
    Jordan v. The Breece Manufacturing Company.
    
      Real property — Roadzvay—Presumption as to use — Necessity of roadzvay determined, hozv — Rights of owners and grantees.
    
    1. Where the owner of several tracts of land uses a part or all of one tract as. a roadway for his own convenience while he is the owner and in occupation of all the several tracts, no presumption arises therefrom that the tract so used is devoted to a way appurtenant to one of these tracts purchased by him at a different time and from a different proprietor.
    2. The question of whether a roadway is reasonably necessary to the enjoyment of premises conveyed is one that must be determined from the conditions existing at the time of the conveyances.
    3. Where a portion of a farm is purchased by an adjoining proprietor and while he remains the owner of the tract so purchased he uses a roadway over and across the adjoining premises owned by him for his own convenience while in the use and occupation of all his land, including this parcel, and later this parcel is conveyed to the owner of the farm from whom it was originally purchased and who thereupon reestablishes the original lines of his farm and constructs a partition fence thereon, and being still the owner of the entire farm lying and abutting on a public highway, a roadway over and across the grantor’s land is not reasonably necessary to the enjoyment by the grantee of this parcel of his own farm reconveyed to him by the grantee of the original purchaser.
    (No. 13498
    — Decided February 3, 1914.)
    Error to the Circuit Court of Scioto county.
    On the 24th day of July, 1889, the board of trade of the city of Portsmouth, Ohio, purchased from the heirs of John Rhodes a part of what was known in that vicinity as the “Rhodes farm,” which farm lies directly east and contiguous to a farm then owned by John G. Peebles. The amount of land purchased consisted of 6.24 acres of land 90 feet south of the C, W. & B. tracks (which run through both of the above-named farms) and north of the Ohio river, and bounded on the west by the Peebles farm, also a strip of ground 30 feet wide on the west side of the Rhodes farm, bounded on the west by the Peebles farm, and extending 1208 feet north to the Haverhill free turnpike, commonly known as the “Gallia pike,” and caused said land to be conveyed to A. T. Holcomb, trustee, for the purpose of being conveyed by him to The Little Kanawha Lumber Company when it should comply with a certain contract entered into by it with the board of trade of Portsmouth to erect, complete and start in operation a sawmill upon this 6.24-acre , tract. On the 17th day of January, 1891, Holcomb, as trustee, did convey this land consisting of 6.24 acres and the 30-foot strip extending to the Gallia pike, all of which had theretofore been a part of the Rhodes farm.
    On the 24th day of July, 1889, the same day of the conveyance of this land to Plolcomb, trustee, the heirs of John Rhodes, deceased, conveyed to The Little Kanawha Lumber Company a certain other tract of land which was also a part and parcel of the Rhodes farm. This consisted of about 4.72 acres lying north of the 6.24-acre parcel of ground above referred to, and being a strip of ground immediately north and adjoining the right of way of the C., W. & B. Ry., 200 feet in width, entirely across the Rhodes farm from east to west, excepting therefrom a strip of ground 30 feet wide from east to west and 2Q feet long from north to south on the west end of this tract adjoining the Peebles land that had theretofore been conveyed by the Rhodes heirs to Holcomb, trustee.
    On the 3rd day of August, 1889, The Little Kanawha Lumber Company purchased directly from John G. Peebles a part of the Peebles farm containing about 3 acres 73 feet south of the C., W. & B. Ry., contiguous to and bounded on the east by the 6.24-acre tract conveyed to it by Holcomb, trustee. It was provided in this deed that if the grantee, The Little Kanawha Lumber Company, failed to erect and complete a sawmill within a period of two years from the date of the deed, either upon the 6.24 acres purchased from the Rhodes heirs or upon these 3 acres purchased from Peebles, it would re-convey to Peebles this 3 acres upon condition that he return the $500 purchase money without interest.
    On the first day of July, 1891, John G. Peebles executed a lease for ten years to The Little Kanawha Lumber Company of a strip of land 330 feet in width, bounded on the east by the Rhodes farm, on the north by the Haverhill Free Turnpike, on the south by the line of the B. & O. S. W. Rd., the west line of said 10 acres being 330 feet west of the partition line between the Rhodes and Peebles farms. This lease also provided for a 16-foot alley on the west side of the 330-foot strip leased, and further provided for the erection and maintenance by the lessee of a board fence 8 feet high along the west side of the alley. This lease also provided that The Little Kanawha Lumber Company should grant to Peebles “the free right of egress and ingress over and along the streets on the east side of said leased premises, over the Rhodes lands to and from and switches on said leased premises and the use of the same for the purpose of loading or unloading cars at such times as would not interfere with the use thereof” by The Little Kanawha Lumber Company.
    The Little Kanawha Lumber Company being the owner of that part of the Rhodes farm conveyed to it by Holcomb, trustee, and of that portion of the same farm purchased directly from the heirs of Rhodes, and the owner of the 3-acre parcel of the Peebles farm purchased by it from Peebles and contiguous to its 6.24 acres of the Rhodes farm owned by it, and being the lessee of these 10 acres of the Peebles farm, with the right of a 16-foot alley the entire length of said leased premises from the railroad tracks to the pike, continued in the use and occupation of this property until December 17, 1897, when its business and all of its real estate holdings were sold by a receiver to Newman & Spanner, of Ironton, Ohio, who were also engaged in the sawmill business.
    The following plat shows these several parcels of land owned by and leased to The Little Kanawha Lumber Company:
    
