Boucher v. Boyer

COLE, Judge. We shall decide in this case whether the appellants, whose property abuts a street that was dedicated to public use but was never accepted by the county government, have any property interest in that street under a theory of implied easement by virtue of a plat reference. The facts are not in dispute. In 1972, George H. and Beverly L. Piper, owners of an approximately fifteen acre tract in Frederick County, Maryland, prepared and duly ⁶⁸⁴ recorded a plat adopting a plan of subdivision for their property.

This plat, entitled “Section One, Piper Estates” (Piper Estates), established two approximately one acre lots (Lot Nos. 1 and 2) from a trapezoidally shaped parcel. The two lots were bisected by a roadway with the plat designation of “George Street.” Lot No. 1 bounded George Street to the southwest, and Lot No. 2 bounded George Street to the northeast. The plat depicted George Street as a fifty foot wide right of way that extended the entire length of the two lots, back to the remaining portion of "the Pipers’ property. The Owner’s Certificate further indicated that the Pipers were offering to dedicate George Street to public use.

By a duly recorded deed dated May 5, 1972, the Pipers conveyed Lot No. 1 on the Piper Estates plat to appellees, Eugene B. and Joan F. Boyer. By a duly recorded deed dated May 3, 1974, the Pipers conveyed Lot No. 2 on the same plat to George W. and Ethel E. Brady. The Bradys subsequently conveyed Lot No. 2 to the appellees, Willard A. and Beverly D. Gordon, Jr., by a duly recorded deed dated May. 12, 1978. All of these deeds referred to the Piper Estates plat.

By a duly recorded deed dated January 28, 1976, the Pipers conveyed the remainder of their interest in the original fifteen acre tract to the appellants, Kirk and Deborah A. Boucher. The deed conveyed the property to the Bouchers by reference to the description by which the Pipers had acquired the property, and excluded Lot Nos. 1 and 2 by reference to the Piper Estates plat. In 1982, the Bouchers further subdivided their property by creating Lot No. 3, which is depicted on the Piper Estates plat. The plat designates a right of way for Lot No. 3 and reflects the prior dedication of George Street, which abuts Lot No. 3.

This right of way was created at the behest of the Frederick County Planning Commission as a condition to the creation of Lot No. 3. ⁶⁸⁵ Although the Owner’s Certificate on the Piper Estates plat indicated that George Street had been dedicated to public use, that dedication was never completed. After the recordation of the Boucher plat, the Zoning Administrator for Frederick County wrote a letter to the Bouchers informing them that the County had not accepted George Street. At trial, Mrs. Boucher testified that George Street was the only means of access to the Boucher farm land. She further testified that she and her husband have solely maintained George Street up to the point where the driveways to Lot Nos. 1 and 2 branch off to their respective lots.

Mrs. Boucher testified that she and her husband laid gravel on George Street from the point at which the appellees’ driveways intersect the street up to their property line. She further indicated that she and her husband have used George Street to bring farm equipment to their farm land. Although Mrs. Boucher testified that George Street was the only safe access for this equipment, she conceded that the farm land was not without access to another road. Evidence also'disclosed that the Bouchers have placed a mobile home on Lot No. 3 so as to provide a residence for Mrs. Boucher’s parents.

In 1982, the appellees instituted a declaratory judgment action against the Bouchers in the Circuit Court for Frederick County. Appellees urged the trial court to declare them fee simple owners of George Street and requested that the Bouchers be permanently enjoined from using George Street. In an order dated February 15, 1983, the trial court declared that the appellees were each fee simple owners of one half of George Street by virtue of the statute in effect at the time of the conveyances, Md.Code (1957, 1973 Repl. Vol.), Art. 21, § 5-114, and that the Bouchers had no easement over George Street.

The Bouchers filed an appeal to the Court of Special Appeals, but we granted certiorari prior to decision by that court to decide the issue presented. ⁶⁸⁶ I The threshold issue we must decide is which party holds fee simple title to George Street. The Bouchers argue that the intention of the original grantors (the Pipers) should govern the determination of this issue. The Bouchers reason that the original grantors intended to dedicate George Street to public use, but the County’s nonacceptance of this dedication continued the ownership in the original grantors. Based on this reasoning, the Bouchers contend that as successors in title to the original grantors they hold fee simple title to George Street.

We disagree. Former § 5-114 of Art. 21, 1 as the trial court correctly recognized, controls this issue. Section 5-114 provides: Any deed, will, or other instrument which conveys land in this State, binding on any street or highway, or when any street or highway shall be one or more of the lines thereof, shall be construed to- pass to the devisee, donee or grantee therein, all the right, title, and interest of the devisor, donor, or grantor in the street or highway; provided, however, to the extent the devisor, donor or grant- or owns other land on the opposite side of the street or highway, then the deed, will, or other instrument shall be construed to pass the right, title, and interest of the devisor, donor, or grantor only to the center of that portion of the street or highway upon which the two (or ⁶⁸⁷ more) tracts co-extensively bind. The foregoing provisions shall be inapplicable in either of the above instances if the devisor, donor or grantor shall in express terms in the writing by which the devise, gift or conveyance is made, reserve to himself all the right, title and interest to the said street or highway.

