Shields v. Titus

• Decision Date: 29 October 1889
• Citation: 22 N.E. 717,46 Ohio St. 528
• Parties: SHIELDS v. TITUS.
• Court: Ohio Supreme Court

22 N.E. 717

46 Ohio St. 528

SHIELDS v. TITUS.

Supreme Court of Ohio.

October 29, 1889

Error to circuit court, Lorain county.

The plaintiff in error commenced his action against the defendant in error and Adam Seymour in the court of common pleas of Lorain county, by filing therein the following petition ‘ Plaintiff says that Alexis Miller, now deceased, was the owner of a large tract of land situated in sec. Nos. 5 and 6 in Avon township, Lorain Co., Ohio. That sec. No. 6 is bounded on the north by Lake Erie, and that along near the north side of said sec. No. 6 is and has been a public highway for over 40 years, known as the ‘ Lake Shore Road.’ During the life-time of said Miller he sold several pieces of land in this said tract, which, by a series of deeds, are now held, one piece by one Ann Robbinson another by one Nick Pitts, another by this plaintiff, and two other pieces by the defendant, Daniel Titus. That when said pieces of land were first severally sold by said Miller there was and still is no public highway by which ingress and egress can be had to or from said land. That, for the purpose of rendering said lands accessible by teams and vehicles said Miller opened and constructed a lane or way to each piece of land so sold, to-wit, a lane or way commencing on said Lake Shore road and running south to the north line of section No. 5. That said lane or right of way was opened and laid out for the benefit of said several grantees, their heirs, administrators, and assigns, and all persons wishing to travel the same to reach said land. That said Miller also at the time he established said way, was the owner of about 10 acres of land situated in said section 5, and at the south end of said land, being one one of the pieces now owned by said Daniel Titus, and that said lane furnished the only means of getting to and from said ten acres. Plaintiff says said right of way or lane has been used, traveled over, and occupied for the purpose of reaching said several pieces of land for the past twenty-five years, with the assent acquiescence, and knowledge and agreement of said Miller and his several grantees and their assigns, to whom he has conveyed the premises over which said way runs. That prior to the year 1875 one Joseph Fretter, by purchase, became the owner in fee of said ten acres of land in sec. No. 5 and of the land now owned by said Daniel Titus in sec. No. 6. That in that year 1875 the said Joseph Fretter, Ann Robbinson, Andrew Seifert, and this plaintiff, being at that time the owners of all the land over which said lane ran, for the purpose of settling definitely the width and exact location of said way, mutually agreed between and among each other that said way should be thirty feet wide its entire length. That thereupon, by virtue of said agreement, each of said parties built fences along the sides of said way, to-wit: Said Fretter built a fence 30 feet west of his said east line, and Robbinson built a fence 30 feet west of the east line of about ten acres of land, and said plaintiff and said Seifert each built a fence fifteen feet east of the center of said lane across their respective farms; and said Robbinson also built fences 5 feet west of said center of said lane across the remaining part of her said farm, thus making a lane 30 feet wide, extending from said Lake Shore road south to the south line of sec. 6. That large ditches were constructed, bridges built, and said road was otherwise worked and improved. That afterwards said Joseph Fretter sold and by deed conveyed all his interest in any land in said sections Nos. 6 and 5 to the defendant Daniel Titus. Plaintiff says the land so sold to defendant Titus, in section No. 6, is bounded as follows: On the north by the Lake Shore road, on the east by land owned by Thomas Shields, formerly owned by A. H. Bullock, on the south by land owned by Ann Robbinson, and on the west by land owned by P. J. Miller. That said 30-foot lane runs over and across the east side of said land last above-described. Said Robbinson's land is just south of above-described land, and the land so owned by said Seifert and said plaintiff in 1875 is adjoining said Robbinson's said land on the east. Plaintiff says in the year 1875 he sold and conveyed all his right in his said premises to said Nick Pitts, who is still in possession, and the owner thereof. That in the year 1878 he purchased the said farm of said Seifert, and now is in possession thereof, and the owner in fee. That said lane now furnishes, and has for 25 years, the only way to get to and from the land now owned by the said Robbinson, Pitts, and plaintiff. That defendant Titus, when he purchased his said land of said Fretter, well knew all and singular the facts above set forth, and bought said premises subject to the perpetual right of plaintiff and the several owners of said several tracts of land, their heirs, administrators, executors, and assigns, to use, enjoy, occupy, and travel said lane its entire length with wagons, vehicles, and whatever conveyances, and when necessary, to fully enjoy their said land. That defendant Adam Seymour claims some interest in the said farm of said Titus, by lease or otherwise. Plaintiff says that notwithstanding the facts above stated said defendants, Titus and Seymour, now claim that said plaintiff has no right, title, or interest in and to the possession or use of said lane or right of way. That they each now refuse to allow him to enter upon the part of said lane lying on the east side of the farm of said Titus, and threaten to forcibly eject him and his teams therefrom, and threaten to fence up the same, and threaten to and have already sued him for trespass for entering upon said lands with his teams, and threaten wholly to deprive him of the use of the same. Wherefore plaintiff asks that on the final hearing hereof he may be quieted in his right to the enjoyment of said right of way, as above set forth, and be decreed to have the right to use and enjoy the same, together with his heirs, administrators, executors, and assigns of said premises so owned by him, and that said defendants, their heirs, administrators, and assigns, may be forever enjoined from interfering with the use and enjoyment thereof for the purposes as above set forth, and for such other rights and equities that the court can give and law requires.'

