Baugh v. Arnold

Pattison, J., delivered the opinion of the Court. This is an action brought by the appellee against the appellant to recover for damages for the obstruction of an alleged right of way of the plaintiff over the lands of the defendant. At the conclusion of the plaintiffs testimony the defendant offered a prayer ashing the Court to take the case from the jury. This was refused, and at the conclusion of the defendant’s testimony the prayer was renewed and was again refused, and the evidence being submitted to a jury, a verdict was rendered for the plaintiff, upon which judgment was entered.

One of the questions raised by this appeal is, does the evidence of the plaintiff, corroborated as it is by the evidence of the defendant, show an abandonment and extinguishment of the easement. After a careful examination of the evidence and the law applicable thereto, it is our opinion that the right of way of the plaintiff, if it ever existed, has been extinguished by its non-user for a prescriptive period united with an adverse use of the servient estate inconsistent with the existence of the alleged easement. The law as established in this State, Canton Co. v. Baltimore City, 106 Md. 69 , and elsewhere is, that the mere nonuser of an easement even for more than twenty years will not afford a conclusive evidence of abandonment, but such non-user for a prescriptive period united with an adverse use of the servient estate inconsistent with the existence of the easement will extinguish it. Washburn on Easements, sections 551-2; 14 Cyc. 1195; 10 A & E. Ency. of Law, 436; Woodruff v. Paddock, 130 N. Y. 618 ; Matter of New York, Etc., 73 N. Y. App. Div. 394; Smyles v. Hastings, 22 N. Y. 224 ; Smith v. Langewald, 140 Mass. 205; Spackman v. ⁸ Steidel, 88 Pa.

St. 453; Horner v. Stillwell, 35 N. J. L. 307; Bentley v. Root, 19 R. I. 205; McKinney v. Lanning, 139 Ind. 170 ; Lathrop v. Elsner, 93 Mich. 599 ; Louisville & N. R. R. Co. v. Quinn, 94 Ky. 310 . The right of way in this case is claimed by the plaintiff under a grant dated the 19th day of November, 1853, from one Elijah R. Arnold, the then owner’ of the servient estate, to one Levi Sheckells, the owner at such time of the dominant estate, as claimed by the plaintiff, whereby the grantor therein conveyed unto the grantee “his heirs and assigns, the right and privilege of the original road through his (the grantor’s) farm lying in Anne Arundel county that leads to Chaney’s Creek.” The grant by which Sheckells became the owner of 'the dominant estate, if there was a dominant estate, is not in evidence, but by a deed executed on the 23rd day of October’, 1877, by Ann M. Insley and Caroline E. Sherbert, the only children and heirs at law of Sheckells, certain lands therein described, said by the defendant to> have been the dominant estate, were granted to Thomas H. Arnold, the grantor of the plaintiff; and in said deed reference is made to the fact that the land thereby conveyed “was a part of the same land that is described in a deed executed on the 19th day of November, 1853, by E. R. Arnold and wife to Levi Sheckells,” and recorded among the Land Records of Anne Arundel County in Liber N. H. G. No. 2, folio 626, etc.; and in this deed were granted to Thomas H. Arnold the right and ways, etc., appurtenant i» the lands so conveyed “especially the right of way granted to the said Levi Sheckells and assigns by deed from E. R. Arnold dated the 19th day of November, 1853, ánd recorded among said Land Records in Liber N. H. G. No. 2, folio 630. The lands mentioned in the deed from Ann M. Insley and Caroline Sherbert to Thomas H. Arnold wean thereafter conveyed on the 23d day of February, 1885, by the said Thomas H. Arnold unto his son - Alton R. Arnold, the plaintiff, together with the ways, appurtenances and advantages thereto ⁹ belonging. In this deed, however, no special reference is made to the right of way granted on November 19th, 1853, by Elijah R. Arnold 1» Levi Sheckells, nor was special reference thereto necessary to convey such right had it existed at such time.

The failure-to mention it specially is referred to only as reflecting upon the fact whether or not at such time it existed. The plaintiff, when on the stand, located upon the lands ■of the defendant the right of way mentioned and described in the grant from Arnold to Sheckells dated November 19th, 1853, as “the original road” through the farm at that time owmed by Elijah R. Arnold, the grantor, and at the request of the defendant located the said right of way upon a plat, a reduced fac simile of which is given below. ¹⁰ Tiie original road as located by him is designated on said plat as A, B, C, D, E. The point A is on the county road at or near the present entrance of the defendant’s property,, and is the place at which the obstruction complained of is located, and the