
    EASEMENT — RIGHT OF WAY.
    [Stark Circuit Court.]
    Jenner, Pomerene and Adams, JJ,
    
      Metzger & Co. v. Holwick.
    1. A Right oe Wav not Connected with Premises is one in Gross.
    A right of way that does not terminate on the lot to which it is claimed to be incident, but which is situated four lots distant therefrom, is a way in gross, and not a way ap-pendant or appurtenant.
    
      2, Power oe Grantor to make a Right oe Wav, Personae to Himseee, Appurtenant to Rand he Convevs, at a Distance Thbreerom.
    If the reservation of a right of way in a deed he personal to the grantor thereof, such grantor cannot, by conveying a lot, distant from such right of way, not connected therewith and not touching it, make it appurtenant thereto.
    8. Right oe Wav Appendant cannot be Converted into One in Gross.
    A right of way appendant cannot be converted into one in gross, nor can one m gross be converted into one appendant.
    
      
      Judgment affirmed by Supreme Court, no opinion, 58 O. S., 710.
    
   JENNER, J.

(orally).

The case of William H. Metzger and Victoria C. Udick v. Daniel S. Holwick, is here on appeal, but the facts are substantially agreed upon.

. The plaintiffs aver they are the owners of the real estate described in this petition, parts of two lots in the city of Canton; and they aver they have the free use and enjoyment, in common with others, of a fifteen-foot alley and right of way running through and over said lots, from Cedar street to the railway ; further, they aver that they are the owners of a right of way — a fifteen-foot alley — running westwardly from the above described alley along the line of the McCain Machine company’s railroad switch to Cleveland avenue; and they further aver that the defendant, Holwick, is about to interfere with their use of it by erecting a permanent building across this way.

The answer admits that he is about to erect this building across this claimed right of way, but it avers that it is his, and, that he has a right to erect it there; and that the plaintiffs havebio interest whatever in it. That presents the question, substantially.

It is claimed that the plaintiffs had this right of way because it was appurtenant to their real estate. The other side denies that it was an appurtenant; hut admits that it was a way in gross attached to certain 'of this real estate.

Now the facts are these, in brief: — that on the 21st day of December, 1888, the McCain Machine company was the owner of a tract of land in this city, on a part of which they had erected their shops. They had a switch extending from the Pennsylvania railr id main track to their plant; on the day named they sold and conveyed to Holwick by deed a portion of these grounds; they describe it by metes and bounds, and then set forth that they will construct an alley, fifteen feet wide, from Cedar street clear down to the railroad; and in the deed now to Holwick, — and it all turns upon this and what was subsequently done — they provide that Holwick shall have the joint use of this private switch; that he shall pay half the expense of keeping it in good order, and then comes this language: “Said second party agrees to leave an open driveway from the south end of said alley along said railway and switch to Poplar street.” That appears in the deed. I ought to say that the same reservation, we assume from what counsel have said, appears in the two prior conveyances until they come to these plaintiffs, and in the plaintiff’s deeds it appears in the language of this deed.

Plaintiff’s property is separated from the defendant’s by this fifteen-foot alley, and it fronts on South Market street, and it lies lengthwise on Cedar street; there are four other lots between their property and this switch.

It must be borne in mind that after this conveyance to Holwick, which was December 1,1888, there were certain conveyances, and then the machine company conveys to Heirscheimer January 28,1892, this lot that the plaintiffs now own. November 10, 1892, Heirscheimer conveys to these plaintiffs whatever rights Heirscheimer had, and it is claimed these plaintiffs had to use this as a way appurtenant to his property.

We think this presents a question of some difficulty, and. we find that we are not able to agree among ourselves, as to this question; and I want to state the conclusions of a majority of the court.

It is quite important, we think, to understand these facts: — that these plaintiffs’ property is separated by a fifteen-foot alley, and lies away up on Cedar street, fronting on South Market, with four lots between it and this right of way; and that at the time the sale was made to Holwick the machine company owned the land immediately south of Holwick, — the switch divided it in two — they also owned the land weston which their shop was situated; now subsequently they divided up the land lying west of the fifteen-foot alley, which they agreed to open up and did open up — they divided it into lots, and sold them.

