
    Shields v. Titus.
    
      Easements — May be established by mutual agreement of adjacent owners — Agreement may be enforced in equity — Injunction a proper remedy.
    
    1. A way, laid out by an owner over his lands for the benefit of parcels thereof into which he subdivided them for sale, the boundaries of which way, the purchasers of the several parcels definitely establish by mutual agreement, and thereafter improve and use it for the benefit of their lands, is an easement annexed to the lands, and passes by a grant of the land without being mentioned in the conveyance. The grantee takes the rights his grantor had with respect to it, and holds his land subject to the burden it imposed.
    '2. Where proprietors of adjacent lands, by mutual agreement, definitely establish the boundaries of a private way previously laid out along their lines, and appropriate the strip of land embraced therein to be used as a perpetual easement for the benefit of the abutting lands of each, and the common benefit of all, and, in pursuance of ihe agreement, fence to the boundaries so agreed upon, and thereafter improve and use the way thus established, the agreement may be enforced in equity, at the suit of a purchaser from one of such proprietors, against a purchaser with notice from another. Injunction preventing the permanent obstruction of, or interference with such way, is a proper mode of enforcing the agreement.
    (Decided October 29, 1889.)
    
      Error to the Circuit Court of Lorain County.
    The plaintiff in error commenced his action against the defendant in error, and Adam Seymour, in the Court of Common Pleas of Lorain county, by-filing therein the following petition :
    “ Plaintiff says that Alexis Miller, now deceased, was the owner of a large tract of land situated in secs. No. 5 and 6 in Avon Township, Lorain County, Ohio. That sec. No. 6 is bounded on the north by Lake Erie, and that along near the north side of said sec. No. 6 is, and has, been a public highway for over 40 years, known as the Lake Shore Road. During the life time of said Miller, he sold several pieces of land in this said tract, which, by a series of deeds, are now held, one piece by one Ann Robinson, another by one Nick Pitts, another by this plaintiff, and two other pieces by the defendant, Daniel Titus. That when said pieces of land were first severally sold by said Miller, there was and still is no public highway by which ingress and egress can be had to or Rom said land. That for the purpose of rendering said lands accessible by teams and vehicles, said Miller opened and constructed a lane or way to each piece of land so sold, to-wit: a lane or way commencing on said Lake Shore Road and running south to the north line of sec. No. 5. That said lane or right-of-way was opened and laid out for the benefit of said several grantees, their heirs, administrators and assigns, and all persons wishing to travel the same to reach said land. That said Miller also, at the time he established said way, was the owner of about 10 acres of land situated in said section 5, and at the south end of said lane, being one of the pieces now owned by said Daniel Titus, and that said lane furnished the only means of getting to and from said ten acres.
    “ Plaintiff says said right-of-way or lane has been used, traveled over and occupied for the purpose of reaching said several pieces of land for the past twenty-five years, with the assent, acquiescence and knowledge and agreement of said Miller and his several grantees and their assigns to whom he has conveyed the premises over which said way runs. That prior to the year 1875, one Joseph Fretter, by purchase, became the owner in fee of said ten acres of land in sec. No. 5. and of the land now owned by said Daniel Titus in sec. Noth That in that year 1875,. the said Joseph Fretter, Ann Robinson, Andrew Seifert and this plaintiff, being at that time the owners of all the land over which said lane ran, for the purpose of settling definitely the width and exact location, of said way mutually agreed between and among each other that said way should be thirty feet wide its entire length.. That thereupon, by virtue of said agreement, each of said párties built' fences along the sides of said way, to-wit: said Fretter built a fence 30 feet west of his said east line, and Robinson built a fence 30 feet west of the east line of about ten acres of land, and said plaintiff and said Seifert each built a fence fifteen feet east of the center of said lane across their respective farms; and said Robinson also built fences 15 feet west of said center of said lane across the remaining part of her said farm, thus making a lane 30 feet wide extending from said Lake Shore Road south to the south line of sec. 6. That large ditches were constructed, bridges built-, and said road was otherwise worked and improved.
    “ That afterward said Joseph Fretter sold and by deed conveyed all his interest in any land in said Sections No’s 6 and 5 to the defendant, Daniel Titus. Plaintiff says the land so-sold to defendant, Titus, in section No. 6, is bounded as-follows: On the north by the Lake Shore road,on the east by land owned by Thomas Shields, formerly owned by A." II-Bullock, on the south by land owned by Ann Robinson, and on the west by land owned by P. J. Miller. That said 30 foot lane runs over and across the east .side of said land last above described. Said Robinson’s land is just south of above desci’ibed land, and the land so owned by said Seifert and said plaintiff in 1875, is adjoining said Robinson’s said land on the east. Plaintiff says in the year 1875, he sold and conveyed all his right in his said premises to said Nick Pitts, who is still in possession and the owner thereof. That in the year 1878-he purchased the said farm of said Seifert, and now is in possesión thereof and the owner in fee. That said lane now furnishes, and has for 25 years, the only way to get to and from the land now owned by the said Robinson, Pitts and plaintiff. That defendant, Titus, when he purchased his said land of said Eretter, well knew all and singular the facts above set forth, and bought said premises subject to the perpetual right of plaintiff and the several owners of said several tracts of land, their heirs, administrators, executors and assigns, to use, enjoy, occupy, and travel said lane its entire length with wagons, vehicles and whatever conveyances, and when necessary to fully enjoy their said land.
