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St. c. 124, § 13. As this right is a valuable | in fee, and that during that time the demandinterest in property within the common-ant had been under no disability; but it apwealth, which is assignable in equity, we peared that the said Mary Gloyd, the mother are of opinion that it can be reached by cred- of the demandant, died in 1879, and the deitors under Pub. St. c. 151, § 2, cl. 11, as mandant asked the court to rule that the statamended by St. 1884, c. 285. Suits similar ute of limitations did not run against the deto this, under statutes resembling ours, have mandant until the death of her mother. But been maintained elsewhere, and the means the court refused so to rule, and ruled that, whereby the land has been applied to the pay- as there was no evidence that the dower had ment of the plaintiffs' debt seem to be within ever been set off to the mother, the statute the ordinary powers of a court of equity. of limitations ran against the demandant bePayne v. Becker, ubi supra; Tompkins v. fore the death of the mother; and, having so Fonda, ubi supra; Davison v. Whittlesey, ruled, a verdict was taken for the tenant. ubi supra; Boltz v. Stolz, 41 Ohio St. 540. The demandant excepted to the refusal to rule as requested, and to the ruling given. Louis A. Cook and Wm. J. Coughlan, for plaintiff. Simmons & Pratt, for defendant.

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In Mason v. Mason, 140 Mass. 63, 3 N. E. Rep. 19, the conveyance was of an inchoate right of dower by a married woman in the life-time of her husband. Maxon v. Gray, 14 R. I. 641, was decided on the ground that FIELD, J. The demandant is the sole heir there were no statutes of Rhode Island which of David Gloyd, who died in 1836, seised of gave the court jurisdiction, and that the case the land demanded, leaving one child, the was not within the general equity jurisdic- demandant, and a widow, the mother of the tion of the court. The decree dismissing the demandant. The widow was entitled to dowbill must be reversed, and the demurrer over-er in the land, but her dower was never asruled. So ordered.

(150 Mass. 297)

SMITH V. SHAW.

(Supreme Judicial Court of Massachusetts.

Plymouth. Nov. 30, 1889.)

LIMITATION OF ACTIONS-DOWRESS AND HEIR.

Where a widow, whose dower has not been assigned to her, conveys the decedent's land by warranty deed, the statute of limitations begins to run against the heir before the widow's death. Exceptions from superior court, Plymouth county; HAMMOND, Judge.

signed to her, and she conveyed the land in 1849 by warranty deed to one Ford, from whom, by mesne conveyances, it has come to the tenant. The widow died in 1879. The tenant and those under whom she claims have been in adverse possession of the land since 1849. The demandant asked the court, to rule "that the statute of limitations did not run against the demandant until the death of the mother." The court refused to give this ruling, and ruled "that, as there was no evidence that the dower had ever been set off to the mother, the statute of limitaThis was a writ of entry, brought to re- tions ran against the demandant before the cover a certain lot of land situate in Abing- death of the mother." A widow, before her ton. At the trial before a jury there was ev-dower has been assigned to her, has no esidence tending to show that the land in ques- tate in the lands of her deceased husband. tion was a part of six acres of land conveyed Windham v. Portland, 4 Mass. 384, 388; to David Gloyd, the father of the demandant, in 1829, by Lemuel Humphrey, treasurer of the town of Weymouth, and of which six acres the said David Gloyd died seised and| possessed in 1836. Said Gloyd left a widow, Mary Gloyd, and as his only heir, Mary H. Gloyd, (now Smith,) the demandant, who was then nine years of age. Said widow was entitled to dower in said six acres of land, but it was admitted by the demandant that it was never set off to her. She had no other interest therein. She was appointed administratrix on the estate of her said husband in 1836, and continued to occupy and improve the premises for which this action is brought until 1849, when she conveyed them by warranty deed to Louis Ford. Since 1849 said premises have been occupied by said Ford or his assigns, claiming under said deed to him, and the tenant, Ida C. Shaw, claims by mesne conveyance from said Ford. Said Mary Cloyd died in 1879. It was conceded by the demandant that the tenant, and those under whom she claimed, had, ever since the said deed to Ford in 1849, had adverse, continued, and uninterrupted possession of the demanded premises under a claim of right as owner

