
    National Exchange Bank v. Cunningham.
    
      Easements — Access to buildings.
    
    1. When the owner of an entire estate, makes one part of it visibly ’’ependent for the means of access, upon another, and creates a way for its benefit over the other, and then grants the dependent part, the other part becomes subservient thereto, and the way constitutes an easement appurtenant to the estate granted, and passes to the grantee as accessorial to the beneficial use and enjoyment of the granted premises.
    2. The owner of a lot situated at the corner of intersecting streets fin a city, erected thereon a three-story building covering the whole of the lot. A stairway leading from the principal street to the second story of the building, was constructed in the corner room of the first story. At the landing of the stairway, and connected with it, a hall was made, extending across the second floor of the room next to the corner room, and connecting with the second story of the next adjoining room. The rooms on the second story were intended for offices, and to adapt them to such use, doors were made opening into them from the hall. Another stairway was also put in, running from the hall to the third story. The stairway leading from the street to the second story was, and is, the only means of access to the hall above, and to the rooms opening into it, and the use of the stairway was, and is, necessary to their proper use and enjoyment. While the premises were in this condition the owner sold and conveyed a part thereof described by metes- and bounds, which included the hall connected with the landing of the stairway leading from the street, and the office ¡rooms on the second floor opening into the hall, which had no means of access except through the hall, and by the stairway. The purchaser, with the knowledge of his vendor who retained the corner room in which was the stairway, immediately entered upon, and continued the use of the stairway as his only means of access to the hall and connecting rooms purchased by him.
    
      Held: That by the conveyance, a right to the use of the stairway, passed to the purchaser, as an easement appurtenant to the premises conveyed.
    (Decided November 19, 1889.)
    Error to the Circuit Court of Seneca County.
    The original action was brought in the Court of Common Pleas of Seneca County by Edward J. Cunningham v. The National Exchange Bank of Tiffin, Ohio, and William H. ■Grapes.
    
