Delmarva Power & Light Co. v. Eberhard

Hammond, C. J., delivered the opinion of the Court. One who must decide the meaning of the term “public easements” in the context of the statute, Code (1957), Art. 81, § 112, which makes a decree in a proceeding to foreclose the right of redemption of property sold for taxes final and conclusive and which vests in the plaintiff “an absolute and indefeasible title in fee simple in the property, free and clear of all * * * encumbrances thereon, except * * * public easements to which the property is subject,” 1 must be reminded of Shakespeare’s thought in Act I, Scene 3, of the Merchant of Venice that “the devil can cite Scripture for his purpose.” One view is that a public easement is one which gives the individual members of the general public a right of passage over or the use of delineated or ascertainable areas of land or water (and probably less well-delineated areas of air) ; another view, more amorphous, is that included in the concept of a public easement is an easement which a public utility or public service corporation could acquire by condemnation because it could be so acquired only for a public use. The need to find the answer arises in this wise. In 1961 William Edward Fluharty and his wife conveyed to the Eastern Shore Public Service Company of Maryland (now the Delmarva Power and Light Company) and to the Chesapeake and Potomac Telephone Company of Maryland, by a writing duly signed, sealed, acknowledged and recorded, permission to place on their property near Federalsburg in Caroline County “the overhang of conductors which are to extend from Pole % 39AN * * * to a proposed pole to be located on the property adjoining Grantor’s property to the West” and granted a right of in ²⁷⁶ ■gress and egress for the purposes of construction, inspection, renewal, repair and removal.

The Fluhartys did not pay their taxes and the treasurer of Caroline County sold their property which had an assessed value of $1,800 to recover $133.57 of taxes in arrears. Eberhard, the appellee, bought the property and was issued a Certificate of Sale. The property was not redeemed within the time the law permits and Eberhard filed a bill in the Circuit Court for Caroline County seeking a decree which would foreclose all rights of redemption. Delmarva and the Chesapeake and Potomac Telephone Company were made parties.

Delmarva appeared, asserting that “its easement is a public easement within the purview of § 112 of Article 81” of the Code. The parties stipulated that Delmarva is a Maryland public service or public utility corporation engaged in the exercise of its franchise in the operation and distribution of electricity to various communities including Federalsburg and adjoining areas in Caroline County to those of the public who desire to be consumers of its electric current, that Delmarva is authorized and empowered to acquire by condemnation any property or right whatsoever necessary for its purposes and that on November 24, 1961, Delmarva obtained the easement here involved from the Fluhartys. After consideration of the bill and answer and the stipulation, Judge DeWeese Carter construed the term public easement to mean a public way, that is, a road or street which every citizen has the right himself to use. Delmarva appeals, asserting still that its easement is a public easement.

Clearly a public easement includes an easement that gives members of the public a right of passage over a road or street, whether the bed is privately or publicly owned. 3 Tiffany, Real Property §§ 772 and 923-37 (3d ed.); 2 Americcm Lem of Property § 9.50; 25 Am. Jur. 2d Easements and Licenses, § 7; Lonaconing Railway Co. v. Consolidation Coal Co., 95 Md. 630 . There are other public rights which can be classed as public easements, such as the right in the general public of navigation on the waters of a stream or lake, whether the bed is privately or publicly owned, the similar right of fishing and hunting over ²⁷⁷ navigable waters (sometimes restricted to waters publicly owned), and the right to use parks, squares or commons and beaches and the shores. These public rights are discussed and delineated in 2 American Law of Property, Ch.

IV, “Public Rights,” and in 3 American Law of Property, §§ 12:31-12:34. The easement which a governmental body may have for facilitating the passage of water, sewage, gas or electricity would necessarily be a public easement. The close point in the case is whether the easement which a public service corporation has to permit the passage of cars or to facilitate the transmission of water, sewage, oil, gas, electricity and sludge so as to enable it to fulfill its function of serving the public is a public easement. Easements held by a public utility or a public service corporation which are devoted to public use undoubtedly have analogies to, and points of similarity with, the public easements