
    Common Pleas Court of Montgomery County.
    Miami Valley Boat Club Inc. v. Cincinnati & Lake Erie Ry. Co.
    
    Decided April 10, 1931.
    
      Virgil Schaeffer and Matthews & Matthews, for plaintiff.
    
      Martin & Cory, for defendant.
    
      
       Affirmed by the Court of Appeals,
    
   Snediker, J.

This case is before the court on the merits. The plaintiff seeks the confirmation in it of a way of necessity over the right of way and tracks of the defendant company and that the defendant be directed to install a crossing, at plaintiff’s expense, at the point where such way of necessity is determined to be.

The defendant denies that there is a right of the plaintiff to the way of necessity which it seeks, and claims that another way, long established, is sufficient for the purposes of the plaintiff and should be used by it; that its immediate predecessor in title to its right of way purchased it froim the receiver of the Cincinnati & Dayton Traction Company without any such burden of a way of necessity and only with a way which had already been established at or near the north portion of the property belonging to Louis A. Lindermuth. And it claims that the Cincinnati, Hamilton & Dayton Railway Company, its predecessor, was not the successor or assignee of the rights or interests of the Cincinnati & Dayton Traction Company, especially because of the manner in which its right of way was purchased by its predecessor in title; and that the conveyance to its predecessor in title was prior to the conveyance of the Cincinnati & Dayton Traction Company to Louis A. Lindermuth, who was the plaintiff’s grantor.

In 1906 the Cincinnati & Dayton Traction Company became the owner of the entire acreage which is involved in this action and continued in the ownership of the entire tract until April of 1926, when, in a proceeding in the Common Pleas Court of Butler county, a receiver and master commissioner conveyed to the Cincinnati, Hamilton & Dayton Railway Company the right of way of the Cincinnati & Dayton Traction Company which ran through this tract in a northeasterly • and southwesterly direction. This conveyance was of the land “used or useful, immediately or in prospect, for railroad purposes.”

In October of 1926 the Cincinnati & Dayton Traction Company conveyed all that remained of this property after the right of way was taken therefrom to Louis A. Lindermuth. In May of 1928 Lindermuth conveyed what may be called the southern portion of this real estate to Lowell P. Rieger and Nelson M. Rieger. In February of 1929 Lowell P. Rieger and Nelson M. Rieger conveyed to the Miami Valley Boat Club this plaintiff, the property which it now owns and which consists of about four acres.

Upon its property the plaintiff erected a club house. In order to approach this house from the Cincinnati pike, which is the general route of travel to that point, the nearest way is across the right of way of the defendant company.

There is some evidence in the case which discloses that in years past there had been a roadway used for farm purposes running to the northeast, following the meanderings of the Miami River to .the point where a crossing from Lindermuth’s land goes over the right of way of the defendant company to the Cincinnati pike. This is not the nearest way from the property of the plaintiff to the pike, and can only be made available to plaintiff, if at all, by the expenditure of some three or four thousand dollars. The testimony discloses that even with this outlay there would still be some doubt as to whether or not the Boat Club would be entitled to, or could, use the way along the river and through Linder muth’s land to the crossing at the north. If we consider this way in connection with the character of the ground at'the time it was in possession of a common owner, that is, farm property, we readily understand how prohibitive the expense would have been to the adoption of this way by Lindermuth or by anyone who subsequently purchased the ground to use for like purposes.

It is the opinion of the court that this plaintiff ought not to be relegated to the use of that route, and that we are called upon to determine whether, under all the conditions, it is entitled to a way over the right of way of the defendant company at the point for which it contends; that is, directly from its own property to the Cincinnati pike.

The case has been presented to the court from the one side on the theory that the defendant company is a stranger, out of privity with the plaintiff, and that for that reason plaintiff is not entitled to exercise a right, by way of necessity, to cross the defendant’s tracks. If this were true then the law has undoubtedly been established to the effect claimed by the defendant.

In the 47 Maryland, at page 301, the court say:

“A right of way of necessity can only be raised out of the land granted or reserved by the grantor and never out of the land of a stranger.”

