Beesley v. Hanish

ROSALYN B. BELL, Judge. Originally owned and developed by Martingham Inn, Inc. (M.I.I.), Martingham is a pleasant, semi-rural subdivision located just outside St. Michaels in Talbot County, Mary ⁴⁸⁵ land. Section No. Three of Martingham encompasses, among others, 15 inland lots, namely, lots 25 through 31 and lots 33 through 40. These lots surround four acres called the pond parcel although there is no pond presently located there.

This case is about a suit in the Circuit Court for Talbot County by the owners of lots 25 and 39, the Hanishes and the Kroegers, respectively, appellees, for declaratory and injunctive relief against the remaining lot owners, including the two appellants, Beesley and Driscoll, because in September, 1985 Beesley and Driscoll commenced construction of a pond on the pond parcel. M.I.I. purchased the tract of land now developed as Martingham in 1969. A plat of Section No. Three of Martingham, recorded July, 1971, indicated a pond on the four-acre parcel. 1 M.I.I.’s first conveyance of the inland lots in Section No. Three was lot 25 in 1971. The last five of these lots were not sold until January, 1976.

The 15 deeds conveying the lots bordering on the pond parcel were by no means consistent in reference to the pond parcel. In the deed to lot 25, known as the Welton deed, M.I.I. conveyed a one-fifteenth undivided interest in the pond parcel, covenanted to build a pond, covenanted to transfer the remaining one-fifteenth interests to other lot owners, and imposed restrictions on the management and use of the pond. The Hanishes, appellees, are successors to the Welton deed. Beesley and Driscoll, appellants, jointly own several lots.

The deed to one of those lots, lot 36, includes a transfer of a one-fifteenth undivided interest in the pond parcel and a reference to the covenants and restrictions listed in the Welton deed. Other deeds transferred to the inland lot owners either contain similar provisions to those in the deed to lot 36, provide no mention of the pond parcel or, like appellees Kroegers’ deed to lot 39, reference the ⁴⁸⁶ covenants and restrictions in the Welton deed without a conveyance of an interest in the pond parcel. 2 In a deposition entered into evidence at trial, Sidney Peters, the president and sole director of M.I.I. in the early 1970s, testified that in an effort to sell Martingham’s inland lots, M.I.I. did some preliminary excavation of the pond parcel. M.I.I. hoped to show prospective buyers that a pond would in fact be built, but M.I.I. delayed completion of the pond until a majority of the lots could be sold. Only six of the 15 lots were sold by May 1, 1975, the date M.I.I. promised in the Welton deed to complete construction of the pond.

Soon thereafter, M.I.I. encountered financial difficulties in completing Martingham’s development and forfeited its charter in 1976 without completing the pond’s construction. Except for some additional excavating undertaken by a non-party during 1982 in an attempt to test the pond parcel for use as a sewage lagoon, no further organized activity occurred on the parcel until the current controversy- ⁴⁸⁷ The pond parcel contains an excavation of approximately three-and-one-half acres that ranges in depth from four to eight feet. Beesley and Driscoll presented extensive evidence that the pond parcel is dangerous and unsightly in its partially excavated state. In contrast, Hanish and Kroeger each expressed his pleasure in the unrefined character of the pond parcel and the habitat it provides for wildlife. 3 The only known active use of the pond parcel was by a local teenager who rode his three-wheeled motorized vehicle in the excavation.

Single family residences have been built on only six of the 15 lots that surround the pond parcel. Three of the homes are off the northern end of the pond parcel and are visually screened from other more intensely developed areas of Martingham by loblolly pine trees located on the pond parcel. Two of these houses, on lots 39 and 25, are owned by the Kroegers and the Hanishes, respectively. Beesley and Driscoll presented expert testimony, unrefuted at trial, that although the unimproved lots are otherwise in an attractive portion of Martingham, they have been difficult to resell and the condition of the pond parcel has had a negative influence on the appreciation of all the lots that surround it.

