Delphey v. Savage

Marbury, J., delivered the opinion of the Court. This is an appeal by the plaintiffs below, from an order of the Circuit Court for Montgomery County, sitting as a court of equity, dismissing their amended bill of complaint praying for injunctive relief against an alleged trespass, and a declaration of absolute ownership of certain land. The record discloses that the appellants and appellees, defendants below, are owners of adjacent lots on Seneca Creek, in Montgomery County, Maryland. A boundary dispute arose as to what constituted the appellants’ south line of their lot which, by the description in appellees’ deed, became automatically the appellees’ north line.

The line in question runs nearly from Seneca Creek on the west to Riley’s Lock Road 1 (which is approximately parallel to the creek) on the east, a distance of somewhat less than 50 feet. There is a building on each ³⁷⁵ of the lots (both parties maintain a boat hoist business on their respective properties), the aforementioned line running between them. As placed by the appellees, the line comes within 3 to 6 feet of appellants’ building, which the appellants claim cuts off access by automobile south of their building from the road to the creek, which access the Delpheys claim their hoist business must have in order to be attractive to prospective customers. Appellants and appellees trace title to their lots to a common grantor, Hatton A. Waters.

Waters acquired two parcels of land by deed from Mary E. West—from one of which parcels the lots here involved were carved—by deed in 1926, the parcel from which the subject lots came being described as a perfect parallelogram, 293 feet by 500 feet. The first conveyance out from Waters was by deed dated June 10, 1928, to Hunter Pumphrey and John H. Pumphrey, for a lot described as follows: “. . . all that part of a tract, piece or parcel of land situate, lying and being in said Montgomery County, Maryland, and described as follows; to wit: Beginning for the same at an iron pipe marked A Driven in the ground between Seneca Creek and Seven Locks road at a point 215 2/10 feet east [southeast] from the beginning of the 7th line of a conveyance made the 23rd day of September, in the year 1926, by Mary E. West to Hatton A. Waters for 3 54/100 acres of land, more or less, and recorded in Liber P.B.R. No. 412, Folio 35, one of the Land Records of said Montgomery County, Maryland and running thence with said 7th Line South 8 degrees, 15 minutes East 75 feet to a pipe marked B, thence to include a part of the aforesaid conveyance north 78 degrees 27 minutes, 34 3/10 feet to pipe marked C on Western Boundary of aforesaid road, thence with said road North 11 degrees 28 minutes West 74 9/30 feet to pipe marked D, thence South 78 degrees 27 minutes West 30 2/10 feet to the place of beginning containing 2410.7 square feet, more or less, . . .” ³⁷⁶ This lot was conveyed by Pumphrey to Robert C. Albright in 1934 and will be referred to as the Albright lot. The next conveyance out from Waters in the order of seniority was by deed dated June 22, 1928, to Brice P. Selby, et al., for a lot described as follows: “Beginning for the same at an iron pipe marked E Driven in the ground at a point three hundred and six tenths feet from the conveyance made the twenty-third day of September, nineteen hundred and twenty-six by Mary E. West to Hatton A. Waters, for three and fifty-four one-hundredths acres of land, more or less, and recorded in Liber P.B.R. No. 412 folio 35 one of the Land Records of Montgomery County, Maryland, said pipe is south eight degrees and fifteen minutes east ten feet from stone marked B at end of first line of a conveyance from Hatton A. Waters to H. and J. H. Pumphrey and is between Seneca Creek and Seneca Locks Road, and running thence with aforesaid seventh line south eight degrees fifteen minutes East seventy five feet to an iron pipe marked F thence to include a part of the aforesaid conveyance (Mary E. West to H. A. Waters) north seventy-eight degrees and twenty-seven minutes East forty and three tenths feet to pipe marked G on western boundary of Seneca Locks Road thence with western boundary of said road North twelve degrees and sixteen minutes east seventy-four and nine-tenths feet to stake marked H. thence south seventy-eight degrees twenty seven minutes West thirty-five and five hundredths feet to the place of beginning, containing two thousand eight hundred and twenty and four tenths (2820.4) square feet of land, more or less.” It was this lot that was conveyed in June 1950 to appellants and will be referred to as the Selby lot. It will be noted that the pipe marked E, the beginning of the Selby lot, is at a point 300.6 feet from the beginning of the 7th line mentioned in the deed from West to Waters.

By adding to 215.2 feet from the beginning of said 7th line, which ³⁷⁷ is the beginning point of the Albright lot, 75 feet along that line, which is the western boundary of the Albright lot, and 10 feet from stone marked B in the Albright lot conveyance, the total distance along that 7th line to the point of beginning of the Selby lot is 300.2 feet, which is only .4 of a foot from the location of the pipe marked E, the beginning point of the Selby lot. At or about the time of the Waters to Selby deed, two pipes were placed in the ground by Waters to demark a right of way from Riley’s Lock Road to the creek, and the southeast and northeast corners of the