
    Davidson v. Dunn et al.
    
      Real property — Adverse possession — Prescriptive title in landlord by tenant’s occupancy — Use of passageway across vacant lot — Facts necessary to establish adverse title.
    
    1. It successive tenants use and occupy continuously a way for the purpose of ingress and egress from the demised premises over adjoining premises owned by a third party, it will ripen into an easement by prescription, in favor of the landlord’s estate, if continued for the required length of time, and all other conditions required to create an estate by prescription are present.
    2. Continuous use of a passageway over an uninclosed vacant lot in a city by the owner of an adjoining lot in going to and from the residence thereon to the street will not ripen into an easement by prescription, unless such passageway is of such a permanent construction as to give notice of a claim of right.'
    3. The making of a beaten path across an uninclosed vacant city lot by walking from the residence on an adjoining lot to the street and return, and at times spreading cinders or ashes thereon, is not such an infringement by the owner of the adjoining lot on the rights of the owner of the vacant lot as will give notice of an adverse claim.
    (Decided March 10, 1922.)
    Appeal: Court of Appeals for Mahoning county.
    
      Mr. E. Davidson and Mr. L. L. George, for plaintiff.
    
      Mr. Jesse G. Leighmnger and Mr. E. II. Moore, for defendant.
   Pollock, J.

This action comes into this court on appeal and -was submitted on the transcript of the testimony taken in the court below, and further testimony taken before a referee appointed by this court. The plaintiff alleges in his petition that he is the owner of lot No. 2035 in the city of Youngstown; that this lot has a frontage of fifty feet on the east side of Wilson avenue and extends back seventy-five feet; that prior to 1893 there was a dwelling-house on this lot, fronting on Wilson avenue and that the then owner of this lot moved the dwelling-house back to the rear of the lot and erected on the front a business building. The buildings on this lot remain in that position at the present time. Plaintiff further says that the defendant, Martin Dunn, is the owner of city lot No. 2007. He says that Wilson avenue and Himrod avenue are public streets in this city and that they intersect each other at an acute angle; that the lot of the defendant is in the form of a triangle, intersecting Wilson avenue and Himrod avenue, and lying between the lot of plaintiff and Himrod avenue. He says that he and those under whom he derived title have for more than twenty-one years traveled from the dwelling-house on the rear of his lot across the lot of the defendant Martin Dunn to Himrod avenue; that they have used this strip or pathway across defendant Dunn’s lot to Himrod avenue as a means of ingress and egress to plaintiff’s dwelling-house for over that length of time, openly, notoriously and adversely; that the defendant at the time he purchased his lot had knowledge of the fact that plaintiff and his predecessors had so used that property. He further says that the city of Youngstown is now seeking to appropriate a part of defendant’s lot for public purposes. He asks'that the defendants be enjoined from interfering with his right to pass over defendant Dunn’s lot. The city filed an answer, but did not appear further in the case. The only issue which we have to determine now is between the plaintiff and the defendant Dunn. The defendant Dunn filed an answer in which he admitted the ownership of the lot first described in the petition of plaintiff, and the ownership of the lot secondly described therein in himself, but denied the remaining allegations in the petition.

It appears from the testimony in this ease that in 1892 the city of Youngstown acquired the lot now owned by the defendant; that about 1908 the city sold this lot to one Peebles, and that shortly thereafter he transferred it by deed to the defendant. The plaintiff’s lot since 1893, the time when the dwelling-house was moved to its present position, has been owned by a number of different persons. Plaintiff acquired title thereto in 1916. Plaintiff’s lot from the time the dwelling-house was moved to the rear of the lot, until the lot was sold to plaintiff, was occupied by tenants, and not by the owners themselves. A number of different tenants or renters occupied the property during that time, and they walked, in going to and from the entrance of the dwelling-house, directly across the lot of defendant to Himrod avenue, and at times they placed some cinders or ashes upon this walk. The walk was also used by others going to the business room on the front of this lot. There were other paths in other directions over the lot owned by defendant. The tenants of the owners of plaintiff’s lot used defendant’s lot in this way continuously for more than twenty-one years. Since plaintiff purchased this lot he has continued to use the path across defendant’s lot to Himrod avenue. The defendant’s lot during the time the city owned it, and continuing to the present time, was unenclosed and was not used during all of that time, except at the time the street was being paved, when some of the material necessary for paving the street was placed on different parts of the lot.

This lot was owned during a large part of that time by the city of Youngstown.

"Notorious and uninterrupted possession for more than twenty-one years, by a private individual, under a claim of right, of land dedicated to a city for streets or public squares, will bar the claim of the city to its use. ’ ’ City of Cincinnati v. Evans, 5 Ohio St., 594.

