
    No. 192
    HOZSUCH v. ST. CLAIR CEM. ASSO.
    No. 19559.
    Supreme Court
    On motion to certify.
    Dock. Jan. 11, 1926;
    4 Abs. 56.
    445. EASEMENTS — Does a paper writing executed, witnessed and acknowledged by both parties, granting the right to use water from a spring, grant such an interest in land as will bind subsequent purchasers, or is it a mere personal contract?
    
      Attorneys — W. K. Kennon for Hozsuch; Thornburg & Lewis for Association; all of St. Clairsville.
   The St. Clairsville Cemetery Association was the owner of an easement, evidenced by a paper writing, by virtue of which it had the right to the use of surplus water from a spring located on_ land belonging to Andy Hozsuch. The Association had the right to enter Hozsuch’s premises to maintain and repair a pipe line which carried the water. In consideration for this easement it was to maintain a fence between its property and the land of Hozsuch and also maintain a trough at the spring for watering stock. The writing provided that the agreement was to become null and void in the event of failure to maintain the trough and fence.

The Association brought this action originally in the Belmont Common Pleas for an injunction prohibiting Hozsuch from interfering with the easement but did not set up the paper writing in the petition. A temporary restraining order was granted but upon the hearing, of the case it was dissolved. The Court of Appeals reversed this judgment.

It seems that what Hozsuch commenced to do was to confine the water to a surface channel to relieve his lands from a swampy condition resulting from the overflow from the leaking trough which the Association was to maintain.

Hozsuch in the Supreme Court, contends:

1. That the action in the Common Pleas was premature because he had done nothing in the way of diverting the water.

2. That the Association was not using the water or the pipe line “the same as it now is”, as provided in the writing.

8. That the paper did not grant any interest in his lands; that it was simply a contract with a former owner and therefore does not bind him.

4. That the Association failed to set up in its petition the paper writing which is the basis of the claim and therefore does not justify the legal conclusion that the Association has any interest or easement in the land.  