Banks v. Pusey

CATHELL, J. This case arises from a dispute between two land owners concerning an alleged right-of-way. Ira R. Pusey, respondent, ⁶⁹² contends that he has a right-of-way across R. Alan Banks, Jr.’s and his wife Shirley W. Banks, petitioners, property in order to access a public road. Respondent asserts that he has obtained an easement by prescription over the petitioners’ property. On October 26, 2004, the Circuit Court for Worcester County found there to be such an easement by prescription.

On November 29, 2004, the Banks filed an appeal to the Court of Special Appeals. On December 13, 2005, the Court of Special Appeals affirmed the Circuit Court in an unreported opinion. On January 6, 2006, the Banks filed a petition for writ of certiorari; we granted certiorari on March 9, 2006. Banks v. Pusey, 391 Md. 577 , 894 A.2d 545 (2006).

The Banks’ petition for writ of certiorari presents two questions for our review: “(1) Does a presumption of adverse use arise in favor of a person who uses a lane or driveway for ingress and egress to the residence which he occupies with his parents so as to establish, as against the parents and their successors in title, a basis for a prescriptive easement? “(2) Does the use of a lane or driveway by third party invitees constitute an adverse use that would entitle a person who, with permission, resides on the premises to assert as against the owner a legal right to continue to use and enjoy the access to the premises on the basis of a prescriptive easement?” 1 Based on the facts of the case sub judice, we answer both of the Banks’ questions in the negative, and therefore reverse the decisions of the Court of Special Appeals and the Circuit Court. A presumption of adverse use does not arise in favor of a person when that person begins to live jointly with and on his or her parents’ property as a minor and then continues to ⁶⁹³ live on the property along with his or her parents as an adult unless there is dear and convindng evidence that such a person was residing there (or using a particular right-of-way) against his or her parents’ will. In addition, the use of a lane or driveway by third-party invitees of a person with permission to use a lane or driveway does not constitute an adverse use in the context of establishing a prescriptive easement because that person’s permission is conferred upon their own third-party invitees—as long as the use is within the scope of the permission. I. Facts The disputed alleged right-of-way pertains to a farm lane which runs from respondent’s property, across a neighboring property, and across the Banks’ property, exiting onto Snow Hill Road.

The farm lane is also described as the driveway to the house on the Banks’ property. The parties’ properties in question are located southeast of Salisbury—west of Salisbury/Snow Hill Road (Maryland Route 12) and north of Saint Luke’s Road—-just south of the Wicomico/Worcester County line, in Worcester County. The Banks’ property is to the west of and adjacent to Snow Hill Road and consists of approximately 25 acres, a 20-acre portion of which is relevant to the case at bar. The farm lane or driveway runs in a westerly direction from Snow Hill Road across the northern portion of the Banks’ property, through a neighboring property (the “Scrimgeour property”), 2 and into respondent’s property, a 127-acre parcel of land.

The respondent’s property consists of fields in the northern portion and forest in the remainder. The property has no direct road frontage on Snow Hill Road, but has approximately 400 to 500 feet of frontage on Saint Luke’s Road. It is undisputed that the better means of access to and from the respondent’s property (which is generally used for farming and hunting) is via the farm lane. Testimony was provided at ⁶⁹⁴ trial that the frontage on Saint Luke’s Road is low-lying and poorly drained, covered by forest and separated from the road by a ditch.

Respondent’s father, Marion L. Pusey, owned both pieces of property from 1949 to 1954. According to respondent’s answers to interrogatories, he lived with his family on the parcel which is now the Banks’ property from 1939 until 1995. 3 Respondent and his father farmed the land and respondent lived in the residence with his father and step-mother. On March 24, 1954, Marion L. Pusey deeded respondent the 127-acre parcel. Respondent’s father passed away in 1979, at which time what is now the Banks’ property was deeded by Marion’s personal representative to Marion’s second wife, Eva Pusey, for life with remainder to Andrew and Debra Pusey, two of Marion’s grandchildren.

Respondent continued to live on the property with his step-mother Eva until she died in 1995. At that point, what is now the Banks’ property passed to Andrew and Debra; respondent continued to reside in the dwelling and use the farm lane with their consent. In May of 1998, the Banks purchased the property from Andrew and Debra Pusey. Respondent moved and, though no longer residing on the property, continued using the farm lane to cross over the Banks’ property and access his 127-acre parcel.

