of way in the use and enjoyment of his said and every allegation therein contained except premises; that he has brought suit against those explained or admitted above, and asks him in trespass for so doing, and recovered that the prayer of his petition may be susa judgment therefor against said plaintiff, tained." which the said plaintiff has paid, together with the costs of said suit, and has forbidden him to use and travel over said private way in connection with his said premises. Each and every other allegation and averment in plaintiff's petition, not hereinbefore admitted to be true, defendant denies." Upon the trial of the cause, at the October term, 1885, the court found the issues for the plaintiff, and rendered judgment in his favor as prayed for. A motion for a new trial was overruled, but no bill of exceptions was taken, nor was there any finding of facts by the court. The defendant Titus prosecuted error to the circuit court, where the judg appears from the record, that "the court of common pleas erred in overruling the demurrer to the petition. A reversal of the judgment of the circuit court is now sought here. Metcalf & Webber and M. B. Johnson, for plaintiff in error. Johnson & Leonard, for defendant in error. "Second Defense. Defendant, further answering, says said plaintiff is known by sev-ment was reversed, solely on the ground, as eral given names, to-wit, Vint Shields, Vincen Shields, Vincent Shields, and Thomas Shields; that he and his friends use these names interchangeably when speaking to and of himself; that they all refer to and designate the same person, to-wit, said plaintiff, and he responds to and recognizes himself as the person meant whenever any of these given names are applied to him; that on or about the day of July, 1884, the said defendant brought suit against said plaintiff under the name of Vincent Shields,' before A. W. SHERBONDY, a justice of the peace in and for Avon township in said county, the said justice having full power and authority to hear said cause, for trespass in traveling over said private way with his teams, wagons, and on foot in the use of his said premises, at which trial the said plaintiff appeared and answered in said suit, and set up the same facts in defense of said suit he now sets up in this action; that after a full and fair trial before said justice of the peace and a jury, and after arguments of counsel, said defendant 1. In respect to the right of the plaintiff to recovered a verdict and judgment on the the way, it appears that the person from merits of said action against said plaintiff whom the parties derive title to their lands, in this petition, which judgment so obtained owned, in connection therewith, other lands, the said plaintiff paid, together with costs. which together constituted one tract. When Wherefore said defendant says said cause is he subdivided the tract, and sold the parcels res adjudicata, and no right of action ex- now belonging to the plaintiff and defendists against him and in favor of said plain-ant, and other parcels of the subdivision, he tiff. The said defendant therefore asks to be dismissed, with his costs." WILLIAMS, J., (after stating the facts as above.) The issues of fact were found by the court of common pleas in favor of the plaintiff. No bill of exceptions was taken, nor was there any finding of facts by that court. The only question, therefore, before the circuit court was whether the pleadings were sufficient to sustain the judgment; and that is the only question here. The contention of the defendant is that the petition does not state any right in the plaintiff to the way in controversy; and, if it does, then that no violation of the right is shown of which equity will take cognizance. opened and constructed the way in qu stion, "for the purpose of affording means of access to the several tracts sold, for the benefit of the grantees, their heirs and assigns, and of all persons wishing to travel the same to reach the land;" and also to enable him to get to and from those portions of the land retained by him. Ever since, and during a period of 25 years next preceding the com The plaintiff replied as follows: "Now comes plaintiff and for reply to the answer filed herein says he admits that said Miller sold said 6-acre piece to said Richards with the agreement in said deed contained as alleged in the petition, and that said property is now owned by one C. Pitts. He further admits that he did purchase of said Bullock mencement of the action, the way so laid out the lands as alleged in the defendant's an- and constructed has been "used, traveled swer, with all the appurtenances thereunto over, and occupied for the purpose of reachbelonging. He avers that long before said ing the several pieces of land, with the aspurchase was made said Miller conveyed to sent, acquiescence, and agreement of the said Bullock the perpetual right of way over grantor, and his several grantees, and their the lane or road in controversy for the benefit assigns," to whom the premises, over which of said premises, and the perpetual right to the way ran, were conveyed. The respective drain his surface water into a ditch or drain owners of the lands on which the way was running along the side of said lane next to located, "for the purpose of settling definitethe land of said Bullock. He admits that said ly its width and exact location, mutually defendant purchased from one Fretter, who agreed between and among themselves that held his title from said Miller, and he avers the way should be thirty feet wide its entire that said defendant purchased said property length;" and thereupon, by virtue of the agreewith full knowledge of said incumbrance ment, they built their fences so as to leave upon it, and, further replying, denies each the way open as agreed upon, and thereafter constructed ditches and bridges, and other- | divided, provided the burden upon the serviwise improved it as a roadway. While the ent estate intended to be created is not thereway was so opened, improved, and in actual by enhanced." Washb. Easem. 