      
      
    
    
      The parcel marked IR and 2R is the land purchased by the board of trade of Portsmouth, Ohio, from Rhodes, and conveyed to The Little Kanawha Lumber Company by Holcomb, trustee; 3R is the 4.72 acres of land purchased by The Little Kanawha Lumber Company directly from the Rhodes heirs; 4P is the 3-acre tract purchased directly from John G. Peebles by The Little Kanawha Lumber Company; 5P is the tract of land leased by John G. Peebles to The Little Kanawha Lumber Company ; 6P, consisting of 4P and 7P combined, is the tract of land conveyed by devisees of John G. Peebles to The Portsmouth Rim & Spoke Company by deed hereinafter mentioned (this includes the tract marked 4P, consisting of 3 acres, and the tract marked 7P, consisting of 1 acre) ; 8P is the 60-foot strip off of the north portion of 6P conveyed by deed hereinafter mentioned by The Portsmouth Rim & Spoke Company to The Norfolk & Western Railway Company. .
    On April 23, 1898, John G. Peebles, by a written endorsement upon the lease theretofore executed by him to The Little Kanawha Lumber Company, agreed to this transfer to Newman & Spanner. On the 4th day of February, 1898, all of this real estate was conveyed to The Yellow Poplar Lumber Comp'any. This company wrecked the sawmill, sold and moved the buildings and machinery from the premises, and discontinued the operation of the sawmill and the manufacturing- business theretofore conducted on these premises. Shortly prior to the expiration of the lease for the 10-acre tract, Peebles purchased from The Yellow Poplar Lumber Company the 3-acre tract he had originally sold to The Little Kanawha Lumber Company, paying therefor the sum of $500, being the same price without interest paid him by the original grantees. There was then upon this property a brick building that had been partly destroyed by fire. At the same time The Yellow Poplar Lumber Company surrendered to Peebles the 10 acres held by it under the original lease from Peebles to The Little Kanawha Lumber Company. This land then had upon it a board fence constructed by the original lessee, which, by the terms of the agreement to surrender, became the property of Peebles, he agreeing in consideration of such surrender to release the lessee from the further payments of rent and to build at his own expense a partition fence between his farm and the Rhodes farm. After the reconveyance of this 3 acres and the surrender of the lease, the lines of the Peebles farm were the same as they had been prior to any of these transfers.
    Neither Peebles nor his devisees used this land for sawmill purposes or manufacturing purposes of any kind. On May 14, 1902, the devisees of John G. Peebles conveyed to The Portsmouth Rim & Spoke Company, now The Breece Manufacturing Company, the defendant in error herein. 4 acres on the east side of the Peebles farm and south of the railroad (6P). Of this tract of 4 acres the 3 acres originally deeded by Peebles to The Little Kanawha Lumber Company was a part. On November 21, 1903, The Portsmouth Rim & Spoke Company, the predecessors in title of the defendant in error, conveyed to The Norfolk & Western Railway Company a strip of land 60 feet wide off of the north end of this 4 acres. This strip is designated on the plat as 8P and adjoins the railway’s right of way. On the 7th day of October, 1909, The Yellow Poplar Lumber Company conveyed to the plaintiff in error, Allen Jordan, the 6.24 acres (1R), the 30-foot strip on the west side of the Rhodes farm extending to the Gallia pike (2R), and the 4.72 acres, part of the Rhodes farm north of the railway track (3R). On February 17, 1891, that part of the Rhodes farm lying north of the 4.72-acre tract (3R) and east of the 30-foot strip (2R) was platted in lots, streets and alleys, and designated as New Boston. This plat purported to show a 60-foot street extending from Gallia pike south along the line between the Rhodes and Peebles farms and the 4.72-acre tract (3R). This 60-foot strip, however, included the 30-foot strip of land conveyed in fee simple by the Rhodes heirs to Holcomb, trustee, and of which the plaintiff in error is now the owner through mesne conveyance.
    After the plaintiff in error acquired title to this strip of land he instituted an action against the village of New Boston to quiet his title to this 30-foot strip, and a decree was entered against the village of New Boston as prayed for in the petition, quieting the title of Jordan and enjoining the village from the use of this 30-foot strip of land as a street in said village. During the time The Little Kanawha Lumber Company was in possession of these premises it used the 30-foot strip of land conveyed to it by Holcomb, trustee (2R), as a roadway to and from these premises, including not only the lands purchased from Rhodes but the 3-acre tract purchased from Peebles, and after the sale of this 3-acre tract to Peebles it continued to use the same roadway to and from the Rhodes lands owned by it until it conveyed the same to the plaintiff in error.
    It also appears that since the time of the conveyance of The Yellow Poplar Lumber Company of this 3-acre tract of land to Peebles, the owners of that land have been using the same 30-foot strip on the Rhodes farm as a roadway to and from these premises, and the original action was brought in the common pleas court to enjoin the plaintiff in error from obstructing this strip of land by fence or otherwise and from interfering with the plaintiff in its use thereof.
    
