NOTICE AS TO PROVISION FOR A STREET OF A SPECIFIED WIDTH.

Court of Appeals for Knox County.

#### D. Clarence Parrott v. C. L. Daugherty et al.

Decided, March 25, 1922.

*injunction*— Against *Encroachment by Abutting Owners upon a Street Stipulated in a Recorded Agreement to be of a Certain 'Width.*

A recorded plat will be presumed to be correct, and where with the plat there is placed on record a contract with the original owner of the land wherein it is stipulated that a street shall be built in a certain location and of a specified width, purchasers of lots along the line of such proposed street are put on notice as to the stipulation with reference to the street and its width and may not encroach thereon.

*C. L. Bermont,*for plaintiff.

*B. E. Sapp*and *B L. Carr,*for defendant.

Houck, J.

This case comes into this court on appeal from the common pleas court of Knox county.

The petition in substance avers that on the 23d day of February, 1906, plaintiff, as guardian of Edna M. Parrott, Lida A. Parrott and Clarence Parrott, entered into a contract in writing with the Tri-State Land Company, whereby he sold to said land company certain real estate located in Clinton township, Knox county, Ohio; that he is one of the owners and in control of twenty-five acres of land lying immediately south of the tract sold to the Tri-S'tate Land Company, and had the management and control of same at the time the contract herein referred to was entered into with said land company.

Plaintiff further says that by the terms of said agreement the Tri-State Land Company was to open up a public road forty feet wide across the premises herein bargained for, and leading to the premises lying south thereof, of which this plaintiff has the management and control. Plaintiff says that the land herein *462mentioned', purchased by said land company, was laid out into lots and factory sites, and known as Yernonview, and on or about the 23d day of April, 1906, a plat thereof was filed with the recorder of Knox county, Ohio, which plat shows the lots, streets and alleys, and that lots were afterwards sold according to the plat herein, mentioned; that one of the-streets that was opened and dedicated to the public, as shown on said plat, was Union street, which was opened on the line as provided for in the contract of purchase,' and ■ the same was opened up-forty feet in width, as shown on said plat. ‘

Plaintiff sáys that his most convenient mode of access to the twenty-five acre tract on the south is over Union street from Melick street, and plaintiff says that the defendants have recently purchased lots No., 10, 11, 12 and 13, in Block D, in Yernonview, and -also the east one-half of the north.,one-half of Factory Site No. 3, as the same are designated-, on-said-plat. Plaintiff saj^s that the defendants are encroaching,, upon said Union street, and obstructing and plowing it. up, and will continue to do so unless restrained by order of the court; that the plowing of said Union street by the defendants interferes with and prevents his ingress and egress' to his’ land lying' on the south of said defendants, and if not prevented from plowing up said street it will result in great and irreparable injury and damajge to this plaintiff, for which he has no remedy at law. Wherefore plaintiff prays that the said, defendants may be enjoined from obstructing said Union street, or in any way interfering with plaintiff’s travel thereover, and for such other relief as equity may require.

' The defendants filed an amended answer to this petition, and in substance' aver that said land company failed to dedicate said, plat'and lots, as required by law, and.that the same has never been accepted by the county commissioners; that plaintiff has no right in or over the property described in said petition, and prays that the petition of the plaintiff may be dismissed.

Upon the issues raised by these pleadings the cause was submitted to this court.

The évidence clearly shows that the lots in question- were *463platted by the Tri-State Land Company; that said lots,, with others, located in said Vernonview addition, and the land of what is now known as Vernonview Addition, were purchased of this plaintiff and others, as set forth in his petition; that' a written contract was entered into between plaintiff and his associates and the Tri-State Land Company, and it was agreed therein that the street in question should be forty feet wide, in order that plaintiff- and his associates might have ingress and ■ egress to the- real estate lying south of said Vernonview addition and now owned by this plaintiff and his associates.

This written contract between plaintiff and his associates and the Tri-S’tate Land Company was duly filed and recorded in the recorder’s office of Knox county, Ohio, on November 2d, 1906, as appears in Plats Record Vol. 12, page .579, of the Record of Leases in and for Knox county, -Ohio; that some time thereafter said.plat of Vernonview was duly-recorded on-the plat records of the recorder’s office of Knox county, Ohio.

The evidence further shows- that the lots owned by defendants were conveyed to them by warranty deed of Frank M. Cochran and wife, bearing date of April 12, 1919, and that said de.ed is recorded in Deed Boob No. 138, page 382, of.the deed records of Knox county, Ohio. The description in said deed is as follows:

> “The following described real estate, situated in the "township of. Clinton, county .of Knox and state of Ohio, and more particularly described as being lots located in Block D, in the Vernonview subdivision of Clinton township, and being lots No. 13, 12, 11 and 10, except a strip 10x14 feet in width- off of the west side of said lot No. 10, and also the east half of the north half of Factory Site No. 3, as the same is designated on plat record in Plat Record of Knox county, Ohio, Vol. 2, at pages 162 and 163.’’

It will be observed that the description of the lots in the deed just referred to refers to said plat record of Vernonview Addition and an examination of the plat of Vernonview Addition clearly shows that said Union street is platted forty feet wide. It therefore follows that in view of the contract entered into between the plaintiff and his associates and the Tri-S'tate Land *464Company, and which was duly recorded and is of record, and the further plat of Vernonview Addition and its record, and ' the further fact of the description contained in the deed of the defendants hereinbefore referred to, and its reference to said plat, that said defendants have, in fact and law, only such rights • in and to said lots owned by them as would not interfere with plaintiff and the public’s right in and to the free use of Union - street as it is laid out, to-wit, forty feet wide.

As a matter of law the defendants were put on notice by said written contract and said plat of Vernonview as to the width of said Union street, and therefore in the purchase of their lots they took title thereto subject to the use of plaintiff and the pub- ■ lie in and to Union street as it is platted, to-wit, forty, feet wide.

We hold the rule to be that where there is a recorded plat, it is presumed in law to -be correct, and thereby not only the correctness of the plat, but the width of streets and alleys, as shown thereon, are correct, and that purchasers of lots, designated on such plat are bound to -take notice of and respect the width of streets and alleys shown in such plat, and be governed thereby.

It follows from what we have already said that it is our- judg- ■ ment that the plaintiff is entitled to the relief prayed for in his petition.

Judgment for plaintiff, as prayed for, and injunction made perpetual. . '

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