
    Marvin et al. v. Tusch.
    
      One of several owners of alley-way right — Erects building on both sides of alley — Carrying archway over alley — Abutting owner cannot maintain ejectment, when.
    
    When pne of several persons, 'owning 'land upon an alley devoted to the purposes of a private right of way in common by all of 4bem, erects a substantial building upon his ground lying on both sides of such alley by carrying his building over the alley by means of an archway, leaving sufficient space for the ordinary uses of such alley and improving the alley for the benefit of all the abutting owners, ejectment cannot thereafter be maintained against him by an abutting owner who had Icnowledge of the improvement at its inception and during its progress, and Who made no objection thereto until after its completion.
    No. 12312
    Decided April 2, 1912.
    Error to the Circuit Court of Lucas county.
    In .the court of common pleas Tusch brought ejectment against the plaintiffs in error to recover possession of an alley ten feet in width, extending from 17th street in the city of Toledo one hundred feet in the direction of 16th street, dividing ground owned by Marvin lying along 17th street, the alley also passing along the rear of ground owned by Tusch facing Adams street, which is parallel with the alley. The prayer of the petition is for the recovery of said strip, the averments being that the plaintiff was the owner thereof, and that the defendant unlawfully kept him out of possession. The first defense of the answer was a denial of the averments of the petition. In the second defense it was alleged that said strip had, for more than twenty-one years, been continuously and uninterruptedly set apart for the uses of an alley by these parties, and other abutting and adjoining owners, as a private right of way in common.
    It was further alleged that Marvin is the owner in fee of land fronting twenty feet on Adams street and extending along 17th street one hundred feet to the strip of land fronting forty-five feet on 17th street and extending the same width one hundred feet alongside, the strip. Said second defense also contained the following averments: “And defendants further say that they have improved said properties by erecting thereon a four story brick building with a business room on the first floor fronting on Adams street and balance of said building designed and built in flats for residence purposes. That said building extends from one of said properties' to the other by means of a high and suitable arch ten feet wide over and across said ten-foot strip described in the petition of the plaintiff and thus preserving unobstructed the said private way. That said building was so erected by the defendants with the full knowledge of the plaintiff, who was conducting business every day within a few feet of defendants’ property during the time of the erection of said building as aforesaid; and that said plaintiff witnessed the erection of said improvement each day from its commencement to its completion and observed and had full knowledge of the plan and construction of said building with reference to said ten-foot strip; and that said plaintiff did not at any time personally or otherwise object in any manner to the construction of said building by the defendants in the manner aforesaid, from the commencement thereof until its substantial completion.
    “Wherefore, defendants pray that the petition of the plaintiff be dismissed herein and that they have all other relief to which they may be equitably entitled.”
    In the reply it was admitted that the plaintiff’s place of business was near the building so erected by Marvin, and that he had knowledge thereof without alleging that he made any objection thereto. It was also admitted that Marvin had acquired title to his land from one Wittich, to whom it had been conveyed May 29, 1886, and by subsequent stipulation it was admitted that the grant included the right to use the strip in controversy as a private right of way, and that the right had subsequently become vested in Marvin.
    It was further admitted that the title of Tusch did not vest in him until March 13, 1889, and that by the terms of the deed to him, said strip was expressly made “subject to an easement for use as a private alley by lots abutting on each side of the same.” It was also shown upon the trial, without objection or contradiction, that Marvin at the time of erecting his building improved the alley with brick and cement, so that it became practicable for all the tenants to drive over it, whereas it had been practicable before only to drive one way and back the other, and that Tusch with knowledge of all that was done interposed no objection, but talked of renting the property from Marvin.
    
      The common pleas court rendered judgment for. the plaintiff that he recover possession of the property described in the petition, together with his costs of the suit. On petition in error the circuit court affirmed the judgment.
    
      Mr. F. M. Dotson, for plaintiffs in error.
    The improvement made by the plaintiffs in error is no hindrance or obstruction to the use of the ten foot strip of land by Tusch. but on the other hand has made the use of the land available as a private alley, with freedom of ingress and egress, a condition that did not exist prior to the construction of said improvements. The defendant instead of being prejudiced by the improvement has been benefited. He stood by and watched every step of the work that was done by Marvin, from the commencement to the close, had full and daily knowledge of every detail, knew the character and purpose of the improvement, talked with Marvin about renting part of it, and by his every act and conversation unqualifiedly consented thereto and approved the acts of the plaintiff in error in the premises, and as we claim thereby estopped himself from gainsaying the same thereafter. This we believe to be a well settled principle of equity which is clearly applicable to the case at bar. Beardsley v. Foot, 14 Ohio St., 414 ; Welland Canal Co. v. Hathaway, 8 Wend., 483; Pennsylvania Co. v. Platt et al., 47 Ohio St., 367; Castalia Trout Club Co. v. Sporting Club et al., 8 C. C., 194; Kellogg v. Ely, 15 Ohio St., 64; Tee garden v. Davis, 36 Ohio St., 601; Tone v. Columbus, 39 Ohio St., 281; Seeds v. Simpson & Knox, 16 Ohio St., 321; Tarkington v. Purvis, 9 L. R. A., 321, n; 2 Pomeroy’s Eq. Jur. (3 ed.), p. 1787; Peabody v. Flint, 6 Allen, 52; Tash v. Adams, 10 Cush., 252; Mondle v. Plow Co., 6 O. N. P., 294; Redmond v. Savings Fund, 194 Pa. St., 643; Kintz v. Zwisler, 7 O. N. P., 15; Ackerman v. True, 66 N. Y. Supp., 140; N. & W. Ry. Co. v. Perdue, 40 W. Va., 442, 21 S. E. Rep., 755; Hoskins v. Wathen Bros. Co., 20 Ky. Law Rep., 814, 47 S. W: Rep., 595.
    
