Beck v. Mangels

CATHELL, Judge. Appellees, Roger N. Mangels and Alice B. Mangels (Mangels), filed a complaint for declaratory relief in the Circuit Court for Kent County, asking the court to declare that, as dominant tenants, they possessed an easement over and through the property of the servient tenants, appellants, William S. Beck and Pauline G. Hand 1 (Beck). The trial court found that an easement of necessity had been created in 1931, that it was not extinguished by a subsequent conveyance of additional property to Mangels’s predecessor in title, that the parties had consented by acquiescence to a relocation of the way in 1948, and that the present right-of-way should be a total of fifteen feet in width. Appellant poses eleven questions in the form that follows: 1.

Will this Appellate Court overturn at least 125 years of law in this State concerning easements by necessity by affirming the trial court’s decision? 2. Was it reversible error for the trial court to utilize criteria applicable to prescriptive easements rather than easements by necessity in this case, if in fact an easement by necessity existed? ¹⁴⁸ 3. Was it reversible error for the trial court to enlarge an undisputed eight (8) foot wide road to a greater width? 4. Was it reversible error for the trial court to permit the Appellees to place macadam or concrete along the road when it had never been so improved in the past? 5.

Was it reversible error for the trial court to provide for a road that would permit vehicles larger than those in existence in 1931 to service Appellees’ property? 6. Was it reversible error for the trial court to not make findings of fact as to what permission, if any, was given to the Appellees by the Appellants; whether the Appellee stated to the witnesses Shivery and Wilson at the time of the sale that the Appellee knew he had no right of way, except by permission; and whether or not the witnesses, Bramble and Shivery, heard the Appellee request permission to use the said lane shortly after the sale? 7. Was it reversible error for the trial court to fail to state the evidence it relied on in rendering the opinion as to the size of the trees in 1931? 8. Was it reversible error for the trial court to fail to interpret the meaning of the language in the second 1931 deed “extending from the land of Martenet to the public road”? 9.

Was it reversible error for the trial court to fail to state the evidence it relied on in determining that Martenet began using the Beck lane in 1947/48, particularly in light of the testimony of Bramble, Beck, Shivery and Wilson? 10. Was it reversible error for the trial court to fail to state the evidence the court relied on in making a finding that Beck and Hand agreed to transfer the servitude from the Bramble property to the Beck/Hand property and when it occurred? 11. Was it reversible error for the trial court to fail to state what evidence it relied on in determining that the “construction of a road would have been extremely expensive in 1931”? ¹⁴⁹ With respect to questions 6, 7, 9, 10, and 11, Beck objects to what he perceives to be the trial court’s failure to state in its opinion the evidence it relied on to support its findings, not that the findings are wrong. In question 8, Beck asks whether it was reversible error for the trial court to “fail to interpret” certain language when it rendered its opinion.

Neither in his brief, nor at oral argument, did Beck offer any substantial argument supporting his position on these specific questions. Md.Rule 8-504(a)(5) requires a party to present “argument in support of the party’s position.” See also Bond v. NIBCO, Inc., 96 Md.App. 127, 137 , 623 A.2d 731 (1993); Monumental Life Ins. Co. v. United States Fidelity and Guar. Co., 94 Md.App. 505, 544 , 617 A.2d 1163 , cert. denied, 330 Md. 319 , 624 A.2d 491 (1993); Holiday Universal Club, Inc. v. Montgomery County, 67 Md.App. 568 , 570 n. 1, 508 A.2d 991 , cert. denied, 307 Md. 260 , 513 A.2d 314 , appeal dismissed, 479 U.S. 1049 , 107 S.Ct. 920 , 93 L.Ed.2d 973 (1986), and Federal Land Bank of Baltimore, Inc. v. Esham, 43 Md.App. 446, 457 , 406 A.2d 928 (1979), where we said that the above “provisions are mandatory and, therefore, it is necessary for the appellant to present and argue all points of appeal in his initial brief____ [0]ur function is not to scour the record for error once a party notes an appeal and files a brief.” (Emphasis added.) We further commented, “In prior cases where a party initially raised an issue but then failed to provide supporting argument, this Court has declined to consider the merits of the question so presented but not argued.” Esham, 43 Md.App. at 457-58 , 406 A.2d 928 .