Throughout respondent’s ownership of his 127-acre parcel (from 1954 on) numerous third-party invitees (farm laborers, timber and power companies, hunters, and others) have used the farm lane to access his property to and from Snow Hill Road. The trial court judge found that respondent lived on what is now the Banks’ property pursuant to the acquiescence of his family members. Respondent testified about his living there, stating: “Never asked them. Weren’t nothing said about it.” When asked as to whether he had permission to stay in the ⁶⁹⁵ house, he stated: “Wasn’t nothing said about it.

I just stayed.” Respondent never had an actual ownership interest in the Banks’ property. Respondent testified that when the Banks purchased the property, however, he told them that he had a right-of-way to access his 127-acre parcel via the farm lane. The Banks searched the Worcester County Land Records and did not find any evidence of a deeded right-of-way, but nonetheless allowed respondent to use the farm lane for a period of time. Subsequently, the Banks revoked their consent to respondent’s use of the farm lane and erected obstacles to prevent respondent’s access.

The respondent removed the obstacles and continued to use the farm lane, resulting in this matter being brought before the court. On May 20, 2004, a non-jury trial was held in the Circuit Court for Worcester County. The trial court heard from fourteen witnesses throughout the course of the day-long trial and found that respondent “proffered a considerable amount of evidence ... that his use of this farm lane has been uninterrupted and exclusive for more than the prescriptive period of twenty years.” On October 26, 2004, the trial court filed its opinion, stating: “[T]his Court finds that [respondent] is entitled to a presumption that his long-standing use of the disputed farm lane was adverse, and that the Banks bear the burden of proving that it was otherwise. After considering all of the testimony and the parties’ memoranda it is clear to this Court that the Banks’ have failed to satisfy their burden; they only point to the fact that [the respondent] lived on what is now the Banks’ property with his parents.

As Dalton[ 4 ] instructs, showing a grant of permission or a license requires more than mere acquiescence on the part of the servient owner; and in the instant case, [respondent] never had any ownership interest in what is now the Banks’ property—he resided there only by the acquiescence of the other family members. There is a dearth of evidence to ⁶⁹⁶ show he had any permission or license to use the farm lane to serve his farm property in the capacity described by the witnesses who testified. Moreover, [respondent] himself, along with witness after witness denied any kind of permission or license to use the right of way. Thus, this Court can only find that [respondent’s] uninterrupted and exclusive use of this road was adverse as well. “In sum, this Court finds that [respondent’s] use of the farm lane was uninterrupted, exclusive, and adverse for at least the prescriptive period of twenty years.

Therefore, this Court holds that he has established that he has an easement by prescription in the farm road crossing over the Banks’ property. Because this Court finds the [respondent] has an easement by prescription over the Banks’ land, there is no need for this Court to further examine [respondent’s] arguments that he alternatively has an easement by necessity or by implication over the Banks’ land.” The Banks timely appealed to the Court of Special Appeals and, after hearing argument, on December 13, 2005, the Court of Special Appeals issued an unreported opinion affirming the trial court’s decision. The Court of Special Appeals found that there was “legally sufficient evidence from which the [circuit] court could conclude the use [of the farm lane] was uninterrupted and exclusive for the prescriptive period.” In addition, as to the Circuit Court’s presumption that the use of the farm lane was adverse, the Court of Special Appeals addressed the Banks’ argument in opposition—that the use was permissive: “In an effort to show the use was permissive, [the Banks] produced evidence that [respondent] resided on the property with his father and step-mother for more than fifty years and that [the respondent ] acknowledged that he had permission. [The Banks] argue that these facts, along with the fact that [respondent] regarded this property as his home until he moved in 1995, is enough to establish that he resided with the permission of his parents. Moreover, [the Banks] argue, [respondent’s] use of the land was not inconsistent with the owners’ use, and thus, [respondent] is not entitled to a presumption of adversity.” ⁶⁹⁷ [Emphasis added].

The Court of Special Appeals, however, agreed with the Circuit Court that the Banks did not produce sufficient evidence to rebut the supposed presumption of adversity. Therefore, the Court of Special Appeals affirmed the Circuit Court’s decision, finding that respondent had an easement by prescription over the Banks’ property.

II

Standard of Review The case at bar was tried by the court without a jury, thus our standard of review is dictated by Maryland Rule 8-131 (c). Pursuant to Rule 8-131(c), we review the case on both the law and evidence. We give due regard to the trial court’s judgment of the witnesses’ credibility and will not set aside the judgment of the Circuit Court unless we find it to be clearly erroneous. Md. Rule 8-131(c).

