Greif v. Teas

Offutt, J., delivered the opinion of the Court. This appeal grows out of a controversy between the parties as to the existence of a right- of way from appellee’s property over the appellant’s land to the waters of White Hall Creek, an estuary of the Chesapeake Bay, and it involves these facts: In 1906, William P. Hall acquired from John E. Pettibone and wife a tract of 381 acres of land known as “Grammers Pleasant Plains” lying' between the head waters of the South Fork of White Hall Creek on the north and White Hall Creek or the Chesapeake Bay on the south, in Anne Arundel County. On September 18th, 1909, he and his wife conveyed all of that tract except 34% acres to Bessie B. Wright, by a deed which contained the following clause: “To have and to hold the ground and premises above described, with the improvements thereon, and all and singular the rights, appurtenances, easements, and advantages thereto belonging or in anywise appertaining, unto the said Bessie B. Wright, her heirs and assigns forever in fee simple, subject however to the right of way over said land from the thirty-four and three-quarter acres tract reserved by the said William P. Hall, as now run to the northwest corner of the whole tract hereby conveyed. It being understood, however, that nothing herein shall be taken or deemed as a dedication of said right of way to the public, the ground in said right of way being expressly conveyed to the grantee herein and not reserved by the grantor; with the express understanding, however, that should the said grantee, her heirs or assigns, at any time in the ²⁸⁶ development of the property hereby granted desire to change the location of said right of way she or they shall have the right to so change the location of said right of way, provided, however, that the change will not materially 'lengthen the distance across said tract, and shall not be contracted in its present width, and shall be of substantially the same grade as the right of way as now run, and provided, further, that any change in locating said right of way must be approved by the said Hall.” In 1922, Mrs. Wright and her husband conveyed the property so acquired to the Ellsworth Apartments, Incorporated, and J. E. Stansbury, Incorporated, and they on June 23rd, 1923, conveyed a part thereof known as Lots Xos. 1 and 2 to Alvin Greif.

Of that tract lot Ho. 1 was bounded for its entire length on the east by the 34% acre tract reserved by Hall, and on the south by the waters of White Hall Creek, also referred to as the Chesapeake Bay and White Hall River. Along the western boundary line of the 34% acres tract there is now and for some years has been a high hedge having an opening on the lawn in front of what was formerly Hall’s dwelling. In 1913, Hall sold the 34% acre tract to Eldridge E. Jordan, and he in 1918 conveyed it to William II. Teas, the present owner and the appellee in this case.

As we have noted, the grant to Bessie B. Wright was subject to “the right of way over said land from the thirty-four and three-quarter acres reserved by the said William P. Hall as now run to the northwest corner of the whole tract.” Technically there was no “right of way * * * as now run” when Hall conveyed the land to Mrs. Wright, because he held and conveyed to her the fee simple title, but there is in the record evidence that there was a .definitely marked and defined roadway over Mrs. Wright’s land and running along the dividing line between it and the land reserved by Hall to the waters of White Hall Creek, which road was used in connection with the whole tract known as “Grammers Pleasant Plains,” and the reference to the “right of way” in the ²⁸⁷ Wright deed was evidently intended to refer to that road. But shortly after Mrs. Wright took title to the land described in the deed to her, a dispute arose between her and Hall, as to tho precise meaning of the “right of way” clause in her deed, which eventually culminated in an equity proceeding in the Circuit Court for Anne Arundel County, in which Hall filed a bill of complaint against Mrs. Wrigbt and others, praying that they be enjoined from obstructing the said “right of way,” referring to- the right of way mentioned in the deed to Mrs. Wright. The complainant in that bill, after the- necessary formal allegations as to title, alleged that, at the time he conveyed the property described in the deed to Mrs. Wright, he had constructed and with his family occupied a dwelling at the extreme southeast end of the whole tract, and that he had also constructed “a roadway from his aforesaid dwelling through the tract of laud to the public road leading to Annapolis and Baltimore, said road way was graded and rounded up for its entire length twenty feet in width and guttered on both sides, and was so used and maintained by the plaintiff as long as he owned the entire tract, that he had no gates or other obstructions of any kind thereon, and suffered or permitted none to be placed thereon in its entire length, deeming such free use of the road necessary for the reasonable and comfortable enjoyment of his residence and property, and that he continued in the use and enjoyment thereof as ha had so constructed and used same until about the month of September, nineteen hundred and eleven,” the date of the deed to Mrs. Wright. Referring to that portion of the whole tract which he had sold to Mrs. Wright, he further alleged that- “the portion so conveyed to- said Bessie B.

