Berardi v. Ohio Turnpike Commission

• Decision Date: 25 February 1965
• Citation: 1 Ohio App.2d 365,205 N.E.2d 23,30 O.O.2d 385
• Parties: , 30 O.O.2d 385 BERARDI et al., Appellees, v. OHIO TURNPIKE COMM. et al., Appellants (three cases).
• Court: Ohio Court of Appeals

Page 365

1 Ohio App.2d 365

205 N.E.2d 23, 30 O.O.2d 385

BERARDI et al., Appellees, v. OHIO TURNPIKE COMM. et al., Appellants (three cases).

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Feb. 25, 1965.

Manchester, Bennett, Powers & Ullman, Youngstown, and Baker, Hostetler & Patterson, Cleveland, for appellees.

Lockwood Thompson, Cleveland, and James C. McGrath, Berea, for appellant Turnpike Commission.

McAfee, Hanning, Newcomer, Hazlett & Wheeler, Cleveland, William D. Keast, Youngstown, and Michael C. Clement, Struthers, for appellant Marvan W. Davis.

CORRIGAN, Judge.

This is an appeal on questions of law and fact taken by the Ohio Turnpike Commission from a judgment rendered by the Court of Common Pleas granting reformation of a deed conveying land to the state of Ohio. Defendants, Marvan W. Davis, who was made a party defendant upon motion to intervene, and the state of Ohio, have taken separate appeals which have been consolidated for purposes of argument.

The cases come to trial de novo before us upon the petition of plaintiffs, Libera Berardi and Penn Ohio Plaza, Inc., the latter having been substituted as party plaintiff in this court pursuant to its purchase at a sheriff's sale of property formerly belonging to plaintiff, Midway Service Centers, Inc. Through their petition plaintiffs seek a decree of reformation of a deed to real estate from their predecessors in title, Jessie M. Rowe and Harry J. Rowe, to the state of Ohio. It is alleged, inter alia, that the Rowes entered into an agreement with the Turnpike Commission for the sale of a portion of their land, and the agreement provided that '* * * owner shall have the right to establish driveways as necessary for ingress and egress'; that through mutual mistake the above condition was not incorporated in the deed; and that the deed omitted any reference thereto. Plaintiffs ask for a decree reforming the deed from the Rowes to the state of Ohio to provide for access rights as provided in the contract of purchase. To this the state of Ohio and the Turnpike Commission filed answers. The Turnpike Commission's answer claims that the provisions in the contract were personal to the Rowes, denies that a mutual mistake was made, and prays for declaratory judgment in this regard. Defendant Davis makes essentially the same claim.

The facts are basically uncontroverted and are as follows:

Upon construction of the Ohio Turnpike, the Turnpike Commission determined to take a certain parcel of land located in Mahoning County, which was in part needed for a ramp at an intersection where such ramp connects with State Route Seven. The parcel fronted on the westerly side of Route Seven for approximately one hundred seventy three feet and varied in width from eighty eight to ninety nine feet. This piece of land in question was a small part of a larger parcel owned and occupied by Jessie M. Rowe and Harry J. Rowe; however, it was the only property through which they had access to Route Seven.

The Rowes were assisted in their negotiations with the Turnpike Commission by their adult son, Jack Rowe. During such negotiations the Rowes insisted upon unlimited access to their property, that no fences should be erected on their remaining frontage, and that they have the right to erect signs on their property. These demands were channeled to an attorney on the staff of the commission's land agents, one E. A. Kordick. Kordick visited the Rowes and agreed with them to have the following language inserted in the Turnpike Commission's standard form of purchase agreement entitled 'Offer and Contract for the Sale of Real Estate' in order to establish the grantors' right of access:

'It is a condition of this contract that no fence shall be erected across the owners' remaining frontage on Market St. and owner shall have the right to establish driveways as necessary for ingress and egress.'

The foregoing language was inserted on the form, and the form was then duly signed by the Rowes and witnessed by Kordick and Jack Rowe. The form, as amended, was also approved by the Turnpike Commission. The consideration specified was $3,180.

