Homewood Realty Corp. v. Safe Deposit & Trust Co.

Parke, J., delivered the opinion of the Court. The Safe Deposit & Trust Company of Baltimore and James Morfit Mullen, trustees, under the will of Rebecca ⁴⁶¹ L. King, began a suit in equity against the Homewood Realty Corporation, the Eutaw Savings Bank of Baltimore, and Annie J. Gith, for the purpose of removing a cloud upon the title of their land that was cast by the assertion of the defendants that their adjacent land enjoyed certain easements of air and light and of opening and closing shutters over the land of the plaintiffs. Two of the defendants demurred, and the appeal is from the decree overruling; these demurrers. It is unnecessary to narrate all the facts alleged with the detail of the bill of complaint.

By comparing critically all the allegations found in the several parts of the bill of complaint, and admitted by the demurrer, their factual substance was ascertained to be in accordance with the statement now to be made. The late Rebecca L. King was the owner in fee simple of an improved lot of land on the north side of Fayette Street in the city of Baltimore. Upon her death, on .January 23rd, 1928, the lot was devised to the Safe Deposit & Trust; Company of Baltimore, a body corporate, and James Morfit Mullen, in trust for the uses in her will declared. The adjoining lot on the east that fronts on the north side of Fayette Street is owned by the Homewood Realty Corporation, a body corporate, and is subject tx> the liens of the Eutaw Savings B'ank of Baltimore and of Annie J. Gith under mortgage deeds to them respectively.

Tlie northeast boundary line of the first-mentioned lot coincides with the southwest boundary of the second lot, and at the level of the' ground is the division line of the two walls of the several: improvements built upon these adjacent lots, from the street line in front to the parallel line of the alley at the back of the lots. The warehouse for business purposes on the trustees’ lot is four stories in height on Fayette street, that, after a depth of a few feet, drop down to a height of but one story, while the building to the east maintains a uniform height of several stories*, and its wall is close to the division line, except that, above the level of the first story of each building, this wall, for a part of its length, recedes several feet from the division line, so that this recession above thp first story ⁴⁶² permits the swinging of shutters in this recessed space without crossing the division line of the contiguous lot, but all the other shutters on this wall pass and repass the boundary line between the lots when opened and closed. Consequently, if the trustees or subsequent owners were to extend their present building to a uniform height of four or more stories, the light and air obtained through the windows in the plane of the outer wall would be shut out, and use of the shutters of these windows for fire protection or other purposes would be prevented, but there would not be any interference with the use of the shutter's hung on the sides of the windows in the recessed section of the wall, although the light and air passing through these windows would be lessened. In addition to these allegations, the bill of complaint affirmatively shows the devolution of both lots, without a common owner, since 1893; and that the improvements on the more eastern lot were destroyed by fire in 1904, and that the present buildings thereon were erected some time since that conflagration.

The ownership of this lot is not averred before 1890, but that any easement of light and air or of shutters moving across the property line arose out of the union of title in a common owner of both lots prior to that year, and a subsequent severance accompanied by such grant, reservation, or physical conditions, so as to create an easement in one lot and a corresponding'servitude upon the other, is negatived by averments to the effect that no such grant, express or implied, has ever been made, either to the present •owners of the more eastern lot or to their predecessors in title, by the trustees or their predecessors in title to the next .■adjacent lot ho the west. The other material facts are that the trustees have been seised and possessed of the premises, according to its boundaries, continuously since the death, of their testatrix; that the trustees in June, 1928, entered into an agreement with a named party to sell the lot so devised to them in trust for the price of $310,000, and received a deposit thereon of $10,000, subject to the condition that there was no right of light and air enjoyed by the owners of the defendants’ lot that would ⁴⁶³ prevent the building of a wall to any desired height along the northeast boundary line of the trustees’ lot; that the prospective vendee caused the title of the lot to he sold to be examined, and discovered (1) that the Homewood Realty Corporation claims as the owner of the contiguous lot and improvements an easement of light and air over the lot of the plaintiffs above where its building is one story in height, so that such easement shall not he obstructed by any walls or structures erected upon the plaintiffs’ lot along the division line between it and defendants’ lot above the present height of its building; and also discovered (2) that in the defendant’s chain of title there were two deeds which alone in the successive grants of either lot contain any reference to the alleged easements. The first is dated May 31st, 1890, and, in its granting clause, whose general terms include all appurtenant easements, there is particularly set out, as embraced in the grant, “the right to light and air over the lot of ground to the west adjoining as heretofore existing and now enjoyed.” The second is the next succeeding conveyance of the lot, on August oth, 1912, wherein a similar recital is found in the granting clause. The trustees assert that the pretensions of the defendants to these easements were unknown to them until they were-advised by the prospective vendee that it would not take title-under the agreement to buy, because it could not obtain an assurance of the title as free from these rights or servitudes; and thereby the trustees lost their sale.

In addition to these averments of a specific loss of a sale, the bill of. complaint-further charges that the property held by the trustees lies in the heart of the business district of the- city, and is of great-value, which requires the- utilization of the entire area by a building whose height should not be limited, except by economic and structural considerations, in order that the lot may fully and profitably be developed. Consequently, the plaintiffs affirm the clpud thus, cast upon their title- by the defendants, although without any valid basis either in law or in equity, has stopped one sale; and has prevented, and will continue to prevent, the plaintiffs from selling the- lot at ⁴⁶⁴ its actual worth, from constructing adequate improvements, or from enjoying the complete use of the lot, unless, by reason of the inadequacy of the law, a court of equity shall intervene to declare and protect the property rights of the plaintiffs in the premises. Accepting these facts as established, they are sufficient to prove that the plaintiffs, and their predecessors in title, are, and were, seised and possessed in enjoyment of the alleged servient lot; and that, the defendants having neither an easement of light and air, nor one of opening and closing shuttersj over the plaintiffs’ lot, by either an express or implied grant, the 'plaintiffs are in full undisturbed enjoyment in possession of their lot, except for the occasional and transitory movement, in the upper air, over the plaintiffs’ boundary line, of some of defendants’ shutters in the course of their opening and closing.' Under the allegations of the bill of complaint the swinging of the shutters out and back across the boundary line was a technical trespass of a recurrent character. These repeated aerial trespasses, however, caused no substantial damage, but might, in course of time, become a right by implied grant or adverse user.

