Anne Arundel County v. Litz

¹⁸⁸ Thompson, J., delivered the opinion of the Court. Anne Arundel County, the appellant, complains on a number of grounds hereinafter set out, that Judge Raymond G. Thieme, Jr., the chancellor, committed error in granting an injunction restraining it from any further pollution of the lake owned by Robert Litz and wife, the appellees. The appellees also appeal complaining as to the form of the injunction and the failure to award damages. I Facts The appellees acquired the subject property in Lakeland, near Sevema Park, Maryland on June 18,1959 by deed from Bernard J. Lee, Jr. and Rosalie W. Lee, his wife.

The property consisted of approximately 15.1 acres, including a spring fed lake of some 3 acres. 1 On June 27, 1962, the appellees conveyed 8.685 acres of the land to Lake Forest, Incorporated, together with the right to use the lake. The land so conveyed was developed into a subdivision of lakefront homes, known as Lake Forest. As development on the north side of Benfield Road increased drainage problems developed on Benfield Road, so in September of 1964, Anne Arundel County, the appellant, purchased an easement from Raymond D. Kittinger and Ruth Kittinger, his wife, to construct and maintain storm water facilities through the Kittinger property from Benfield Road to the head of a ravine, which leads to the lake. The appellant installed an 18" drainage pipe in said easement to drain water into the lake.

The appellees and the Lake Forest Community Association became concerned in 1968 about erosion and potential damages to the lake caused by the collection of surface water through the 18" pipe. The appellees and the Association had many discussions and meetings with appellant’s representatives over the issue. In late 1969 or early 1970, Mr. Litz learned the appellant planned to improve Benfield Road and also make the improvements in ¹⁸⁹ the easement across the Kittinger land to the lake. Mr. Litz voiced his concern, and as a result, the appellant directed Messick and Associates, its consulting engineers on Project 761-R, to study the problem.

Messick produced the study known as the "Kittinger Storm Drain Outflow Study”, dated August 1970, which stated that a closed system would alleviate the appellant from any responsibility regarding siltation of the existing lake. Messick, nonetheless, recommended against changing its original design and the appellant agreed. The project known as 761-R relocated and widened Benfield Road and changed the drainage pipes in the area. To prepare for the construction of the new drainage system called for in the plans, the appellant purchased an additional easement from the Kittingers.

This second easement began at the end of the first easement and extended to the lake. The 18" pipe was replaced by a 36" pipe and the pipe system in the roadway was upgraded to accommodate increased amounts of surface water generated by surrounding development and the widening of the roadway. In addition, concrete baffles were constructed in front of the 36" pipe in an attempt to slow the velocity of the water exiting the pipe. A series of three check dams was also installed in an attempt to further slow velocity and trap sediment.

Installation of the 36" pipe and improvements in the said easement were started on September 16, 1970 and completed on or about November 1, 1971. On August 31, 1971, the Lake Forest Community Association filed suit against Anne Arundel County, Maryland, for injunctive relief and damages. When the suit by the Association did not proceed, the appellees filed this suit on February 6, 1974. They sent notice to the County pursuant to Article 57, Section 18 of the Maryland Code on January 31, 1974, the same being received by the County Council on February 4, 1974.

II Parties The appellant first contends that necessary parties were omitted from this suit in which appellees seek an injunction ¹⁹⁰ preventing the appellant from collecting unreasonable amounts of surface water and channelizing it onto the appellees’ property as well as damages from prior acts. The claimed necessary parties were the Soil Conservation Service, the Department of Natural Resources, and the other property owners in the watershed. The chancellor was not impressed with appellant’s argument nor are we. The allegations and the evidence showed that the appellant was the only party who had channelized the water and caused it to damage the appellees’ property.

Although other property owners may be contributing to the run-off, there is no allegation nor evidence to suggest that they were anyway involved in the unreasonable collection of surface water or channelization of the water over the appellees’ property. It is up to the appellant to secure whatever permits from public bodies that may be necessary to correct its prior improper actions. Ill Appellant’s Right to Use the Lake The appellant contends it has the right to use the lake in any manner it sees fit by virtue of a quit claim deed from Raymond D. Kittinger and Ruth W. Kittinger. This contention stands or falls by virtue of the terms of a conveyance to the Kittingers from Frances C. Perkins dated October 13, 1943.

