McCabe v. Hood

13 Ohio C.C. 621

Opinion

Swing, J.

Our construction of the deed and contract in controversy is that the right of drainage from the premises Nos. 43 43^ and 45 Baum street over the premises known as No. 90 Kilgore street, was Jimited by the terms of the grant to the purposes then existing, which was the drainage of water from said premises. The right to drain privy vaults did not exist at that time. Such a right not having existed then, under the terms of the deed, cannot be imposed upon the premises now. This right to use sewage in the pipes, as now claimed by Hood, is a material enlargement of the grant, which was-not contemplated by the parties at the time, and was not included within its terms. There can be no material enlargement of an easement. The parties must be limited to matters contained in the deed. We think the drainage was limited to the drainage as it then existed, and the defendant should be restrained from draining his privy vaults into said drain.

Edward J. Dempssy, for plaintiff in error. Mallon, Coffey & Mallon, contra.