Campbell v. Bishields

Grason, J., delivered the opinion of the Court. The bill of complaint in this case was filed on November 2, 1949, in the Circuit Court for Allegany County, in Equity, by James E. Campbell and Clara M. Campbell, his wife, against Michele Bishields and Congetta Bishields, his wife, for an injunction to restrain the defendants from obstructing a right of way over their land, to which the plaintiffs claim an easement by prescription. An injunction issued on the bill, exhibits, and affidavit thereto. An answer thereto and a motion to dissolve the injunction were filed, testimony taken, and the chancellor, on November 15, 1950, filed a decree dissolving the injunction and dismissing the bill, with costs to defendants, from which this appeal was taken.

It was suggested to the court, before testimony was taken, that Congetta Bishields, the wife of Michele Bi-shields, was dead, and the testimony shows that she died many years before the institution of this suit, and the case proceeded against Michele Bishields as sole defendant, and, of course, the answer and motion to dissolve the injunction were filed by Michele Bishields. ⁵⁷⁴ There was no plat on record of the property here involved, and by agreement of the solicitors a plat, which had been prepared from deeds on record showing how the parties became vested in their respective properties, was admitted in evidence. We request the reporter to file this plat with this opinion. It appears that in 1896 the New York Mining Company conveyed to James H. Winebrenner a tract of land located at Slabtown, in Allegany County, containing 4.01 acres. The title of the parties hereto comes by mesne conveyances from this deed, and their lands are respectively parts of the land conveyed by that deed.

The chain of title shows that on January 21, 1903, Winebrenner conveyed to G. Clinton Uhl 231/100 acres of land, and it seems that out of that tract conveyed to Uhl lots were sold, for on May 6, 1903, Uhl conveyed lot No. 4 to Henry Hoenshell (he also being known as Harry Hoenshell) and on this lot Hoenshell built a house of which he died seized and possessed. Uhl, on April 20, 1907, conveyed to Jonas Basey lots Nos. 5, 6, 7, 8, 9 and 10, and on April 20, 1907, Uhl conveyed lots Nos. 1, 2 and 3 to Henry Hoenshell. On June 24, 1911, James Winebrenner conveyed to Joseph Boor the parcel of land shown on said plat and marked tract “A”, and on September 15, 1904, Winebrenner conveyed to Mary E. Elliott the lot of ground shown on said plat and marked tract “B”; on September 24, 1912, the New York Mining Company conveyed to Mrs. James Elliott (Mary E. Elliott), Harry Hoenshell and Joseph Boor the piece of ground shown on said plat and marked tract “C”, measuring approximately 10 feet in width and 615 feet in length. On August 23, 1913, Boor conveyed to Harry Hoenshell and wife tract “A”; on March 27, 1927, James Elliott conveyed to Marshall Logsdon tract “B” and also his interest in tract “C”; and on June 30, 1939, Logsdon and wife conveyed to Harry Hoenshell and wife tract “B” and his interest in tract “C”.

After the death of Henry Hoenshell (also known as Harry Hoenshell) by deed dated November 14, 1944, tracts “A”, “B” and “C” were deeded ^{575 576} to Edna Hoenshell, widow, for life, and after her death to Clara Campbell. It appears that after both Henry Hoenshell and Edna Hoenshell, his wife, died, the title in lots Nos. 1, 2, 3 and 4, and tracts “A”, “B” and “C”, as shown on the plat, vested in their daughter, Clara E. Hoenshell, who married James E. Campbell, and by deed dated November 21, 1947, this property was caused to be conveyed to Clara Campbell and her husband as tenants by the entireties. On January 20, 1909, lots Nos. 5, 6, 7, 8, 9 and 10 (lot No. 5 at that time being improved) were conveyed to one Pouis Principe, and by mesne conveyances vested in Michele Bishields. Lot No. 4 is improved by a dwélling occupied by the plaintiffs, and lot No. 5 is improved by a dwelling occupied by tenants of the defendant; lot No. 10 is improved by a. dwelling occupied by the defendant, tract “A” is improved by a dwelling occupied by the tenants of the plaintiffs; tract “B” is unimproved, but was improved by a dwelling which was destroyed by fire in 1936.

The sign “X” on the plat indicates the approximate location of said improvements. The area shown on the plat as “D” is the roadway in dispute in this case and this roadway has no outlet in the rear of the property, except in so far as it may be possible to join up with the private road marked “C” on the plat, by going across the property of the plaintiffs. It thus appears that at the time of the institution of this suit the plaintiffs owned lots 1, 2, 3 and 4 and tracts “A”, “B” and “C” (tract “C” is spoken of in this case as the lower lane) and the defendant owned lots 5, 6, 7, 8, 9 and 10, and area “D”, which is the roadway in dispute. We have made a careful study of the testimony in this case, which is voluminous, and shall give our conclusions, calling attention to that part of the evidence we think most important.

We are convinced that under all the testimony in the case the plaintiffs and their predecessors in title have used the roadway over the defendant’s land here in dis ⁵⁷⁷ pute openly, continuously, adversely, and under a claim of right for over twenty years, and it may be that said use has been made of said land for forty years. Sometime in the past, it does not appear definitely when, the defendant erected a gate over this road where it enters the public highway. Sometimes the gate was shut and sometimes open. When it was shut the plaintiffs opened it and proceeded to their home.

There were times when automobiles at the defendant’s home (which is located at the corner formed by the public highway and the roadway in question) would obstruct the roadway, and the plaintiffs and others desiring to use the roadway in question blew the horns of their automobiles and people would come out of the defendant’s home and remove the automobiles and let them through. There is evidence that the plaintiffs and other people repaired the roadway, but this is vigorously denied on the part of the defendant. The defendant said the gate which he erected in the fall of 1949 and which he locked, was the fourth gate that he put up to block traffic. The other gates were wooden gates and less substantial and were never locked.

The fourth gate was the only gate that constituted a barricade to 'this road and prevented its use by the plaintiffs and the general public. The evidence seems to show that the three other gates were, from time to time, destroyed or partially destroyed by being run into and broken down, and there was nothing at all to prevent the use of this roadway by the general public. It is true, according to the defendant’s evidence, that he and members of his household complained of the use of this roadway across his land by the plaintiffs and the general public, but did nothing to prevent the use of the roadway by them. Mrs. Campbell testified that in the year 1912 her father had trouble with Bishields concerning his use of this roadway, and she said she gathered from the talk between her father, Mr. Boor, and Mrs. Elliott that Mr. Bishields compromised it and gave them permission to ⁵⁷⁸ use the road.

There is other testimony in the case that tends to show there was difficulty about using this roadway in 1912 and that around about that time the lower lane or roadway, (tract “C”) leading from the highway to the properties shown on the plat as tracts “A” and “B” was purchased