Drolsum v. Luzuriaga

ALPERT, Judge. This case concerns the parties’ rights and obligations with respect to an easement that crosses the appellants’ (the Drolsums) property. The case reaches this court after a series of proceedings that culminated in a trial, upon the conclusion of which the court issued a memorandum opinion and order in the appellees’ favor. This appeal ensued, and for the reasons articulated herein, we shall affirm in part, reverse in part, and remand for further proceedings.

FACTS In 1973, John Hannon purchased 617.744 acres of land lying on the northwest side of Arters Mill Road and on both sides of Babylon Road in Carroll County. He subdivided ⁴ the property into thirty-three lots, and sold each of them. Hannon is not a party to this action. Several of the lots adjoin West Valley Lane (Lane), a dirt and stone right of way running from Arters Mill Road, through and along several of the lots, to Babylon Road.

The segment of West Valley Lane that concerns us is that portion running through Parcel 13 and intersecting with Babylon Road. Alton and Helen Drolsum, the defendants below, and the appellants here, own Parcel 13. Hannon first conveyed a lot abutting the right of way (the Lane) in July, 1973. Hannon deeded Parcel 21 to Irwin and Roña Desser, and the Dessers in turn conveyed the lot to David and Carol Jung Home in 1983.

Both deeds contained this language: AND ESPECIALLY to the use in common with others of an existing private roadway leading northward to the Babylon Road and eastward to Arters Mill Road. Next, Hannon conveyed a parcel adjoining the right of way on August 28, 1973. Hannon deeded Parcel 20 to Frank Strutz, who conveyed it to Roland and Rosalind Spurrier 1 on July 10, 1979. Parcel 20 is landlocked.

Each deed conveying Parcel 20 contained the following language: TOGETHER WITH the right and privilege to the use, in common with others, of a right-of-way fifteen feet (15') wide over an existing bridle trail leading from the western edge of the parcel of land hereby conveyed over and across all that lot or parcel of land, containing 8.252 acres, described in a Deed of John D. Hannon to Irwin Desser et al., dated July 29,1973 and recorded among the Land Records of Carroll County ... to intersect the aforementioned roadway leading northward to the Babylon Road and eastward to Arters Mill Road. The “aforementioned private roadway” is described as “a private right-of-way leading eastward to intersect a private roadway leading northward to the Babylon Road and east ⁵ ward to Arters Mill Road.” Obviously, this language refers to the Lane. The original deed does not explicitly grant a right to use the twenty foot wide private roadway. On June 28, 1979, however, Hannon executed a “confirmatory” deed to Strutz clarifying that Hannon intended in the original transaction to convey a right of way over “the 20 foot wide private roadway leading northward to the Babylon Road and eastward to Arters Mill Road.” On April 16,1974, Hannon deeded Parcel 37 to Harry and Alice Kunishi.

That lot lies along Arters Mill Road, and their deed contains no reference to the right of way. On April 29, 1974, Hannon conveyed Parcel 31 to Morris and Ferol Lieberman. The deed contained the following language: TOGETHER WITH the use in common with others entitled thereto, to an existing private roadway extending westward and northward to the Babylon Road and southward and eastward to Arters Mill Road, as the same is now or may hereafter be located. The Liebermans conveyed the property to Albert and Amy Womanski on February 5, 1987.

Hannon conveyed Parcels 12 and 13 to the Drolsums on May 6, 1974. Their deed contained the following language: SUBJECT to the use in common with others entitled thereto, for a period of not more than one year from the date hereof, of an existing private roadway leading northward to the Babylon Road and southward and eastward to Arters Mill Road, as the same is now located. TOGETHER with the use in common with others entitled thereto of a 20 foot roadway easement, the centerline of which is to be located as near as can be on the westernmost boundary of Parcel Thirteen, and in no event, and at no point more than 80 feet within Parcel Thirteen; and TOGETHER with the use in common with others entitled thereto of the existing private roadway extending Southward and Eastward to Arters Mill Road as the same is now or may hereafter be located. ⁶ Later that year, the Drolsums also purchased Parcels 11 and 14, each of which abuts Babylon Road. Neither of those deeds mentions the right of way.

