Dixon v. Frantz

McWilliams, J., delivered the opinion of the Court. In 1905 Garrett Dixon owned “Blooming Rose,” a 270 acre farm fronting on a public road in Garrett County. In March of that year he conveyed to Edwin Dixon 97 acres thereof fronting on the public road. To guard against being landlocked the grantor inserted in the deed the following: “Save and excepting the right of way or road as it is now located and used leading from Garrett V. Dixon’s house up to the county road by way of big barn and brick house, which right of way is hereby reserved unto the said Garrett V. Dixon.” Appellant (Dixon) has owned the 97 acre tract since 1951.

Appellee (Frantz) acquired the remainder (173 acres) of “Blooming Rose” in 1942. More than a half century of unbroken tranquility was shattered in May 1966 when Frantz filed a bill of complaint in the Circuit Court for Garrett County praying the issuance of an order “enjoining and restraining” Dixon from “obstructing the right of way” and requiring him to remove certain “fence posts, rocks and other obstructions” said to have been placed in the right of way. Dixon denied the allegations in the bill and asserted he has “never obstructed the passage of” Frantz. He conceded Frantz’s right to use the right of way but, he declared, the 1905 reservation “included only such width as was sufficient for a wagon to pass over the said roadway.” He recognizes the “roadway as it presently exists as approximately 16 feet wide.” Five color photographs offered by Frantz were admitted into evidence.

They show a typical single track country road ¹⁴⁰ with a row of fence posts on either side. It is evident the road has been in regular use for a considerable period of time. Frantz sought to show by the testimony of Earl Miller, line superintendent for Somerset Rural Electric Cooperative, that the poles of the power line, shown in the photographs as being 6 to 10 feet outside the line of fence posts, were placed originally in the line of fence posts and that Dixon later moved the fence posts 6 to 10 feet closer to the road. Mr. Miller’s testimony seems to us to be inconclusive.

He said he “usually” placed his poles along a fence line and that “to the best of his knowledge” that is where he put these poles. Dixon said the power poles were put in the line of a temporary electric fence. The fence posts shown in the photographs, he said, have always been in the same place. Wesley Michaels is employed by Frantz as a handyman.

One winter day he and Frantz were driving a farm tractor, towing a wagon, up' the right of way. One of the Dixon boys, coming the other way, stopped his car in front of them and, said Michaels, refused to back up. After about 5 minutes Frantz turned out into the field and went around him. Leslie Guard is a farmer.

He was produced as a witness for Frantz. He told about the time in 1960 when he filled Dixon’s silo, an operation which took about lj4 to 2 days. During the day his machinery “had the lane partly blocked.” In the evening it was moved back out of the way. While ensilage was being unloaded from a wagon the road would be blocked for about 10 minutes.

No one was ever inconvenienced by his presence there, he said. In succeeding years he positioned his equipment so that the road would not be blocked at any time. He also said he had known the road for 20 years or more and that there had never been any change in it. Lloyd Jenkins is employed by Frantz.

He said two wagons could not pass unless one got “out of the track.” He said also that the right of way “was around fourteen, maybe sixteen feet between fences.” He recalled that on one or two occasions a milk truck had the road blocked for 15 or 24 minutes. He never tried to move a combine or a corn picker over the road. Dixon testified, however, that recently he saw a corn picker go in to Frantz’s farm. ¹⁴¹ Dixon acquired the farm from his mother and he has lived on it all of his life. He testified it was