
    Gibbons v. Ebding.
    
      Deed recital — That specific premises be used as driveway by grantee, etc. — Is a reservation of easement — Which passes with the land — Easement owner may put gates across same, when — Such driveway will not be enjoined, when — Property rights.
    
    1. A recital in a deed that a specific part of tbe granted premises is to be used as a driveway in common by tbe grantees and tbe owners of adjoining land is a reservation of a right in the nature of a servitude or easement in the property granted appurtenant to the adjoining land of the grantor and binding on that conveyed to the grantee, and the right and burthen thus imposed will pass with the lands to all subsequent grantees and will be protected or enforced in equity.
    '2. The owner of the servient estate may use the land for any purpose that does not interfere with the easement, and in the absence of anything in the deed or in the circumstances under which it was acquired or used, showing that the way is to be an open one, he may put gates or bars across it unless they would unreasonably interfere with its use.
    
      3. Where the reservation is of “the westerly twelve feet of the above described property to be used as a driveway in common by the owners of property on Willson avenue adjoining the described twelve-foot driveway and by the above grantees,” and there was nothing to show that the driveway was to be an open way, but it is shown that it is used by trespassers, who commit nuisances therein and thereby reduce the rental value of the property, equity will not enjoin the erection or maintenance of a gate.
    (No. 8405
    Decided June 21, 1904.)
    Error to the Circuit Court of Cuyahoga county.
    The record title of this case is William J. Gibbons and Agnes Gibbons, plaintiffs in error, v. Marie Ebding, defendant in error.
    In 1890, one, Southern owned a tract of land at the northeast corner of Willson avenue and Kinsvater street, in Cleveland, fronting one hundred and twenty-four feet on the east side of Willson avenue and running east one hundred and sixty feet along the north side of Kinsvater street.
    He conveyed several lots out of the tract, fronting them on Willson avenue and describing them in the deeds as running east one hundred and twenty feet “to a twelve-foot driveway.” Subsequently he conveyed a strip forty feet in width off the east end of the tract to the plaintiffs in error and in the deed recited, “The westerly twelve feet of the above described property to be used as a driveway in common by the owners of property on Willson avenue adjoining the described twelve-foot driveway, and by the above grantees.”
    At that time he still owned a lot fronting on Will-son avenue, a part of which thereafter, by mesne •conveyances, passed to the defendant in error, the deed from Southern reciting that the premises extended “to a twelve-foot driveway,” and the deed to the defendant in error reciting that the premises extended “to a proposed driveway twelve feet wide. ’ ’
    The defendant in error, plaintiff below, brought, suit to enjoin the defendants from building a fence-along the west side of the driveway and from erecting a gate across it, and for damages.
    The defendants answered, averring that they owned the twelve feet in fee simple; that the.plaintiff had no title or easement in the twelve feet strip,, and-that a gate across it was necessary to keep the public from trespassing.
    The courts below granted the relief prayed for. The circuit court in its finding of facts found as follows:
    “Eighth. Said driveway was used by plaintiff and other grantees of the property abutting on the same and fronting on Willson avenue, for taking in. coal, taking out ashes, hitching horses, and as an approach to the stable of plaintiff, which she built after she bought the property. It was also used by trespassers who made use of the twelve-foot strip' and committed nuisances therein, and the rental value of defendant’s property was reduced thereby.”
    