    “That defendant, Adam Seymour, claims some interest in the said farm of said Titus, by lease or otherwise. Plaintiff says that notwithstanding the facts above stated, said defendants, Titus and Seymour, now claim that said plaintiff has no right, title or interest in and to the possession or use of said lane or right of way. That they each now refuse to allow him to enter upon the part of said lane lying on the east side of the farm of said Titus, and threaten to forcibly eject him and his teams therefrom, and threaten to fence up the same, and threaten to and have already sued him for trespass for entering upon said lands with his teams, and threaten wholly to deprive him of the use of the same.
    “ Wherefore plaintiff asks that on the final hearing hereof he may be quieted in his right to the enjoyment of said right-of-way, as above set forth, and be decreed to have the right to use and enjoy the same together with his heirs, administrators, executors and assigns of said premises so owned by him, and that said defendants, their heirs, administrators and assigns may be forever enjoined from interfering with the use and enjoyment thereof for the purposes as above set forth, and for such other rights and equities that the court can give and law requires.”
    A general demurrer to the petition was overruled, and thereupon the following answer was filed :
    “ The defendant, Daniel Titus, for answer to the petition of said plaintiff says, he admits that one Alexis Miller, deceased, in his lifetime owned a tract of land in sections five and six in Avon township in said county, out of which he sold in his lifetime in section six two small pieces, one to Aaron H, Bullock and one to Evan Richards, and conveyed the same to them respectively by deed; that the one, six acres, sold by said Miller to said Richards is now owned and occupied by one Catharine Pitts, and the one sold to said Bullock is now owned and occupied by the plaintiff; that across the northerly part of said section six there is and for many years last past has been a public highway, known and called “the Lake Shore Road;” that the said Miller in the sale of said six acres to said Richards did agree and covenant with said Richards that each should throw out fifteen feet of land respectively across said six acres for a private way, so that said Miller could reaich his lands in said section five, and that the said Richards should have the right and privilege, together with his heirs and assigns, in consideration of said purchase and the throwing out of said fifteen feet from the west side of said six acres of traveling in a northerly direction, over and across the premises, to and from said Lake Shore Road at all times for the free use and enjoyment of said six acres; that one Ann Robinson now holds by a land contract, as defendant is informed and believes and avers the fact to be, about sixty acres of land, foi’merly owned in said .sections five and six by said Miller, and has no way of ingress thereto and egress therefrom except of necessity over this private way to said Lake Shore Road.
    “ Defendant says that he owns a small piece of said land so •owned by said Miller in section five, and all of section six so •owned by said Miller, north of land as aforesaid by Ann Robinson, and west of land of the plaintiff, and lying between the lands occupied by said Robinson and the Lake Shore Road aforesaid; that the laud of the said plaintiff lies next east of his, and fronts on said Lake Shore Road, which said road gives said plaintiff ample, free and easy access to his said premises and every part thereof.
    “Defendant further answering, says that at the time said Miller sold said premises to said Bullock, no grant was conveyed to said Bullock to pass and re-pass over the premises now owned by this defendant, by deed or otherwise, and none existed of necessity, and at the time said Bullock conveyed the same to said plaintiff, no right to pass or re-pass over and across the premises of this defendant through this private way aforesaid was conveyed to him, either by grant, implication or of necessity. Defendant avers he purchased said premises of one Joseph Fretter free and clear of all incumbrances, except the private right-of-way of said Catharine Pitts by grant, and of the said Ann Bobinson of necessity; and defendant avers his said premises are free and clear of any incumbrance, right-of-way or servitude to the premises owned and occupied by said plaintiff.
    “ Defendant admits he has denied and still denies said plaintiff’s right to travel over said private right-of-way in the use and enjoyment of his said premises; that he has brought suit against him in trespass for so doing and recovered a judgment therefor against said plaintiff which the said plaintiff has paid together with the costs of said suit, and has forbiden him to use and travel over said private way in connection with his said premises.
    “.Each and every other allegation and averment in plaintiff’s petition not hereinbefore admitted to be true, defendant denies.”
    
