#### McKenzie, Appellee, *v.*Neville et al., Appellants.

(No. 283

Decided July 17, 1941.)

*Mr. E. M. Wickham,*for appellee.

*Messrs. Hill & Neville,*for appellants.

Geiger, P. J.

This matter is before this court upon appeal on questions of law and fact from a final order in the court below.

The amended petition alleges that Sandusky street is one of the principal streets of the city of Delaware extending through the city from north to south and that another principal street is Central avenue, extending from east to west and crossing Sandusky street at right angles.

Plaintiff alleges that he is the owner of certain property which has a frontage of 48 feet on Sandusky street and extends east to an alley; that on the inlot he has a large brick building used for storage; and that *402the only means of ingress and egress to the rear of the store building is through this alley which runs south from Central avenue.

It is alleged that the defendants are the owners of part of an inlot fronting on Central avenue adjoining the alley and that they own no right in the alley except the right to its use as an alley; that they claim to be the owners of the alley and claim that they have the right to exclude plaintiff from the use of the same; that they have erected obstructions therein; that plaintiff’s store building has been leased to the Atlantic & Pacific Tea Company to be used as a store room; that it is necessary to use the alley for trucks; and that unless defendants are enjoined the alleyway will be permanently closed to the use of plaintiff’s tenants to the irreparable damage of the plaintiff’s property. The prayer is that a temporary injunction may be allowed against the defendants restraining them from erecting obstructions in the alley.

The defendants, Margaret and James Neville, for answer to the amended petition, admit that plaintiff is the owner of the property as alleged and admit that they have placed a sign on the west line of their lot indicating that the alley is closed, excluding plaintiff from driving over the defendant’s lot. Other matters are denied.

To this answer a reply was filed.

Upon hearing the court found for the plaintiff and that he is entitled to the relief prayed for, and ordered that the injunction be made permanent and that the defendants, Margaret Neville and James Neville, be enjoined from placing any obstructions or attempting to close the alley.

After the case had been filed in this court, the court, considering the character of the evidence to be adduced, found that it was necessary that the case be referred to a referee, who was ordered by the court *403to file his finding of fact and conclusions of law with the clerk.

By leave of court the plaintiff filed a paper designated “supplemental petition” in which it was alleged that the four owners adjoining the alley in 1912 entered into a written agreement. This agreement is of such importance that we are compelled to quote from it liberally. It was dated June 25,1912, and recited as follows:

“We, the undersigned, owners of lots and parts of lots Nos. 5, 6, 11 and 12, desiring the use of a private driveway, the east half or four feet in width of which is on the west side of land now owned by A. S. Conklin, and fronting on Central avenue, in the city of Delaware, Ohio, do hereby agree to and with each other, and bind ourselves for the mutual benefit of our said properties to maintain said driveway for *our mutual benefit only.*It being understood and agreed by the signers hereof that said driveway is to he kept and maintained for the benefit and convenience of *said signers of this agreement only*for ingress and egress of vehicles to and from lands owned by the signers hereof. It is mutually agreed by the parties hereto that the cost of improvement of so much of Central avenue as represents the width of the driveway, namely 8 feet, * * * shall be added to the cost of improving said driveway heretofore done and paid for by Brown and Conklin. And said total shall he divided by the four parties hereto equally, this to he done for the privilege of using said driveway as now improved * * *.” (Italics ours.)

This contract is signed by Nellie N. Brown, Genevieve B. Blair, Nancy M. Williams, the predecessor in title to the plaintiff, and A. S. Conklin, the predecessor of the defendants herein.

The deed to the plaintiff specifically included “all the privileges and appurtenances thereunto belonging.”

*404The referee after hearing the evidence filed a report in which, in compliance with the direction of the court, he made a finding of facts and conclusions of law.

As conclusions of law the referee found, after discussing the evidence, that the contract spoken of creates a covenant running with the land and not merely a “license” personal to the respective signatories alone. The referee cited and relied upon 11 Ohio Jurisprudence, 886, 887 and 889, Sections 16, 17 and 19; to the effect that the word “assignee” is not necessary to make a covenant run with the land if the covenant relates to a thing.

