Cookston v. Box

146 N.E.2d 171, 76 Ohio Law. Abs. 516, 5 Ohio Op. 2d 102, 1957 Ohio Misc. LEXIS 283
CourtCuyahoga County Common Pleas Court
DecidedOctober 23, 1957
DocketNo. 673825
StatusPublished
Cited by2 cases

This text of 146 N.E.2d 171 (Cookston v. Box) is published on Counsel Stack Legal Research, covering Cuyahoga County Common Pleas Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cookston v. Box, 146 N.E.2d 171, 76 Ohio Law. Abs. 516, 5 Ohio Op. 2d 102, 1957 Ohio Misc. LEXIS 283 (Ohio Super. Ct. 1957).

Opinion

OPINION

By LYBARGER, J.

STATEMENT OF FACTS

In this action the plaintiff seeks a restraining order to keep the defendants from erecting and maintaining a fence or obstruction at any place on their property whereby free passage on a pathway across their land by the plaintiff and others would be impeded.

January 17, 1908 there was laid out the Mathews and Gilbert SubDivision No. 6 known as “Oakwood on the Lake” in what is now the city of Rocky River, Ohio. The lots with which this case is concerned lie between the westerly bank of the west branch of Rocky River and Riverdale Drive. Originally there were two small islands in the subdivision which were bounded by Rocky River to the east and lagoons to the west; and the lots on these islands had no access to any street or public highway, but were accessible only by way of Rocky River or the lagoons. What was called North Island was joined to the mainland some time in 1927 when the lagoon to the west of it was filled in. The defendants own sublot No. 629 whose easterly boundary is Rocky River, and sublot No. 649 whose westerly boundary is Riverdale Drive. Since the filling in of the lagoon these two sublots have adjoined one another, the westerly line of Lot No. 629 being the easterly line of Lot No. 649. The answer of the defendants indicates that the description of the land on which they rely is by metes and bounds and it describes the two lots as one parcel of land. The defendants have access to their land by way of Riverdale Drive to the west and Rocky River to the east.

The plaintiff owns sublots No. 626, 627, 628, 630 and 650 in the SubDivision. Sublot 630 is to the north of sublot 629 owned by the defendants. It abuts on Rocky River to the east and is bounded by private property on the north, south and west. It is not adjacent to any public highway and cannot be reached except via Rocky River or by going over the land of other persons. The plaintiff has access to sublots 626, 627 and 628 through sublot 650 which faces on Riverdale Drive.

The defendants acquired their property April 4, 1949 but they were familiar with the location for about ten years before.

In 1926 taxes un Sublot 649 became delinquent and remained so [519]*519through January 31, 1941 when the land was forfeited to the state. The lot was sold to one of defendants’ predecessors in interest by the County Auditor, July 31, 1944.

The plaintiff lived in the area as early as 1932 and bought sublot 630 in 1949. She acquired sublots 626 and 650 in 1950 and lots 627 and 628 in 1954.

Prior to 1927 persons occasionally walked over a pathway on private property along the westerly edge of North Island in going north and south on the island. Such, path was not well defined or improved. Prom 1927, when the lagoon was filled in, to the present time, owners and occupants of land in the sub-division mentioned, tradesmen and delivery men and the public in general have used a pathway which runs in a general northerly and southerly direction (and over what was formerly the center of the lagoon) from one end of North Island to the other and across sublot 649, the land of defendants. The plaintiff has used this path since 1932. Presently the path is well defined where it extends across the land of the plaintiff, having been improved with stepping stones in recent years. It is also well defined across the land of the defendants and northerly therefrom.

On sublot 629, which is the easterly part of defendants’ property, there is a two-story dwelling, a shed and several fences. In the past there was a fence close to the westerly line of this part of the land. Orginally sub-lot 649 was not improved although now it has been graded and contains a driveway which leads to defendants’ dwelling to the east. It was not fenced prior to this year, when defendants erected the fence whose maintenance plaintiff now seeks to enjoin. The evidence indicates that the path which crosses defendants’ land lies along the easterly border of lot 649 and that it is about five-feet wide. It is several inches west of the westerly line of lot 629 at the nearest point and is within a close distance of the dwelling house.

CONCLUSIONS OF LAWS

In the light of the above facts there is presented for decision the issue of whether or not the plaintiff and the public have an easement over the defendants’ land. Can an easement be enforced on the ground that it was created either by implication, necessity or prescription? Did the intervention of a forfeiture of lot 649 to the state and a subsequent tax sale preclude the creation of any easement over defendants’ land?

A court of equity has “adequate power to afford full relief to all parties before it.” (Brinkerhoff, Trustee v. Smith et al, 57 Oh St 622.) It is a court of conscience, must do equity and must apply “rules of reason -and righteousness.” (20 O. Jur. 2nd, page 18.) But in doing so it must stay within the framework of those precedents and rules of law and equity which govern the pertinent facts before it.

There has developed a great body of law concerning easements of every kind. It is hardly necessary here to characterize an easement as an incorporeal hereditiment annexed to the ownership of real property or to review its essential qualities, since the same have been so fully set forth in the decisions and text books. An easement may arise [520]*520by express grant, by implication, by prescription or estoppel. The facts of the instant case obviate need of considering grant or estoppel.

In Ohio easements may be implied “from a conveyance describing the premises as bounded upon a way, from a conveyance with reference to a plat or map, from a use existing at the time of severance of ownership of land, and from necessity alone, as in the case of ways of necessity.” (18 O. Jur. 2nd, Easements, Sec. 27, pg. 552.)

The prerequisites of an easement by implication have been set forth in syllabus one of the leading case, Ciski et al v. Wentworth et al, 122 Oh St 487, as follows:

“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.”

It is the law that “adverse possession for twenty one years is not necessary to create an easement by implied grant” (Helle v. Markotan, 73 Abs 387).

It cannot be overlooked that the first requisite for such easement is unity of ownership as the foundation of the right. “The easement derives its origin from a grant, and cannot legally exist where neither the party claiming it nor the owner of the land over which it is claimed nor anyone under whom they or either of them claim, was ever seized of both tracts of land” (18 O. Jur. 2nd, Easements, Sec. 32, page 563).

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Cite This Page — Counsel Stack

Bluebook (online)
146 N.E.2d 171, 76 Ohio Law. Abs. 516, 5 Ohio Op. 2d 102, 1957 Ohio Misc. LEXIS 283, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cookston-v-box-ohctcomplcuyaho-1957.