99. True, use, the plaintiff, by purchase from one of the terms of the grant by which the plaintiff the parties to the agreement alluded to, be- acquired his title are not set out; nor is it came the owner of one of the tracts of the averred that the right of way was granted in land embraced in the agreement; and the de- express language, or by the use of the wor fendant purchased another of the parcels "appurtenances." It is averred, however, over which the way was so located, opened, that he purchased the land, and "is in posand used from a proprietor who was also session thereof as the owner in fee," which, party to the agreement. It further appears we think, must be construed as equivalent to that the defendant purchased with knowledge an allegation of the grant of the fee-simple of the existence of the way, and of the agree-estate in the land. And it is the established ment made by his vendor with the other pro- rule in this state that the appurtenances to prietors, and that he bought his parcel, "sub- property pass with it, upon its alienation, ject to the perpetual right of the plaintiff, without the use of the term "privilege or apand the several owners of the other tracts, purtenance" in the conveyance. Morgan v. their heirs and assigns, to use, enjoy, occupy, Mason, 20 Ohio, 401. In that case it was and travel over the way its entire length, held that a right of way or other easement with wagons, vehicles, and other convey-appurtenant to the land, passed by a grant of the land without any mention being made of the easement, and though neither the term "appurtenance," nor its equivalent, be employed. ances.' There can be but little doubt that the way, as originally established by the owner of the entire tract for the benefit of the parcels conveyed by him to purchasers, became an ease- Neither is the defendant in any better poment appurtenant to the land granted, and sition than his grantor; for a grant of the not merely personal to the grantees. It was servient estate carries with it the burdens establised for the beneficial use and enjoy-imposed upon it by the grantor, and the granment of the premises conveyed, and was a burden imposed upon each parcel for the more complete and convenient use of the others. Each parcel, for the purposes of the way over it, became servient to the others, and they, in turn, were subject to a like servitude for its benefit. The exact location and width of the way, so made appurtenant to their lands, were definitely settled by the mutual agreement of the owners, who placed their fences to the lines agreed upon, and thereafter improved and used it without objection. Such was the condition of the way when the plaintiff and defendant purchased their lands, and such it continued to be, down to the time of its threatened interruption by the defendant. It was, then, not simply a way of necessity, limited in duration by the necessity which originally gave rise to it, but became permanently appurtenant to the principal estates; and, under the well-settled rule, each purchaser took his land with all the rights his grantor had with respect to it, and burdened with the servitudes he imposed upon it. As was said by Mr. Justice STORY in Hazard v. Robinson, 3 Mason, 279: "Whatever is actually enjoyed with the thing granted, as a beneficial privilege, at the time of the grant, passes as parcel of it." A way is appendant or appurtenant to other lands when it is granted for the convenience of their occupation, without respect to the ownership or number of occupants. In such case the right of way passes with the dominant estate as an incident thereto. Boatman v. Lasley, 23 Ohio St. 614. "Where an easement is secured to a dominant estate, and is designed to benefit the same, in whosesoever hands it may be, it will, as a general proposition, inure to the benefit of the owner of any part of the same into which it may be tee takes it with all those burdens which appear, at the time of the sale, to belong to it. Washb. Easem. 90. It not only appears that, at the time the defendant bought his land, the easement was apparent and in actual use, so that he might properly be charged with notice of its existence, but it is plainly alleged that he bought with knowledge of it, and of all the facts relating to its establishment, and subject to it. These parties, therefore, stand in the shoes of their respective vendors, and hold their lands with the qualities and burdens impressed upon them at the time of their purchase. Granting this to be so, it is nevertheless contended by the plaintiff in error that the agreement concerning the establishment of the way is invalid because it was verbal, and without consideration, and therefore ineffectual to create a servitude upon his land. Without stopping to consider whether, if the contract were verbal only, it would on that account be inoperative, notwithstanding its long recognition by the parties to it, and their performance of it, it is sufficient to say that this ground of objection to the contract nowhere appears in the record. It is true, the petition does not allege that the contract was in writing. It does, however, allege that an agreement was made, which, as the term imports, must be construed to mean a valid agreement,-one possessing all the requisites of a