      “Second defense. — Defendant further answering, says said plaintiff is known by several given names, to-wit: Vint Shields, Vincen Shields, Vincent Shields and Thomas Shields ; that he and his friends use these names interchangeably when speaking to and of himself; that they all refer to and designate the same person, to-wit: said plaintiff, and he responds to and recognizes himself as the person meant whenever any of these given names are applied to him; that on or about the — day of July, 1884, the said defendants brought suit against said plaintiff, under the name of Vincent Shields, before A. W. Sherbondy, a justice of the peace in and for Avon township in said county, the said justice having full power and authority to hear said cause for trespass in traveling over said private way with his teams, wagons and on foot in the use of his said premises, at which trial the said' plaintiff appeared aud answered in said suit, and set up the same facts in defense of said suit he now sets up in this action; that after a full and fair trial before said justice of the peace and a jury, and after arguments of counsel, said defendants recovered a verdict and judgment on the merits of said action against said plaintiff in this petition, which judgment so obtained the said plaintiff paid, together with costs. Wherefore said defendants say said cause is res judicata and no right of action exists against them and in favor of said plaintiff. The said defendant therefore asks to be dismissed with his costs.”
    The plaintiff replied as follows :
    “Now comes plaintiff and for reply to the answer filed herein says he admits that said Miller sold said 6 acre piece to said Richards with the agreement in said deed contained as alleged in the petition, and that said property is now owned by one C. Pitts He further admits that he did purchase of said Bullock the lands as alleged in the defendant’s answer, with all the appurtenances thereunto belonging. He avers that long before said purchase was made said Miller conveyed to said Bullock the perpetual right-of-way over the lane or road in controversy for the benefit of said premises, and the perpetual right to drain his surface water into a ditch or drain running along the side of said lane next to the land of said Bullock. He admits that said defendant purchased from one Fretter who held his title from said Miller, and he avers that said defendant purchased said property with full knowledge of said encumbrance upon it. And further replying denies each and every allegation therein contained except those explained or admitted above, and asks that the prayer of his petition may be sustained.”
    Upon the trial of the cause, at the October term 1885, the court found the issues for the plaintiff, and rendered judgment in his favor as prayed for.
    A motion for a new trial was overruled, but no bill of exceptions was taken, nor was there any finding of facts by the court.
    The defendant Titus prosecuted error to the circuit court, where the judgment was reversed, solely on the ground, as ap.•pears from the record, that “the court of common pleas erred in overruling the demurrer to the petition.”
    A reversal of the judgment of the circuit court is now sought here.
    
      Metcalf, Webber & Johnson, for plaintiff in error.
    The petitition shows that defendant’s, grantor and plaintiff, .agreed upon this lane, fenced it, bridged it and worked it; that defendant knew all this when he bought the land over which it runs; that he bought it subject to the plaintiff’s right to ■travel it. The parties owning the land over which this lane runs had a right to agree upon the lane. For aught that is ■disclosed the agreement was in writing. The presumption is it was, if a contract or agreement of this kind must be made in •writing. Defendant when he bought his farm had a right to buy it subject to this right of way, and for aught that appears this right of way was reserved in his deed. Defendant by his ■demurrer admitted all the facts stated in the petition to be true. Hance v. Hare, 25 Ohio St. 349; 6 Allen, 341; 2 Wait’s Actions and Defenses, 682, and cases there cited; Nathan v. Lewis, 1 Hun, 239, 245; 1 Walker & Bate’s Digest, 346, 347; 6 Am. Law. Reg., 718; 2 D. 261, 267.
    If a material fact is not alleged in a petition, if it appears by the finding of the court that it was supplied by the evidence, so that the defendant could not have been injured by the absence of the averment, the judgment will not be reversed. Davis v. Hines, 6 Ohio St. 47; 30 Ohio St. 308 ; 33 Ohio St. 555, 562.
    The answer and reply raise an issue. that could support the finding of the court of common pleas.
    
