Kincaid v. Yount

• Decision Date: 13 April 1983
• Citation: 459 N.E.2d 235,9 Ohio App.3d 145,9 OBR 211
• Parties: , 9 O.B.R. 211 KINCAID, Appellee, v. YOUNT, Appellant.
• Court: Ohio Court of Appeals

Page 145

9 Ohio App.3d 145

459 N.E.2d 235, 9 O.B.R. 211

KINCAID, Appellee, v. YOUNT, Appellant.

Court of Appeals of Ohio, First District, Hamilton County.

April 13, 1983.

Syllabus by the Court

An easement that arose by implication of law subsequent to the registration of title under R.C. Chapters 5309 and 5310 (Torrens system) will not be recognized and enforced against the alleged servient estate if the implied easement is not noted or memorialized on the register of titles.

Jerry F. Venn, Cincinnati, for appellee.

Terry M. Tranter, Cincinnati, for appellant.

BLACK, Judge.

The single question raised in this appeal is whether an easement that arose by implication of law subsequent to the registration of title to the two parcels of real estate under R.C. Chapters 5309 and 5310 can be recognized and enforced against the alleged servient estate if the implied easement is not noted or memorialized on the register of titles. We answer the question in the negative.

Plaintiff, Ellery C. Kincaid, claims to have an implied easement across defendant John H. Yount's parcel under the circumstances disclosed by the record. Both parcels of land were part of a larger tract that had been registered on August 23, 1918, under R.C. Chapters 5309 and 5310 (also known as the land registration law, or Torrens system). The tract was served by a private easement or right of way known as Elston Road for access from and to Beechmont Avenue. In 1928, Griffith Lang purchased a portion of this tract, fronting one hundred and fifty feet on the east side of Elston Road. He built his residence on the middle part of this parcel and a driveway that converged with Elston Road along the south part of his frontage. The topography is such that the residence was at a higher elevation than Elston Road. There was adequate space to construct a driveway that would meet Elston Road directly west of the residence, but the ground sloped very steeply. Griffith Lang built the driveway angled in a southerly direction so as to traverse a gentler slope. This driveway has been used for ingress and egress by the occupants of Griffith Lang's residence from 1928 to date. No other means was ever used or even considered.

In 1935, Griffith Lang conveyed the south fifty feet of his parcel to his son John, including the lower part of the driveway and its juncture with Elston Road, but he failed to reserve an easement across John's parcel for ingress and egress. John built a residence on his parcel and used the driveway in common with his father, both of whom shared in maintaining it.

In 1964, plaintiff acquired the north parcel from Griffith Lang, who is his father-in-law. In 1978, defendant acquired the south parcel, not directly but by mesne conveyance, from John Lang. The relative locations of the two parcels, the common driveway and Elston Road are shown on the schematic diagram (not to scale) attached as Appendix A to this opinion.

On May 10, 1981, defendant parked a Chevrolet van across the driveway at a point within his parcel, making it physically impossible for plaintiff to use it for ingress and egress. Until that day, the driveway had been used without hindrance for ingress and egress by the owners and occupants of plaintiff's parcel. Maintenance had been a cooperative matter between the occupants of the two parcels until after defendant's acquisition of the south parcel in 1978.

Plaintiff brought suit for, and was granted by the trial court, both a permanent injunction against interference with or obstruction of the driveway, and an order to the county recorder to enter an appropriate memorial of the driveway easement on the register of titles (a term which we use to include both the original and the duplicate certificates of title). Defendant's single assignment of error is that this judgment was erroneous. He asserts that an implied easement cannot be acquired across registered land in the absence of any notation on the register of titles. We agree.

Implied easements have been recognized since 1851. Morgan v. Mason (1851), 20 Ohio 401. The evidence in the instant case is sufficient to prove that an implied easement arose across defendant's parcel under the standards laid down in the first paragraph of the syllabus of Ciski v. Wentworth (1930), 122 Ohio St. 487, 172 N.E. 276. ¹ The "unity of ownership" was severed by Griffith Lang in 1935. Before that, the driveway had been so continuously and obviously used as to show it was intended to be permanent. The driveway easement is reasonably necessary to the enjoyment of the north parcel. Finally, the servitude was continuous, not temporary or occasional only.

The question, however, is whether this implied easement, never having been noted on the register of titles, can be recognized or enforced under the land registration law. The question is of first impression in Ohio. ² The answer requires our interpretation of R.C. Chapters 5309 and 5310, because the effect of land registration is strictly a statutory matter.

The purpose of the Torrens system is to create an absolute presumption that the register of titles speaks the last word about the title to land, eliminating all "secret liens and hidden equities," and making the language in the register of titles absolute proof of indefeasible title excepting only those encumbrances and claims noted therein. Curry v. Lybarger (1937), 133 Ohio St. 55, 11 N.E.2d 873 . This purpose is evidenced by a series of provisions in the Act. R.C. 5309.06 states that all lesser estates, vested or contingent, private easements and other interests, mortgages, liens and charges shall be noted on the original and duplicate certificates of title when the land is registered, except only as provided in R.C. 5309.28. Transferees of registered land are not charged with notice, actual or constructive, of any unregistered claim or interest; knowledge thereof shall not be imputed to the transferee as fraud; and no unregistered claim or interest shall prevail against a registered title taken bona fide for valuable consideration. R.C. 5309.34. The death of the registered owner requires special court procedures to change the register of titles, apart from and in addition to the administration of the estate in the probate court. R.C. 5309.45 and 5309.46. Whenever any encumbrancer intends to charge registered land, he must do it by "an instrument of encumbrance" or by affidavit, duly registered. R.C. 5309.47 and 5309.72. No title to registered land in derogation of that of the registered owner shall be acquired by prescription or adverse possession. R.C. 5309.89. Every transferee holds title subject only to the interests, estates, mortgages, encumbrances and liens which have been entered upon the registered certificate of title prior to the transfer, unless it is expressly otherwise provided in the transfer instrument. R.C. 5310.02.

The courts have held that these provisions bind the state and all political subdivisions in the state. Kohrman v. Rausch (App.1956), 75 Ohio Law Abst. 193, 138 N.E.2d 22; Cohn v. Celebrezze (C.P.1958), 9 O.O.2d 23, 159 N.E.2d 484; Lake Front-East 55th St. Corp. v. Cleveland (C.P.1939), 21 O.O. 1, affirmed in part and remanded on other grounds (App.1941), 36 N.E.2d 196, appeal dismissed (1941), 139 Ohio St. 138, 38 N.E.2d 410 . The land registration law is an exception to the mechanic's lien law, and such a lien is effective only from the day it is noted on the register of deeds. Gough Lumber Co. v. Crawford (1931), 124 Ohio St. 46, 176 N.E. 677; Becker v. Wilson (1929), 30 Ohio App. 340, 165 N.E. 108; Mizner v. Paul (1918), 30 Ohio C.D. 484, 29 Ohio C.C. (N.S.) 33. A lease of more than three years that is not noted on the certificate is ineffective against a bona fide purchaser for value. Corvington v. Heppert (1952), 156 Ohio St. 411, 103 N.E.2d 558 .

Plaintiff contends that his rights arise from exceptions to the requirement for notation or memorialization of all encumbrances as set forth in R.C. 5309.28:

"Every applicant in a land registration case who without fraud on his part receives a certificate of title in pursuance of a decree of registration, and every subsequent purchaser of registered land, who takes a certificate of title for value and in good faith, shall hold such land free from all estates, encumbrances, and rights except those noted on...