Accordingly, we shall not directly address the questions discussed above. We do note that many of the questions may be answered as we address those issues that were properly presented by appellants. Likewise, we shall not respond to question 1, as it is an inappropriate question. Our function is to address the actions of the trial court in order to determine whether it erred.

Should we err, the question can be presented to higher authority. We are thus left with four questions—2, 3, 4, and 5—to resolve directly. In order to address these questions, it ¹⁵⁰ is necessary to determine whether the trial court correctly found that a way by necessity existed in the first instance. We shall first discuss those facts we deem necessary to resolve the issues.

The Relevant Facts In 1931, when both the dominant and servient estates in the case at bar were in unity of title, a common title predecessor to both appellants and appellees, Gale, conveyed from his tract of land formerly known as Gresham College a tract to appellees’ predecessor in title, the Martenets. At that time, there was no explicit easement of access from the Martenet parcel over the remaining Gale parcel to the public road (Tolchester Road). The Martenets then used a way across a portion of the Gale land, in a northerly direction sometimes referred to by the trial court as the Martenet Branch, 2 to a road on the remaining Gale parcel referred to as “Gale lane” and then over “Gale lane” to access the public road. Several months later, Gale conveyed to the Martenets a thirty foot wide strip of land along the irregular southern or western boundary of the original tract, running from the property originally conveyed to the public road.

This second conveyance occurred on December 24, 1931. At the time of this second conveyance, no mention was made of the Martenets’ rights concerning the use of the Martenet Extension and Gale lane. The thirty foot strip has never been improved and apparently during the time relevant to this case has been overgrown in a forest. It is composed in substantial part of wetlands.

In November of 1937, Gale conveyed a large tract of land to William A. Beck. The northerly property line of this Beck tract was parallel with and ten feet distant from the center line of Gale lane. This tract ran from the public road to the bay and separated the Martenet property along the Marten ¹⁵¹ ets’ northerly property line from Gale lane and the balance of the Gale property. As to the Martenet Extension, if it was a way of necessity, the Beck tract was, even then, the servient estate with the Martenet tract being the dominant estate.

The remainder of the Gale property lying north of the Beck off-conveyance was conveyed to others and subsequently to David Bramble and is now called the Bramble tract. The present suit by the Mangelses (the Martenets’ successors in title) does not claim any easement over the Bramble tract. Accordingly, we shall only address that tract from time to time as necessary. Around 1948, Bramble’s predecessor, Campbell, noticed that Gale lane was deteriorating.

At that point, both Campbell and Beck were successors to the original servient estate. Gale lane was on the Campbell/Bramble property, and abutting the Beck property. Because Gale lane had deteriorated, Mr. Beck had a lane constructed abutting on his northerly property line and Gale lane. It was approximately fifteen feet south of the center line of Gale lane. 3 It was referred to below as the “Beck lane.” We attach to our opinion as our Exhibit A a not to scale drawing of the locations of the various tracts indicating the approximate position of the various property lines, lanes, strips, and ways.

We have prepared it from several exhibits attached to the trial court’s opinion. After Beck lane was constructed, the Martenets began to use it for ingress and egress to their property. When the Mangelses inspected the property prior to its purchase in 1963, they utilized the Beck lane. The Mangelses have continued to use Beck lane and have incurred expenses in maintaining both the Martenet Extension and Beck lane since.

We shall address other relevant facts as we address the issues necessary to resolve this appeal. ¹⁵² Declaratory Relief In an action properly brought under the Declaratory Judgments Act, the court ordinarily must declare the rights of the parties in light of the issues raised. Jennings v. Gov’t Employees Ins. Co., 302 Md. 352, 355 , 488 A.2d 166 (1985). In Robert T. Foley Co. v. Washington Suburban Sanitary Comm’n, 283 Md. 140, 155 , 389 A.2d 350 (1978), a case in which the trial court failed to declare whether certain resolutions were valid, the Court of Appeals, quoting from its earlier case of Dart Drug Corp. v. Hechinger Co., 272 Md. 15, 29 , 320 A.2d 266 (1974), stated: “While a declaratory decree need not be in any particular form, it must pass upon and adjudicate the issues raised in the proceeding, to the end that the rights of the parties are clearly delineated and the controversy terminated.” See also Donnelly Advertising Corp. v. Mayor and City Council, 279 Md. 660, 672 , 370 A.2d 1127 (1977).