      Messrs. Rhoades & Rhoades, for defendant in error.
    Mr. Tusch never gave to Mr. Marvin any permission or authority, either written or verbal, to occupy this property as he has.
    The doctrine of estoppel has no application where the party claiming to have relied upon the conduct of the other to his injury himself had equal knowledge, or the means of obtaining knowledge, of the rights of each. 11 Am. & Eng. Ency. Law (2 ed.), 434.
    It is agreed in the stipulation that the deeds were matters of record, and, in such case, the record of a deed is notice to those bound to search for it including parties subsequently dealing with the property or concerned with its title. Pattison v. Jordan, 3 C. C, 233; Leiby v. Wolf, 10 Ohio, 83; 11 Am. & Eng. Ency. Law (2 ed.), 435.
    But Mr. Marvin had more than. constructive notice. He actually knew that his only right in this ten foot strip was to use it as an alley. His deed so informed him; his opinion of title so informed him. It informed him also that Mr. Tusch owned the strip. Pennsylvania Co. v. Platt, 47 Ohio St., 366; Fowler v. Delaplain, 79 Ohio St., 279; Yeager v. Tuning, 79 Ohio St., 121.
    Ejectment will lie to recover possession of land subject to an easement. The recovery in such case is of the land subject to the easement. 10 Am. & Eng. Ency. Law (2 ed.), 473.
    Ejectment will lie for the recovery of possession although the plaintiff is not disturbed in his possession of the surface of the ground but is dispossessed by something above or below the surface. Butler v. Telephone Co., 186 N. Y., 491; Wachstein v. Christopher, 128 Ga., 229; Murphy v. Bolger, 60 Vt, 723; Johnson v. Minnesota Tribune Co., 91 Minn., 476.
   Shauck, J.

Throughout the progress of the case it has been taken for granted by the courts below, and by counsel on both sides, that although Marvin’s title to an easement in the strip for the purposes of a private right of way is of unquestioned validity and older in point of time than the title of Tusch, he might by a suit in ejectment be wholly excluded therefrom; and that Tusch although taking a later title expressly limited to a private right of way in common with other abutting owners might, as against one of them, be awarded the exclusive possession of the strip. Whether there is a solid basis for this concord, the case does not require us to determine.

Answering the petition in ejectment Marvin by authority of the provision of the code of civil procedure that a defendant may interpose as many defenses as he may have, whether they were previously denominated legal or equitable, introduced the real ground of contention between the parties. The facts as shown by his answer, the reply of Tusch, the stipulation and the undisputed evidence are that Marvin being about to erect a substantial building of several stories in height covering his ground, which was divided by the strip of ten feet in width devoted to the purpose of a private right of way for the use of all abutting owners, so planned and executed his enterprise as to carry his building across the strip by an arch, leaving ample room beneath for the ordinary uses of such a way, and clearing and paving the alley so that it would be capable of actual use throughout its entire length, which it had not previously been. It does not appear whether Marvin took this course in the exercise of a right which he supposed to have become conferred upon him by the deeds under which he and his neighbors held their property, or in reliance upon their acquiescence in the course which he chose. Nor is it material in the present case.

The title ad coelmn of one who has but a right of way is ordinarily of practical value only to the height of the vehicle in which he travels it. If Tusch had made a timely assertion of his invaded right, its insignificant character might not have justified a court in refusing to interfere in his behalf; but his own estimate of the value of the right may have justified him in deliberate acquiescence in the Marvin improvement and in accepting the improvement of the alley as of greater value to him than the right which by-acquiescence he was surrendering. In any view, his presence at the site of the improvement and his assent thereto with full knowledge of all that was being done is admitted in the record. Since he did not, when the improvement was undertaken and its character made obvious to him, consider the right of sufficient importance to justify its prompt assertion, or even to prompt objection to Marvin’s plan, the plainest considerations of justice require the court to inform him that he cannot now be heard to say that it is so important as to justify a judgment which would require Marvin to make terms with him on pain of being compelled to reconstruct his building. The principles upon which one is required to make a timely assertion of rights upon which he proposes to insist are familiar, and they are sufficiently illustrated in the cases cited in the briefs. It is quite clear that the proper administration of the law does not require so wide a departure from the administration of justice as the case of the original plaintiff invites.

Judgments of the circuit and common pleas courts reversed and judgment for plaintiff in error.

Judgments reversed.

Davis, C. J., Spear, Price, Johnson and Donahue, JJ., concur.  