
    Meredith v. Frank et al.
    
      Easement — Implied reservation.
    
    1. Where an owner of a tract of land has made and maintained a private way over his land to a public highway, and such way is his only means of ingress and egress to his home, sells, and conveys to another a portion of it, lying on the public highway, and is thereby deprived of all access to the highway, except by the way he had previously constructed and maintained, and which passes through the granted part, and the facts were well understood by both parties at the time in such case, the way is reserved to the lands of the grantor by implication, although'thé deed contains a covenant against incumbrances.
    2. It is a general rule that one cannot derogate from his grant; ■ so that to warrant the inference of a way reserved by implication, it must be one of strict necessity to the remaining lands of the grantor ; it is not merely a matter of convenience and if the grantor has another mode of access to his land, however inconvenient, he cannot claim a way by implication in the lands conveyed, though he may have been in the use of a way over it to a public highway at and a long time before the conveyance, and of which the grantee had notice at the time.
    (Decided June 8, 1897.)
    Error to the Circuit Court of Licking county.
    This was a suit commenced in the court of common pleas bv the plaintiff against the defendant, William Meredith, to enjoin him from closing a 'wav the plaintiffs claimed over his lands. The right was denied by the defendant. Having been tried and determined in the common pleas, the cause was appealed to the circuit court. On the trial this court made a separate finding of the facts and its conclusions of law thereon, and rendered a judgment in favor of the plaintiffs, enjoining the defendant as prayed for.
    The finding of facts and conclusions of law are as follows:
    
      
      First — That Samuel Meredith, the common source of title, owned a tract of land consisting of about 300 acres in Licking county, Ohio, the north end of which abutted upon the National road, and no part of the same abutted upon any other highway. The following is a plat of the premises:
    
      
    
    
      Second — He bought this land in parcels at different times, but the boundaries of the parcels so bought, are not identical with the boundaries of the parcels in the plat. He purchased the south tract, consisting of 100 acres, about sixty-five years ago, and had his homestead on that part, the homestead still being on the 54 acres shown in the plat. This parcel did not abut any highway, but he had a way out eastward, by sufferance over the lands of another person to the Linnville road. He used this way out for about fifteen or twenty years, when he bought the 100 acres north of it, shown on the plat as “B” and after that, in 1852, he bought the lands north of the last parcel, extending to the National road. This made the 300 acres, and no part of which abutted on any highway, except the north end lay along the National road.
    
      Third — After the purchase of the last parcel, Samuel Meredith opened a private lane or way from this residence northerly through all of his lands to the National pike, on which three gates were maintained — one of them at the National pike, one at about the middle of said lands, and one a short distance north of his house. And a part of the time said lane was fenced in on both sides. This lane or way, he opened for his own use and that of his family and those who visited his premises. This road was worked and kept in order by him and his servants for the purpose aforesaid, more than forty years, and was the only way passing over this real estate, apparently the only way out at the time the conveyance was made to William and John, and ever since then to date.
    
      Fourth — Samuel Meredith, in the year 1872, had six children as follows: Elizabeth Hupp, Mary Stewart, Levi W. Meredith, John B. Meredith, William Meredith and Robert Meredith. Elizabeth Hupp, Allie Lawrence, heir of Mary Stewart, Levi M. Meredith, Robert Meredith, and J. A. Franks, the grantee of John B. Meredith are the plaintiffs, and William Meredith is defendant.
    
      Fifth — That in the year 1872, said Samuel Meredith and his wife, by their deed of general warranty, conveyed to William Meredith, his heirs and assigns forever, about 135 acres of said lands, shown in the plat by letter “C” for full and valuable consideration, to-wit: Thirty-three hundred and fifty-one dollars; together with the appurtenances, with full covenants of warranty and the said Samuel Meredith and his wife, therein covenanted, for themselves, their heirs and assigns, with the said William Meredith, his heirs and assigns that they were lawfully seized of the premises aforesaid, and that the said premises were free and clear from any and all incumbrances whatsoever, and that they would forever warrant and defend the same against the lawful claims of all persons whomsoever, there being no special reservations of any right of way of any kind over said land, and in fact, said right of way was not mentioned in the deed. This deed was received for record, January 19, 1889.
    
      Sixth- — That for the purpose of curing a minor mistake in the description on the 18th day of June, 1874, said Samuel Meredith executed another deed of the same lands to said William with the same covenants as in the first deed, with said way still appurtenant thereto, for the use and benefit of the other lands of said Samuel and John Meredith and his son, and which deed was left for record August 30, 1879.
    
