Trattar v. Rausch

• Citation: 43 O.O. 186,154 Ohio St. 286,95 N.E.2d 685
• Decision Date: 06 December 1950
• Docket Number: No. 31990,31990
• Parties: , 43 O.O. 186 TRATTAR et al. v. RAUSCH.
• Court: United States State Supreme Court of Ohio

Page 286

154 Ohio St. 286

95 N.E.2d 685, 43 O.O. 186

TRATTAR et al. v. RAUSCH.

No. 31990.

Supreme Court of Ohio.

Dec. 6, 1950.

Syllabus by the Court.

1. An easement is a right, without profit, created by grant or prescription, which the owner of one estate, called the dominate

estate, may exercise in or over the estate of another, called the servient estate, for the benefit of the former.

2. An easement in or over the land of another may be acquired only by grant, expressed or implied, or by prescription.

3. Implied easements are not favored because they are in derogation of the rule that written instruments speak for themselves.

4. An implied easement is based upon the theory that whenever one conveys property he includes in the conveyance whatever is necessary for its beneficial use and enjoyment and retains whatever is necessary for the use and enjoyment of the land retained.

5. To be the basis of an implied easement upon the severance of the ownership of an estate a use must be continuous, apparent, permanent and necessary.

6. On a severance of ownership of property, a use to which one part of the property has been subjected for the benefit of another part will not be recognized as an implied easement unless the use is reasonably necessary to the enjoyment of the dominate estate; convenience alone is not enough.

7. The burden of proof rests upon the claimant to an easement by implication to show the existence of all the elements necessary to establish his right thereto.

8. An easement in the form of a way of necessity will not be implied, where there is available another way of ingress and egress to and from the land involved, even though such other way is less convenient and would necessitate the expenditure of an appreciable amount of labor and money to render it serviceable.

Plaintiffs, Alice and Mary Trattar, are the owners of a tract of land of about 25 acres, situated in the village of Westlake, Cuyahoga county, which they purchased from one Clara Ban by deed dated August 21, 1940. The latter had acquired such real estate a few months earlier at a forfeited land tax sale. When plaintiffs obtained the premises there were no buildings thereon.

Defendant, Harold Rausch, owns a tract of land containing about 13 1/4 acres situated in the village of Bay in the same county, which he purchased on May 6, 1940, also at a sale of land forfeited to the state for the nonpayment of taxes.

Plaintiffs' and defendant's lands lie opposite each other and are separated by the tracks and right of way of the New York, Chicago & St. Louis Railroad Company, plaintiffs' property being to the south of such tracks and right of way and defendant's property to the north thereof. Such railroad is now in operation.

In October of 1940 plaintiffs brought the present action in the Court of Common Pleas of Cuyahoga County to enjoin the defendant from interfering with their use of an alleged easement for travel extending south over defendant's land from the end of a street known as Forest Drive and running in a generally northerly and southerly direction to a crossing over the tracks and right of way of the railroad which connects plaintiffs' property with that of defendant.

In a second cause of action, plaintiffs sought special damages of $1,200 from defendant for loss claimed to have been sustained by reason of defendant having 'barricaded and blockaded' such alleged easement.

In his answer, defendant, among other things, 'denies that there is any road or right of way across the defendant's property from Forest Drive to the New York, Chicago & St. Louis Railroad Company property, and across said railroad property to the plaintiffs' property.'

After hearing, the trial court made findings of fact and conclusions of law and in its judgment entry ordered and decreed that an easement to plaintiffs' property over defendant's described premises as specified be granted, and awarded judgment for defendant on the second cause of action.

An appeal on questions of law and fact was taken by the defendant to the Court of Appeals and the cause was submitted to that court de novo upon a stipulation of facts containing some 30 numbered paragraphs.

Findings of fact and conclusions of law were also made by the Court of Appeals. In the conclusions of law it was stated that a right of way of necessity in favor of plaintiffs arose across the parcel of land now owned by the defendant. It was adjudged further that plaintiffs are entitled to an easement 12 feet wide over the property of defendant, extending from the lands of plaintiffs to the southerly end of Forest Drive. Defendant was also permanently enjoined from interfering with plaintiffs' right to use such easement.

A motion by the defendant to require the Court of Appeals to certify its record having been allowed, the cause is now here for decision on its merits.

Harold Rausch, in pro. per.

Griswold, Leeper, Miller & Corry, Cleve land, for appellees.

ZIMMERMAN, Judge.

Was the Court of Appeals correct in adjudging that plaintiffs are entitled to a way or easement of necessity from their premises over defendant's premises to the southerly end of Forest Drive?

In attempting to answer this question, an examination of the stipulation of facts submitted by the parties to the Court of Appeals becomes necessary.

Such stipulation, which is neither as complete nor satisfactory as could be desired, shows that on May 13, 1867, one Mary Lane acquired by deeds lands which embrace the properties now owned by the plaintiffs and defendant, respectively, plus a strip of land 33 feet in width running from the southeast corner of the 25-acre tract, now owned by plaintiffs, east to the center of a throughfare called Cahoon road. Apparently this strip of ground is still owned by the heirs of Mary Lane.

By deed recorded August 10, 1881, this same Mary Lane acquired title to another strip of land 33 feet wide and extending east from the northeast corner of plaintiffs' present land to the center of Cahoon road, which was used until the year 1928 for the purpose of ingress and egress.

By deed recorded September 5, 1881, Mary Lane conveyed to the New York, Chicago & St. Louis Railroad Company a right of way which effected a complete separation of the lands now owned by plaintiffs and defendant.

Thus, in 1881, a condition was brought about whereby the original parcel of land was divided by a railroad right of way with two strips of land 33 feet wide and extending from Cahoon road to the 25-acre tract lying south of the railroad right of way and now belonging to plaintiffs.

The property involved in the instant controversy continued to be owned by Mary Lane and her heirs until February 19, 1921, when the heirs conveyed the same to two persons named Dodd and Aldrich. In the conveyance there were three separate descriptions, one description included plaintiffs' present property, another defendant's present property and the remaining one the strip of land 33 feet wide and extending from the northeast corner of plaintiffs' premises to the center of Cahoon road. Each of such three descriptions referred to the railroad right of way as a boundary.

Sometime during the year 1921 Dodd and Aldrich constructed a crossing seven feet wide over the tracks and right of way of the railroad and connecting the premises now owned by plaintiffs with those now owned by defendant. Such railroad crossing was used by Dodd and Aldrich from the year 1922, and upon the establishment of Forest Drive in 1925 they traveled across the land now owned by defendant along a line between the railroad crossing and the south end of Forest Drive. The nature and extent of such use are not disclosed, but it apparently continued for an undisclosed purpose until the separate and distinct tax sales in 1940.

By the present action plaintiffs seek to enjoin the defendant from interfering with their use of the passage or alleged easement from their land across his land to Forest Drive.

An easement has been defined as 'a right without profit, created by grant or prescription, which the owner of one estate [called the dominant estate] may...