Hughes v. City of Cincinnati

• Decision Date: 15 January 1964
• Docket Number: No. 37783,37783
• Citation: 195 N.E.2d 552,175 Ohio St. 381
• Parties: , 25 O.O.2d 378 HUGHES, Appellant, v. CITY OF CINCINNATI, Appellee.
• Court: Ohio Supreme Court

Page 381

175 Ohio St. 381

195 N.E.2d 552, 25 O.O.2d 378

HUGHES, Appellant, v. CITY OF CINCINNATI, Appellee.

No. 37783.

Supreme Court of Ohio.

Jan. 15, 1964.

Syllabus by the Court

1. Where a deed of land grants an easement of ingress and egress over a strip of land retained by the grantor along the border between the land conveyed and the land retained by the grantor and where such deed provides also that, as a further consideration of the conveyance, the 'grantee, her heirs and assigns agrees that whenever the premises over which said easement is granted are improved for street purposes said grantee, her heirs and assigns agrees to pay her proportionate share of the expenses of said improvement, based on the number of feet fronting on said proposed street,' such deed creates a covenant running with the land of the grantor against the land of the grantee. (Easter v. Little Miami Rd. Co., 14 Ohio St. 48, Huston v. Cincinnati & Zanesville Rd. Co., 21 Ohio St. 235, and Hickey v. Lake Shore & M. S. Ry. Co., 51 Ohio St. 40, 36 N.E. 672, 23 L.R.A. 396, followed.)

2. Such a covenant creates an interest in the land of the grantee. (Easter v. Little Miami Rd. Co., 14 Ohio St. 48, Huston v. Cincinnati & Zanesville Rd. Co., 21 Ohio St., 235, and Hickey v. Lake Shore & M. S. Ry. Co., 51 Ohio St. 40, 36 N.E. 672, 23 L.R.A. 396, followed.)

3. Such a covenant is one that can be valid against the public. (Norfolk & Western Ry. Co. v. Gale, 119 Ohio St. 110, 162 N.E. 385, Doan v. Cleveland Short Line Ry. Co., 92 Ohio St. 461, 112 N.E. 505 and Ward v. Cleveland Ry. Co., 92 Ohio St. 471, 112 N.E. 507, approved but distinguished.)

4. A person, who has an interest in property being appropriated for public use or who is the owner of property having such an interest, is a necessary party to a proceeding appropriating such property for public use; and, if such person is not made a party to such appropriation proceeding, the interest of such person or of his land in the property being appropriated will not be affected by such appropriation proceeding. (Ohio Valley Advertising Corp. v. Linzell, Dir., 168 Ohio St. 259, 153 N.E.2d 773, distinguished.)

This action originated in the Court of Common Pleas of Hamilton County with James A. Hughes as plaintiff and the city of Cincinnati as defendant. Plaintiff seeks to recover a money judgment against the defendant for a part of the cost of a public street which he constructed. A demurrer to the petition was sustained by the trial court and, plaintiff electing not to plead further, judgment was rendered for defendant. Such judgment was affirmed by the Court of Appeals on an appeal on questions of law, and the cause is now in this court for disposition on an appeal as of right and on the allowance of the motion to require the Court of Appeals to certify the record. There is no written opinion by either of the lower courts.

In its material parts, the petition alleges that defendant is the owner of a described tract of land fronting on Winton Road in the city of Cincinnati, which it acquired in a condemnation proceeding against one Dorothy Yorgin, the owner thereof; and that Dorothy Yorgin acquired such real estate in 1943 by deed from Albert J. Kiley and wife, in which deed, following the description of the real property conveyed, the following clause was inserted:

'Also an easement for ingress and egress over a strip of ground 50 feet in width adjoining these premises on the south and extending back between parallel lines from Winton Road 180.15 feet. It being understood and agreed that as a further consideration of this conveyance, grantee, her heirs and assigns agrees that whenever the premises over which said easement is granted are improved for street purposes said grantee, her heirs and assigns agrees to pay her proportionate share of the expenses of said improvement, based on the number of feet fronting on said proposed street.'

Continuing, the petition states that in 1955 the Kileys conveyed by deed to plaintiff the property over which the described easement for ingress and egress had been granted to Dorothy Yorgin, which deed contains the following language:

'Subject to easements for street purposes as set forth * * * [in the deed from the Kileys to Yorgin] and together with all rights which the grantor may have to require an apportionment of the costs of improving said street against the owners of adjoining premises as set forth in said deeds.'

