Siferd v. Stambor

The basic issue on this appeal on questions of law is whether the plaintiffs have alleged a cause of action for an injunction or, if not, whether there is alleged a cause of action for a declaratory judgment. To determine the former we must determine whether the allegations of the amended petition set forth an easement in the plaintiffs with which the defendant threatens to interfere.

In their argument of this issue the parties, particularly the defendant, have placed much emphasis on the words of the conveyance from the Bonofiglios to the Vromans. In my opinion more emphasis must be placed on the situation presented by these words and by the other allegations of the amended petition, i.e., that the owner of an entire tract had placed two adjoining buildings on that tract, which buildings were used for different purposes, had created in his hotel building a lavatory room which, as created, could not be used for the benefit of the hotel building but could be used solely for the benefit of the restaurant building in which it opened, and had then conveyed the restaurant building to others, retaining title to the hotel building, without in any way terminating as of that time the use of the lavatory room for the benefit of the restaurant. In my opinion there was thus created an implied easement appurtenant to the grant of the tract of land conveying the restaurant building to the Vromans. 18 Ohio Jurisprudence 2d 551, Easements, Section 26. There was no necessity that such easement be mentioned in the conveyance to Vromans, and the sentence appearing in that conveyance, "It is further understood that the grantees shall have the right to the use of the lavatory now in the hotel building which is being used for the benefit of the grantees and their help and patrons of the restaurant," did not serve to create anything but instead served to clarify the grantors' intention and the understanding of the grantors and grantees that the implied easement was included as an appurtenance to the land conveyed, and to negative any thought that the conveyance would operate to extinguish it. For this reason, as well as by operation of Section 5301.02, Revised Code, no words of inheritance were required in connection with this sentence. The implied easement appurtenant thus conveyed met all the requisites of same set forth by the Supreme Court inCiski v. Wentworth, 122 Ohio St. 487, in paragraph one of the syllabus:

"While implied grants of easements are not favored, being in derogation of the rule that written instruments shall speak for themselves, the same may arise when the following elements appear: (1) A severance of the unity of ownership in an estate; (2) that before the separation takes place, the use which gives rise to the easement shall have been so long continued and obvious or manifest as to show that it was meant to be permanent; (3) that the easement shall be reasonably necessary to the beneficial enjoyment of the land granted or retained; (4) that the servitude shall be continuous as distinguished from a temporary or occasional use only."

Compare Renner v. Johnson, 2 Ohio St.2d 195.

It does not follow, however, that if the use "before the separation takes place, * * * which gives rise to the easement shall have been so long-continued and obvious or manifest as to show that it was meant to be permanent," that after the separation takes place the use shall be extended into perpetuity or that the common grantor(s) may not limit its duration. 70 Corpus Juris Secundum 560, Permanent. In my opinion the facts alleged in the amended petition not only clearly show the creation and conveyance of an implied easement appurtenant but also clearly show that such easement is not perpetual but is limited in its duration. See, for example, Warren v.Brenner, 89 Ohio App. 188 (motion to certify record overruled May 16, 1951).

From the clause in the deed from the Bonofiglios to Vromans expressing the understanding that the implied easement appurtenant was being conveyed and from the other allegations of the amended petition, it is apparent that the easement was created to benefit the dominant estate, the restaurant building, while used for restaurant purposes, and that the premises are still so used. There is nothing in that conveyance or in any other allegations of the amended petition to show that if the restaurant building was used for other than restaurant purposes the use of the lavatory would "be reasonably necessary to the beneficial enjoyment of the land granted." We conclude, from these allegations, that the implied easement appurtenant is thus subject to a limitation requiring its termination, at the latest, when the use of the building on the dominant estate for restaurant purposes terminates. It also appears from the decision of the Supreme Court in Hieatt v. Morris, 10 Ohio St. 523, referred to in Judge Middleton's opinion, that substantial economic changes requiring a change in the use of the servient estate may require an earlier termination. However, this is a matter pertinent to an affirmative defense, not specifically raised by the amended petition, and does not limit the allegations of the amended petition construed as terminating the easement at the time of the termination of the use of the building for restaurant purposes.

The allegations of the amended petition being sufficient to show a subsisting easement in the plaintiffs, with which the defendant threatens to interfere, I am of the opinion that a cause of action for an injunction is stated and that the Common Pleas Court committed prejudicial error in sustaining defendant's demurrer and in dismissing plaintiffs' amended petition.

It should also be observed that if the amended petition did not state a cause of action for an injunction it did state a cause of action for a declaratory judgment, and that the Common Pleas Court could not avoid its duty to render a declaratory judgment by sustaining the demurrer. Bruckman v. The BruckmanCo., 60 Ohio App. 361; and Bay Village v. Gelvick, 25 Ohio Law Abs. 695.

Taking the view that the easement with which we are here concerned is an implied easement appurtenant, I believe that the paragraphs of the syllabus prepared by the majority are not pertinent and I do not concur therein.