Tiller v. Hinton

Wright, J.

The present case involves essentially a single issue: Whether there exists an easement, either express or implied of necessity, so as to provide a way of ingress and egress for appellants across the adjacent property purchased by the appellee. We hold that an easement does not exist and, accordingly, affirm the judgment of the court of appeals.

It has long been the law in this state that “* * * all interests in land shall be transferred by written instrument, * * * and that such instruments shall be fraudulent as against a bona fide purchaser without notice unless recorded pursuant to Section 5301.25, Revised Code (substantially unchanged since 1831, 29 Ohio Laws 346, 348).” Renner v. Johnson (1965), 2 Ohio St. 2d 195, 199 [31 O.O.2d 406]. See, also, Wilkins v. Irvine (1877), 33 Ohio St. 138, 146; Railway v. Bosworth (1888), 46 Ohio St. 81; and Varwig v. Cleveland, Cincinnati, Chicago & St. Louis Rd. Co. (1896), 54 Ohio St. 455.

R.C. 5301.25 provides, in relevant part, that:

“(A) All deeds, land contracts referred to in division (B)(2) of section 317.08 of the Revised Code, and instruments of writing properly executed for the conveyance or encumbrance of lands, tenements, or hereditaments, other than as provided in section 5301.23 of the Revised Code, shall be recorded in the office of the county recorder of the county in which the premises are situated, and until so recorded or filed for record, they are fraudulent, so far as relates to a subsequent bona fide purchaser having, at the time of purchase, no knowledge of the existence of such former deed or land contract or instrument.”

Pursuant to this statutory provision, a bona fide purchaser for value is bound by an encumbrance upon land only if he has constructive or actual knowledge of the encumbrance.

It is clear that appellee did not have constructive notice of the easement in the present case. Most significantly, no easement was ever recited on any deed in appellee’s chain of title. Because an easement was not noted on any deed in this chain of title, appellee’s property was unencumbered from the time it was first transferred by the Hunters. Moreover, the deed conveying the southern parcel, which granted the easement, was not recorded until four years after appellee had purchased the northern property. Because this deed was not timely recorded, there was no record whatsoever of a grant of an easement across appellee’s estate in either appellee’s or appellants’ chain of title. Appellee therefore cannot be charged with constructive notice of the easement.

Likewise, our review of the record leads us to conclude that appellee did not have actual notice that an easement had been granted across his *69property. Our conclusion is buttressed by the specific findings of the trial court. That court was in the best position, to weigh the evidence and to assess the credibility of witnesses. To ensure the accuracy of its final determination, that court, at the request of the parties, actually viewed the disputed premises. Based upon this evaluation, and the other evidence adduced, the trial court concluded that appellee had no actual notice of an easement across his property. Although we acknowledge that the testimony is somewhat conflicting as to this issue, we believe that the findings of the trial court, as approved by the court of appeals, are adequately supported by the evidence in the record.

Therefore, we follow R.C. 5301.25 and find that an unrecorded easement is not enforceable against a bona fide purchaser for value who has no actual or constructive notice of such easement.

Moreover, we agree with the courts below that appellee is not bound by an easement of necessity. Easements implied of necessity are not favored because, like implied easements generally, they are “in derogation of the rule that written instruments shall speak for themselves.” Ciski v. Wentworth (1930), 122 Ohio St. 487, paragraph one of the syllabus. Thus, to justify the implication of an easement by necessity, strict necessity is required. An easement will not be implied where there is an alternative outlet to a public way, even though it is less convenient or more expensive. Trattar v. Rausch (1950), 154 Ohio St. 286 [43 O.O.186], paragraph eight of the syllabus.

Furthermore, because easements of necessity are implied by law to provide a right of way over land which could have been effectuated by an express grant but was not, one may not simultaneously have an easement over another’s land both by express grant and an easement implied of necessity. Cf. Jones Fertilizing Co. v. Cleveland, Cincinnati, Chicago & St. Louis Rd. Co. (C.P. 1894), 2 Ohio Dec. 511, 7 Ohio N.P. 245; 36 Ohio Jurisprudence 3d (1982) 446, Easements and Licenses, Section 47.