Subsequent deeds of lands situated along the roadway on the Babylon Road side of the subdivision refer to the right of way as “a private road, 20 feet wide, leading westward and hence northward to Babylon Road.” The deeds grant the right “to the use in common with others of an existing private roadway leading eastward to Arters Mill Road and westward and thence northward to the Babylon Road.” West Valley Lane passes between the Drolsums’ house and their barn. The dispute arose sometime in 1986 or 1987, when the Drolsums began obstructing access to the Lane. Other property owners began using a farm lane running behind the Drolsums’ bam or going the long way around via the Lane to Arters Mill Road. The plaintiffs in the case below owned lots that adjoined and/or were served by the Lane.

In January, 1988, they filed this action in the Circuit Court for Carroll County, asking the court to determine the parties’ rights and obligations with respect to the Lane, including its location, width, and maintenance. The defendants in that action, among them the Drolsums, were owners and lienholders of other property in the subdivision, and along the Lane. The plaintiffs also asked the court to enjoin the Drolsums from interfering with their use of the Lane. The court, Bums, J. presiding, entered an interlocutory injunction on June 9, 1989, directing the Drolsums to allow several of the plaintiffs unobstructed access to the segment of the Lane running through their curtilage.

The persons so protected were David and Carol Home, Rosalind Spurrier, and their respective clientele. On March 21, 1990, the court entered summary judgment decreeing that the Hornes own an easement to use that portion of the Lane running through the Drolsums’ curtilage. The court refused to grant the same decree in Spurrier’s favor. ⁷ The Trial Court Proceedings The Drolsums argued that those to whom Hannon conveyed the right prior to May 6, 1974, are the only people entitled to use the easement passing through their curtilage. This argument arises from the fact that their deed of that date limits to one year the roadway’s use “as the same is now located,” and creates thereafter a twenty foot roadway easement running along Parcel 13’s western boundary, for use in common with others.

Noting that the Hornes already had won summary judgment decreeing their entitlement to use the curtilage roadway, the trial court found that the Womanskis and Spurrier, and their respective clientele, have an easement to use the existing roadway running through the Drolsums’ curtilage. Each of these parties obtained their rights to the curtilage easement because their predecessors in interest obtained their deeds before May 6, 1974. The trial court limited all other grantees to using the relocated roadway, each of these grantees having received their right to use the Lane after the May 6, 1974 deed from Hannon to the Drolsums. The deed describes the new roadway as follows: a 20-foot roadway easement, the centerline of which is to [be] located as near as can be on the western most boundary of Parcel Thirteen and in no event, and at no point more than 80 feet within Parcel Thirteen.

The plaintiffs also took issue with several signs the Drolsums erected at the Lane’s intersection with Babylon Road. The court inspected the corner, decided that the number of signs was excessive, and ordered that the Drolsums be allowed to erect one sign of reasonable size at either or both ends of the original roadway, indicating “No trespassing by unauthorized persons.” The trial court enjoined the Drolsums from attempting to limit roadway access to persons authorized to use the original easement. Apparently, the Drolsums used barriers, dismantled or removed others’ efforts to make the Lane ⁸ more passable, and harassed legitimate users. The court also enjoined the Drolsums from interfering with authorized use of the relocated roadway.

The court found that the Womanskis’ deed entitled them to use the original roadway through the Drolsum’s curtilage, until the roadway is relocated along the property’s western boundary. As we have seen, supra, their deed entitled them to use “an existing private roadway ... as the same is now or may hereafter be located.” The court ordered the Womanskis to use the new roadway, once it is established. As to Spurrier’s rights, the trial court found that Spurrier, too, has an easement to use the original roadway through Drolsum’s curtilage. Referring to Maryland law recognizing implied easements and easements by necessity, the court concluded that without the grant of the additional right of way, Parcel 20 would remain landlocked, and the confirmatory deed clearly states the parties’ original intention to transfer that right of way.

Because these events preceded Hannon’s May 6, 1974 conveyance to the Drolsums, which limited use to the relocated roadway, the trial court ordered that Spurrier has the right to use the original roadway. The court, acting sua sponte, found an implied grant in the Nemelas’ favor to use an easement through the Drolsums’ curtilage. The court noted that the deed for Parcel 23 does not mention a grant of an easement to use the twenty foot wide roadway but reasoned that the Nemelas were entitled to an implied easement, as their lot would be landlocked without it. The implied grant dated from November 22, 1978, at the time of Hannon’s original conveyance.

