#### Geffine, Appellee, *v.*Thompson, Appellant.

(No. 19989

Decided February 26, 1945.)

*Mr. B. C. Boer,*for appellee.

*Messrs. McAfee, Grossman, Hanning & Nexo comer,*for appellant.

Morgan, J.

The plaintiff, appellee herein, brought this action to eject the defendant, appellant herein, maintaining and operating on her land in the village of Westlake in this county, a pipe line for the *65transportation of gas. The defendant filed his cross-petition seeking to quiet his title and right to such pipe line against the claims of plaintiff, as contained in the petition. The case was tried on an agreed statement of facts and additional evidence. The trial court gave judgment to the plaintiff on her petition and also on the defendant’s cross-petition. From this judgment the defendant appeals.

Plaintiff’s predecessor in title, for a valuable consideration, granted in 1918 to The East Ohio Gas Company, *its successors ancl assigns,*“the right of way to lay, maintain, operate and remove a pipe line for the transportation of gas” over the land described in plaintiff’s petition. In addition, the grantee agreed to pay any damages which might he caused to crops and fences on the land “from the laying, maintaining, operating and removing said pipe line.”

The pipe line on plaintiff’s property, about 2,000 feet in length, was constructed along the northerly boundary of the land as a part of a longer pipe line to pipe gas from gas wells constructed in the neighborhood. Later The East Ohio Gas Company found'that no surplus gas was being produced beyond the demands of local consumers and the company in 1928 sold and assigned the pipe line on plaintiff’s premises and an additional 4,000 feet of pipe line on other lands to J. C^ Arthurs *&*Company, which company in turn in 1935xWd and assigned its pipe line to the defendant.

As gas wells became dry and were abandoned, other producing wells were attached to the line. At the present time the defendant is the owner of two nearby gas wells whose product is piped into the line for the use of 27 local customers, nearby property owners, who use the gas for cooking and heating. The total income to the defendant is less than $2 per day.

The plaintiff purchased the land described in the petition in 1925 and she objected to the maintenance *66and operation of the pipe line on her land for the first time in 1942. The part of the land where the pipe line is laid is not being farmed or used by the plaintiff.

The lower court by its judgment approved plaintiff’s contention that the easement granted to The East Ohio Gas Company in 1918 by plaintiff’s predecessor in title was not appurtenant to any land owned by The East Ohio Gas Company and accordingly was an easement in gross and therefore not assignable.

- That ruling is clearly contrary to the intention of the parties who executed the written easement which, as stated, ran “to. The East Ohio Gas Company, *its successors and assigns.”*The record contains nothing to support a claim that the intention of the parties should not be given effect on any ground of public policy.

In the case of *Junction Rd. Co.*v. *Ruggles,*7 Ohio St., 1, the Supreme Court held that a railroad right of way is assignable. The court in its decision said:

> “We return, then, to the question: Was this easement capable of transfer? The question seems to be one of first impression. At all events, no case is cited, and we can find none, in which the^point has been adjudicated * * *. A right of way appendant to a farm, is granted or reserved as being necessary or convenient for the occupancy and use of the farm, and is therefore transferable with the farm. A railroad is an entire thing; and the entire right of way for a railroad •is made up of a union of many rights derived from many individual owners; some by contracts, involving various duties and obligations, and others by appropriation, under a delegated right of eminent domain. Any one of them is appurtenant to all the remainder — necessary, to the enjoyment of all the remainder — and therefore from analogy to rights • of way appendant to real estate, alienable, we think, with the thing to which it is appurtenant.”

*67It is not our understanding that the Supreme Court in that case meant to hold that the assignability of a part of a railroad right of way is dependent on a sale and transfer of the entire right of way. If there is in the case any ambiguity on this point it was cleared up and resolved in the case of *Garlick*v. *Pittsburgh & Western Ry. Co.,*67 Ohio St., 223, 65 N. E., 896, when the Supreme Court held in the second paragraph of the syllabus:

> “A railroad company organized under the laws of Ohio, may acquire title to lands within the state for railroad purposes * * * and when the right of way is thus acquired, and the company has constructed its railroad thereon * * * said company may sell an'd convey to another corporation for like railroad purposes all, or a part of the premises so acquired * *

In *Boatman*v. *Lasley,*23 Ohio St., 614, the court held that a grant to one L, his heirs and assigns, of a ' right of way over the grantor’s land, was not assignable or inheritable. The court said (page 618):

> “A mere naked right to pass and repass over the land of another, a use which excludes all participation in the profits of the land, is not, in any proper sense, an interest or estate in the land itself. Such a right is in its nature personal; it attaches itself to the person of him to whom it is granted, and must die with the person.”

The decision in *Junction Rd. Co.*v. *Ruggles, supra,*was not referred to in *Boatman*v. *Lasley, supra,*and it cannot be considered to have been overruled by the later decision. In fact the court in the former case recognized the existence of the general rule as later set forth in the latter case but said further:

> “The subject matter of the question — a right of way for a railroad — is itself new; and the principles, long ago established, in regards to rights of way, personal or in gross, and rights of way appurtenant to real es*68tate, have no direct application to this new class of rights of way. It, we apprehend, is *sui generis,*and must be governed by reasons peculiar to itself, and the lights which may he derived from the analogies it may bear to the old classes of easements of this kind, whose incidents have been already fixed and determined. ’ ’

Is the case we are now considering, involving a pipeline easement for the transportation of gas, controlled by the decision in *Junction Rd. Co.*v. *Ruggles, supra,*or by the holding in *Boatman*v. *Lasley, supra?*In our view there can be no doubt as to the correct answer to this question. The right to construct a pipe line on land tb transport gas is analogous to the right to construct a railroad track to transport passengers and freight and is not analagous to a right granted to an individual to pass and repass over the land.

In our view, therefore, the present case cannot be distinguished on principle from the case of *Junction Rd. Co.*v. *Ruggles, supra,*and is controlled by it.

The exact question in the present case was considered and passed on in the case of *Standard Oil Co.*v. *Buchi,*72 N. J. Equity, 492, 66 A., 427. The New Jersey court decided in favor of the assignability of pipe-line easements.

There is an excellent article in 22 Michigan Law Review, 521, on “the assignability of casements in gross in American law” by Lewis M. Simes, now a professor of law in the University of Michigan. Professor Simes takes the position that there is no good reason why easements in gross should not be held to be 'assignable and the fact that the contrary view has been -taken in many American cases is due to a misunderstanding of certain statements of Blackstone and Kent. Grants for *profits a prendre*in gross are generally held to be assignable and no satisfactory rea*69son has ever been given why a different rule should be applied to easements in gross. Professor Simes concludes his article with the following statement:

> “Can we not say that, since any supposed rule making easements in gross inalienable is without adequate foundation in logic or history, its application should be strictly limited to private ways; and that in jurisdictions where the question is still an open one, these interests should bo freely assignable wherever it appears that the grantor did not restrict them to a designated person.”

The writer of this opinion is in accord with the views expressed in the above article by Professor Simes. However, as already stated, we prefer to rest our reversal of the judgment of the trial court in this case, on the authority of *Junction Rd. Co.*v. *Ruggles, supra.*

> The judgment of the Common Pleas Court is reversed and the cause is remanded for further proceedings according to law.

*Judgment reversed.*

Skeel, P. J., and Lieghley, J., concur.