The petition asserts further that Albert J. Kiley was not made a party to the appropriation proceeding against Yorgin; that plaintiff has improved the property over which such easement for ingress and egress was granted to Dorothy Yorgin by constructing thereon a street, which street has been accepted by defendant by ordinance and is known as Oakfield Avenue; that the property conveyed to Dorothy Yorgin and now owned by defendant has a frontage of 150 feet along the north line of Oakfield Avenue; that the total cost of constructing Oakfield Avenue was $39,043.71; that the proportionate share chargeable to the property now owned by defendant is $3,580.50; that in August of 1959 plaintiff made a formal written demand for the payment of the $3,580.50 on the defendant addressed to its city manager; and that the payment of such amount was refused.

The prayer of the petition is for judgment against the defendant in the amount of $3,580.50, with interest at 6% from August 10, 1959, together with the costs of the action.

Manogue & Manogue, Cincinnati, for appellant.

James W. Farrell, Jr., City Sol., William A. McClain and Henry P. Shaw, Cincinnati, for appellee.

TAFT, Chief Justice.

All parties apparently concede that, if plaintiff's predecessor in title, Kiley, had an interest in the property appropriated by the defendant city from Yorgin, ^* then (1) Kiley was a necessary party to the appropriation proceeding, (2) since Kiley was not made a party, any interest of Kiley's land in the appropriated land was not taken from him or his land by that appropriation proceeding (see Callen v. Columbus Edison Electric Light Co. [1902], 66 Ohio St. 166, 64 N.E. 141, 58 L.R.A. 782; State ex rel. McKay, Exr., v. Kauer, Dir. [1951], 156 Ohio St. 347, 102 N.E.2d 703; and State ex rel. Wilson v. Preston, Dir. [1962], 173 Ohio St. 203, 181 N.E.2d 31), and (3) defendant's demurrer should have been overruled.

The question to be determined therefore is whether plaintiff's predecessor in title, Kiley, had an interest in the property appropriated by defendant city.

This depends upon whether (1) the covenant relied upon by plaintiff is one running with the land, (2) a covenant running with the land creates an interest in the land upon which it imposes a burden, and (3) such covenant is one that can be valid as against the public.

In the instant case, the deed from Kiley (plaintiff's grantor) to Yorgin (against whom the defendant city brought its appropriation action) provided for a specified easement for ingress and egress over a 50-foot strip of what is now plaintiff's land, and that 'as a futher consideration of this conveyance, grantee, her heirs and assigns, agrees that whenever the premises over which said easement is granted [now plaintiff's] are improved for street purposes said grantee, her heirs and assigns agrees to pay her proportionate share of the expenses of said improvement, based on the number of feet fronting on said proposed street.'

That this created a covenant running with plaintiff's land and against defendant city's land would appear to be clear from our previous decisions.

For example, in Easter v. Little Miami Rd. Co. (1862), 14 Ohio St. 48, a grantor of land convenanted 'for himself, his heirs and assigns to erect and maintain a fence on' the boundaries between land retained and the land conveyed. This was held to be a covenant running with the land and binding on those who claimed rights in the land retained by the covenantor. In the opinion by Gholson, J., it is stated 14 Ohio St. at page 51:

'The intention is clear, that the covenant should run with the land, and bind heirs and assigns; * * * assigns being expressly named' (as in the instant case).

Also in Huston v. Cincinnati & Zanesville Rd. Co. (1871), 21 Ohio St. 235, a railroad company in appropriating land 'agreed to erect and forever keep up the fences and crossings in a specified manner.' In the syllabus, it is stated that this 'is an agreement which runs with the land, so as to be binding as between the assignees or grantees of both the parties thereto,' and that the 'vendee of the original owner' could recover thereon 'against the vendee of the' railroad 'for failure to build said fences and crossings.'

In the opinion by Welch, C. J., it is stated 21 Ohio St. at page 246:

'Does the contract run with the land? Undoubtedly it does. It was an agreement to erect structures upon the land appropriated, and to keep them up so long as that was enjoyed. It was in the nature of a charge upon that land, subjecting it to a servitude in favor of the estate from which it was to be taken. It went to lessen the value of the one and enhance the value of the other. The nature of the agreement, its qualification of the estate granted, its connection with the proceeding by which the title was acquired, and the fact that the agreement was to be of perpetual obligation, utterly forbid the idea that it was intended to be a mere personal contract.'

Likewise, in the instant case, the fact that not only the grantee but 'her heirs and assigns' agreed forbids the idea that the agreement to pay on account of the street was to be a mere personal contract of the grantee.

In Hickey v. Lake Shore & M. S. Ry. Co. (1894), 51 Ohio St. 40, 36 N.E. 672, 46 Am.St.Rep. 545, 23 L.R.A. 396, this court held that, since a covenant by a 'grantee, his heirs and assigns' to 'make and maintain good and sufficient fences' on boundaries between the land conveyed and land retained by the grantor was...