Gray v. Shell Realty Corp.

HsndSRSON, J., delivered the opinion of the Court. The appellants, owners of lots 150, 151, 152 and 153, as shown on Plat 2 of Bowley’s Quarters, on Seneca Creek, duly recorded in 1921, filed a bill for declaratory decree, against the appellee, Shell, claiming a right by adverse user to a roadway 15 feet wide running along the northwesterly side of an unimproved lot, 149, owned by Shell, from the county road to the water. The Chancellor found that for almost 30 years the appellants have used and maintained a slag road running from Seneca Road for a distance of 254 feet to a point where it curves in a U shape and runs back along the boundary of lot 153 to Seneca Road, servicing the five houses erected on theN lots of the appellants. But the Chancellor found that a right of way from the point where the curve begins to the waterfront, a distance of some 235 feet, had not been established.

This part of the alleged right of way was never improved, although there was some evidence of its use in the form of wheel tracks. The appellants challenge that finding, on the ground that it was clearly wrong. There was no cross-appeal. It appears that the whole neighborhood had been a rural farming community prior to 1921, when the Bowley’s Quar ⁵³³ ters Company, predecessor in title to the appellee, laid out the farm in lots and had the plat recorded.

This plat showed a structure marked “wharf,” located at the water end of lot 149, but showed no access road to it. Shell did not acquire its lot until 1957. The Gray family moved in about 1921, and subsequently subdivided and sold off part of lot 150. The appellants claim they have always used the old shell wharf on lot 149, which was originally constructed by dumping oyster shells behind a rectangular log bulkhead, and contend that it was a public landing.

At the present time only traces of it remain, and it was in bad repair in 1921. There is no evidence that it was constructed out of public funds. On the contrary, there was testimony that it was constructed by some former owner of the farm for the use of tenant farmers, and that more than 50 years ago the wharf was used by sailing vessels to unload fertilizer and to load farm produce. There was also testimony that since 1921 the appellants and others have used the wharf in summer for crabbing or fishing, or as a place to moor small boats.

Mr. Gison, who had been an officer and director of Bowley’s Quarters Company from the time of its organization in 1908, testified that the Company gave permission to any of the lot purchasers to use the unimproved lots as they pleased, so long as they were unsold or until such time as “we found use for it.” Hamilton and Gray tried to buy lot 149 a number of times, particularly in 1948, but he declined to