      Messrs. Goulder, Holding & Hasten, for plaintiffs, in error.
    The first question for consideration is, whether plaintiff has an easement over these twelve feet. An easement can only be created by grant, express, or implied, or by prescription, and as the court found plaintiff has no right by prescription, she-must rely upon an easement by grant. This easement can only be created by deed or by a conveyanee operating as a deed. Jones on Easements, sec. 80.
    Looking at deeds of plaintiff and her predecessors in title, the court will see that no grant was made to her or them of an easement over these twelve feet, and that the only mention made of a driveway in the deeds to any person along Willson avenue is as a boundary of the lands conveyed.
    It will also be observed that while the deeds of her predecessors in title are “to a twelve-foot driveway,” that her deed is “to a proposed driveway.” Eggleston v. Bradford, 10 Ohio, 316.
    It is evident that there never was an express grant of an easement over these twelve feet, and that the grant to plaintiff was not to a driveway but “to a proposed driveway,” indicating that at the time of the grant there was no driveway there. The land of plaintiff did not include these twelve feet.
    “When lands are granted by metes and bounds, all the area within those bounds, and no more, passes.” Lockwood v. Wildman, 13 Ohio, 430; Lembeck v. Nye, 47 Ohio St., 352. Plaintiff cannot, therefore, claim any easement by her deed.
    The circuit court held that these twelve feet were appurtenant to the property granted plaintiff.
    We submit that cannot be, because the court finds that the land at the time of the grant was unimproved and that the twelve feet were not and are not a way of necessity, the owners of lands on. Will-son avenue have access to their lands from that public way.
    Nothing passes by the word appurtenances except such rights, privileges or easements as are strictly necessary and essential to the proper enjoyment of the estate granted. It must exist at the time of the grant. Ogden v. Jennings, 62 N. Y., 526; Griffiths v. Morrison, 106 N. Y., 165; Root v. Wadhams, 107 N. Y., 384.
    A mere convenience is not sufficient to create an easement. Parker v. Bennett, 93 Mass., 388; 3 Washburn Real Property, 395. We, therefore, submit that an easement was not acquired by plaintiff as an appurtenance.
    The fact that she subsequently built a barn to which access was had by the alleged driveway through the yard of defendants, did not constitute it an appurtenance. Meek v. Breckenridge, 29 Ohio St., 649.
    What effect had the following in defendant’s deed from Southern: “The westerly twelve feet of the above described property to be used as a driveway in common by the owners of property on Willson avenue adjoining the described twelve-foot driveway, and by the above grantees?”
    Undoubtedly this was a restriction upon defendant’s use, but did the grantor reserve an easement for himself and assigns, and, if so, did he thereafter grant an easement to plaintiff’s predecessor in title, and can plaintiff claim an easement when her grantor deeded “to a proposed driveway?”
    We maintain that Southern neither made a reservation nor an exception in his own behalf. Engel v. Ayer, 85 Me., 453; Ashcroft v. Railroad Co., 126 Mass., 198.
    The alleged easement cannot be said to be an exception because the driveway had no existence at the time of the grant. It cannot be said to be a reservation 'because the deed contains no words of reservation, which, must be as explicit as the grant; and to create an easement in fee must contain worus of inheritance. Wilder v. Wheeldon, 56 Vt., 350; Bean v. French, 140 Mass., 229; Claflin v. Railway Co., 157 Mass., 489; Kister v. Reeser, 98 Pa., 1-5.
    We contend, further, that Southern not having-made any reservation to himself, he could not make-a reservation in favor of a stranger to the deed. Murphy v. Lee, 144 Mass., 371; Hornbeck v. Westbrook, 9 Johns., 73; Craig v. Wells, 11 N. Y., 315;. Ives v. Van Auken, 34 Barb., 566; Young, Petition of, 11 R. I., 636; Hill v. Lord, 48 Me., 95; Devlin on Deeds, sec. 222.
    There are no words of reservation in defendant’s-deed, and while Southern did restrict defendant’s, use, he could claim no further interest in the twelve-feet without reservation of an easement, which we-have seen must be created by words of limitation and be as explicit as the grant. It is also to be remembered that there was no driveway there, and that the land was unimproved, having no buildings or fences thereon at the time of the grant. We submit that, notwithstanding the restriction upon defendants, the character of defendant’s right of use is not under consideration, but plaintiff’s right of use, and that no easement was created in favor-of plaintiff' and no reservation was made by Southern to himself, and certainly none to his assigns.
    Nor did Southern attempt to make a grant of an easement to any of his grantees, for he made no-mention in any of the deeds of a driveway except as a boundary. Nor did plaintiff’s grantor attempt to confer any right, but made a grant “to a proposed driveway twelve feet wide.”
    
      The contention contracts itself to this: Does a ■person by a mere restriction of use in his grant reserve to himself any right of use without explicit words of reservation?
    Passing that question, does a grantor by restricting the use of part of a parcel conveyed to one .grantee thereby grant an easement to a subsequent grantee of another parcel without other words than those making the land in which there is only a. restricted use a boundary? Surely the mere bounding •of lands by a private driveway does not give the grantee an easement thereover when it is not a way of necessity. Yet that is this case. Indeed, plaintiff does not rely upon her own deed as a conveyance ■of right of use, but bases her claim of use upon the words in defendant’s deed. And upon them the ■circuit court bases its judgment.
    That an owner of a tract of land may plat it and ;grant parcels in the tract with reference to the plat by which all grantees are bound, is not this case, and ■cases decisive of rights under those circumstances have no application herein. This case is confined •solely by. the deeds, some of which were given before that of defendants’ and some afterwards.
    We do- not think, in our view of the law applicable to this case, that the question of the right of plaintiffs in error to maintain a gate on Kinsvater street at the end of the twelve feet can be reached.
    Even where there is a grant of an easement, if there is nothing in the grant which in terms restricts the owner from enclosing the way by a gate which •can be opened and closed, the owner may erect one. Washburn on Easements, 255; M. P. Church v. Laws, 
      4 Circ. Dec., 562; 7 C. C. R., 218; affirmed, 55 Ohio St., 662; Knobloch v. Hollinger, 6 Circ. Dec., 424; 9 C. C. R., 286.
    
