Meredith v. Frank

• Decision Date: 08 June 1897
• Citation: 47 N.E. 656,56 Ohio St. 479
• Parties: MEREDITH v. FRANK et al.
• Court: Ohio Supreme Court

47 N.E. 656

56 Ohio St. 479

MEREDITH v. FRANK et al.

Supreme Court of Ohio.

June 8, 1897

Error to circuit court, Licking county.

This was a suit commenced in the court of common pleas by the plaintiffs against the defendant, William Meredith, to enjoin him from closing a way the plaintiffs claimed over his lands. The right was denied by the defendant. Having been tried and determined in the common pleas, the cause was appealed to the circuit court. On the trial this court made a separate finding of the facts and its conclusions of law thereon, and rendered a judgment in favor of the plaintiffs, enjoining the defendant as prayed for, and defendant brings error. Affirmed.

The finding of facts and conclusions of law are as follows:

‘First. That Samuel Meredith, the common source of title, owned a tract of land consisting of about 300 acres in Licking county, Ohio, the north end of which abutted upon the National road, and no part of the same abutted upon any other highway. The following is a plat of the premises:

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‘Second. He bought this land in parcels at different times, but the boundaries of the parcels so bought are not identical with the boundaries of the parcels in the plat. He purchased the south tract, consisting of 100 acres, about sixty-five years ago, and had his homestead on that part, the homestead still being on the 54 acres shown in the plat. This parcel did not abut on any highway, but he had a way out eastward, by sufferance, over the lands of another person to the Linnville road. He used this way out for about fifteen or twenty years, when he bought the 100 acres north of it, shown on the plat as ‘B,’ and after that, in 1852, he bought the lands north of the last parcel, extending to the National road. This made the 300 acres, and no part of which abutted on any highway, except the north end lay along the National road.

‘Third. After the purchase of the last parcel, Samuel Meredith opened a private, lane or way from his residence northerly through all of his lands to the National pike, on which three gates were maintained,-one of them at the National pike, one at about the middle of said lands, and one a short distance north of his house. And part of the time said lane was fenced in on both sides. This lane or way he opened for his own use and that of his family and those who visited his premises. This road was worked and kept in order by him and his servants, for the purposes aforesaid for more than forty years, and was the only way passing over this real estate,-apparently the only way out at the time the conveyance was made to William and John, and ever since then to date.

‘Fourth. Samuel Meredith, in the year 1872, had six children, as follows: Elizabeth Hupp, Mary Stewart, Levi W. Meredith John B. Meredith, William Meredith, and Robert Meredith. Elizabeth Hupp, Allie Lawrence, heir of Mary Stewart, Levi W. Meredith, Robert Meredith, and J. A. Franks, the grantee of John B. Meredith, are the plaintiffs, and William Meredith is defendant.

‘Fifth. That in the year 1872 said Samuel Meredith and his wife, by their deed of general warranty, conveyed to William Meredith, his heirs and assigns, forever, about 135 acres of said lands, shown in the plat by letter ‘C,’ for a full and valuable consideration, to wit, thirty-three hundred and fifty-one dollars, together with the appurtenances, with full covenants of warranty; and the said Samuel Meredith and his wife therein covenanted for themselves, their heirs and assigns, with the said William Meredith, his heirs and assigns, that they were lawfully seised of the premises aforesaid, and that the said premises were free and clear from any and all incumbrances whatsoever, and that they would forever warrant and defend the same against the lawful claims of all persons whomsoever, there being no special reservations of any right of way of any kind over said land, and in fact said right of way was not mentioned in the deed. This deed was received for record January 19, 1889.

‘Sixth. That for the purpose of curing a minor mistake in the description on the 18th day of June, 1874, said Samuel Meredith executed another deed of the same lands to said William with the same covenants as in the first deed, with said way still appurtenant thereto, for the use and benefit of the other lands of said Samuel and John Meredith and his son, and which deed was left for record August 30, 1879.

‘Seventh. That in the year 1874 (June 16th) the said Samuel Meredith and wife, for a consideration of forty-five hundred dollars, sold and conveyed to his son, John B. Meredith with full covenants of warranty, another portion of said three hundred acre tract, known as parcel ‘B,’ on the plat, together with the appurtenances, and the said Samuel and wife therein covenanted with the said John B. Meredith, for themselves and their assigns, with the said John B. Meredith, his heirs and assigns, that they were lawfully seised of the premises aforesaid, and that said premises were free and clear from any and all incumbrances whatsoever, and that they would forever warrant and defend the same against the lawful claims of all persons whomsoever, and which deed was recorded April 7, 1876, more than three years prior to the filing of any deed to William for record, there being no reservations in said deed concerning said right of way, but the said way was appurtenant thereto, and used as the only way out and into said premises.

‘Eighth. That immediately upon the execution of the deed to said William he took possession of the lands so conveyed to him, and after the execution of the deed to said John B. Meredith he took possession of the lands so conveyed to him.

‘Ninth. William Meredith permitted without objection said Samuel and wife to use said land over his lands as long as they lived, and during their lives said lane was worked and kept in repair as it was before.

‘Tenth. Samuel Meredith died, and his widow occupied the homestead after his death, on the 54 acres, until her own death, in the year 1888; and within a year after her death, said William refused to permit it longer to be used over his lands.

‘Eleventh. But the said Franks by grant now holds the north half of the John B. Meredith land, and the said Robert Meredith by grant holds the south half of the John B. Meredith land; they having the same title that John B. Meredith had.

‘Twelfth. At the time of the execution of the deed to William, he had full knowledge that the lane or way was laid out over the land he was purchasing as a way, and its existence was apparent.

‘Thirteenth. William never consented that said lane should be used or worked on his lands after his mother's death.

‘Fourteenth. And as matter of law the court finds that the said deed to William, by reason of the fact that Samuel Meredith had no other way out, that Samuel did not covenant against the incumbrance of said road, and the law implied such a reservation, and that said deed did not convey a title to said William free of the incumbrance of said road or way and that, notwithstanding said deed to William, said Samuel retained said right of way over said lands of William as a matter of right, for the benefit of all the lands he retained; and when he conveyed the tract ‘B’ to John B. Meredith that John B. Meredith and his grantee took by said grant the said way over said land of William as appurtenances thereto; that said way over the lands of William is appurtenant to the lands of J. A. Franks and Robert Meredith, who are the grantees of John B. Meredith...