Garrett v. Gray

Finan, J., delivered the opinion of the Court. This proceeding was instituted by the filing of a bill of complaint in the Circuit Court for Prince George’s County, whereby the appellants sought a mandatory injunction to compel the appellees to open a road (the farm road) that had been barricaded by them. The road in question is a meandering dirt road, averaging about 12 feet in width which runs generally east and west, for a distance of 2 9/10 miles between Crain Highway (old Route 301) on the east and Osborne Road on the west, both being public roads. The farm located in Prince George’s County, now owned by the appellees and for many years known as the Osborne farm and through which the road in question runs, was originally owned by Thomas Clagett.

He also owned the adjoining farm to the east known as Weston farm (now owned by Hal C. B. Clagett) which latter farm lies between Osborne farm on the west and the old Crain Highway on the east. In the early 19th century Thomas Clagett devised the Osborne farm of 336 acres (being the same 336 acres later acquired by the Fords) to his daughter, Adeline Clagett, and provided in his will for the following right of way: “* * * it is my will and desire that the road running from the main road in front of my home place to Osborne Farm, shall remain open as it now stands, for the use and benefit of the owner or owners of the Osborne Farm forever.” ³⁶⁶ During the year 1914, the Ford family became tenants on the Osborne farm and through mesne conveyances acquired title to the 336 acres. The first parcel of 168 acres on the north side of the farm road was acquired in 1921 and the second parcel on the south side of the farm road was acquired in 1929. From this latter date until 1960, the Ford family owned, lived on and farmed this property; during this period they sold off several parcels.

In 1960, three of the appellants — the Fords, being then record owners of title to 225 acres of the farm — sold what remained of the farm to Ralph A. Gray, Jr. and Jean W. Gray, his wife, the appellees, by a general warranty deed. The grantors were Richard Benjamin Ford and Mabel P. Ford, his wife, and James T. Ford and Alice M. Ford, his wife. Richard Benjamin Ford is now deceased. The deed from the Fords to the Grays dated September 22, 1960, and recorded in Liber 2488 at Folio 209, among the Land Records in the Office of the Clerk of the Court for Prince George’s County, contains the following language: ■“Together with * * * all and every, the rights, alleys, ways, waters, privileges, appurtenances, and advantages to the same belonging or in anywise appertaining.” In June of 1961, the appellees conveyed back to James T. Ford and Alice M. Ford, his wife, 2.06 acres and conveyed back to Richard Benjamin Ford and Mabel P. Ford, his wife, 2.23 acres.

Both of these parcels were part of the 225 acre tract sold to the Grays and are located on the road in question. Each of these deeds back to the Fords were prepared at the request of the appellees from a survey commissioned by them and each contained the following language: “The above described lot shall have the same right of usage over the farm road east to Route 301 [Crain Highway] as is now vested in the whole farm.” The chancellor in his opinion emphasized that this express grant of easement did not give to the Fords the right to travel the farm road both east and west for purposes of egress and ingress but only east. The conveyance .from the Grays to the Fords of the two “2 plus” acre parcels was pursuant to a contract dated ³⁶⁷ September 22, 1960, and recorded in Liber 2488 at 212. The Grays agreed to reconvey to the grantors in the deed referred to above 30 acres at $115.00 per acre.

It was also agreed that the Grays would erect two dwelling houses for the Fords at an expense not to exceed $7,000 per house. A release dated February 9, 1963, signed by Richard Benjamin Ford, Mabel P. Ford, James T. Ford and Alice M. Ford, asserted that they have “* * * released and forever discharged and by these presents do hereby remise, release, and forever discharge all our claim, right, and interest in and to the [property described in the deed recorded in Liber 2488 at 209] arising by virtue of a certain contract of sale * * *” recorded in [Liber 2488 on page 212]. After the death of Richard Benjamin Ford, Mabel P. Ford sold one-half acre lots to the appellants-Garretts and the appellants-Wilkersons. Both the Garretts and Wilkersons are relatives of the Fords.

The lots were part of the 2.23 acres owned by Mabel P. Ford and both lots are located on the farm road and are improved with houses where the Garretts and Wilkersons live. Entered in evidence by stipulation was a survey dated April 13, 1961. This survey shows the Gray farm, the property the Grays conveyed to the Fords, the 77.76 acres owned by the Hamiltons and the 36.17 acres owned by the Diehlmans. 1 It also shows the farm road running through the Gray farm and terminating on the west at Osborne Road. Also, a map of the County published by the Maryland-National Capital Park & Planning Commission shows the road in question.

As indicated, after acquiring the Ford farm the Grays barricaded the road. The date of the barricading is disputed. According to the appellants the road was not closed until April of 1966. According to the appellees, the road was closed in 1961.

By a letter dated October 7, 1966, from attorney James R. Bucher to Ralph A. Gray, Jr., ³⁶⁸ written on behalf of Perry L. Garrett, Mr. Gray was requested to remove the obstruction in the road on the premise that the road had been in continuous use for over twenty years. By letter dated May 2, 1968, from attorney David A. McNamee to the appellees, they were advised that in the event the barricades were not removed, legal action would be necessary to open the road to public use. The bill of complaint was filed on October 30,1968. Twelve witnesses testified on behalf of the appellants.

