Gulick v. Fisher

Jones, J., delivered the opinion of the Court: In this case the appellant filed a bill in equity in the Circuit Court for Prince George’s County praying an injunction commanding the appellee to remove a fence with which the latter had obstructed a r.oad running through the farm and premises of the appellee to the use of which the appellant claims a prescriptive right in himself and those under whom he claims. ³⁵⁵ The bill alleged that the appellant was seized of a tract of land of about three hundred acres situated about six miles from the city of Washington “the objective point (as the bill expresses it) for hauling produce and other articles to and from, not only” to him, “but to very many if not all the owners of real estate, truckers and tenants in that locality; ” that the appellant and those under whom he claims, “ from time immemorial,” had. been accustomed to use a road known as the “ Mill Roád ” from this land leading through the land of the appellee “to haul produce and other articles of merchandise and traffic” to the city of Washington and to market, and to go to church and the postoffice ; that the said road leads to the highway known as the “Alexandria Ferry Road” and to the road leading to Marlboro, the county seat of Prince George’s County; that the appellant cultivated the usual crops of the neighborhood and engaged to some extent' in trucking and market gardening, and until the obstruction thereof, of which he complains, had hauled his products over the said “ Mill Road;” that about the istof April, 1898, the appellee closed up this road “ by erecting a strong fence across the same,” thus altogether preventing the use thereof by the appellant and shutting him off from access, over this road, to the aforesaid highways which he is now compelled to reach with his produce, and to get to mill, market, postoffice and church, by a much longer and a circuitous route over a bad road comprising a distance of three or four miles; that the appellant “ has no other outlet to the highway except through lands over which he has no right of way except by permission of those owning the same, and should this permission be at any time refused (which is threatened) he will have no Outlet from 'his farm and no means whereby to convey his produce to market” or to travel by vehicle of any sort to the highway unless he constructs, at great expense to him, “ a new and very circuitous road over numerous hills, gulches, &c.;” that the appellee refuses to remove, and still continues the obstruction- complained of, whereby the appellant is greatly inconvenienced and subjected “ to much loss of time and money,” ³⁵⁶ and the value of his property is greatly deteriorated; “that for all this trouble, vexation, expense and injury to his freehold which he is entitled to enjoy the same as those under ■whom he claims from time immemorial, arid to prevent multiplicity of suits at law ” he claims he is entitled to an injunction. The prayer of the bill, then, is “for an injunction commanding the defendant to forthwith remove the said fence placed by him across said mill road so that the plaintiff, his servants, tenants, employee’s, &c., ingress and egress to his said farm may be the same as though never obstructed by the defendant or those acting for him, and from any other or further interference by the defendant (appellee), his tenants, &c., with the right of the plaintiff, his tenants, employees, &c., to the free use at all times of said obstructed road” and for general relief. Upon this bill the plaintiff obtained a preliminary injunction, and the appellee filed an answer under oath and prayed a dissolution of this injunction. Appellee’s answer admits that the appellant is seized and possessed of the tract of land or farm described in his bill as therein alleged; but denies that the appellant, or those under whom he claims, ever acquired a right of way over the land of the appellee as is asserted in the bill, or that he or they were ever accustomed to use the road mentioned therein as the appellant claims; and proceeds by its denials and averments to negative every allegation made by the appellant as ground for the relief sought.

It concludes with a denial that the plaintiff had set forth in his bill such a case as entitled him to the relief prayed or any relief at all, and claimed for the respondent the same benefit of his objection as if it. had been raised by plea or demurrer. The answer was filed on the 15th day of July, 1898, and the case was set for a hearing, presumably on the motion to dissolve the injunction, on the 20th of the same month. On this last named day a general replication was filed and also a petition for leave to take testimony; and upon leave had a considerable volume of testimony was taken upon both sides and the case was brought to final hearing. After this the Court ³⁵⁷ below filed an opinion, the conclusion of which was “ that the injunction heretofore granted will be dissolved and bill dismissed.” The decree or order, however, which followed was that it was “ adjudged, ordered and decreed that the injunction heretofore issued in this cause on the nth day of July, 1898, be and the same is hereby dissolved with cost to the respondent.” The appeal which brings the case to this Court was from this order.

It will be seen from the preceding summary of the bill that the relief by injunction is not prayed in this case as an ancillary but as a primary and substantive remedy, and it will be further seen that the answer of the appellee distinctly disputes and puts in issue the title of the plaintiff to the right of way in respect to which the plaintiff brought his suit. The Court, therefore, upon the case made up on the pleadings was not only asked to protect the plaintiff in the enjoyment of the right of way he asserted but to establish that right for him as well. Accordingly, a great deal of the evidence taken and returned in the case, especially on the part of the plaintiff, goes to the question made as to title of the plaintiff to the right of way involved in this controversy; and the principal inquiry in disposing of the case below was as to how this question should be determined. Without stopping to consider for the present how far this inquiry was properly devolved upon a Court of equity in a proceeding of this character under the circumstances of this case, let us first see what was the character and effect of the proof upon the question made in respect to the plaintiff’s title to the easement here claimed.