During the early months of 1985, Beesley and Driscoll purchased four of the lots that adjoin the pond parcel and one lot which adjoins an access strip to the parcel. They believed that with the consent of a simple majority of the owners of the lots surrounding the pond parcel they could complete the construction of the pond on the pond parcel. They sent letters to the owners of the other lots explaining their proposal to pay for and conduct the construction in compliance with M.I.I.'s original plan and requested each ⁴⁸⁸ owner to return a ballot indicating his or her approval or disapproval. Most of the other lot owners consented to Beesley’s and Driscoll’s plan.

Beesley and Driscoll also obtained the approval of Sidney Peters, as trustee of M.I.I., to complete the pond in M.I.I.’s place. 4 In September of 1985, Beesley and Driscoll began removing the scrub vegetation on the pond parcel. About eight days later, the Kroegers and the Hanishes obtained an ex parte injunction stopping the work. Later, an interlocutory injunction issued. Following a hearing, the trial judge permanently enjoined further construction on the pond parcel because Beesley and Driscoll had failed to obtain the unanimous consent of the owners of the lots adjacent to the pond parcel.

The court then required Beesley and Driscoll to clear the debris created by their pre-injunction activities. Beesley’s and Driscoll’s first appeal from this order was dismissed by this Court. 5 They have appealed again claim ⁴⁸⁹ ing that they are entitled to complete construction of the pond because of their status as tenants in common of the pond parcel. They further contend that they do not need the unanimous consent of their co-tenants because their proposed construction of the pond will not prejudice either the co-tenants’ common law rights to prevent waste or the co-tenants’ rights under their deeds. Finally, Beesley and Driscoll assert that their right to complete construction of the pond has not been abandoned or waived, and they are not estopped or barred by laches.

The Hanishes and the Kroegers, naturally, dispute all these contentions. I. BEESLEY’S AND DRISCOLL’S RIGHT TO CONSTRUCT POND Beesley and Driscoll contend that they have the right to construct the pond because of their status as lot owners of properties adjacent to the pond parcel. 6 The court concluded that Beesley and Driscoll needed the unanimous consent of all the owners of lots bordering the pond parcel to construct a pond on that parcel. The court did not explain the factual and legal bases for its conclusion. In fact, there is a dearth of rationale in this case.

Ordinarily, we would not decide any point or issue not decided in the trial court. Rule 1085. In the interest of judicial economy, we will consider the only basis upon which the trial judge could have been relying. A ruling that one owner of an interest in real estate obtain the unanimous consent of other owners necessarily implies the court made two findings to support its conclu ⁴⁹⁰ sion: first, some of the parties are tenants in common and second, Beesley’s and Driscoll’s plan to construct the pond interferes with the common law and deed rights of the other co-tenants.

We will examine each of these findings in detail. A. Tenancy in Common A tenancy in common is a relationship among owners of property. It is created where several persons concurrently hold an estate in land by several and distinct titles with only a unity of possession. 2 Tiffany, Real Property § 426 (3rd ed. 1939,1986 Cum.Supp.). There may be disunion of time, interest, title, source and quantity of estate so long as the several owners are united by their present right to possess and enjoy the whole property. 2 Tiffany at § 426.

