
    Common Pleas Court of Montgomery County.
    Washington v. McGinniss et al.
    Decided June 12, 1930.
    
      
      Sigler & Denlinger, for plaintiff in error.
    
      Kelly & Knee, for defendant in error.
   Snediker, J.

This is an action for the reformation of a contract for the sale of real estate made by the plaintiff and the defendants and for an injunction against the defendants’ interference with the use of a driveway along the east side of premises contracted to be conveyed. The evidence taken in the case discloses that the plaintiff is the legal owner of a strip of ground running south from the Eaton Pike in Jefferson township, this county. By separate contracts with several parties, of whom these defendants were some, she divided this strip of ground into three parcels. One. of the contracts was made with Frank J. and Helen M. Kleinpaste and was dated October 15, 1927. This contract related to that part of the property which was furtherest south and furtherest away from the highway. Another contract was made with Clinton T. and Martha A. Nash, dated August 19, 1929, and this was for the middle strip. Still another contract had been made with the defendants on April 8, 1929, and that was for that part of this parcel of ground furtherest north and which lays along the Eaton Pike. In the year 1927, and before this plaintiff had entered into any of these contracts, there was constructed for the use of the entire tract and for the use of the present and subsequent owner and owners of the parts thereof, a driveway. This driveway was along the east side and within the property owned by the plaintiff, and is in part within the property lines of the tract contracted to be conveyed to the defendants, and extended through the property contracted to be conveyed under the other contracts. Its composition and character was that of the ordinary driveway of that kind in such a place, and when it was constructed, constituted the only method of ingress and egress to and from the middle and the most southerly strips of this ground. There has been offered fn evidence an exhibit, which is marked “D,” which shows the location of the driveway, that it constitutes an approach to the different parcels, and that it is visible and was visible at the time these contracts were made. This photograph was taken about a year before the time when the contract between the plaintiff and these defendants was executed. There is not in any of these contracts any reference to this driveway, unless it may be said that it is found in the word “appurtenances” in the Nash contract. ' The defendants at the date of the filing of this action, had obstructed the driveway in such manner that the owners of the middle and most southerly tracts were interfered with in their use of it as such in reaching their properties and in returning therefrom to the highway.

If there was a right in the purchasers from this plaintiff of these two tracts to the use of this driveway, then the plaintiff, being the legal owner of the entire property, was a proper party plaintiff, for under such contracts as are here before us, only the equitable title rested in the purchasers; the legal title remained in the seller.

Counsel have referred us to authorities which they regard as bearing upon the issue which is made up by the petition and by the answer in this case, and we have consulted them with a good deal of interest. Generally speaking, when contracts of this kind are entered into and there is occupancy, such occupancy is notice of all the rights relevant thereto. In the First Circuit Court (N. S.), at p. 49, there is a case somewhat similar to the case at bar, in which the court held:

“Where the owner of a body of land, during his occupancy of it, constructs a private way over one part of it to another, as a means of egress and ingress to the latter from the public highway, which way is apparent, continuously used and reasonably necessary to the use and enjoyment of the land to which the way is constructed, and also adds materially to its value, and afterwards sells and conveys by deed the part with the way to it, and retains the part with- the way over it, his grantee takes his part, to be enjoyed with reference to the way as the same existed at the time of the conveyance, with an implied grant of the way to it over that retained by the grantor, as an easement therein.
“Such private way is an appurtenance to the tract conveyed, and the right thereto passes without being expressed in the deed.
“It is not required that the. grantee’s tract shall be entirely surrounded by the lands of the grantor; it may be partly surrounded by those of the grantor and partly by those of a stranger, and if the grantee’s tract is inaccessible except through the lands of his grantor or those of a stranger, the right of such private way shall pass as appurtenant to the grant.”

Under the law as thus stated, the owners of both the middle and the southern tract have a right as against the plaintiff, owner of the legal, title, to the use of this driveway, which the testimony shows they did enjoy until interfered with. Of course the defendants, equitable owners of the 'strip along the Eaton Pike, have no greater right than the plaintiff contracting party could give them. Their equitable title cannot exceed her legal title.

There have been before the Supreme Court of Ohio two cases in point, which were decided by- two of the most eminent judges who ever sat upon that bench. In the case of Elliott v. Sallee, found in the 14 Ohio State, at p. 10, there were several conveyances by an owner to each of his three sons after he had imposed upon the entire property a raceway. The owner of the middle parcel deeded it away. His grantee brought an action against that one of the sons who had the lower tract, or in other words, who was the servient owner with respect to the land which the plaintiff owned, and it was held that all of the sons and those holding under them respectively, each took and was entitled to hold his property with the appurtenances as it actually existed in fact and in use at the time of the conveyance of the father. That there was involved in this case a water right, is not important. The principle enunciated is all important. Judge Brinkerhoff in deciding the case says:

“On this state of facts, it seems to us clear, on every principle of reason and common sense, that he (the father) must have intended to grant to his sons respectively, and they must have expected to receive, each his mill with its appurtenances as it actually existed in fact and in use at the time of the conveyance — no more and no less; and this obvious intention on the part of the grantor, and reasonable expectation on the part of the grantees, furnish the exact measure of the rights of the grantees inter se, and of all parties holding under them respectively. This seems to us to be the reason of the case, and the authorities bearing upon the question are uniformly accordant to the same effect.”

The Supreme Court in deciding this case followed and approved the case of Morgan v. Mason, found in the 20 Ohio State, at p. 401. The opinion in that case was written by Judge Ranney. The facts were similar to the Elliott case. In his opinion, Judge Ranney refers to the case of United States v. Appleton, found in the 1st Sumner’s Reports, at p. 492. In that case Justice Story sat upon the bench, and his opinion is filled with a statement of legal principles which are applicable to the facts in the instant case. Among other things, Story says:

“The general rule of law is that, when a house or store is conveyed by the owner thereof, everything then belonging to, and in use for, the house or store, as an incident or appurtenance, passes by the grant. It is implied from the nature of the grant, unless it contains some restriction, that the grantee shall possess the house in the manner, and with the same beneficial rights, as were then in use and belong to it. The question does not turn upon any point as to the extinguishment of any pre-existfng rights by unity of possession. But it is strictly a question, what passes by the grant. * * * The law gives a reasonable intendment in all such cases to the grant; and passes with the property all those easements and privileges which at the time belong to it and are in use as appurtenances. * * * It has been very correctly stated at the bar that in the construction of grants the court ought to take into consideration the circumstances attendant upon the transaction, the particular situation of the parties, the state of the country, and the state of the thing granted, for the purpose of ascertaining the intention of the parties.”

Referring to another case, Story quotes this language:

“If one be seized of Blackacre and Whitacre, and use a way over Whitacre from Blackacre to a mill, river, etc., and he grant Blackacre to B, with all the ways, easements, etc., the grantee shall have the same conveniency that the grantor had, while he had Blackacre.”

It is apparent from the last decisions to which we have referred that as between the plaintiff’s covenantees and the plaintiff and the defendants, the purchasers of the middle and south tracts have the right to use the right of way for purposes of ingress and egress to the Eaton Pike.

The plaintiff has an interest which entitles her to insist upon the observance of such right by the defendants.

With regard to the reformation of the contract between the plaintiff and the defendants, we are satisfied that there is legally no necessity therefor; that all of the rights of the parties accrue to them, as was stated by Judge Story: “On a consideration of the circumstances attendant upon the transaction, the particular situation of the parties, the state of the country, and the state of the thing granted,” without any such reformation.

The temporary restraining order is, therefore, made a permanent injunction.  