In the case sub judice, the plaintiffs (appellees here) prayed: 1. That the Plaintiffs be granted a Declaratory Judgment determining that Plaintiffs and their successors in title and interest have an easement appurtenant to their property over and through the property of the Defendants. We presume that appellants responded by asking the court not to make that declaration. 4 Judge Price, in an extensive, well-reasoned opinion, found certain facts and declared certain rights. We include here those we deem pertinent to our decision.

The Martenet/Mangels property adjoined the Chesapeake Bay, but it did not touch any public road. The deed by which the property was conveyed contained no express grant of easement for ingress and egress. The parties agree that an easement by necessity was thus created on August 31, 1931 over a portion of the remaining ¹⁵³ lands of Gresham College to allow ingress and egress to and from the Martenet/Mangels property.... [5] The Martenets therefore accessed their property by travelling in a westerly direction up the farm lane which serviced the Gale farm house, hereinafter referred to as the “Gale lane,” to a point approximately 800 feet from the Chesapeake Bay. They then created a new lane in a southerly direction to their property, hereinafter referred to as the “Martenet branch.” [We refer to it as the Martenet Extension.] On December 24, 1931, almost four months after the initial conveyance to the Martenets, J. Page Gale conveyed to the Martenets, from his remaining acreage, a strip of land 30 feet in width, parallel with, contiguous to, and north of the division line between Hinchingham Farm and Gresham College, extending from the Martenet/Mangels property to Maryland Route 445....

This 30 foot wide strip is over a mile long and consists of 3.497 acres, more or less, most of which was, and still is, forest. There is no evidence that there has ever been an attempt to use this strip as an access road to the Martenet/Mangels property.... In approximately 1948, due, in part, to the poor condition of the Gale lane, William M. Beck had a lane constructed on the Beck property. This lane, hereinafter referred to as the “Beck lane” was parallel to and approximately 15 feet South of the Gale lane.

The Beck lane began at Maryland Route 445 and continued in a Westerly direction, intersecting the Martenet branch and terminating at the Beck homesite close to the shore of the Chesapeake Bay.... Subsequent to the construction of the Beck lane, it being a newly constructed lane, and the Gale lane being in disrepair, the Martenets began to use the Beck lane for ingress and egress to their property.... ¹⁵⁴ Since their purchase of the Martenet/Mangels property in 1963, Plaintiffs have used the Martenet branch and the Beck lane as their sole means of ingress and egress. Plaintiffs have borne the expense of maintaining the Martenet branch and the Beck lane during the time they have used them. The plaintiffs have used the property for residential purposes and for some agriculture and hunting.

Defendants, and their predecessors in title since the conveyance [to them] on November 27, 1937, have acquiesced to Plaintiffs (and Plaintiffs’ predecessors in title) use of the Martenet branch and Beck lane. Plaintiffs’ use and maintenance of this right of way has been with the intention to use the right of way for ingress and egress, but to not interfere with Defendants^] fee simple ownership and use of same. The aforementioned 30 foot wide strip of land which extends from the Martenet/Mangels property to Maryland Route 445 contains extensive areas of nontidal wetlands and large trees. As can be seen from the plats appended hereto and from the deed description, the first two changes in course for this 30 foot wide strip after leaving Maryland Route 445, shown as “A” and “B” on Plat No. 4 appended hereto, contain acute angles. [We have incorporated the relevant portions of the trial court’s plats in our exhibit.] While there is no evidence as to the exact size of the trees or timber on the 30 foot wide strip in 1931, one can infer that the strip was woodland then and the nontidal wetlands existed then as they do today.

Due to the relative narrowness of the 30 foot wide strip, the aforementioned acute angles (“A” and “B”), its topography, the “bogs” located therein and the necessary clearing and grubbing operation required for the construction of any new lane thereon, the construction of a lane in 1931, or any time thereafter, would have been extremely expensive. Construction of a lane over this strip today would cost between $200,000.00 and $345,000.00, assuming, arguendo, all wetlands and critical areas permits could be secured. ¹⁵⁵ The present fair market value of Plaintiffs’ property (with proper access) is approximately $675,000.00. If a roadway or lane could have or could now physically be constructed within the 30 foot wide strip, its shape, width and the aforementioned acute angles, would have and would still limit its use to smaller vehicles. Even in 1931, any longer wheel-based truck such as a moving van, would have been unable to negotiate the curves which would have resulted from the aforementioned two acute angles.

