
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1898.)
    Before Smith, Cox and Swing, JJ.
    CREED v. HENKEL.
    
      Uncertainty of deed — Construction by parties accepted—
    Where the language of a deed is not clear, the construction put thereon by the parties for many years will be accepted as the true one.
    Error to the Court of Common Pleas of Hamilton county.
   SWING, J.

The controversy in this case is over a four foot strip of ground lying between plaintiff s and defendant’s lots on the west side of Vine street, near Charlton. It appears that the parties derived title from the same source, the deed to the defendant providing for a four foot passage way between the properties, but permitting him to enclose the passage way overhead and use the plaintiff’s south wall for support. Upon this state of facts the question at once arises as to whether this four foot strip or passage way did extend through to the rear of the two lots, or whether it was intended that it should only extend back the length of the house wall? The court below held that the passage way was limited to the length of the house wall, and denied the plaintiff an injunction against the closing up of the remainder of the strip. The circuit court is divided in its opinion, but its judgment is contrary to tnat below.

A majority of the circuit court is of the opinion that the plaintiff is entitled to the relief asked for in her petition.

The language of the deed is not clear and certain as to that *our f.eet on the south side, but we are satisfied from the evidence that the parties for a great many years construed the deed to mean that the four feet extended from Vine to Zeltner street, and this constrction of the deed as I placed upon it by the parties renders certain that which standing alone is uncertain. The four feet, therefore extends from the front to the rear of the wall.  