Sheafe v. O'Neil, 9 Mass. 13; Gooch v. Atkins, 14 Mass. 378; Hildreth v. Thompson, 16 Mass. 190; Croade v. Ingraham, 13 Pick. 33; McMahon v. Gray, ante, 923, (1889.) There was, therefore, after the death of David Gloyd, and before the demandant, as his heir, was entitled to possession, never any interveuing estate within the meaning of Pub. St. c. 196, § 3, cls. 2, 3. Exceptions overruled.

(46 Ohio St. 575) NATIONAL EXCH. BANK v. CUNNINGHAM. (Supreme Court of Ohio. Nov. 19, 1889.) EASEMENTS-STAIRWAYS-CONVEYANCES.

1. When the owner of an entire estate makes

one part of it visibly dependent for the means of access upon another, and creates a way for its benefit over the other, and then grants the dependent part, the other part becomes subservient thereto, and the way constitutes an easement appurtenant to the estate granted, and passes to the grantee as accessorial to the beneficial use and enjoyment of the granted premises.

2. The owner of a lot situated at the corner of intersecting streets in a city erected thereon a three-story building, covering the whole of the lot. the second story of the building, was constructed A stairway, leading from the principal street to in the corner room of the first story. At the land

ing of the stairway, and connected with it, a hall | floor of the building so made by the bank was made, extending across the second floor of the now is, and ever since the erection of the room next to the corner room, and connecting with the second story of the next adjoining room. The building has been, used and occupied under rooms on the second story were intended for of- the lease of the bank, and its grantees, for fices; and, to adapt them to such use, doors were offices; and during the same periods the stairmade opening into them from the hall. Another stairway was also put in, running from the hall to way leading from Washington street to the the third story. The stairway leading from the second floor has been used by those occupystreet to the second story was and is the only ing the offices, also by all the comers and means of access to the hall above, and to the rooms goers into the building; and was during all opening into it, and the use of the stairway was of said time, and still is, the only way to and is necessary to their proper use and enjoyment. While the premises were in this condition reach the offices upon the second floor, and the owner sold and conveyed a part thereof, de- also the stairway leading to the third floor. scribed by metes and bounds, which included the That the stairways and the halls, also the hall connected with the landing of the stairway leading from the street, and the office rooms on right to use each thereof, are privileges and the second floor opening into the hall, which had appartenances belonging to the said building, no means of access except through the hall, and by and to each and every part thereof. That on the stairway. The purchaser, with the knowledge of his vendor, who retained the corner room, in the 11th day of January, A. D. 1867, and which was the stairway, immediately entered while the building was unfinished and inupon, and continued the use of the stairway as his complete, the bank, in consideration of the only means of access to the hall and connecting sum of thirteen thousand and five hundred rooms purchased by him. Held, that by the conveyance a right to the use of the stairway passed dollars to it paid by the defendant William to the purchaser as an easement appurtenant to H. Grapes, bargained and sold, and agreed the premises conveyed. to convey, to the said Grapes, in fee-simple, the following part of the said lands and tenements, upon which the said building then stood, together with all and singular the rights and privileges and appurtenances to the same belonging, including the right to use and enjoy for himself, his heirs and assigns, forever, the said stairways and halls; being all of the lot, and building upon it, except so much as are within the boundaries of that portion on the corner having a frontage of twenty-four feet on Washington street, and running back a like width the entire depth of the lot on Market street. That, as a part

(Syllabus by the Court.)

