Blickenstaff v. Bromley

Prescott, C. J., delivered the opinion of the Court. This appeal involves a set of circumstances which illustrates why the practice of the legal profession and the administration of the law are interesting. Although there are quite a number of named appellants, the only issue presented for determination is whether appellants Charles L. Blickenstaff and his wife have acquired title by adverse possession to a small parcel of land consisting of about 0.1 of an acre (marked on the plat below with a large X). In 1956, the appellees, Walter Bromley and his wife, purchased a 200-acre farm in Pondsville area of Washington ¹⁶⁷ County.

At that time, the farm had on it a few fruit trees, but since then the Bromleys have developed the land into an extensive orchard. When a drought developed, the water in a little stream located on the subject property became important to the Bromleys. The main portion of the Bromley farm is located some 600 feet to the southwest of the Pondsville-Cold Spring Road (Cold Spring Road), as said road is now located. The Bromleys’ record title calls for a strip of land 30 feet wide and (about) 618 feet long “to the south side of the Cold Spring Road.” This description appears in deeds at least as early as 1891, and, apparently, has been followed ever since, without change.

As the area is now laid out, it will be noted that the 618 foot line not only goes to the south side of the Cold Spring Road, but extends all the way across said highway and beyond, so as to include the little stream which is the cause of this litigation. The discrepancy seems to be accounted for by a change in the location of the Cold Spring Road. The trial judge thought it had been relocated, and both sides in their briefs and at argument treated it as such; hence, we shall do likewise. (Appellants do not challenge the fact that the appellees have record title to the subject property.) But, if said road were relocated, it had to have occurred more than 50 years ago, for none of the witnesses, some of whose memories went back as far as 55 years, recollected any change in location.

At or before the turn of this Century, the strip of land was used as a means of access to the Bromley farm from the Cold Spring Road, and vice versa. At about this time, the Mt. Lena Road was constructed. It abutted and paralleled the strip.

The Bromleys’ predecessors in title closed off the strip and began utilizing the Mt. Lena Road many years before the Bromleys bought in 1956. For at least 50 years, no use has been made of any part of the strip by the Bromleys or their predecessors until about 1965, when the Bromleys began taking water from the stream. The trial judge had this to say concerning the tiny parcel in question: “After the relocation of the road, the area in dispute was of no practical value [except possibly for water from the stream], was not fenced, was not cultivated or used for ^{168 169} pasture * * We agree.

The evidence discloses it to be scrubby, brush land, which, at some time, had a few trees thereon. George F. Kuhn, aged 67, had lived in the immediate area all his life, and from 1918 to 1922 had lived on the Blickenstaff property. It then belonged to his grandparents, who had owned it since 1905. The Cold Spring Road was in its present location.

He had occasion to go on the subject property; he had to keep “the bushes clean on the banks of the creek,” and he got “some little” wood therefrom. He went back and forth from his grandparents’ property and the subject parcel and “all the time [they were treated] as one property.” He placed a “water box” on the bank of the stream and ran water through it to keep milk and other things cool. He never saw any of the Bromleys’ predecessors come on the subject property. He saw his grandparents go upon the parcel and clean it up and to obtain bean poles and a little wood.

His grandparents gave a Mr. Poole who lived across the road, upon Poole’s request, permission to cut wood therefrom. No fence or any boundary line had ever been erected between the little parcel and his grandparents’ property. When his grandparents lived there, they exercised “control [and] authority” over the parcel. Laura Rudy’s daughter and her husband owned and lived on the Blickenstaff property for twenty some years after 1931.

Laura lived “right beside of it.” She remembered her family cutting brush and trees off the subject parcel. She had “two big poplar trees” cut off it because she was afraid they would blow over and knock her house down. Mr. Huntzberry had lived in the neighborhood since his birth in 1909. He lived just across the road from the parcel at the time of the hearing.

After obtaining permission from Blickenstaff’s predecessor, he cut bushes off the parcel and burned them. He also burned trash there. He has a flower bed “over there, and [he also] built up a great big ditch.” He also cut wood therefrom. From his knowledge of the neighborhood and the people residing there, it was “general common knowledge in the neighborhood that Mr. Blickenstaff [and his predecessors] owned this strip [that portion of the strip on the northeast side of Cold Spring Road].” ¹⁷⁰ Harold Hoffman was born in 1898, and remembered the area from about 1908.

At one time, his family owned the Bromley farm, and he lived thereon. His family had never made any use of the subject parcel or the balance of the strip. The Mt. Lena Road had been there as long as he could remember, and it was used for ingress and egress.

His family only considered that they owned the strip “to that particular road [Cold Spring].” To his knowledge, no portion of the strip had been used as a road for 55 years, and it “could have gone back much further.” The Blickenstaffs bought their property in 1961, but had rented it and lived thereon for 4 years prior thereto. Mr. Blickenstaff went upon the subject parcel whenever he desired. He bought “from the corner of the road [Cold Spring], down south or west.” With his permission, Mr. Huntzberry, has cleaned the little parcel off, and keeps the grass cut. The above facts are unchallenged: there is no testimony to the contrary.

Mr. Bromley frankly and candidly stated that he had no use for, and made no use of, any portion of the strip until he needed water for his orcharding operations. When he went upon the subject parcel for that purpose, Mr. Blickenstaff, asserting ownership thereof, promptly ordered him off. Thus it is seen that for a period of some fifty years this small “thumb” of land has been considered to be (and is “visibly”) a part of the Blickenstaff farm. There is every indication that the visible and fixed boundaries thereof are the Mt.

Lena and the Cold Spring roads. The Bromleys rely on their record title and the failure of the Blickenstaffs to establish all of the essential elements of adverse possession. Of course, these elements are that the possession must be actual, hostile, open, notorious, exclusive, under claim of title or ownership, and continuous and uninterrupted for the statutory period of twenty years. Bishop v. Stackus, 206 Md. 493, 498 ; Goen v. Sansbury, 219 Md. 289 .

No question is raised concerning the right of the Blickenstaffs and their predecessors to tack their adverse possession, provided that they held such possession. Actual, Open and Notorious, and Exclusive Possession. We! think we may conveniently consider these factors together. Formerly, in Maryland, an actual enclosure was neces ¹⁷¹ sary in order to sustain a claim of adverse user, Thistle v. Frostburg Coal Co., 10 Md. 129 , Lurman v. Hubner, 75 Md. 268 , but since the passage of what is now Code (1957), Article 75, § 33, this is no longer a prerequisite.

There is a