    The petition charges that the bank, which is a corporation ■organized under the National Bank Act, became the owner of a lot sixty feet square at the corner of Washington and Market streets in the city of Tiffin, and erected thereon a three story brick building covering the whole of the lot. The first story consisted of three business rooms fronting on Washington street and one fronting on Market street. The corner room occupied by the bank as its banking house has a front of twenty-four feet on Washington street and extends back along Market street a distance of forty-five feet. The room immediately in the rear of the bank, fronts on Market street fifteen feet and has a depth of twenty-four feet. The other two rooms which are used for store rooms, each have a frontage of eighteen feet on Washington street and extend back the full ■depth of the lot.
    . The petition then alleges “ that upon the twenty-four feet front, so fronting on Washington street, and north of, and adjoining the south side thereof, the bank, in erecting the building, erected a stairway leading from Washington street to the second floor of the building; and also then erected a stairway, upon the same line, from the second to the third floor of the building, and also then made a hall upon the second floor leading east from the stair landing to the east end •of the. building; also another hall upon the second floor leading south from the stair landing to the room upon the second floor above the south store room, and also then erected another stairway from the hall last mentioned, leading from the •second floor to the third floor of said building, and also then divided the second floor into eight or more rooms and connected the rooms with the halls by means of doors. That the second floor of the building so made by the bank now is, and ever since the erection of the building has been, used and occupied under the lease of the bank, and its grantees, for offices; and during the same periods, the stairway leading from Washington street to the second floor has been used by those occupying the offices; also by all the comers and goers into the building; and was during all of said time, and still is, the only way to re'ach the offices upon the second floor, and also the stairway leading to the third floor. That the stairways • and the halls, also the right to use each thereof, are privileges and appurtenances belonging to the said building and to each and every part thereof. That on the 11th day of January, A. D. 1867, and while the building was unfinished and incomplete, the bank in consideration of the sum of thirteen thous- and and five hundred dollars, to it paid by the defendant, William JEL Grapes, bargained and sold and agreed to convey to the said Grapes, in fee simple, the following part of the. said lands and tenements, upon which the said building then stood, together with all and singular the rights and privileges and appurtenances to the same belonging, including the right to use and enjoy for himself, his heirs and assigns, forever, the said stairways and halls ; being all of the lot, and building upon it, except so much as are within the boundaries of that portion on the corner having a frontage of twenty-four feet on Washington street, and running back a like width the entire depth of the lot on Market street. That as a part of the said bargain and sale and agreement to convey, and concurrent therewith, the bank, for the consideration last aforesaid, agreed in writing with the said Grapes, to finish and complete the building in the manner and form afore described, which was so done by the bank, on or about the first day of April, A. D. 1867, and since then no change or alteration in said building has been made. That on the first day of April, 1867, the said'Grapes took possession of the premises so conveyed to him, and occupied the store room himself, for more than one year next thereafter, and during the same period the other store room, also the rooms upon the second and third floors, were occupied by different persons, under leases from the said Grapes, to whom they accounted for the rent; and that during the time aforestated, the stairways and halls were used by the said persons, and by all others who visited the rooms above the store rooms so conveyed to the said Grapes, and without the objection of the bank, or notice, or knowledge that it claimed an adverse right. 'That on the 14th day of January, A. D. 1868, the said Grapes, in considerttion 'of the sum of sixteen thousand dollars to him paid by the plaintiff, bargained and sold and agreed to convey to the plaintiff, in fee-simple, the same premises, together with the same rights, privileges. and. appurtenances, which the bank bargained, sold and agreed to convey to the said Grapes, including the right to use, forever, the said stairways and halls. That on the 14th day of January, A. D. 1868, the plaintiff entered into the possession, of the premises so agreed to be conveyed to him, and ever since has had, and still has, through himself, and his tenants, such possession, together with the open and notorious, and until recently, the uninterrupted use and enjoyment of the said -stairways and halls, and with the knowledge and acquiescence of the bank, and without demand by it for compensation therefor, or notice from it of an adverse right. That on the 11th day of April, A. D. 1867, the bank intending to fully execute its-agreement to convey to the said Grapes, in fee simple, the said premises, and also the said right to use and enjoy, forever, the stairways and halls, did execute and deliver to the said Grapes its deed, conveying to him,-in fee simple, so much of the south part of the noi'th third of said in-lots sixty-six and sixty-five-as is bounded by the lines aforestated, together with the privileges and appurtenances thereunto belonging, but unintentionally, and through mistake, omitted to grant in the said deed,, in express terms, to the said Grapes, and his heirs and assigns, forever, the right to use and enjoy the said stairways and halls. That on the 14th day of January, A. D. 1868, the said Grapes, intending to fully execute his agreement to convey to the plaintiff, in fee simple, the said premises, and also the right to use and enjoy, forever, the said stairways and halls, did execute and deliver to the plaintiff, his deed, conveying to the plaintiff, in fee simple, the same premises described in the deed of the bank to the said Grapes, together with the appurtenances thereunto belonging, bnt unintentionally, and through mistake, omitted to grant in the said deed, in express terms, to the plaintiff, and his heirs and assigns, forever, the right to use and enjoy the said stairways and halls. That the bank claims an estate and interest in the premises so bargained and sold and agreed to be conveyed by it to said Grapes, and by the said Grapes to the plaintiff, adverse to the plaintiff, and his estate and interest therein. That the bank claims that the plaintiff has no right to the use of the stairway leading from Washington street to the second and third floors of the building, or to the east hall on the second floor, and threatens, and is about to shut up and close the north end of the hall upon the second floor, which leads south from the stair landing upon the second floor, and thereby prevent the plaintiff and his tenants from using the said stairways and halls, alsp the second and third floors of that part of the premises so agreed to be conveyed to the said Grapes and the plaintiff, and will so do, to the irreparable injury 'of the plaintiff and his said premises, unless restrained by the order and judgment of this court. The plaintiff prays that the bank and each of its officers, servants and agents may be enjoined from any and all interference with the said rights of the plaintiff, from closing up or obstructing, in any manner,'the said stairways or halls, or either thereof, from preventing or attempting to prevent the plaintiff, or those claiming under him, also all other persons, from the full, free and perfect use and enjoyment of the said stairways and halls, to go to and from the said second and third floors of the plaintiff’s said premises.”
    
