Amabile v. Winkles

Thompson, J., delivered the opinion of the Court. Judge James Macgill, sitting in Equity in the Circuit Court for Howard County, found that the appellees, Joseph I. Winkles and Mary Elizabeth Winkles, his wife, were entitled to a right of way 12 feet in width over the lands of the appellants, Angelo N. Amabile and Elisabeth E. Amabile, his wife, and granted an injunction requiring that the Amabiles remove all obstructions from the right of way. On appeal the Amabiles contest not only the existence of the right of way but the propriety of the remedy. Mr. and Mrs. Winkles are the owners of a lot containing 1.07 acres situated on the north side of Fells Avenue. * 1 Their dwelling house is located at the top of a hill and can be reached by vehicles only by the right of way in question which leads to the rear of the property.

The only access to the front of the dwelling is by means of 48 steps leading up from Fells Avenue. Mr. and Mrs. Amabile, the appellants, own adjoining land to the west of the appellees comprising 3.924 acres which lies between Fells Avenue and Court House Drive to the North. In 1908, the land which is owned by all the parties to this ²⁹⁴ proceeding was a part of a larger tract known as Lin wood Farms belonging to James M. Haines and his wife. By deed dated May 27,1908, Mr. and Mrs. Haines conveyed to August G. Schotta a 1.168 acre rectangular shaped parcel approximately 110 feet wide and extending from Fells Avenue to what is now Court House Drive.

This parcel ran through the center of the Haineses’ holdings. In that deed Mr. and Mrs. Haines reserved for the benefit of the remaining property a right of way 12 feet in width without providing a metes and bounds description. The location of the right of way was not otherwise described in the deed, the particular language of which is set out in the margin. 2 On January 19, 1971, the Winkleses acquired their property from Laura M. Pfeiffer and other heirs of William F. Kirkwood in fee simple. In that deed they were granted “the right of ingress and egress over the right of way 12 feet wide mentioned in the aforesaid deed from Haines to Schotta.” In none of the intervening deeds was the right of way claimed by the Winkleses more specifically described.

On December 21, 1967, the Amabiles acquired their property, consisting of the Schotta property as well as part ²⁹⁵ of the property retained by Haines in 1908, from Raymond W. Griffith and his wife. Their deed provided that they took the property subject to the right of way reserved in a deed dated May 27, 1908, from James M. Haines and others to August G. Schotta. The right of way is likewise not described with any more particularity in the Amabiles’ chain of title. At the trial below, the Winkleses produced a topographic plat prepared by Purdumn and Jeschke dated December 19, 1967 which showed a roadway leading through Amabiles’ property from Fells Avenue to Court House Drive.

The plat did not show a roadway leading from the Winkleses’ property to the Fells Avenue-Court House Drive road. They also produced a plat made by Leon A. Podolak and Associates dated January 12, 1972, showing the approximate location of a right of way leading from the Winkleses’ property to the lane described on the plat previously mentioned and running from Fells Avenue to Court House Drive. The surveyors explained they were unable to locate the original roadway precisely because recent grading and construction had obliterated all signs of what may have been the original roadway. The trial judge summarized the testimony produced by the Winkleses in the following language: “The complainants produced a number of witnesses who testified as to their recollection of where the right-of-way was located on the ground.

Mr. John Kirkwood said that he was a son of the William F. Kirkwood to whom Mr. Haines had conveyed the property and that his father had erected a house on it in 1910. The witness was born there and remembered the property well before 1920. There were two accesses to the house, one directly from Fells Avenue up a flight of forty-eight steps, and the other from Fells Avenue across the Haines and Schotta properties. The roadway from Fells Avenue went to the Haines and Schotta dwellings and another portion branched ²⁹⁶ off to the rear of the Kirkwood dwelling [now the Winkleses’ property].

This roadway was used for making heavy deliveries, such as coal, furniture and groceries, to the Kirkwood home since the only other way to reach it was by the flight of steps up the steep slope from Fells Avenue. During the years 1968 to 1971, according to Mr. Kirkwood’s recollection, the roadway into his father’s home was used six or seven times. He had walked the road in 1964 and said that at that time it was in grass. He described it at that time as being about twelve feet wide and said that it was visible to those persons who knew that it was there but he could not say whether or not persons who were ignorant of its existence would have observed it.