As to the finding of the referee, the defendants submitted that he erred in his conclusion as contained in his report.

The court will not attempt to analyze in detail the testimony of the various witnesses, but will content itself with a statement of those facts which appear to have an important bearing upon the questions here at issue. We make this brief statement of the controversy.

The plaintiff, William MpKenzie, is the owner of a lot, parts of inlots 5 and 12, fronting on Sandusky street. The defendants are the owners of property abutting on Central avenue and adjacent to that strip of land beginning at Central avenue and extending south to a rather indefinite point, but passing the east rear end of the plaintiff’s lot. The defendants, objecting to the heavy traffic of loaded trucks southward over this so-called alley, sought to prevent its use by placing obstructions on the east four feet of what is now claimed to be an eight-foot alley, not definitely located in reference to an original ten-foot alley, which appears to have been in existence for a long time prior to the contract of 1912, establishing the present 8-foot alley in lieu thereof. The plaintiff seeks to enjoin these obstructions on the ground that the use of the *405alley extending from Ms property, which property faces on Sandusky street and on the rear of which he has constructed a building now rented to and used by the Atlantic & Pacific Tea Company, will be impaired by the obstruction of the alley extending from the rear of his property northward to Central avenue.

The controversy raises the important questions: (1) Does the plaintiff have such an interest in the use of the alley as to be entitled to an injunction? (2) Does the defendant have such an ownership and control of the alley as to be entitled to prevent its use by the erection of the obstructions?

In view of the contract of 1912 between the then owners of the property, it is urged that all the testimony relating to the existence of a north and south alley prior to that time is of no consequence in that the owners of the property in 1912 definitely arrived at an agreement whereby there was to be used by the several signers to the contract, one a predecessor in title of plaintiff’s property and the other a predecessor of the title to the defendants’ property, an alley for the convenience of all signers. This would seem to point the way to a solution of the matter. However, counsel for defendants very strenuously object to the ruling of the court that, by virtue of a deed from Nancy Williams to the plaintiff, the plaintiff acquired the right to the use of the alley which was a personal license acquired by Mrs. Williams by virtue of the contract which was a covenant that went with the property.

If the position of counsel in this matter is correct, then we are confronted with the fact that the plaintiff in this case seeks to bring an injunction against the defendants restraining them from interfering with a right which plaintiff does not possess. If he has no right to the use of the alley then it would be of no consequence whether the defendants did or did not have *406such an ownership in the land included within the boundaries of the alley as would permit them to obstruct the use of the plaintiff, for the reason that it is incumbent upon the plaintiff first to prove his right of action. He must establish his right to an injunction by the strength of his own claim and not by the weakness of his adversary’s. If his own claim has no validity then he must fail.

The plaintiff relies principally upon the case of *Shields*v. *Titus,*46 Ohio St., 528, 22 N. E., 717. This case, of course, is not on all fours with the case at bar but announces principles which may properly apply. The second paragraph of the syllabus is to the effect that where proprietors of adjacent lands by mutual agreement definitely establish the boundaries of a private way previously laid out and appropriate a strip of land embraced therein to be used as a perpetual easement for the benefit of abutting lands and for the common benefit of all, and use the way thus established, the agreement may be enforced in equity.

It is claimed by the plaintiff that this case is determinative of the controversy, whereas the defendant urges that it has no relevancy.

There are, of course, differences between the contract of June 25, 1912, and that spoken of in the *Titus case.*In the instant contract there were originally four owners of lots adjacent to the proposed alley, two of whom have since deeded their property to the plaintiff and defendants respectively without definitely attempting to convey their right to the use of the strip, which is the subject of the agreement, to the present owners. By the contract the original owners bound themselves “for the *mutual benefit*of our said properties to maintain said driveway for our mutual benefit *only.*It being understood * * * that said driveway is to be kept and maintained for the benefit and convenience of said signers of this agreement only for *407ingress and egress of vehicles to and from lands owned by the signers hereof.” (Italics ours.)