The clearly erroneous standard, however, does not apply to legal conclusions. Garfink v. The Cloisters at Charles, Inc., 392 Md. 374, 383 , 897 A.2d 206, 211 (2006); Gray v. State, 388 Md. 366, 374 , 879 A.2d 1064, 1068 (2005). “ ‘When the trial court’s order “involves an interpretation and application of Maryland statutory and case law, our Court must determine whether the lower court’s conclusions are legally correct under a de novo standard of review.” ’ ” Gray, 388 Md. at 375 , 879 A.2d at 1068 (citing Nesbit v. GEICO, 382 Md. 65, 72 , 854 A.2d 879, 883 (2004) (quoting Walter v. Gunter, 367 Md. 386, 392 , 788 A.2d 609, 612 (2002))). Additionally: “[Discussing Maryland Rule 886, predecessor to Rule 8-131(c), the Court found that ‘it is equally obvious that the “clearly erroneous” portion of [the] Rule [ ] does not apply to a trial court’s determinations of legal questions or conclusions of law based upon findings of fact.’ Davis v. Davis, 280 Md. 119, 124 , 372 A.2d 231, 233 (1977) (citing Clemson v. Butler Aviation-Friendship, Inc., 266 Md. 666, 671 , 296 A.2d 419, 422 (1972)).” Garfink, 392 Md. at 383 , 897 A.2d at 211 . The issue raised in this case, whether a presumption of adverse use arises in favor of a person who uses a farm lane ⁶⁹⁸ for ingress and egress to the residence which he or she first occupied as a minor and continues to occupy jointly with his or her parents so as to establish—as against the parents and their successors in title—a basis for a prescriptive easement, is a legal question involving the interpretation of Maryland case law as it relates to prescriptive easements.

Therefore, we will review the issue de novo. In addition, whether the use of a right-of-way by the third-party invitees of a person with permission to use the right-of-way can constitute adverse use is a question of law, and shall be reviewed de novo.

III

Discussion The Circuit Court found that respondent had the right to use the farm lane in question under the theory of easement by prescription. We discussed easements by prescription in Jurgensen v. New Phoenix Atlantic Condominium Council of Unit Owners, 380 Md. 106 , 843 A.2d 865 (2004), where the Court stated: “An easement is ‘a nonpossessory interest in the real property of another.’ Boucher v. Boyer, 301 Md. 679, 688 , 484 A.2d 630, 635 (1984) (citing Condry v. Laurie, 184 Md. 317, 320 , 41 A.2d 66, 68 (1945)). An easement can be created expressly or by implication. Boucher, 301 Md. at 688 , 484 A.2d at 635 .

One type of easement by implication is an easement by prescription, which arises when ‘a party makes an adverse, exclusive, and uninterrupted use of another’s real property for twenty years.’ Kirby v. Hook, 347 Md. 380, 392 , 701 A.2d 397, 403 (1997). See also Condry, 184 Md. at 321 , 41 A.2d at 68 ; Cox v. Forrest, 60 Md. 74, 79 (1883). For the party’s use to be considered adverse, it must occur without license or permission. Kirby, 347 Md. at 392 , 701 A.2d at 403 ; Dalton v. Real Estate and Improvement Company of Baltimore City, 201 Md. 34, 41 , 92 A.2d 585, 588 (1952).

We have held that, ‘[a]s a general rule, permissive use can never ripen into a prescriptive easement.’ Kirby, 347 Md. at 393 , 701 A.2d at 404 ; see also Phillips v. Phillips, 215 Md. 28, 33 , 135 A.2d 849, 851 (1957).” ⁶⁹⁹ Jurgensen, 380 Md. at 122-23 , 843 A.2d at 874-75 (footnote omitted). In order to establish an easement by prescription a person must make an adverse, exclusive, and uninterrupted use of another’s real property for twenty years. “When a person has used a right of way openly, continuously, and without explanation for twenty years” it is fair to presume adverse use. Kirby, 347 Md. at 392 , 701 A.2d at 403 -04 (citing Condry, 184 Md. at 321 , 41 A.2d at 68 ). In such a case, “[t]he burden then shifts to the landowner to show that the use was permissive.” Kirby, 347 Md. at 392 , 701 A.2d at 403 -04 (citing Cox, 60 Md. at 80 ).

