
    ACQUIREMENT BY PRESCRIPTION OF TITLE TO A WAY.
    Common Pleas Court of Montgomery County.
    Jesse L. Jackson v. Henry L. Bohlender et al.
    Decided, May, 1907.
    
      Easement — Title to a Way Across Land of &>'antor — Not Reserved by Implication, Unless — Acquirement of, by Prescription — Not Divested by Non-User, Unless — Continuous and Peaceable Usage — Temporary Abandonment — Injunction.
    1. Under a rule that a way is not reserved by implication unless it is one of strict necessity to the remaining lands of the grantor, a claim of right in a way can not be based on testimony which leaves it clear that by going another way the grantor can get out to the highway upon which his land faces and thus have ingress and egress to his land without great inconvenience.
    2. But where use, occupation and enjoyment of a way has continued without interruption for more than twenty years adverse to the rights of the owner of the tract, the identity of the way being preserved and its use not being permissive but as of right, a title is acquired by prescription.
    3. A title thus acquired in a way is not divested by non-use, unless it be by a total cessation of all acts of enjoyment of the way for the same period necessary to create the original presumption of title by user; and a temporary abandonment of the way, or an interruption in its use on account of objections by the owner of the servient estate, does not operate to divest a title thus acquired by prescription.
   Snediker, J.

This is a, ease in injunction. Plaintiff in his amended petition says he is the owner of and in possession of all of the northeast quarter of section 13, town 5, range 5 Bast, etc., in Butler township, Montgomery county, Ohio, except thirty-four' aeres oif of the south part thereof, conveyed by one William Newman in his lifetime to one Richard Cox, by deed dated July 4, 1813. Jflaintiff’s tract of land contains 128y^ acres.

Plaintiff further says that prior to the conveyance to Cox said Newman was the owner of the entire quarter section and then built a dwelling and farm buildings in the northeast corner thereof; that he then opened and constructed a roadway about twenty feet wide from said buildings to the National road which passed through the south part of the quarter section; that said roadway was his only way of ingress and egress and that it has so continued to this date. That after the roadway had been opened and in use for several years he made the aoove conveyance to Oox; that the lands conveyed to Cox lay between the remaining lands of Newman and the National road, and the roadway made by Newman intersects the north line of said thirty-four acre tract about twenty-five rods west of the east line of said quarter section, and passes southwardly across the thirteen acre tract now owned by the defendants to the'said National road; that Newman in making the conveyance to Cox reserved said roadway and same has been used openly, notoriously, uninterruptedly, adversely and continuously, from 1813 to the present time by plaintiff’s grantors, with full knowledge and acquiescence of defendants’ grantors, and is still the only roadway leading to and from the said buildings.

Plaintiff further says that the title of Cox in the 13 acres now owned by defendants, through a number of transfers reached one Ransom P. Newman on August 18, 1868; that on the de.ath. of William Newman aforesaid, Ransom P. Newman, a son, and Mrs. Jacob B. Lodge, who was a daughter, became the owners of this 128% acres; that afterwards, on September 16th, 1899, Ransom ’P. Newman conveyed to Jacob P. Lodge for a consideration of $4,300 the undivided one half of plaintiff’s land, together with all the privileges and appurtenances thereunto belonging. At that time Ransom P. Newman lived on the thirteen acre tract with full knowledge of all the facts in relation to the roadway.

Plaintiff further claims that Lodge to the time of his death, in 1903, used the said roadway, and that in that year this defendant, *Henry Bohlender, as his administrator, conveyed to Benjamin F. Smith, from whom plaintiff derives his title, the said 134% acres owned by Lodge; that the Bohlenders never objected to Smith using the roadway across the thirteen acres, and in October, 1904, recognized his right so to do.

For a second cause of action, plaintiff further reciting as to his title claims that defendants had knowledge of all the facts at the time the thirteen acre tract was conveyed to them.

Defendants claim to be the absolute owners of said roadway; that plaintiff has not the right to pass over the same, and in April, 1905, notified him to cease to use the same, and threatened to close up and obstruct the roadway so as to prevent plaintiff from passing from his buildings to the public highway; that they threatened prosecution, which prosecution would cause a multiplicity of suits without determining their rights.

Plaintiff further claims the closing up of the highway would irreparably damage him, and asks injunction. A temporary restraining order was issued and continued.

To this petition the defendants answer, admitting the ownership by the plaintiffs of the lands described in the petition, the ownership of the Newmans at the time stated, and the transfer to Cox and the title to the thirteen acre tract and that it is located as alleged, and that a driveway was maintained over the same. Defendants deny that said roadway was the only means of ingress and egress of William Newman and the subsequent owners, and aver that plaintiff’s lands fronted and had and still front and have an opening on the National road, the same as the property of the other defendants. They deny the reservation of the roadway in the deed of Newman to Cox, or that same has been notoriously, adversely, etc., used as claimed, and claim that such use has always been only by consent and permission of the owners of the thirteen acre tract, residing thereon, including these defendants, and that same was never used under claim of right or adversely; they deny the receipt of any consideration for same, or any agreement in relation thereto, and claim the exclusive right to use that roadway over their lands, and ask for a dissolution of the restraining order and the quieting of their title to said roadway.

