CLAIM BY PRESCRIPTION OF AN EASEMENT FOR AN ALLEYWAY

Court of Appeals for Muskingum County.

#### Lee D. Dutro v. M. O. McCammon.

Decided, January 2, 1922.

*Easement in Another's Land*— Not *Acquired by Use for. Twenty-one'.. Years as a Passageway*— Where *the Owner of the Estate Also Made. Use of the Strip as a Way and for Other Purposes.*

An. easement for an alleyway is not acquired in a strip of ground running along side of plaintiff’s property and claimed by bim by prescription, where the evidence discloses that the strip forms a part of the improved adjoining lot of the defendant, and that for'moré' than seven of the last twenty-one years he maintained a building on the said strip and at one time a fence across the front, and that, he has used the strip as a means of access to his store building and has left his wagons and teams there at will.

*L. J. Weber*and *Perry Smith,*for plaintiff.

*II. W. Kuntz,*for defendant. .

Houck, J.

This case is before us on an appeal from thé common' pleas court of Muskingum county.

The suit is one for injunction against the defendant, the plaintiff claiming that defendant is seeking to and will obstruct his free use and that of the' public in and to a certain alley or driveway lying between the lots of plaintiff and defendant'. The pleadings raise the following issues of fact:

The plaintiff brought suit to procure an injunction against the defendant and to prevent the said defendant from building a stairway "on the north side of the defendant’s building on Lot No. 6 in the.I. N. McCoy addition to the village of East Fultonham, in'Muskingmu county, Ohio. The plaintiff owns a part of the south side of lot No. 5, to-wit, 26 feet'wide'by 85 feet long, and has a business building thereon which entirely covers his holding.

The plaintiff claims in his petition that there is an alley or right of way on the south side of his building and along the *450north side of defendant’s building and on and over Lot No. 6, and asks that defendánt be restrained from .building a stairway in the strip of ground between the building of the defendant located on Lot No. 6 and the building' of the plaintiff, the strip of ground in question being about nine feet wide and extending in length along the entire north side of Lot No. 6.

The defendant by his answer denies the existence of an alley or right of way between Lots No. 5 and No. 6, and in his cross-petition says that he is the owner of all of Lot No.' 6 and asks that his title be quieted against the claim of the plaintiff.

The plaintiff in his answer to the cross-petition avers that for more than twenty-one years last past, the plaintiff and his predecessors in title and the public have used, without let or hindrance, said strip of ground in question, and that they have bad the open and uninterrupted use of same as a road or driveway during all of said twenty-one year period and more.

The cause 'was submitted on the pleadings and the evidence, the latter being in the form of a' typewritten transcript of the testimony taken in the trial in the common pleas court and supplemented by oral testimony taken in this court.

We have carefully read all. the transcript testimony and with the oral proof analyzed and weighed the same.

The solution of the question presented embraces but a single question of fact, viz.: Did the plaintiff-and his predecessors .in title and the public, or either of them, have a prescriptive right over the strip of land involved in this s.uit?

In the light of the proven and conceded facts and the- well known principles of law: governing -them, we must and do answer this question in the' negative. . .

The plaintiff has failed in fact and law to sustain the claims made in his petition and the affirmative allegations of fact set forth in his answer to the cross-petition of defendant.

It was necessary for plaintiff to establish by that degree of proof required by law', in order to maintain his alleged prescriptive right or easement in the tract of land in controversy, the following -facts:

*451. (a) Continued .and uninterrupted use or enjoyment of the premises for a period of at least twenty-one years.

(b) A certain and definite road travelled.-

(e) A claim of right and of such nature and character as to be adverse to the owner of the soil, which must be known to and acquiesced in by said owner.

There is an utter failure in the proof to establish these facts or either .of .them. . .

The evidence fails to show that the claimed right- of way was open and visible to the owner or owners of the servient estate for a period of twenty-one years; and there are no facts or circumstances that warrant us in finding that there has been.such a continuous use of said strip of ground, for the time required by law, as to charge said servient owner or owners with constructive notice or knowledge of said use as would charge-them-with same.

We think that counsel will concede that where an owner of land and those from whom he obtained title have had the free use for more than twenty-one years, without let or hindrance, over and upon a certain well defined strip, of ground of adjoining lands to a public street or highway, it constitutes an easement in and a right of way over such strip of ground so used.

The evidence in the present case is: that during the p.ast twenty-one years, on said aP-jged right of way and for a period of more than seven years, a building stood on and over same; that .on many occasions, and for weeks at a time, the owners of the servient estate would and did use same for their own per-, sonal benefit and to the exclusion of all others; .that they placed, posts and fencing across same, which remained there for weeks,, and no one made complaint by reason thereof;. that said, owners of the servient estate used same as a means of getting to and from the store room located on said Lot No. 6 and on the south side of the right of way in question, and left their horses and wagons on said strip of land at will and for such time as they desired so to do.

Measuring these facts by the rule of law just laid down, we *452must and do find that the plaintiff is not entitled to the relief sought in his petition.

We cite the law as laid down in the following authorities and cases, when applied to the facts in the instant suit, as being decisive of the issue herein in favor of the defendant:

> “In order, however, that the enjoyment of an easement in another’s land may be conclusive of the right, it must have been adverse, that is, under a claim of title, with the knowledge and acquiescence of the owner of the land, and uninterrupted ; and the burden of proving this is on the party claiming Ihe easement.” 2 G-reenleaf on Evidence, Section 38.

> “When one who is the owner of a tract of land uses a way over the land of another for the convenience of egress and regress to his own land, without let or hindrance and without obstruction for the period of twenty-one years, he thereby, in the absence of anything to the contrary, acquires a right by prescription to its use as an incident to his land; and the right will pass by a conveyance or descent of the land.” Second syllabus. *Pavey v. Vance et al.,*56 Ohio State, 162.

> “Title by prescription to»a public-street can be shown only by adverse user by the public, under a claim of right and uninterrupted for twenty-one years.” Fourth syllabus. *Railroad Company*v. *Village of Roseville,*76 Ohio State, 109.

We have carefully considered all of the facts presented in this law suit and examined all of the authorities referred to in the briefs of counsel, and we are fully satisfied that the proven facts fall far short of making out a case for the plaintiff.

It follows that the petition of plaintiff must -be and hereby is dismissed, the injunction dissolved, and a judgment is hereby entered as prayed for in the cross-petition-of defendant and his title is quieted in and to the land involved in this action.

Judgment for defendant.

Shields, J., and Patterson, J., concur.