Amabile v. Winkles

Smith, J., delivered the opinion of the Court. Appellants, Angelo N. Amabile and wife (the Amabiles), here seek to overturn the decree of a trial judge (Macgill, C. J.) in the Circuit Court for Howard County as modified by the Court of Special Appeals in Amabile v. Winkles, 24 Md. App. 292 , 330 A. 2d 473 (1975). The facts were fully set forth in that opinion. We shall relate only such facts as are necessary for a full understanding of the controversy before us.

Appellees, Joseph I. Winkles and wife (the Winkles), brought an action against the Amabiles to enjoin them from interfering with a right-of-way claimed to be appurtenant to the Winkles’ land. The Winkles own the south part of what is marked “Parcel 3” on the plat attached to this opinion which the reporter is directed to reproduce. The Amabiles own the remainder. Parcels 1, 2, and 3 originally constituted one tract.

When the center portion, Parcel 2, was sold off, a right-of-way over Parcel 1 was granted to the purchaser. At the same time the owner reserved an easement for the benefit of Parcel 3 across Parcel 2. These easements were not precisely delineated. When the portion of Parcel 3 now owned by the Winkles was sold by the original owners the “together” clause in the deed, in addition to the usual reference to “the rights, alleys, ways, waters, privileges, appurtenances and advantages, to the same belonging, or in any wise appertaining,” referred specifically to “the right of ingress and egress over the right of way ²³⁶ twelve feet wide mentioned in the aforesaid deed to Schotta [from the original grantor] . .. .” Without such an easement there would have been no effective means of entrance to the land now owned by the Winkles since the terrain makes impracticable an entrance in the nature of a road through the little bit of frontage on Fels Lane.

As the Amabiles put it in the statement of facts in their brief in this Court: “On January 19,1971 the Winkles acquired ... in fee simple, a 1.078 acre lot lying on the northeast side of Fells Avenue (or Fels Lane, the improvements thereon being known as No. 3615 Fels Lane) and adjoining on the southeast the property of the Amabiles with a common line between the two properties for a distance of approximately 264.16 feet .... In describing the property thereby conveyed the Winkles’ deed referred to ‘the conveyance from James M. Haines to August Schotta dated May 27, 1908 recorded among the Land Records of Howard County in Liber W.W.L.C. No. 85, folio 526’ and recited, in part, that they took the property: ‘TOGETHER with the buildings and improvements thereon and all and every the rights and appurtenances thereto belonging or in anywise appertaining, and especially the right of ingress and egress over .the right-of-way twelve feet wide mentioned in the aforesaid deed from Haines to Schotta, and the reservation of a similar right-of-way for ingress to and egress from the remainder of the property in the rear of the land hereby conveyed.’ ” (Emphasis therein.) On December 21, 1967, the Amabiles acquired all of the original tract except the portion of Parcel 3 now owned by the Winkles. The Winkles, shortly after their acquisition, had a contractor improve what they believed to be their ²³⁷ right-of-way. The Amabiles, in the meantime, proceeded with the construction of an apartment house.

A mortgage to secure a construction loan was executed June 17, 1971. Site preparation for the Amabiles’ project cut off the Winkles’ access on November 6, 1971. Counsel for the Winkles placed the Amabiles on notice as to the Winkles’ claim of easement 11 days later. This suit was docketed March 9, 1972.

