Opinion
No. 30483
Decided April 3, 1946.
Real property — Easement and not fee obtained — Electric railway company acquired land by appropriation proceedings — Land reverts on abandonment of railway system — Furnishing and sale of electric current — Incidental to primary use of poles and wires — Purpose of easement not enlarged or extended by claimed adverse user, when.
1. An electric railway company acquiring land by appropriation proceedings for the stated purpose of establishing an electric railway system thereon obtains an easement and not a fee in such land and upon the abandonment of the railway system such land ordinarily reverts to the original owner from whom it was taken or to those claiming under him. ( Henry v. Columbus Depot Co., 135 Ohio St. 311, approved and followed.)
2. Where poles and electric wires placed on such easement are employed primarily in the operation of the railway system, the furnishing and sale of a part of the electric current flowing through such wires to others is incidental to the primary use.
3. Unless it appears that the furnishing and sale of such electrical current to others was hostile or under an adverse claim of, right as to the one from whom the easement was obtained in the first place, or his successors in title, no enlargement or extension of the easement for a purpose other than that for which it was originally acquired can be successfully asserted on the basis of prescription or adverse user.
APPEAL from the Court of Appeals of Medina county.
The plaintiffs, Pierce and McFarren, appellees herein, commenced an action in the Court of Common Pleas of Medina county to quiet title to a strip of land 60 feet in width, comprising some 4.54 acres in Westfield township, Medina county, just north of the village of Creston. They claimed to be joint owners of such premises in fee simple and to be in the actual possession thereof.
The two defendants filed separate answers and cross-petitions which are similar in content.
The answer and cross-petition of The Marion-Reserve Power Company, which company represents a merger of The Reserve Power Light Company and the Columbus, Delaware Marion Electric Company and is engaged in the production and distribution of electrical energy, alleges that the land in question had comprised the right of way of The Cleveland Southern [electric] Railway Company, which the latter had acquired in 1902 by appropriation proceedings, that the defendant power company is the owner of and in the possession of a perpetual easement over and through such land for its electric pole lines, wires and appurtenances, and that the easement was acquired by valid purchase in 1931 for a valuable consideration.
In its answer and cross-petition, the power company averred adverse possession of the land for more than 21 years under a claim of ownership, and that the plaintiffs had actual or constructive knowledge and notice of the defendant company's claim of ownership of the premises for the transmission and distribution of electric energy to the public in Medina county and surrounding territory.
The prayer of the power company's cross-petition is that right, title, possession, use and enjoyment of such easement be forever quieted in the company.
The cross-petition of the Cherry Valley Farms, Inc., contains a prayer asking that the easement rights claimed by it in the premises be quieted against the claims of plaintiffs and the other defendant. However, it appears that in March of 1942, during the pendency of this action, the plaintiffs obtained a tax deed from the auditor of Medina county, conveying to them any interest of Cherry Valley Farms, Inc., to the 60-foot strip in question. Such corporation did not appear or take part in the hearing of the case.
Various other pleadings were filed and the issues joined. The cause was submitted to the Court of Common Pleas upon the pleadings and evidence, including a number of exhibits.
"Separate findings of law and facts" were made, as follows:
"Findings as to Facts."As to the finding of facts, the court finds that in the appropriation proceedings of the Cleveland Southern Railway Company versus Martin S. Cole and Belva Cole, commenced in 1902 in the Probate Court of Medina county, Ohio, the petition in these proceedings sets forth the necessity of the appropriation in the following words:
" 'For the purposes of building, constructing and erecting thereon a roadbed, tracks, switches, poles, and electrical equipment, and maintaining and operating thereon its main line of railway and for electric railway purposes.'
"The prayer of said petition reads in part as follows:
" 'Wherefore, plaintiff prays for the appropriation of the above described real estate to its use, for the purposes named and for electric railway purposes * * *."
"The final journal entry of the court reads in part as follows:
" 'It is therefore considered, ordered and adjudged by the court that the plaintiff, the Cleveland Southern Railway Company, is entitled to the possession of and to hold, use and enjoy the real estate, property, and rights appropriated herein to the use of plaintiff as set forth in the petition * * *.'
"Court further finds that such land appropriated being 4.54 acres, was occupied and used by said the Cleveland Southern Railway Company and its successors, as an electric railway right of way until the year 1931 when the same was abandoned.