      Johnson & Leonard, for defendant in error.
    I. The plaintiff brought his action upon the wrong side of the court. His prayer is for quieting of title, injunction and equitable relief. His action should have been brought at law. It is only in special cases, where special grounds for equity interference are set forth, that equity will interfere for encroachment upon an easement. 2 Waite A. and D. 749 and 750 ; 3 Waite A. and D. 700-708 ; Wash. Ease, 575 and 576 ; 2 Story’s Equity, § 925 and § 926 ; Smith v. Wiggins, 48 N. H. 109; Bank v. Debolt, 1 Ohio St. 591; McCoy v. Chillicothe, 3 Ohio, 379; Culver v. Rodgers, 33 Ohio St. 537.
    II. The petition shows no right to the statutory remedy to quiet title. Actions to quiet title are of two kinds, the statutory action, Rev. Stats., sec. 5779, and the chancery suit which still exists in Ohio. Marsh v. Reed, 10 Ohio, 347, 350; 2 Bates Pleading, 660. The statutory action is founded on possession. An easement is not capable of possession. Washburn on Easements, 2; Hilliard on Real Property, 61; Munroe v. Ward, 4 Allen, 150; Redfield v. Railway Co., 25 Barb. 59; Clark v. Hubbard, 8 Ohio, 382; Tyler on Ejectment, 41; Wicklowe v. Lane, 37 Barb. 246; 3 Blk. Com. 206; Jackson v. May, 16 John, 184 ; Smith v. Wiggin, 48 N. H. 109; Jackson v. Hathaway, 15 John, 454; Miller v. Miller, 4 Pick. 244; Clark v. Hubbard, 8 Ohio, 382; Thomas v. White, 2 Ohio St. 540; Harvey v. Jones, 1 Disney, 68; Hoskins v. Alcott, 13 Ohio St. 216; Austin v. Goodrich, 49 N. Y. 266 ; Brown v. Harman, 21 Barb. 508; Bates Pleading, 665, 906.
    III. Under the chancery action to quiet title, it is none the less necessary that plaintiff should be in possession. Bailey v. Briggs, 56. N. Y. 407 ; Scott v. Kramer, 31 Ohio St. 295. Also cases cited under proposition II.
    IV. To entitle to the chancery relief to' quiet title it must appear that the plaintiff has established his title at law. Marsh v. Reed, 10 Ohio, 349; Wash Easements, 575-6 ; Story’s Equity, sec. 925, sec. 926; Collins v. Collins, 19 Ohio St. 470; see also 3 Waite A. and D. 701, and cases there cited. Also Id. 703; 2 Bates Pleadings, 663; McCord v. Iker, 12 Ohio, 387, 388.
    V. On the injunction side of this petition, it. is well settled that courts of equity will not interfere by injunction where the complaining party has an adequate and complete remedy at law. Southard v. Stephens, 27 Ohio St. 651; Wilson v. Mineral Point, 39 Wis. 163; Gray v. Tyler, 40 Wis. 579; Bank v. Debolt, 1 Ohio St. 591; McCoy v. Chillicothe, 3 Ohio, 379 ; Bates Pleading, 663 ; Smith v. Wiggin, 48 N. EL 109 2 Waite A. and D. 747, and cases there cited.
    VI. Equity will not interfere by injunction in cases like this unless it is alleged that otherwise great and irreparable injury will be done, and the facts must be stated which will make out such a case. Van Wert v. Webster, 31 Ohio St. 420; see also 1st Bates Pleading, 483, and cases there cited ; Wash. Easements, 575, 576 ; Wilson v. Minn. Point, 39 Wis. 160; 3 Waite A. and D., and cases there cited.
    The cases in which equity will interfere by injunction to prevent encroachments upon an easement are collated 2 Waite A. and D, 749, 750, and generally in cases of trespass and nuisance, 3 Waite A. and D. 700-708. The petition does not come within the rule.
    VII. The plaintiff does not show in his petition any right by easement or otherwise, in or to the land in controversy. He neither states it in terms or states facts which would amount to it in law. He nowhere states the fact. An easement must either be personal — in gross — or else attached to and existing for the benefit of some specific piece of realty. A way in gross is not transferable. Wash. Ease, page 8-161.
    Except in gross, easements exist only for the benefit of specific real property. A way to reach one piece of land is one easement, to reach another piece, another easement. A way for a different purpose also makes still a different easement. Wash, on Ease. 8, 9, 91, 92, 93, 115, 128, 129, 160, 161, 162, 163, 196, 564, 565 and 566.
   Williams, J.