It is conceded that the building of the Amabiles which it is said now blocks that which the Winkles claim as the location of their easement was actually begun and completed after suit was docketed. The chancellor concluded: “This Court finds on the testimony and the other evidence introduced (1) that the right-of-way referred to in the deed from Haines to Kirkwood was located as indicated on the Podolak plat (Complainants’ Exhibit 8A) and that this right-of-way led to and was connected with the right-of-way referred to in the deed from Haines to Schotta which was located as indicated on the topographic survey plat made by Purdum and Jeschke on December 19, 1967, which right-of-way led out to the northwestern boundary of the Haines tract to Fells Lane or Fells Avenue, as shown on the Purdum and Jeschke plat (Complainants’ Exhibit 12), (2) that the Complainants, Mr. and Mrs. Winkles, are entitled to the use of 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, (3) that the Respondents, Mr. and Mrs. Amabile, had constructive notice of such easements for the purposes aforesaid by virtue of their record title (as a matter of fact their title deed described the conveyance to them as being subject to the rights-of-way granted and reserved in the deeds from Haines to Schotta and Haines to Kirkwood) and (4) that, although the physical location of the ²³⁸ right-of-way leading into the Kirkwood property was not visible and apparent, as the other right-of-way was, to the Respondents when they purchased their property, Mr. Amabile was put on actual notice of the Winkles’ assertion of right to its use as they had subsequently improved it. Just why Mr. Amabile chose to proceed, under these circumstances, with his grading and construction is a mystery to this writer.” The “topographic survey plat made by Purdum and Jeschke on December 19, 1967,” referred to by the chancellor, is also directed to be reproduced as a part of this opinion. It embraces all the land owned by the Amabiles.

The building shown on it east of the roadway there delineated running from Fels Lane to Court House Drive is said to have been located on Parcel 2. The trial court concluded that “a further hearing w[ould] be necessary to determine the form of relief to be granted.” After that hearing, the trial judge said in his opinion: “Under the circumstances, this Court finds that the action of the defendants, Mr. and Mrs. Amabile in building structures on the rights-of-way, to the use of which the plaintiffs were entitled, was not the result of an innocent mistake. Mr. and Mrs. Amabile had constructive and actual notice of the existence of the rights-of-way in question across their property by virtue of their title deed as well as actual notice. And, as this Court observed in its opinion, although the particular location of the right-of-way leading from the property of Mr. and Mrs. Winkles may not have been visible when the property was first purchased, Mr. Amabile was put on notice of the claim of Mr. and Mrs. Winkles when they graded and placed stone upon the road which they claimed was within the right-of-way.

Mr. Amabile was also warned both by Mrs. Winkles and by [counsel for the Winkles] that he was encroaching on, and interfering with, the use of the ²³⁹ right-of-way. In the face of such knowledge and warnings, Mr. Amabile apparently chose to go ahead in reckless disregard of the asserted rights of Mr. and Mrs. Winkles and proceeded to block the rights-of-way and obliterate the road which Mr. and Mrs. Winkles had laid out. He did so at his peril.” He determined that the Winkles were entitled to an injunction as prayed. Counsel for the Winkles was directed “to submit an appropriate decree.” By the decree the Amabiles were “enjoined from obstructing, closing, or attempting to obstruct or close the right-of-way . . . referred to in these proceedings, the course and location of said right-of-way . . . being shown and designated on a plat of a survey made by Leon A. Podolak and Associates and filed as an exhibit in these proceedings, and” the Amabiles were “enjoined and required to remove from the said right-of-way ... all obstructions which they . . . ha[d] placed thereon, or caused to be placed thereon, which deny or hinder the free passage thereon and free use thereof by the [Winkles] as an easement . . . appurtenant to the property owned by them and more particularly described in these proceedings____” The Amabiles appealed to the Court of Special Appeals.

It modified the decree by adding at the end of the first paragraph of the decree which we have quoted, after the word “and”: “on a topographic plat prepared by Purdum and Jeschke dated December 19, 1967 and also filed as an exhibit in these proceedings, and.” Otherwise, the decree was confirmed. This addition purported to fill the gap which otherwise existed and which we shall later mention. In this Court the Amabiles first complain relative to the modification of the decree, saying that the granting of this affirmative relief in the absence of a cross-appeal was unauthorized. However, in their brief in the Court of Special Appeals (through other counsel) they argued: ²⁴⁰ “The Amabiles submit that the lower court erred in ordering that the ‘course and location’ of the right of way which it enforced should be as ‘shown and designated’ in the Podolak plat.

(Decree below . . .