In the case sub judice, M.I.I. owned the pond parcel, the access strip and the surrounding lots. M.I.I.’s conveyance of interests in the pond parcel, as first set out in the Welton deed, provided: “MARTINGHAM INN, INC. ... does hereby grant, convey and release, subject to the Affirmative Obligations, Restrictions, and Conditions hereinafter set forth ... in fee simple, an undivided one-fifteenth interest in all those parcels of land being a pond and adjacent land together with a forty-foot-wide ... strip of land ... said pond area being adjacent to Lots 25 through 31 and Lots 33 through 40, both inclusive____ ****** “... Fishing, swimming, and use of small, non-motor driven boats is permitted in the pond, provided such use is in a reasonable manner so as not to diminish or destroy the enjoyment of the pond by the adjacent property owners____ * * * * * * “... The subject pond is reserved for the sole use and enjoyment of the property owners of the above enumerated lots and their guests. ⁴⁹¹ “AND the said MARTINGHAM INN, INC. ... hereby agrees and covenants for itself, its assigns and successors in Interest to convey a similar undivided one-fifteenth Interest in the pond area and adjoining land as hereinbefore described with, and indivisible from, each lot numbered 26 through 31 and 33 through 40, both inclusive; it being the intention of the Grantor that the adjoining lot owners shall own in its entirety an undivided interest in the pond area, adjacent lands, and forty-foot wide parcel.” (Emphasis in original.) M.I.I. expressly deeded out only five of the undivided one-fifteenth interests in the pond parcel, although in two of those deeds it had covenanted to convey the remaining one-fifteenth interests.

Those lot owners who have a deeded one-fifteenth interest, together with those who can establish their right to such interest, 7 “own in its entirety an undivided interest in the pond area,” “reserved for the[ir] sole use and enjoyment” as long as they do not “diminish or destroy the enjoyment of the pond....” This language manifests M.I.I.’s intent to create a relationship between the various owners of lots surrounding the pond parcel in which each has a right to possess and enjoy, without excluding the others, the pond and adjacent land. Hence, M.I.I.’s grants effected a unity of possession at least among some of the lot owners creating a tenancy in common. Any person who purchases a share of a tenancy in common becomes a co-tenant with the other owners. 86 C.J.S. Tenancy in Common § 8b (1954). As we stated, the Hanishes hold a deed expressly conveying an undivided one-fifteenth interest in the pond parcel.

The Kroegers’ deed referenced the covenants and restrictions in the Welton deed but failed to convey title to an interest in the pond ⁴⁹² parcel. Of the five deeds held by Beesley and Driscoll, only the deed to lot 36 provides an express conveyance of an undivided one-fifteenth interest in the pond parcel. Thus, of the parties to this appeal, only the Hanishes and Beesley and Driscoll are co-tenants of record. Accordingly, at least the Hanishes and Beesley and Driscoll can assert their rights under the co-tenancy.

B. Prejudice to Co-Tenants’ Rights Tenants in common are equally entitled to the use, benefit and possession of the whole common property, Cook v. Boehl, 188 Md. 581, 592-93 , 53 A.2d 555 (1947), provided they do not interfere with the rights of their co-tenants to do the same. Dalton v. Real Estate and Improvement Co. of Baltimore City, 201 Md. 34, 44 , 92 A.2d 585 (1952). Interference can occur with a co-tenant’s common law rights to enjoy the property or with any rights that were expressly given to a co-tenant in a deed. A tenant may, however, contravene these co-tenant rights with the consent of his or her co-tenant(s).

See Susquehanna Transmission Co. v. St. Clair, 113 Md. 667, 672 , 77 A. 1119 (1910). Hence, where several tenants jointly own the property, as in the case sub judice, one tenant may not prejudice the rights of the others without their unanimous consent. The trial judge held that Beesley and Driscoll needed the unanimous consent of the affected lot owners in order to build the pond. Implicit in this conclusion is the finding that their plan to construct a pond prejudiced the rights of their co-tenants.

Since he did not state whether Beesley and Driscoll interfered with the co-tenants’ common law rights or instead with their rights emanating from their deeds, we will consider the effect of Beesley’s and Driscoll’s planned activities on both types of rights. 1. Common Law Rights Beesley’s and Driscoll’s proposal involves acts affecting the common property. When an act of ownership is contrary to the co-tenant(s)’ rights in a way that it alters the ⁴⁹³ character of the common property, it typically involves the commission of waste. There are several types of waste, two of which could be applicable to the instant case: voluntary waste consists of doing some act of destruction and meliorating waste is an act to change the character of the property that increases its pecuniary value. 93 C.J.S. Waste § 1 (1956).

