Bassett v. Harrison

KRAUSER, Judge. This case involves a dispute between neighboring landowners, the Harrisons and the Bassetts,' over the existence, use, and partial relocation of a right-of-way, known as “Woods ⁶⁰³ Road,” over the Harrisons’ property. That dispute led Hale Harrison, John H. Harrison, and Helen Harrison Faucette to file suit in the Circuit Court for Worcester County against Robert J. Bassett and his wife, Connie L. Bassett, to enjoin the Bassetts from using the right-of-way to haul sand and gravel from a borrow pit 1 on their property to a public highway and from using the “relocated” westerly portion of that right-of-way for any purpose whatsoever. Following a bench trial, the circuit court rendered a decision that disappointed both sides.

On the one hand, the court held, to the Harrisons’ dismay, that the Bassetts had a right to use Woods Road and had acquired a prescriptive easement in the “relocated” westerly portion. On the other hand, it declared, to the Bassetts’ dismay, that they could only use the relocated portion for personal and agricultural purposes and that the rest of Woods Road served only that portion of their property that had been conveyed in the deed that had created the right-of-way. Cross-appeals followed. On appeal, the Bassetts present four issues, which we have set forth below as they appear in their brief: I. Whether a right-of-way for an access road has been relocated onto a separate parcel of land if for many years, during which that land and the initial servient estate were under common ownership, the relocated portion of the road was used for access to the dominant estate and the original roadway has been abandoned.

II

Whether by alleging in the initial and amended complaints that a right-of-way has been moved onto his property its owner has admitted that the right-of-way has been relocated onto his property.

III

Whether a right-of-way granted without any limitation of its usage may be used for hauling sand and gravel if that usage does not adversely affect the servient estate. ⁶⁰⁴ IV. Whether a prescriptive easement based upon prior usage by trucks and other vehicles for farm operations and general access may be used by trucks for another purpose if the servient estate is not affected by such additional usage and its owners allow a third party to engage in similar usage of the roadway. On cross-appeal, the Harrisons present two questions: V. Did the trial court err when it granted appellants a prescriptive easement across the relocated portion of the right-of-way when there was no evidence that appellants’ use was adverse?

VI

Did the trial court err when it granted appellants a prescriptive easement across the relocated portion of the right-of-way when appellants never pled a cause of action for prescriptive easement? For the reasons that follow, we shall affirm the judgment of the circuit court. Background The Harrisons own a farm, known as the “Birch Farm.” 2 Their neighbors, the Bassetts, own a 72 acre parcel of land that was originally acquired by William D. Bassitt 3 from the Harrison family in 1913. In the 1913 deed transferring ownership from Orlando and George Harrison and their wives to Bassitt, a right-of-way (Woods Road) was granted to Bassitt across the Harrisons’ farm (Birch Farm).

A dispute between the parties over the existence, present location, and permitted ⁶⁰⁵ use of the right-of-way is the subject of this case. To describe that right-of-way, we shall divide it into three segments as the parties did below and rely on the drawing reproduced in appellants’ brief at “App. 1,” which we have attached to this opinion. The right-of-way at issue, known as Woods Road, runs east and west, across the Harrisons’ Birch Farm for one mile until it reaches U.S. 113, which runs north and south. Segment 1 is the easterly portion of that road.

It consumes all but the last 600 feet of Woods Road up to U.S. 113. The last 600 feet, the westerly portion of the road, is Segment 2. These two connected segments constitute “Woods Road” and the total right-of-way granted William Bassitt in the 1913 deed. At some point, Segment 2, the last 600 feet of Woods Road before it connects with U.S. 113, was abandoned in favor of Segment 3 which runs from Segment 1, the easterly portion of Woods Road, at about a thirty degree angle and in a southwesterly direction, crossing the northern tip of a parcel of land called the Evans lot 4 until it reaches U.S. 113.

Although the use of the entire right-of-way to haul sand and gravel is in dispute, much of our discussion will focus on Segment 3 as that is the principal source of disagreement between the parties. As noted, in 1913, Orlando Harrison, George Harrison, and their wives conveyed, by deed, 72 acres of their land to Bassitt, who, at that time, owned several acres of adjacent farm land. That deed also granted Bassitt the right to use Woods Road, which he and his successors-in-interest did, transporting farm and domestic goods and equipment over it. Prior to 1938, Segment 2, the 600 foot westerly portion of Woods Road, was abandoned, and Segment 3, a southwesterly route to U.S. 113, crossing the Evans lot from Segment 1, came into use.

