Everdell v. Carroll

Menchine, J., delivered the opinion of the Court. Time was that the private lane commencing at Tilghman’s Neck Public Road (now DeCoursey Thom Road) served without incident the 590 acre tract through which it ran to the farthest reaches of the land. Nor was its course impeded, save by farm buildings that forced in part a snake-like course, by intersecting lanes and by 90 degree turns. While the tract was singly owned, its users traversed the lanes in seeming harmony, their free passage unobstructed by gates, the speed of their travel limited only by the caution induced by its described design, by the screening effect of natural and planted trees and shrubs and by the signs posted by its owners to indicate its hazards.

Unhappily, this harmony, this heaven’s first law, changed to discord when the owners of the entire tract disposed of parts of the estate. The entire tract, known as Blakeford Farm, had been in the ownership of Clarence W. Miles and wife (Miles). The southern and western borders of Blakeford Farm, in Queen Anne’s County, Maryland, extended to the waters of Queenstown Creek and of the Chester River, respectively. By deed dated March 13, 1958, Miles conveyed to Potter a tract ⁴⁶⁰ of 18.113 acres situate and lying at the actual confluence of the two bodies of water at the southwest corner of the whole tract.

That deed contained the following clauses: “TOGETHER with the buildings and improvements thereupon erected, made and being, and all and every the rights, roads, ways, waters, privileges, appurtenances and advantages to the same belonging or in anywise appertaining; and TOGETHER WITH the right of ingress to and egress from the above described property in common with the said Clarence W. Miles and Eleanor A. Miles, his wife, their assigns, the survivor of them, his or her heirs and assigns, over the private lane leading from the Tilghman’s Neck Public Road into and through the farm building area of Blakeford Farm, and thence by a farm lane to the northerly end of a twenty-foot Right-of-Way surveyed by Shew & Bartlett on July 29, 1957, and thence by said twenty-foot Right-of-Way to the land hereinabove decribed and hereby conveyed.” 1 On June 15, 1970 Potter conveyed the entirety of the 18.113 acre tract to the appellant, William Everdell (Everdell). The latter deed contained the following clause: “TOGETHER with the buildings and improvements thereupon erected, made or being and all and every the rights, roads, ways, waters, privileges, appurtenances and advantages to the same belonging or in anywise appertaining; and especially together with the right of ingress to and egress from the above described property in common with Clarence W. Miles and Eleanor A. Miles, his wife, their assigns, the survivor of them, his or her heirs and assigns, over the private lane leading from the Tilghman’s Neck Public Road by the route fully described in said deed; * * * ” ⁴⁶¹ It was purchased at a cost of $185,000.00. On June 30, 1970 Miles conveyed to appellee, John Lee Carroll 2 (Carroll) a 266.256 acre tract from the remaining acreage. That deed contained the following clauses: “* * * TOGETHER with a perpetual easement of ingress and egress at all times by all means and for all purposes, upon, over and across the existing entrance lane thirty (30) feet wide leading from the public road now known as the DeCoursey Thom Road, formerly known as the Tilghman’s Neck Public Road in a generally southerly direction to the real estate hereinabove described and hereby conveyed, in common with the said Clarence W. Miles and Eleanor A. Miles, his wife, their heirs and assigns.

SUBJECT NEVERTHELESS to the legal effect of the easements granted to Virginia B. Potter, her heirs and assigns, by the said Clarence W. Miles and Eleanor A. Miles, his wife, by deed dated March 13, 1958, and recorded among said land records in Liber T.S.P. No. 40, folio 23; * * *.” The Carroll tract enveloped all land boundaries of the Everdell tract, extending from Queenstown Creek to the Chester River. The previously recited clause in the deed from Miles to Potter, coupled with that in the subsequent deed from Potter to Everdell, had the legal effect of making the remaining property of Miles and ergo, the property of Carroll, servient to the dominant right of Everdell to the extent of the interest thereby created and conveyed. Desch v. Knox, 253 Md. 307, 310 , 252 A. 2d 815, 817 . In the subject litigation Everdell, owner of the dominant estate, sought to enjoin Carroll, owner of the servient estate, from maintaining allegedly unlawful obstructions within ⁴⁶² the right-of-way.