It is important to get at a clear definition, we think, of some of these terms, and I want (for fear I may overlook it) to call attention to this 110 Illinois, the case of Keckin v. Volz. Commencing on page 264, it is said the court below determined the case substantially, on this authority, and the facts are these in this case — I can state it so as to make myself understood clearly, I' think — a man by the name of Chanler owned a piece of land in Chicago, and it was substantially ninety feet? square, eighty-nine feet one way and ninety the other, it fronted on Wells street, and it lay sidewise on Chicago avenue; now he sold off, I will say (by treating the top here as though it were north, I can make myself understood, and there is a diagram of the lots here in this book) he sold off two pieces at the south end of the property, twenty-nine feet to Volz, and another twenty feet to Volz which was afterwards conveyed to other parties by mean conveyances. Now in the'deed he reserves ten feet'for an alley, along and across these lots, across the end of the lots, and it is said that if they can look beyond the deeds (and some authorities differ as to whether they can look beyond the deeds to determine whether or not a way is appurtenant or not) — it ought to be determined by the reading of the deed itself, but still the authorities, or some of them seem to hold that you may look beyond and find out just how the parties are situated. That is what he had done; he subsequently sold and conveyed the northern lots to other parties, the persons on the south reconveyed, and then they closed up that alley, and the question was made as to whether or not that was appurtenant. It is said here in the opinion of the court that it was necessary, to get to Chicago avenue, to pass over this.ten feet. Now, here is what the court said in the ooinion — this is the language of the reservation ‘ excepting and reserving therefrom’ — that is the language — ‘ten feet across the west end of said premises for an alley — (it was reserving th'at, it wasn’t conveyed); the deeds conveying to each, of these parties contain the same exception and reservation contained in the-deed to O’Neil.’ Quoting from another case, the court on page 269 say: ‘In. construing deeds or other writings; courts must seek to ascertain and give effect to the intention of the parties. For that purpose, they may and will take notice' of attendant circumstances, and by them determine the intention of the parties,, the situation and location of the property, the manner in which it was used in connection with the reservation; the exception contained in all the deeds from. Chanler clearly indicates an intention to create the alley for a right of way in the-nature of an easement.’

It run right across the end; they had no way out to Chicago avenue except, by that way which had been reserved; they say that being so, it was a way appurtenant. This judge quotes from 11th Grey, page 270: “When it appears by a fair interpretation of the words of a grant that it was the intention of the parties to create or reserve a right in the nature of a servitude or easement, in the property granted, for the benefit of other land owned by the grantor, and the original forming with the land conveyed, one parcel, such right will be deemed appurtenant to the land of the grantor, and binding on that conveyed to* the grantee.”

That is all I need to say as to that authority. I want to get clearly the definition, and I turn to this recognized authority, Washburne on Basements and Servitudes, and on page 11, first: “A man may have a way in gross over another’s land, but it must, from its nature be a personal right, not assignable or inheritable, nor can it be made so by any terms in the grant any more than a collateral and independent covenant can be made to run with land.

Where one granted an estate, and in his deed, reserved a right of way across, it to a certain point, but made no mention of or reference to any estate to which, it was to be appurtenant, or with which used, it was held to be a way in gross,. and not the subject of a grant.”

That is the condition in this deed; there is nothing said about the machine company having any other land; it doesn’t refer to it, nor describe it; but just says in so many words, that he agrees to keep a way open fifteen feet, wide, and doesn’t say where, doesn’t say for whose benefit. “A right in gross is. not assignable. If one has a right of way appendant or appurtenant to an estate he cannot grant it separate and distinct from the land to which it belongs. When, therefore, the grantee conveyed the dominant estate with all its ways, etc., it did not convey any right of way as being appurtenant, under that grant, except such as was connected with the- use and enjoyment of the laqd to which it was annexed.”

It must be remembered that the switch was a private switch, and so-called in this deed. Holwick agrees to pay one half of the expense of keeping it in order. And after that, this other lot, away off, four lots at least distant, is-sold to the plaintiffs. ■

I want to turn over a few pages and see what this authority says as to when a way is appurtenant, and I’ll read a line: “Ways are said to be appendant or appurtenant when they are incident to an estate, one terminus being on the land, of the party claiming it.” Now, if that is a correct definition, there is no claim that there is one terminus of this way on this land; it terminates in an alley near' the railroad, and this lot is at the upper end of the alley, fronting on Market street and Cedar street; so it is not in any way connected with it. It doesn’t terminate there any more than any other street that might be followed up with alleys. and streets, would terminate there. “Ways are said to be appendant or appurtenant when they are incident to an estate, one terminus being on the land of the party claiming it.” They must inhere in the land, concern the premises, and be Essentially necessary to their enjoyment. They are of the nature of covenants-running with the land, and like them must respect the thing granted or demised,, md.must concern the land or estate conveyed. A way appendant cannot be/ turned into one in gross because it is inseparably united to the land to which it is incident. -So a way in gros,s cannot be granted over to another, because of its beiqg attached to the person; nor can one have a private way over and along a [public highway.

Now, I desire to call attention to 23d Ohio State, the case of Boatman and Wife against Lasley, page 614; the syllabus is very brief: “A right of way in ■gross is a right personal to the grantee, and cannot be made assignable or inheritable by any words in the deed by which it was granted.”

Here are some of the facts : a right of way had been granted by deed, on the 7th day of June, 1869, by the warrantor to Cogue, his heirs and assigns, and the tenants and occupiers for the time being of the lands then owned and occupied by the said Alexander Cogue in section 15, town 5, of range 14, in the Ohio company’s purchase, etc. It is not alleged, however, that Cogue at the time the right of way over the warranted premises was granted to him by the plaintiff, was the owner or occupier of any land in said section 15, or elsewhere nor is it alleged that the right of way complained of became appendant or appurtenant to any land whatever, or that said Roush had any interest in said right of way.”