"Court further finds that Martin E. Cole conveyed by deed all of lands described in the petition, including also said appropriated strip, to Stanley E. McFarren and Irene M. Striver, which deed was dated May 29, 1936 * * *; and that said Irene M. Striver conveyed by deed all her right and title in and to said lands to C.A. Pierce * * * [February, 1939].
"Court further finds as to claim of adverse possession that the defendants and their predecessors did not have exclusive, continuous, open and notorious possession and use of said 4.54 acre strip of land or any part thereof for a period of 21 years.
"Findings as to Law."As to finding of law, the court finds that the said appropriation proceedings conveyed an easement, being a restricted easement — not a general and perpetual easement. It conveyed an easement for an electrical railway — not for conveyance of electricity for village or private use outside of the right of way. Such easement terminated in 1931 by abandonment of said right of way for railway purposes.
"The court further finds as a matter of law that the defendants have no right or title to said 4.54 acre strip of land or any part thereof by adverse possession for 21 years.
"The court further finds that the plaintiffs are in fee simple the owners of all lands including also said 4.54 acre strip of land described in plaintiff's petition free and clear from any easements or other claims of the defendants."
A decree was rendered in favor of plaintiffs in conformity with the findings set out above.
Thereafter, an appeal on questions of law and fact was perfected to the Court of Appeals, where a like decree for the plaintiffs was entered.
Allowance of the motion for certification brings the case before this court for decision on the merits.
Messrs. VanEpp Laribee, for appellees.
Messrs. Strelitz Dowler, for appellant.
The controlling facts as contained in the bill of exceptions, stated briefly, are as follows:
In 1902 Martin E. Cole was the owner in fee simple of a 150-acre farm in Westfield township, Medina county, subsequently purchased by the plaintiffs. During the year 1902, by appropriation proceedings instituted in the Probate Court of Medina county, The Cleveland Southern Railway Company acquired for a substantial sum the 60-foot strip of land in question "for the purpose of building, constructing and erecting thereon its roadbed, tracks, switches, poles and electrical equipment and of maintaining and operating thereon its main line of railway and for electric railway purposes."
Such railway company and its successors operated an electric railway system over such 60-foot strip of land from 1903 to 1931. It maintained on such strip of land a single track and a line of poles supporting electric and telephone wires, all of which were used in the operation of the railway. During a major portion of such period, a part of the electrical current flowing through the electric wires was supplied and sold to villages and individuals in the vicinity.
In 1931 the electric railway was formally abandoned. In November of that year the federal court receiver of The Cleveland Southwestern Railway Light Company by written instrument conveyed "a perpetual easement," for a stated consideration, over the 60-foot strip of land in controversy to The Reserve Power Light Company, its successors and assigns forever, "for the maintenance of a pole line or lines, wires and appurtenances, as the same are now located."
In the deeds of conveyance to the plaintiffs of the 150-acre Cole farm, no mention was made of the 60-foot strip of land appropriated for "electric railway purposes," and there were no reservations or exceptions mentioned with respect thereto.
Upon the evidence, the Court of Appeals made the following determinations:
1. The Cleveland Southern Railway Company, a quasi-public corporation, acquired through its appropriation proceedings no more than an easement for electric railway purposes over Martin E. Cole's farm, and upon the abandonment of the railway in 1931, the easement reverted to the original owner from whom it was taken, or to those claiming under him, unless an additional or more extensive easement had been secured by prescription or by adverse possession. Henry v. Columbus Depot Co., 135 Ohio St. 311, 20 N.E.2d 921.
2. Until the year 1931, when the electric railway was abandoned, the poles and wires erected on the easement were used primarily for the operation of the railway, and the supplying and selling of electrical energy to the villages and others was incidental to the main use.
3. Such incidental diversion of electrical energy from its primary purpose was not hostile or under any adverse claim of right as to Martin E. Cole or his property interests and therefore no easement by prescription or adverse user was established.
4. The purported grant of a perpetual easement in 1931 to the predecessor of the defendant power company by the federal court receiver of The Cleveland Southwestern Railway Light Company was without effect, because there was no easement for the purposes described which he had a right to transfer.
An independent examination of the record convinces us that the determinations and conclusions of the Court of Appeals are justified and supportable. Therefore, the judgment of that court quieting title in the plaintiffs to the 60-foot strip of land, comprising some 4.54 acres, and ousting the defendant power company therefrom is affirmed.
Judgment affirmed.
WEYGANDT, C.J., BELL, WILLIAMS, TURNER, MATTHIAS and HART, JJ., concur.