      The answer of the bank in substance admits that it owned the lot and erected the building, as alleged in the petition, but avers that the hall leading southward from the landing of said stairway in said bank building was only made for temporary purposes; and that the right to use said stairway or the entrance into said south hall therefrom, are not now and have never been intended to be an)'- privilege or appurtenance belonging to said south building nor any part thereof, which Grapes and plaintiff during their respective occupancies well knew and acknowledged. The answer denies that on the 11th day of January, 1867, or at any other time, the defendant sold or agreed to sell or convey to Grapes, or any other person, the said stairway, or the use thereof, as a privilege or appurtenance belonging to the said south rooms, or ever included the right to use and enjoy for himself, or his heirs or assigns, forever, the said stairways and halls to said Grapes, in any conveyance or contract whatever. It denies that said stairway was ever used by the lessees of either Grapes or Cunningham without objection, or notice, or knowledge, on the part of Grapes or plaintiff of the adverse right and claim of the defendant. It denies that Grapes sold, or agreed to sell or convey, to plaintiff any right or claim in or upon said stairway as an appurtenance or otherwise to said south building. It further denies that the plaintiff, or his lessees, had uninterrupted use and enjoyment of said stairway without demand from the defendant of any compensation for such use and occupancy, or any notice to plaintiff of the adverse right and claim by the defendant; and avers “ that the plaintiff promised and agreed to pay the defendant for the use of said stairway for his tenants in said building, in the second and third floors thereof, the sum of--dollars per year, and under such agreement, paid to the defendant, for such use and occupation of said stairway, at two or three different times, and at said payments for several years at a time, and about the-day of January, 1880, made an agreement with the defendant to pay to him for the use of said stairway for said building the sum of fifteen dollars per year for each and every year that he should use the same.”
    
      The defendant Grapes, made default.
    The plaintiff by reply, denied all the allegations of new matter in the answer. The case was tried at the September term, 1883, and a decree having been rendered for the plaintiff, the bank appealed to the circuit court, where, at the October term, 1885, the cause was tried, and at the request of the defendant that court separately stated its findings of fact and conclusions of law, which are as follows:
    “ The parties appeared with their attorneys and this cause was heard on the petition of the plaintiff, the answer thereto of The National Exchange Bank, of Tiffin, Ohio, the reply of the plaintiff, and the testimony.
    
      “ In consideration whereof, and upon the request of The National Exchange Bank, that the court should state the conclusions of fact separately from the conclusions of law, the court finds as conclnsions of fact from the testimony, that The National Exchange Bank, of Tiffin, Ohio, duly became a corporate body as averred in said petition, and that it was located and doing its banking business in Tiffin, Seneca County, Ohio.
    
      “ That in the year 1866, the said bank purchased the lands first in the petition described, and immediately thereafter proceeded to, and did, erect thereon the said building in the petition described, and did complete the same in manner and form therein described.
    “ That to obtain the proper location for a banking room, the said bank was compelled to buy the whole of the said lot of land, on which the building was so erected, and that the two rooms, on the south of the banking room of the defendant, were so erected to be immediately sold.
    
      “ That the building was built of brick, three stories high, and divided into three separate business rooms, extending east and west and fronting west on Washington street of said city of Tiffin, the north room thereof being built twenty-four feet wide, with a stone front, on Washington street, and the middle and south rooms thereof each eighteen feet wide.
    “ That said business rooms were separated by solid brick walls, extending from the cellar to the roof of said building,
    
      except that an opening was left in said wall, separating said north from said middle room, in the second story of said building, for a hall, extending south through the said middle room, and to the said south room, as hereinafter more particularly set forth
    “ That the first story of the north' room of said building, was intended for a banking room, and of the middle and south rooms for business or store rooms, and that said rooms always have been and yet are so used.
    “ That in constructing the building, on the premises described in said petition, and the banking room on the north side thereof, a stairway was made, a stairs put up on the north side of and against the south brick wall of the banking room, above mentioned, and wholly within the banking room, and leading from Washington street to the second floor or story of said banking room, and also a further stairway was made and stairs put against the same side of the same dividing brick wall, of said banking room, commencing some feet east from the top, or landing, of the stairs first above mentioned, and leading up to the third floor, or story, of the banking room.
    
