
    The Baltimore & Ohio Railroad Co. v. Gilmore.
    
      Real property — Conveyance of right of way to railroad — Way of necessity in grantor by operation of law.
    
    A grantor who conveys land in fee simple to a railroad company for a right of way, and does not have access to his remaining land except over said right of way, has reserved to himself by operation of law a way of necessity over the land conveyed.
    Easements, 19 C. J. §123.
    (Decided October 10, 1925.)
    Error: Court of Appeals for Lorain county.
    
      Mr. H. G. Johnson and Mr. J. M. Lessiclc, for plaintiff in error.
    
      Messrs. Glitsch & Stach, for defendant in error.
   Pardee, J.

The parties stand in this court as they did in the courts below, and will be referred to as plaintiff and defendant.

The plaintiff filed its petition in the Probate Court of Lorain county to appropriate certain real estate described in the petition, belonging to defendant. Upon the preliminary hearing of the case in that court, all the preliminary questions were decided in favor of the plaintiff, and a jury was impaneled and sworn to assess the compensation to be paid to defendant for the land taken. A verdict was returned in favor of defendant in an amount not satisfactory to the plaintiff, a motion for a new trial was filed and overruled, and the case was taken on error to the Court of Common Pleas of said county, where the judgment was affirmed. The case is now in this court on error to reverse the judgments of the two lower courts.

The predecessors in title of the real estate of defendant conveyed by deed in the year 1898 two pieces of their real estate to the plaintiff’s predecessors. These two pieces of real estate were out of one parcel, approximately 50 feet wide, facing Broadway street in the city of Lorain, and extended in an easterly direction to Black river, the north and south lines of said lot being parallel. By said conveyance the original lot was severed into five parcels, two of them being the rights of way of said plaintiff, and the other three remaining in the ownership of the original grantor. In the deed made by the original grantor, he did not reserve over the land conveyed a right of way to the middle parcel from the parcel facing Black River, or to the Broadway street parcel from the middle parcel, or vice versa,.

Upon the trial of the case to the jury in the Probate Court, tbe defendant claimed that he had such a right of way to and over plaintiff’s several parcels, and the trial judge permitted the defendant’s witnesses to testify to the value of the parcels condemned, with such right of way as an incident to them. The plaintiff claims that this was prejudicial error, as it enhanced the amount of the verdict and thus prevented the plaintiff from having a fair trial. This is the principal ground of error alleged by the plaintiff, and, of course, if the plaintiff is correct in its contention, the judgments of the lower courts should be reversed and a new trial ordered, but if the plaintiff is incorrect in this contention the judgments should be affirmed, unless other errors intervened which prevented plaintiff from having a fair trial.

Putting aside the question as to whether under said deed the plaintiff and its predecessors acquired any more than a mere right of way for their railroad, and assuming that they acquired an absolute title in fee simple, did the predecessors in title of the defendant, without reserving a right of way over the land conveyed, have and retain such right of way by law? The defendant and his predecessors in title do not and did not have access to the back two parcels of réal estate in any other way than over the lands of the plaintiff, conveyed to it by said deed. Under these circumstances, therefore, what, if any, rights did defendant have over the land conveyed to plaintiff?

It seems to be well settled that where a grantor sells to his grantee certain real estate, to which the grantee does not have access except over the other lands of said grantor, the grantee shall have a way to it, as an incident to the grant, and it is now equally well settled that the converse of the above proposition is true — that if the grantor had kept said land and sold his other lands, that he would have reserved to himself, by operation of law, a right of way over the land sold. This proposition is well established by authority, and has been recognized by the Supreme Court of Ohio in Meredith v. Frank, 56 Ohio St., 479.

But the plaintiff claims that if the above proposition is true as to real estate generally, that it does not apply in Ohio where real estate is conveyed to a railroad company for a right of way, and that as against such a company there cannot be a way of necessity over its right of way unless the land of the property owner comes within the provisions of Section 8858, G-eneral Code, which reads:

“When a person owns fifteen or more acres of land in one body, through which a railroad passes, and which is so situated that he cannot use a crossing in a public street, lane, road or other highway, in going from his land on one side of the railroad to that on the other side without great inconvenience, at his request, and within four months thereafter, the company or person operating it, at the expense of such company or person shall construct a good and sufficient private crossing across such railroad and the lands occupied by the company, between the two pieces of land to enable such landowner to pass with a loaded team, and over which he may go at all times when such railroad is not being used at the crossing, or so near to it as to render passing thereat dangerous.”

And of course, no claim is made by the defendant that his land does come within said provisions.

But with this contention of the plaintiff we do not agree. This section has no reference to ways of necessity, which have been recognized by the courts almost from time immemorial, and is not intended to deny or limit such rights, or to apply thereto, but on the other hand it is intended to enlarge the rights of property owners owning fifteen or more acres of land in one body, through which a railroad passes, which lands are not entitled by the common law to a way of necessity. This conclusion is fully supported by the terms of the statute, for it shows upon its face that the lands intersected by such railroad do not have a way of necessity from one part thereof to the other, because both parts abut upon a public street, lane, road or other highway. This section intends to provide for crossings of convenience, which a railroad company is required to install under said conditions, as distinguished from ways of necessity.

We have not found any authority, and none has been cited to us, which takes railroad rights of way out of the rule announced in the case of Meredith v. Frank, supra, and we cannot conceive of any reason why a corporation, whether it be railroad or other, should hold a more favorable position in regard to a way of necessity than a private individual.

The trial court, therefore, did not commit any error in permitting the defendant to show the value of his land with a right of way as incidental thereto over the land of the plaintiff.

The plaintiff also complains that the judgment is manifestly against the weight of the evidence, but with this contention also we do not agree. Both parties called numerous witnesses, who testified as to the value of the land taken, and there was a wide variance in their testimony in relation thereto, and, without invading the province of the jury, we cannot say that the jury were wrong in the value placed upon the land.

“1. "Where a case is taken on error to a reviewing court on the ground that the verdict of the jury is against the weight of the evidence, a mere difference of opinion between the court and the jury is not sufficient to justify a reversal. The verdict and judgment must be clearly and manifestly against the weight of the evidence, and that condition is to be determined as a matter of law by the reviewing court and not as a matter of discretion or judgment in the sense in which the jurors exercise those faculties upon the facts.” Cleveland Ry. Co. v. O’Reilly, 16 Ohio App., 132. See also cases cited therein.

Not finding any errors in the record prejudicial to the plaintiff, the judgments of the lower courts are affirmed.

Judgment affirmed.

Washburn and Funk, JJ., concur.  