Finally, we believe that the following discussion by Chief Justice Taft in Renner v. Johnson, supra, at 197, though addressing implied easements generally, is nevertheless controlling herein:

“Where an owner of two parcels of land subjects one of them to an easement in favor of the other and where such owner sells the dominant parcel without providing for that easement in his grant and where the enjoyment of such easement is reasonably necessary to the beneficial enjoyment of the parcel granted, it may reasonably be inferred that the parties mutually intended there should have been a grant of such easement. Because of the right of the grantee to require reformation of the deed to set forth the mutual intent of the parties, it is often held that the grant of such an easement will be implied. * * *
“This implied easement is based upon the equitable right to reform the grant. Hence, such an equitable right should not be enforceable against a bona fide purchaser for value who has no notice of such easement.
*70“Since defendants purchased their property in good faith without notice of any right of adjoining property owners to sewer or water lines under their property, plaintiffs here have no such right enforceable against defendants.” (Emphasis added.)

In light of the cited precedent, we are convinced that appellee did not purchase the disputed property subject to an easement by necessity. We begin our analysis by reiterating that implied easements of necessity are not favored because they conflict with “the rule that written instruments shall speak for themselves.” Ciski v. Wentworth, supra. The pertinent documents of title herein “speak” strongly against the implication of an easement of necessity. There was never a record of any easement encumbering the servient, northern parcel in appellee’s chain of title. Moreover, at the time appellee purchased the property, there was no recorded easement in appellants’ chain of title. Based upon these facts, it is clear that appellee had no knowledge of any easement encumbering his property. It is also apparent that no property owner in either chain of title, except appellants, deemed the easement to be of such necessity so as to compel its recordation.

The evidence also indicates that a potential alternative outlet to a public way had existed and may have continued to exist through the BondIsch properties. While we decline to rule on the viability of this alternative route, we note that its potential availability may serve to diminish appellants’ claim of strict necessity of procuring an easement across appellee’s property.

Furthermore, since an easement may not be created by express grant and implied simultaneously, an implied easement of necessity was not created at the time of the original 1964 conveyance between the Hunters and Johnson. Instead, an easement was created by express grant, which became unenforceable against bona fide purchasers for value without notice thereof due to lack of proper recording. Although we do not agree that an easement of necessity was created by the original conveyance, assuming, arguendo, that such easement did come into existence, we do not believe that it remains effective against appellee, as bona fide purchaser without notice, pursuant to Renner v. Johnson, supra. In that case, we recognized the utility of implied easements generally. We essentially held, however, that an implied easement was “not enforceable against a bona fide purchaser for value who has no actual or constructive notice of such easement.” Id. at paragraph three of the syllabus. Because neither the deed expressly granting the easement nor any alleged implied easement of necessity was timely recorded herein, and because appellee had no actual or constructive notice of any easement, the subject property is not encumbered.

This opinion does not seek to eviscerate the utility of easements of necessity. Nor does this opinion seek to deprive appellants of the use or value of their property. However, stringent requirements must be met *71before an encumbrance upon land will be implied, and whenever possible, the applicability of the recording statutes will be upheld. The facts herein indicate that at the time of the purchase, appellants either knew or could have ascertained from the records that the easement was not recorded and that the Hunters, the common root title holders for both tracts, no longer owned the servient estate. Appellants apparently failed to carefully examine the records and acted at their peril in purchasing the property. To now grant them an easement over appellee’s property would directly contravene the recording statutes and simply would be unfair to the appellee.

For the foregoing reasons, the judgment of the court of appeals is affirmed.

Judgment affirmed.

Sweeney and Locher, JJ., concur. Douglas, J., concurs in the syllabus and judgment only. Holmes, J., concurs in judgment only. Celebrezze, C.J., and C. Brown, J., dissent.