Biddison v. Aaron

Pearce, J., delivered the opinion of the-Court. This is an appeal from an order of the Orphans’ Court of Baltimore County refusing to ratify and setting aside the sale of a certain parcel of leasehold property in Baltimore City, made under the order of said Court by John S. Biddison and John G. Rogers, administrators of Frederick William Koenig, deceased. Exceptions were filed to the ratification of said sale by the appellee as purchaser of the parcel designated as No. 48, East Cross street. The first ground of exception was, that while the advertisement read at the sale stated that the property in question was subject to a right of way, and a right of drainage, over an alley to be kept open on the western side of said lot for the benefit of said lot and the adjoining property on the west, the purchaser had discovered since the sale that the property was also subject to a right of drainage through said alley in favor of other property on the east, of which no notice was given at the sale, and of which the purchaser had no knowl ¹⁶⁵ edge; and that this drainage from the property on the east brought such quantities of water as to overflow the cellar upon the lot sold, and render the property unfit for the business of the appellee.

The second ground of exception was, that if the sale as reported is ratified, the purchaser will not acquire what he believed, and had reason to believe, he was buying, because, in the language of the exception, “the visible property and improvements, as used and occupied, consist of a two-story brick store and dwelling, and a one-story back building, with an area about three feet wide along the said back building, leading to the privy closet used in connection with the buildings to which the same is attached and appurtenant, and of which the same is a part; that the lot of ground reported as sold to this exceptant does not include the.said back building nor the area way and' privy closet, without which the building reported to be sold to this exceptant is altogether useless for ordinary purposes of habitation.” The facts of the case and the contention of the appellee will be made plain by reference to the following plat: ^{166 167} As to the first exception, there is not.a particle of evidence in the record of any grant of the alleged easement or right of drainage by Koenig, as the owner of the Cross street lot as well as of the Light street lot, or by any other former owner, in favor of the Light street property on the east. It does appear that 'there is a drain pipe under the one-story back building in the rear of the Cross street lot, the mouth of 'which discharges into the area way alongside of this back building, leading into the alley on the west side of the Cross street lot, and which is indicated on the plat by the small circle near the south end of the area way; but there is absolutely nothing to show what property it was designated to drain or actually does drain. Even if it did appear that it actually drained the Light street ■property of Koenig, there is nothing injthe record to sustain the alleged easement as arising by an implied grant. In Elias'on v.Grove, 85 Md. 225 , it was said: “As long as one person owned both properties, it could not properly be said that an easement existed in favor of one of them, as the owner could not have an easement in his own land.

But whilst that is true, it is also well settled that if during the unity of ownership, the owner of two properties uses one lor the benefit of the other in such manner as would have given rise to the presumption that an easement existed, if the tenements had been held by different persons, then upon a conveyance of the property so used, an easement will be granted to the purchaser, provided the use has been such that the easement resulting from it would be of the class known as continuous and apparent and woidd be necessary for the reasonable enjoyment of the property conveyed.” And in Burns v. Gallagher, 62 Md. 471 , it is said, “such necessity cannot be deemed to exist, if a similar way or easement may be secured by reasonable trouble or expense, and especially not, if the necessary way or easement can be provided through the grantor’s own property.’’ Here the existence of the alleged easement, or of the user of the two properties which might have given rise to the presumption of such easement, was unknown to the administrators’of Koenig whose duty it was to exercise reasonable care ¹⁶⁸ to acquaint themselves with, and to inform purchasers of, the situation and .condition of the several properties they were selling. It was unknown to the purchaser of the Cross street property, who had known the property for over twenty years, and had been on the premises more than once during that-period. No one testifies to its existence, and it cannot therefore be deemed visible and apparent as.required by the authorities. There is no evidence that the Light street property cannot be drained to Light street within its own lines, and if it can be so drained, the easement over the Cross street lot cannot be deemed necessary to the enjoyment of the Light street property.

For aught that appears therefore, either upon the theory of actual or implied grant, the alleged easement is without pretence of authority, and this exception cannot be sustained. Coming to the second exception, it is perfectly plain from all the testimony in the case, that the exceptant cannot acquire under this sale the property he believed he was buying. The advertisement which he heard read at the sale describes this lot as fronting on Cross street 14 feet 7^ inches with a depth of 3 1 feet, and improved by a two-story brick dwelling with store front, without any mention of a back building, and the plat shows that the one-story back building and the privy closet are not within the lines of that lot, but are within the lines of the Light street lot, sold the same day to Obrecht, which fronts on Light street l6 feet with a depth of 93 feet. It appears fróm the testimony that before this back building was put up, the'closet in the rear of this lot was used in common by the occupants of this lot and of the adjoining lot on the west, and that after Koenig bought the Cross street lot he put up the back building on the Light street lot sold to Obrechtat this sale,