A number of owners of the lot now owned by plaintiff were witnesses in this case. They testified that they had never claimed any right of way .across the lot owned by defendant. The question then arises whether or not a title by prescription can inure to the estate of the landlord from acts of his tenants.

This question was before the court of appeals of New York in the case of Dempsey v. Kipp, 61 N. Y., 462. The second paragraph of the syllabus reads as follows:

"Where a permanent right of way is acquired by a tenant, as appurtenant to the demised premises, at the expiration of the tenancy it enures to the benefit of the landlord.”

The same question was referred to again by this court in the opinion in the case of Bedlow v. Dry Dock Company, 112 N. Y., 263, at 283.

A like principle is announced in 16 Ruling Case Law, 533, Section 5, and also in volume one of the same work, 718, Section 32.

The testimony shows that these tenants rented this dwelling-house without any instruction or direction from the owner regarding the way they should go from the dwelling-house to Himrod avenue, or any statement of their right to use this walk or path over defendant’s lot for that purpose, but it was the only convenient way for entering the dwelling-house and was used by these tenants without any objection upon the part of the owner of defendant’s lot, except that there is some testimony that the present owner at one time objected when the Moerlein Brewing Company was the owner of the property now occupied by plaintiff, but after a talk with some representative of this company no further objection was made to the use of the property. If successive tenants have used and occupied continuously a way, for the purpose of ingress and egress to and from the demised premises, over adjoining premises owned by a third party, such use will ripen into an easement by prescription in favor of the landlord’s estate if continued for the required length of time, and all the other conditions required to create an estate by prescription are present.

Many prior owners of plaintiff’s property testified that they did not claim any right across defendant’s lot. The prior owners at the time they testified had no interest in the lot of defendant “and could not, by any act, admission or statement,” impeach the title or the prescriptive right which had attached to plaintiff’s property. Hills v. Ludwig, 46 Ohio St., 373.

The further question arises whether the use made of defendant’s lot by the tenants of plaintiff’s lot, as a means of ingress and egress to the dwelling-house, was adverse to the defendant and his predecessors in title, and under claim of right. The question was before the court in the case of Kilburn v. Adams, 48 Mass. (7 Metc.), 33 (39 Am. Dec., 754). Chief Justice Shaw said, at page 39:

“The rule we think is, that where a tract of land, attached to a public building, such as a meetinghouse, town house, school house, and the like, and occupied with such house, is designedly left open and unenclosed, for convenience or ornament, the passage of persons over it, in common with those for whose use it is appropriated, is, in general, to be regarded as permissive and under an implied license, and not adverse. Such a use is not inconsistent with the only use which the proprietors think fit to make of it; and therefore, until they think proper to enclose it, such use is not adverse, and will not preclude them from enclosing it, when other views of the interest of the proprietors render it proper to do so. And though an adjacent proprietor may make such use of the open land more frequently than another, yet the same rule will apply, unless there be some decisive act, indicating a separate and exclusive use, under a claim of right. A regularly formed and wrought way across the ground, paved, macadamized, or graveled and fitted for use as a way, from his own estate to the highway, indicating a use distinct from any use to be made of it by the proprietors, would, in our opinion, be evidence of such exclusive use and claim of right. So would be any plain, unequivocal act, indicating a peculiar and exclusive claim, open and ostensible, and distinguishable from that of others. But the fact that a particular track or line was a little more worn and marked by travel, than the general surface of the lot, or that the adjacent proprietor had occasionally leveled a spot gullied by the rain, could scarcely be regarded, independently of other proof, as indicative of a claim of right. First Parish in Gloucester v. Beach, 2 Pick., 60, note.”

The same question was before the supreme court of the state of Washington in Schulenbarger v. Johnstone, 64 Wash., 202, 35 L. R. A. (N. S.), 94, and on page 206 the court says:

“It can hardly be contended that it was ever the intent of the law to hold that a private easement could be created over the lands of another at a time when they were open and uninclosed.”

The same principle was announced in the case of Rowland v. Wolfe, 1 Bailey (S. Car.), 56, 19 Am. Dec., 651.

Again, the question was before the supreme court of South Carolina in the case of Sims v. Davis & Tygart, 1 Cheve, 1, 34 Am. Dec., 581.

The supreme court of Massachusetts in the case of Commonwealth v. Fisk, 8 Metcalf, 238, at 245, said:

“But the land was never fenced, nor laid out as a square or public area. Being of little value, it lay uninclosed, and was passed over at pleasure. But such passing over uninclosed lands creates no title to them. The persons passing over them are not trespassers, but they acquire no rights; and the lawful owners may fence them in, or otherwise use them, at their own pleasure. ’ ’

The decisions of the courts have not all been in accord on this subject. In Worrall v. Rhoads, 2 Wharton (Pa.), 427, 30 Am. Dec., 274, the court reached an entirely different conclusion.

