Smith v. Krites
| Decision Date | 11 April 1950 |
| Citation | 102 N.E.2d 903,90 Ohio App. 38 |
| Parties | , 46 O.O. 360 SMITH v. KRITES. |
| Court | Ohio Court of Appeals |
Syllabus by the Court.
1. The public may acquire a prescriptive right to the use of land for an alley and neither an intention to dedicate nor an acceptance is necessary.
2. To enable the public to acquire a prescriptive right to the use of land for an alley, the user must be under a claim of right by the public, adverse to the owner and continued, without substantial interruption or change, for a period of time equal to or longer than the statutory period of limitation pertaining to actions for the recovery of real property.
3. Where the public ases a way across the land of an individual and continues to do so with the knowledge of the owner, such user is adverse and, of itself, constitutes evidence of a claim or right; and, in an action to quiet title and for injunctive relief the owner of the servient estate has the burden of proving that such user is permissive.
4. A member of the public injuriously affected by the closing of a public way has sufficient interest to maintain an action for injunctive relief.
5. A member of the public, who, in common with the general public, uses a way adversely to the owner for a period of time equal to or longer than the statutory period of limitation for bringing actions for the recovery of real property, does not thereby, as an individual, acquire an easement separate and apart from the public easement.
James C. Blair and C. W. Long, Akron, for appellant.
Meredith & Meredith, Lima, for appellee.
This is an appeal on questions of law from a judgment of the Court of Common Pleas of Allen County, in an action wherein the appellee, Nellie J. Smith, was plaintiff, and the appellant Revis Krites, was defendant.
The pleadings upon which the cause was submitted to the Common Pleas Court are the amended petition of the plaintiff and the answer of the defendant.
In her amended petition the plaintiff, in substance, avers that she is the owner in fee simple of certain premises in the city of Lima; that the defendant is the owner of certain other premises situated in that city; that there is an alley platted between the property owned by the plaintiff and the property owned by defendant; that such alley, as actually located and used by the plaintiff and her predecessors in title and the public generally, cuts across a certain triangular tip of the property owned by the defendant; that about 15 feet of the eastern triangular tip of defendant's property is now and has been for more than 21 years last past continuously and uninterruptedly used by plaintiff and her predecessors in title as a means of ingress and egress to and from their premises, and is used by the public generally for public alley purposes; that this use has been adverse to and with the acquiescence of the defendant and her predecessors in title without any express permission from the owners thereof for a period of more than 21 years; that said alley as now located and used does not follow its platted boundaries but occupies the aforesaid portion of defendant's premises; that the alley as now located has been improved and maintained by the city of Lima and is now and has been for more than 21 years used by the public and by the other property owners adjoining it, including the plaintiff and her predecessors in title, as a mode of ingress and egress to and from plaintiff's property; that said use has been continuous and uninterrupted without any express authority from the defendant and her predecessors in title, but with full knowledge of and without express objection by them; that the defendant has barricaded the alley so that it is impossible for plaintiff or any one else to use the east end of it or to continue to use it as a means of ingress and gress to and from plaintiff's property; and that defendant threatens to continue to prohibit the use of the alley as a means of such ingress and egress and as a public alley.
The prayer of plaintiff's amended petition is for a permanent injunction restraining the defendant from barricading the alley; that plaintiff's right to an easement over the east 15 feet of the property of defendant for driveway purposes be forever quieted; and for such other and further relief as she may be entitled to.
By answer, the defendant admits the ownership of the properties and that a public alley is located between the properties so owned, and denies the allegations of the amended petition not specifically admitted in the answer.
It appears from the evidence that the alley in question, as it is located and used by the public, does not coincide with its platted location but veers to the north and across the eastern tip of a triangular portion of defendant's property, and that as so located it has been used by the public generally and by plaintiff and her predecessors in title as a public alley for more than 21 years prior to the time it was barricaded
However, the description of that portion of defendant's property upon which the alley is so located is not specifically set forth in the evidence.
It appears further that during the period of more than 21 years the alley has been improved at such location for public alley purposes; that the use of the property for public alley purposes has been so open continuous, and notorious that such use has been and is a matter of common knowledge; that both plaintiff and the defendant acquired their properties within the last few ycars; and that neither owned their properties at the time the above-mentioned use commenced. The chains of title of the parties are not in evidence.
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State, ex rel. A.A.A. Investments v. City of Columbus
...P.2d 1235; United States v. 202.76 Acres of Land (D.N.D.1977), 439 F.Supp. 483. Ohio is in accord with this view. Smith v. Krites (1950), 90 Ohio App. 38, 43, 102 N.E.2d 903 (public alley); Wilberforce University v. College (1948), 86 Ohio App. 121, 90 N.E.2d 172 (state university); Bd. of ......
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...dedication or a public acceptance. Railroad Co. v. Roseville (1907), 76 Ohio St. 108, 117-118, 81 N.E. 178; Smith v. Krites (1950), 90 Ohio App. 38, 42, 102 N.E.2d 903 . For this purpose, the ownership of the parcels has no significance because the public's adverse use does not necessarily ......
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...a prescriptive easement to be shown by constructive knowledge, if it is a matter within common knowledge. Smith v. Krites (1950), 90 Ohio App. 38, 46 O.O. 360, 102 N.E.2d 903. Still other cases permit prescriptive easements to be shown if the owner acquiesced in the adverse use of his prope......
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Curtis A. Nice v. City of Marysville
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