In pursuing this inquiry it will not be necessary or useful to go into a minute examination of the testimony bearing upon it. It will be sufficient to state the conclusions resulting from a careful reading and consideration thereof. The appellant’s claim is of a right of way acquired by prescription. A right of way is an easement appurtenant to an estate owned by the person in whose favor the easement exists.

Tiedeman on Real Prop., sec. 607. To establish a right of way by prescription the “evidence should show that the use and enjoyment of the ³⁵⁸ way had been continuous and uninterrupted for at least twenty years before the obstruction complained of; and that such user was adverse, that is under a claim of right, with the knowledge and acquiescence of the owner of the land; and the burden of proof is on the party claiming the easement.” Oliver v. Hook, 47 Md., at page 311; Moore v. Rayner, 58 Md. 411 . The proof in this case shows that the appellant and appellee are owners of adjoining farms. Both of these farms lie between two public highways of Prince George’s County, one of which is known as the Alexandria ferry road, and the other as the Allentown road.

The road in controversy leads from the Alexandria ferry road through the farm of the appellee, and emerging therefrom runs into a road which leads on past the house, and partly through the farm of the appellant, into the Allentown road ; so making a continuous road, when open and unobstructed, from one highway to the other. The farm now owned by the appellant was, in 1893, conveyed in trust to certain trustees by Louis C., Mary O. and Louisa J. Dyer, > to secure a loan from the appellant to Louis C. Dyer. It was afterwards sold in proceedings under this deed of trust, and was first conveyed to the grantor named in the deed of the 25th day of July, 1896, appearing in the record, and then by the last mentioned deed to the appellant. The deed of trust of 1893 recites that the grantors therein are the only surviving heirs at law of Horatio Dyer.

The appellant cannot show, and does not claim to have had or exercised, any user of the road in question himself, but he attempts to show that Horatio Dyer and his heirs exercised a user thereof of a character, and for a length of time, sufficient to establish a title to the easement claimed by him and to annex it as an appurtenance to the land to which he derived title under them. The evidence shows that there was formerly situated on the land now owned by the appellee a mill to which the people of the surrounding country resorted as customers ; and that the road in question was used by the public generally in getting to the mill. Those of the customers who were the most convenient to the ³⁵⁹ Alexandria ferry road and came to the mill over that highway, W'ould approach the mill by the road leading to it from said highway through the land now owned by the appellee. Those situated so as to make it more convenient for them to use the Allentown road in getting to the mill, went to it over the road leading from that highway partly through the land now owned by the appellant and past the house thereon, until it united with or ran into the road here in dispute and over this last road to the mill.

It thus appears that the road in controversy had its origin and was brought into existence and use, not with reference to any purpose connected with the land of the appellant, but for a specific purpose connected with the land of the appellee. The evidence further shows that the road of which the road in question is a part, has been used to a greater or less extent by persons of the neighborhood as a convenient route to get from one of the highways, which have been named, to the other, and to get from points intermediate between them to the one or the other, and that among those who thus used it were the Dyers, the appellant’s predecessors in title to the farm he now owns. Before adverting to the testimony relied upon by the appellant as respects the user of the road by the Dyers, it may be remarked that it was said in the case of Cox & Wife v. Forrest, 60 Md. 74 , “where one, * * has used a right of way for twenty years unexplained, it is but fair to presume the user is under a claim of right, unless it appears to have been by permission.” As the Dyers used the road in question in common with others, which clearly appears, it cannot be said that their user is unexplained. The circumstances to which allusion has been made are sufficient to explain how this user may have related in the first place to the particular purpose which seems to have called the road into existence, and beyond this, was a privilege which they exercised in common with the community generally, and not the assertion of a claim to an easement as an appurtenance to their estate in the land.

This it is useful to bear in mind as affecting the measure of proof required of the appellant as respects the user of the road in ³⁶⁰ question by his predecessors in ownership of his land. The connection of the family of Dyers with the land now owned by the appellant began according to the proof in 1844. At this time, and for many years thereafter, the road in question; was used for the purposes of the mill, which seems to have been destroyed about or just before the time of our civil war. The appellant’s proof as to the user of the road by those under whom he claims relates altogether, as to acts of user, to the time of the ownership of the land he now owns by the grantors in the deed of trust which has been referred to, in which they recite they are the heirs at law of Horatio Dyer (who appears in the proof as their father) and by their said father.

One of the appellant’s witnesses, Louis C. Dyer, testified to having seen a deed of the road here in dispute from some one of the former owners of the land of the appellee to some one of the former owners of the land of the appellant. A claim to the easement, here asserted, by deed, would be contradictory of the appellant’s whole contention upon the allegations of his bill; and the evidence in question could only have been offered to reflect upon the