Duval v. Becker

McSherry, J., delivered the opinion of the Court. The facts out of which the questions now before us arise, are as follows: In 1877 Dodson and wife executed to H. A. Thompson a mortgage upon a lot of ground then situated in Baltimore County, but now lying within the limits of Baltimore City, which lot we will designate Lot A. The only means of access to this lot was over a private right of way across what is now the Duval lot, which adjoins Lot A on the east. This right of way, whose centre line was clearly defined by courses and distances, was specifically included, by accurate description, in the above named mortgage. The mortgage was subsequently' assigned by Thompson to Loney, and then by Loney to Hughes, and finally by Hughes to Whelan.

Whelan foreclosed it in November, 1890. At the sale Taylor bought the Lot A, and it was duly conveyed to him after the sale had been ratified. He afterwards sold the same lot to Bay-less, who, on March 26th, 1891, conveyed it to the appellee, Becker. In the advertisement of the foreclosure sale, and in the deeds from Whelan to Taylor, from Taylor to Bay-less, and from Bayless to Becker, the right of way is described in precisely the same terms that are used in the Dodson mortgage.

Thus, according to the record evidence before us, Becker, the appellee, has, by the conveyances alluded to, a clear paper title to the right of way. In 1883 H. Webster Crowl acquired the equity of redemption in this Lot A, and in a lot adjoining it on the south, and binding on North avenue. This last named lot we will call Lot B. Crowl owned, in addition, the fee-simple of several lots adjoining on the east, one of them being the Duval lot, ⁵⁴³ or the one over which the right of way appurtenant to Lot A was located. In 1888 or 1889 he closed up this right of way over the Duval lot, then owned by him in fee, and opened without the consent of the mortgagee, then holding the mortgage on Lot B, a different way across Lot B, from North avenue to Lot A. The mortgage on Lot B was subsequently foreclosed and without any reference to or mention of this new way so laid out by Crowl, and called by him Windsor avenue, Lot B was sold and conveyed to Spaulding, who later on conveyed it to Becker, the appellee.

After closing up the first named right of way over the Duval lot by building a terrace on the bed thereof, Crowl conveyed the servient tenement, over which.the right of way described in the Dodson mortgage extended, to Llewelyn without any reservation in the deed of the right of way at all. Through several 'mesne conveyances the title to this lot — now called the Duval lot — finally became vested in the appellant’s wife. In May, 1893, the appellant — the husband of the owner of the Duval lot — erected a v/ire fence across the route of the private way described in the Dodson mortgage, and thereupon this suit was brought against him by the appellee, Becker — the owner of Lots A and B — for obstructing his, Becker’s, use of said way. Upon the trial in the Superior Court of Baltimore City a single exception was reserved, and that brings up for review the rulings of the learned trial Judge upon the prayers for instructions to the jury.

The verdict and judgment were in favor of the plaintiff, and the defendant, Duval, has appealed. At the instance of the plaintiff, Becker, who is the appellee in this Court, the jury were instructed in substance, that under the papers offered in evidence, being the deeds and record evidence to which brief reference has been made, the right of way appurtenant to Lot A, over and across the Duval lot, was included in the Dodson mortgage; that the mortgaged property, including the right of way, was sold, and the title thereto passed by regular conveyances to the ⁵⁴⁴ plaintiff; and that if the jury should find that the appellant had thereafter erected the wire fence described in the evi-' dence, and had thereby obstructed the said way, “then the plaintiff is entitled to recover * * * * unless they find that said Hughes, Whelan, Bayless or Taylor acquiesced in the abandonment or closing of said right of way before the said plaintiff purchased the property so covered by said mortgage; and they are instructed that there is no evidence legally sufficient in the case to show such acquiescence.” The defendant asked four instructions, all of which were refused. By the first he requested the Court to say to the jury that under the various deeds Crowl, when he purchased the equity of redemption in Lots A and' B, and the fee-simple in the Duval lot, became the owner of these sevenjL lots, and by virtue of the unity of the title thereby acquired in said lots the right of way which prior to the union of such titles had been appurtenant to Lot A over the lot now owned by Duval, became and was extinguished; and the plaintiff was not entitled to recover, provided the jury should find that the Dodson mortgage on Lot A was not due and in default when the titles united, and that the extinguishment of the right of way did not impair the security of the mortgage debt. By the second prayer he asked the Court to rule that the omission from Crowl’s deed conveying to Llewelyn what is now the Duval lot of a clause reserving any right of way in favor of Lot A over the servient estate, operated in law as an extinguishment of the right of way which previously existed; and the plaintiff would not be entitled to recover, provided the jury should find that the Dodson mortgage on Lot A was not due and in default when the conveyance to Llewelyn was made, and that the extinguishment of the right of way did not impair the security of the mortgage debt.

The third prayer is founded on the theoiy that if Hughes, before he purchased the Dodson mortgage, went upon the property and saw that Crowl had abandoned the old road, and thereafter became the ⁵⁴⁵ assignee of the mortgage, and if Bayless, when he bought from Taylor, also knew of this abandonment, and if the plaintiff when he bought from Bayless was likewise apprised thereof, and subsequently used the Windsor avenue way opened by Crowl over Lot B; and if the closing of the original private way occasioned the plaintiff no damage prior' to the institution of the suit, and the Windsor avenue way was a shorter, better and more convenient way for the plaintiff, and that the re-opening of the other way over the Duval lot will be injurious to the defendant and be of no benefit to the plaintiff, then the plaintiff is not entitled to recover. The fourth prayer denies the plaintiff’s right to recover if Bayless and the plaintiff knew that Crowl had abandoned the old and opened up a new right of way. It is thus apparent that the question lying at the very root of the controversy is, whether a mortgagor can before default by his own act, and without the consent or acquiescence of the mortgagee, and as against the latter, abandon an easement appurtenant to the estate mortgaged, which easement is in express terms included within and covered by the lien of the mortgage, and can by such abandonment so bind the mortgagee that, though upon foreclosure the property and appurtenant easement are sold together as an undivided entirety, precisely as conveyed by the mortgage, yet they are to be treated as so completely severed by the abandonment on the part of the mortgagor as that the easement is in fact extinguished, if the security of the mortgage debt has not been ultimately impaired by such abandonment. The solution of this question, which involves an examination into the extent and nature of the mortgagee’s interest and estate is, we think, free from serious difficulty.

It is true that when the same person becomes the owner of the dominant and servient estates, and there is no intervening or outstanding interest or title held by some one else in or to the appurtenant easement, the unity of the two estates in the one individual necessarily extinguishes and merges the easement appurtenant to the dominant estate, ⁵⁴⁶ because no person can have an easement in the land which he himself owns. Capron v. Greenway, 74 Md. 289 . And it is equally true, that when the same person acquires both the dominant and servient estates, and conveys away the latter without reserving the pre-existing easement to himself, this operates as an abandonment by the grantor of the easement, in so far as it was enjoyed by him, for the reason that a grantor shall not derogate from his own grant. Mitchell v. Seipel, 53 Md. 269 .

But neither an extinguishment in the mode indicated, nor an abandonment by the method just named, can be permitted to operate against a third party claiming an interest in the same easement, even though such third party be merely a mortgagee. The equity doctrine that a mortgage is a mere security for the debt and only a chattel interest has, by a gradual progress, been adopted by