16 Ohio App. 263 | Ohio Ct. App. | 1922
This action comes into this court on appeal and -was submitted on the transcript of the testimony taken in the court below, and further testimony taken before a referee appointed by this
It appears from the testimony in this ease that in 1892 the city of Youngstown acquired the lot now owned by the defendant; that about 1908 the city sold this lot to one Peebles, and that shortly thereafter he transferred it by deed to the defendant. The plaintiff’s lot since 1893, the time when the dwelling-house was moved to its present position, has been owned by a number of different persons. Plaintiff acquired title thereto in 1916. Plaintiff’s lot from the time the dwelling-house was moved to the rear of the lot, until the lot was sold to plaintiff, was occupied by tenants, and not by the owners themselves. A number of different tenants or renters occupied the property during that time, and they walked, in going to and from the entrance of the dwelling-house, directly across the lot of defendant to Himrod avenue, and at times they placed some cinders or ashes upon this walk. The walk was also used by others going to the business room on the front of this lot. There were other paths in other directions over the lot owned by defendant. The tenants of the owners of plaintiff’s lot used defendant’s lot in this way continuously for more than twenty-one years. Since plaintiff purchased this lot he has continued to use the path across defendant’s lot to Himrod avenue. The defendant’s lot during the time the city owned it, and continuing to the present time, was unenclosed and was not used
This lot was owned during a large part of that time by the city of Youngstown.
"Notorious and uninterrupted possession for more than twenty-one years, by a private individual, under a claim of right, of land dedicated to a city for streets or public squares, will bar the claim of the city to its use. ’ ’ City of Cincinnati v. Evans, 5 Ohio St., 594.
A number of owners of the lot now owned by plaintiff were witnesses in this case. They testified that they had never claimed any right of way .across the lot owned by defendant. The question then arises whether or not a title by prescription can inure to the estate of the landlord from acts of his tenants.
This question was before the court of appeals of New York in the case of Dempsey v. Kipp, 61 N. Y., 462. The second paragraph of the syllabus reads as follows:
"Where a permanent right of way is acquired by a tenant, as appurtenant to the demised premises, at the expiration of the tenancy it enures to the benefit of the landlord.”
The same question was referred to again by this court in the opinion in the case of Bedlow v. Dry Dock Company, 112 N. Y., 263, at 283.
A like principle is announced in 16 Ruling Case Law, 533, Section 5, and also in volume one of the same work, 718, Section 32.
The testimony shows that these tenants rented this dwelling-house without any instruction or di
Many prior owners of plaintiff’s property testified that they did not claim any right across defendant’s lot. The prior owners at the time they testified had no interest in the lot of defendant “and could not, by any act, admission or statement,” impeach the title or the prescriptive right which had attached to plaintiff’s property. Hills v. Ludwig, 46 Ohio St., 373.
The further question arises whether the use made of defendant’s lot by the tenants of plaintiff’s lot, as a means of ingress and egress to the dwelling-house, was adverse to the defendant and his predecessors in title, and under claim of right. The question was before the court in the case of Kilburn
“The rule we think is, that where a tract of land, attached to a public building, such as a meetinghouse, town house, school house, and the like, and occupied with such house, is designedly left open and unenclosed, for convenience or ornament, the passage of persons over it, in common with those for whose use it is appropriated, is, in general, to be regarded as permissive and under an implied license, and not adverse. Such a use is not inconsistent with the only use which the proprietors think fit to make of it; and therefore, until they think proper to enclose it, such use is not adverse, and will not preclude them from enclosing it, when other views of the interest of the proprietors render it proper to do so. And though an adjacent proprietor may make such use of the open land more frequently than another, yet the same rule will apply, unless there be some decisive act, indicating a separate and exclusive use, under a claim of right. A regularly formed and wrought way across the ground, paved, macadamized, or graveled and fitted for use as a way, from his own estate to the highway, indicating a use distinct from any use to be made of it by the proprietors, would, in our opinion, be evidence of such exclusive use and claim of right. So would be any plain, unequivocal act, indicating a peculiar and exclusive claim, open and ostensible, and distinguishable from that of others. But the fact that a particular track or line was a little more worn and marked by travel, than the general surface of the lot, or that the adjacent proprietor had occasionally leveled a spot gullied by the rain, could scarcely be regarded, independently of
The same question was before the supreme court of the state of Washington in Schulenbarger v. Johnstone, 64 Wash., 202, 35 L. R. A. (N. S.), 94, and on page 206 the court says:
“It can hardly be contended that it was ever the intent of the law to hold that a private easement could be created over the lands of another at a time when they were open and uninclosed.”
