
    No. 178
    McCOWN v. BUNTING et
    Ohio Appeals, 7th Dist., Columbiana Co.
    No. 291.
    Decided Dec. 3, 1925
    . Judges Pardee, Washburn & Punk, 9th Dist., sitting.
    707. LEASES — When a lease acquires the character of an appurtenance, future owners of the property subject to such lease are es-topped from denying that such lease is an appurtenance and cannot object to its transfer or assignment.
    Attorneys — Chas. Boyd, East Liverpool, for MeCown; W. A. O’Grady, Wellsville, for Bunt-
   WASHBURN, J.

A owned parcel No. 1 lot; A and X owned parcel No. 2 lot in common. A and X constructed on said parcel No. 2 a dwelling, the stairway of which extended onto Parcel No. 1, a part of said Parcel No. 1 being used as ingress and egress to said building.

A as lessor executed to X a 30 year lease on part of Parcel No. 1, permitting such use, there being a covenant in said lease forbidding assignment thereof. A died, devising Parcel No. 1 to D, his wife, subject to the conditions of said lease. D. by A’s death, also acquired the interest in parcel No. 2.

X brought proceedings to partition parcel No. 2, describing said lease as an appurtenance thereto. D. filed answer, also praying for partition, or-if that could not be done without manifest injury to the property, that same be sold.

Said Parcel No. 2 was sold by the sheriff to X. D. then sold Parcel No. 1 to George MeCown, at the same time X sold Parcel No. 2 to Mary Bunting, with said lease as an appurtenance thereto.

MeCown filed this action to have said lease declared null and void and to compel Bunting to remove a stairway from Parcel No. 1. The Columbiana Common Pleas refused such action. On appeal the Court of Appeals held:

1. Taking into consideration the situation of the parties and all the circumstances and all the provisions of said lease, the same was, and was intended to be, assignable with and as an appurtenance to Parcel No. 2, without the consent of the owner of Parcel No. 1.
2. In view of the fact that the owner of Parcel No. 1 permitted sale of Parcel No. 2 with said lease as appurtenance thereto, without reservation as to future sale, she in effect waived the provision against assignment, and was estopped thereafter from objecting to such a sale.
3. Purchaser of Parcel No. 1 took same thereafter subject to said appurtenance and could not assert the right of A to object to a future sale of said lease as part of Parcel No. 2.

Decree accordingly.  