At trial, the Harrisons’ real estate expert testified that, at that time, the Birch Farm and the Evans lot ⁶⁰⁶ were under different ownership. He further opined that, from the date that the 72 acre parcel of land was conveyed by the Harrisons to William D. Bassitt in 1913 until a foreclosure sale in 1944, the two properties were, for the most part, under different ownership. The Bassetts disagreed. They contended at trial that title reports of the Harrison heirs showed that the Birch Farm and the Evans lot were under common ownership or at least “substantially” under common ownership “for almost 50 years” before the Harrisons conveyed the Evans lot to Andrew Evans and his vafe.

Those title reports, the Bassetts claimed, showed that from 1917 to 1929 both properties were owned by Orlando Harrison or George H. Harrison or their relatives and devisees. Then, in 1929, G. Hale Harrison became the owner of a two-thirds undivided interest in the Birch Farm and a co-owner of the Evans lot in partnership with his two brothers, Henry L. Harrison and John L. Harrison, trading as the “Harrison Brothers Partnership.” Since the relocation of the westerly portion of the right-of-way, Woods Road has been used for sundry purposes. The Harrisons have used the road for fanning and agricultural purposes and as access to a borrow pit that their “family used in the '50s and '60s.” Their neighbor, Randy Hastings, presently uses it, with their permission, to haul sand and gravel from his farm across Woods Road. The Bassetts have also used the right-of-way to obtain access to their property and have done so for many years.

Floyd Bassett testified that he used the Woods Road for hunting with other members of the Bassett family during the 1940’s and 1950’s. Moreover, Clive Bassett, appellants’ father, who owned the farm from 1947 until his death, fanned the land and used the road for that purpose. Amd Connie Bassett testified that, beginning in the early 1960s, the Bassetts continued to use the road to haul grain and feed to or from the entire farm. While the Harrisons acknowledge that the Bas-setts have used the road for such purposes, Hale Harrison testified that they were unaware that the Bassetts were ⁶⁰⁷ considering using the right-of-way to haul sand and gravel until 2000 “when the Bassets filed for a borrow pit application.” On October 10, 2000, the Harrisons filed the action now before us.

As noted, the circuit court subsequently held that the Harrisons had granted the Bassetts a right-of-way across their property, the Birch Farm, but it was intended to serve only the 72 acres acquired by William D. Bassitt in 1913 and not rest of their the property, where the borrow pit was located. The court also held that the Bassetts had acquired a prescriptive easement 5 across the Evans lot (Segment 3) and that this prescriptive easement was limited to the right acquired during the prescriptive period to transport domestic and agricultural goods and equipment, and did not include “the right to pass and re-pass with trucks transporting sand and gravel.” The court thereafter issued a written order declaring the rights and obligations of the parties consistent with its ruling, whereupon the parties filed cross-appeals. Discussion I. The Bassetts contend that the circuit court erred in holding that the Harrisons could not have acquiesced in and consented to the relocation of the westerly portion of the right-of-way because the Harrisons’ farm, known as the “Birch Farm,” and the Evans lot were under different ownership or, as the circuit court put it, there was “no unity of title” between the two properties. Challenging that conclusion, the Bassetts maintain that from 1917 until 1963 “the Evans lot and the Birch Farm were in substantially common (or identical) ownership.” Consequently, they assert that a “consensual change” in the location of the westerly portion of the right-of-way could and did occur.

We disagree. ⁶⁰⁸ The circuit court correctly held that the Harrisons, as owners of the Birch Farm, could not have consented to the “relocation” of the right-of-way because there was no identity of ownership between Birch Farm and the Evans lot at the time of the relocation. The relocation, the parties agree, occurred sometime between 1913 and 1938. But neither side could pinpoint when, during that twenty-five year period, that happened. What is certain is that, from 1913 to 1917, the Harrisons had no ownership interest in the Evans lot.

At that time, it was owned by the Henry family. Unfortunately, after that, the record of ownership for both properties becomes a bit murkier. The Bassets claim that, from 1917 until 1929, both properties were owned by Orlando and George Harrison. But the Harrisons disagree.