Not all fire apparatus would have been able to negotiate the resultant curves in 1931 or thereafter. Modern fire trucks are now wider and longer than those of 1931, modern moving vans are wider and longer than those of 1931 and modern ambulances are wider and longer than those of 1931. Many of these vehicles would now be unable to negotiate a lane constructed only on the aforementioned 30 foot wide strip. The trial court then found that the parties had conceded that an easement of necessity was originally created in 1931.

As we have said, there is some question as to whether such a concession was made. In any event, the finding stated by the trial court indicates that it found that an easement of necessity had been created. We agree. The law we shall hereafter refer to dictates that result.

The court in its opinion then addressed whether the way of necessity had been terminated, concluding: To determine whether the easement by necessity has been extinguished, we must look at the facts from December 24, 1931 to the present day. This Court concludes that the conveyance of the thirty foot wide strip on December 24, 1931 from J. Page Gale to the Martenets was insufficient by itself to extinguish the existing easement by necessity. Due to the relative narrowness of the thirty foot wide strip at the acute angles (“A” and “B” as shown on Plat No. 4 appended hereto), its topography, and the “bogs” located therein, the thirty foot wide strip has never been a suitable means of access to the Martenet/Mangels property. It would be unreasonable to conclude that the thirty foot wide strip was intended to be ¹⁵⁶ the means of access to the public highway when its utilization (were a lane to have been built on it) would preclude access by many vehicles, especially fire and emergency vehicles.

This was true in 1931 and has remained the case until today. Therefore the Court concludes that even if a lane could have been constructed within the thirty foot wide strip at a reasonable expense not out of portion to the value of the land of the Martenet/Mangels property, that said lane would not provide reasonable access to allow full utilization of the land of the Martenet/Mangels property. Reasonable access would be that access required for the dominant estate to make full utilization of its land.... The Court also concludes that even if an inferior lane or access were constructed it could not have been, nor could it now be, constructed without unreasonable expense out of proportion to the value of the land of the Martenet/Mangels property.

Due to the relative narrowness of the thirty foot wide strip, the aforementioned acute angles (“A” and “B”), its topography, the “bogs” located therein and the necessary clearing and grubbing operation required for the construction of any new lane thereon, the construction of a lane in 1931, or any time thereafter would have been a vast undertaking and would have required unreasonable expense out of proportion to the value of the land of the Martenet/Mangels property. Therefore, the easement by necessity created on August 31, 1931 over a portion of the remaining lands of Gresham College has never been extinguished. The court then addressed the location and relation of the easement. C. Having determined that an easement by necessity exists in favor of the Martenet/Mangles property, what is the present location of such easement?

At the time of the creation of the easement by necessity on August 31, 1931, the Martenet/Mangels property became the dominant estate and the remainder of Gresham College ¹⁵⁷ became the servient estate. That relationship has continued to today. The subsequent purchase of the Beck property by William M. Beck, on November 27, 1937, did not change the servient nature of that property. The Bramble property (the Brambles are not joined herein) and the Beck property together comprise the servient estate created on August 31, 1931.

Upon the facts of this case it is clear that the owners of both the dominant and servient estates acquiesced in the change of location of a portion of the original easement by necessity from the Gale lane to the Beck lane. The location of that portion of the easement over the Martenet branch [Extension] has never changed. The Court concludes that the owners of the dominant and servient estates consented by their acquiescence to a change in the location of a portion of the easement by necessity from the Gale lane to the Beck lane. The Court finds as a fact that this was a slight change in the location of a portion of the easement, that both the owners of the dominant and servient estates consented to this change and that the change does not invalidate the rights of the persons who are entitled to use the way. [Citation omitted, emphasis added.] The court then declared that the appellees had a fifteen foot wide easement by necessity, extending 7.5 feet from the center line on each side over the Beck lane and Martenet Extension, and that the appellees also had the non-exclusive right to maintain and repair the easement including the right to maintain drainage, install utility facilities serving their property, and to surface and pave a twelve foot wide portion of the fifteen foot way.