He did say that there was a slight depression in the ground where the road ran and indicated on an exhibit the location of the depressed area which was approximately where the road was indicated on Mr. Podolak’s plat. “Mrs. Winkles said that she had been born forty-three years ago and a block away from the property which she and her husband now occupy. As a child she remembered the Haines, Schotta and Kirkwood properties. She, with other children, would ride on the bread truck back to the houses on the properties. The road from Fells Avenue forked and one part ran easterly between the Haines and Schotta homes and the other went into the rear of the Kirkwood property.

That part leading into the Kirkwood property was grown up in weeds and grass when she and her husband bought the property. They measured off the course of the driveway in March or April, 1971 and had it leveled out and graveled. Thereafter they moved into the house and used the driveway for deliveries. They also used it to go to and from work and their visitors used it.

On November 6, 1971, Mr. Dilman, who ²⁹⁷ was bulldozing and grading for Mr. Amabile, knocked on the door. He had already moved a large pile of earth onto the other end of the roadway entering into Fells Avenue and this prevented Mr. and Mrs. Winkles from getting their blue and white Chevrolet out. It is still sitting in their back yard. Both Mr. and Mrs. Winkles said that there was an indentation in the ground which showed the location of the driveway before they had graded it.

There were several other witnesses, Mr. C. Orman Manahan, an attorney, and Mr. William E. Pfeiffer, who testified as to the existence of a driveway into the rear yard of the property now owned by the Winkles. Mr. Manahan observed it in 1943 or 1946 and Mr. Pfeiffer observed it during the period from 1954 to 1966.” The trial judge then summarized the testimony of the Amabiles’ witnesses who had indicated that at various times they had not observed the small piece of the roadway leading to the Winkleses’ property from the Fells Avenue - Court House Drive roadway. He then found that the right of way referred to in the deeds was located as indicated on the two plats hereinbefore mentioned and that the Winkleses were entitled to use these rights of way as an easement appurtenant to their property and as a means of egress from and ingress to their property from Fells Avenue. After making the determination that the Winkleses were entitled to use the right of way as described, he directed the parties to produce further testimony as to whether the mistake of the Amabiles was innocent so as to entitle them to the benefit of the rule set out in Easter v. Dundalk Holding Co., 199 Md. 303, 305 , 86 A. 2d 404 (1952): “The courts aim to avoid the granting of injunctions when they would produce injustice, great hardship, or public or private mischief.

Thus it is an accepted rule that where a landowner, by innocent mistake, erects a building which encroaches on adjoining land, and an injunction is sought by the owner of ²⁹⁸ the land encroached upon, the court will balance the benefit of an injunction to the complainant against the inconvenience and damage to the defendant, and where the occupation does no damage to the complainant except the mere occupancy of a comparatively insignificant part of his lot, or the building does not interfere with the value or use of the rest of his lot, the court may decline to order the removal of the building and leave the adjoining landowner to his remedy at law.” See also, Dundalk Holding Co. v. Easter, 215 Md. 549 , 137 A. 2d 667 (1958), cert, denied, 358 U. S. 821 . He summarized the testimony received at the hearing on the nature of the Amabiles’ mistake as follows: “At this subsequent hearing, Bernard F. Goldberg, Esquire, Attorney at Law, testified that he had examined the title to the property purchased by Mr. and Mrs. Amabile, but that he did not issue a title certificate. He was not able to advise Mr. Amabile as to the location of the rights-of-way referred to in the deed which he had prepared, but he specifically recalled that he did discuss with him, at the time of settlement, that there were rights-of-way across the property which the Amabiles were buying. He was not requested to make an attempt to locate the course of these rights-of-way. “Mr. William G. Rasch, III, a surveyor, testified that in 1966 he had surveyed the property subsequently acquired by Mr. and Mrs. Amabile in the spring of 1966 and prepared a survey plat.

