
    St. Michaels Russian Orthodox Greek Catholic Church v. Clark.
    (Decided June 2, 1930.)
    
      Mr. M. M. Lucak, Jr., and Mr. C. J. Bannick, for appellant.
    
      Mr. Harry J. Elconin, for appellee.
   Sullivan, J.

This cause is here on appeal from the common pleas court of Cuyahoga county, and the question is whether a sewer on adjoining property exists by way of license or easement, and the determination of this question decides whether the appellant is entitled to an injunction to prevent the owner of the land through which sewer runs, either by easement or license, from prohibiting its use.

The appellant is a religious organization located in Cuyahoga county, and it purchased the site on which the church stands from Elizabeth and Joseph Antonoff; the latter, at the time of the transaction, being the priest of the religious body. In the rear of the church, on the east side thereof, was property which was owned by Elizabeth Antonoff, the wife of the priest. The church edifice was built about 200 feet from the sidewalk, and it appears that the level of the floor of the basement was about twenty-nine inches below the level of the sewer on Union avenue, and this prevented connection with the sewer on Union avenue, so that it became necessary, in order to drain the basement of the church through its sewer, to connect with some trunk line or branch of a sewer which was on a lower level than Union avenue, as to empty at Union avenue would be compelling drainage to run uphill, which would necessitate some outside appliance in the Way of machinery; and, under such circumstances, Elizabeth Antonoff was drawn into the transaction, because she owned the lot on the east, which abutted on Gibson avenue, and accordingly permission was sought to run the sewer pipes from the basement of the church to Gibson avenue instead of to Union avenue in order to get proper drainage, and this permission was granted.

The church edifice was completed in 1925, and since that time the disposal of the sewage has been through the adjoining property of Elizabeth Antonoff, and on through to Gribson avenue, instead of Union avenue. Upon the request of Mrs. Antonoff, there was a branch elbow constructed on her property at the same time that this sewage was provided for, so that she might be able to use the same pipes, in case of construction of a building on her property.

Subsequent to these happenings, Joseph Antonoff ceased to be the priest of the congregation, and thereafter, in September, 1926, the Antonoff lot was purchased by one Mamie Clark, and thereafter the sewer on her property was by her rendered useless as a channel for the sewage from the church because of being torn up and dammed by the new owner. This left the church without drainage unless new provision therefor was made. Thereupon an injunction was applied for to restrain Mamie Clark from further interfering with the sewage on her lot purchased from Mrs. Antonoff. The temporary restraining order was granted by the court below, but on final hearing the court refused to make the temporary restraining order permanent, and consequently the case is here. The question therefore arises as to whether the permission granted by Mrs. Antonoff is binding upon Mamie Clark, and, if it is, then the injunction should be granted and made permanent. The determination of this question depends upon whether the permission was a mere permission or a grant running with the land giving the church the right to exercise power, dominion, and control over the sewer.

It is claimed that there was an implied grant, even though not an express one, which is binding, and that it has the force and effect to give to the church the right to control and have dominion over the east lot with respect to drainage through the sewer, permission to construct which was given by Mrs. Antonoff.

Of course, there was nothing but an oral agreement. In order to be an easement there should be compliance with the statute of frauds, because an easement is a grant which the owner of one estate may exercise over the property of another for the benefit of the party exercising the power.

The statute of frauds, Section 8620, General Code, provides that no lease or interest in land shall be granted or assigned except by a deed, or note in writing, or memorandum signed by the party to be charged, or his agent duly authorized in the premises, and of course an easement may be granted by express or implied authority or by prescription. The latter doctrine is not applicable in the case at bar because twenty-one years had not expired. It was not an express agreement because whatever was done was based upon conversation. An easement cannot be created by parol. Yeager v. Turning Co., 79 Ohio St., 121, 124, 86 N. E., 657, 19 L. R. A. (N. S.), 700, 128 Am. St. Rep., 679; Thompson on Real Property, Section 314.

In Rodefer v. Pittsburg, Ohio Valley & Cincinnati Rd. Co., 72 Ohio St., 272, 74 N. E., 183, 70 L. R. A., 844, it is held that a permanent right in property owned by another, for a particular purpose and without Ms consent, is such an interest as cannot pass on oral authority, and that therefore the statute of frauds in such a case is applicable.

It appears to us from the record that the conversation instead of being an easement amounts to a simple permission, or a grant for a temporary purpose and is not irrevocable under the authority of Yeager v. Tuning Co., supra, because a license is personal, nonassignable, conferred by parol, and for the purpose of doing a certain act upon land, but without conferring any right of possession or interest in the land itself.

At the pleasure of the licensor the promise or grant or license is revocable, even though there is an acquiescence for a certain period of time, as in the case at bar. The authority quoted has gone so far as to make this rule applicable even where absolute improvements have been made. It has been held in Wilkins v. Irvine, 33 Ohio St., 138, as we read the syllabus, that the pleasure of the licensor determines the period of the license, and, under that holding, even if there is a written license to enter upon and plant pipes in the land of another, with the privilege of entering and repairing the same, it creates no interest or incumbrance upon the land, and thus a warranty deed conveying the premises may be executed because the grant is no incumbrance and is no interest running with the land.

In the instant case there is no record of the grant, no knowledge on the part of any one except the contracting parties, and its nature and character are such that it could not, in any event, bind a subsequent purchaser and owner. The question of strict necessity does not arise in the instant case, because connection could be made with the sewer on Union avenue; and the question of additional expense does not alter the doctrine, because land cannot be permanently incumbered on a private oral agreement as against the provisions of the statute of frauds.

It is laid down in Meredith v. Frank, 56 Ohio St., 479, 47 N. E., 656, that it is a general rule that to warrant a right of way reserved by implication there must be foundation for the rule of strict necessity, and that it is not merely a matter of convenience, providing the grantor has another mode of access, however inconvenient it may be, and he cannot claim implication even though there has been a use of the adjoining property for a period of time. This holding is supported by Jordan v. Breece Mfg. Co., 89 Ohio St., 311, 106 N. E., 46; and in Jones Fertilizing Co. v. C., C., C. & St. L. Ry. Co., 7 N. P., 245, 251, 2 O. D., N. P., 511, it is held that necessity does not exist where there is no unity of ownership in the dominant and servient estates, and the reason given is that no one can have a right of way by reason of necessity over the land of a stranger. But, as before stated, the question of strict necessity is not claimed in the instant case, and it is practically admitted that such condition does not exist, and the only claim that is made is that it would cost more to compel the use of the sewer on Union avenue.

The question here, therefore, is one of pure law, and we are bound by the decision of the courts and the facts as recorded in the instant case, and holding as herein set forth a decree may be entered for the defendant.

Decree for defendant.

Vickery, P. J., and Levine, J., concur.  