Bosley v. Grand Lodge of Ancient Free & Accepted Masons

Barnes, J., delivered the opinion of the Court. This appeal involves an action in ejectment filed in the Circuit Court for Baltimore County by the appellee, The Grand Lodge of Ancient Free and Accepted Masons of Maryland, a Maryland Corporation (Grand Lodge), against the appellants, Kenneth T. Bosley and Phyllis B. Bosley, his wife. The land involved is a 3.4 acre tract in the Eighth Election District of Baltimore County to which the Grand Lodge claims good record title and title by adverse possession. The two principal questions before us are whether the trial court erred (1) in its instructions to the jury in regard to the elements of adverse possession and (2) in declining to grant the motion of the Defendants-Appellants for a directed verdict or their motion for a judgment n.o.v. because of insufficient evidence in the case for the jury to find for the plaintiff, Grand Lodge, on the basis of either adverse possession or legal record title.

The appellants raise additional questions to which reference will later be made. Grand Lodge has owned and used the property in Baltimore County known as “Bonnie Blink” for many years as a lodge home for elderly members and as a farm. It acquired Bonnie Blink by a deed from John B. Wailes and wife, dated June 30, 1927, and duly recorded among the Land Records of Baltimore County in Liber W.P.C. No. ³⁰⁶ 645, folio 333, etc., for 266.1 acres of land. The description in this deed is divided into two parts—one for 262.7 acres, the other for 3.4 acres, the latter being the parcel involved in this case.

The description was prepared in June 1927 by the late J. Spence Howard, a surveyor, and is based on a survey made by him. This plat was introduced into evidence as “Court’s Exhibit No. 2.” A title map of Bonnie Blink was prepared by Dollenberg Brothers, surveyors and civil engineers, dated March 9, 1960, with a scale of one inch equals 200 feet. It bears the notation, “Note: This plat is traced from a plat prepared by J. Spence Howard, Civil & Consulting Engineer.” It was introduced into evidence as “Plaintiff’s Exhibit No. 5.” For convenience in showing the courses and distances as well as monuments used to indicate the boundaries of the 3.4 acre tract, a portion of the Dollenberg map has been reproduced and contains certain notations added by this Court. The reporter is directed to include this portion of the Dollenberg map as part of this opinion. 1 On the Dollenberg map the 20 foot right of way of the Maryland Gas Transmission Corporation over the 3.4 acre tract is indicated.

This did not appear on the Howard plat inasmuch as it was granted after the Howard plat was prepared in June 1927. The 3.4 acre parcel is also shown on the Warrant of Resurvey plat prepared by William G. Ulrich, Jr., the Baltimore County surveyor. This plat was introduced into evidence as “Court’s Exhibit No. 3.” The deed of June 30, 1927, was apparently prepared by Walter C. Mylander, Sr., a member of the Maryland Bar. After an elaborate metes and bounds description of parcel 1 containing 262.7 acres of land, more or less, the deed then describes parcel 2 as follows: “Beginning for the second thereof at a point on the south side of Western Run, said point being at the end of the north nine degrees thirty ³⁰⁷ three minutes west two hundred and five and 3/10 (205.3) foot line of the tract containing two hundred and sixty two and 7/10 (262.7) acres, more or less, hereinabove first described, said point of beginning being also at the Junction of the south side of the present location of Western Run and the west side of the Old location of Western Run and running thence by a line across the present location of Western Run north twenty eight degrees forty seven minutes west one hundred and ninety eight and 4/10 (198.4) feet to stone marked No. 9, G.L.M. set on the west bank of the Old location of Western Run and running thence and binding on the southernmost side of the old stream bed of Western Run the seven following courses and distances, north four degrees thirty seven minutes west one hundred and eighteen and 8/10 (118.8) feet to stone marked No. 8, G.L.M. north fifty one degrees twenty five minutes west ninety six and 65/100 (96.65) feet to stone marked No. 7, G.L.M. south seventy nine degrees thirty nine minutes west one hundred and thirteen and 25/100 (113.25) feet to stone marked No. 6, G.L.M. south fifty four degrees twenty seven minutes west one hundred and thirteen and 3/10 (113.3) feet to stone marked No. 5, G.L.M. south sixteen degrees twenty two minutes west two hundred feet to stone marked No. 4, G.L.M. south eight degrees twenty minutes east two hundred and thirty feet to stone marked No. 3, G.L.M. and south twenty three degrees twenty minutes east one hundred and thirty nine and 18/100 (139.18) feet to stone marked No. 2, G.L.M. planted at the junction of the northwest side of the present location of Western Run and the east side of the old location of Western Run and running thence by a line across the present location of Western Run, ³⁰⁸ south thirty eight degrees twenty minutes east eighty three and 4/10 (83.4) feet to the end of the south seventeen degrees thirty nine minutes west one hundred and eighty seven and 3/10 (187.3) foot line of the tract containing two hundred and sixty two and 7/10 (262.7) acres hereinabove first described, thence along the southeast side of Western Run and binding reversely on the lines of the said whole tract containing two hundred and sixty two and 7/10 (262.7) acres hereinabove first described the three following courses and distances, north seventeen degrees thirty nine minutes east one hundred and eighty seven and 3/10 (187.3) feet north thirty two degrees thirty six minutes east two hundred and sixty and 2/10 (260.2) feet and south sixty four degrees thirty minutes east one hundred and fifteen feet to the place of beginning. “Containing three and 4/10 (3.4) acres of land, more or less.” The plaintiff, Grand Lodge, offered in evidence the testimony of George Walter Tyrie, an “old-time” stone cutter since 1904, who produced his original ledgers from 1927.