In the 21 Pickering, at page 102-104, the court say:

“It is not the necessity which creates the right of way, but the fair construction of the acts of the parties. No necessity will justify an. entry upon another’s land. If a man can be supposed to hold land without any right of access to it, a grant of it would not convey to the grantee any right to pass over the adjoining land, however necessary it might be to the enjoyment of the thing granted. He would acquire nothing more than his grantor held. The estate would gain no accretion by passing from hand to hand. The necessity of the parties would add nothing to it.”

It may be said that the decisions found in the 83 Me., p. 91, 6 Mo., p. 624, and 55 Cal., p. 350, are all to the like effect.

But is The Cincinnati & Lake Erie Railway Colmpany, which is a successor of the Cincinnati, Hamilton & Dayton Railway Company in title, such a stranger?

When the right of way over which it passes was purchased by virtue of court proceedings through the medium of a receiver, or master, the title which was taken by the purchaser, the predecessor of defendant, was the title of the Cincinnati & Dayton Traction Company. In dealing with a sale on execution, which is much the same as a sale by a receiver who is disposing of the property as upon an equitable execution, Freeman in his work on Execution says:

“The title acquired by a purchaser, even when the proceedings are valid, is that only to which he would succeed by a conveyance from the defendant in the writ.”

In the case of Collins v. Prentiss, 15 Conn., pp. 39-44, the court say as to property sold by an executor through the medium of the probate court:

“These conveyances do not appear to have been made by the owner of the lands; they were a part of the estate of Hale; and, unless devised by his will, descended to his heirs at law. But the sales were made by the executors under an order of the court of probate. These executors, as such, had no interest in the lands conveyed; they had merely the power to sell, and in the exercise of that power could not destroy beneficiary interest belonging to the heir or devisee in the lands not sold. They could not, by merely selling off the first lot, deprive him of the power of passing to and from the lands in the rear. 2 Mass. Rep., p. 203. And if they subsequently sell the other lands in the rear of the first lot the purchaser would be entitled to the same right of way as the owner would have if no sale had been made.”

As said by the Supreme Court of Massachusetts, in the second volume, at page 205:

“The reason of the thing is plain, and the cases cited are clearly in point. If when a man voluntarily, for a valuable consideration, grants land having other land in the rear he be, entitled to this way of necessity although he might have secured it by reservation in his grant, surely when his land is taken from him without his consent, by force of law, he is not less entitled to such a privilege.”

So that we may find that this defendant is not only not a stranger as claimed, but that, if necessary, a right of way may be established over its tracks in favor of the plaintiff so far as the derivation of defendant’s title is concerned.

We have already expressed ourselves as to the right of the defendant or its predecessors in title to insist upon the use of the right of way along the river by the owners of the parcel out of which this plaintiff’s ground is taken, and we have stated that, as originally used, such obligation ought not be imposed upon the owners of that parcel.

A way of necessity derives its origin from a grant and cannot legally exist where neither the party claiming the way.nor the owner of the land over which it is claimed, or anyone under whom they or either of them claim, was ever seized of both tracts of land. Here the testimony shows that the land owned by both plaintiff and defendant originally belonged to the Cincinnati & Dayton Traction Company; that the title of both plaintiff and defendant may be traced to a common owner, that at the time of the conveyance to the Cincinnati, Hamilton & Dayton Railway Company by such common owner, the Cincinnati & Dayton Traction Company was then and afterwards, for the reasons we have given, entitled to a way of necessity from the location now owned by the plaintiff over the right of way to the Cincinnati pike. Under the rules applicable to such a situation there would be a reservation of such right of way in the Cincinnati & Dayton Traction Company, and we are of the opinion that that way of necessity still subsists in this plaintiff.

We do not regard seriously the contention of counsel for the defendant that there will be an additional hazard by the location of the way of necessity at this point instead of compelling the plaintiff and its members to travel over the crossing on Lindermuth’s property. We do not remember the exact number of feet but the distance was so short and the surroundings were such that the risk of the defendant-company striking, anybody crossing the track would not be increased over the use of the Lindermuth crossing only.

An entry may be drawn awarding the plaintiff the way of necessity which it contends for and decreeing that the expense of such crossing shall be met by the plaintiff.  