Freed v. Cloverlea Citizens Ass'n

McWilliams, J., delivered the opinion of the Court. To prevail in this Court appellants (the Freeds) must establish their right to tack their adverse possession of 0.6 of an acre on the Rhode River (the triangular hatched area on Plat B) to the adverse possession of their predecessors in title. They lost in the court below because the trial judge thought they had shown “no color of title whatsoever.” In our recital of the facts we shall refer again to Plat B. Plat A, about which we shall also have more to say, is a part of the “Plat of Cloverlea.” Both are reproduced herein. On 18 June 1926 Thomas Collison conveyed a 40 acre tract in Anne Arundel County to Walter Lyon.

The deferred consideration for the transfer was secured by a purchase money mortgage. On 13 July 1929 Lyon recorded the “Plat of Clover-lea” which was dated 28 June 1926. It showed the subdivision of about 34 of the 40 acres into 183 lots, 47 of which fronted on the Rhode River. In 1933, as a result of the foreclosure of the purchase money mortgage, title to the 40 acre tract, including “Cloverlea,” reverted to the heirs of Thomas Collison.

Early in 1935 Donald Pitts, then about 26, his wife and his ²⁹¹ parents visited Cloverlea. They were accosted by Emanuel Collison, one of the five children of Thomas, and asked to state their business. When they expressed an interest in buying a place for a summer home Collison, representing himself and the other owners, brought out a plat (probably the “Plat of Cloverlea”) and showed them around. They liked what appeared to be lots 19 and 20.

Since the only access to lot 18,, according to Collison, was across a drainage ditch he urged the Pitts to buy it also. They agreed. The transaction was concluded by the execution of a contract of sale for lots 18, 19 and 20. In July 1938 the Pitts, pere et fils, obtained and recorded a deed for lots 18, 19 and 20.

Donald Pitts testified that, on the day they looked at the property, Collison picked up a stake and drove it into the ground on the north side of the drainage ditch near where it emptied into Rhode River, saying, “Your property line will run to here.” 1 The southern boundary of lot 18 as thus pointed out by Collison ran along the north side of the drainage ditch, to the water’s edge. The “bulkhead or retaining wall” shown on Plat B coincides with the north side of the ditch. There are some deficiencies in the plat of Cloverlea (Plat A) which should be pointed out. There are no stakes, no pipes, no bench marks, no monuments, no Coast and Geodetic Survey markers, no works of man (except Cliff Drive, then a dirt road), no natural phenomena (other than Rhode River), no established lines or boundaries of adjoining properties shown thereon.

There is not a line on the plat for which a compass course is shown. The depth of all lots and the frontage of some are shown by numbers followed by the more or less ( ± ) symbol. Other than the lot numbers and the street names the only other useful information appearing thereon consists of the arrow pointing North and the scale (1" = 100'). In short, like so many of the subdivision plats of the time, it was nothing more than a graphic representation of someone’s notion of how the property might be developed.

There can be little doubt that lots 18, 19 and 20 did not exist on the ground. They existed only on the ²⁹² plat. In fact, there was no information on the plat which would have enabled a surveyor or anyone else to locate accurately on the ground the boundary lines of any of the lots there shown. Plat B was made by Warren Suitt who was employed by a •surveying firm.

He testified that his employer was hired “to •establish the outlines of Cherry Stone Park” for the appellee (the association). He said “the plat of Cloverlea is not too •easy to work with, because of the lack of information(Emphasis supplied.) He thought, however, they had done “enough work in there that * * * [they] were positive that * * * [they] •did have the boundaries of Cherry Stone Park established.” It will be observed that the northern boundary of the park, according to Plat A, is also the southern boundary of lot 18. Since Mr. Suitt did not explain how he arrived at that conclusion we can only suppose that he intended nothing more than the delineation on paper of the contention of his employer’s •client. We shall have more to say about that.

Pitts said that because of a spring on the east side of Cliff Drive the “ditch was formed by nature.” He told how he put the first culvert under the road and how he “spent many hours in there keeping that ditch open.” The low area north of the ■ditch was filled, little by little, at first with dirt from the digging •of the basement and afterwards with dirt thrown up from the bottom of the ditch in the course of “keeping it open.” He had a vegetable garden in the hatched area within 4 or 5 feet •of the ditch where he grew tomatoes, beans, squash and cantaloupes. Flowers were planted. He remembers a row of peonies. There was a grape arbor and a willow tree.

He kept the area mowed except during World War II when he was on duty with the Armed Forces. His pier having been destroyed by ice during the war he built one himself about in the center of the hatched area. On cross-examination he told how he had lost 8 to 10 feet of his property from erosion because he did not have a seawall. He said the stake driven by Emanuel Collison in 1935 disappeared as a result of the erosion.

