Cristofani v. Board of Education

CATHELL, Judge. H. Susanna Cristofani appeals from the judgment of the Circuit Court for Prince George’s County dismissing her amended complaint to quiet title, which was based upon adverse possession and/or abandonment by the appellee, Board of Education of Prince George’s County. On appeal she asks the following questions, which we paraphrase: 1. Whether the trial court erred in dismissing her complaint on the basis that she had failed to allege any act on the part of appellee which would indicate an intent to abandon. 2.

Whether the trial court erred in granting the dismissal on the ground that she failed to state a claim upon which relief would be granted in that a possessory interest in land cannot be acquired by abandonment. The determinative issue is: May a fee simple interest in land be lost by abandonment? We hold that it cannot and shall affirm the judgment of the circuit court, which was pronounced by Judge Salmon. We explain.

The Facts The Board owned property adjacent to appellant’s property. A fence existed inside the Board’s property line that was adjacent to appellant’s property. The fence was not, however, ⁹² on the property line but some distance within the Board’s property leaving a portion of that property outside of the fence. Appellant, over a period of years, planted fruit trees on the Board’s property between the fence and the Board’s property line.

Appellant’s complaint below claimed that portion outside of the fence as her property under the theory of abandonment. The Law Applied to the circumstances surrounding this case, the theory of abandonment is primarily a part of easement law, ie., the right to utilize land owned by others and the extinguishment of that right. 1 Abandonment is but one method wherein dominant users of easements can relinquish their rights to the servient owners. The early case of Wright v. Freeman, 5 H. & J. 467 (1823), concerned extinguishing an easement over private property by non-use (abandonment). There, non-use created a presumption of “release of the right” to the servient holder.

The Court stated: If therefore the adversary user of a right of a way over the lands of another for twenty years, shall be a sufficient foundation to presume that the right originated in grant, it must follow, upon every principle, that the non-user of the right may be extinguished, by presuming a release of it for the purpose of quieting the possession. [Emphasis added.] ⁹³ Id. at 477 . The court, in using the term “quieting the possession,” was talking about the fee simple owner’s possession. It was stating that, if a right of way can be acquired against a fee simple owner by adverse user, the right to use the way could also be released (or abandoned) by non-use. See also Cherry v. Stein, 11 Md. 1, 21-22 (1858).

In Browne v. The Trustees of the Methodist Episcopal Church in the City and Precincts of Baltimore, 37 Md. 108, 119-20 (1872), the Court opined: If the right ... had been acquired ... by adverse user, for twenty years; its non-user for a like space of time, would extinguish any right they acquired ... because such cesser to use the road would afford legitimate presumption of a release of the right. Whilst a grant of a right of way may be presumed, from its long use and enjoyment, the release of such acquired right may be inferred from its continued abandonment, or forbearance to use it. The presumptive grant, and the presumptive release, rest on the like basis.... [Citation omitted.][ 2 ] See also Allori v. Dinenna, 188 Md. 1, 4 , 51 A.2d 819 (1947) (where as dicta the Court said, “[W]here the use of an alley has been abandoned ... [and the servient owners act in reliance on this, the dominant tenants] are not entitled to the aid of a court of equity to establish his or their right to the easement.”) Also, in Maryland and Pennsylvania Railroad Co. v. Mercantile-Safe Deposit and Trust Co., 224 Md. 34, 39 , 166 A.2d 247 (1960) (Ma and Pa), the Court stated: The general rule is that the right and title to a mere easement in land acquired by a quasi -public corporation ... for a public purpose is dependent upon the continued ⁹⁴ use ... for that purpose, and when such public use is abandoned the right to hold the land ceases, and the property reverts to its original owner.... Ma and Pa emphasizes that the theory of abandonment applies to real property rights less than fee simple ownership, ie., easements, uses, etc. Even under the theory of abandonment, if it were found to be applicable in the case at bar and then if the facts supporting abandonment were to be found, the property right abandoned reverts to the fee simple owner of the land.

The fee simple owner, in the case at bar is the appellee, not the appellant. See Mayor of Baltimore v. Chesapeake Marine Ry. Co., 233 Md. 559, 576 , 197 A.2d 821 (1964) (where abandonment of a street easement by Baltimore City was claimed to have vested the easement in the fee simple owner, thus merging it in “what in effect is equitable prescription.” The Court acknowledged that easements may be abandoned though they found no abandonment in that case. But the abandonment theory was only discussed in relation to easements.) In Shuggars v. Brake, 248 Md. 38 , 234 A.2d 752 (1967), the Court found that the easement had not been abandoned merely because the servient tenant had not often used it for nine years.

The Court, in rejecting the theory of abandonment, noted critically that the appellant’s assertion was in essence an improper claim of abandonment of fee simple property. That the road was not often used ... during the nine-year period was attributable to the fact that she no longer lived on the parcel of land. To say that the owner had abandoned the use under the existing circumstances would be tantamount to saying that she had abandoned the land. Id. at 46 , 234 A.2d 752 .

