Summary
prohibiting parking where use of right of way "for parking and storing automobiles over protracted periods of time [] render[ed] the alley impassable for indefinite periods"
Summary of this case from Heavner v. Three Run Maint. Ass'nOpinion
No. 33277
Decided May 27, 1953.
Easements — Private alley between adjoining properties — Established by agreement of owners — Owner's use rendering it unusable for ingress and egress — Unauthorized and may be enjoined by owner adversely affected.
Where by agreement of the owners of adjoining properties a private alley seven feet wide and 98 feet long is established between their premises for the purpose of ingress and egress thereto and therefrom, a subsequent owner of premises served by such alley, who on occasion engages in the parking and storing of his customers' motor vehicles in a part of such alley thereby rendering it unusable for ingress and egress by vehicular traffic, may be enjoined from so doing by another owner whose premises are also served by such alley and who is adversely affected by such unauthorized use of the alley.
APPEAL from the Court of Appeals for Montgomery county.
The present controversy originated in the Court of Common Pleas of Montgomery County and is between Mad River Securities, Inc., hereinafter called "Mad River," and Morris P. Felman and Mary E. Felman. It involves a private alley which separates their premises in the city of Dayton.
Mad River claims that the private alley was created originally in 1830 by written agreement of property owners and was subsequently modified and changed by written and recorded agreements executed in 1846 and 1874; that under the last agreement in 1874 read in connection with the two preceding agreements the alley was established at seven feet in width, running north and south along the common lot lines between lot number 151 to the east (presently the property of Mad River) and lot number 152 to the west (the south 52 feet of which now belongs to the Felmans); that such alley extends from a public alley, running east and west and adjoining lots numbers 151 and 152 on the south, to a point about 98 feet north of such public alley; and that such private alley has been and is used regularly by vehicular traffic.
The Felmans operate a parking lot for motor vehicles on their south 52 feet of lot number 152, have on occasion for some years parked their customers' automobiles within the alley and have marked off yellow painted lines in the alley to serve such purposes. It is claimed, and the trial court so found, that when automobiles are so parked within the alley its use for vehicular traffic is precluded.
Because of the described situation and because Mad River deems such use of the private alley by the Felmans an encroachment on its rights therein, it brought an action in the Court of Common Pleas against the Felmans and others (such others not now being involved) to restrain the Felmans from using the alley for the parking and storing of their customers' automobiles.
An answer was filed by the Felmans in which they deny that Mad River has any assertable rights in the alley by virtue of the agreements mentioned above, basing their denial on alleged fatal defects in the execution of such agreements. They allege that subsequent acts by property owners in erecting buildings caused a vacation of such alley; that the construction of loading platforms along the alley and the employment of the platforms in the loading and unloading of motor trucks constituted such a violation of the purported agreements under which the alley was established as to render those agreements nugatory; and that, by its own conduct, Mad River is estopped from successfully maintaining its action.
The matter came on for hearing before the Court of Common Pleas, which by findings of fact and conclusions of law resolved the issues in favor of Mad River and entered a decree permanently enjoining and restraining the Felmans "from parking automobiles on any portion of said private alley and from using said private alley for any other purpose than for ingress and egress between the public alley on the south and the remaining portions of lots Nos. 151 and 152."
An appeal on questions of law and fact was perfected by the Felmans to the Court of Appeals. That court heard and considered the matter upon "the agreed stipulations, briefs, arguments of counsel, transcript of testimony taken in the Common Pleas Court and the conclusions taken from experiments by the Court of Appeals, made by and with the consent of counsel," and entered a decree reading in part as follows:
"The court being fully advised in the premises find there is some merit to the claim of plaintiff-appellee [Mad River], but upon the rule that where the wrong of one party equals that of the other, the defendant [Felmans] is in the stronger position, and that he that hath committed inequity shall not have equity, find that the plaintiff-appellee and other defendants than appellants by their encroachment in the alley have precluded the court from granting the full equitable relief here sought. The court accordingly hold that both parties have breached in part the express terms of the agreement of 1830 upon which plaintiff-appellee relies; that the parking of a car in the alley at the southeast corner interferes with the egress of trucks from plaintiff-appellee's property; and to the extent that this condition can be obviated, the plaintiff-appellee is entitled to relief. It is therefore hereby decreed that the defendants-appellants Felman be enjoined from parking within any part of the private alley abutting the east line of their lot from the southeast corner for a distance of sixteen feet northward."
Allowance of Mad River's motion to certify and its appeal as of right bring the cause before this court for decision.
Messrs. Coolidge, Becker, Wall Wood, for appellant.
Mr. Joseph W. Sharts and Mr. Harold H. Singer, for appellees.
It is apparent from the record that the agreements of 1830, 1846 and 1874, particularly the latter, established a seven-foot private alley separating the premises now owned by Mad River and the Felmans, and both lower courts so found. It further appears that since its creation such alley has been regularly used for ingress and egress.
The Court of Common Pleas found that the Felmans were making an improper and unauthorized use of the alley by parking and storing automobiles therein, which practice if long enough continued might ripen into a prescriptive right, and enjoined such practice.
The Court of Appeals found some merit in Mad River's position, but also found that Mad River's encroachments in the alley were contrary to the original agreement of 1830 and weakened its position, and in an effort to compromise the differences between the parties the Court of Appeals decreed that "Felman be enjoined from parking within any part of the private alley abutting the east line of their lot from the southeast corner for a distance of sixteen feet northward," thus modifying the decree of the trial court to a considerable extent.
It is quite true that the use of the private alley for vehicular traffic has increased materially in recent years and that platforms have been constructed along the alley and are used for loading and unloading purposes. However, none of the platforms are adjacent to the Felmans' premises and it may not be successfully contended that their construction and use was and is in any way unlawful.
On the basis of equity the Felmans argue, and the Court of Appeals seems to have agreed with them, that, since Mad River is making a use of the alley in a manner and to an extent not contemplated by the agreements of a bygone day, they should be permitted to appropriate a part of the alley for the parking and storing of automobiles. But, there is a difference in the use of the alley by Mad River and that to which the Felmans wish to devote it. In line with the design of the agreements mentioned, Mad River's use is essentially for traffic moving in and out of the alley and which remains temporarily static for the transaction of business and does not have the effect of rendering the alley unusable, whereas the Felmans use the alley for parking and storing automobiles over protracted periods of time which renders the alley impassable for indefinite periods. In other words, the use of the alley by Mad River is in accord with the general design of ingress and egress for which the alley was established, although more extensive (compare paragraph two of the syllabus of Erie Rd. Co. v. S.H. Kleinman Realty Co., 92 Ohio St. 96, 110 N.E. 527), whereas the Felmans would appropriate the alley for a purpose which was never intended and which could result in the permanent destruction of the alley as a way of ingress and egress for vehicular traffic. It is one thing to expand a use, for which a private alley was established, by reason of changed conditions and times and quite another to engage in an unauthorized practice entirely foreign to the use.
In our opinion, on the whole record, the findings and conclusions of the Court of Common Pleas are substantiated and the decree it entered is the proper one in the circumstances. Therefore, the decree of the Court of Appeals is modified to conform with that of the Court of Common Pleas and as so modified is affirmed.
Judgment modified and, as modified, affirmed.
WEYGANDT, C.J., MIDDLETON, TAFT, MATTHIAS, HART and STEWART, JJ., concur.