The evidence being closed, the court charged the jury as follows, on the questions raised on the issue: “If the jury shall find from the evidence that at the date of the deed made by Casley to Cogue, marked “A,” the said Alexander Cogue, grantee therein, was not the owner in fee or otherwise of some real estate adjoining the farm through which said right of way is granted, or situate in the neighborhood so that said right of way may become appurtenant to the same, then the said deed conveys a right of way personál to himself alone, and one which cannot descend to his heirs, one which' he cannot assign' or release to another person except such other person be the owner of the farm through which said way was granted.”

Now, if this reservation to the McCain Machine company was personal to the McCain Machine company, they could not by conveying a lot away off distant from that, not touching it, not coming near to it, make it appurtenant. That seems to be the point of that charge.

Judge McIlvaiNB, announcing the opinion, among other things, says this: the terms of the deed from Casley to Cogue plainly import an intention to make the right of way therein granted appendant and appurtenant to other lands, but the record does not disclose either the facts or the law given to the jury whereby it could determine whether or not that intention was accomplished.

Where the way is appendant or appurtenant to other lands, very different considerations arise. There thje right attaches to the lands to which the way is appurtenant, because it is granted for the convenience of their occupation without respect to the ownership or number of occupants. In such case the right of way passes with the dominant estate as an incident thereto. A right of way appendant cannot be converted into a way in gross, nor can a way in gross be turned into a way appendant.”

This case in the 100 Pennsylvania State is also cited, page 42. I may refer to it briefly, and I will simply read a line from the opinion of the court on page 46 ; “The extent of the right, and everything pertaining to it is to be gathered from the terms of the grant in Hunter’s deed.” Now if that is the law, that you have to look to the deed for the extent of it, referring to it we find the grant was the. free use and privilege of an open road, forever. If there was any doubt as to the nature or extent of the grant, the well settled rule would require to be taken most strongly against the grantor ; but there is no ambiguity about it. On the .contrary, it is clear and explicit and instead of restricting or in any way limiting the use, it is declared to be free and an open road forever. It needs no citation of authorities to show that such a right of way maybe used and enjoyed by those Who own or lawfully occupy any part of the dominant tenement for any purpose to which it may from time to time be legitimately applied. Only those who may be properly regarded as trespassers on the dominant tenement can be excluded.’*

N. C. McLean, and C. T. ftfeyer, for Plaintiff in Error.

Wann áf Bow, for Defendant in Error.

I cite that to show that there they hold you cannot look beyond a deed for the purpose of determining the question.

And in the Massachusetts report, 107, case of Dennis v. Wilson, page 591: “ The owner of a lot of land adjoining the highway sold and conveyed part of it, excepting and’reserving a right of way extending from the highway along the line of division between the part sold and the rest of the land for a distance less than the whole depth of the lot. Held: That the right was appurtenant to the rest of the land, whether or not it was limited to the grantor’s life.” This is what the court say among other things : “When there is in the deed no declaration of the intention of the parties in regard to the nature of the way, it will be determined by its relation to other estates of the grantor, or its want of such relations. The right of way excepted and reserved extended from the highway in front and along the line of the division for a specified distance, less than the whole depth of the lots, etc.” — without reading more there. “Its character must be determined by the purposes for which the way was intended to be used. Whether a way is appurtenant to land depends upon its relation to the land in respect of use, ánd not upon any correspondence with the title of the owner in respect to duration.”

Now, how is this in fact. This party couldn’t use that switch; the switch is on the private land of Holwick, and the private land of the machine company. Here is a way all around it. . Here are two streets; this lot is on two streets; it abuts on this alley. It doesn’t terminate at this lot, nor in this lot. And taking the facts of this case, with these authorities, the definition they give as to what would make it appurtenant, the majority of the court think that this way was merely a way in gross, reserved by the McLain Machine company for their benefit, and when they conveyed other real estate they had, different from that, not connected with it, why, they could not convey that' reservation. So we will have to dismiss this petition, at the costs of the plaintiff.

POMERENE, J.

, I am wholly unable to agree with my brothers on the subject on this point % I think it is connected with the part of the land retained.

Now, this machine company owned a certain tract of land; part of it lies between Poplar street and South Market street, and part of it still west of Poplar street. In selling portions of that off, the west part, that which lies between Poplar street and South Market street — a part of that consideration in the machine company, they agreed to leave an alley open on the west part of that land which they retained; Holwick agrees to pay so much money, and agrees to leave a driveway open to that alley, to connect that part of the land, and it seemed to me it is part of it. That is the point on which I disagree with my brothers.

For Common Pleas decision, see 1 O. D., 396.  