The court limited the use of the way to ingress, egress for “residential purposes, utilities, ... fishing, farming and hunting.” The trial court made extensive findings (many of which are included here) and made a declaration that passed upon and adjudicated the issues raised, thus declaring the rights of the parties. We now must determine if it did so correctly. In order to so determine, we must acknowledge the law relating to: (1) easements (ways) of necessity; (2) termination of ways ¹⁵⁸ of necessity; (3) relocation of ways of necessity; and (4) the increase in the scope and extent of ways of necessity. 1. Easements (Ways) of Necessity In a case involving a dispute over the use of two dirt roads over contiguous parcels, the Court of Appeals first noted that a quasi-easement can arise when one owner of two parts of the same property has used one part for the benefit of the other in such a fashion that, if the two parts had been owned by different parties, a presumption of easement could exist.

Dalton v. Real Estate and Improvement Co., 201 Md. 34 , 92 A.2d 585 (1952). The Court of Appeals then stated: [T]he doctrine of quasi-easements has been extended to include established ways where they are reasonably necessary to the enjoyment of the property conveyed---- A distinction has been maintained in the law between implied grants and implied reservations. If an easement is ... necessary to the reasonable enjoyment of the premises granted, it will be implied that the grant included the easement. However, if a grantor intends to reserve any rights ... he must reserve them expressly, and the only exception is of easements, including ways, of actual, strict necessity---- If, however, there is a simultaneous conveyance ... of both the serviently and dominantly used parts of land, the more liberal implied grant rule applies and not the more strict implied reservation test.

Id. at 46-47 , 92 A.2d 585 . See also Zimmerman v. Summers, 24 Md.App. 100, 114 , 330 A.2d 722 (1975) (quoting Oliver v. Hook, 47 Md. 301, 310 (1877)). The Court of Appeals in Shpak v. Oletsky, 280 Md. 355, 360-61 , 373 A.2d 1234 (1977), though primarily concerned with a reserved way of necessity, noted: Judge Charles C. Marbury observed for the. Court in Hancock v. Henderson, 236 Md. 98, 102 , 202 A.2d 599 ¹⁵⁹ (1964), “Ways by necessity are a special class of implied grants and have been recognized in this State for a good many years.” There are two types of ways of necessity, implied reservation and implied grant.... “[Gjrants of easements by implication are looked upon with jealousy and are construed with strictness by the courts.” “The rule with respect to implied reservations is much more strict than that with respect to implied grants.” [Citations omitted.] See also Mitchell v. Seipel, 53 Md. 251 (1880), one of the earliest cases that discussed the distinction between reservations and grants.

Speaking first of an early English case, the Court of Appeals opined: [T]he Court of Exchequer ... practically denied the existence in such cases of any distinction between an implied grant and an implied reservation.... But this case soon gave rise to controversy. Id. at 266 . The Court of Appeals held in a later case: There has been some confusion in some of the cases because they have not distinguished between implied grants of easements and implied reservations....

The reason for sustaining implied grants is apparent as “a grantor shall not derogate from his grant,” and when he intends to limit, restrict or burden the use of property conveyed ... for the benefit of property retained, he should express his intention in language that is not easily misunderstood. Eliason v. Grove, 85 Md. 215, 225 , 36 A. 844 (1897) (citations omitted). See also Slear v. Jankiewicz, 189 Md. 18, 24 , 54 A.2d 137 (1947), cert. denied, 333 U.S. 827 , 68 S.Ct. 453 , 92 L.Ed. 1112 (1948). Authorities elsewhere are in general concurrence.

In George v. Phillips, 642 S.W.2d 275 (Tex.1982), the Court of Appeals of Texas clarified the distinction: The final point of error urges that the trial judge erred in using the standard of reasonable necessity rather than the standard of strict necessity in instructing the jury on the theory of right-of-way by necessity. The degree of necessi ¹⁶⁰ ty required in establishing an implied easement depends upon whether it is an implied easement by reservation [the grantor retains landlocked property] or by grant [the grant- or grants landlocked property]. ... Since the conveyance ... involved a transfer ... of the dominant estate ... any implied easement was by grant rather than reservation. ... [C]ourts have required that only a reasonable necessity exist to prove an implied easement by grant. Id. at 277-78 (citations omitted).

See also Attaway v. Davis, 288 Ark. 478 , 707 S.W.2d 302 (1986); Granite Properties Ltd. v. Manns, 117 Ill.2d 425, 433 , 111 Ill.Dec. 593, 601 , 512 N.E.2d 1230, 1238 (1987); Badura v. Lyons, 147