binding contract,-unless, upon the whole pleading, a different interpretation is required, which is not the case here. Besides, the defendant, in his answer, does not make the defense that the contract was verbal, merely, but denies that there was a contract. A written agreement, undoubtedly, would have been competent evidence in proof of this issue; and, in support of the judgment, it will be presumed, in the absence of any 99 thing in the record to the contrary, that the | be done in the garden attached to each house. finding of the court upon the issue was sus- It was held "that, whether the covenants did tained by competent and sufficient evidence. or did not run with the land, a purchaser of The definite establishment of the boundaries one of the houses, with notice of the coveof the way, and the appropriation by each nants, would be bound by them in equity,' proprietor of his lands embraced within them and that the owner of a house who was infor the mutual benefit of the lands of all, con- juriously affected by acts which were contrastituted a sufficient consideration to support ry to the covenants might proceed against the the agreement. Each owner secured a right party who commits them to restrain the or interest in the nature of a servitude in the breach of the covenants. lands of the others included in the way, and the benefit accruing to his estate from the use of the same. In Parker v. Nightingale, supra, BIGELOW, C. J., speaking of restrictions and limitations which may be put upon property by means of 2. The other question in the case relates to stipulations, fastening servitudes or easethe remedy. It is said that equity will not ments upon it, and the jurisdiction of equity interfere to restrain trespasses; that for such to enforce such agreements, says that such wrongs the remedy is at law, and damages restrictions and limitations "derive their vaafford adequate redress. The general rule, lidity from the right which every owner of that equity will not exercise its jurisdiction the fee has to dispose of his estate, either abwhere there is a plain and adequate remedy solutely or by a qualified grant, or to reguat law, is not denied; but where, as in this late the manner in which it shall be used and case, the threatened obstruction of an ease-occupied. So long as he retains the title in ment would, if carried into execution, per- himself, his covenants and agreements remanently destroy it, and defeat the plaintiff's specting the use and enjoyment of his estate right, the application of the rule may be will be binding on him personally, and can doubted. After the mischief is done, the be specifically enforced in equity. When he remedy at law may be neither plain nor ade- disposes of it, by grant or otherwise, those quate. The damages are not always immedi- who take under him cannot equitably refuse ately appreciable, or capable of measurement to fulfill stipulations concerning the premises by any certain rule. But it is not deemed of which they had notice. It is upon this necessary to place the decision upon that ground. We are of opinion that the plaintiff may maintain his action in equity to enforce the contract of his vendor, by restraining the destruction of the easement secured by it. Courts of equity will recognize and enforce agreements made by adjoining proprietors concerning the occupation and mode of use of their lands, not only as between the parties to the contract, but as between their vendees with notice; and, to warrant such equitable relief, it is not material that the agreement be binding as a covenant real running with the land, or that any privity of estate subsist between the parties. Parker v. Nightingale, 6 Allen, 341; Western v. Macdermott, L. R. 2 Ch. 72; Tulk v. Moxhay, 2 Phil. Ch. 774; Tallmadge v. Bank, 26 N. Y. 105; Seegar v. Harrison, 25 Ohio St. 14. ground that courts of equity will afford re- In Tulk v. Moxhay, cited above, a covenant by the grantee of a piece of land, to use it as a private square, was enforced against a purchaser from the grantee with notice. The lord chancellor said the question was not "whether the covenant ran with the land, but whether a party shall be permitted to use the land inconsistent with the contract entered into by his vendor, and with notice of which he purchased;" and he adds: "That the question does not depend upon whether the covenant runs with the land is evident from this: that if there was a mere agreement, and no covenant, this court would enforce it against a party purchasing with no-prietors of adjacent lands agreed that each tice of it." In Western v. Macdermott, supra, "each of the original owners of houses in a row entered into covenants with the original owner of all the land on which they stood as to what should v.22N.E.no.20-46 It was held by this court in Seegar v. Harrison, 25 Ohio St. 14, that "where the pro would appropriate from his land a strip to be used in common for a public street, and conveyances and improvements have been made on the faith that the street would be opened, the agreement may be enforced in equity, [against a purchaser with notice,] whether and judgment in favor of plaintiffs for the public authorities accept the street as ded- $347.13. Plaintiffs moved for a new trial, icated to public use or not. WHITE, J., in which was overruled, and judgment was renspeaking of the remedy, says that, "in the dered for plaintiffs for amount of verdict. absence of fraud or mistake, the agreement The court rendered judgment against the ought, upon well-settled principles of equity, plaintiffs for a portion of the costs. Plainto be enforced, whether the public authori- tiffs prosecuted error to the circuit court, in