Ricelli v. Atkinson
| Decision Date | 18 April 1955 |
| Citation | 99 Ohio App. 175,58 O.O. 305,132 N.E.2d 123 |
| Parties | , 58 O.O. 305 RICELLI et al., Appellants, v. ATKINSON, Appellee. |
| Court | Ohio Court of Appeals |
Syllabus by the Court.
1. Whether the language employed in a deed be the reservation of a right of way or the exception of a right of way from the grant, the grantor retains only an easement over the premises conveyed.
2. A reservation of an easement is not operative in favor of land not described in the conveyance.
3. One having an easement by grant may assign that easement with the dominant estate, and the easement goes to every portion of the dominant estate assigned, provided the burden upon the servient estate is not thereby unduly enhanced.
4. The rule that an easement appurtenant to land is appurtenant to every part into which the land is divided is limited by the grant as actually intended, the nature of the easement reserved, and the condition of the estate to which it is attached, and where the dominant estate has been divided into so many small parts that it would be unreasonable, each minute part of the dominant tenement will not have a right to an easement appurtenant thereto.
5. The rule that the owner of the dominant estate can not transfer to the owners of other property any right in the servient estate may not be circumvented by conveying a small portion of the dominant estate to an adjoining landowner.
John E. Savord, Sandusky, for appellants.
George A. Beis, Sandusky, for appellee.
*
This is an appeal on questions of law by plaintiffs from a finding and judgment of the Common Pleas Court for the defendant. The petition seeks a declaratory judgment directing the defendant to permit plaintiffs to use a driveway over defendant's property. A plat of the premises involved appears on page 125, and references herein to numbers and letters refer to the several parcels shown on such plat.
In 1902, the executors of Butts conveyed the south one-half of the west two-thirds of lot numbered 21 (parcel 1) to one Bookmyer 'reserving therefrom a strip of land twelve (12) feet in width to be taken off the east end of the premises hereby conveyed [parcel A] to be used as a driveway or alley, in common with the occupants of the north half of the west two-thirds part of said lot number twenty-one' (parcel 2). On the same day the executors also conveyed to William F. Seitz, Jr., the north onehalf of the west two-thirds part of lot 21 (parcel 2) and also a right of way over parcel A 'to be used as a driveway or alley in common with the occupants' of parcel 1. In 1912, the executors conveyed to William F. Seitz, Jr., the west one-half of the east one-third of lot 21 (parcel 3) without reference to any driveway. In 1915, Seitz acquired title to the south thirty-three feet of lot 19 (parcel 4). Seitz, therefore, was the owner of record of parcel 2 (with easement over parcel A), parcel 3 and parcel 4.
On October 26, 1925, Seitz conveyed to a predecessor in title of plaintiffs parcel 4 and the north eleven feet of the east twelve feet of parcel 2 (parcel D), together with a right-of-way for driveway purposes over the east twelve feet of the west two-thirds of lot 21 (which includes parcels A, B, C and D) to be used in common with the owners of the west two-thirds of lot 21 (parcels 1 and 2), and of the west one-half of the east one-third of lot 21 (parcel 3) and the north one-half of said driveway (which included parcels B, C and D) to be used in common with the owners of parcel 2 and of parcel 3. This deed provided also that parcel D should be subject to a right-of-way for driveway purposes for the use and benefit of the owners of parcel 2 and parcel 3, and that none of the persons entitled to use such driveway should obstruct the same in any manner.
On October 27, 1945, Seitz conveyed to the defendant parcel 3, and parcel B, together with a right-of-way for driveway purposes over the east 12 feet of the west two-thirds of lot 21 (which included parcels A, B, C and D), the south half (parcel A) to be used in common with the owners of parcel 4, and parcels 1 and 2, and the north one-half (parcels B, C and D) to be used in common with the owners of parcel 4 and parcel 2. The deed provided further that parcel B should be subject to a right-of-way for the owners of parcels 4 and 2.
In 1929, the defendant acquired title to parcel A from the then owners of parcel 1.
In 1933, Seitz conveyed to Larry D. and Buena K. Snead parcel 2, excepting therefrom parcels D and B (which he had previously conveyed to the predecessor in title of plaintiff and to defendant Atkinson), together with a right-of-way for driveway purposes over the twelve-foot strip of parcels 1 and 2, the south half (parcel A) to be used in common with the owners of parcels 4, 1 and 3, and the north half (parcels B, C and D) to be used in common with the owners of parcels 4 and 3. The deed provided further that parcel D therein conveyed to the grantees should be subject to a right-of-way for the use of the owners of parcels 4 and 3.
In 1942, The Savings Building & Loan Company, which had acquired the premises set forth in the preceding paragraph (parcel 2), conveyed parcel C to the defendant, and in 1944, conveyed to Kramer parcel 2, excepting therefrom the easterly twelve feet (parcels B, C and D), and incorporated in such deed an agreement that the use of a right-of-way over the easterly twelve feet of parcels 1 and 2 be excepted and excluded from such conveyance and reciting that no right, title or interest in the twelve-foot strip (parcels A, B, C and D) was conveyed thereby.
As a result of the foregoing conveyance, the plaintiff is the owner of record of parcels 4 and D and the defendant is the owner of parcels 3, A, B and C.
The first question to be determined is the effect of the reservation of a driveway in the deed of parcel 1 to Bookmyer. Although a distinction is to be drawn between an exception and a reservation, the words are often employed indiscriminately. Manley v. Carl, 20 Ohio Cir.Ct.R. 161, 11 Ohio Cir.Dec. 1. But whether the language creates a reservation or an exception depends upon the intention of the parties as evinced by a construction of the whole instrument in the light of the circumstances of the case rather than upon the particular words used. See Gill v. Fletcher, 74 Ohio St. 295, 78 N.E. 433, 113 Am.St.Rep. 962, holding the reservation of one-half of the mineral rights created an exception. In Akron Cold Spring Co. v. Unknown Heirs of Ely, 18 Ohio App. 74, the court held a reservation coupled with retention of ownership to be an exception. But with respect to the retention of a right-of-way or easement, whether the language employed be the reservation of a right-of-way over the property conveyed or the exception of a right-of-way from the grant, the grantor retains only an easement over the premises conveyed.
A reservation or exception of the use of an alley has been held to be a reservation of an easement only. A provision in a deed excepting and reserving a roadway for the use and benefit of the grantor has been held to reserve an easement merely in the strip of land described as such, and a reservation of a portion of the land described in a deed to be used as an alley operates as a conveyance of the fee of the portion reserved, subject only to the easement declared. 2 Thompson on Real Property 9, Section 460. Cf. Gibbons v. Ebding, 70 Ohio St. 298, 71 N.E. 720, 101 Am.St.Rep. 900. See, also, 1 Thompson on Real Property, 593, Section 367. Therefore, under the deed conveying parcel 1, the grantee obtained the fee in all the south one-half of the west two-thirds of lot numbered 21 subject to the easement over the east twelve (12) feet to be used 'in common with the ocupants of the north half of the west two-thirds part of said lot.' Since the executors of Butts did not retain the fee to the south half of the 12-foot strip, they could not thereafter convey any interest in...
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