He never built a fence because “the ditch was a natural fence” and it ■“was a fairly straight ditch.” ²⁹³ William J. Collison is a grandson of Thomas Collison. His mother owns lots 16 and 17. Lot 17 adjoins the south side of Cherry Stone Park. She also owns an undivided 1/5 interest in the park.

He has lived in Cloverlea or within a few miles of it nearly all of his life. From 1937 to 1941 he was in charge of a crew that “used to take care of all those places along there, cutting grass, trimming.” He was familiar with the ditch and “helped clean it out lots and lots of times” and he and his crew would mow the grass on the Pitts property “down as close to the ditch as * * * [they] could get which was within a couple of feet of it.” He noticed there was a garden there (in the hatched area) “every year or so” except when Mr. Pitts was away. Mrs. Edna Gessford had lived three doors from the property and she said she was familiar with the ditch and the hatched area. She remembers when Pitts sold to the Regans in February 1952.

She said the Regans were looking for rocks to “build up a rock garden” and that “there was grass right straight to-the edge of the ditch” except where flowers and shrubs were planted. She recalled also when the Johnsons, “a young couple,”' bought the lots from the Regans in June 1953. They “put in a vegetable garden down along the ditch, close to the edge of the ditch, plus a rock garden,” she said. William A. Irvine rented the property from the Johnsons, from June 1954 to June 1956.

Pie testified that “as far as * * * [he] knew, the ditch was the property line and * * * [he] maintained and cut the lawn all the way down to this ditch, area all the way out to the water.” Harry Hasslinger testified his wife’s parents bought lots 21,. 22, 23 and 24 (adjoining the breeds) in 1924 and that he had been a summer resident since 1931. He was “quite familiar with the ditch.” In 1935 he helped the Pitts clean out the ditch. In respect of the hatched area he said Pitts and the subsequent owners mowed the grass, and “there was vegetable gardens, flower gardens * * * [and] a grape arbor.” Regan,, he thought “started a rock garden which was completed by Mr. Johnson.” The conveyances from Pitts to Regan and Regan to Johnson ²⁹⁴ were both by lot numbers. In October 1956 Johnson conveyed lots 18, 19 and 20 to the Freeds.

Freed, called as a witness by the opposing party, said that although “nobody trespassed” on the hatched area he had “ordered Mr. Price’s children off” and some adults who “crossed that property.” When he bought the property, Johnson showed him a stake between lot 20 and the “Hasslinger house” (lot 21) and told him his line went “right down to the ditch on the edge of the cliff.” “Everyone believed it was his land” even after he constructed the bulkhead and the retaining wall. When called to testify on his own behalf he located the culvert under Cliff Drive by an X placed on each side of the road. He said the ground north of the ditch was mowed and the rock garden was still there. He drew a circle to indicate the location of the rock garden.

The grape arbor is indicated by five dots just west of the rock garden. A heavy blue line shows where the peony bed was. He said “many of * * * [his] neighbors came around and watched” the bulldozer in operation when he filled behind the bulkhead near the water. He guessed he had put “a little over $3,600 in that pie-shaped area.” He said the neighbors thought “it was wonderful * * * [that] he was improving the neighborhood.” At a meeting of the association in July 1961 Freed was given a copy of the Plat of Cloverlea.

He said, “this * * * [was] the first time * * * [he had] ever seen” the plat. After he studied it he was concerned that he might have built the bulkhead on park land. He announced his concern to some members of the association. In February 1965, after the association filed this suit against him, he bought from his heirs the undivided 1/5 interest of Emanuel Collison in the park.

The association acquired from her heirs the undivided 1/5 interest of Sarah Hardesty in September 1963. The remaining -3/5 is still owned by the heirs of Thomas Collison. The principal witness for the association was George Kerwin 'Collison Hardesty, a son of Sarah Hardesty who was one of the five children of Thomas Collison. He moved to Cloverlea in 1951.

His knowledge of the property before 1951 was obtained while attending an occasional oyster roast or picnic on ²⁹⁵ the beach. He did not recall a “clearly defined ditch.” In 1954 he helped “clean out the ditch.” He testified the hatched area “was never improved.” He never saw a “fence” or a “no trespassing sign.” (There is no evidence of the existence of a fence or a sign.) He has no recollection of a rock garden or a vegetable garden. There was a pier, he said, but it was not “substantial.” He said Freed told him that he “had taken some of the community property” and that if the community made him move “he’d never speak to any of them again.” Lester Cunningham first started coming to Cloverlea in 1944. He didn’t know Pitts.

He never noticed whether the hatched area was seeded. He never noticed a vegetable garden or a rock garden. He never noticed a fence or a “no trespassing” sign. Nor did William C. Yoight who also testified on behalf of the association.