The burden, however, will not shift if the use appears to have been by permission, as discussed infra. Cox, 60 Md. at 79 ; Mavromoustakos v. Padussis, 112 Md.App. 59, 65 , 684 A.2d 51, 54 (1996), cert. denied, 344 Md, 718, 690 A.2d 524 (1997) (“The presumption applies in Maryland only when the use over the twenty-year period is ‘unexplained’— that is, when the claimant of the easement has used the property as he or she sees fit, without asking for or receiving permission to do so.”). Adverse Use In the case sub judice the parties do not dispute that the respondent made exclusive 5 and uninterrupted use of the farm lane for a period in excess of twenty years. The facts and testimony clearly show that respondent lived on what is now the Banks’ property from approximately 1939 when he was a minor until 1998 and from 1954-on he, and numerous third-party invitees of his, used the farm lane to access his 127-acre parcel of land.

The trial judge concluded that the witnesses’ “testimony convinced th[e] Court that [respondent’s] use of the farm lane in dispute was clearly ‘uninterrupted’ and ‘continuous’ for well over the statutory period of twenty years.” What is primarily disputed, however, is whether respondent’s use of the farm lane was adverse during the period of time that he resided with his parents on what is now the Banks’ property. If respondent’s use of the farm lane was ⁷⁰⁰ not adverse during the relevant period of time that he resided on his parents’ property then, even if arguendo the use became adverse once the Banks obtained the property, it would not satisfy the required twenty-year time period. 6 Respondent argues that there is a presumption of adverse use in the case sub judice because respondent used the farm lane openly, continuously, and without explanation for more than twenty years while residing with and on his parents’ property. The trial judge stated: “This Court has found ample evidence that [respondent] used this farm lane open and continuously for well over twenty years. Therefore, this Court affords [the respondent] the benefit of the presumption that his use of this lane was adverse, thereby shifting the burden of proving his use was permissive upon the Banks.” Respondent cited to several cases in support of this: Kirby, 347 Md. at 392 , 701 A.2d at 403-04 ; Shuggars v. Brake, 248 Md. 38, 45 , 234 A.2d 752, 757 (1967); Wilson v. Waters, 192 Md. 221, 227 , 64 A.2d 135, 137 (1949); Mahoney v. Devonshire, 86 Md.App. 624, 635 , 587 A.2d 1146, 1151 (1991); Forrester v. Kiler, 98 Md.App. 481, 485 , 633 A.2d 913, 915 (1993); Potomac Elec.

Power Co. v. Lytle, 23 Md.App. 530, 534-35 , 328 A.2d 69, 73 (1974); and Zehner v. Fink, 19 Md.App. 338, 344 , 311 A.2d 477, 480 (1973). The Court of Special Appeals agreed with the Circuit Court’s finding that the Banks did not produce sufficient evidence of permission to rebut the presumption of adverse use. While we recognize that a presumption of adversity may possibly arise under some circumstances; such a presumption will not arise if the use of the farm lane appears to have been by permission. Cox, 60 Md. at 79 .

The Court discussed adverse use—as it relates to prescriptive easements—in Cox over a century ago, stating: ⁷⁰¹ “By adverse is meant a user, without license or permission, for an adverse right of an easement cannot grow out of a mere permissive enjoyment, the real point of distinction being between a permissive or tolerated user, and one which is claimed as a matter of right. Where one, however, has used a right of way for twenty years unexplained, it is but fair to presume the user is under a claim of right, unless it appears to have been by permission. In other words, the use of a way over the lands of another whenever one sees fit, and without asking leave, is an adverse use, and the burden is upon the owner of the land, to show that the use of the way was by license or contract inconsistent with a claim of right.” 60 Md. at 79-80 (citations omitted) (bold emphasis added). The presumption of adverse use will not arise if the use of the land appears to have been by permission.

As the Court stated in Cox , “the real point of distinction being between a permissive or tolerated user, and one which is claimed as a matter of right.” 60 Md. at 79 . Respondent argued below and argues here that he did not live on his parents’ property from 1939 through 1998 with their permission or tolerance, only with their acquiescence. Black’s Law Dictionary defines a “presumption” as “[a] legal inference or assumption that a fact exists, based on the known or proven existence of some other fact or group of facts.” Black’s Law Dictionary 1223 (8th ed.2004). Logic dictates that a presumption of adverse use is created only when there is an absence of any evidence which would indicate that the respondent had the permission of his parents to use the farm lane for access to his 127-acre parcel.