They claim that, from 1913 to 1944, the properties were under different ownership. At trial, their real estate expert, Harold B. Gordy, Jr., testified that he believed, having completed a chain of title for the Birch Farm, that from 1929 to 1944 the ownership of the two properties differed. The record does not disclose, however, whether the circuit court accepted or rejected the Bassetts’ claim that at least from 1917 until 1929 the properties had identical ownership. But that does not matter because the circuit court did not find, as the Bassetts suggest, that there was never a common ownership of the two properties; it found only that there was no proof of common ownership “at the time of the relocation.” Given that neither side could state when, between 1913 and 1938, the relocation occurred, that finding was sound.

For if relocation happened before 1917, the year that the Bassets claim common ownership of both properties began, or after 1929, the year that it purportedly ended, no “consensual change” in the location of the westerly portion of Woods Road could have occurred. And since the Bassetts, as the parties claiming the easement across the Evans lot, had the burden of proof, the circuit court was correct in concluding that they had failed to meet that burden and, therefore, that there was no basis upon which to find a “consensual change” of location. ⁶⁰⁹ As an alternative to its claim of identity of ownership, the Bassetts introduce a theory of “common ownership,” which has no basis in Maryland law but, as we shall see, is not entirely without legal antecedents: they claim that they should have prevailed on their consensual relocation claim because during the period in which the relocation occurred, sometime between 1913 and 1938, the two properties had,, if not identical ownership, at least “substantially common ownership” and that, according to the Bassetts, is enough to support their claim. To establish “substantially common ownership” of the two properties during the critical 1913 to 1938 period, the Bassetts tack onto the period of from 1917 until 1929 when, they claim, the properties shared the same ownership, the years from 1929 until 1944 when Harrison Nurseries, Inc. owned both the Evans lot and a one half interest in the Birch Farm. This stratagem allows them to claim that, from at least 1917 to 1944, if not beyond, there was “substantially common ownership” of the two properties to support their claim of a consensual relocation of the westerly portion of Woods Road.

But while urging this Court to adopt this standard of common ownership and insisting that the circuit court’s “thesis that there must be absolute congruence (‘unity’) of record title is erroneous,” they fail to cite a single legal authority in support of their position. Moreover, the standard they ask us to adopt is no more rooted in logic than it is in law. By adopting such a standard, we would be exchanging a clear and certain standard, easily applied and ensuring uniformity of results, for an ambiguous and problematic standard, which replaces reasoned and predictable outcomes with arbitrary decisions as to when the shifting ownership of two properties reaches the level of “substantially common ownership.” This is one burden we cannot justify imposing on our trial courts. But even under such a standard, the Bassets’ claim of consensual relocation fails.

The shareholders of a corporation do not own the property of a corporation; the corporation ⁶¹⁰ does. Humphreys v. McKissock, 140 U.S. 304, 312 , 11 S.Ct. 779 , 35 L.Ed. 473 (1891) (ownership of property “is in the corporation, and not in the holders of shares of its stock”); see also Gibbons v. Mahon, 136 U.S. 549, 557 , 10 S.Ct. 1057 , 34 L.Ed. 525 (1890)(the “property of a corporation is not subject to the control of the members, whether acting separately or jointly”). Consequently, whether or not members of the Harrison family were shareholders of Harrison Nurseries, Inc., the ownership of the Evans lot by that corporation cannot be imputed to them, as stockholders, and therefore the Birch Farm and the Evans lot cannot arguably be said to have been even under substantially common ownership during much of the period when the relocation is said to have occurred. Finally, as noted earlier, the Bassetts’ “substantially common ownership” theory is not entirely without legal antecedents.

The appropriateness of such a standard, in one form or another, has been considered by other state courts in other contexts. Some have adopted it, see, e.g., Barnes v. North Carolina State Highway Commission, 250 N.C. 378 , 109 S.E.2d 219 (1959)(there must be “substantial unity of ownership” to collect severance damages in an eminent domain proceeding), but the majority have not. See, e.g., Stockton v. Ellingwood, 96 Cal.App. 708 , 275 P. 228 (1929)(unity of ownership is required for allowance of severance of damages); Coatsworth v. Lehigh Valley R. Co., 73 Misc. 645 , 131 N.Y.S. 300 (1911)(there must be identical ownership to recover severance damages). Illustrative of the majority view is Weldon v. State, 495 So.2d 1113 (1985).

In that case, the Court of Civil Appeals of Alabama rejected what it felicitously called the “substantial unity of ownership” standard in the context of a condemnation proceeding. In Weldon , the State of Alabama sought to acquire, for a highway, a strip of land that crossed three parcels of property. The three parcels, in conjunction with two others, had been used “as a single farming unit for more than forty years” and then deeded by the owner to his children. Id. at 1114 .

