
    Floro et al. v. Wadsworth.
    (Decided May 27, 1929.)
    
      Messrs. Graves £ Duff, for plaintiffs.
    
      Messrs. True, Crawford £ True, for defendant.
   Lloyd, J.

The lots on the first plat are numbered from 1 to 23, both inclusive. The land between these lots and Lake Erie is designated thereon as “Park.” In the rear of these lots, extending the entire length thereof, is a strip of land 20 feet wide marked “Roadway.” By the second plat the westerly line of the allotment is extended beyond the line of lot No. 23 approximately 240 feet; two lots numbered 24 and 25, each 40 feet in width, being added to the row of lots shown on the first plat. Each of these lots is 50 feet in depth. The land between lot No. 25 and the westerly boundary line, as extended, is not divided into lots, leaving an open space adjoining the strip of land along the shore of the lake marked “Park” on the first plat and “Reserved” on the second plat. The part so designated is extended on the second plat to the westerly boundary line established thereby. By this latter plat the easterly boundary line is also extended, other lots being added and the “Reserved” space being continued to the boundary lines so established. The “Roadway” shown on the first plat was also extended on both of the later plats to the easterly boundary line as thereon established, being designated on the second plat as “Lake Shore Drive” and on the last one as “Lake Shore Road. ’ ’ The two later plats increased the number of lots in that part of the addition southerly of Lake Shore drive, two of which, lots numbered 41 and 56, abutting upon Lake Shore drive and owned by William and Ella Ploro, are directly across from the open space westerly of lot No. 25. There are also driveways extending southeasterly from Lake Shore drive; and between lots 23 and 24, extending from Lake Shore drive to the space along the lake marked “Reserved,” is an alley 5 feet in width. Along the westerly boundary line of “Willow Beach” is a roadway to which-Lake Shore drive extends. Commencing at a point about midway between the open space lying westerly of lot No. 25, and extending easterly along the southerly side of Lake Shore drive for a distance of about 166 feet, is a quadrangular piece of land also not divided into lots and marked “Reserved.” No issue, however, is made in the pleadings as to the intended use or purpose of this parcel of land.

The plaintiffs, William Floro and others, by separate deeds of conveyance from the defendant, N. F. Wadsworth, are owners of Willow Beach lots. Each of these deeds, in substance, if not in exactly the same words, contains the following recital: “Also hereby conveying to the grantee, his heirs and assigns, the right to himself, members of his family and bona fide guests, to use and enjoy all the beach fronting said plat of Willow Beach in common as hereinbefore set forth.”

The “hereinbefore set forth” refers to the reservation by grantors of the “right to use and enjoy the beach fronting said plat of Willow Beach as a park and for bathing beach purposes, in common with all the owners of lots and lands heretofore granted by the grantors, their heirs, executors, administrators or assigns.”

Each of the deeds offered in evidence, with one or two exceptions, contains the restriction “that no building or obstruction of any kind whatsoever be erected or permitted on said beach within the lines of said lots extended as aforesaid, without the written consent of grantors, their heirs or assigns.”

The second amended petition of plaintiffs alleges the platting of Willow Beach by the defendant, N. F. Wadsworth; that each of the plaintiffs owned one or more lots in Willow Beach by deed of conveyance from Wadsworth, which grants to them also the right to use and enjoy as a park and for bathing purposes said part marked “Reserved,” lying northerly of Lake Shore drive; that said lots were purchased by plaintiffs from Wadsworth, and from his agent, under verbal representations that the “platting and portion thereon ‘Reserved’ were to be kept open for the owners of lots shown on said plat.” Plaintiffs further allege that the defendant has erected a building on the premises west of lot No. 25, marked “Reserved,” and has sold a portion of said reserved premises. The plaintiffs seek to enjoin the selling of or building upon any of the premises so designated as “Reserved,” and ask that the defendant may be ordered to remove any building erected thereon. It was sought at the trial to show by the testimony of one of the plaintiffs that at the time of the purchase by him of lot No. 25 in Willow Beach the agent of Wadsworth, through whom the witness purchased his lot, made the representations charged in the second amended petition. After the commencement of the action, and before the trial, the defendant, Wadsworth, as well as the alleged agent, died; the testimony of neither having been theretofore taken. After the death of Wads-worth, this action was revived in the name of Emma E. Wadsworth, widow and sole devisee of N. F. Wadsworth. This court is of the opinion that under Section 11495, General Code, this witness was not competent to testify as to the alleged conversation with the defendant, Wadsworth, and his alleged agent, Yogel.

The court is satisfied that the plats, as recorded, and the deeds with the recitals therein, to which we have called attention, clearly evidence a general plan and design so understood and intended by the owner, Wadsworth, and by purchasers of lots in Willow Beach, that the platted portion along the shore of the lake and extending back to the lots fronting thereon was reserved as a park and beach for the common usé and enjoyment of all of them, and that the use and enjoyment thereof was not to be decreased or interfered with by buildings erected thereon, or by other obstructions, either by the original owner, Wads-worth, or by those subsequently acquiring lots in Willow Beach, and that the recordation of the plats and the deeds was notice to any prospective purchaser of any part thereof of the purposes and intention of the platting and dedication by Wadsworth of Willow Beach.

The court will not order the removal of the dwelling house located on the premises west of lot No. 25 for the reason that the evidence discloses that there was a building on the premises in question at the time plaintiffs acquired their respective lots, which about two years prior to the trial of this action in the court of common pleas was converted by Wadsworth into a dwelling house, and that plaintiffs, having knowledge thereof, permitted it without objection to be so remodeled. It is our conclusion that this cottage or dwelling house may be used, so long as available therefor, as a dwelling house, and not otherwise; but may not be enlarged, nor replaced by any other building.

Decree accordingly.

Richards, J., concurs.

Williams, J., concurs in judgment.  