A general demurrer to the petition was overruled, and thereupon the following answer was filed: ‘ The defendant Daniel Titus, for answer to the petition of said plaintiff, says he admits that one Alexis Miller, deceased, in his life-time owned a tract of land in sections five and six in Avon township in said county, out of which he sold in his life-time in section six two small pieces, one to Aaron H Bullock and one to Evan Richards, and conveyed the same to them, respectively, by deeds; that the one, six acres, sold by said Miller to said Richards, is now owned and occupied by one Catherine Pitts, and the one sold to said Bullock is now owned and occupied by the plaintiff; that across the northerly part of said section six there is, and for many years last past has been, a public highway known and called ‘ The Lake Shore Road; ’ that the said Miller, in the sale of said six acres to said Richards, did agree and covenant with said Richards that each should throw out fifteen feet of land, respectively, across said six acres for a private way, so that said Miller could reach his lands in said section five, and that the said Richards should have the right and privilege, together with his heirs and assigns, in consideration of said purchase and the throwing out of said fifteen feet from the west side of said six acres, of traveling in a northerly direction over and across the premises to and from said Lake Shore road at all times for the free use and enjoyment of said six acres; that one Ann Robbinson now holds, by a land contract, as defendant is informed and believes, and avers the fact to be about sixty acres of land, formerly owned in said sections five and six by said Miller, and has no way of ingress thereto and egress therefrom except of necessity over this private way to said Lake Shore road. Defendant says that he owns a small piece of said land so owned by said Miller in section five, and all of section six so owned by said Miller, north of lands as aforesaid by Ann Robbinson, and west of land of the plaintiff, and lying between the lands occupied by said Robbinson and the Lake Shore road aforesaid; that the land of the said plaintiff lies next east of his and fronts in said Lake Shore road, which said road gives said plaintiff ample, free, and easy access to his said premises, and every part thereof. Defendant, further answering, says that at the time said Miller sold said premises to said Bullock no grant was conveyed to said Bullock to pass and repass over the premises now owned by this defendant, by deed or otherwise, and none existed of necessity, and at the time said Bullock conveyed the same to said plaintiff no right to pass or repass over and across the premises of this defendant through this private way aforesaid was conveyed to him, either by grant, implication, or of necessity. Defendant avers he purchased said premises of one Joseph Fretter, free and clear of all incumbrances, except the private right of way of said Catherine Pitts by grant, and of the said Ann Robbinson of necessity; and defendant avers his said premises are free and clear of any incumbrance, right of way, or servitude to the premises owned and occupied by said plaintiff. Defendant admits he has denied, and still denies, said plaintiff's right to travel over said private right of way in the use and enjoyment of his said premises; that he has brought suit against him in trespass for so...