Opinion
No. 41203
Decided July 17, 1968.
Real property — Grant of right of way — Description by metes and bounds — Extent of easement conveyed.
A grant of a right-of-way on and over a parcel of real estate described by metes and bounds does not necessarily create a right-of-way over all of such parcel but ordinarily creates only the right to a reasonably convenient and suitable way over that parcel.
APPEAL from the Court of Appeals for Franklin County.
Plaintiffs, Charles E. and Alice J. Alban, commenced this action in the Common Pleas Court of Franklin County, seeking a determination of their right to an appurtenant easement, damages for interference with said easement and an injunction to prevent future encroachment by the defendant, R.K. Company.
The land here involved was originally in common ownership. A plat called "Country Club Addition" was recorded in 1903 and it included a dedicated street, or roadway that was 80 feet in width. That plat, including the roadway was vacated, before the street was ever opened, by action of the county commissioners in 1907. The entire parcel of land, including the vacated roadway, was transferred to Earl W. Lamneck by deed dated September 25, 1937. Some ten years after Lamneck acquired title, he deeded several of the lots on one side of the vacated roadway, and in each case the deed included, as an addition to the parcel of land conveyed, a right of way on and over property which was described by metes and bounds and which property was located in the same place as the vacated roadway. The language is identical in the case of each deed and reads as follows:
"Also a right of way on and over the following described property:
"Situate in the state of Ohio, county of Franklin and in the village of Marble Cliff, and being in Section 11, Township 1, Range 23, Congress Lands, and being part of Parcel No. 1 and Parcel No. 2 as described in the deed of W. Lyman Case and Margaret B. Case, his wife, to Earl W. Lamneck, as the same is shown of record in Deed Book 1072, page 127, Recorder's Office, Franklin County, Ohio, and being more particularly described as follows:
"Beginning at a point in the north line of Parcel No. 1, above mentioned at its intersection with the east line of Cambridge Boulevard; thence southerly with the east line of Cambridge Boulevard produced, 305 ft. to a point; thence westerly, parallel with the north line of Parcels Nos. 1 and 2, above mentioned, 80 ft. to a point in the west line of Cambridge Boulevard extended southerly; thence with said west line extended, northerly 305 ft. to its intersection with the north line of Parcel No. 2, above mentioned; thence with said north line and along the north line of Parcel No. 1, above mentioned, easterly 80 ft. to the place of beginning, containing .56 acres."
Plaintiffs trace their chain-of-title to one of the purchasers from Lamneck and the deed of plaintiffs includes language describing an identical easement. Defendant purchased its property directly from Lamneck after the sale to plaintiffs' predecessor in title and it includes the property that was the vacated roadway and presently subject to the easement in question, as well as other property to the west of the presently existing easement or vacated roadway.
The conveyance from Lamneck to R.K. Company made specific reference to this by stating:
"Excepting from said Parcels 1 and 2, the following tracts of land conveyed by Earl W. and Lucille W. Lamneck, husband and wife, as indicated:
"(a) 80.1 feet by 191.3 feet (.352 acres) plus right of way over Cambridge Boulevard, produced, 305 feet by 80 feet (.56 acres) conveyed to Charles Edward Hotchkiss and Louise Hotchkiss (plaintiff's predecessor in title) by deed dated July 19, 1946 and recorded in Deed Book 1329, page 626, Recorder's Office, Franklin County, Ohio."
The Court of Common Pleas entered judgment for the defendants. Upon appeal, the Court of Appeals ( 10 Ohio App.2d 205, 227 N.E.2d 240), reversed the judgment and remanded the cause, with instructions to sustain the prayer of plaintiffs' petition.
The case is now before this court pursuant to allowance of a motion to certify the record.
Mr. DeWitt Agler, Messrs. Cunningham, Burns Gibbs and Mr. Lawrence J. Burns, for appellees.
Messrs. Chamblin, Snyder Henry and Mr. Larry H. Snyder, for appellants.