Plaintiff, by supplemental petition, more properly an amendment to the petition, sets up a third cause of action, as follows:

“Says that after the sale of the thirty-foxxr acres of land in the southeast corner of section 33, town 5, range 5, to Richard Cox by William Newman and after the roadway in controversy had been opened, improved and used by William Newman, to and from his buildings as in the first cause of action set out, that said roadway was opened up and extended north through the lands of William Newman and others to a public highway, known as the Springfield road, a distance of about one mile; that said roadway was opened and used by the public as a highway without objection and without interruption for more than twenty-one (21) years and was in all respects a highway for the traveling public.

“Plaintiff says that after said roadway had been opened and in use for probably forty years, that other roads were opened and better improved than this one and that the northern portion of said highway became of little value to the traveling public, that same was and for several years has been closed from the plaintiff’s north line to the north end thereof, but that said roadway from plaintiff’s buildings south to the National road never has been closed and that the location is the same as it was when the roadway extended to the Springfield road and that the same for years past has been and now is a public highway over which the public or any member thereof has a perfect right to pass at all times.

“Plaintiff further says that the defendants have no right to obstruct said roadway or interfere with the use thereof as is complained of in plaintiff’s fir^t and second causes of action in his amended petition. ’ ’

To this supplemental petition the defendants filed a general denial.

The evidence in the case shows, so far as the 128% acres of plaintiff is concerned, that on December 30, 1811, a patent was issued by the United States government to William Newman, of Montgomery county, Ohio, and omitting the separate conveyances of numerous heirs which were made from time to time to Jacob P. Lodge; the whole title seems to have become vested in Lodge in partition proceedings by deed of Frederick Weis, sheriff, on January 10, 1885. Lodge died intestate, leaving no widow or next of kin, except nephews and nieces, and on October .14, 1903, Henry Bohlender, the defendant, was appointed his administrator. The land was sold to pay debts and on October 4, 1904, Bohlender, as such administrator, cnveyed the land to Benjamin F. Smith, who in turn conveyed it to Jesse L. Jackson, this plaintiff.

So far as the thirteen acre tract of the defendant, -Bohlender, is concerned, the evidence shows that same is part of the land granted to William Newman by the patent above referred to, and that on July 14, 1813, William Newman conveyed it to Richard Cox; that Cox afterwards, on September 19, 1835, conveyed it to Henry and David Crowell; that Henry Crowell, who in some way had come into possession of the entire title, conveyed it on December 5", 1840, to Jacob Lodge; that on March 2, 1863, Jacob Lodge conveyed it to Robert Weaver; that on October 12, 1865, Robert Weaver conveyed it to Abraham Stutsman; that on August 10, 1869, Abraham Stutsman conveyed it to Ransom P. Newman, and about October 29, 1902, said lands were conveyed to the defendant, Henry Bohlender.

In none of these conveyances is any mention directly made of the roadway in question in this case. The testimony of several of the reputable and respectable residents of that locality, some of them old men — fifty, sixty, sixty-five, eighty years old, who had known the farms and roadway since they were boys— the testimony of these men shows that the roadway as it exists today was in continuous use by the Newmans and by Jacob F. Lodge and was the only way used for approach to the National road from the buildings on the William Newman tract; and there is no evidence that we recall that such use was questioned by such owners of the thirteen acre tract until Albert Weaver came into possession of it in 1863. This was fifty years after the deed was made from William Newman to Cox of the thirteen acre tract, and after that tract had been owned by Cox, the Crowells and Jacob Lodge, Weaver at that time (1863) tried to close the road against the Newmans; but after consultation with an attorney in this city he was advised that it could not be done.

About 1880, after Ransom Newman came into possession of the thirteen acre tract in 1868, Lodge and Newman having quarreled, Newman objected to the use of the road by Lodge; and Mr. E. S. Waymire and others testified that for eight or ten years Lodge came out to the National road across his own land, which he could do by a more circuitous route. During this period of controversy between Lodge and Weaver and Lodge and Newman, at times removable rails were put across the road, but never as I recall any permanent- obstruction. The testimony of Mrs. Smith is to the effect that when the property was deeded to her husband by Bohlender, as administrator, she was present, and Bohlender said the road would be kept open. Bohlender’s testimony is to the effect that he forbade Jackson the use of the road in February of this year. Smith’s deed to Jackson is dated January 2, 1905.

This is a concise statement of the evidence. These being the facts, what is the law of the case ?

In order to clear the ease we should first dispose of the claim made in the third cause of action and in plaintiff’s supplemental petition, which is that the roadway in question was a public road extending from the National road to and beyond the home of William Newman and connecting with the Springfield road. The proof on this point is not sufficient to establish the fact. It was to some extent so used, but never in the sense that it became a public highway, and we do not so find.

