Fox v. Paul

³⁸¹ Patttsox, J., delivered the opinion of the Court. The appellant, Kate S. Fox, was, in the year 1915, the owner of five and three-quarter acres of land, lying on the east side of the Keisterstown Koad, in Baltimore County, Maryland. On the south of the land owned by the appellant is what is described as the “Church Lot,” and the lands at that time owned by Hugh Albert Cooper; the church lot being immediately upon the Keisterstown Koad and the Cooper land being in the rear of the church lot. Between the appellant's land and the church property is an open road of the width of twenty-five feet, extending back a distance of three hundred and thirty feet to the rear line of the church lot.

The road thereafter narrows to about one-half of this width, and extends back to the depth of appellant’s lot, as It was in 1915. The northern line of the road is unbroken. The break caused by the lessening of its width is on the southern line of the roadway at the rear end of the church property and at the commencement of the Cooper land. On December 21st, 1915, the appellant, Mrs. Fox, sold and conveyed unto the appellees, Howard K. Paul and wife, the rear portion of her lot, containing one acre of land.

After describing the land conveyed by courses and distances, metes and bounds, the following language is used: “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 anywise appertaining.” The eastward end of the roadway above mentioned was included within the lot of land conveyed by Mrs. Fox-to Pan! and wife, it being claimed by her, at the time, that she was seised of the same in fee. Cn May 22nd, 1922, Mrs. Fox sold and conveyed unto George W. Morris and Jennie S. Morris, his wife, two lots of land, the first being the northern part of the remainder of the said five and three-quarter acres, which extended from the Keisterstown Koad to the lot of land conveyed to Paul and wifi', containing one and seventy-nine one hundredths acres of land, and the second being the rear part of what ³⁸² was thereafter left of the Fox lot*, adjoining on the east the land conveyed to Paul and wife, containing forty-two one hundredths acres of land. In 1916 the Burns land, located at the end of said roadway, and on the east of the lot of land conveyed by Mrs. Fox to Paul and wife, became the property of one Charles O. Wanner; and the Cooper property to the south of said roadway, in 1918, became the-property of Jennie S. Morris, one of the grantees in the aforesaid grant from Mrs. Fox. ■ A plat showing the location of the 'road and the different properties mentioned is found in the brief of the appellant, and the reporter is asked to insert the same in the report of this case. On April 23rd, 1928, Howard Paul and wife .filed their bill, in the Circuit Court for Baltimore County, against Kate S. Fox, George W. Morris and Jennie S. Monis, his wife, alleging therein that, when they purchased the lot of land from Kate S. Fox, they were told by her that the outlines of her property included said roadway from the lot conveyed to them to the Keisterstown Hoad, and upon this representation the plaintiffs relied; that, after using this roadway for a number of years, they, about two years prior ³⁸³ to tlio filing of tlio bill, were informed by Charles G. Wanner that he was the exclusive owner of said roadway and that neither the plaintiffs nor the said Kate S. Fox had the right to use the same, and within the last year he was warned by Wanner not “to trespass on his road”.

In addition thereto he placed obstructions thereon. Thereafter the plaintiffs had the road and the adjoining property surveyed, and they were advised that they had no> right to use said road. The bill then alleged that the plaintiffs’ property “does not abut on any public highway,” and, as discovered by them “through examination of title by an attorney, and by a survey made * * * they have no outlet from their property to a public highway, except over a stranger in title, that they have requested the said Kate S. Fox to lay out a convenient road from their property to a public highway, that the said Kate ¡3. Fox has declined to so do”; that she has “planted trees and placed other obstructions over her property so that it is impossible for the plaintiffs to get from their property to a public highway with horses and wagons and other means of conveyance” and, though requested to remove such obstructions, she has declined to do so; that the said Morris and wife acquired the land conveyed to them by Mrs. Fox “subject to any implied easement of a road by necessity” which the plaintiffs might be entitled to.

The bill concluded with a prayer a.sking, first, that a mandatory injunction he issued “requiring the defendants to lay out a convenient road from their tract of land to a public highway”; and, second, “for such other and further relief as their case may require.” The defendant, Kate S. Fox, in her answer to the bill, denied that the plaintiffs, as the owners of the land, under her grant to them, have no access to a public highway, and avers that they, under such grant, have the right to use the roadway heretofore mentioned and described to the Peisterstown Road, .and that they have used said road as an outlet from their land to said public road since the date of her grant to them. That before such time she and her predecessors in title used said road for more than twenty years. That the use of the roadway ³⁸⁴ by her and her predecessors was under a claim of ownership thereof in fee, and that in so doing they were • “not merely permissive users”; and, should it be found, as she is now advised, that the road is not within the lines of her land, she nevertheless has acquired a prescriptive right to use it as appurtenant to her adjoining property, which right she continues to exercise. That it was under her grant to them that the plaintiffs, since December 21st, 1915, “have continuously and uninterruptedly” used said roadway.