As the owners of those parcels would receive greater compensation ⁶¹¹ for their loss if “the entire unit” was viewed “as a single tract of land,” they argued that unity of ownership did not require that each of them have the same interest in all parts of the tract. Noting that the “apparent majority of jurisdictions require that the ownership interests in each parcel must be identical in both quality and quantity, before the parcels may be claimed as a single unit,” that court rejected the “substantial unity of ownership” argument in favor of a “strict unity of ownership” standard. Id. at 1115 . The court’s reasoning in doing so is not unlike the reasoning underlying the result we reach today.

It stated: Strict unity of ownership has at least one clear advantage over the other and minority views. The rule provides a “bright-line test” that can be very easily and uniformly applied by trial judges in all cases. The other views necessitate an ad hoc approach to the law. In our review of the existing law, we could find no definitive explanation of what is meant by the phrase “substantial unity of ownership.” We do not ascertain any clear way of determining in which cases a court may find that unity of ownership is necessary and in which it is not necessary.

Id. at 1116 . The Court concluded: [I]t is evident that the lots of land in this case constitute distinct and separately owned tracts. Though the current owners of each parcel derived title from a common grantor, the affected parcels are now owned primarily by different persons. As such, the owners’ argument that the parcels must be tried as a single unit must fail.

Id. Having failed to establish the condition precedent of their consensual relocation claim — common ownership of the dominant and servient estates — the Bassetts, undaunted, cite Greenwalt v. McCardell, 178 Md. 132 , 12 A.2d 522 (1940), for the proposition that the Harrisons could and did consent by acquiescence to the relocation of the westerly portion of Woods Road. In that case, Greenwalt filed a complaint for ⁶¹² injunctive relief to restrain neighbors from using a portion of a private roadway running through his property to a public road. That property had been acquired by Greenwalt from Edgar and Clara Lines, who owned a much larger neighboring farm.

The Lines’ farm had a private road running through it. When the Lines conveyed part of their farm to Greenwalt, the deed also granted him the right to use the roadway “ ‘as means of ingress and egress to and from the land hereby conveyed’ ” to the public road. Id. at 135 , 12 A.2d 522 . At that time, neighboring property owners, the McCardells, were also granted a right-of-way in the same private road.

As a result of substantial rain damage to the roadway, Greenwalt “dug ‘back into the bank’ a distance of about four feet to ‘seek more of level and get away from the ravine.’ ” Id. at 136 , 12 A.2d 522 . Unknown to him, his efforts to mend the roadway had resulted in the relocation of a portion of the roadway onto his property so that when the McCardells’ used the roadway, they passed over Greenwalt’s property. To end what he considered to be trespassing by the McCardells, Greenwalt filed suit to enjoin the McCardells from using the portion of the roadway that was now on his property. The circuit court dismissed his complaint.

Affirming that decision, the Court of Appeals held: [T]he assertion of [Greenwalt] that he had shifted the roadbed for his convenience does not have the effect of making the [McCardells] trespassers. After an easement has been established, its location should not be changed by either party without the other’s consent. But if a way has been slightly and not materially changed, and the owner of a dominant estate has used it for several years, his acquiescence will be presumed; and the changes do not invalidate the rights of the persons who are entitled to use the way. Id. at 137 , 12 A.2d 522 .

In Greenwalt , unity of ownership was not at issue. In that case, the question was not whether consent by acquiescence to an easement relocation could have been given, as in the instant case, but whether, in fact, it was. Therefore, the Court of ⁶¹³ Appeals, in that case, addressed only the question of when the conduct of a property owner does constitute such consent. It declared that acquiescence will be presumed only if the right-of-way “has been slightly and not materially changed, and the owner of [the] dominant estate has used it for several years.” Id. at 137 , 12 A.2d 522 .

But that is not what occurred here. In contrast to Green-wait, where the shift in the location of the right-of-way was a mere four feet and no change in its traditional use was requested or even contemplated, at issue here is a two hundred foot shift in location and a demand for a significant change in use: hardly a “slight” and “immaterial” change in location and use. Consequently, Greenwalt not only presents a different issue than the instant case does, but a different and distinguishable set of facts as well. Indeed, if it offers any precedental guidance at all here, it is to suggest, by negative