Or, phrased another way, it is only when no appearance of permission permeates the record, that a presumption of adverse use will arise. In the absence of such a presumption of adverse use, the burden of establishing such use is on the party claiming it. This is supported by the general rule that the creation of an easement by prescription is not favored by the law. 3 Herbert T. Tiffany, The Law of Real Property, § 796 (3d ed.1939, 2006 Supp.); Elder v. Northwest Timber Co., 101 Idaho 356 , ⁷⁰² 358, 613 P.2d 367, 369 (1980); Engel v. Rhen Marshall, Inc., 206 Neb. 265, 269-70 , 292 N.W.2d 307, 310 (1980); Williams v. Harrsch, 297 Or. 1, 6 , 681 P.2d 119, 122 (1984); Wiegand v. Riojas, 547 S.W.2d 287, 289 (Tex.Civ.App.1977). At trial, the Banks argued that respondent’s use must have been permissive under the circumstances, i.e., that he lived with his father and step-mother, on their property, and that his father had deeded the 127-acre parcel to him, yet he continued to reside on what is now the Banks’ property with his family in the family home.

This is an admission that his presence on the farm was with his parents’ permission. In other words, making use of the language in Cox , respondent’s use of the farm lane appeared to have been by permission. 60 Md. at 79 . The Circuit Court dismissed this argument, relying on several cases to argue that the circumstances of the case sub judice do not indicate that respondent’s use of the farm lane was permissive. We disagree, finding the cases which the Circuit Court and respondent rely upon to be distinguishable from the factual circumstances extant in this particular case. 7 The Circuit Court first looked to Dalton v. Real Estate and Improvement Co. of Baltimore City, 201 Md. 34 , 92 A.2d 585 (1952).

Similar to the case sub judice, Dalton concerned the use of a right-of-way. The appellee, the servient owner, argued that the “use of a right of way will be deemed ⁷⁰³ permissive where the use is by members of a family holding contiguous tracts.” Id. at 44 , 92 A.2d at 590 . The Court referred to its previous holding in Lichtenberg v. Sachs, 200 Md. 145 , 88 A.2d 450 (1952)—where a familial relationship argument was also made—stating that, “in such circumstances, whether the user is permissive or adverse would be properly determined by reference to all of the circumstances of the case and more particularly the character and location of the way or place of passage.” Dalton, 201 Md. at 45 , 92 A.2d at 590 (emphasis added). In addition, the Court found that “[m]ost of the cases cited by the appellee on the point that use of a family road will be presumed to be permissive are decided on the point that the facts in the particular case control, and that the relationship of the paiiies and the mutuality of user are but facts to be considered with other facts.” Id.

(emphasis added). Dalton involved a large tract of land on which three sisters lived during a life estate of their father. All three sisters lived with their father with his permission in the family home on the property. 8 Upon their father’s death the property was partitioned into three separate parcels—one for each daughter. The case arose out of the claim by one of the sisters of a prescriptive easement over one of the other sister’s parcel of property.

As stated supra, the sister who owned the servient parcel asserted that use of a right-of-way should be deemed permissive when such use is between family members. The Court, however, found that: “The use of [the right-of-way] by Mrs. Dalton when she was a co-tenant was as of right.[ 9 ] If, as we assume, there was no intention of the sisters [at the time of partition] to ⁷⁰⁴ convey a right to the road by their deed, then after it the use by Mrs. Dalton must have been adverse because there is nothing in the case to show or suggest that she was ever given permission by [the appellee—the sister owning the servient property], and nothing indicating that until well after the prescriptive period had run, any denial of a right to use the road was made to Mrs. Dalton by anyone. Mere failure to protest is not permission but acquiescence. Tiffany, work cited, Section 1196.

In Alstad, v. Boyer [, 228 Minn. 307 , 37 N.W.2d 372 (1949) ] ... the Court expressed it as follows [ ]: Acquiescence is the inactive status of quiescence or unqualified submission to the hostile claim of another, and is not to be confused with permission, which denotes a grant of permission in fact or a license.’ See also Burnham v. Burnham, [ 130 Me. 409 , 156 A. 823 (1931) ]. There is no evidence that Mrs. Dalton has even given or evidenced recognition that her sister or the appellee had a right to put an end to the use of [the right-of-way]. Under the circumstances there is nothing to rebut the usual presumption that the open, uninterrupted and exclusive use of [the right-of-way] since 1909 by Mrs. Dalton was adverse. Since the appellee has not met its burden of showing that it was otherwise, we find that the appellant has the prescriptive right to use [the right-of-way] on the land of the appellee.” Dalton, 201 Md. at 49-50 , 92 A.2d at 592-93 .

As is clear, Dalton is distinguishable factually from the case sub judice. During the brief period when the sisters were co-tenants of the fee, the use of the disputed right-of-way was by right. It was not until the land was partitioned that the use of