In summary, this testimony showed the existence of the road, its use by the appellants, their friends and relatives as well as its use by the public in general from at least the year 1914. The appellants’ theory of the case was that the farm road was dedicated to public use, accepted by the public, and that as a result the road is now in the public domain. The appellees on the other hand contend that the evidence supported nothing more than to show that the farm road was a private road and that testimony that strangers occasionally and infrequently used the farm road was not sufficient to show public acceptance of the farm road. The arguments of the appellees may be summarized as follows: (1) failure on the part of the appellants to prove adverse usage inuring to the benefit of themselves or the public; (2) failure to establish an implied or express grant of right of way; (3) estoppel on the part of the appellants by virtue of the conveyance the Fords had made to the appellees; and (4) laches on the part of the appellants.

The chancellor below found in favor of the appellees and dismissed the bill of complaint. He said that although laches may exist he was not going to decide the case on that basis and in an oral opinion stated in pertinent part: “Now, the gist of all of the evidence and the overwhelming weight of the evidence as to the use of this road was that it was for the use of Adeline Clagett, to start with, to go from there through Weston Farm. Then when the Fords ³⁶⁹ first became tenants, they used both ways. When they got their deeds to the entire piece of 336 acres, they used both ways.

When they conveyed to Hamilton, they were still using both ways and then finally, this is really repetitious, in the deed to the Grays they conveyed all the interest they had in the farm. “Now, this is going again to the defense in the Answer that the Plaintiffs have an adequate right-of-way to a public road without using the Defendants’ land, which we find is a fact that they do. “Eleven. That the Plaintiffs abandoned all interest they had, if any, when they and/or their predecessors in title sold and conveyed the Ford farm to the Defendants, which we have already determined as so. “Twelve. That said alleged right-of-way has been abandoned through nonuse together with exclusive dominion of said land by the Defendants. We think this is true and that the evidence shows this on the basis of the weight, the main weight of the evidence, although there was an occasional use. ❖ * * “Certainly there is no way of necessity here.

There are no elements of prescription shown from the time of the conveyance of the Fords to the Grays. Some mention has been made of an implication, but we know of no authority by implication, and if it were so, we do not see that the evidence bears this out. ❖ * * “There is reference made by counsel to the quasi-public [easement] I have never heard of the public referred to as quasi-public, but I will accept that, but I do not understand it. Either it is fish or fowl. I have heard of quasi-public corporations, but I don’t believe I have heard of ³⁷⁰ the quasi-public [roads].

It is either a public or private way, and it never was, in the Court’s opinion, anything but a private way. Maybe an occasional person went through, but overwhelmingly the evidence from the Plaintiffs’ witnesses themselves was that it was a private way for their friends going and coming in either direction.” Although aware that Maryland Rule 886 a provides that we are not to set aside the judgment of the lower court on the evidence unless it is “clearly erroneous,” we are of the opinion that in the instant case we must reverse the decree of the learned chancellor, wherein he dismissed the appellants’ bill requesting the mandatory injunction enjoining the appellees from barricading the farm road. In reaching our conclusion, however, we do so without adopting the theory of the case advanced by the appellants, namely, that the “evidence showed an implied dedication of the road to the public and acceptance by the public through uninterrupted use.” We cannot find from the evidence support for this “dedication” theory. However, contrary to the opinion of the lower court, we do believe that the testimony spells out the existence of a public way predicated on the uninterrupted use by the public for over twenty years.

Although the chancellor did not find any use by prescription insofar as the public was concerned, we think his opinion was colored by the concept he formed that (using his language) the appellants “abandoned all interest they had, if any, when they, and/or their predecessors in title, sold and conveyed the Ford farm to the defendants [appellees] * * * and that * * * the right of way has been abandoned through nonuse together with exclusive dominion of said land by the defendants.” We think that the evidence establishes the fact that the farm road is a public road. Accordingly, we do not think that the conveyance by Richard B. Ford and Mabel Ford, his wife, and James T. Ford and Alice M. Ford, his ³⁷¹ wife, to the Grays, acted as a surrender or release of their rights as members of the public to use a public road simply because the deeds had the usual appurtenance clause, namely, conveying “all and every the rights, alleys, ways, waters, privileges, appurtenances, etc.” Certainly, such a conveyance could not affect the rights that the general public acquired in such a road, or that the Fords as members of the general public would have acquired in such a public way. Compare also Fowler v. Matthews, (Tex. Civ.

App.) 204 S.W.2d80 (1947). Not only did the appellees fail to meet this burden but, in our opinion, the overwhelming testimony supports the characterization of the road as a public road. It would appear that from the year 1914, the date from which the appellants endeavored to establish their case, that the farm road was used by the general public and that competent testimony supports this contention. The numerous witnesses produced by appellants, as well as several of the appellees’ witnesses, support the argument of use by prescription.

Without unduly prolonging this opinion we think it appropriate to set forth in capsule form the testimony of the witnesses: Hal C. B. Clagett, Jr., Esquire, testified that the road runs from Osborne Road through the property of the appellees and then through his property, known as Weston Farm, to old 301. He stated the road has been in existence all of his life and that his memory of the road goes back 48 years. He has used the road on many occasions, both on horseback and in cars. In the winter the road was not passable at times, but other than on those occasions, the road has always been passable.

Despite his frequent use of the road he never asked for nor was he ever denied permission to use the road. He put the date of barricading as 1966. Mr. Clagett stated that while he never thought the road in question was public, he