Before trial the parties stipulated that the issues to be decided were: 1. Do the Freeds “have fee simple title, through adverse possession” to the hatched area. 2. If the first issue is decided in favor of the association “where is the boundary line between” lot 18 and Cherry Stone Park. I. The Freeds contend the trial judge erred when he refused to allow Donald Pitts to testify that Emanuel Collison said, as he drove the stake, “Your property line will run to here.” We think the trial judge ruled incorrectly, but it should be observed that our holding in Wilt v. Wilt, 242 Md. 129 , 218 A. 2d 180 (1966), which we think disposes of this contention, was not published until about six or eight months after the decision of the trial judge.

It is unlikely, however, that the exclusion of Collison’s statement could have made much difference as the obvious purpose in driving the stake was to designate a boundary which, in the circumstances, could have been only the south line of lot 18.

II

The trial judge, in his opinion, said he was “convinced * * * there was never a definite period in time wherein this specific ²⁹⁶ area in question was ever occupied * * * in its entirety, and heid adversely to the world.” The association, in like manner, argues that the possession of the Freeds and their predecessors was not open, notorious, exclusive, hostile, or within a clearly defined area. A comparison of the circumstances in the case before us with those present in our recent decisions in East Wash. Railway v. Brooke, 244 Md. 287 , 223 A. 2d 599 (1966) and Blickenstaff v. Bromley, 243 Md. 164 , 220 A. 2d 558 (1966) makes it clear that the trial judge has misapprehended the situation and that there is no merit in the contention of the association. There has been advanced also the suggestion that the use made by Pitts and his successors was permissive.

The association argues that since they were entitled, in common with other lot owners, to the use of Cherry Stone Park, their possession could not have been adverse. We do not agree. There is nothing on the plat of Cloverlea to suggest that Cherry Stone Park was dedicated to the use of the future residents of Clover-lea. The label “Cherry Stone Park” could as easily have suggested that Lyon or the Collisons had reserved it as a home site for themselves or as a site for some future commercial enterprise.

In any event the use made of the hatched area by Pitts and his successors was entirely consistent with their ownership of lots 18, 19 and 20 and quite inconsistent with any notion that they were exercising merely their communal right to swim, sun bathe and picnic. After all one does not grade, mow, plant flowers, trees, grapevines and vegetables, and make a rock garden, in an area, the use of which one must share with several hundred others. In Blickenstaff, supra, at 171 , we quoted with approval from 3 Am. Jur. 2d, Adverse Possession, § 14, the following: “It is sufficient if the acts of ownership are of such a character as to openly and publicly indicate an assumed control or use such as is consistent with the character of the premises in question.

The standard to be applied to any particular tract of land is whether the possession comports with the ordinary management of similar lands by their owners, and if so, it furnishes satisfactory evidence of adverse possession.” ²⁹⁷ III. Our consideration of the pivotal question whether the Freeds can tack their adverse possession to that of their predecessors in title must begin with Tamburo v. Miller, 203 Md. 329 , 100 A. 2d 818 (1953). Although tacking was not an issue in Tamburo , the situation was generally similar to the case before us. Tamburo owned lot 32.

Miller, who owned lot 33, claimed Tamburo had encroached upon his lot. The apex of the triangular wedge of land in dispute was tangent to the road on which both of these waterfront lots bordered. The base of the triangle was at the water’s edge. One surveyor said the survey was difficult; the other (J. Rcvell Carr) said he could not determine the true line because of the surveying uncertainties and difficulties inherent in the Manhattan Beach Development.

The boundary line claimed by Tamburo consisted of a few strands of barbed wire, mostly lying on the ground, replaced in spots by a hedge. We held Tamburo’s possession was exclusive, notorious, actual and hostile. Judge Hammond (now Chief Judge), for the Court, said: “It has been said often in the earlier cases that where a land owner extends his fence, through inadvertence, ignorance or mistake, as to the location of the true boundary line, so as to embrace the land of a neighbor, but with no intention of claiming the area thus enclosed, adverse possession cannot be established because the holding of the extended area is neither adverse nor hostile to the true owner. See, for example, Davis v. Furlow’s Lessee, 27 Md. 536 .

The modern trend and the better rule is that where the visible boundaries have existed for the period set forth in the Statute of Limitations, title will vest in the adverse possessor where there is evidence of unequivocal acts of ownership. In this view it is immaterial that the holder supposed the visible boundary to be correct or, in other words, the fact that the possession was due to inadvertence, ignorance, or mistake, is entirely immaterial. See Sadtler v. The Peabody Heights Company, 66 Md. 1 ; Rother v. ²⁹⁸ Sharp St.