The issues of fact were found by the court of common pleas in favor of the plaintiff. No bill of exceptions was taken, nor was there any finding of facts by that court. The only question therefore before the circuit court, was whether the pleadings were sufficient to sustain the judgment ; and that is the only question here. The contention of the defendant is, that the petition does not state any right in the plaintiff to the way in controversy, and, if it does, then that no violation of the right is shown, of which equity will take cognizance.

In respect to the right of the plaintiff to the way, it appears that the person from whom the parties derive title to their lands, owned in connection therewith, other lands, which together constituted one tract. When he subdivided the tract, and sold the parcels now belonging to the plaintiff, and the defendant, and other parcels of the subdivision, he opened and constructed the way in question, “.for the purpose of affording means of access to the several tracts sold, for the benefit of the grantees', their heirs and assigns, and of all persons wishing to travel the same to reach the landand also, to enable him to get to and from those portions of the land retained by him. Ever since, and during a period of twenty-five years next preceding the commencement of the action, the way so laid out and constructed, has been “ used, traveled over, and occupied for the purpose of reaching the several pieces of land, with the assent, acquiescence, and agreement of the grantor, and his several grantees and their assigns,” to whom the premises, over which the way ran, were conveyed. The respective owner’s of the lands on which the way was located, “ for the purpose of settling definitely its width and exact location, mutually agreed between and among themselves that the way should be thirty feet wide, its entire length ;” and thereupon, by virtue of the agreement, they built their fences so as to leave the way open as agreed upon, and thereafter constructed ditches and bridges, and otherwise improved it as a roadway. While the way was so opened, improved, and in actual use, the plaintiff, by purchase from one of the parties to the agreement alluded to, became the owner of one of the tracts of land embraced in the agreement, and the defendant purchased another of the parcels over which the way was so located, opened and used, from a proprietor who was also party to the agreement. It further appears, that the defendant purchased with knowledge of the existence of the way; and of the agreement made by his vendor with the other proprietors, and, that he bought his parcel “ subject to the perpetual right of the plaintiff and the several owners of the other tracts, their heirs, and assigns, to use, enjoy, occupy and travel over the way, its entire length, with wagons, vehicles and other conveyances.”

There can be but little doubt that the way, as originally established by the owner of the entire tract for the benefit of the parcels conveyed by him to purchasers, became an easement appurtenant to the lands granted, and not merely personal to the grantees. It was established for the beneficial use and enjoyment of the premises conveyed, and, was a burden imposed upon each parcel for the more complete and convenient use of the others. Each parcel, for the purposes of the way ■over it, became servient to the others, and they, in turn, were subject to a like servitude for its benefit.