      Messrs. Kerruish, Chapman & Kerruish, for defendant in error,
    submitted no printed brief.
   Summers, J.

What right or easement, if any, in the twelve feet driveway the owners of the lots conveyed to Southern had prior to his conveyance to the plaintiffs in error, it is not necessary to determine.

From his deed to the plaintiffs in error it is ap-. parent that Southern intended therein to create or reserve a right to himself and to the owners of lots on Willson avenue a twelve feet strip, for a driveway to use in common with the grantees, and so was created an easement in the land granted appurtenant to the land for the benefit of which it was created and then owned by him.

In Whitney v. Union Railway Co., 11 Gray, 359, 363, Bigelow, J., says: “Every owner of real property has the right to so deal with it, as to restrain its use by his grantees within such limits as to prevent its appropriation to purposes which will impair the value or diminish the pleasure of the enjoyment of the land which he retains. The only restriction on this right is, that it shall be exercised reasonably, with a due regard to public policy, and without creating any unlawful restraint of trade. Nor can there be any doubt that in whatever form such a restraint is placed on real estate by the terms of a grant, whether it is in the technical form of a condition or covenant, or of a reservation or exception in the deed, or by words which give to the acceptance of the deed by the grantee the force and effect of a parol agreement, it is binding as between the grantor and the immediate grantee, and can be enforced against him by suitable process, both in law and equity. ’ ’

And in Coudert v. Sayre, 46 N. J. Eq., 386, 395, Van Fleet, Vice Chancellor, states the following as his conclusions from an examination of a number of authorities: “The doctrine now in force on this subject I understand to be this: that when it appears by the true construction of the terms of a grant that it was the well-understood purpose 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, no matter in what form such purpose may be expressed, whether it be in the form of a condition, or covenant, or reservation, or exception, such right, if not against public policy, will be held to be appurtenant to the land of the grantor, and binding on that conveyed to the grantee, and the right and burthen thus created and imposed will pass with the lands to all subsequent grantees. And any grantee of the land to which such right is appurtenant, acquires, by his grant, a right to have the servitude or easement, or right of amenity, as it is sometimes called, protected in equity, notwithstanding that his right may not rest on a covenant which, as a matter of law, runs with the title to his land, and notwithstanding that it may also be true that he may not be able to maintain an action at law for the vindication of his right.”

It follows that the circuit court was right in con-eluding that the plaintiff below, by her deed, acquired an easement to the driveway over the twelve-foot strip and that she was entitled'to an injunction protecting her in the right to use it, but upon what ground the plaintiffs in error were enjoined from enclosing it by a gate is not apparent.

There is- nothing in the language of the reservation of the right to use the twelve feet as a driveway that indicates that it was to be either open or public. On the contrary it is reserved to be used in common by the owners of property on Willson avenue adjoining the driveway, and by the grantees. The property of plaintiffs in error is not bounded on the east by a public way or street, but by a beer garden, it is said, and the court expressly finds, that the driveway is also used by trespassers who commit nuisances therein, and that the rental value of. plain-, -tiff’s property is reduced thereby.

“Where a right of way is created by reservation, the grantee acquires the property subject only to this right, and may use the land .for all purposes not inconsistent with it. 'The only limitations upon the right of the grantee are such as are necessary to the proper use of the right of way; nothing which is not expressly reserved will be regarded as an incident to the reservation except that which is necessary for such reasonable enjoyment and use.’ Accordingly it was held that the erection of gates or bars at the termini of the way was not an unreasonable interference with its use.”

“The rule is general that the landowner may put gates and bars across a way over his land, which another is entitled to enjoy, unless, of course, there is something in the instrument creating the way, or in the circumstances under which it has been acquired or used, which shows that the way is to be an open one. The easement of way is for passage only. The land remains the property of the owner of the servient estate and he is entitled to use it for any purpose that does not interfere with the easement.” Jones on Easements, secs. 413, 407; Washburn on Easements, 255; Methodist Prot. Church v. Laws, 4 Circ. Dec., 562; 7 C. C. R., 211.

The decree of the circuit court is modified to the extent that it allowed an injunction against the erection and maintenance of a gate, and as so modified, is

Affirmed.

Spear, C. J., Davis, Shauck, Price and Crew, JJ., concur.  