The answer of Carroll admitted placement of “bumps” and barriers along the lane, but maintained in substance that they did not impinge upon Everdell’s reasonable use of the lane and were within Carroll’s dominion as reasonably necessary for his enjoyment of the fee through which the lane ran. The answer also alleged that Everdell was estopped to seek injunction because he had made “representations that he would join in such experimentation.” Carroll also filed a counterclaim, alleging agreement by Everdell to relocate the 20 foot right-of-way leading from the Everdell property to the east-west leg of the farm lane. The trial court denied Everdell’s claim for injunction and dismissed Carroll’s counterclaim. Although both Everdell and Carroll entered appeals from the decree of the trial court, the brief of Carroll declares: “The denial of the Counterclaim is not a subject of this appeal.” Such denial will, accordingly, not be considered in this opinion.

We hold that the recited clause in the deed from Miles to Potter, supra, granted a right-of-way only. The deed evidenced a clear intent to retain in Miles such other rights or benefits of his fee simple estate as were not inconsistent with such grant. In 1829 it was declared in Bosley v. Susquehanna Canal, 3 Bland 63 , 67: “A right of way, whether public or private, is essentially different from a fee simple right to the land itself over which the way passes. A right of way is nothing more than a special and limited right of use; and every other right or benefit derivable from the land, not essentially injurious to, or incompatible with the peculiar use called the right of way, belongs as absolutely and entirely to the holder of the fee simple as if no such right of way existed.

He is, in fact, for every purpose considered as the absolute owner of the land, subject only to an easement or servitude; he may recover the land so charged by ejectment; he may ⁴⁶³ bring an action of trespass against any one who does any injury to it, not properly incident to an exercise of the right of way; he has a right to the trees growing upon it; to all minerals under its surface; he may carry water in pipes under it; and the freehold with all its profits, not inconsistent with the right of way, belong to him.” There has been no departure from that rule of law. Desch v. Knox, supra. The deed from Miles to Carroll granted and conveyed by metes and bounds description all the right, title, interest and estate in the 266.256 acre tract, subject only to the right-of-way previously granted by the Potter deed. Contained within that description was that part of the bed of the farm lane involved in the subject proceeding.

Thus Carroll became seized and possessed of the fee simple estate therein except to the extent that the same had become servient to the right-of-way previously granted by Miles to Potter. All rights of Potter, of course, by mesne conveyance had been granted and conveyed to Everdell. We find that our decision is controlled by the rules of law laid down in Baker v. Frick, 45 Md. 337 . Although an action at law, 3 Baker v. Frick is a leading case, applicable to and cited with approval in injunction cases.

This case first enunciated in Maryland the rules of law under which the respective rights of the owners of dominant and servient estates are to be determined in disputes relating to modification of rights-of-way. At page 340, et seq., it was said: “The road in question is a private way over the defendant’s lands. ‘Nothing passes as incident to such a grant, but that which is necessary for its reasonable and proper enjoyment.’ 3 Kent, 419, 420. “What is necessary for such reasonable and ⁴⁶⁴ proper enjoyment of the way granted, and the limitations thereby imposed on the use of the land by the proprietor, depends upon the terms of the grant, the purposes for which it was made, the nature and situation of the property subject to the easement, and the manner in which it has been used and occupied. “As said by Marshall, C. J., in Maxwell v. McAtee, 9 B. Mon. 21 , ‘Notwithstanding such a grant, there remains with the grantor the right of full dominion and use of the land, except so far as a limitation to his right is essential to the fair enjoyment of the right of way which he has granted. It is not necessary that the grantor should expressly reserve any right which he may exercise consistently with a fair enjoyment of the grant. Such rights remain with him, because they are not granted.

And for the same reason, the exercise of any of them cannot be complained of by the grantee, who can claim no other limitation upon the rights of the grantor, but such as are expressed in the grant, or necessarily implied in the right of reasonable enjoyment.’ “In that case it was decided that ‘the grant of a right of way over or through the lands of an individual, does not imply that the grantor may not erect gates at the points, where the way enters and terminates.’ That decision has been approved by courts of high authority in otjier States. Bean v. Coleman, 44 N. H. 539; Garland v. Farber, 47 N. H. 301; Hoopes v. Alderson, 22 Iowa, 161 ; Bakeman v. Talbot, 31 N. Y. 366, 370, 371 ; Huron v. Young, 4 Lansing, 63.” The Court added at 343: “The questions whether under all the circumstances of the case, as disclosed by the testimony, the gates were necessary to the defendant for the useful and beneficial occupation ⁴⁶⁵ of his land, looking to the situation of his property; and whether the particular gates complained of, were usual and proper under the circumstances, and the further question whether their existence upon the road interfered with the reasonable use of the right of way by the plaintiff, considering the situation of his property and the manner in which it was occupied, and the interest of the parties as to the mode in which the right of way was to be used; these were all questions proper to be decided by the jury, upon the evidence in the case. On all these questions testimony was offered, legally sufficient to be submitted to the jury. “ ‘The doctrine that the facilities for passage where a private right of way exists, are to be regulated by the nature of the case, and the circumstances of the time and place, is very well settled by authority. Hemphill v. Boston, 8 Cush. 195 ; Cowling v. Higinson, 4 M. & W. 245.