These included his bill addressed to the Grand Lodge in care of Walter C. Mylander, entered on June 25, 1927, for 18 granite land markers, eight inches by eight inches by two feet, marked “G.L.M. 1” to and including “G.L.M. 18.” His original diagram for these markers was produced and introduced into evidence. Mr. Tyrie testified that his brother delivered these markers, moved them from place to place at the site but the surveyors set the markers. Markers G.L.M. 2 through G.L.M. 8 were placed at the end of each call on parcel 2. These locations were established by the Ulrich survey and were shown to the jury at the time the jury inspected the property.

The Maryland Surveying and Engineering Company ³⁰⁹ had purchased the records of J. Spence Howard from his estate. They were produced at the trial by James R. Cassell of that company. At the request of the Grand Lodge, Mr. Cassell inspected the property in question after the appellants had asserted their claim to it and located stones numbers G.L.M. 3, 4, 5, 6 and 9 in place in the ground. He saw what appeared to be stone number 8 lying on top of the ground.

He could not locate stones numbers 2 and 7. When he revisited the property in 1969, the monuments were gone. When asked if there was any evidence on the ground to indicate whether there had been an old stream bed as indicated by the Howard plat, Mr. Cassell testified that there was a depressed area that “could have been a stream bed that had been eroded and filled in.” When asked his opinion in regard to how the change could have taken place between the “old stream bed” and the present location of the bed of Western Run, he stated that he was of the opinion that instead of a gradual erosion of the bank, Western Run “had cut right on through there rather than going around the long way, just flowed and made its own river beds stream, just cut off part of the loop going around it.” Mr. Ulrich located the conflicting claims of the parties on the land and indicated these conflicting claims on his Warrant of Resurvey plat. He used the metes and bounds description of the Grand Lodge deed and plat to fix the locations of stones 2 through 8.

There was no metes and bounds description of the division line in the Bosley title, the call being to bind on the southerly side of Western Run. In order to locate the lines as claimed by the Bosleys, Mr. Ulrich used adjacent titles to locate these lines. Generally speaking, the Bosley lines on the west, north and east of parcel 2, the 3.4 acre tract, follow the outer perimeter of the “old stream bed” appearing on the plat included in this opinion, with depths varying from 400 feet to 75 feet. To the west, north and east of the Bosley lines is the land of Charles V. Roller.

Mr. Ulrich stated that there were indications in the other descriptions that there had been a stream at one time in the ³¹⁰ location of the “old stream bed” delineated on the Howard plat. He located a beginning stone of the Roller land adjacent to the Bosley land and marked the stone on the Warrant of Resurvey plat “stone found Bosley and Roller.” The calls in the Roller deed indicated to him that the Roller land bounded on a “body of water.” It was indicated that the Roller beginning stone was on the north side of Western Run. Mr. Ulrich concluded that he could not “decide title lines” and would not say what was the old line of Western Run, but he had evidence from the Howard plat that “Western Run went in this area at one time.” He stated that Mr. Howard was as “competent as any other man in the business at the time.” John H. Hessey, Sr., a member of the Maryland Bar for 57 years, had been associated with the Grand Lodge for more than 50 years. He was Master of his Lodge in 1927.