"Wright embracing with the exception of a short piece the entire road leading from his said dwelling and that portion of the tract of land retained by him to the aforesaid public road; the portion of said tract so as aforesaid conveyed to said Bessie B. Wright by the terms: of the deed to her being expressly subject to the right of way over same from-the portion of the whole tract retained by the plaintiff, as existing at the time of said conveyance, to the northwest ²⁸⁸ corner of the tract conveyed thereby,” and that “the plaintiff further shows that the aforesaid right of way is 'absolutely necessary to- the beneficial use and enjoyment of his aforesaid property, that he has no other means of egress from or ingress to his property to- and from the public road.” He then alleged that he- constantly used the right of way as a means of ingress and egress to and from his property and charged that “the said Bessie B. Wright, William S. Wright and Joseph S. Zindorf have deprived the plaintiff, his family, friends, guests, and business acquaintances of the reasonable use of said right of way as reserved in the aforesaid deed to said Bessie B. Wright, considering the character and situation of his property and the manner in which it is occupied, and the intent of the parties as to the mode in which the right of way was to- be used, by plowing up' a portion of same and planting crops thereon, by dumping refuse and filth from the land bordering on said right of way, by planting posts therein and thereon, by erecting gates thereon, not at the termini of said right of way, but in the path thereof and serving no purpose but the obstruction of said right of way and the annoyance and vexation of the plaintiff and his manifest injury and damage.” It appears from those statements that the specific matter of which Hall complained was that the defendants obstructed so much of the right of way as he was accustomed to use in going to and from his dwelling to and from the public road, but the bill contains nothing which indicates precisely where that part was located. But referring to that complaint, the defendants in their answer chargéd that “the said Hall has no occasion whatever to pass through the said gates, and that according to the reservation in his deed his right to use the road leading from the public road through the farm of the defendant Bessie B. Wright extends only to his property and not to his dwelling house, and that, therefore, he could without the slightest inconvenience to himself or injury to his property, enter upon his own land at the point marked K upon said plat and reach his said dwelling house and all of his property without any occasion whatever to use that por ²⁸⁹ tion of the road beyond the point marked K upon said plat upon which are erected the two gates at the point marked A and B.” When that statement is considered in connection with the allegations of the bill of complaint, it sufficiently appears that Hall’s contention was that he was entitled to enter the right of way at any convenient point which would afford him convenient access from his property to the public road, while that of Mrs. Wright was that he had no right to use any part of the way which lay south of a westerly extension of the northern boundary of his property. That is to say, his contention apparently was that he was entitled to the use of the way at least throughout so much of its extent as would afford him convenient access to his dwelling, while that of Mrs. Wright was that he was only entitled to use so much of it as would afford him access to his whole property. In determining that issue, the Circuit Court for Anne Arundel County was necessarily required to inquire into and determine (1) the existence of the way, (2) its location, and (3) its extent.

It is true that, in that proceeding, Hall did not directly complain of any interference with his right to use the way between the point at which he entered it in reaching his dwelling and White Hall Creek, and that the gravamen of his complaint was that the defendant obstructed that part of it which lay between that point and the public road. But in his prayer for relief he asked that the defendants 'be enjoined from “erecting or maintaining any posts, fences, or other obstructions upon the said right of way, and from erecting or maintaining any gates upon the said right of way except at the termini of said right of way, * * * and from changing the location or grade of said right of way, and from in anywise obstructing the free use of the said right of way by the plaintiff, his family, servants and agents and all persons having occasion to use the same as a means of ingress to and egress from the property of the said plaintiff, and from in any manner interfering with the free and proper use of the aforesaid right of way of the plaintiff so as aforesaid reserved by him.” ²⁹⁰ Upon those pleadings the trial court in that case felt called upon to deal not only with plaintiff’s right to use a part of the road as it was “run” at the time Hall conveyed the property over which it ran to Mrs. Wright, but with his right to use the entire road. For in its opinion it said: “It is averred in the answer, and it was urged by counsel for the defendants at the hearing, that ‘according to the reservation in his deed his right to use the road leading from the public road through the farm of the defendant Bessie B. Wright extends only to his property and not to his dwelling, and that therefore, he could without the slightest inconvenience to himself or injury to his property, enter upon his own land at the point marked K upon said plat and reach his said dwelling house and all of his property without any occasion whatever to use that portion of the road beyond the point marked K upon said plot upon which are erected the two gates at the point marked A and B.’ “If this were a way of necessity the contention would be good, but the road here claimed is under a reservation of a grant and the nature and extent of this right must be by the terms of the reservation itself. If Mr. Hall reserved the whole road, then there is no more sound legal reason why he should be deprived of the full benefit and enjoyment of a part of it, than there is to deprive him of a portion of the land reserved. * * * “I am of opinion that the plaintiff is entitled to the free and unobstructed use of the whole road, Frank v. Benesch, 7 Md. 58 , that the bill presents a case that warrants the interposition of this court by injunction, Shipley v. Ritter, 7 Md. 413 ; Shipley v. Caples, 17 Md. 183 , and that the motion to dissolve the injunction heretofore granted should be overruled.” After the Ellsworth Apartments, Incorporated, and J. E. Stansbury, Incorporated, acquired the property described in the deed from Mrs. Wright to them, they had it laid off in blocks and lots, as shown on a certain plat annexed to the deed to Greif.