See also Ayres v. Hellen, 235 Md. 258, 261 , 201 A.2d 509 (1964); Millson v. Laughlin, 217 Md. 576, 588-89 , 142 A.2d 810 (1959); Klein v. Dove, 205 Md. 285, 295 , 107 A.2d 82 (1954) (“[m]ere non-user of a right of way is not necessarily an abandonment of it”); Knotts v. Summit Park ⁹⁵ Co., 146 Md. 234, 240 , 126 A. 280 (1924) (“mere ” erection of a fence across a right of way will not destroy an easement); Vogler v. Geiss, 51 Md. 407, 410 (1879) (“a party entitled to a right of way or other mere easement in the land of another may abandon ... such right....” (emphasis added)). Appellant cites Messersmith v. Mayor and Common Council of Riverdale, 223 Md. 323 , 164 A.2d 523 (1960), to support her claim to a fee simple interest in the disputed property under the abandonment theory. Neither we, nor the trial court, construe it as supporting her argument. Especially in light of the cases we cite earlier, we perceive Messersmith as holding that abandonment is not applicable to divesting or acquiring title to fee simple property. 3 In that case, the Messersmiths had enclosed and used the city-owned property at issue for over thirty-three years before suing to quiet title under an abandonment theory.

The Messersmiths conceded that ordinarily adverse possession did not apply to the city-owned property but that since abandonment had occurred, the rights of the public to be free from having the public’s property adversely possessed, were not affected. The Messersmith Court opined: The gist of the abandonment contention is apparently based on the theory that the town, having failed to exercise any of the usual or normal functions of ownership over the lot, title thereto has been abandoned. The claim is without substance. Id. at 326 , 164 A.2d 523 .

Appellant emphasizes the Court’s dicta at 326-27 — that in order for there to be an abandonment “[t]here must always be some affirmative or straight-forward act to indicate an intention to abandon” and apparently proffers that the maintenance of the fence was that act in the case sub judice. Appellant failed to emphasize the very next statement of the Court, that ⁹⁶ irrespective of an intention to abandon, it has been held that the abandonment of a possessory interest in real property is different from the rule applicable to the possession of an easement or the ownership of personal property in that ownership of a possessory interest in real property, such as there was in this case, can never be lost solely by abandonment. Id. at 327 , 164 A.2d 523 . Then, rather than clearly stating that abandonment theory could not be used to divest fee simple title to real property, the Court disposed of the case by opining that “[i]n any event” no intention to abandon had been shown.

Id. By using the phrase “solely by abandonment” and deciding the case on the premise that proof of intent was lacking “[i]n any event,” the Court gave the appearance of using “abandonment” principles to decide a case where abandonment principles were inappropriate. Appellant seized upon that enigmatic treatment as opening the door to the seizure of real property under the theory of abandonment. Judge Salmon closed the door.

We shall attempt to lock it. Messersmith , as indicated, involved municipal property rights. There is a statutory requirement (as opposed to a theory) governing municipal property and its usefulness. Maryland Annotated Code Article 23A, section 2(b)(24) (Annotated Code, 1951, section 2; 1947 ch. 731, see. 2), required (as it now does) that municipal property cannot be sold until a “legislative body determines that the same is no longer needed for any public use.” This statutory requirement for a “no need” finding might be characterized as requiring a formal abandonment of a property’s public use characterization.

This finding must necessarily follow actual non-use. Thus, under the statute, a mere non-use would not authorize the sale or conveyance of public property. There must also be a specific legislative finding that no public need or use for the property remains. See Inlet Assocs. v. Assateague House Condominiums Ass’n, 313 Md. 413 , 545 A.2d 1296 (1988) (Art. 23A2 confers ordinance making power.

Thus, an ordinance is required in order to convey city street to developer). Whether ⁹⁷ this statutory requirement led the Messersmith Court to use the phrase “solely by abandonment” is unclear. Abandonment, under some circumstances, might also be evidence relevant to adverse possession or prescription issues. Whether the Court’s use of the term “solely by abandonment” referred to it in connection with adverse possession or prescription theories is equally unclear.

What is clear is that the abandonment theory does not apply to divest title to fee simple property. Appellant noted in her brief that we quoted Messersmith in King v. Bankerd, 55 Md.App. 619, 623 , 465 A.2d 1181 (1983), aff'd, 303 Md. 98 , 492 A.2d 608 (1985), and held that the doctrine of abandonment applied to claims for a possessory interest in real property. That was not our holding. In King , Bankerd had executed a power of attorney that allowed King to transfer the subject property.

Bankerd disappeared and his wife subsequently requested that King convey Bankerd’s interest to her. King, believing Bankerd “had abandoned his interest in the property,” conveyed Bankerd’s interest, without compensation for the conveyance, to Mrs. Bankerd. Id. at 622-23 , 465 A.2d 1181 . Mr. Bankerd reappeared, filed suit against King for wrongful execution of the power of attorney, and received a judgment against him.

Id. We affirmed. In doing so, we merely noted the Messersmith language. We did not hold that the theory of ábandonment can be used to divest a person’s fee simple ownership of property.

Authorities elsewhere have long held that abandonment cannot divest the title to fee simple property. 1 Am.Jur.2d Abandonment, Lost, Etc., Property sections 13 and 14, at 14-15 (1962), provides: The general rule is that the legal doctrine of divestiture of title to property by abandonment is not applicable as to real property where the state has passed a perfect legal title thereto; such a title remains vested until it passes by grant, descent, adverse possession, or some other operation of law such as by escheat or forfeiture. ⁹⁸ While a corporeal hereditament cannot be the subject of abandonment, easements, franchises, and other incorporeal hereditaments may be lost by abandonment. [Footnotes omitted.] Black’s Law Dictionary 726 (6th ed. 1990), defines corporeal and incorporeal hereditaments: [C]orporeal hereditaments were physical objects, comprehended under the term land ... while incorporeal hereditaments existed only in contemplation of law ... affiliated with chattel interests.