ties accept the street as dedicated to public which court the judgment below was affirmed. use or not." Upon the same principle, where To obtain a reversal of this judgment of afproprietors of adjacent lands, by mutual firmance, this proceeding in error is proseagreement, definitely establish the bounda-cuted. Other facts necessary to an underries of a private way previously laid out along standing of the points decided are stated in their lines, and appropriate the strip of land the opinion. embraced therein to be used as a perpetual easement for the benefit of the abutting lands of each, and the common benefit of all, and, in pursuance of the agreement, fence to the SPEAR, J. The relation of the parties with boundaries so agreed upon, and thereafter respect to the property in question, and the improve and use the way thus established, circumstances, showed that, by mutual unthe agreement may be enforced in equity, at derstanding, the relation of landlord and tenthe suit of a purchaser, from one of such pro-ant existed between plaintiffs and defendant. prietors, against a purchaser with notice But one question, therefore, was to be deterfrom another. Injunction preventing the mined by the trial, viz., the amount of repermanent obstruction of, or interference with, such way is a proper mode of enforcing the agreement. The judgment of the circuit court is reversed, and that of the common pleas affirmed. (46 Ohio St. 590) CоноON et al. v. KINEON. D. Thew Wright, for plaintiffs in error. Wulsin & Perkins, for defendant in error. covery for the rent to be paid. The plaintiffs claimed that an agreement existed between them and defendant by which defendant undertook to pay rent at the rate of $1,000 a year. The verdict disposed of this claim, and it is unnecessary to consider it here. At the trial the plaintiffs sought to prove, as a means of ascertaining the rental value of the premises for the time occupied, the value of the property itself. To this an ob jection by defendant was sustained by the 1. Where a party occupies premises as a ten-court, and the evidence excluded. This rulant, upon an uncertain tenure, and suit is brought to recover for use and occupation for the time occupied, the rule applicable to the case is, what was the far rental value of the premises, as occupied, under all the circumstances of the case? And it is competent for the defendant to prove the rental value for the time so occupied. (Supreme Court of Ohio. Nov. 19, 1889.) USE AND OCCUPATION-APPEAL FROM INFERIOR COURTS-COSTS. 2. In such case, evidence of the value of the real estate itself is not competent as bearing upon the question of rental value. 3. Where, in an action for the recovery of money, commenced in a justice's court, the defendant, in that court, offers to confess judgment for a given amount, with interest from the accruing of the debt, which is not accepted, and the case is appealed to the court of common pleas, the offer follows the case to that court, and is governed by section 5141 of the Revised Statutes; and if, at the trial, the plaintiff does not recover more than was so offered to be confessed, and interest thereon from the date of the offer, he will be liable for the costs of defendant accruing after the offer was made. ing is alleged as error. We see no error in the ruling. Proof of the value of the feesimple could hardly aid in ascertaining rental value. The converse of the proposition might be true; indeed, would be. But it is matter of common observation that many tracts of real estate of great value have no actual rental value. The evidence would have been misleading, and was, we think, properly excluded. In cross-examination, defendant's counsel sought to show, by a witness called by plaintiff to prove rental value of the property for a year, what it was worth for three months only. Plaintiffs' objection was overruled, and the evidence admitted. This is assigned as error. The rental value for three months was one of the matters at issue, and hence was a proper subject of proof. Besides, the questions were legitimate as cross-examError to circuit court, Hamilton county. ination. For the same reason, the defendThe plaintiffs in error and the defendant in ant was properly permitted to give evidence error were tenants in common of a parcel of in chief of the rental value of the premises land situate in the city of Cincinnati, which for three months. We think the true rule the defendant occupied for six months, be-applicable to the case, by which the defendginning January 1, 1881. The plaintiffs brought two suits against defendant before a justice of the peace, one to recover $250, for a quarter's rent from January 1 to April 1, and another for a like amount from April 1 to July 1. Both cases were appealed to the court of common pleas of Hamilton county, where they were consolidated, and the consolidated case tried at the November term, 1887; which trial resulted in a verdict (Syllabus by the Court.) ant's liability was to be ascertained, was, what was the fair rental value of the premises, as occupied by the defendant, for each of the two quarters which he occupied them, under all the circumstances of the case? This rule the trial judge recognized and enforced. His instructions to the jury were clear and impartial, and, we think, as favorable to the plaintiffs as the law of the case would warrant. Divers other errors are as ing the question here. By force of the section, unless the plaintiffs should recover more than the sum offered, and interest from the date of the offer, they were liable for the costs of the defendant after the offer. Their recovery was a little less than that sum. We think the court of