Ayres v. Hellen

Per Curiam. This appeal concerns a controversy between owners of adjacent waterfront properties located in a subdivision known as Rousby Hall in Calvert County. The general area involved is bounded on the north by Calvert Avenue, a state maintained road, also known as Rousby Hall Road, and on the south by Patuxent Avenue adjacent to and running approximately parallel to the Patuxent River. Focal point of the dispute is a paper street called Hance Avenue, sixty feet wide, running generally north and south.

It was conceded that title to the bed of this street was in the appellants, Mr. and Mrs. Ayres, whose property consisted of a number of lots and portions of the beds of platted streets acquired by two separate conveyances from a common grantor. Their property consists of a strip of land from the river to Calvert Avenue in a north and south direction and lies eastward from the western line of Hance Avenue. It is improved by a ranch type house, two cottages, and a private road. One cottage is located partially in the bed of Hance Avenue and several septic tanks with dry wells are also partially so located.

From the western line of Hance Avenue, extending westward are several lots and portions of the beds of other platted streets owned by the appellee, Mr. Hellen. These lots were acquired by ²⁶⁰ three separate conveyances, and, like the property of appellants, form a piece of land from the Patuxent River north to Calvert Street. Rots nine, ten, and eleven front on Patuxent Avenue, a part of which has eroded away, and were conveyed by a common grantor through mesne conveyances to Hellen. Rot nine, upon which are located some partially constructed cottages, also abuts Hance Avenue.

The appellants have closed each street within the boundaries of their property, including Hance Avenue, and have denied the appellee access to this street and others not involved in this appeal. In fact, none of the streets, including Hance Avenue, has ever been opened, improved, or used since the plat of “Rousby on the Patuxent” was recorded in 1906, and there never has been an acceptance by any public authority of any dedication of these streets. Appellee filed a bill in equity in which he sought a permanent injunction preventing appellants from closing and obstructing Hance Avenue between the Patuxent River and Calvert Street. The lower court held that the appellee had an easement by implied grant to use Hance Avenue and granted injunctive relief.

In considering the equities, however, the court in its decree reserved to the appellants the right to maintain, in their present location, the cottage and the septic tanks and leaching wells, all of which encroach upon the