driveways, that the driveways have been open to Walnut Street and to the north and south alley apposite the premises of the York Supply Company.
There is no proof of any arrangement among the persons occupying these various premises with relation to the use of this driveway. Defendant's business and that of his predecessors included the purchasing of grain from farmers who, in times past, came with their wagons to the elevator and many times in such numbers as to block the alleyway or driveway, particularly in the busy season. Some parts of the driveways were blocked at various times by the placing of vehicles belonging to defendant and tenants of parts of his property so as to block off from use as a driveway a part of that section of the claimed driveway described as 30 feet wide behind the plaintiffs' buildings.
The burden of establishing the right to the driveway by prescription is, of course, upon the plaintiffs, and the rule as to what is necessary to constitute a prescriptive right to an easement has been well stated in the case of Pennsylvania R. Co. v. Donovan, 111 Ohio St. 341, 145 N.E. 479, 482. Speaking for the Court, Chief Justice Marshall said: ‘A prescriptive right is acquired by open, motorious, continuous, and adverse use for a period of 21 years.’
The Court has little difficulty in determining the user of this way, and that the evidence fully discloses that said use was open, notorious and continuous. In connection with this test of its being continuous, there is evidence in this case that there were times of interruption when, if persons might have desired to use the way described in the petition, they could have been prevented from so using it because it was occupied by persons there for the purpose of transacting business with defendant or his predecessors in title. Such interruptions do not appear to the Court to have been sufficient to have broken the usual use of the way as described by plaintiffs, and it is, of course, not necessary that the use be daily in order to make it continuous, but an occasional use is sufficient. 1 O.J. Sec. 55, page 562.
A more difficult question is presented, however, in determining whether or not under all the facts in this case the use can be said to be adverse to the rights of the defendant or whether it may be properly described as being permissive. It is, of course, true that the use of a way by permission of the owners of the land will not ripen into an easement by prescription, except in very unusual cases, and whether or not the use of a way is adverse or permissive only, must, of course, depend upon all the facts disclosed by the evidence of the particular case. If there is any permission actually proven or facts from which the Court can properly imply a permission of the owner of the fee, then the use would certainly not be adverse.
One of the leading cases upon the question of when a use becomes permissive is the case of Pennsylvania R. Co. v. Donovan, which the Court has already cited. There seems to be no hard and fast rule available but only such conclusion as the Court must properly reach from the facts in each case, as has been said. The owner of the servient estate, when claiming that the use was permissive, has the burden of proving that. The facts in the case just mentioned are in some respects very similar to the facts in the case at bar. The use had been open, notorious and continuous so that the case turned principally on the question of adverse use, and the Court in that case found that the use had been permissive, basing its opinion on the fact that the way was constructed by the railroad company for the use of its patrons and those persons having business at the station or on the platform of the railroad, and called attention to the fact that the way had only one point of entrance and exit and that it led no other place than from the public thoroughfare to the station and platform and not to any other place. The conclusion of the Court is in these words: ‘The character of use enjoyed by the public as shown by this record, is only that of going to and from the railroad station as patrons of the railroad company by means of a driveway established for that purpose which so far as this record discloses is the only means of ingress and egress for vehicles. It seems very clear, therefore, that this use is not adverse, but rather permissive. If the use is permissive no prescriptive rights can be predicated upon such use.’ In other words, from the evidence in that case the Court concluded that the nature of the way and its use was sufficient to disclose a permissive use by those persons who claimed the right by prescription. This case is easily distinguished from the case at bar for the reason that the way claimed by the plaintiffs in this case passes between and connects Walnut Street and the north and south alley, and was not used by these plaintiffs or other persons merely for the purpose of reaching the buildings of the defendant for the purpose of doing business with the defendant, but was used for reaching the rear entrances of plaintiffs' own buildings and for the purpose of furthering and carrying on business with plaintiffs, their predecessors in title and their lessees or tenants.
This Court feels impelled to the conclusion that in the case at bar the use by plaintiffs and their predecessors in title was actually adverse to the rights of the defendant and his predecessors in title.
The defendant strongly contends, also, that since these lands were unenclosed, that no prescriptive rights could be gained by the use of the way and with this contention the Court is not in accord. The cases cited in support of this contention have been carefully considered by the Court and they are easily distinguished, in our opinion, from the case at bar. In each case, the lands were not only unenclosed but were either not used by the owner for any purpose or had been practically abandoned by the owner and thrown open with an implied invitation to use, or were in connection with some public building where, for the purpose of convenience or ornament, they were left open with an implied invitation or permission for the public to pass over them. In other words, in each case there were elements of the evidence which disclosed and implied permission on the part of the owner for the use that was made of them by those claiming the prescriptive right. Such, of course, is not the case at bar, for it is the opinion of the Court that the use to which this way was put by the plaintiffs and those through whom they claim, was adverse to the rights of the defendant and those through whom he claims, putting an additional burden upon his premises, interfering with his full use of the same. It is not, of course, necessary that the use to which the plaintiffs put the way be exclusive. It is sufficient if it is consistent with the use to which the defendant also puts it. Pavey v. Vance, 56 Ohio St. 162, 46 N.E. 898. It is likewise true that the prescriptive right which one may acquire in the use of a right of way is limited by the use to which it is put during the period of user relied upon. This is the rule of the Pavey v. Vance case.
From the evidence in this case the Court is unable to determine that those acts of defendant of which plaintiffs complain and which they contend should be restrained by the Court, are all of them inconsistent with the prescriptive right of way which plaintiffs contend they have acquired. The erection of the fence or of posts in the way, permanently blocking the same, must, of course, be enjoined. However, the evidence discloses, in the Court's opinion, that all during the years this way has been subject to some interruption of its use by plaintiffs because of the use to which it is put by defendant and his predecessors.
The Court is unable to determine from the evidence that the plaintiffs have sustained the burden of proof upon them that the defendant has been given to conduct which the Court would restrain in the placing of a coal car, the dumping of coal, or the parking of his automobile. The Court therefore will make no order relating to an injunction against these acts complained of.
It is then the opinion of the Court that the plaintiffs have established the right of way by prescription over the lands of the defendant as described in the petition and the defendant will be enjoined from placing posts, fences or other permanent obstructions in said way, and the title of the plaintiffs to an easement over defendant's lands in the dimensions described in the petition will be quieted.
The Court refuses to grant an injunction or to make permanent any restraining order temporarily issued restraining the defendant from temporarily blocking said right of way as complained of in the petition by using the same for the unloading of coal or the parking of his automobile.
An entry may be prepared carrying this opinion into decree and saving exceptions as counsel may desire. The costs of this case to be taxed upon the defendant.