It is urged that there is no difference between the right to acquire a prescriptive title in uninelosed land and the right to acquire such title in inclosed land; that there is an actual boundary around both; that one is visible and the other invisible; that a prescriptive title arises from a supposed grant in the first place; and that there is just as much likelihood that there was a prior grant over uninclosed land as over inclosed land.

This rule seems to have been followed in West Virginia. Walton v. Knight, 62 W. Va., 223, 58 S. E. Rep., 1025.

The rule in Pennsylvania seems to have been modified by the act of the legislature. The presumption that a title by prescription arises from a grant is a legal fiction. Formerly a title by prescription arose only when the right claimed had existed for a period beyond the memory of man, but now it is a period fixed by legislative enactment. Such a title is acquired by the mere occupancy or taking possession of the real estate of another and continuing that occupancy for the statutory period, under a claim of right.

It is a matter of common knowledge that the owner of uninclosed and unused land frequently permits his adjoining neighbor to pass over his premises when it is not interfering with any use that the owner is then making of his property. This is a mere neighborly convenience and not intended by the owner of the property, or claimed by the party using it, to be otherwise. In order to create a title by prescription the use by the owner of the dominant estate must be in conflict with the apparent use made of his property by the owner, or be of such a nature as to afford an indication to the owner that a right is claimed over his property. The supreme court of Alabama in the case of Trump v. McDonnell, 120 Ala., 200, 24 So. Rep., 353, in discussing the question when an easement by prescription arises over an uninclosed woodland, or lands which had. once been used for agriculture but had been turned out and left open, says at page 304:

“The presumption in such cases is that the user is permissive; and it is a perfectly natural presumption, since the use conflicts with no interest of the owner in the land, does not interfere with any use he presently desires to make of it, nor curtail or limit in any way his enjoyment of it in the state and condition in which he has put it or allowed it to remain, and very frequently, as in this case, conserves the ends of good neighborhood.”

The supreme court of Massachusetts, in the case of Proprietors of Kennebeck Purchase v. Springer, 4 Mass., 416, in discussing the same question says* at page 419:

“To constitute a disseizin of the owner of uncultivated lands by the entry and occupation of a party not claiming title to the land, the occupation must be of that nature and notoriety, that the owner may be presumed to know that there is a possession of the land adverse to his title; otherwise a man may be disseized without his knowledge, and the statute of limitations may run against him, while he has no ground to believe that his seizin has been interrupted. ’ ’

A right of property should not be acquired against the interest of the owner, unless by some overt act that will notify him of the claim of the owner of the dominant estate adverse to that of the owner; “merely using what is open to use, without more, no presumption arises that the use is adverse. ’ ’ Sprow v. Boston & Albany Rd. Co., 163 Mass., 330, 39 N. E. Rep., 1024.

The use must be permanent and of such a nature that it will notify the owner of the claim, or else be in opposition to some use that the owner was then making of his own property. A continued use of a passage over an uninclosed vacant lot in a city by the owner of an adjoining lot in going to and from the residence thereon to the public street will not ripen into an easement by prescription unless the passage is constructed so permanently as to give notice of a claim of right. The mere making of a beaten path by walking in a direct line from the residence to the street, and at times spreading cinders and ashes thereon, is not such an infringement on the rights of the owner as will give him notice of an adverse claim.

Now this principle is referred to by the supreme court of this state in the case of Lane v. Kennedy, 13 Ohio St., 42. On page 47, in speaking of the adjoining proprietor to the public highway having enclosed part of a public road, the supreme court says:

“He infringed no right which was then enjoyed or apparently desired. Nothing was done to excite the apprehension of the public or to call for its protest. We hear of no declarations, and all his acts were consistent with a temporary occupancy, by the permission or the mere sufferance of the public, till the land should be required for its use. In Kirk v. Smith, 9 Wheat., 288, Ch. J. Marshall says ‘it would shock that sense of right, which must be felt equally by legislators and by judges, if a possession, which was permissive and entirely consistent with the title of another should silently bar that title.’ ”

In the instant case the tenants of former owners of the said, property, and the plaintiff, since he acquired the property, walked from the door of the dwelling-house directly across the defendant’s lot to Himrod avenue. This was continued for more than twenty-one years prior to the bringing of this action. This continuous walking made a path, and at times some ashes or cinders were spread along this path by these tenants. The lot now owned by defendant up to this time was not enclosed and was not being used for any purpose.

We do not think that such use of defendant’s lot creates an easement by prescription in favor of plaintiff. The judgment in this case is in favor of the defendant.

Judgment for defendmt.

Farr, P. J., and Roberts, J., concur.  