Summary
holding that the burden of proving the defense of permission does not materialize until the party claiming the prescriptive easement has shown the requisite elements for the prescriptive easement
Summary of this case from Burchfield v. WolfeOpinion
No. 82-594
Decided May 25, 1983.
Real property — Easements — Placement of wheel blocks and curbing for parking spaces over portion of easement — Easement by prescription not shown, when — Injunctive relief proper for unwarranted and continuing trespass on easement — Burden of proof as to acquisition of prescriptive right — "Clean hands" maxim.
APPEAL from the Court of Appeals for Franklin County.
In October 1975, plaintiffs-appellees, William M. and Marcia Goldberger, purchased an apartment complex in Bexley, Ohio. The apartment complex is completely surrounded by other property so that the only ingress or egress to the Goldberger property is by way of a fifty-foot easement which stretches across adjacent land belonging to the defendant-appellant, Bexley Properties. This easement was at one time a public street, but was vacated by the city of Bexley in 1940. Upon vacation by the city, title to the strip of land vested in the adjoining property owners. At the time of the street vacation, the predecessors in interest of appellees and appellant entered into an "Agreement" of easement which provided in part:
"3. Each of the parties, for themselves, their heirs, successors, and assigns, does hereby grant and release unto each other, their heirs, successors and assigns, the right or use in common with other lot owners in said Addition said streets, drives and alleys, granting unto each other an easement over the same for such use and benefit of each other and their respective heirs, successors and assigns.
"4. Said streets, drives and alleys, as shown on said plat of Park Drive Addition, and/or the portion thereof to which each of the respective persons would be entitled, if the same are vacated by the City of Bexley, shall be and remain open and unobstructed forever, and the public shall have the right to ingress and egress thereon and thereover * * *."
In 1980, Bexley Properties sought to lease a "Tarpy's" supermarket on its property. In order to obtain the necessary approval from the city of Bexley to open the supermarket, Bexley Properties was directed to make certain changes to increase the number of parking spaces available for the supermarket. This necessitated the placing of curbing and wheel blocks for parking spaces over a portion of the easement. There is still ingress and egress available to the Goldberger property, but approximately twenty-five to thirty feet of the fifty foot easement right of way has been converted into parking spaces for the supermarket.
The Goldbergers brought this action to the court of common pleas in order to enjoin Bexley Properties from maintaining the wheel blocks and curbing on the subject easement, and to enjoin them from parking automobiles within the easement. The Goldbergers based their action upon the provision in the "Agreement" which stated that the strip of land "shall * * * remain open and unobstructed forever * * *."
The trial court held that although the plaintiffs have an easement for ingress and egress, they had lost part of that easement by prescription, i.e., "* * * the areas on each side of the roadway abutting * * * [Bexley Properties' land] which are now and have for over twenty-one years been continuously used for parking automobiles." Thus, the trial court concluded that defendant Bexley Properties had acquired a prescriptive easement via adverse use over part of the easement which was granted to the Goldbergers' predecessors in title in the 1940 agreement.
Upon appeal, the court of appeals reversed the trial court's decision. The appellate court noted that neither the defendant's nor plaintiffs' predecessors in title attempted to exclude anyone from using the easement, and that tenants from the apartment complex and defendants had used the pertinent part of the strip for parking, over the years. Hence, the court of appeals held that the parking was permissive, and that the Goldbergers did not lose part of their easement to Bexley Properties through prescription by way of adverse use. It was held that the trial court erred in not issuing an injunction against the defendant for infringing upon the easement. A motion for reconsideration brought by defense counsel was overruled.
Upon a request by defense counsel to clarify its earlier decision, the trial court stated in a supplemental decision that "* * * it entered an order [against issuing the injunction] based upon moral justice and common sense somewhat in conflict with the more strict requirements of the law of adverse possession." In granting plaintiffs' demand for an injunction, the trial court held that the use for parking automobiles within the easement over the past years was not legally adverse to the use and title of both parties' predecessors in title, and that the Goldbergers did not lose any portion of the easement by prescription.
This cause is now before the court pursuant to the allowance of a motion to certify the record.
Messrs. Folkerth, Webster, Maurer O'Brien and Mr. Glenn B. Redick, for appellees.
Schottenstein, Zox Dunn Co., L.P.A., and Mr. Gary D. Greenwald, for appellant.
The defendant-appellant, Bexley Properties, advances several arguments as to why the injunction imposed should be removed.