The exact location a nil width of the way, so made appurtenant to their lands, were definitely settled by the mutual agreement of the owners, who placed their fences to the lines agreed upon, and thereafter improved and used it without objection. Such was the condition of the way when the plaintiff and defendant purchased their lands, and such, it continued to be, down to the time of its threatened interruption by the defendant. It was then, not simply a way of necessity, limited in duration by the necessity which originally gave rise to it, but became permanently appurtenant to the principal estates; and, under the well settled rule, each purchaser took his land with all the rights his grantor had with respect to it, and burdened with the servitudes he imposed upon it. As was said by Mr. Justice Story in Hazzard v. Robinson, 3 Mason, 279, “Whatever is actually enjoyed with the thing granted, as a beneficial privilege at the time of the grant, passes as parcel of it.” A way is'appendant or •appurtenant to other lands, when it is granted for the convenience of their occupation without respect to the ownership or number of occupants. In such case, the right-of-way passes with the dominant estate as au incident thereto. Boatman v. Lasley, 23 Ohio St. 614. Where an easement is secured to -a dominant estate, and is designed to benefit the same in whosoever hands it may be, it will, as a general proposition, inure to the benefit of the owner of any part of thp same into which it may be divided, provided the burden upon the ■servient estate intended to be created is not thereby enhanced.” Washburn on Easements, 99. True, the terms of the grant by which the plaintiff acquired his title, are not set out, nor is it averred that the right-of-way was granted in express language, or by the use of the word “ appurtenances”. It is averred, however, that he purchased the land, and is in possession thereof and the owner in fee,” which, we think, must be construed as being equivalent to an allegation of the grant of the fee simple estate in the land to him. And it is the established rule in this state, that the appurtenances to property pass with it, upon its alienation, without the use of the term privilege or appurtenance in the conveyance. Morgan v. Mason, 20 Ohio St. 401. In the case cited above-it was held that a right-of-way, or other easement appurtenant to land,' passed by a grant of the land, without any mention being made of the easement in the conveyance, and though neither the term appurtenance, or its equivalent be employed.

Neither is the defendant in any better position than his grantor ; for, a grant of the servient estate, carries with it the burdens imposed upon it by the grantor, and the grantee takes it with all those burdens which appear, at the time of" the sale, to belong to it. Washburn on Easements, 90. It not only appears, that at the time the defendant bought his land, the easement was apparent and in actual use, so that he might properly be charged with notice of its existence, but it is plainly alleged, that he bought with knowledge of it, and of all the facts relating to its establishment, and subject to it. These parties therefore, stand in the shoes of their respective vendors, and hold their lands with the qualities and burdens-impressed upon them at the time of their purchase.

Granting this to be so, it is nevertheless contended by the plaintiff in error, that the agreement concerning the establishment of the way, is invalid, because it was verbal, and without consideration, and therefore ineffectual to create a servitude upon his land. Without stopping to consider whether, if the contract were^verbal only, it would on that account be inoperative, notwithstanding its long recognition by the parties to it, and. their performance of it, it is sufficient to say. that this ground of objection to the contract no where appears in the record. It is true, the petition does not allege that the contract was in writing. It does however, allege that an agreement was made, which, as the term imports, must be construed to mean a valid agreement, one possessing all the requisites of a binding contract, unless upon the whole pleading, a different interpretation is required; which is not the case here. Besides, the defendant in his answer, does not make the defense that the contract was verbal merely, but denies that there was a contract. A written agreement, undoubtedly would have been competent evidence in proof of this issue; and, in support ■of the judgment, it will be presumed, in the absence of anything in the record to the contrary, that the finding of the court upon the issue, was sustained by competent, and suffi•cient evidence.

The definite establishment of the boundaries of the way, and the appropriation by each proprietor, of his lands embraced within them, for the mutual benefit of the'lands of all, constituted a sufficient consideration to support the agreement. Each owner, secured a right or interest in the nature of a servitude in the lands of the others included in the way, and the benefit ■accruing to his estate from the use of the same.

The other question in the case, relates to the remedy. It is said, that equity will not interfere to restrain trespasses; that for such wrongs, the remedy is at law, and damages afford adequate redress.

The general rule, that equity will not exercise its jurisdiction where there is a plain and adequate remedy at law, is not denied; but where, as in this case, the threatened obstruction of an easement, would, if carried into execution, permanently destroy it, and defeat the plaintiff’s right, the application of the rule may b"e doubted. After the mischief is •done, the remedy at law may be neither plain or adequate. The damages are not always immediately appreciable, or capable of measurement by any certain rule. But it is not deemed necessary to place the decision upon that ground. We ■are of opinion^ that the plaintiff may maintain his action in equity, to enforce the contract of his vendor, by restraining the 'destruction of the easement secured by it. Courts of equity, will recognize and enforce agreements made by adjoining proprietors, concerning the occupation, and mode of use of their lands, not only, as between the parties to the contract, but as between their vendees with notice. And to warrant such equitable relief, it is not material that the agreement be binding as a covenant real running with the land, or that any privity of estate subsist between the parties. Parker v. Nightingale, 6 Allen 341; Western v. McDermott, L. R. 2 Ch. App. 72 ; Tulk v. Moxhay, 2 Phillips Chan. R. 774; Talmadge v. Bank, 26 N. Y. 105; Seegar v. Harrison, 25 Ohio St. 14.