      Seventh — That in the year 1874, June 16, the said Samuel Meredith and wife, for a consideration of forty-five hundred dollars, sold and conveyed to his son, John B. Meredith, with full covenants of warranty, another portion of said three hundred acre tract, known as parcel “B, ” on the plat, together with the appurtenances, and the said Samuel and wife therein covenanted with the said John B. Meredith, for themselves and their assigns, with, the said John B. Meredith, his heirs and assigns, that they were lawfully seized of the premises aforesaid, and that said premises were free and clear from any and all incumbrances whatsoever, and that they would forever warrant and defend the same against the lawful claims of all persons whomsoever; and which deed was recorded April 7, 1876, more than three years prior to the filing of any deed to William for record, there being- no reservations in said deed concerning said right of way, but the said way was appurtenant thereto, and used as the only way out and into said premises.
    
      Eighth — That immediately upon the execution of the deed to said William, he took possession of the lands so conveyed to him, and after the execution of the deed to said John B. Meredith, he took possession of the land so conveyed to him.
    
      Ninth — William Meredith permitted without objection said Samuel and wife to use said lane over his lands as long as they lived, and during their lives said lane was worked and kept in repair as it was before.
    
      Tenth — Samuel Meredith died, his widow occupied the homestead after his death, on the 54 acres, until her own death, in the year 1888, and within a year after her death, said William refused to permit it any longer to be used over his lands.
    
      Eleventh — But the said Franks by grant now holds the north half of the John B. Meredith land, and the said Robert Meredith by grant holds the south half of the John B. Meredith land, they having the same title that John B. Meredith had.
    
      Twelfth — At the time of the execution of the deed to William, he had full knowledge that the lane or way was laid out over the land he was purchasing as a way, and its existence was apparent.
    
      Thirteenth — William never consented that said lane should be used or worked in his hands after his mother’s death.
    
      Fourteenth — And as a' matter of law, the courts find that the said deed to William, by reason of the fact that Samuel Meredith had no other way out. That Samuel did not covenant against the incumbrance of said road, and the law implied such a reservation, and that said deed did not convey a title to said William free of the incumbrance of said road or way, and that notwithstanding said deed to William, said Samuel retained said right of way over said lands of William as a matter of right, for the benefit of all the lands he retained, and when he conveyed the tract “B” to John B. Meredith, that John B. Meredith and his grantee took by said grant, the said way over said land of William as .appurtenances thereto. That said way over the lands of William is appurtenant to the lands of J. A. Pranks and Robert Meredith, who are the grantees of John B. Meredith, and said way over the lands of William and Robert Meredith and J. A. Pranks, is appurtenant to the residue of said lands, known as tract “A” of 54 acres in the plat, and that said William has no right to close up said way over his lands against the owners of the residue of said tract of 300 acres, and the owners of tract “C” have no right to close upon the said way over those lands as against the owners of tract “A” of 54 acres.
    William Meredith excepted to the conclusions of law, and, on error here, asks that the judgment be reversed, and judgment rendered in his favor on the facts as found.
    
      
      J. M. Dennis and N. M. Hunter, for plaintiff in error.
    The easement claimed in this case does nou arise by grant, for no grant is alleged.
    Though long use of this right is averred, yet the issue is, as made bj1- the pleadings, has the plaintiff by his deed a title of right of way over this strip of ground by way of necessity.
    To give a right of way over another’s land by necessity it must be strict necessity, and this necessity must not* in any respect be created by the party claiming the right of way. Washburn on Easements, 2nd Ed., 219; 6 Am. & Eng. Encyp., 144; Wright’s Rep., 250; Dillman v. Hoffman, 38 Wis., 572; Fryer v. Carter, 1 H. & N., 916; Tenant v. Goldwin, 2 Ld. Raymond, 1089; Burr v. Mills, 21 Wend., 290; Sloatv. Mo Doug al, 8 Advance Sheets N. Y. S. May 29, 1890; Yol. 6 Am. & Eng. Ency. of Law, 144.
    But we claim that this right of way by necessity as claimed is not indispensable, and that these plaintiffs who claim the right of way can obtain a township road from their home or plantation at reasonable cost and trouble to another public highway. 24 NJE., 135; 5 Ohio St., 109.-
    
      First — Are the defendants in error entitled to the way by long user?
    This cannot be. (1), because twenty-one years have not lapsed since the land became William’s; but only 17. (2), only fifteen -years have elapsed since Samuel deeded the middle portion. (3), even for this time, the user was not adverse, because it was under permission of William. (4), and nothing is shown to take the ease out of the statute of limitation.
    