Plaintiff’s claim, as we view the case, is based on the ground 'of an easement by prescription. Blackstone, in his Commentaries, Yol. 2, page 35, says:

“A fourth species of incorporeal hereditaments is that of .ways; or the right of going over another man’s ground. I speak not here of the King’s highways, which lead from town to town; nor yet of common ways, leading from a village into the field, but of private ways, in which a particular man may have an interest and a right, though another be owner of the soil. This may be grounded on a special permission; as when the owner of the land grants to another a liberty of passing over his ground, to go to church, to market, or the like; in which case the gift or grant is particular, and confined to the grantee alone; it dies with the person; and if the grantee leaves the country, he can not assign over his right to any other; nor can he justify taking another person in his company. A way may be also by prescription ; as if all the inhabitants of such a hamlet, or all the owners 'and occupiers of such a farm, have immemorially used to cross such a ground for such a particular purpose; for this immemorial usage supposes an original grant, whereby a right of way thus appurtenant to- land or houses may clearly be created. A right of way may also arise by act apd operation of law; for if a man grants me a piece of ground in the middle of his field, he at the same time tacitly and impliedly gives me a way to come at it; and I may cross his land for that purpose without trespass. For when the law doth give anything to me, it giveth impliedly whatsoever is necessary for enjoying the same.”

This is the general rule laid down by the great commentator.

The particular facts in this case are that William Newman deeded to Richard Cox the thirteen acres in question without any specific reservation of the right of way. The grant was general in this and all subsequent deeds.

The Supreme Court of Ohio, in 56 O. S., page 479, say (2d syllabus) :

“It is a general rule that one can not derogate from his grant so as 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 can not 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 long before the conveyance, and of which the grantee had notice at the time.”

Under the rule here laid down by the Supreme Court, no claim of right could be made by the plaintiff under any instrument in his title, as of a reservation by implication or by necessity, for the testimony in the case shows that by going by another -way he can get out to the highway at the National road, on which his land faces, without any great inconvenience, giving him a way both of ingress to and egress from his land.

But has such right arisen by prescription ? The definition of prescription is “a title acquired by use and time and allowed by law.”

These things are necessary to establish a right by prescription:

(1) Use and occupation or enjoyment.

(2) The identity of the thing enjoyed.

(3) That it should be adverse to the rights of some other person.

“A title by prescription differs from a title by grant in this; that use and occupation are substituted in place of a grant, for prescription always supposes a grant to have existed and to be lost or destroyed by time or accident.

“A prescription is a title the validity of which depends upon continuous and. peaceable usage.

“To constitute a highway by prescription the use for the requisite time must be'uninterrupted, adverse and under a claim of right.” And “such right of way over another’s land can not be acquired without showing the definite line of travel.”

The prescriptive period in Ohio is twenty-one years.

I think there can be no question in this case that prior to the year 1863, when the first known controversy arose between the Newmans and the owners of the thirteen acre tract, which is a period of time covering fifty years, there was use and occupation and enjoyment of this roadway; that its identity as such yas preserved, and that it was adverse to the rights of the owners of the thirteen acre tract, no grant or reservation by implication coming within the terms of their deeds; that such use was continuous and uninterrupted and kept up as of right, and not merely permissive on the part of the owners of the thirteen acre tract; so much so, that it was a fixed and definite line of travel during all of that period. Subsequent controversies as referred to in my statement of the evidence, from time to time caused a temporary suspension of the use of the roadway, which was again resumed after each dispute.

Having used the roadway as Í have said to 1863 and having acquired a prescriptive right thereto, has such title been divested by the temporary abandonment referred to in the evidence ? -

Washburn on Easements and Servitudes, page 675, Section 8, says:

“Abandonment is a simple non-user of an easement, and in order to make out an effectual answer to the claim upon that ground, L find it perfectly well settled that the enjoyment may, all acts of enjoyment must, have totally ceased for the same length of time that was necessary to create the original presumption. ’ ’

And the cases cited below not only sustain this position, but that non-user for a longer period of time than necessary to acquire a right is only evidence of an abandonment, where the right has been gained by user. There must be an adverse enjoyment by some party adversely interested for twenty years, to give a non-nser the effect of evidence. Such non-user must be accompanied by acts or declarations indicating an intent to abandon the right, and the non-user must have continued for twenty years, or other persons have been induced, by such acts or declarations of abandonment, to expend money upon the premises over which the easement once existed. Quoting 17 Mass., 289; 10 Pick., 310; 23 Pick., 141, and other authorities.

8. II. Kerr, for plaintiff.

Raymond B. Better, for defendant.

And on page 672, Washburn on Easements and Servitudes, the author says:

“A mere obstruction, however, of an easement, a way for instance, caused by the owner of the servient estate, for less than twenty years, though yielded to by the owner of the easement, would not bar the right any more than a mere non-user of it for that length of time. An obstruction to its use can not be said to be an adverse possession of an easement, since an easement is not capable of actual possession apart from its enjoyment.” Also, see 21 C. C., 73.

In this case we find no such non-user and abandonment, but rather a continuance of the use and a recurring protest against the closing up of the way, this 'protest being carried into this present case.

We find, therefore, that the right of way exists as a prescriptive right of this plaintiff and his grantors, and the defendants are permanently enjoined from in any manner obstructing or interfering with said roadway, and from maintaining any obstruction which they or either, of them have or may place thereon, and from in any way interfering with plaintiff’s free use thereof.  