First, appellant states that since the Goldbergers' injury is nominal, questionable and doubtful, an injunction would work a substantial and disproportionate impact upon the public interest. In this regard, appellant submits that this court should adopt a "comparative injury or balance of convenience rule," White v. Long (1967), 12 Ohio App.2d 136 [41 O.O.2d 200], whereby the relative convenience and inconvenience, along with the comparative injuries to the parties are weighed against the public interest, in determining whether an injunction should be issued. Furthermore, appellant argues that this rule should be extended to all cases involving private property rights affecting a public interest.
Without addressing the relative merit and validity of such a rule, we believe that the application of this rule in the case sub judice would be tenuous, as well as inappropriate. In addition, even assuming arguendo that this rule should be adopted, a sweeping extension of the rule to include all cases concerning private property rights affecting a public interest would be wholly unwarranted, and would compel us to rewrite centuries of basic property law concepts which we are not prepared to do.
Along the same line of reasoning as proposed in its first argument, appellant contends that in cases involving private property rights affecting the public interest, a plaintiff's remedy should be at law and not equity.
We find this argument to be unmeritorious. This court has consistently held that when a right of way, arising out of an agreement between adjacent landowners is interfered with, injunctive relief is the proper mode of enforcing the agreement. Shields v. Titus (1889), 46 Ohio St. 528.
In its next argument, appellant submits that the court of appeals erred in not rendering judgment in its favor, because the Goldbergers had not proven that the parking within the subject easement had over the years, been permissive. Appellant relies on Pavey v. Vance (1897), 56 Ohio St. 162, to support the proposition that the party against whom the adverse possession or use is asserted must bear the burden of proving that the use was permissive.
With respect to this contention, appellant's reliance on Pavey is misplaced. The burden of which appellant speaks is initially upon itself, to prove that it acquired a prescriptive right over a portion of the easement. This burden must first be satisfied before the Goldbergers would be required to prove that the parking of cars within the easement was permissive. Since both lower courts have held that the use of part of the easement was not legally adverse to the interests of the Goldbergers, the burden of proving permissive use never materialized. Appellant did not gain a prescriptive right over any portion of the subject easement, because it did not meet all the prerequisites of acquiring a prescriptive right by way of adverse use on the easement. Pennsylvania Rd. Co. v. Donovan (1924), 111 Ohio St. 341. By virtue of the fact that appellant and its predecessors in interest did not use any part of the easement in a legally adverse manner, the only logical conclusion that can be made is that the parking which took place within the easement over the years was permissive, since neither party attempted to exclude the other from parking there.
Finally, appellant asserts that since the Goldbergers have come into equity with "unclean hands," they should be effectively barred from obtaining injunctive relief. Case law concerning this argument is well-settled, as was enunciated by this court in Kinner v. Lake Shore Michigan Southern Ry. Co. (1904), 69 Ohio St. 339. We find the first paragraph of the syllabus in Kinner to be representative and dispositive of this issue where it was stated:
"The maxim, `He who comes into equity must come with clean hands,' requires only that the plaintiff must not be guilty of reprehensible conduct with respect to the subject-matter of his suit."
Upon a careful review of the record, we do not find any hint of reprehensible conduct undertaken by the Goldbergers which suggests that they might have entered equity with "unclean hands."
As the appellees correctly submit, in reviewing the appropriateness of the granting of an injunction relating to an invasion of a property right by an adjoining landowner, a court must first scrutinize the language of the instrument creating that right. The instrument creating the easement for ingress and egress in the instant case states that it "* * * shall * * * remain open and unobstructed forever * * *." Using this "Agreement" as a guide, the court of appeals stated that "* * * injunctive relief is proper when there is an unwarranted and continuing trespass on an easement. Langhorst v. Riethmiller (1977), 52 Ohio App.2d 137 [6 O.O.3d 101] and Gibbons v. Ebding (1904), 70 Ohio St. 298."
We agree with the court of appeals that the placement of curbing, wheel blocks and parking spaces within the subject easement constitutes a violation of the terms of the "Agreement," and that this invasion by the appellant amounts to a continuing trespass upon the Goldbergers' property rights. Therefore, we hold that the equitable remedy issued below should be upheld, and the judgment of the court of appeals is therefore affirmed.
Judgment affirmed.
CELEBREZZE, C.J., KEEFE, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.
KEEFE, J., of the First Appellate District, sitting for W. Brown, J.