Error to circuit court, Seneca county. The original action was brought in the court of common pleas of Seneca county by Edward J. Cunningham v. The National Exchange Bank of Tiffin, Ohio, and William H. Grapes. The petition charges that the bank, which is a corporation organized under the national bank act, became the owner of a lot 60 feet square at the corner of Washington and Market streets, in the city of Tiffin, and erected thereon a three-story brick building, covering the whole of the lot. The first story consisted of three business rooms front-of the said bargain and sale, and agreement to ing on Washington street and one fronting convey, and concurrent therewith, the bank, on Market street. The corner room, occu- for the consideration last aforesaid, agreed in pied by the bank as its banking-house, has a writing with the said Grapes to finish and front of 24 feet on Washington street, and complete the building in the manner and form extends back, along Market street, a dis- aforedescribed, which was so done by the tance of 45 feet. The room immediately in bank on or about the first day of April, A. the rear of the bank fronts on Market street D. 1867, and since then no change or altera15 feet, and has a depth of 24 feet. The other tion in said building has been made. That two rooms, which are used for store-rooms, on the first day on April, 1867, the said each have a frontage of 18 feet on Washing- Grapes took possession of the premises so conton street, and extend back the full depth of veyed to him, and occupied the store-room the lot. The petition then alleges: "That himself for more than one year next thereaftupon the twenty-four feet front so fronting er; and during the same period the other on Washington street, and north of and ad-store-room, also the rooms upon the second joining the south side thereof, the bank, in and third floors, were occupied by different erecting the building, erected a stairway leading from Washington street to the second floor of the building; and also then erected a stairway, upon the same line, from the second to the third floor of the building; and also then made a hall upon the second floor, leading east from the stair landing to the east end of the building; also another hall upon the second floor, leading south from the stair landing to the room upon the second floor above the south store-room; and also then erected another stairway from the hall last mentioned, leading from the second floor to the third floor of said building; and also then divided the second floor into eight or more rooms, and connected the rooms with the halls by means of doors. That the second

persons, under leases from the said Grapes, to whom they accounted for the rent; and that during the time aforestated the stairways and halls were used by the said persons, and by all others who visited the rooms above the store-rooms so conveyed to the said Grapes, and without the objection of the bank, or notice or knowledge that it claimed an adverse right. That on the 14th day of January, A. D. 1868, the said Grapes, in consideration of the sum of sixteen thousand dollars to him paid by the plaintiff, bargained and sold, and agreed to convey, to the plaintiff, in fee-simple, the same premises, together with the same rights, privileges, and appurtenances, which the bank bargained, sold, and agreed to convey to the said

Grapes, including the right to use forever the | from closing up or obstructing in any mansaid stairways and halls. That on the 14th ner the said stairways or halls, or either day of January, A. D. 1868, the plaintiff en- thereof; from preventing, or attempting to tered into the possession of the premises so prevent, the plaintiff, or those claiming unagreed to be conveyed to him, and ever since der him, also all other persons, from the full, has had, and still has, through himself and free, and perfect use and enjoyment of the his tenants, such possession, together with said stairways and halls, to go to and from the open and notorious, and, until recently, the said second and third floors of the plainthe uninterrupted, use and enjoyment of the tiff's said premises." said stairways and halls, and with the knowl- The answer of the bank, in substance, adedge and acquiescence of the bank, and with- mits that it owned the lot and erected the out demand by it for compensation therefor, building as alleged in the petition, but avers or notice from it of an adverse right. That that the hall leading southward from the on the 11th day of April, A. D. 1867, the landing of said stairway in said bank buildbank, intending to fully execute its agree- ing was only made for temporary purposes; ment to convey to the said Grapes, in fee- and that the right to use said stairway, or simple, the said premises, and also the said the entrance into said south hall therefrom, right to use and enjoy forever the stairways are not now, and have never been, intended and halls, did execute and deliver to the said to be any privilege or appurtenance belongGrapes its deed conveying to him, in fee- ing to said south building, nor any part simple, so much of the south part of the north thereof, which Grapes and plaintiff, during third of said in-lots sixty-six and sixty-five their respective occupancies, well knew and as is bounded by the lines aforestated, to- acknowledged. The answer denies that on gether with the privileges and appurtenances the 11th day of January, 1867, or at any oththereunto belonging, but unintentionally, er time, the defendant sold or agreed to sell and through mistake, omitted to grant in the said deed, in express terms, to the said Grapes, and his heirs and assigns, forever, the right to use and enjoy the said stairways and halls. That on the 14th day of January, A. D. 1868, the said Grapes, intending to fully execute his agreement to convey to the plaintiff, in fee-simple, the said premises, and also the right to use and enjoy forever the said stairways and halis, did execute and deliver to the plaintiff his deed conveying to the plaintiff, in fee-simple, the same premises described in the deed of the bank to the said Grapes, together with the appurtenances thereunto belonging, but unintentionally, and through mistake, omitted to grant in the said deed, in express terms, to the plaintiff, and his heirs and assigns, forever, the right to use and enjoy the said stairways and halls. That the bank claims an estate and interest in the premises so bargained and sold, and agreed to be conveyed, by it to the said Grapes, and by the said Grapes to the plaintiff, adverse to the plaintiff, and his estate and interest therein. That the bank claims that the plaintiff has no right to the use of the stairway leading from Washington street to the second and third floors of the building, or to the east hall on the second floor, and threatens, and is about, to shut up and close the north end of the hall upon the second floor, which leads south from the stair landing upon the second floor, and thereby prevent the plaintiff and his tenants from using the said stairways and halls; also the second and third floors of that part of the premises so agreed to be conveyed to the said Grapes and the plaintiff, and The defendant Grapes made default. will so do, to the irreparable injury of the plaintiff, by reply, denied all the allegations plaintiff and his said premises, unless re- of new matter in the answer. strained by the order and judgment of this tried at the September term, 1883, and, a decourt. The plaintiff prays that the bank, cree having been rendered for the plaintiff, and each of its officers, servants, and agents the bank appealed to the circuit court, where, may be enjoined from any and all interfer- at the October term, 1885, the cause was ence with the said rights of the plaintiff, tried, and at the request of the defendant