      “ That rooms, or offices, are made on the second floor, or in the second story of the banking room, and doors opened into them from the hall, or passage-way, formecl by making said rooms, and the said stairways above mentioned, and a way leading from the one into the other.
    
      “ That between the top, or landing, of the first stairs and the foot of the second stairs, above mentioned, an opening was left, or made, in the brick, or south wall, above mentioned, of the banking room, and which separates it from the remainder of the brick building, from which said opening a hall was made, extending south to the south wall, or side, of the building, and which hall divides the second floor, and story, of the two store rooms of said building, south ofthe said banking room, into back and front rooms, or offices, and from which hall doors open into said front rooms, or offices.
    “ That the third story of the two store rooms, south of the banking room, is all in one room.
    
      “ That in constructing the building, the stairs above mentioned, and the hall last above mentioned, were the only way provided to get to the rooms on second floor, or in the second story, of the said two store rooms; except that a stairway and stairs were'put up in both of the store rooms, leading from the first floor to the second floor of the back rooms of each of them, and thence a stairway and stairs were put up which conducted up to the third story or room over the two store rooms, but that in constructing the brick building, no other way was provided to get to the front rooms, or offices on the second floor, or story, of the said store rooms than the said stairway and hall above mentioned.
    “That on the 11th day of January, 1867, when said building was finished and ready for occupancy, the said bank sold and conveyed, in fee simple, to .the defendant, William H. Grapes, for the sum of $13,500.00, the said middle and south rooms of said building and premises above mentioned, and which are described in the deed of conveyance therefor as follows:
    “ So much of the south part of the north third of in-lots numbered sixty-six (66) and sixty-five (65), in the first ward of the city of Tiffin, in Seneca County, Ohio, as is bounded by the following lines:
    “Beginning therefor at the northwest corner of the middle third of the said in-lot No. 66, which point is also the northwest corner of the building of Charles M. Yerk on said middle third of said lot No. 66, thence northerly on and along the west line of said in-lot No. 66 to the south side of the stone column at the southwest corner of the new bank building on said north third of said lot No. 66, thence eastward and northerly around said stone column to the center of the brick wall on the north side of the room adjoining said new building or room on the south side thereof, thence easterly on and along the center line of said brick wall to the west line of that portion of in-lot'No. 65 aforesaid now owned by Philip Emich, thence southerly on and along said west line of said Philip Emich’s to the north line of said Charles M. York on the north side of said middle third of said lot No. 66, thence on and along said north line westwardly to the place o£ beginning, be the same more or less. And said description, in said deed, was and is immediately followed by the words, and all the estate, title and interest of the,said National Exchange Bank, either in law, or in equity, of, in and to said premises, together with all the privileges and appurtenances to the same belonging.’
    “ That afterwards, on the 14th day of January, 1868, the said Grapes sold and conveyed, in fee simple, to the said plaintiff, the same part of the said building and premises last above described, with the same description and like covenants.
    “That on May 3, 1869, and again on January 31, 1870, the plaintiff paid to the bank the sum of $12.50, which said bank demanded of him on account of an alleged higher rate of insurance the said bank had to pay because of the opening for said south hall, in said brick wall, separating the banking' room from the rooms conveyed to said Grapes and to the plaintiff.
    “That the free and undisturbed use of the said stairway-leading from Washington street to second floor of said building, and the opening at the top landing of said stairway in the wall, separating the said parts of said building, owned respectively by the plaintiff and the bank, are necessary for the proper use and enjoyment of that part of said building, so conveyed by said bank to said Grapes, and by said Grapes, to-to the plaintiff, as constitute the front offices of said portion 'so sold and conveyed, and that such use and enjoyment of said stairway, and said opening in said wall, is the only means of access to the said offices, on said second floor of the plaintiff’s part of said building, and was used with the knowledge of said defendant from the 11th day of January, 1867, until about the time of the commencement of this action.
    “That on or about the 1st day of December, 1880, the bank was about to close the opening in said wall, at the entrance of said south hall, in the second -story of said building, so as to prevent the usp of said stairway to i-each the second and third floors of that part of said building so conveyed by said bank to Grapes, and by Grapes to the plaintiff
    
      “ And the court, from the foregoing conclusions of fact, find, as conclusions of law, that-the said stairway, leading from said Washington street to the second floor of said building, and the opening in said wall, at the top landing of said stairway, forming the entrance of said south hall in the second story of said building, are privileges and appurtenances belonging to that part of said building and premises, so conveyed by said bank to said Grapes, and by said Grapes to the plaintiff; and that the plaintiff, his heirs and assigns, have and hold the right to the free and undisputed use and enjoyment of the said stairway leading from Washington street to the second floor of said building, and of the entrance to the said south hall thereof.
    