He was aware of the rights-of-way referred to in the title deeds but he was unable to locate them on the ground. Likewise, Mr. Gary Watts, another surveyor, who did the site plans for Mr. and Mrs. Amabile on March 11, 1970 and who used the ²⁹⁹ topographic survey prepared by Purdum and Jeschke, the firm of which Mr. Rasch was a member, said that he was unable to locate the rights-of-way on the ground. “Harry M. Ashman, Esquire, the attorney for Mr. and Mrs. Winkles, testified that they had employed him with respect to the question of the rights-of-way. He wrote a letter which was referred to in the opinion of this Court. As a result of this letter, in September or October, 1971, there was a meeting on the Amabile property at which Mr. Amabile was present, along with Mr. Cohen, his attorney, and Mrs. Winkles and Mr. Ashman.

At that time, according to Mr. Ashman, no apartments had been built on the property and there was a road from the Winkles property to Fells Lane. The meeting was held to discuss the right of Mr. and Mrs. Winkles to cross the Amabile property which at that time was being graded. Mr. Ashman told Mr. Amabile and his counsel that the right of the way of the Winkles was being bulldozed. The course of the right-of-way, as claimed by Mr. and Mrs. Winkles was pointed out to Mr. Amabile.

Mr. Amabile made the statement that it was his ;property and that he could do with it what he wished. (Italics added) “Mrs. Winkles testified that she had several discussions with Mr. Amabile, the first of which took place on her front lawn in August of 1971. At that time Mr. Amabile was in the company of three or four persons whom she understood to be surveyors. She got her deed and showed Mr. Amabile where her right-of-way was and on which she and her husband had just put crushed stone.

Mr. Amabile told her that he thought they could come to some agreement. According to her, she and her husband had arranged to have the roadway leading from their property line graded and surfaced with crushed stone in March, 1971. ³⁰⁰ “J. Fred Cohen, Esquire, one of the attorneys for Mr. Amabile, testified that Mr. Ashman’s letter to Mr. Amabile had been forwarded to him and he arranged for a meeting which took place after November 17, 1971. At that meeting Mrs. Winkles claimed that her right-of-way went through the middle of Mr. Amabile’s property. Mr. Amabile said that he would give an alternative way out for Mr. and Mrs. Winkles.

At that time the buildings were under construction on the Amabile property. Mr. Cohen advised his clients to go ahead and close the roadway which Mr. and Mrs. Winkles claimed was their right-of-way but to leave a way for Mr. and Mrs. Winkles to get out to Fells Lane. “Mr. Amabile did not testify at this subsequent hearing but it will be recalled that he testified at the earlier hearing that he did observe the roadway which Mr. and Mrs. Winkles claimed was their right-of-way leading from their home to a roadway from Court Avenue to Fells Avenue and that he made this observation before he started grading the property. He consulted his attorneys but he did not hold up the work he was doing on the property to wait for answers. He had also spoken to Mrs. Winkles while she was standing on the roadway in question and reported that she had said to him, ‘This is my property; I don’t want anyone to run over it.’ Despite what Mr. Amabile observed and heard, he began his grading operations and proceeded to bulldoze away the road which Mr. and Mrs. Winkles had put in.” (Italics added) Judge Macgill found that the actions of the Amabiles were not innocent within the meaning of Easter v. Dundalk Holding Co., supra, and directed that an injunction issue requiring the Amabiles to remove all obstructions on the right of way. ³⁰¹ I Right of Way Established The trial j udge found that the right of way was used more or less continuously from about 1920 until its use was blocked by the Amabiles in November of 1971.

His findings are supported by the evidence. The Amabiles argue for reversal because there was no evidence produced showing the existence of the roadway in 1908 when the original tract of land was divided. To support this argument they rely on Hancock v. Henderson, 236 Md. 98 , 202 A. 2d 599 (1964). We agree with the trial judge that Hancock v. Henderson is distinguishable because it turned on the fact that the deed allegedly creating the right of way did not indicate a clear intent to do so.

In that case the Court said: “The deed contained no express grant of a particular road in fee, or an easement therein, but the ‘together clause’ was slightly different from the usual form and read as follows: ‘Together with all and every, the rights, alleys, ways, waters, privileges, appurtenances and advantages, outlets or roadways, to the same belonging or in anywise appertaining.’ (Emphasis added.)” “Even if we assume the phrase ‘outlets or roadways’ found in the deed were sufficient to convey an easement, failure of the appellees to prove the roadway was in existence or was agreed upon as a right of way in 1911 is fatal to substantiate an express grant of an easement. The rule that an easement conveyed in general terms may ultimately become fixed by metes and bounds through express agreement of