Because this post-dated Hannon’s May 6, 1974 conveyance to the Drolsums, which limited easement use to the relocated roadway, the trial court found that the Nemelas could use the relocated roadway, and not the curtilage roadway. In sum, the court found that the Homes, Spurrier, and the Womanskis, and their respective clientele, are entitled ⁹ to use the original roadway through the Drolsums’ curtilage. The court also concluded that the following people and their clientele are entitled to use West Valley Lane after it is relocated to the westward boundary of the Drolsums’ property: the Homes, Spurrier, the Womanskis, the Drolsums, Mr. Peddicord (successor in title to the Permenters), the Wamplers (successors in title to the Masons), the Zurls, the Nemelas, the Luzuriagas, and the Leeches. The trial court determined that those benefiting from the roadway’s relocation should contribute to the cost.

Reasoning that the Drolsums would benefit most from the relocation, the court assessed them a fifty percent share in financing the road’s relocation. It assessed Spurrier and the Homes twenty percent each and ordered the Leeches and the Nemelas to shoulder five percent each. The court specifically exempted the Luzuriagas from sharing this burden. 2 The court ordered that the relocation should occur within one year but left to the Drolsums’ discretion the new roadway’s exact location, provided that it is within the area between the westernmost boundary of Parcel 13 and the present roadway. Once relocated, all parties 3 would be entitled to use West Valley Lane, and each would be responsible for its maintenance.

The Drolsums now appeal, and ask the following: ¹⁰ I. Whether viewing of the subject properties by the trial court through an [sic] surrogate, without prior notice to the parties or an opportunity for them to be heard concerning the surrogate’s report, rendered the challenged decision procedurally defective.

II

Whether Appellee David Home agreed to forego his right to the private roadway easement in exchange to [sic] a right to the property-line easement.

III

Whether an express easement upon Appellants’ property over an “existing private road” now should be extinguished by application of the doctrine of comparative hardship and because of an estoppel that operates against the owners of that easement because of their acceptance of another easement that provides equally direct, convenient, and inexpensive access to the nearest public road.

IV

Whether, if the existing private road easement is not to be extinguished as urged by Appellants in Part B hereof, the trial court erred in granting two concurrent easements upon Appellants’ property to the owners of each of two dominant tenements. V. Whether the confirmatory deed to Mrs. Spurrier’s predecessor in title could effectively convey a right to an easement that was not expressed or necessarily implied in the prior deed and which had been extinguished by the Hannon-Drolsum deed.

VI

Whether, if the existing private road easement is not to be extinguished as urged by Appellants in Part B hereof, the trial court erred in denying Appellants’ request to be permitted to erect gates at the termini of that easement.

VII

Whether Appellants may properly be required to bear any of the expense of “relocating” the existing private road easement.

VIII

Whether Appellants may properly be required to bear any of the expense of maintaining a new roadway over the property-line easement.

IX

Whether the trial court’s order forbidding Appellants from erecting more than two “no trespassing” signs ¹¹ and prescribing precisely the language to be used in the signs infringes Appellants’ free speech rights. I. The Court’s Visit to the Roadway The Drolsums argue that the trial judge improperly viewed, and then improperly directed his law clerk to look at, the subject properties without giving the parties prior notice or an opportunity to be heard and that this requires us to vacate the court’s April 22,1991 order. The Drolsums argue that they were improperly denied an opportunity to see or hear the clerk’s report, to question her, and to submit evidence explaining or rebutting her report. For reasons that we shall elaborate herein, we do not agree that the order must be vacated, although we regard some of the court’s activities as inappropriate. a.

The Trial Judge’s Inspection The trial judge visited the subject property before issuing the court’s written opinion and order and indicated in the opinion that he had done so. And in the court’s order denying the Drolsums’ Motion to Alter or Amend Judgment and denying the Appellees’ Motion to Revise Judgment, the judge signified that his law clerk visited the subject properties for the purpose of refreshing the court’s recollection concerning the driveways of landowners other than the Drolsums. In that order, the judge indicated that the court “personally inspected] the subject property at the request of counsel.” Nevertheless, the record does not document any such request. Under the circumstances, we do not think unreasonable the trial judge’s visit to the disputed property.