In Maryland, a tenant is liable for the actual damages suffered by the property caused when he or she commits waste. Md.Real Prop.Code Ann. § 14-102(a) (1974, 1981 Repl.Vol.). The right to sue for waste generally encompasses the right to restrain its commission. 86 C.J.S. Tenancy in Common § 96(a) (1954); e.g., Redwood Hotel, Inc. v. Korbien, 195 Md. 402, 410 , 73 A.2d 468 (1950) (landlord’s action to enjoin tenant from continued commission of waste); see also Md.Real Prop.Code Ann. § 14-102 (1974, 1981 Repl.Vol.) (providing damages for waste committed after an injunction to stay waste). Hence, a court has the power to grant an injunction in favor of a tenant against a co-tenant for waste committed on the common property.

While Beesley's and Driscoll’s planned activities on the pond parcel might technically satisfy the definitions of voluntary and meliorating waste, we hold that an alteration of the use of the common property to its intended use—the use covenanted for in the deeds to that property—does not constitute either form of waste under the facts of this case. Maryland case law and logic support our holding that the conversion of the common property to its intended state does not constitute waste. In Susquehanna Transmission Co., 113 Md. at 667 , 77 A. 1119 , a public utility and a farmer were co-tenants of a parcel of land which for many years had been used for farming. The utility sued to enjoin the farmer from preventing it from installing telephone poles and transmission lines on the common property.

The Court of Appeals recognized that the utility’s contemplated use “would be a diversion of the property from its former use” ⁴⁹⁴ and held that “[o]ne tenant in common has no right to alter or change the property to the injury of the other without his assent.” Susquehanna Transmission Co., 113 Md. at 672 , 77 A. 1119 . In that case, the utility company attempted to alter the common property from its former use to a new unintended use. In contrast, in the case sub judice, Beesley and Driscoll propose to alter the common property by carrying out M.I.I.’s statement in the Welton deed and those that referenced it—that the tenants of the pond parcel have an ownership interest to enjoy and manage a completed pond. The only means available for the tenants to be able to exercise their rights to use and enjoy a pond is to alter the parcel’s present character and construct a pond.

Ordinarily, the clearing of the parcel and excavating in preparation for a pond would constitute voluntary waste since Beesley and Driscoll would be destroying the present nature of the property. In addition, improvement of the property with the resultant pond might meet the definition of meliorating waste since it changes the character of the property while increasing its pecuniary value. Beesley’s and Driscoll’s alteration of the property, however, will realize the intended use of that property. It would be illogical for their acts to constitute waste.

Otherwise, the tenants would forever be foreclosed from enjoying their rights to a pond under the tenancy in common. We therefore hold that Beesley’s and Driscoll’s planned conversion of the pond parcél from its unintended partially excavated state to property with a completed pond is not voluntary or meliorative waste. We conclude that Beesley’s and Driscoll’s construction of the pond would not constitute waste and therefore does not prejudice the co-tenants’ common law rights to prevent waste on the pond parcel. Hence, Beesley and Driscoll do not need the unanimous consent of the lot owners on that basis. ⁴⁹⁵ 2.

Rights Emanating from Deed The Hanishes and the Kroegers also contend that Beesley and Driscoll are interfering with the right given to them under their deeds which requires the unanimous consent of the affected lot owners. They contend that unanimous consent is a prerequisite to the building of a pond. We disagree. The Welton deed provided in pertinent part: “1.

Construction and Maintenance. Construction, filling, and maintenance of the pond for a period of one year after completion of construction shall be the sole responsibility of Martingham Inn, Inc. ... Costs of all maintenance of the slope, bottom and banks of the pond after the expiration of one year from the date of completion shall be the equal responsibility of the owners of Lots 25 through 31 and 33 through 40, Section 3, both inclusive. * * # * aft * “6. Management.

The pond area