common pleas properly adjudged defendant's costs accrued after the offers against the plaintiffs. This constructions works out justice between the parties. Had the plaintiffs accepted the offers, they would have had, adding interest, as much money as the verdict entitled them to. The statute is intended to impose the expense of litigation upon the party who wrongfully persists in continuing it. Its purpose is to discourage needless contention, by placing on the litigious party the risk of having his final recovery reduced by a liability for his antagonist's costs. The litigation in this case proceeded to determine whether the plaintiffs were entitled to recover a judgment for a greater sum than the amounts offered. The result showed that they were not; that beyond that amount the plaintiffs' claim was groundless, and in equity, and upon the reason of the statute, plaintiffs should pay the costs made necessary by so unjustifiably pro signed as occurring at the trial. We have cases should be finally disposed of. That examined the record with respect to all these this section applies to cases like the one at alleged errors, and are satisfied that no error bar, after appeal to the common pleas, was is apparent on the record prejudicial to the distinctly held by DAY, J., in his opinion in plaintiffs. Courtright v. Staggers, 15 Ohio St. 511. This In the justice's court, before the trial, the holding seems to us well grounded in reason, defendant offered in one case to allow judg-and we are content to follow it in determinment to be taken against him for $125, with interest from April 1, 1881, (the end of the first quarter,) and the costs then made; and in the other case for a like amount, with interest from July 1, 1881, (the end of the second quarter,) with costs, each of which offers plaintiffs, in open court, refused to accept. In rendering judgment the court of common pleas ordered plaintiffs to pay the costs of defendant, save certain costs which had been adjudged by higher courts, accruing after the making of the offers. This is assigned as error. The claim is that the offers to confess were governed by section 6581 of the Revised Statutes. That section provides that if a defendant, any time before trial, make an offer in writing to allow judgment to be taken against him for a specified sum, the plaintiff may then have judgment therefor, with the costs then accrued; but, if he do not accept the offer before trial, and fail to recover a sum greater than the offer, he cannot recover costs accrued after the offer, but costs must be adjudged against him. This section is part of the Justice's Code, and applies to actions pending before a justice of the peace. The general provision on the subject was enacted as section 498 of the Code of Procedure, which regulated prac-longing the litigation. tice in courts of record. It is now section Another view of the case leads to the same 5141, Rev. St., and provides that the defendant, in an action for the recovery of money, may offer in court to confess judgment, whereupon, if the plaintiff refuse to accept, and at the trial does not recover more than was so offered, and the interest thereon, from the date of the offer, the plaintiff shall pay all the costs of defendant incurred after the offer was made. These actions had been removed from the justice's court by appeal to the court of common pleas, and were there subject to the general rules of practice of that court. This is the spirit of section 6587 of the Revised Statutes, which is that "the plaintiff in the court below shall be plaintiff in the court of common pleas; and the parties shall proceed, in all respects, in the same manner as though the action had been originally instituted in the said court. Conformably with this provision, pleadings are required to be filed, the jury selected, and the trial conducted and judgment rendered as in other suits for money there pending. Why should not the rule of the statute as to costs also apply? True, the offers were made in FALLEY V. GRIBLING.1 the justice's court, and had the cases termi- (Supreme Court of Indiana. Oct. 31, 1889.) nated there, the matter of costs would have CONTRIBUTION-APPEAL-REVIEW-LIMITATION OF been determined by the provision of section 6581. But the offers to confess judgment were carried, with the other proceedings, by the appeal to the common pleas, and the defendant had the rights thus given until the 1 Superseded by opinion, 26 N. E. 794. result. The instructions of the court required the jury to ascertain from the evidence the amount due from the defendant as rent for each quarter, and then to the amount found for the first quarter, add interest from April 1, 1881, to the first day of the term, and also ascertain the amount of rent due for the seccond quarter, and to that add interest from July 1, 1881, to the first day of the term, and add all together, and make their verdict for the gross sum. It must be presumed that the jury followed this direction. It is not unreasonable to con true the "recovery" referred to in the statute as the recovery upon the cause of action, in this case for rent, the interest being a mere incident. That recovery, by the verdict, was a sum a trifle less than the sums offered. So that, upon this view, the plaintiffs, not having recovered a sum greater than the offers, were liable for defendant's costs after the offers were made. Judgment affirmed. ACTIONS. 1. A complaint alleged that plaintiff's grantor's ancestor by his will directed his land to be divided be made until the debts against the estate were among his children, but that no partition should paid; that after the land had been partitioned it Rehearing denied. |