That deed conveyed "the right to use the waters of the lake ... solely and only to the said parties of the second part, and their heirs ....” The County argues that the word "heirs” is a word of limitation indicating the grant, in fee simple, of a perpetual, transferable, exclusive easement in the lake. The appellees contend that "heirs” is a word of purchase and that a non-exclusive easement was granted only to the Kittingers and their heirs. The word "heirs” has been given a technical legal meaning as a word of limitation. When the word is used, it is presumed to be a word of limitation unless it is shown that it was used to designate particular persons.

Lobe v. Goldheim, 153 Md. 248, 250 , 138 A. 5 (1927). Gardner v. ¹⁹¹ Gardner, 25 Md. App. 638 , 335 A.2d 157 , cert. denied, 275 Md. 748 (1975), quoting 26 C.J.S. Deeds § 124 (1956), said: "The term 'heirs’ is a technical term, clothed in the law of real property with a special significance. It may, however, be used in a deed as a word of limitation or as a word of purchase, according to the grantor’s intent, which is to be determined from an examination of the entire instrument. When used technically the term 'heirs’ is one of limitation, and unless an intention to the contrary appears, it will be presumed to have been used in its technical sense as a word of limitation.” Id. at 644.

In determining the intent of the grantor, the whole instrument is to be considered in light of the facts and circumstances surrounding the transaction. Green v. Eldridge, 230 Md. 441, 447 , 187 A.2d 674 (1963). Examining the instrument as a whole reveals that the word "heirs” is used in several other places. With the exception of paragraph "B” the word "heirs” is used in conjunction with the word "assigns”.

In two places, "heirs and assigns” is followed closely by "in fee simple”. The chancellor disposed of this contention on this basis as well as on other grounds, with all of which we entirely agree. A portion of the chancellor’s opinion follows: "The Court concludes from this that the deed was very carefully drafted by someone who knew the significance of these words. In those places where a description of the interest conveyed was appropriate, the granting clause and the habenden clause, the draftsman took great pain to make it perfectly clear that a fee simple was intended.

In paragraph 'B’ 'heirs’ seems to be used in an entirely different way. In the same sentence as the grant to the Kittingers, '... and their heirs’, Frances Perkins secures the right to consent to a transfer of a portion of the property to herself 'or her heirs’ for so long as she 'or her heirs’ owns any portion of the ¹⁹² tract. The word 'heirs’ in regard to Frances Perkins could not have been intended to be used in the technical sense as words of limitation because no conveyance was being made to her. For the sake of consistency within the same sentence, therefore, it would seem that 'heirs’ in regard to the Kittingers is a word of purchase.

This result is logical if the words 'solely and only’ are read to limit the class of grantees rather than designate the interest passed. "The facts and circumstances surrounding the transaction also lead to the conclusion that the intention of the grantor was to convey a non-exclusive easement to a limited class of grantees. At the time of the conveyance to the Kittingers, Frances Perkins still owned the remainder of the original tract including the bed of the lake. It seems incongruous for her to retain the bed of the lake for herself yet convey away the exclusive right to use the lake making her fee in the lake worthless.

Not being able to assure the right to use the lake would certainly lessen the value of the remaining portions of the tract that she later intended to sell. The second part of the clause granting the easement shows a concern on the part of Frances Perkins as to who was to occupy or own the land near the lake as long as she or her heirs owned any portion of the tract. It appears inconsistent with this concern to convey a fully transferable interest in this land to other parties. To read the deed in such a way would be to say that in the same sentence, she conveyed away all rights to choose the parties to use the lake and yet kept the right to approve the parties living on the lake.

Use of the lake is also mentioned in the description of the property following the language of fee simple grant. However, this is a portion of the description of the 'two lots of ground’ rather than the fee simple grant of an easement. "For the reasons stated above, the Court finds ¹⁹³ that the easement granted was not transferable to parties other than heirs of the Kittingers. However, there is another reason which defeats the County’s claim of an easement to use the lake.

The Kittingers’ interest consisted of an easement appurtenant. An easement appurtenant is one which benefits a particular parcel of land. Greenwalt v. McCardell, 178 Md. 132 , [ 12 A.2d 522 ] (1940); 3 Powell, Real Property, § 418 (1978). While an easement appurtenant is an incident of, and passes with, possession of the dominant estate, there is nothing to prevent a grantor from providing that the easement will not pass to the transferee of the dominant estate.

Restatement of Property, comment b to § 487. Even if it were found that the easement was transferable to the grantees of the Kittingers, the County’s