Thereafter, a deed was prepared by the commission on its standard form and forwarded to the representative of the commission who had originally negotiated with the Rowes, who observed that the deed did not contain the clause containing the access rights as agreed upon, and he so informed Kordick. Kordick then called the Rowes on the telephone in the representative's presence and told them that although the deed did not contain the access-rights clause as provided for in the contract, the commission was nevertheless bound by the contract and would honor it. The representative of the Turnpike Commission then proceeded to the Rowe residence and obtained their signatures on the deed.

Thereafter, the Rowes were permitted free access to their property by the Turnpike Commission. During construction of the turnpike existing ramp, a wide driveway to the Rowe property was built by the contractor. Fill dirt was moved upon the Rowe property, which raised the level of the property and facilitated ingress and egress. A permanent type of drainage tile was used by the contractor under the driveway. The driveway extended along the frontage of the Rowe property for some distance. The Rowes proceeded to open a small restaurant on the property and rented the rear of the property for storage of vehicles.

In 1961, L. P. Berardi acquired the Rowe property and adjoining lands. Thereafter, he conveyed the Rowe property to Midway Service Centers, Inc., one of the original plaintiffs herein. This corporation's stock was held by Berardi and his wife. On three occasions permits were obtained from the Director of Highways to construct an access driveway to traverse the parcel taken by the state from the former Rowe property. After the permits were issued, Midway Service Centers, Inc., constructed a large service station, motel and garage complex on its land. The only means of ingress and egress to plaintiffs' land from Route Seven is by way of the driveway over the former Rowe property. The Turnpike Commission in no way interfered with the construction of the complex by the original plaintiffs or the use of the access driveway by the original plaintiffs' customers.

However, Marvan W. Davis, one of the defendants herein, filed a taxpayer's suit in the Court of Common Pleas of Franklin County for a declaratory judgment, seeking to have the permit issued by the Director of Highways declared illegal and to prohibit the use of the driveway for ingress and egress. Thereafter, this proceeding was commenced.

There is no question that equity will allow reformation of a written instrument for the erroneous omission of a material provision so that the instrument will evince the actual intention of the parties. In M'Louth v. Rathbone, 19 Ohio 21, it is stated at page 24:

'* * * Now it is the peculiar duty of courts of equity to relieve against and correct mistakes in deeds and other instruments of writing, and to give them the same effect they would have had, had there been no mistake. * * *'

See, also, Clayton v. Freet, 10 Ohio St. 544; Barnes v. Christy, 102 Ohio St. 160, 131 N.E. 352; and May v. Ohio Turnpike Comm., 172 Ohio St. 555, 178 N.E.2d 920.

Likewise, in 47 Ohio Jurisprudence 2d 148, Reformation of Instruments, Section 22, it is stated:

'The omission or inclusion of a material stipulation or provision in an instrument, by mutual mistake and contrary to the intention of the parties, or by fraud and therefore contrary to the intention to the party deceived, may be remedied by the reformation of the instrument. Also, a conveyance may be reformed if by mistake words are omitted or inserted by which is passed a greater or smaller estate than was agreed upon.'

Defendants contend that the rights of the Rowes in their contract with the Turnpike Commission were personal to them and not for the benefit of subsequent owners of the parcel. The contract provided by the Turnpike Commission contained the following sentence:

'* * * This contract shall be binding upon seller and seller's heirs, executors, administrators, successors, and assigns, and shall inure to the benefit of the commission, its successors and assigns.'

We can discern no evidence in the record other than that which clearly and convincingly shows that the parties to the contract intended that the access rights called for therein were to be a charge upon the land and thereby create a covenant running with the land.

Moreover, the first paragraph of the syllabus in Johnson v. American Gas Co., 8 Ohio App. 124, provides:

'The use of the word 'assigns' or 'heirs and assigns' is not necessary or essential to create a covenant running with the land, and in determining whether a covenant will run with the land the material inquiries are whether the parties intended to impose such burden on the land and whether it is one that may be imposed consistently with principle and equity.'

We do not believe the doctrine of merger is applicable in the instant case. See Berry v....