      Mr. T. C. Anderson; Mr. Joseph P. Coates and Mr. Joseph W. O’Hara, for plaintiff in error.
    
      Messrs. Holcomb & Millar, for defendant in .error.
   Donahue, J.

There is no conflict of evidence in this record upon any point material to the disposition of this case. The only question presented by the record is whether at the time Peebles repurchased this tract of land from The Yellow Poplar Lumber Company this roadway that was then being used by The Yellow Poplar Lumber Company over its own property was a way appurtenant to the 3-acre tract. This claim cannot be sustained upon any theory of right reasoning. This land was owned by The Yellow Poplar Lumber Company and its predecessors in title in fee simple. That it devoted this tract to road purposes for its own convenience in no way affects the question. This 30-foot strip was purchased in fee simple by the board of trade of Portsmouth, Ohio, yet evidently it was purchased for the purpose of a roadway from the pike to the 6.24-acre tract purchased by it at the same time from the Rhodes heirs. It was in fact a part and parcel of this same purchase, and so far as source of title is concerne4 had nothing whatever to do with the 3 acres purchased from Peebles. That transaction was separate and apart from the purchase of the Rhodes land by the board of trade. This 30-foot strip was not purchased for the purpose of the Peebles 3-acre tract as a way appurtenant to it. The situation is not different than it would be had these 3 acres of the Peebles tract been purchased by a person or corporation other than the owner of the Rhodes tracts. In such case the only way this 30-foot strip off of the Rhodes farm could become a way appurtenant to the Peebles tract would be by purchase or prescription. The use of this strip of land as a roadway by The Little Kanawha Lumber Company, which was then the owner of all these tracts, for its own convenience, could not create a title by prescription or start the running of the statute cf limitations. It had a right as the owner of this land to travel over any part of it in any direction, and that it chose to locate its roadway over this strip of land was a matter of no concern whatever to strangers to the title. The time that this strip was used as a roadway by the owner of all the property can not be included in the prescriptive period with the time it was used as a roadway by Peebles and his devisees and their grantees after The Yellow Poplar Lumber Company had conveyed this 3-acre tract to Peebles, even though it should be held that the later use of this roadway by defendant in error and its predecessor in title in common with the owner of the other tracts was an adverse user.

When this 3-acre tract of land was reconveyed to Peebles by The Yellow Poplar Lumber Company Peebles must have known the history, of this entire transaction. He knew when he deeded it to The Little Kanawha Lumber Company that there was then no way appurtenant to it. When he accepted the surrender of this lease and the reconveyance of this land his farm lines were just the same as before he had sold or leased any part of his farm to The Little Kanawha Lumber Company. He could then travel over and across his own land to the Gallia pike, and that being the fact he could not claim a way of necessity over the adjoining land of his grantor. The deed from The Yellow Poplar Lumber Company to Peebles of this 3-acre tract did not purport to grant any rights or easements in this particular 30-foot strip. The grant in that deed is as follows: “All the estate, title and interest of said grantors, either in law or in equity of, in and to said premises, together with all the privileges and appurtenances to the same belonging.”