The same principle was announced in the case of Rowland v. Wolfe, 1 Bailey (S. Car.), 56, 19 Am. Dec., 651.
Again, the question was before the supreme court of South Carolina in the case of Sims v. Davis & Tygart, 1 Cheve, 1, 34 Am. Dec., 581.
The supreme court of Massachusetts in the case of Commonwealth v. Fisk, 8 Metcalf, 238, at 245, said:
“But the land was never fenced, nor laid out as a square or public area. Being of little value, it lay uninclosed, and was passed over at pleasure. But such passing over uninclosed lands creates no title to them. The persons passing over them are not trespassers, but they acquire no rights; and the lawful owners may fence them in, or otherwise use them, at their own pleasure. ’ ’
The decisions of the courts have not all been in accord on this subject. In Worrall v. Rhoads, 2 Wharton (Pa.), 427, 30 Am. Dec., 274, the court reached an entirely different conclusion.
It is urged that there is no difference between the right to acquire a prescriptive title in uninelosed land and the right to acquire such title in inclosed land; that there is an actual boundary around both;
This rule seems to have been followed in West Virginia. Walton v. Knight, 62 W. Va., 223, 58 S. E. Rep., 1025.
The rule in Pennsylvania seems to have been modified by the act of the legislature. The presumption that a title by prescription arises from a grant is a legal fiction. Formerly a title by prescription arose only when the right claimed had existed for a period beyond the memory of man, but now it is a period fixed by legislative enactment. Such a title is acquired by the mere occupancy or taking possession of the real estate of another and continuing that occupancy for the statutory period, under a claim of right.
It is a matter of common knowledge that the owner of uninclosed and unused land frequently permits his adjoining neighbor to pass over his premises when it is not interfering with any use that the owner is then making of his property. This is a mere neighborly convenience and not intended by the owner of the property, or claimed by the party using it, to be otherwise. In order to create a title by prescription the use by the owner of the dominant estate must be in conflict with the apparent use made of his property by the owner, or be of such a nature as to afford an indication to the owner that a right is claimed over his property. The supreme court of Alabama in the case of Trump v. McDonnell, 120 Ala., 200, 24 So. Rep., 353, in discussing the question when an easement by prescription arises
“The presumption in such cases is that the user is permissive; and it is a perfectly natural presumption, since the use conflicts with no interest of the owner in the land, does not interfere with any use he presently desires to make of it, nor curtail or limit in any way his enjoyment of it in the state and condition in which he has put it or allowed it to remain, and very frequently, as in this case, conserves the ends of good neighborhood.”
The supreme court of Massachusetts, in the case of Proprietors of Kennebeck Purchase v. Springer, 4 Mass., 416, in discussing the same question says* at page 419:
“To constitute a disseizin of the owner of uncultivated lands by the entry and occupation of a party not claiming title to the land, the occupation must be of that nature and notoriety, that the owner may be presumed to know that there is a possession of the land adverse to his title; otherwise a man may be disseized without his knowledge, and the statute of limitations may run against him, while he has no ground to believe that his seizin has been interrupted. ’ ’
A right of property should not be acquired against the interest of the owner, unless by some overt act that will notify him of the claim of the owner of the dominant estate adverse to that of the owner; “merely using what is open to use, without more, no presumption arises that the use is adverse. ’ ’ Sprow v. Boston & Albany Rd. Co., 163 Mass., 330, 39 N. E. Rep., 1024.
The use must be permanent and of such a nature
Now this principle is referred to by the supreme court of this state in the case of Lane v. Kennedy, 13 Ohio St., 42. On page 47, in speaking of the adjoining proprietor to the public highway having enclosed part of a public road, the supreme court says:
“He infringed no right which was then enjoyed or apparently desired. Nothing was done to excite the apprehension of the public or to call for its protest. We hear of no declarations, and all his acts were consistent with a temporary occupancy, by the permission or the mere sufferance of the public, till the land should be required for its use. In Kirk v. Smith, 9 Wheat., 288, Ch. J. Marshall says ‘it would shock that sense of right, which must be felt equally by legislators and by judges, if a possession, which was permissive and entirely consistent with the title of another should silently bar that title.’ ”
In the instant case the tenants of former owners of the said, property, and the plaintiff, since he acquired the property, walked from the door of the dwelling-house directly across the defendant’s lot
We do not think that such use of defendant’s lot creates an easement by prescription in favor of plaintiff. The judgment in this case is in favor of the defendant.
Judgment for defendmt.