The question raised by this appeal is the extent of the right-of-way or easement conveyed to the plaintiffs. Plaintiffs contend that a grant of a right-of-way or easement on and over a parcel of real property described by metes and bounds creates a way over all of the property described. Defendant argues that such a grant only describes an unlocated or undefined right-of-way and therefore creates only the right to a reasonably convenient and suitable way over the property described.
Plaintiffs admit that defendant has provided and paved a ten-foot way across the parcel of land involved. Plaintiffs make no contention that that way is inadequate for passage nor that they have been denied access to their property, other than for a brief period of time during which the paving was being done. Thus, the controversy centers on whether plaintiffs may, as an incident of their easement or right-of-way on and over a parcel of land which is described by metes and bounds and which parcel as so described is 305 feet long and 80 feet wide, prohibit the defendant from making any improvements on or alterations in the land in question.
The basic definition of an easement is that it is the grant of a use on the land of another. 2 Casner, American Law of Property, Section 8.64, defines how the limits of that use are to be determined, as follows:
"When created by conveyance, the extent of the privilege of use to which the owner of an easement created by conveyance is entitled is dependent upon the provisions of the conveyance. The creation of an easement by conveyance consists in the creation of certain privileges of use. * * *"
The use intended by the instant easement was specifically stated to be "a right-of-way on and over the following described property." It was an easement of passage over a private parcel of land and was not an easement to use a then existing roadway.
In the leading case of Long v. Gill (1885), 80 Ala. 408, the language of the deed provided for a "* * * right of way over the following lot or parcel of land, to-wit: following which is a description, by metes and distances." In its opinion, the court stated:
"The description was not intended to define the limits of the right of way, but to designate the place, where it was to be reasonably enjoyed. * * * The defendant had the right to erect the building on the land, though a smaller space is left, provided unobstructed space remains reasonably convenient for vehicles * * *. It is not a necessary consequence, that the complainant is denied the reasonable and convenient use of a way, because a part of the land is occupied by the building."
In Johnson v. Kinnicutt (1848), 56 Mass. 153, a right of passing and repassing over a 20-foot space was granted and the plaintiff there claimed that he was entitled to an unobstructed use of the whole space. The court stated in its opinion:
"`the space of twenty feet between' etc., describe the close, in, through, and over which, the plaintiff could have a right of way; but * * * they do not describe the limits of the way granted. It was therefore the grant of a convenient way, within those limits, adapted to the convenient use and enjoyment of the land granted, for any useful and proper purpose, for which the land might be used * * *. It does not therefore necessarily follow, because a portion of this space was covered, that the plaintiff was thereby impeded in the use of a convenient way; it may or may not be so, and this depends on the facts * * *."
See In re Application of City of Buffalo (1910), 65 N.Y. Misc 636, 120 N.Y. Supp. 611; Barrett v. Duchaine (1925), 254 Mass. 37, 149 N.E. 632; Le Sawyer v. Squillace (1961), 14 App. Div. 2d 961, 221 N.Y. Supp. 2d 455. But see, Bump v. Sanner (1872), 37 Md. 621 (distinguishable since easement was over an alley which was held not to differ in use from a public street); J.S. Lang Engineering Co. v. Wilkins Potter Press (1923), 246 Mass. 529, 141 N.E. 501 (distinguished by language in deed specifically requiring land to be left unobstructed for 20 feet).
Plaintiffs here failed to allege that they are denied a convenient way and merely seek to enforce their easement to prevent any use by defendant of any part of the described property. They do not have such a right. Plaintiffs have the right to a convenient way across the land of defendant, and no more. Such a result will avoid a construction of the grant of a right of way on and over this parcel of land that would unduly restrict its use. See paragraph two of the syllabus of Loblaw v. Warren Plaza, Inc. (1955), 163 Ohio St. 581, 127 N.E.2d 754.
For the foregoing reasons, the judgment of the Court of Appeals is reversed.
Judgment reversed.
ZIMMERMAN, O'NEILL, HERBERT and SCHNEIDER, JJ., concur.
MATTHIAS, J., dissents.
I conclude, as did the Court of Appeals which heard the case, that the deed in question contained a defined right of way. I therefore concur in the syllabus but dissent from the judgment.