He had been counsel for the Board of Bonnie Blink and for the Grand Lodge since 1935 and still is. He had custody of the Grand Lodge minute books and records. He was familiar with the circumstances surrounding the purchase of the property by the Grand Lodge in 1927. The Grand Lodge employed Spence Howard to prepare the Howard plat in evidence in the case.

Mr. Hessey produced the real estate tax receipts of the Grand Lodge from 1928 to date. These receipts showed that the Grand Lodge paid real estate taxes on 266.1 acres of land. The Grand Lodge records showed that in 1938 it had given permission to members of the Green Spring Valley Hunt Club to hunt across the property. An agreement concerning conservation of the soil of the property in 1942 was produced.

Also produced from the Grand Lodge records was a 1944 contract for cutting timber. All of the agreements included the 3.4 acre tract. Timber was again cut in 1959. The Grand Lodge minutes of September 16, 1959, reported that Bosley claimed title to three acres, more or less, on which timber was being cut.

It was noted that the matter had been reviewed by Bosley with counsel for the Grand Lodge, plats were exhibited and Bosley was ³¹¹ informed that he had no title to the acreage he was apparently claiming. From his own records, Mr. Hessey testified that shortly prior to March 12, 1965, he received a report from Frank L. Smith, Jr., Executive Director of the home, that bulldozers were bulldozing part of the property. Mr. Hessey went out to the property with Mr. Smith and saw two men bulldozing on the 3.4 acre parcel. These two men disregarded anything he had to say.

He had a conversation with Mr. Bosley who came to Mr. Hessey’s office on March 12, 1965. Mr. Bosley stated that he had not done the bulldozing. Mr. Hessey identified the granite marker which had been brought to the courtroom. The marker was eight inches by eight inches by two feet in size.

He stated that it was the marker found by him when he visited the property in March 1965. He had kept two or three small pieces of granite which had been chipped off the top of the marker but these pieces did not include the “G.L.M.” letters. Mr. Hessey identified a certified copy of a deed, dated November 11, 1850, from Elizabeth Webster, et al. to Thomas Matthews, recorded among the Land Records of Baltimore County in Liber G.H.C. No. 17, folio 35, et seq., and previously introduced into evidence as “Court Exhibit No. 5,” and admitted that this was the background deed in the titles of both the Grand Lodge and the Bosleys. On cross-examination by Mr. Bosley, Mr. Hessey was asked whether he had called the police or made any official complaint in regard to the trespass of the bulldozer operators on Bonnie Blink land.

Mr. Hessey replied: “No, I * * * interrogated you and tried to find out from you who was responsible for the men on there, and you denied to me at that time that you were responsible for it, and then I heard you say here the other day, that you * * * had employed them * * The testimony of Frank L. Smith, Jr., Executive Director of the home, indicated that he had first been em ³¹² ployed in 1955 by the Grand Lodge to operate the home. He had been shown around the Bonnie Blink property and had located the stone markers on parcel No. 2, the 3.4 acre tract. He generally confirmed the testimony of Mr. Hessey in regard to the bulldozer operators and the location of the stone markers in March 1965. The Tax Assessment Records of Baltimore County since 1928 were introduced into evidence and showed that the Grand Lodge had been assessed for 266 acres for the Bonnie Blink property.

Mr. Bosley, on behalf of the defendants and appellants, called as his own witnesses former Grand Masters of the Grand Lodge, i.e., William Norman Penn, Edward R. Saunders and William B. Stansbury, Jr. Mr. Stansbury, who is also a member of the Maryland Bar, testified that so far as he knew “from the period 1927 to 1965 there had been no question at all about the ownership of the property or any question of title or any dispute at all.” He recalled that timber had been cut on parcel No. 2, the 3.4 acre tract, by the Grand Lodge. The Bosleys produced the testimony of Miss Katherine A. McIntyre, a member of the Maryland Bar, who identified the Webster-Matthews deed of November 11, 1850, as the deed out of the common owner of the land of the Grand Lodge and the Bosleys to the Bosley’s predecessors in title. The description in this deed begins in the center of the York Turnpike, proceeds in a northwesterly direction and then calls “to the southernmost bank of Western Run, thence running with and bounding on the meanders of the south and the southwest side of the said Run to the beginning. . . .’’No survey was made of the location of Western Run at that time. This is the division line which is in dispute between the parties on the question of legal record title.