This statute, which applies to both private and public streets, Grunwell v. Henderson, 220 Md. 240, 247 , 151 A.2d 920 (1959); Campeggi v. Wakefield, 157 Md. 229, 287 , 145 A. 546 (1929), extends the common law presumption that title to the center of a binding street passes to the grantee. Callahan v. Clemens, 184 Md. 520, 526 , 41 A.2d 473 (1945). Lot Nos. 1 and 2 bounded George Street at the time of the conveyance of these lots, thereby making former § 5-114 applicable. Thus, the 1972 conveyance of Lot No. 1 to the Boyers conveyed fee simple title to them to the southwestern half of George Street because their predecessors in title (the Pipers) held the property in fee simple.

Similarly, the 1974 conveyance of Lot No. 2 to the Bradys and later the Gordons vested fee simple title in those lot owners to the opposite half of George Street. At the time the Pipers conveyed the remainder of their property to the Bouchers in 1976, the Pipers simply did not hold fee simple title to any portion of George Street. Moreover, this property did not bind George Street, but instead abutted it. Because nothing in the deed indicates that the Pipers express reserved title to George Street, we hold that the conveyance of Lot Nos. 1 and 2 by the original grantors to the respective purchasers of these lots vested fee simple title in each lot owner to the center of George Street in accordance with former § 5-114.

II The Bouchers make an alternative argument that they have an implied easement over George Street by virtue of a plat reference in the Piper Estates plat. To place this issue in proper perspective, we consider it necessary to review ⁶⁸⁸ briefly the nature of easements and the methods by which they may be created. An easement is broadly defined as a nonpossessory interest in the real property of another, see Condry v. Laurie, 184 Md. 317, 320 , 41 A.2d 66 (1945), and arises through express grant or implication. See, e.g., Shpak v. Oletsky, 280 Md. 355, 360-61 , 373 A.2d 1234 (1977); Hancock v. Henderson, 236 Md. 98, 102 , 202 A.2d 599 (1964); Knight v. Mitchell, 154 Md. 102, 105-06 , 140 A. 74 (1928).

Easements by implication may be created in a variety of ways, such as by prescription, see Department of Natural Resources v. Ocean City, 274 Md. 1, 7-9 , 332 A.2d 630 (1975), necessity, Hancock v. Henderson, supra, the filing of plats, Atlantic Constr. Corp. v. Shadburn, 216 Md. 44, 52-53 , 139 A.2d 339 (1958); Klein v. Dove, 205 Md. 285, 294 , 107 A.2d 82 (1954); Mullan v. Hochman, 157 Md. 213, 221 , 145 A. 554 (1929), estoppel, see Atlantic Constr. Corp. v. Shadburn, supra; Knight v. Mitchell, supra, and implied grant or reservation where a quasi-easement has existed while the two tracts are one. See Slear v. Jankiewicz, 189 Md. 18, 23-24 , 54 A.2d 137 (1947), cert. denied, 333 U.S. 827 , 68 S.Ct. 453 , 92 L.Ed. 1112 (1948); 2 G. Thompson, Commentaries on the Modern Law of Real Property § 330, at 94 (J. Grimes ed. 1984).

An implied easement is based on the presumed intention of the parties at the time of the grant or reservation as disclosed from the surrounding circumstances rather than on the language of the deed. Id. § 351, at 287. As a result, courts often refer to extraneous factors to ascertain the intention of the parties. The Bouchers do not claim that they have an express easement or an implied easement by prescription or necessity.

Rather, the Bouchers proceed on the theory that they have an implied easement by virtue of the plat reference to George Street as a means of access to what is now Lot No. 3. An obvious but important factor in determining whether the Bouchers can prevail on this theory is whether their deed contains a reference to a plat that contains a right of ⁶⁸⁹ way. See R. Powell, The Law of Real Property ¶ 409, at 35-53 to -55 (P. Rohan ed. 1984); 2 G. Thompson, supra, § 351, at 302. We hold that it does.

The Bouchers’ deed describes the conveyed property by a metes and bounds description. The deed, however, does so in reference to the entire original Piper tract, including Lot Nos. 1 and 2, which had been conveyed previously to the appellees. The deed contains an “exceptions clause,” which expressly excludes these lots from the grant by reference to the Piper Estates plat. Appellees challenge this clause by arguing that it cannot be relied upon for this purpose.

We disagree. It seems clear to us that the exceptions clause describes the conveyed property as much as the metes and bounds description. Without both, the description of the Bouchers’ property would be incomplete. As we see it, a deed that is silent as to the right of way but refers to a plat that establishes such a right of way creates a rebuttable presumption that the parties intended to incorporate the right of way in the transaction.

See generally Mullan v. Hochman, supra (when a grantor subdivides property shown on a plat as bordering streets he impliedly convenants that the grantee will have an easement over the street shown on the plat). A party may therefore point to the existence of the plat to establish that the parties intended that the right of way depicted in the plat be used by the grantee. In sum, we view this as a reasonable application of the common law rule that a deed reference to a plat incorporates that plat as part of the deed. See Klein v. Dove, supra; Williams Realty Co. v. Robey, 175 Md. 532 , 2 A.2d 683 (1938); see also Schickli v. Keeling, 307 Ky. 210 , 210 S.W.2d 780 (1948); Goldstein v. Beal, 317 Mass. 750 , 59 N.E.2d 712 (1945); Vogel v. Haas, 456