
    Erie Railroad Co. v. The S. H. Kleinman Realty Co.
    
      Basements — Way of necessity — Title passes, when — Use not limited, when — Private rights of way — Not included within Section 8895, General Code — Grade crossings.
    
    1. An easement by way of necessity passes from the original grantee to his successors in title, whether few or many.
    2. Such easement is not limited in its use to the original use of the lands, but expands and fluctuates to meet the growth, development and changed condition of such lands.
    * 3. Private rights of way by necessity, or otherwise, are not included within the terms of Section 8895, General Code, under the language “All crossings, hereafter constructed, whether of highways by railroads, or of railroads by highways, shall be above or below grade thereof.”'
    (No. 14628
    Decided May 4, 1915.)
    Error to the Court of Appeals of Cuyahoga county.
    In February, 1859, The Cleveland & Mahoning Railroad Company granted the lands involved in this case to one Stetson, excepting therefrom, however, its right of way, being a 100-foot strip of land. This 100-foot strip of the railroad company divided the lands conveyed so that about one-fifth of the tract lay north of the railroad and adjacent to a public highway and the remainder lay south of the railroad and without access to the highway or the other lands except over this 100-foot strip of the railroad company. In the deed from the railroad company to Stetson there was a covenant that:
    “Said grantee [the said Stetson], his heirs and assigns, being bound to erect and forever maintain a good and substantial fence on both sides of said. Cleveland and Mahoning railroad across the above described premises.”
    From the time of the grant from The Cleveland & Mahoning Railroad Company to Stetson up to July 31, 1911 (at which time it was purchased by defendant in error), the land was used for farming or pasturing purposes and there had always been a 15-foot crossing maintained over the railroad right of way from one tract to the other.
    •The plaintiff in error has succeeded to the rights of The Cleveland & Mahoning Railroad Company and defendant in error has succeeded to the rights of said Stetson.
    In 1912 defendant in error platted the lands involved herein with a view of selling the lots for residence purposes, and attempted to make a private crossing 40 feet in width at a new place. Thereupon plaintiff in error erected fences on both sides of its right of way, closing both the proposed new crossing and the old crossing so that the lands south of the railroad were absolutely inaccessible to the lands and highway north of the railroad.
    
      The above facts are shown in the agreed statement of facts.
    Defendant in error then brought its action in the court of common pleas praying for a permanent injunction restraining the railroad company from interfering with plaintiff “in the construction, maintenance and use of said private crossing over the right of way of said railroad and that upon final hearing said injunction may be made perpetual and for such other relief as is just and equitable.”
    The court of common pleas and the court of appeals, to which an appeal was taken, refused the injunction as to the new crossing, but permanently enjoined plaintiff in error from in any way interfering with defendant in error’s using and maintaining for all purposes the original private crossing.
    The ground upon which the courts below sustained the realty company’s claim to a private crossing was:
    1. That the original grantee, Stetson, had a way of necessity over said 15-foot strip, and
    2. That the realty company was the successor in title of said Stetson and his grantees.
    ■ The Erie Railroad Company complains, first, that there was no such way of necessity; second, that if there had been it was limited to the original use made by Stetson, to-wit, for agricultural purposes, and, third, that such way of necessity was subject to be defeated by the statute providing for the abolition of grade crossings.
    
      To reverse -the judgments below error is here prosecuted.
    
      Messrs. Cushing, Siddall & Lamb, for plaintiff in error.
    
      Mr. E. P. Strong; Mr. Carl Shuler and Messrs. . Tolies, Hogsett, Ginn & Morley, for defendant in error.
   Wanamaker, J.

As to the first question— Was there a way of necessity? — the evidence, as disclosed by the record, is unmistakably in favor of this holding, but were there doubt about it we would feel bound by the finding made by the court of appeals, for this is, at most, a mixed question of fact and law.

Upon the second question, as to whether or not the original way of necessity used by Stetson in 1859, for agricultural purposes, we hold that the use of the easement may enlarge to meet the use of the lands. Otherwise the easement, instead of being an advantage and benefit to the lands, would become a bond and a burden upon the lands.

The policy of the law as to easements should be one that encourages the growth and development of lands. If Stetson enjoyed this easement for the benefit of his entire farm south of the track, the same easement would be available if Stetson should divide up the farm into five-acre parcels for gardening and truck farming and sell each parcel to a different person, and if the development of these lands brought them within or near to a municipal corporation and resulted in their being platted and divided into building lots, Stetson’s easement by way of necessity would pass to each separate lot owner.

The third and last question of the case is: “Is such easement after all subject to the statutory policy of this state as to the abolishment of grade crossings ?”

As already indicated, Stetson’s right to this easement attached in 1859, a half century before the statutes were enacted providing for the abolition of grade crossings, and certainly no one would claim that the statutes are retroactive. But more than that, counsel seem to have confused the rights of Stetson and his successors in title to a private crossing with the public crossing regulated by statute. Section 8895, General Code, uses this language: “All crossings, hereafter constructed, whether of highways by railroads, or of railroads by highways, shall be above or below the grade thereof.” It is quite manifest that this applies only to public highways and cannot, by any possible construction, be made to include private ways, especially private ways of necessity.

We do not regard the questions with reference to cuts and fences as important to this case, and the judgment of the court of appeals is affirmed.

Judgment affirmed.

Nici-iols, C. J., Johnson, Jones and Matthias, JJ-, concur.  