Russell M. Herbert, a registered land surveyor, was also called as a witness for the Bosleys. Mr. Herbert had made a survey for the Bosleys in 1966 and prepared a plat, the lines of which follow the present line of Western Run. These lines were transposed to the Warrant of ³¹³ Resurvey plat prepared by Mr. Ulrich, to which reference has already been made. Mr. Herbert stated that he did not see any old stream bed.

In his opinion a natural monument would take precedence over an artificial monument provided they call within reasonable calls. Reasonable calls of distance would only apply if there were a conflict between a call to a natural monument and a call to an artificial monument. He saw no evidence of a former stream bed in 1960 when he was on the property, and he thought it was impossible for Western Run to have changed “that much” in the period of 1850 to 1960. The jury found a verdict for the plaintiff, Grand Lodge, but awarded no damages.

Additional facts will be given where thought necessary in the following discussion of the legal questions involved. (1) We will first consider the questions raised by the Bosleys to the trial court’s charge to the jury. The lower court prepared its proposed instructions in typewritten form and copies were given to counsel and Mr. Bosley before they were read to the jury. The instructions are full, complete and carefully considered.

They comprise seven printed, single-spaced pages in the record extract. In the instructions the trial court, to a substantial extent, used our language in the case of Blickenstaff v. Bromley, 243 Md. 164 , 220 A. 2d 558 (1966), in which Chief Judge Prescott, for the Court, reviewed the Maryland law in regard to the elements necessary to establish title to land by adverse possession. The Bosleys objected to the lower court’s charge to the jury on the ground that the factor of “visible” was missing from the charge. Judge Jenifer pointed out that the word “visible” was included in the charge and that, in any event, this Court in Blickenstaff “did not use the word ‘visible’ as one of the requirements of title by adverse possession.” It was used later in the same context as the trial court had used it in connection with the word “notorious.” ³¹⁴ In the charge, the trial court instructed the jury, in part, as follows: “The essential elements of adverse possession are that the possession must be actual, open, notorious, exclusive, hostile and continuous for the statutory period of twenty years under a claim of title or ownership.

You will note from the deed to the Grand Lodge dated June 30, 1927, from John B. Wailes and wife, the parcel in dispute is described as the second parcel in said deed by specific metes and bounds and courses and distances, is recited to contain 3.4 acres of land, more or less, and consequently the Plaintiff has claim of title or ownership thereto. It is your function to decide whether or not the Plaintiff exercised the elements of possession that I have just outlined for a period of twenty years after receiving the deed referred to. If you are satisfied by a preponderance of the evidence that the Plaintiff did exercise these elements of possession during a twenty-year period after the deed of June 30, 1927, then the Plaintiff would have acquired title by adverse possession. If, on the other hand, you find that the Plaintiff did not exercise these elements of possession after June 30, 1927, for a period of twenty years, the Plaintiff would not have acquired title by adverse possession. “In determining the issue of adverse possession and the acts of possession exercised by the Plaintiff, you should consider several factors.

If you find from the evidence that after acquiring the conveyance of the parcel of land in question, the Plaintiff did in fact install granite monuments at the corners thereof, this would be evidence of actual, open and notorious possession and ownership on the part of the Plaintiff. It was not necessary for the Grand Lodge ³¹⁵ to enclose the parcel by a fence to show its assertion of ownership. “In determining whether there has been actual possession of property, there must be considered its character and locality, and the uses and purposes for which it is naturally adapted, since possessory acts of an outlying and uncultivated piece of land may be proved by acts of ownership somewhat different from those required with regard to land under enclosure and actual cultivation. “It is sufficient if the acts of ownership are of such a character as to openly and publicly indicate an assumed control or use such as is consistent with the character of the premises in question. The standard to be applied to any particular tract of land is whether the possession comports with the ordinary management of similar lands by their owners, and if so, it furnishes satisfactory evidence of adverse possession. In general, it may be said that those acts which go to make possession actual, likewise suffice to make it visible and notorious. “In order to ripen into title, adverse possession must be exclusive, that is the claimant must hold possession