      “ It is therefore ordered, adjudged and decreed, that the defendant, the National Exchange Bank, of Tiffin, Ohio, and all persons Claiming by, through, or under it, be and hereby are perpetually enjoined from closing up the said opening in said wall, at the top landing of said stairway, forming the entrance to the said south hall, in the second story of said building, and from closing up or obstructing the said south hall, or the way leading thereto, in any manner whatever, or doing or permitting to be done, any act whatever to prevent the free and undisturbed use of the said stairway leading from Washington street for that part of said building and premises, so by it conveyed to said Grapes, and by said Grapes to said plaintiff”
    To which findings and conclusions of law, and jundgment, the bank excepted, and to obtain the reversal of the judgment prosecutes error to this court.
    IV. L. Brewer, for plaintiff in error.
    No brief for defendant in error.
   Williams, J.

The only question raised upon the record, is whether the facts found by the circuit court are sufficient to warrant the judgment it rendered. The case made by those facts is. in substance, that in the plan and construction of the building erected by the bank, which covered the entire lot owned by it, a stairway, leading from Washington street to the second story of the building, was constructed in the corner room, now occupied and owned by the bank. At the landing of this stairway, and connected with it, a ball was made, extending across the second floor of part of the premises after-wards conveyed by the bank to Grapes, and by him to the plaintiff, and connecting with the second story of the balance of the premises so conveyed. The rooms on the second story of the premises now owned by the plaintiff, were made into offices, and doors opened into them from the hall. Another stairway was also put in, running from the hall to the third story. The stairway leading from Washington street to the second story, was, and is, the only means provided for access to the hall above, and to the rooms opening into it, and the unobstructed use of that stairway is necessary to their proper use and enjoyment. This was the condition of the premises when the bank sold and conveyed to Grapes, those portions purchased by him, including the hall, and the rooms which open into it; and thereafter, with the knowledge of the bank, he used the stairway as his only means of access to the hall and the rooms, until he sold to the plaintiff. The stairway was so in use when the plaintiff purchased, and he, thereafter continued such use until shortly before the commencement of the action, when the bank threatened to close up the entrance to the hall, and thus prevent the use of the stairway as a means of approach to it, and to the connecting rooms.

The general rule, that easements appurtenant, pass with the grant of the dominant estate, is not controverted; but the principal claim of the plaintiff in error is, that inasmuch as the conveyance was made to Grapes immediately after the completion of the buildiug, and, at that time no use had been made of the stairway as a means of access to the hall and rooms above, the right to such use was not an appurtenance to the premises conveyed, and did not, therefore, pass by the grant. It is evident however, that at the time of the conveyance, the arrangement and construction of the building were such as to plainly indicate, that the stairway must have been intended as a permanent and continuous way of reaching the hall, and the rooms connecting with it, on the second floor. Those rooms were constructed for use, and no avenue of approach to them was provided, except by that stairway. • The bank, in the construction of the building, had thus visibly and obviously made them dependent, for the means of access, and beneficial enjoyment, upon the use of the stairway; and, it must have been apparent to both parties, that, in the condition in which the premises were, at the time of the conveyance, without the use of the stairway, the hall and rooms to which it led, were inaccessible and useless; and it could hardly have been contemplated by either, that immediately thereafter, the grantee should contrive, and adopt some different means, by which he might be enabled to .enjoy what he had purchased. The parties are presumed to have contracted, with reference to the condition of the property at the time of the sale, and to have intended, that the grantee should have the means of using the property granted, and therefore, that he should have such rights and privileges in, or over, the premises remaining in the grantor, as might be requisite for that purpose.