or convey to Grapes, or any other person, the said stairway, or the use thereof, as a privilege or appurtenance belonging to the said south rooms, or ever included the right to use and enjoy for himself, or his heirs or assigns, forever, the said stairways and halls to the said Grapes, in any conveyance or contract whatever. It denies that said stairway was ever used by the lessees of either Grapes or Cunningham without objection or notice or knowledge on the part of Grapes or plaintiff of the adverse right and claim of the defendant. It denies that Grapes sold or agreed to sell or convey to plaintiff any right or claim in or upon said stairway as an appurtenance or otherwise to said south building. It further denies that the plaintiff or his lessees had uninterrupted use and enjoyment of said stairway without demand from the defendant of any compensation for such use and occupancy, or any notice to plaintiff of the adverse right and claim by the defendant, and avers that the plaintiff promised and agreed to pay the defendant for the use of said stairway for his tenants in said building, in the second and third floors thereof, the sum of

dollars per year, and, under such agreement, paid to the defendant, for such use and occupation of said stairway, at two or three different times, and made said payments for several years at a time, and about the day of January, 1880, made an agreement with the defendant to pay to him, for the use of said stairway for said building, the sum of $15 per year for each and every year that he should use the same.

The

The case was

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that court separately stated its findings of into them from the hall or passage-way formed fact and conclusions of law, which are as fol- by making said rooms and the said stairways lows: above mentioned, and a way leading from the one into the other. That between the top or landing of the first stairs and the foot of the second stairs, above mentioned, an opening was left or made in the brick or south wall, above mentioned, of the banking room, and which separates it from the remainder of the brick building, from which said opening a hall was made, extending south to the south wall or side of the building, and which hall divides the second floor and story of the two storerooms of said building south of the said banking room into back and front rooms or offices, and from which hall doors open into said front rooms or offices. That the third story of the two store-rooms south of the banking room is all in one room. That in constructing the building the stairs above mentioned and the hall last above mentioned were the only way provided to get to the rooms on second floor or in the second story of the said two storerooms, except that a stairway and stairs were put up in both of the store-rooms, leading from the first floor to the second floor of the back rooms of each of them, and thence a stairway and stairs were put up which conducted up to the third story or room over the two storerooms; but that in constructing the brick building no other way was provided to get to the front rooms or offices on the second floor or story of the said store-rooms than the said stairway and hall above mentioned. That on the 11th day of January, 1867, when said building was finished and ready for occupancy, the said bank sold and conveyed in feesimple to the defendant William H. Grapes, for the sum of $13,500, the said middle and south rooms of said building and premises above mentioned, and which are described in the deed of conveyance therefor as follows:

"The parties appeared with their attorneys, and this cause was heard on the petition of the plaintiff, the answer thereto of the National Exchange Bank of Tiffin, Ohio, the reply of the plaintiff, and the testimony. In consideration whereof, and upon the request of the National Exchange Bank that the court should state the conclusions of fact separately from the conclusions of law, the court find as conclusions of fact, from the testimony, that the National Exchange Bank of Tiffin, Ohio, duly became a corporate body, as averred in said petition, and that it was located and doing its banking business in Tiffin, Seneca county, Ohio. That in the year 1866 the said bank purchased the lands first in the petition described, and immediately thereafter proceeded to, and did, erect thereon the said building in the petition described, and did complete the same in manner and form therein described. That, to obtain the proper location for a banking room, the said bank was compelled to buy the whole of the said lot of land on which the building was so erected, and that the two rooms on the south of the banking room of the defendant were so erected to be immediately sold. That the building was built of brick, three stories high, and divided into three separate business rooms, extending east and west and fronting west on Washington street of said city of Titin, the north room thereof being built twenty-four feet wide, with a stone front, on Washington street, and the middle and south rooms thereof each eighteen feet wide. That said business rooms were separated by solid brick walls, extending from the cellar to the roof of said building, except that an opening was left in said wall, separating said north from said middle room, in the second storySo much of the south part of the north third of said building, for a hall, extending south of in-lots numbered sixty-six (66) and sixtythrough the said middle room, and to the said five (65) in the First ward of the city of south room, as hereinafter more particularly Tiffin, in Seneca county, Ohio, as is bounded set forth. That the first story of the north by the following lines: Beginning therefor room of said building was intended for a at the north-west corner of the middle third banking room, and of the middle and south of the said in-lot No. 66, which point is also rooms for business or store rooms; and that the north-west corner of the building of said rooms always have been and yet are so Charles M. Yerk on said middle third of said used. That, in constructing the building on lot No. 66; thence northerly, on and along the premises described in said petition, and the west line of said in-lot No. 66, to the the banking room on the north side thereof, south side of the stone column at the southa stairway was made, and stairs put up on the west corner of the new bank building on said north side of and against the south brick wall north third of said lot No. 66; thence eastof the banking room, above mentioned, and ward and northerly around said stone column wholly within the banking room, and lead- to the center of the brick wall on the north ing from Washington street to the second side of the room adjoining said new building floor or story of said banking room, and also or room, on the south side thereof; thence a further stairway was made, and stairs easterly on and along the center line of said put against the same side of the same di- brick wall to the west line of that portion of viding brick wall of said banking room, com-in-lot No. 65 aforesaid now owned by Philip mencing some feet east from the top or land- Emich; thence southerly, on and along said ing of the stairs first above mentioned, and west line of said Philip Emich's, to the north leading up to the third floor or story of the line of said Charles M. Yerk, on the north banking room. That rooms or offices are side of said middle third of said lot No. 66; made on the second floor, or in the second thence, on and along said north line, weststory of the banking room, and doors opened wardly to the place of beginning, be the

To which findings and conclusions of law, and judgment, the bank excepted, and to obtain the reversal of the judgment prosecutes error to this court.

