Wolfrum v. Hartman , 45 Ohio App. 172 ( 1933 )

This case is presented to this court on error from the court of common pleas of Hamilton county, wherein judgment was rendered for the defendants, Charles R. and Margaret Hartman.

The action was brought by Christina Wolfrum to enjoin the maintenance of a spite fence erected by defendants in about the center of a driveway between the properties of the parties. It presents one of those deplorable cases where, in order to inconvenience a neighbor, the property of the offending party is itself damaged, and the use thereof seriously hampered.

The record develops that the property involved and now owned by plaintiff in error and defendants in error consists of lots 26, 27 and 28, of block 29, all originally owned by Josephine Dauch. On November 20, 1912, she conveyed lot 28, and all but the north three feet of lot 27, next adjoining on the north, to Sophia B. Dauch, her daughter, and three feet off of the north side of lot 27, and lot 26 next adjoining on the north, to Mathilda Dauch, another daughter.

In 1914, Sophia B. Dauch, or Dr. Bertha Dauch as she was known, erected a house with garages in the rear, and installed a driveway, which partially lay on property 10 feet in width, later transferred to her sister Mathilda Dauch, April 26, 1917. On the same day, Mathilda transferred this 10-foot strip with the adjoining lot No. 26 on the north to her brother, Rudolph Dauch, who erected an apartment building on the premises with separate garages in the rear. The sister and brother were in perfect agreement as to the joint use of the driveway between the adjoining property, which occupied a portion of each.

On March 2, 1921, Sophia B. Dauch conveyed lot 28 and the portion of lot 27 she had retained to Anna R. Hammons. On February 1, 1922, Rudolph Dauch conveyed lot 26 and the portion of lot 27 on the south to Henry and Christina Wolfrum, the plaintiffs in error.

On February 8, 1923, Anna R. Hammons conveyed lot 28 and the south part of lot 27 owned by her to William R. Hammons, and, on October 3, 1923, he conveyed the same property to Charles R. Hartman and Margaret Hartman, the defendants in error.

It is evident from the record that the joint use of the driveway was apparent to every one after the construction of the garage by Rudolph Dauch in the rear of his premises in 1917. It is difficult to see how the garages in the rear of either of the premises can be used, at least with any convenience, unless the driveway is jointly used by the adjoining premises. So manifest and obvious is this fact that it is very hard to understand why the purchasers from the brother and sister should not have protected their rights to the use of the entire driveway.

In Frate v. Rimenik, 115 Ohio St. 11, 152 N.E. 14, the second paragraph of the syllabus is as follows: "Easements and servitudes created by a common owner of lands, which are plainly visible and from the character of which it may be fairly presumed that he intended their preservation as necessary to the proper, convenient, and reasonable enjoyment of the property, become, when the lands are divided and pass into other hands, permanent appurtenances thereto, and neither the owner of the dominant or of the servient portions of the land has power to adversely interfere with their proper use and enjoyment."

This and cases of similar holding have been cited to us as authority for granting the relief prayed for. There is a wide difference, however, in ingrafting an easement upon the land of a grantor who has created a joint user on adjacent parcels of land jointly owned and ingrafting an easement upon the land of a sister, in favor of a brother and his grantees, even though the joint user of the easement originates in an agreement, and the convenience, or even the necessity, of the way of ingress and egress, is apparent.

In the instant case the joint driveway was made by Sophia B. Dauch, who did not own the adjacent property at the time, who had not owned it before, and who never acquired it after the driveway was made.

The agreement of the sister and brother as to the joint use could not bind their grantees in the absence of specific reservations.

We find ourselves helpless to relieve a situation which could have been easily avoided, and which is only justified by a strict adherence to rights in property, which, however, are too firmly fixed in our law to be modified even by a court of equity.

Judgment affirmed.

HAMILTON and CUSHING, JJ., concur.