Rubinstein v. Turk

OPINION By MORGAN, J. The Havers acquired title to sublot No. 148 on' East 93rd Street, Cleveland, Ohio, in April, 1909. .One Holman acquired title to sublot No. 149, lying immediately to the north, in June, 1909. Both sublots were improved with dwellings. Shortly afterwards, the owners of the two lots agreed to construct a driveway for their joint use. substantially one-half of which was to be on each lot. The agreement was not m writing. Pursuant to the agreement,- the drive-way was constructed and the owners of each lot paid one-half of the cost of construction. The plaintiff is the - owner of sublot No. 148 having acquired title in December, 1921. The defendants are the owners of sublot No. 149, having acquired title in July, 1929. Thereafter, but after inore than twenty-one (21) •years had elapsed-.,since construction of the joint drive-way, the defendants began to erect a fence on the boundary line between the two iots, thus depriving the plaintiff of the use of the drive-way. This action was brought to ehjoin the construction of the fence, and any interference by the defendants with the use of the drive-way by the plaintiff. The evidence discloses that the use of the drive-way by une plaintiff and his predecessors in title was actual,open, notorious and continuous for the full period of twenty-one (21) years after its construction in 1909. Defendants claim that such use was not adverse but permissive '>nly at least until 1918 when sublot No. 148 was sold, and that therefore the plaintiff has no prescriptive right to tne drive-way. It is conceded that if the adverse use began in 1918, no prescriptive right has been acquired as the twenty-one (21) year period has not run since 1918. It is the opinion of the majority of this Court that the question to be decided in this case was really involved in the decision in the case of Kimball v Anderson, 125 Oh St 241. The facts in that case were these: Prior to 1908, one smith owned adjoining lots Nos. 27 and 29 in Ashtabula, Ohio, fronting on the north side of Olive Street. He built a house on each lot and at the same time constructed a drive-way on feet'wide on the division line between the two- lots. Smith sold lot No. 27 to one Bartlett, and by meane conveyances, title was acquired to lot No. 27 by the defendants. Smith continued to own lot No. 29 until 1918 when he sold it to the plaintiffs. Smith continued, to use the drive-way in. common with Bartlett and his successors in title until 1918, and thereafter Smith’s, successor’s in title continued to use tne drive-way until August, 1930, when the defendants erected posts along the center of the driveway. The Supreme Court decreed that an injunction issu§ against the defendants. If, in the above case. Bartlett had acquired title to lot No. 27 from some other person than Smith, the cause [654] would be on all fours even as to dates with the present' case. The defendants in the above case,' however,' had' another defense not available to the defendants in the instant case, namely, that Smith-had conveyed lot No. 27 to the predecessors in title of the defendants with covenants of warranty and without any reservation of any right in the drive-way. The greater part' of the opinion of the' Supreme Court is devoted to the ■question whether the warranty deed from Smith to Bartlett of lot No. 27, prevented Smith’s subsequent use of the drive-way from being adverse. The Court answered this question in the negative, and held that the use of the driveway by Smith and his successors in title had been adverse for more than the full period of twenty-one years. There is nothing in the above case to indicate that prior to August, 1930, Bartlett, or his successors in title had ever objected to the use of the driveway by Smith and his successors in title so that the use of the drive-way was as truly permissive in that case as in the instant case. In the case m 125 Oh St 241, the Court defines hostile use, which in the Court’s mind was clearly synonymous with adverse use, as “possession and use under a claim of right.” This sentence gives the key to the decision in the instant case. ' When the Havers and Holman, the owners of lots' Nos. 147 and 148, respectively, in this case, in 1909 eon•structed a joint drive-way by agreement between themselves, each owner thereafter claimed the right of an easement in the part of the drive-way on his neighbor’s lot, in consideration of having given his neighbor a similar easement on his own lot. Thereafter, that is from and after Í909, the “possession and use” of each owner was under a “claim of right” and therefore adverse. This adverse possession continued for more than twenty-one years and therefore ripened into a prescriptive right. Fortunately, we find that all of the cases in this country on this subject have been collected into a note to the case of Johnson v Whelan, 98 A. L. R. 1996. The same case ’s reported in 171 Okla. 243. Syllabus 1 of the case reads: “While the mere permissive use of a way over the land of another will not ripen into an easement,- yet one who joins his adjacent landowner in the construction of a paved private way over and along the medial- line has given such adjacent owner more than a mere license. Each owner, by use' of the drive-way, is continuously asserting an adverse right in the portion of the way on the other’s lot. And from such use for fifteen years the law raises a presumption of the grant of an easement.” The precise question involved in this case was decided in the above Oklahoma case and is considered in the note at 98- A. L. R. 1100, where all the cases are collected. The note shows that while there are a few cases to the contrary, the overwhelming weight of authority in this country supports the proposition that the use of a joint drive-way constructed pursuant to an agreement between the parties, not in writing, is adverse and ripens into a prescriptive right in the statutory period. In' the note to the ase of Lechman v Mills, 13 L. R. A. (N. S.) 991, is the following to the same effect: “The authorities appear to be unanimous in suporting the rule, that the parol conveyance of an easement, though void under the statute of frauds', will; if followed by user for the period of prescription; establish a prescriptive right to the easement. At least no decision can be found which in any manner question's this proposition.” In view of the facts above set forth, and of the decisions m Ohio and elsewhere, we have not referred to the cases in Ohio holding -that mere permissive use does' not ripen into a prescriptive right because we do not deem those cases on their facts to be relevant [655] or pertinent to the question involved in this case. Decree for plaintiff. O. S. J., Exceptions. LIEGHLEY, J, concurs. TERRELL, PJ, dissents.