
    No. 166
    BEAVERTOWN CEM. ASSN. v. SUMMERS et al
    Ohio Appeals, 4th Dist., Montgomery County
    No. 551.
    Decided Jan. 10, 1924
    445. EASEMENTS — Private right of way held to exist where Cemetery Association uses land to procure gravel.
    Attorneys — Lenz, Sigler & Denlinger, for Cemetery Assn.; McCann & Whalen, for Summers; all of Dayton.
   ALLREAD, J.

Epitomized Opinion

First Publication of this Opinion

The Cemetery Association brought an action to oust Summers et al from the possession of certain real estate. Summers et al set up title in themselves. The land in question consisted of a narrow strip along the side of the cemetery. The evidence disclosed that ancestors of the defendants had owned the land, but for more than 21 years the Cemetery Association had made use of the strip of land when necessary for the purposes of securing gravel for the use of the Cemetery Association. Objection was made to the owners of the servient estate at various times attempting to plow the land. At the time that the defendants purchased the property they were notified of the existence of the right of way. In its opinion the court held:

1. The plaintiff has made out a prescriptive title to a private right of way for the uses of the cemetery over the strip in controversy. This private right ■ would include the right to use the land for cemletery purposes and to improve the road. The owner of the servient estate would have a right to use the strip for pasturage purposes and other purposes not inconsistent with said right.  