It is clear that unless this was at that time a way appurtenant to this 3-acre parcel of land, this deed did not convey to Peebles any interest or rights therein. That it was not at that time or at any other time a way appurtenant to the 3-acre tract is too clear for dispute. The use of this roadway by the owner was not different than if it had been used in connection with the leased land. The fact that it did serve the purpose of a way to this 3-acre tract, with other tracts, while all this property was owned and occupied by the same owner, does not evidence any intention on the part of the owner to devote this parcel to the use of the 3 acres as a way appurtenant thereto. When the sawmill business was discontinued upon this and the adjoining tract Peebles repurchased this land at the price that he had agreed to pay for it in the deed from himself to The Little Kanawha Lumber Company. It may be, however, that that provision of his deed to The Little Kanawha Lumber Company did not control the price that he paid for this property. It is nevertheless a significant fact. It is hardly within the range of possibility that he believed or expected that he was purchasing from The Yellow Poplar Lumber Company any more than he had granted to its predecessor in title, The Little Kanawha Lumber Company, except the structures or parts of structures still standing thereon. After the sale to Peebles of this 3-acre tract it practically lost its identity as a separate parcel and became a part of the original Peebles farm, as it was before the original conveyance. Later a deed was made by Peebles’ devisees of a 4-acre parcel of this land to The Portsmouth Rim & Spoke Company. The fact that this 4-acre tract included the 3-acre tract originally deeded by Peebles to The Little Kanawha Lumber Company has little or no significance. It might just as well have been any other 4-acre tract out of his farm. .The claim that this roadway had become appurtenant to the 3-acre tract could not by any flight of imagination develop into a claim of a way appurtenant to the whole Peebles farm. If the’ claim could be sustained that this was a way appurtenant to 4 acres of the Peebles farm, it could be shown by the same reasoning to be a way appur- ' tenant to all the farm. After these conveyances had been made to The Portsmouth Rim & Spoke Company it conveyed to The Norfolk & Western Railway Company a 60-foot strip off of the north end thereof, thereby severing the connection of the remainder of the 4 acres held by it with the 30-foot strip now claimed as a roadway. In this deed to the Norfolk & Western Railway Company no right of way is reserved over the 60-foot strip. It is true that the testimony shows that the railway company has put in a crossing running diagonally from the residue of defendant in error’s land to this 30-foot strip, but there is no claim that the defendant in error has any right to the use of this crossing except at the will of the railway company. This 30-foot strip extends only to the north side of the railway tracks and never did extend to this 3-acre tract. True, the driveway was continued beyond this 30-foot strip over and across the railway tracks and upon the lands purchased from the Rhodes heirs, for the purposes of the successive owners of all this property, up until the time of the severance of title by the reconveyance to Peebles. This litigation, however, is confined to the strip of ground 30 feet wide and extending 1208 feet south from the Gallia pike. It is this strip of land that is described in the amended petition; it is this strip of land that defendant in error claims the right to travel over, and it is this strip of land that the amended petition charges the plaintiff in error with fencing and refusing to permit plaintiff to pass over or use as a roadway. It is clear from the evidence that this strip of land, although it has been used as and for a roadway, is neither contiguous to nor appurtenant to the 3-acre tract, nor was it ever devoted to that exclusive purpose. The most that can be said about it is, that while one proprietor owned all these tracts it used this roadway for its own convenience and for its own purposes, irrespective of the different parcels of land owned by it.

It is urged upon the attention of this court that the circuit court found as a fact that this roadway was reasonably necessary to the enjoyment of the premises owned by defendant in error and added materially to the value of said premises. That is undoubtedly true in so far as it applies to the conditions existing at the time of the commencement of this litigation, but it was not the fact nor is there any evidence tending to prove that that was the condition at the time the property was reconveyed to Peebles. - On the contrary, it is admitted that Peebles then owned the entire farm reaching to the Gallia pike, and that he could travel over his own farm to the highway. At that time there was a 16-foot alley on the west side of the land Peebles had leased to The Little Kanawha Lumber Company which extended from the railway tracks directly north of this tract to the Gallia pike, so that Peebles could not then claim that a way over other lands of his grantor was reasonably necessary to the enjoyment of the premises conveyed to him, and the rights of this defendant in error must be measured by the same rule that would apply to Peebles at that time, and not to the conditions as they existed at the time of the commencement of this action.

Our attention is also called to the statement that the circuit court found as a fact that this roadway, was appurtenant to said premises. There is no such finding by the circuit court. On the contrary, the language is as follows: “And was used as an appurtenance to said premises, since the date of the purchase of the same by the plaintiff.” Defendant in error relies on the claim that this roadway was appurtenant to the premises at the time The Yellow Poplar Lumber Company conveyed to Peebles. Unless it was then a way appurtenant thereto Peebles acquiréd by his deed no right or interest therein, and of course could pass none to his devisees, nor could they in turn convey any interest therein to their grantees. If the circuit court had found as a fact that this was a way appurtenant to these premises at the time of the repurchase by Peebles from The Yellow Poplar Lumber Company, such finding would not foreclose further inquiry by this court. That is a question of law, especially where there is no conflict of evidence, and even if there had been a conflict of evidence, then, resolving every disputed question of fact in favor of the plaintiff below, the question of law would still be presented whether there is any evidence in support of a finding that the way was a way appurtenant to the premises at the time of the conveyance to Peebles. Clearly. There is no such evidence.

For these reasons the judgment of the circuit court will be reversed and judgment for plaintiff in error upon the facts found by the circuit court.

Judgment reversed. Judgment for plaintiff in error.

Nici-iols, C. J., Shauck, Johnson, Wanamaker and Wilkin, concur.

Newman, J., not participating.  