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Cookston v. Box

160 N.E.2d 327, 109 Ohio App. 531, 12 Ohio Op. 2d 150, 1959 Ohio App. LEXIS 861
CourtOhio Court of Appeals
DecidedJune 19, 1959
Docket24460
StatusPublished
Cited by6 cases

This text of 160 N.E.2d 327 (Cookston v. Box) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cookston v. Box, 160 N.E.2d 327, 109 Ohio App. 531, 12 Ohio Op. 2d 150, 1959 Ohio App. LEXIS 861 (Ohio Ct. App. 1959).

Opinion

Kovachy, J.

This is an appeal on questions of law and fact from a decree entered in favor of the defendants in the Common Pleas Court of Cuyahoga County and is before this court on the pleadings, transcript of evidence presented at the trial in Common Pleas Court, transcript of supplemental evidence taken before a special master commissioner in this court, and arguments and briefs of counsel.

Plaintiff, Dorothy H. Cookston, owns a cottage located on Sublot No. 630, a part of Mathews and Gilbert’s Subdivision No. 6, Oakwood-On-The-Lake, in the city of Rocky River.

Defendants, Ernest C. Box and Grace Box, own Sublots Nos. 629 and 649 of the same subdivision. Sublot No. 629 is contiguous with plaintiff’s lot.

Plaintiff claims a right to the use of a path over defendants’ land by reason of:

1. An easement by prescription.

2. Aii easement by implication.

3. An easement by necessity.

She prays that a restraining order issue “restraining the defendants, their agents and servants from the erection and *533 maintenance of a fence or any similar obstruction on tbe southerly lot lines of Sublot No. 629 and No. 649, or at any other place whereby the free passage over and upon the pathway herein-before set forth is in any way obstructed or impeded * *

The tract of land originally known as Oakwood-On-TheLake, comprising 64 acres, is located north of the Nickel Plate Railroad bridge and Lake Avenue in Rocky River and is bounded on the east by the west bank of the west branch of Rocky River and on the north by Lake Erie. A real estate development for home sites and docking facilities for pleasure boats started some 60 years ago. On August 15,1907, the Frazier Realty Company, a corporation, obtained title to the entire tract, described by metes and bounds in the deed. The land included two small islands known as North Island and South Island. North Island was bounded on its east by Rocky River and on its north, west and south by a lagoon which connected with Rocky River at its north as well as its south end. The entire tract of land was subdivided by the Frazier Realty Company and the allotment recorded on Cuyahoga County Maps on March 30, 1908. North Island is divided into twelve sublots, each forty feet wide and extending generally west from Rocky River to what was the center line of the lagoon before the lagoon was filled in 1927. The accompanying map, a photostatic section of the record plat, defendants’ Exhibit 1, portrays the area of the subdivision, pertinent here, before the lagoon was filled.

Abutting each North Island lot at the center line of the lagoon is another series of sublots extending westerly to River-dale Drive, a generally north and south road leading to the Cleveland Yacht Club from Lake Avenue by way of Frazier Drive.

The evidence shows that North Island was used as a haven for pleasure boats before the allotment in 1908. A tenement house, known as The Terrace, had been built at or near the southern end of the island in which persons who owned boats lived, particularly during weekends when they frequented the islands for boating. Others slept on their boats. The only ingress and egress to and from the island from the mainland was over a foot bridge at the southern end of the island, and passage *535 up the island was by way of a path that ran along the eastern edge of the lagoon. By 1910 cottages had been built and boating facilities established north of Sublot No. 630 and this path was the recognized means of travel up and down North Island and was in general use by all having occasion so to do. A prospectus, plaintiff’s Exhibit A-6, given to one of the early purchasers of a sublot discloses plans for a public highway over the eastern part of all sublots on North Island connecting with Riverdale Drive. This highway has never been built. We hold this prospectus admissible in evidence, it being part of the res gestae of the transaction. 21 Ohio Jurisprudence (2d), 385, Sections 376 and 377.

*534

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Cite This Page — Counsel Stack

Bluebook (online)
160 N.E.2d 327, 109 Ohio App. 531, 12 Ohio Op. 2d 150, 1959 Ohio App. LEXIS 861, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cookston-v-box-ohioctapp-1959.