In Tulk v. Moxhay, a covenant by the grantee of a piece of land, to use it as a private square, was enforced against a purchaser from the grantee with notice. The Lord Chancellor said,'the question was not, “whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract' entered into by his vendor, and with notice of which he purchased.” And he adds, “that the question does not depend upon whether the covenant runs with the land, is evident from this, that if there was a mere agreement and no covenant, this court would enforce it against a party purchasing with notice of it.”

In Western v. McDermott, supra: “ Each of the original owners of houses in a row entered into covenants with the original owner of all the land on which they stood as to what should be done in the garden attached to each house.” It was held “ that whether the covenants did or did not run with the land, a purchaser of one of the houses, with notice of the covenants, would be bound by them in equity;” and that the owner of a house who was injuriously affected by acts which were contrary to the covenants, might proceed against the party who commits them, to restrain the 'breach of the covenants.

In Parker v. Nightingale, supra, Bigelow, C. J., speaking of restrictictions and limitations which may be put upon property by means of stipulations, fastening servitudes or easements ■upon it, and the jurisdiction of equity to enforce such agreements, says that such restrictions and limitations “ derive their validity from the right which every owner of the fee has to dispose of his estate, either absolutely or by a qualified grant, or to regulate the manner in which it shall be used and occupied. So long as he retains the title in himself, his covenants and agreements respecting the use and enjoyment of his estate will be binding on him personally, and can be specifically enforced in equity. When he disposes of it by grant or otherwise, those who take under him can not equitably refuse to fulfill stipulations concerning the premises of which they had notice. It is upon this ground that courts of equity will afford relief to parties aggrieved by the neglect or omission to comply with agreements respecting real estate after it has passed by mesne conveyances out of the hands of those who were parties to the-original contract. A purchaser of land with notice of a right or interest in it existing only by agreement with his vendor, is bound to do that which his grantor had agreed to perform,, because it would be unconscientious and inequitable for him to violate or disregard the valid agreements of the vendor in regard to the estate, of which he had notice when he became the purchaser. In such cases it is true that the aggrieved party can often have no remedy at law. There may be neither privity of estate nor privity of contract between himself and those who attempt to appropriate property in contravention of the use or mode of enjoyment impressed upon it by the agreement of their grantor, and with notice of which they took the estate from him. But it is none the less contrary to equity that those to whom the estate comes, with notice of the rights of another respecting it, should' wilfully disregard them, and in the absence of any remedy at law the stronger is the necessity of affording in such cases equitable relief if it can be given consistently with public policy, and without violating any absolute rule of law.”

It was held by this court in Seegar v. Harrison, 25 Ohio St. 14, that “ Where the proprietors of adjacent lands agreed that each would appropriate from his land a strip to be used in common for a public street, and conveyances and improvements have been made on the faith that the street would be opened, the agreement may be enforced in equity, against a purchaser with notice, whether the 'public authorities accept the street as dedicated to public use or not.” White, J., in «peaking of the remedy says, that<e in the absence of fraud or mistake, the agreement ought, upon well established principles of equity, to be enforced, whether the public authorities accept the street as dedicated to public use or not.”

Upon the same principle, where proprietors of adjacent lands, by mutual agreement, definitely establish the boundaries of a private way previously laid out along their lines, and .appropriate the strip of land embraced therein to be used as a perpetual easement for the benefit of the abutting lands of ■each, and the common benefit of all, and in pursuance of the agreement, fence to the boundaries so agreed upon, and thereafter improve and use the way thus established, the agreement may be enforced in equity, at the suit of a purchaser from one of such proprietors, against a purchaser with notice from another. Injunction preventing the permanent obstruction of, ■or interference with such way, is a proper mode of enforcing the agreement.

The judgment of the circuit cou/rt is reversed, and that of the common pleas affirmed.  