It is a well settled doctrine of the law of easements, that where there are no restrictive words in the grant, the conveyance of the land, will pass to the grantee, all those apparent and continuous easements which have been used, and are at the time of the grant used by the owner of the entirety for the benefit of the parcel granted; and also, all that appear to belong to it, as between it, and the property which the vendor retains ; and hence, when the owner of an entire estate, makes one part of it visibly dependent for the means of access, upon another, and creates a way for its benefit over the other, and then grants the dependent part, the other part becomes subservient thereto, and the way constitutes an easement appurtenant to the estate granted, and passes to the grantee, as accessorial to the beneficial use and enjoyment of the land. “ It can not be denied,” said Pollock, C. B., in Glave v. Harding, "that if a man build a house and there is actually a way used, or obviously and manifestly intended to be used, by the occupier of the house, the mere lease of the house would carry with it the right to use the way as forming part of its construction.” ' 2 L. J. (N. S.) C. L. R. 292. And " Where the shell of an unfinished house was sold, with openings in the the walls for the insertion of windows and doors, it was held that the vendor could not, after the sale and conveyance of the unfinished structure, build on his own adjoining land, so as to obstruct the access of light and air to the spaces left for windows, or place obstacles in the way of the exercise of a right-of-way to the apertures intended for doors; and when two separate purchasers buy two unfinished houses from the same vendor, and at the time of the purchase the spaces for windows and doors are marked out, this is a sufficient indication to the purchasers of the rights they are respectively to enjoy,so that they can not subsequently interfere with each other’s .enjoyment- of the windows and doors so marked out and impliedly agreed upon at the time of the sale.” Addison on Torts, (Sixth Ed.), 314; Janes v. Jenkins, 34 Md. 1; Compton v. Richards, 1 Price, 27. And see Thompsons v. Miner, 30 Iowa, 386 ; Washburn on Easements, 91.

So long as the bank continued to own the entire premises, there could, of course, be no easement in favor of one part, or servitude upon another, for, it might- make any use it chose, of every part. But when it conveyed the part now owned by the plaintiff, the purchaser took it with all the incidents and benefits which at the time appeared to belong to it, as between it and that part retained by the bank. The stairway being at that time, the means provided by the vendor for access to a part of the premises sold, and the only means of such access then existing, and being then and now, as found by the circuit court, necessary to the proper use and occupation of the premises sold, the right to its use, passed by the conveyance to the purchaser, and the bank can not be allowed now to derogate from its grant, by depriving the plaintiff of that use.

„It seems to be supposed by the counsel for plaintiff in error, that the judgment of the circuit court requires the bank to keep the stairway in repair, and rebuild it in case of its destruction by -fire or other casualty. If such were the scope of the judgment, the plaintiff in error would have just ground of complaint; for it is undoubtedly the rule, that unless the owner of the servient estate is bound by covenant or prescription to repair, he is under no obligation to do so. The burden devolves upon the owner of the dominant estate, of making whatever repairs are necessary for his use of the easement. It is said by a learned author that “As a general proposition, whoever has an casement, like a right-of-way for instance, in or over another’s premises^ is the one to keep it in repair.” Washburne on Easements, 730. And by another, that “ Every grantee of a right-of-way, to be exercised and enjoyed over or through the land of the grantor, must himself repair the way, if he desires to have it repaired and kept in repair for his use, or if repairs are necessary to prevent the enjoyment of the right becoming an annoyance and nuisance to the owner of the servient tenement, unless the grantor himself has expressly undertaken the performance of that duty.” Addison on Torts, 301-302. But it is clear the judgment has no such effect as that supposed. It does no more than enjoin the defendant, and those succeeding to its title, from doing any act, curtailing the plaintiff’s enjoyment of the easement

The payment made by the plaintiff to the bank on account of the insurance, is quite unimportant. It appears to have been nothing more than a voluntary contribution, without agreement, or obligation, toward the paymeut of the increased rate of insurance exacted-in consequence of the opening made in the wall, in the construction of the hall referred to, and is not incompatible with the existence of the easement. How it would have affected the rights of the parties, if the payment had been made as a compensation for the use of the stairway, we need not determine.

Upon the facts found by the circuit court, its judgment, we think, is correct and must be affirmed.

Judgment accordingly.  