N. L. Brewer, for plaintiff in error.

same more or less.' And said description in up the said opening in said wall at the top said deed was and is immediately followed by landing of said stairway, forming the entrance the words, and all the estate, title, and inter- to the said south hall in the second story of est of the said National Exchange Bank, said building, and from closing up or obstructeither in law or in equity, of, in, and to said ing the said south hall, or the way leading premises, together with all the privileges and thereto, in any manner whatever, or doing, appurtenances to the same belonging. That or permitting to be done, any act whatever afterwards, on the 14th day of January, 1868, to prevent the free and undisturbed use of the said Grapes sold and conveyed, in fee- the said stairway leading from Washington simple, to the said plaintiff, the same part of street for that part of said building and premthe said building and premises last above de-ises so by it conveyed to said Grapes, and by scribed, with the same description and like said Grapes to said plaintiff." covenants. That on May 3, 1869, and again on January 31, 1870, the plaintiff paid to the bank the sum of $12.50, which said bank demanded of him on account of an alleged higher rate of insurance the said bank had to pay because of the opening for said south hall in said brick wall, separating the banking WILLIAMS, J., (after stating the facts as room from the rooms conveyed to said Grapes above.) The only question raised upon the and to the plaintiff. That the free and un-record is whether the facts found by the disturbed use of the said stairway leading circuit court are sufficient to warrant the from Washington street to second floor of judgment it rendered. The case made by said building, and the opening at the top those facts is, in substance, that in the landing of said stairway in the wall separat- plan and construction of the building erected ing the said parts of said building, owned re- by the bank, which covered the entire lot spectively by the plaintiff and the bank, are owned by it, a stairway, leading from Washnecessary for the proper use and enjoyment ington street to the second story of the buildof that part of said building so conveyed by ing, was constructed in the corner room, now said bank to said Grapes, and by said Grapes occupied and owned by the bank. At the to the plaintiff, as constitute the front offices landing of this stairway, and connected with of said portion so sold and conveyed; and it, a hall was made, extending across the secthat such use and enjoyment of said stairway ond floor of part of the premises afterwards and said opening in said wall is the only conveyed by the bank to Grapes, and by him means of access to the said offices on said to the plaintiff, and connecting with the secsecond floor of the plaintiff's part of said ond story of the balance of the premises so building, and was used, with the knowledge conveyed. The rooms on the second story of of said defendant, from the 11th day of Jan- the premises now owned by the plaintiff uary, 1867, until about the time of the com- were made into offices, and doors opened into mencement of this action. That on or about them from the hall. That on or about them from the hall. Another stairway was the 1st day of December, 1880, the bank was also put in, running from the hall to the third about to close the opening in said wall at the story. The stairway leading from Washingentrance of said south hall, in the second | ton street to the second story was and is the story of said building, so as to prevent the only means provided for access to the hall use of said stairway to reach the second and above, and to the rooms opening into it, and third floors of that part of said building so the unobstructed use of that stairway is necconveyed by said bank to Grapes, and by essary to their proper use and enjoyment. Grapes to the plaintiff. And the court, from This was the condition of the premises when the foregoing conclusions of fact, find as con- the bank sold and conveyed to Grapes those clusions of law that the said stairway leading portions purchased by him, including the from said Washington street to the second hall, and the rooms which open into it; and floor of said building, and the opening in said thereafter, with the knowledge of the bank, wall at the top landing of said stairway, he used the stairway as his only means of acforming the entrance of said south hall in the cess to the hall and the rooms, until he sold second story of said building, are privileges to the plaintiff. The stairway was so in use and appurtenances belonging to that part of when the plaintiff purchased, and he theresaid building and premises so conveyed by after continued such use until shortly before said bank to said Grapes, and by said Grapes the commencement of the action, when the to the plaintiff; and that the plaintiff, his bank threatened to close up the entrance to heirs and assigns, have and hold the right to the hall, and thus prevent the use of the stairthe free and undisputed use and enjoyment of way as a means of approach to it, and to the the said stairway leading from Washington connecting rooms. The general rule that street to the second floor of said building, easements appurtenant pass with the grant and of the entrance to the said south hall of the dominant estate is not controverted; thereof. It is therefore ordered, adjudged, but the principal claim of the plaintiff in erand decreed that the defendant, the National ror is that, inasmuch as the conveyance was Exchange Bank of Tiffin, Ohio, and all per-made to Grapes immediately after the comsons claiming by, through, or under it, be and pletion of the building, and at that time no hereby are perpetually enjoined from closing use had been made of the stairway as a means

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