Maryland Rule 2-515(b) provides as follows: [T]he court, on motion of any party or on its own initiative, may order that the trier of fact view any property that is involved in the litigation or any place where a material fact in issue occurred. The judge shall be present at and shall supervise the view and shall be the ¹² only person permitted to make any statement to the jury during the view. Subsection (c) provides that “[t]he parties, their attorneys, and other representatives may be present during a view.” Dean Wigmore wrote that when the judge is the fact finder, the judge may appropriately view the evidence, “provided only that [the judge] observe the usual rule of fairness for a jury view, viz., that he notify the parties and allow them to attend him at the view.” 4 Wigmore, Evidence, § 1169 (J.H. Chadboume ed. 1972). The case Owen v. Hubbard, 260 Md. 146 , 271 A.2d 672 (1970) supports our conclusion that the judge did not behave improperly.

In Owen , the appellants argued that the trial judge improperly viewed premises under circumstances similar to those in the case sub judice. The judge viewed the premises without either side being present. He stated that counsel for each side had orally consented to this, but the appellants’ counsel did not recall giving consent. Id. at 154 , 271 A.2d 672 .

The Court of Appeals concluded: [The judge’s] view of the premises does not appear to have been improper. He quite strongly believed he had obtained the consent of both sides, even though the better practice would have been to let the record reflect this understanding. Moreover, the abstruseness of the boundary question involved here would suggest that anyone would need to get his bearings to adequately resolvé this case. His actions were imbued with the “common sense” of which Dean Wigmore speaks in his discussion on views of the premises by the trial judge.

Consonant with the reasoning expressed in Owen , we conclude that the trial court’s actions were not improper. The judge’s order denying the Drolsums’ Motion to Alter or Amend Judgment indicates that “the Court did personally inspect the subject property at the request of counsel.” We cannot affirmatively say that the request was not made and note that in the proceedings below the Drolsums’ counsel are different from their counsel in these proceedings, and this could account for some of the confusion on this matter. ¹³ Although this request did not find its way into the record, we nevertheless are persuaded that the judge, at a minimum, believed that he had the consent of each side. While the trial judge was justified in investigating the properties to determine which of the parcels would gain the most benefit from relocating the easement and to determine the fair allocation of the project’s cost, it would have been the better practice to place on the record a waiver by counsel for the parties of their right to be present during a view of the subject property. See M.R. 2-515(c).

The Law Clerk’s Inspection We do not view in the same light the law clerk’s visit to the properties at the court’s request. As we have seen, supra, Maryland Rule 2-515(b) requires that a judge be present at any viewing. Because the able and experienced judge was not present, the law clerk’s inspection was error. Moreover, the judge’s reliance upon the clerk’s observations could be construed as an impermissible independent investigation.

In Legal Aid Bureau, Inc. v. Bishop’s Garth Assocs. Ltd. Partnership, 75 Md.App. 214, 223-24 , 540 A.2d 1175 (1988), a case in which this court determined that the trial judge erred as a matter of law to the extent that he considered the jury foreman’s remarks in determining whether one of the party’s comments warranted sanctions, we said that, “A judge may not conduct ‘any kind of independent investigation’ into the facts that he or she must ultimately determine.” See also Wiseman v. State, 72 Md.App. 605, 609 , 531 A.2d 1311 (1987) (judge’s personal knowledge of disputed evidentiary facts requires recusal). The fact finder’s role, whether judge or jury, is to receive the facts and arguments as framed by counsel. The trier of fact must make its decisions based upon material presented in court, within rules of evidence and procedure.

In jury trials, efforts are made to exclude outside influences and prejudicial evidence so that they do not affect the jury’s judgment. These procedures are not used when a judge ¹⁴ sits as the fact finder because of the presumption that a judge is able to exclude outside influences from his or her decision-making. Neither the jury nor a judge, in his or her capacity as trier of fact, is allowed to conduct an independent inquiry into the case. The appellants argue that the parties have no way of knowing the extent to which the judge relied upon the law