From that plat and from the description in the deed to Greif, it appears that the fourth or closing line ²⁹¹ of lot Ho. 1 binds for 675 feet on the first or west line of the 34% acre tract reserved by Hall out of the tract granted to Mrs. Wright, and includes the site of the roadway in dispute in this case, which binds on that line and runs over that lot. After Mr. Greif took title to Jots Hos. 1 and 2, he “constructed” a roadway over what appellee claims was the bed of the old roadway from the intersection of the northern line of lot Ho. 1 with the western line of the 34% acre tract now owned by Teas, southerly along that line over lot Ho. 1 to the waters of White Hall Creek, and placed at the beginning or the north end of that road a gate, through which one entering the road from the Teas property at any point south of the gate would be obliged to pass to reach a public road. Upon the completion of that road Teas, his friends, servants- and agents asserted and exercised an alleged right to use it throughout its extent in connection with and as appurtenant to Teas’ property. Thereupon Mr. Greif, the appellant, filed in the Circuit Court of Anne Arundel County a bill of complaint against Mr. Teas in which he prayed that the defendant be enjoined “from driving over the private road of the plaintiff extending from his gate at the end of the right of way hereinbefore mentioned and reserved for the said William P. Hall and his assigns, along the division line between the properties of the plaintiff and defendant to the water’s edge.” The basis of his complaint was his contention that Teas had no right of way, and that his predecessor in title had never claimed one over Lot Ho. 1, but- that the only way he had was one from his dwelling to the right of way to the public road where such right of way intersected the northern line of Lot Ho. 1.

But in his amended bill, after referring to the several mesne conveyances by means of which he and Teas acquired title to their respective properties, and to the reservation of the right of way described in the deed from Hall to Mrs. Wright, he alleged that “access from the public road to the property of the plaintiff and also to the property of the said William H. Teas is not over the right of way which was originally ²⁹² reserved by the said William P. Hall and wife when they granted and conveyed the property mentioned in these proceedings to the said Bessie B. Wright, and which has passed by successive deeds to the subsequent owners of the property and was not always used by all the owners of the property until the acquisition of the said thirty-four acre tract by the said William H. Teas, and the plaintiff shows that by the aforesaid plat, blue print of which is filed herewith marked ‘Plaintiff’s Exhibit Ho. 6,’ and which is a copy of the -survey and plat as made by J. Spence Howard, Civil Engineer, in June, 1923, it is shown that the road or right of way leading from the public road over the whole tract of Pleasant Plains farm turns at the entrance to Lot One of the plaintiff to the east leading into the aforesaid thirty-four acre tract •of land formerly owned by the said William P. Hall, now the home of the said William H. Teas, and also turns to the west leading into the other lots Hos. from three to ten, respectively, in the subdivision of that portion of Pleasant Plains farm laid out on the aforesaid plat. * * * That in the meantime the right of way originally reserved by Hall had been abandoned and was grown up in small bushes and a large tree entirely obstructing any passage over the same and the owners of the said thirty-four acre tract, subsequent in title to said Hall, had used and have continued to use as a means of entrance to and exit from the said thirty-four acre tract the road shown on the plat marked ‘Plaintiff’s Exhibit Ho. Six,’ and filed with the bill, leading from the house on said thirty-four acre tract in a westerly direction to strike the main road which leads through the whole body of the property mentioned in these proceedings to the public road and which said road leading from said Hall house, as aforesaid, connects with part of a road laid out by said bodies corporate, purchasers of the said property, continuing in a westerly direction through various lots laid out by them, as a means of access to and exit from the same.” And there is evidence which sufficiently identifies the southern part of the right of way thus referred to with that part of it which ²⁹³ runs over Lot Ho. 1 and which was described in the deed from Iiall to Wright. So, though the plaintiff in the original bill asserted that neither Teas nor his predecessors in title ever had any right of way over Lot Ho. 1, in his amended bill he asserted that they had had such a way but had abandoned it, but in this court he combines both defenses, for in his brief he states “the testimony of the appellant is offered to show the interpretation of that reservation by the party who made it, by abandoning that part of the road leading to the water which he had previously used, but never intended to reserve.” The defendant answered the amended bill as well as the original bill, and in his answer asserted in effect (1) that under the reservation in the deed from Hall to Wright a part of the right of way described in that deed extended from the northern boundary of Lot Ho. 1 over that lot along the western boundary of the Teas property southerly to White Hall Creek, and that he was entitled to use that portion of it as appurtenant to his property (2) that that right was established by the decree of the Circuit Court for Anne Arundel County in the case of William P. Hall v. Bessie B. Wright et al., and (3) that no' part of it had ever been abandoned. Hpon the filing of the original bill with its accompanying exhibits the court directed an injunction to issue as prayed, but subsequently, after a hearing upon bill, answer and evidence, on a motion to dissolve that injunction, which hearing the parties agreed should be final, it dissolved the injunction and dismissed the bill.

From that decree this appeal is taken. The principal and controlling question presented by the appeal is whether the right of William P. Hall to use that part of the right of way referred to in his deed fio Mrs. Wright, which is the subject of this controversy, was in issue in the case of Hall v. Wright et al. If it was, the existence of the way