It is further averred by her in her answer that “this action is nothing more than a collusive suit between the complainants and the defendants George W. Morris and Jennie S. Morris, his wife, who own a large tract of land which abuts on the place where the so-called way of necessity is sought to be obtained by this bill of complaint filed in this case, and that for the purpose of developing and selling lots and enhancing the value of their land, the defendants George W. Morris and wife, through the action of the complainants herein, are seeking to- procure an extensive highway through their development at the expense of this defendant Kate S. Fox, whose land and buildings obstruct and interfere with their plans.” The bill was also answered by George W. Morris and Jennie S. Morris, his wife. In the deed to Morris and wife from Mrs. Fox, the beginning point of the secondly described lot therein, is located “at a square stone situated on the south side of a lane twenty-four feet wide, which stone is- át the southeastern corner of .a parcel of land conveyed by Kate S. Fox to Howard K. Paul and wife.” And at the conclusion of the deed are the. provisions : “Together with the buildings, etc. and also the right to use in common with others, the lane twenty-four feet wide, extending from the southeast corner of the lot secondly described (the one to which we have referred) to the Heisterstown Hoad.” “To have and to hold, etc. subject to the leaving open of the lane twenty-four feet wide along the southernmost outline of the parcel hereinbefore secondly described.” As shown by the survey and plat, the point of beginning was ³⁸⁵ not at the southeast, but the southwest corner, or, more properly speaking, the south corner of the Paul lot. The lane referred to was an existing lane, about thirteen feet wide, its width being clearly defined by a fence on each side of it, and it was the lane of this width that was to be kept open. It is upon the allusions to this lane of twenty-four feet in width that defendants Morris and wife base their claim or contention that the grantor was to lay out a road of that width, not only through her remaining land, but through the land granted to them, from the line of the Paul lot to the Reisterstown Road.

In respect to this contention they aver in their answer “that the said outlet or road twenty-four feet wide to be opened and laid out, as aforesaid, to the Reisterstown turnpike road, has never been so laid out or opened by the said defendant, Kate S. Pox, although frequently requested so to do, and it has been recently discovered that the said defendant, Kate S. Pox, included in the description,” in the lands granted to them, “land in which she had no right, title and interest, and for which she collected the purchase money.” It is then averred and charged in their answer “that the said defendant, Kate S. Pox, should be compelled not only to lay out the said outlet or road, but also to account to them for the money collected by and paid to her for so much of the land conveyed by her to them to which she had no right, title and interest.” After hearing considerable evidence, the court, as stated in his opinion, reached the conclusion that the fee in the roadway, twelve or thirteen feet in width, bounded on the north by the property of Mrs. Pox, and running from the Wanner lands to the Reisterstown Road, was held by Wanner, and not by Mrs. Pox, and as Wanner has refused the plaintiffs the use of the roadway, the latters’ property “is completely bottled up,” and the court in his opinion said: “I find that she (Mrs. Pox) has failed to prove a prescriptive right in this lane, particularly so to that part of it, where it leaves what I have called the Ohurch Lane. But, even if she had succeeded in proving a prescriptive right of way over the ³⁸⁶ Wanner land, how can the court bind Wanner, who is not a party to this case ? Paul is entitled to a right of way to the Reisterstown Road.” And as a result of this finding, the court, decreed unto the plaintiffs a roadway, as a way of necessity, twelve feet and four inches in width over the southernmost or southeasternm ost part of the lands of Morris and wife and Mrs. Fox, from the southwestern corner of the Paul lot to the Reisterstown Road. It was from that decree of the court that the appeal in this case was taken.

A right to a way of necessity over the lands of the grantor to a public road or highway exists in favor of the grantee when the land granted to him is wholly surrounded by the land of the grantor, or partly by the land of the grantor and partly by the land of a stranger, if there is no other way or outlet from the grantee’s land to a public highway. This right, in such case, does not arise from an express grant, but from a presumption that it was the intention of the parties that the grantee should have access to his lands over the lands of the grantor. McTavish v. Carroll, 7 Md. 351; Du Val v. Du Val, 21 Md. 155 ; Oliver v, Hook, 47 Md. 301 ; Zimmerman v. Cockey, 118 Md. 491 ; Duvall v. Ridout, 124 Md. 195 ; Fairchild v. Stewart, 117 Iowa, 734 ; Words & Phrases, vol. 8, page 7419; see note to German Savings & L. Co. v. Gordon, 26 L. R. A. (N. S.), page 352, and cases thereunder.

The question raised by the bill and answer, in this case, is whether the granted land is surrounded by the lands of the grantor and others, and if so, have the grantees any road or way therefrom to a public road or highway ? That such land is surrounded by the lands of the grantor and others does not seem to be denied, though it is denied that they have no right of way from their land to a public road or highway, and, in support of that denial, the defendant alleges that a way was provided in the grant to them of an easement in the above mentioned road or lane, in the bed of which she was the fee simple owner, or had the prescriptive right to use it. In answer to this claim, the plaintiff contends that Wanner was the fee simple owner of the road and that ³⁸⁷ tlie defendant was neither its owner in fee, nor the holder of an easement therein enabling her to grant to them the right to use it, and consequently I tor grant, without title, was ineffectual. The