Did Mrs. Williams by conveying her property to the plaintiff convey to him any .right to use this alley under the contract made for the mutual benefit of the several properties only?

It is stated in the *Titus case*that the exact location and the width of the way were definitely settled by mutual agreement of the owners who placed their fences on the lines agreed upon and thereafter improved and used it without objection.

That is much the same as in the case at bar. The exact location and ownership of the original 10 feet seems to have been lost and the owners agreed to the location of the new 8-foot alley seemingly disregarding the 10-foot right of way.

If the alley was an easement appurtenant to the land, then the sale of the land, by Mrs. Williams to the plaintiff, conveyed to the plaintiff, although not mentioned in the deed, such rights as Mrs. Williams had by virtue of the contract.

The case of *Boatman*v. *Lasley,*23 Ohio St., 614, is an early case on the question of right of way. It is there held:

“A right of way in gross is a right personal to the grantee, and can not be made assignable or inheritable by any words in the deed by which it was granted.” See, also, *Benninghoff*v. *Skinner,*63 Ohio App., 184, 25 N. E. (2d), 948.

We are of the opinion that the contract by its terms is not a covenant running with the land and that the deed to plaintiff conveyed no right to use the alley.

Assuming, however, for argument, that there was a covenant running with the land to be enjoyed by the plaintiff, what shall we say about the right Mrs. Williams had and conveyed by her deed to the plaintiff? Was it a right to use the established alley for the pur*408pose of hauling heavy trucks over it as distinguished from the right the parties would ordinarily have had in view when they were simply seeking to provide a contract for the mutual benefit of all the parties? It is vastly different to agree to the use of a narrow right of way for the purposes of light traffic incident to residential use and the use of the same space by heavy trucks, which in order to make the incline are required to back into the property. The use of this property for the frequent hauling of merchandise trucks to the warehouse in the rear of plaintiff’s property differs greatly from the purposes covered by the contract where the passageway is “to be kept and maintained for the benefit and convenience of said signers of this agreement only.” We think the right that may have been appurtenant to the property and may have become an easement appurtenant to the land is such a right as the parties had in contemplation at the time they made the agreement. It was certainly not contemplated that the right of passing along a residence of one of the land owners should entitle another land owner to build and rent a warehouse requiring heavy truckage, which by its very nature was not within the contemplation of the contract. The contract was to be for the mutual benefit of all. If one of the four owners appropriated the way to heavy truckage to the detriment of the lighter traffic, the right of way could no longer be for the mutual benefit of all. It practically amounts to one, by virtue of the character of his hauling, appropriating to his own use the available facilities which the others would have an equal right to enjoy. We need but read the testimony to arrive at the conclusion that the day and night hauling over this private right of way placed a burden upon the other owners never contemplated by the agreement.

We can not bring ourselves to the view of the plaintiff that in order to service the warehouse he can prac*409tically appropriate the driveway and by continuous noisy, offensive driving destroy the rights of the defendants to occupy their property in undisturbed possession. The defendants in this case have taken the law into their hands by erecting a barrier on the four-foot portion of the right of way to which they assert they have a title. If they succeed in obstructing four feet of the eight-foot passageway, or even of a ten-foot passageway, of course the ingress of the trucks is destroyed. As long as their contract or that of their predecessor involved the use of four feet of their land for the common welfare of all the signers, we will not deny them the right to protect themselves by erecting a barrier, save that we cannot see how they can erect a barrier against the truckage and still keep the passageway open for the necessary use of ordinary traffic to which all are entitled under the contract.

*Petition dismissed.*

Barnes and Hornbeck, JJ., concur in the syllabus and judgment.

Geiger, P. J., Barnes and Hornbeck, JJ., of the Second Appellate District, sitting by designation in the Fifth Appellate District.