      
      Second — Have the defendants in error a right to the way by necessity? We contend not, for the following reasons: •
    There cannot be a way by necessity in connection with agricultural lands in Ohio.
    Because in Ohio the statutes have always provided that any land owner may have a township road from his dwelling house or farm to the public road. He may petition for the same to the township trustees, and if they shall find that the same is right and proper, they may establish such road, either at the expense of the party wanting the same, or, if they deem the same of sufficient public importance, they may pay for the same court of the township treasury.
    This has been the law of Ohio ever since the act of June 1, 1831, 29 Ohio Laws, 365, and' which statute is substantially as at present, except the additional power, of the trustees paying for the same, was added in the year 1891. ' Weil v. State, 46 Ohio St., 450; Ins. Co. v. Miller, 1 Barb., 362; Broom’s Legal Maxims, 160; Ferris v. Bramble, 5 Ohio St., 109; Logan v. Stogate, 24 N. E. 135.
    
      O. II. Kibler and Charles II. Follett, for defendants in error.
    It will be seen from the finding of facts aforesaid that the deed from Samuel Meredith to John B. Meredith ante dates the corrected deed to William made in June, 1874, by two days, and was recorded three years before any deed was recorded or left for record by William for his lands; and the defendants in error had no notice or knowledge of any deed to William from Samuel Meredith for his 135 acres, or that his said deeds did not make any mention of said right of way until they were left for record with, the recorder of Licking county, and the statute in such cases provides as follows: Section 4134, Revised Statutes; Morris v. Daniels, 35 Ohio St., 406.
    If the defendants in error hold by grant prior to any grant to William under said provisons of the statute, does their deed include this lane or uy? Morgan et al. v. Mason, 20 Ohio, 412; Hazard v. Robinson, 3 Mason, 279.
    That a' right of way may be established by prescription, 'grant, reservation, implication, or by owelty of partition. Bailey v. Copeland, Wright’s Report, 150.
    We therefore claim the. conveyance of this 100 acres of land by Samuel to John B. Meredith, his heirs and assigns, being’ only a part of his premises, leaves the easement of this right of way as in use at the date of said conveyance.^ Elliott v. Sallee, 14 Ohio St., 10.'
    When the owner of an estate makes one part of it visibly dependent for the means of access upon another, and creates a way for its benefit over the other, and then grants the dependent part, the other part becomes subservient thereto, and the way constitutes an easement appurtenant to the estate granted, and passes to the grantee as accessorial to the beneficial use and enjoyment of the granted premises. National Exchange Bank v. Cunningham, 46 Ohio St., 575.
    We claim that said way has* been established and consented to by mutual agreement between the parties interested therein by their joint use and working and improving’ the same for the period of 40 years, after the same was laid out and established for the benefit of said lands by Samuel Meredith, and that this action was properly brought. Shields v. Titus, 46 Ohio State, 528.
   Minsi-iall, J.