The last case determines in effect, that the extent of the privilege created by the dedication of a private right of passage, depends upon the circumstances and raises a question for the determination of the jury.’ Bakeman v. Talbot, 31 N. Y. 370 . We refer also to Hawkins v. Carbine, 3 Exch. 914, and Huron v. Young, 4 Lansing, 64.” In substance, Baker v. Frick had stated the proposition that, unless the terms of the grant itself prohibited such a course, or the purposes for which the grant was made, and the nature and situation of the property subject to the easement and the manner in which it has been used and occupied, implied such prohibition, the installation of a gate at the terminii of the right-of-way would be permissible if: 1. Its installation was necessary for the useful and beneficial occupation of the land of the servient estate; and 2. The particular gates complained of, were usual and proper under the circumstances; and ⁴⁶⁶ 3.

The installation did not interfere with the reasonable use of the right-of-way by the dominant estate. We address ourselves to the threshold question, namely, whether the right of the servient owner to make any modification of the right-of-way is prohibited either by the specific terms of the grant or by necessary implication. The granted right-of-way did not in express terms deprive Carroll of the right to erect gates and thus did not expressly grant to Everdell an open road without gates. The purpose for which the grant was made is apparent from its very terms, namely, “the right of ingress to and egress from the [Everdell] property in common with the [fee owner].” The nature, situation, use and occupation of the property subject to the easement at the time of its creation, however, is not capable of such easy definition.

That part of the total right-of-way with which the present litigation is concerned was not the subject of a metes and bounds description, the document of its creation delineating it merely as a “private lane leading from the Tilghman’s Neck Public Road into and through the farm building area of Blakeford Farm and thence by a farm lane to [a fully described twenty foot right-of-way]. 4 The lane, replete with 90° turns, literally divided the Miles (now Carroll) tract into segments of various shapes and sizes. Movement, either afoot or by vehicle, from segment to segment of the servient estate, compelled continuing passage along or across its irregular route by its owner in the daily use of the lands through which it passed. Numerous dwellings, garages, sheds, silos and other farm buildings in close proximity to the lane were in such positions along its serpentine course that their utilization compelled movements into, across and along its path. We are persuaded that a necessary modification of the right-of-way by the owner of the servient estate was not ⁴⁶⁷ explicitly or implicitly forbidden by the grant in the subject case.

This conclusion simply means that the threshold requirement of Baker v. Frick has been met and we are required to pass to the elements essential to the application of its doctrine, namely, whether the evidence shows: (a) that modification of the right-of-way was necessary for the useful and beneficial occupation of the servient estate; (b) that the installations were usual and proper under the circumstances; and (c) that the installations did not interfere with the reasonable use of the right-of-way by Everdell. Both Everdell and Carroll had rented their respective homes for about two years prior to their purchase. No traffic devices had been installed during that period. There was testimony to the effect that speeding vehicles on the lane had been a problem since 1956 with three or four accidents.

None of the accidents had occurred at the points where “bumps” or barricades had been placed by Carroll. Both Carroll and Everdell are seasonal users of their respective properties. The installation by Carroll of a series of “bumps” was a forerunner to the subject litigation. Although their installation initiated the Carroll-Everdell dispute, no substantial role was played by the “bumps” in continuing complaints by Everdell against Carroll or in the testimony of the witnesses.

Indeed, the record tends to suggest that a decrease in the elevation of the “bumps” had created conditions whereby they no longer presented objectionable deterrent to the movement of traffic. While the dispute concerning the “bumps” was raging between Everdell and Carroll and their respective counsel, discussions turned to possible use of some type of barricade to accomplish speed reduction of vehicles using the lane, in lieu of the “bumps”. Everdell acknowledged such discussions, but protested vehemently when Carroll, without further notice, caused to be constructed and installed six gate-like wooden barricades, each approximately of the same size and shape, with a length approximately one half the width of the lane. The six partial barricades were set up in three pairs.

These pairs, described by the witnesses as ⁴⁶⁸ barricades 1, 2 and 3, were installed in the lane in that progressive order from the direction of the public road toward the Everde.ll property. Placed on opposite sides of