Manos v. Day Cleaners & Dyers, Inc.

• Decision Date: 09 April 1952
• Citation: 91 Ohio App. 361,108 N.E.2d 347
• Parties: , 48 O.O. 455 MANOS v. DAY CLEANERS & DYERS, Inc.
• Court: Ohio Court of Appeals

Page 361

91 Ohio App. 361

108 N.E.2d 347, 48 O.O. 455

MANOS v. DAY CLEANERS & DYERS, Inc.

Court of Appeals of Ohio, Summit County.

April 9, 1952.

Syllabus by the Court.

1. When one uses a driveway over another's land, continuously, without leave, without objection by the owner, with such owner's knowledge and acquiescence, and under a claim of right, while the owner of the servient tenement is under no legal disability to assert his rights or to make a grant, it is adverse, and an uninterrupted use and adverse enjoyment for twenty-one years creates an easement in the land. The owner of the servient estate, to defeat the title in the other, has the burden of proving that the use of the land was under some license, indulgence, neighborly accommodation or special contract, inconsistent with a claim of right by the other party.

2. A use of a driveway on another's land is not adverse, in a suit to acquire an easement by prescription, if the use is accompanied with an express or implied recognition by the user of the landowner's right to put an end to the use.

3. While acts or declarations of the adverse claimant of a driveway easement, admitting the right of a titleholder, as by offering to enter into a lease, would tend to negative the existence of a lost grant and would militate against the acquisition of such easement by prescription, no act or declaration by an adverse claimant, who has an exclusive physical occupancy by a building and whose original seizure was a disseizin, which does not estop such claimant or his successor in possession from pleading the statute of limitations nor suspend the right of the holder of the title to prosecute an action to recover possession, will arrest the running of the statute and the acquisition of title to the fee.

4. An oral agreement between the owners of the dominant and servient estates for the payment of rent for land exclusively occupied by a building, prior to the termination of the 21-year period of limitations, is not alone sufficient to estop the claimant to plead the statute of limitations in a claim of adverse possession of real property.

5. While delivery of possession will take an oral lease of lands out of the statute of frauds, such delivery must be referable to the contract of lease; and a possession which is referable to a source other than the oral lease, even though accompanied by a payment of the consideration, does not take the contract of lease out of the statute.

Englebeck & Kaufmann, Akron, for appellant.

Ralph Burroughs and Samuel Friedman, Akron, for appellee.

DOYLE, Judge.

An appeal on questions of law and fact from a judgment of the Court of Common Pleas of Summit County places this litigation for trial de novo in this court.

As stated by the trial judge in the Court of Common Pleas:

'The plaintiff has two causes of action.

'The first cause of action is to prevent the defendant from building an edifice that would occupy the defendant's property from property line to property line. It is claimed that the plaintiff has an easement over the erst-while driveway that ran along the north side of the defendant's land and within two feet of the building on the plaintiff's property. It is claimed that this driveway was used by the owner and occupants of the plaintiff's property for ingress and egress to the plaintiff's property for a period of more than twenty-one years.

'The second cause of action is an action to have removed two inches of a brick building that admittedly projects into plaintiff's property on the west side thereof a distance of two inches.

'The defendant in the cross-petition seeks to have the court find that the two-inch western end of the plaintiff's property has been occupied by the defendant's building for more than twenty-one years, and to quiet the title to the two-inch strip of land and declare the ownership thereof to be in the defendant.'

The answer of the appellee to the appellant's action in ejectment pleads the 21-year limitation for the bringing of the action.

1. It has long been the rule in this state that '1. Where one uses a way over the land of another without permission as a way incident to his own land and continues to do so with the knowledge of the owner, such use is, of itself adverse, and evidence of a claim of right. And where the owner of the servient estate claims that the use was permissive, he has the burthen of showing it.' Also, '2. When one who is the owner of a tract of land uses a way over the land of another for the convenience of egress and regress to his own land, without let or hindrance and without obstruction for the period of twenty-one years, he thereby, in the absence of anything to the contrary, acquires a right by prescription to its use as an incident to his land; and the right will pass by a conveyance or descent of the land.' Pavey v. Vance, 56 Ohio St. 162, 46 N.E. 898.

An essential element in the establishment of an easement by prescription under the foregoing general statement is proof that the use of the land was adverse or hostile to the real owner and under a claim of right. Without such proof, one cannot be said to possess or use as an owner. While it is difficult to put into words a definition of adverse user, it is probably safe to say that a use is not adverse if the use of another's land is accompanied with an express or implied recognition of the landowner's right to put an end to the use, or, as stated in 2 Tiffany on Real Property (2 Ed.), Section 519 (at p. 2042), 'a user is adverse if not accompanied by any recognition, in express terms or by implication, of a right in the landowner to stop such user now or at some time in the future.'

This court in Pierce v. Cherry Valley Farms, Inc., 76 Ohio App. 58, 63 N.E.2d 46, 48 (affirmed, 146 Ohio St. 400, 66 N.E.2d 639), set forth the elements necessary for the establishment of an easement by prescription. We then said that 'it must be adverse, under claim of right, continuous and uninterrupted, * * * with the knowledge and acquiescence of the owner of the servient tenement, and must continue for the full prescriptive period, while the owner of the servient tenement is under no legal disability to assert his rights, or to make a grant.' In the instant case, we adhere to our determination of the necessary elements therein set forth.

We adopt the theory of the modern practice that an easement may be acquired based upon the presumption of a grant, made and lost in modern times which a court may find if there is evidence of enjoyment for a sufficient length of time under the circumstances heretofore set forth. See: Pavey v. Vance, supra.

Proceeding now to the application of the law to the facts before us. Assuming that the facts justify the conclusion that there was a continuous use for 21 years of the driveway in question (which conclusion may be seriously doubted), such conclusion alone is not sufficient to establish an easement where the use is in conjunction with the continuous use by the landowner who opened and used the driveway for his own purposes. As heretofore stated, a prescriptive title must be acquired adversely; and, as the evidence in this case and the reasonable inferences to be drawn therefrom indicate a permissive use or a neighborly accommodation, such fact is the antithesis of an adverse or hostile use,...