This case was argued and submitted with the case of Baker v. Rice, reported ante, p. 463, on the assumption that each presented the same question, so that the affirmance of one would involve the reversal of the other and e con-verso. But in our judgment, there is a difference between the reservation of a way, and the grant of a way, by implication. The reservation of a way by the grantor in apparent derogation of his deed and its covenants, stands upon a much narrower ground than does the case of a grant. In the latter case, as held in Baker v. Rice, a way passes by implication where it had been attached to the part granted by the grantor, and is apparent and necessary to the reasonable enjoyment of the premises granted. It is not necessarily a way of strict necessity. But in the reservation of a way by implication, the case is different. Ordinarily a deed is taken most strongly against the grantor. He may insert in it such exceptions and reservations as he desires, and the grantee by accepting the deed is held to assent to them; and therefore, the grantor is not generally permitted to derogate from his grant, or disregard the covenants of his deed. But there seems to be a well recognized exception, and that is, where a g-rantor by the sale and conveyance of a part of his land, is thereby deprived of all access to any public highway from the part retained, and this is known to the grantee. In such case it is a fair inference that the grantor did not intend to. subject himself to the necessity of buying a way out, nor can it be inferred that the grantee with knowledge of the facts, supposed that he did, particularly where the grantor had a well defined way over the part granted to the highway in use at the time of his conveyance. In such case, the circumstances are such as to indie ¿te that the deed does not express the real understanding of the parties as to the way over the land granted, and might have been reformed in equity. But the courts in such cases have pursued a more liberal practice and done at law by the implication of a grant, what could have been- accomplished in equity by the reformation of the deed. 2 Washburn on Real Prop., 5 Ed., 319; Collins v. Prentice, 15 Conn., 39; Brigham v. Smith, 4 Gray, 297; Parker v. Bennett, 11 Allen, 389-392; Seymour v. Lewis, 13 N. J., Eq., 439, 444; Pennington v. Galland, 9 Exchequer, 1. In the case of Collins v. Prentice, it is said: “It is well settled, as a part of the common law of England, that if a man having a close, to which he has no access, except over his other lands, sells that close, the grantee shall have a way to it, as incident to the grant; for without i t, he cannot derive any benefit from the grant. This rule has been established for two centuries, and seems not to have been questioned on the trial’ ’ citing authorities. “And although doubts have formerly been expressed upon the subject, it seems now to be well settled, that, if the grantor had reserved that close to himself, and sold his other lands, a right of way would have been reserved.” Citing authorities. The court then observes. “The way, in the one case, in contemplation of law is granted by the deed and in other case reserved. And although it is called a way of necessity, yet in strictness the necessity does not create the way, but merely furnishes evidence as to the real intention of the parties.. For the law will not presume that it was the intention of the parties, that one should convey land to the other, in such a manner that the grantee could derive no benefit from the conveyance; nor that he should so convey a portion as to deprive himself of the enjoyment of the remainder. The law under such circumstances, will give effect to the grant according to the presumed intention-of the parties. ” In Brigham v. Smith, a case like this one, the court said: “If the way were expressly reserved in the deed, the covenants must apply to the premises granted, that is, an estate with a right of way reserved or carved out of the fee. In the present case, the law does for the parties the same thing, and the covenants apply to an estate with this way of necessity reserved. ”

It is then a question of intention, and the mode of determining’ it by reference to the necessity of the way, may be regarded as a rule of property, and, in this view, no more permits a grantor to derogate from his grant, than does any similar rule; for, under the rule, a way over the land granted is reserved to the grantor, under a legal construction given the deed in connection with the circumstances creating the necessity..

It is plain from the facts found, that the way in question was one of strict necessity to the land retained by Samuel Meredith on his conveyance to his son William, of the tract on the National road; and the plaintiffs below have succeeded to his rights. At the time of this conveyance, which was in 1872, he owned 300 acres, in the form of a parallelogram, with one of its short sides on the road. His home was at the opposite end. From his home to the highway was a well defined way then in use, which afforded his only means of access to his home. He then sold and conveyed to his son, the 135 acres, lying on the highway, the private way of his father to the remainder of his lands, being apparent, and well known to his son.

But it is said that Samuel Meredith had a way over his remaining lands to a highway. This, however, according to. the finding, was simply by “sufferance.” It constituted at most a license, and could have been revoked at any time. A way that defeats the implication of one ■ by necessity, must be a way of right and not a mere license, besides, this supposed way was abandoned in 1867, and has not since been used; so that whatever right the grantor may have had, has long since been lost by abandonment. It had not ripened into a way by prescription when abandoned. It is also claimed, that under the power given township trustees, on application, to establish township roads, a way could have been obtained; and therefore there is no ground, in any ease, on which a way by necessity can be claimed in this state. This does not as we think, alter the case. Whether a road can be obtained in that way, will depend upon the opinion of the trustees and of the viewers, whether it is necessary- and should be established. It cannot be had 'for the asking, and in no’ease without making compensation for the land taken. The necessity for a way cannot be removed by the fact, that one may be purchased from some third person, Collins v. Prentice, 15 Conn., 39. It is the fact that no way then exists, that can be had without purchase, by which the grantor can have access to his remaining lands, that. raises the implication of a right • reserved to an existing way over the land granted.

There is another finding in the ease, not however, probably material to its disposition, and that is, that from the making’ of the deed in 1872, Samuel Meredith and his subsequent grantees of part of the land, continued to use the way as he had done before the grant, without let or hindrance, until the time of his death, and that the same use was made of it until the death of his widow, which occurred in 1888, whereby both parties indicated, for some sixteen years that their understanding of the deed was in accordance with the construction the law places on it. We see no error in the record and the judgment is therefore,

Affirmed.  