Goldberger v. Bexley Properties, 82-594

• Decision Date: 25 May 1983
• Docket Number: No. 82-594,82-594
• Citation: 5 Ohio St.3d 82,448 N.E.2d 1380
• Parties: , 5 O.B.R. 135 GOLDBERGER et al., Appellees, v. BEXLEY PROPERTIES, Appellant.
• Court: Ohio Supreme Court

Page 82

5 Ohio St.3d 82

448 N.E.2d 1380, 5 O.B.R. 135

GOLDBERGER et al., Appellees, v. BEXLEY PROPERTIES, Appellant.

No. 82-594.

Supreme Court of Ohio.

May 25, 1983.

Folkerth, Webster, Maurer & O'Brien and Glenn B. Redick, Columbus, for appellees.

Schottenstein, Zox & Dunn Co., L.P.A., and Gary D. Greenwald, Columbus, for appellant.

PER CURIAM.

The defendant-appellant, Bexley Properties, advances several arguments as to why the injunction imposed should be removed.

First, appellant states that since the Goldbergers' injury is nominal, questionable and doubtful, an injunction would work a substantial and disproportionate impact upon the public interest. In this regard, appellant submits that this court should adopt a "comparative injury or balance of convenience rule," White v. Long (1967), 12 Ohio App.2d 136, 231 N.E.2d 337 , whereby the relative convenience and inconvenience, along with the comparative injuries to the parties are weighed against the public interest, in determining whether an injunction should be issued. Furthermore, appellant argues that this rule should be extended to all cases involving private property rights affecting a public interest.

Without addressing the relative merit and validity of such a rule, we believe that the application of this rule in the case sub judice would be tenuous, as well as inappropriate. In addition, even assuming arguendo that this rule should be adopted, a sweeping extension of the rule to include all cases concerning private property rights affecting a public interest would be wholly unwarranted, and would compel us to rewrite centuries of basic property law concepts which we are not prepared to do.

Along the same line of reasoning as proposed in its first argument, appellant contends that in cases involving private property rights affecting the public interest, a plaintiff's remedy should be at law and not equity.

We find this argument to be unmeritorious. This court has consistently held that when a right of way, arising out of an agreement between adjacent landowners is interfered with, injunctive relief is the proper mode of enforcing the agreement. Shields v. Titus (1889), 46 Ohio St. 528, 22 N.E. 717.

In its next argument, appellant submits that the court of appeals erred in not rendering judgment in its favor, because the Goldbergers had not proven that the parking within the subject easement had over the years, been permissive. Appellant relies on Pavey v. Vance (1897), 56 Ohio St. 162, 46 N.E. 898, to support the proposition that the party against whom the adverse possession or use is asserted must bear the burden of proving that the use was permissive.

With respect to this contention, appellant's reliance on Pavey is misplaced. The burden of which appellant speaks is initially upon itself, to prove that it acquired a prescriptive right over a portion of the easement. This burden must first be satisfied before the Goldbergers would be required to prove that the parking of cars within the easement was permissive. Since both lower courts have held that the use of part of the easement was not legally adverse to the interests of the Goldbergers, the burden of proving permissive use never materialized. Appellant did not gain a prescriptive right over any portion of the subject easement, because it did not meet all the prerequisites of acquiring a prescriptive right by way of adverse use on the easement. Pennsylvania Rd. Co. v. Donovan (1924), 111 Ohio St. 341, 145 N.E. 479. By virtue of the fact that appellant and its predecessors in interest did not use any part of the easement in a legally adverse manner, the only logical conclusion that can be made is that the...