Richardson v. Pond, 15 Gray (Mass.), 387 ; Tiffany on Real Property (2d Ed.), sec. 360, p. 3255, sec. 251. Again, access of light •and air was, by reason of the relative situation and structure •of the respective improvements on the several lots and the natural properties of light and air, actually enjoyed by the •defendants, and this condition would continue so long as there was no obstruction produced by a change in the use of the plaintiffs’ lot by its owners. This enjoyment, while such •a situation subsisted, did not depend upon any affirmative action, nor did it involve any physical invasion of the plaintiffs’ premises, by the defendants or their predecessors or successors in title. So, in the absence of an express grant, it was only by verbal acts of the defendants and those under whom they derive, that the plaintiffs could know that it was claimed that a servitude of light and air burdened their land for the benefit of the land of the defendants.

It is admitted by the demurrers that, by express words of grant in ⁴⁶⁵ two duly recorded deeds in tlie chain of title of the defendants, the easement of light and air in question was attempted to be assigned; and that the defendants have asserted this easement to be appurtenant to their estate. These two successive deeds purported to convey in terms the easement in question as appurtenant to the dominant estate conveyed by the same deeds. The deeds are in form valid grants, and the easement, if it existed, as the grantors by these conveyances declare, passed with the dominant estate. It thus appears that the defendants claim over the land of tlie plaintiffs two easements.

The one concerns the shutters hung on the outer face of the defendants’ wall and swung across the division line, and the second is the right to the enjoyment of light and air over the land of the defendants. By the allegations of the bill of complaint the first is an adverse use, and the second rests upon a purporting grant. These burdensome pretensions, if invalid, cast a cloud upon the title, unless the basis of their assertion is so patently infirm that their assertion against the land would not so impair the title of the alleged servient estate in the mind of a reasonably prudent man of ordinary intelligence and diligence as substantially to' affect the owner in the marketable quality of his title. If some such criterion were not enforced, the equity docket would be crowded with causes h> quiet groundless or unsubstantial apprehensions with reference to title.

So, if there be no special circumstances, and the cloud have for its foundation a conveyance or other instrument which is either clearly invalid on its face or whose terms deny the pretension, and the complainant need not resort to extrinsic evidence to establish the defect, the reason for equitable relief does not exist, because it is plain to a reasonably prudent man of average intelligence and diligence that the title or claim asserted is unfounded. Infra. Again, it is said to be so established by the weight of decision as to constitute a general rule, that, where the instrument or proceeding is not void on its face and grants the title or right asserted, “but the party claiming under it, in order t-o enforce it, must necessarily offer evidence which will inevitably show ⁴⁶⁶ its invalidity and destroy its efficacy,” equity will not intervene. This second rule is enforced in a number of jurisdictions and is thus stated and italicised by Hr.

Pomeroy, who sharply condemns the doctrine as being based “upon mere verbal logic, rather than upon considerations of justice and expediency.” Pomeroy’s Eq. Juris (4th Ed.), secs. 1399, 2156, and notes. The case at bar gives point to the objection of Pomeroy. The defendants did not disclaim their pretensions to an easement of light and of air that had determined the contract to sell made by the plaintiffs, but, insisting that they should be permitted to be undisturbed in their power to molest and injure the plaintiffs in their title by an unfounded claim, they demur, and assign as a ground that the two deeds in their chain of title, although valid in form, will ultimately appear by the extrinsic evidence which will be adduced to have been made by strangers to the title of the plaintiffs and, so, be ineffective to' transfer, as the grant in terms imparts, an easement to the predecessors in title of the defendants.

See 18 Harvard Law Review, 527, 528. The particular rule which Pomeroy denounced, while not the subject of a direct repudiation by this court, is not in harmony with our decisions, whose consideration will be deferred in order t» state briefly that the basis of the equitable relief granted is the principle that, because of the inadequacy of a remedy at law, a deed or other instrument or proceedings constituting the cloud may not be used injuriously or vexatiously to embarrass or affect the title of a plaintiff in possession. Pomeroy’s Eq. Juris (4th Ed.), sec. 1398; Sharon v. Tucker, 144 U. S. 533, 543 , 12 S. Ct. 720 , 36 L. Ed. 532 ; Holland v. Challen, 110 U. S. 15, 20 , 3 S. Ct. 495 , 28 L. Ed. 52 .

The fact that the plaintiffs could establish that the purporting easements did not actually exist does not deprive chancery of its jurisdiction, since the actual invalidity of the right or title claimed is a basic element in the jurisdiction of chancery, whose relief could not be obtained if the title or right asserted were valid. The principle upon which ⁴⁶⁷ chancery acts in such cases is that the value of property in land lies in its marketable title and the right to its qniet possession, and that sometimes justice requires that the owner should not have its worth materially depreciated by the chilling effect, for an indefinite time, of an invalid, although not actively asserted, claim, which, if enforceable, would cause him a loss; and so, he is entitled to have the questions affecting his rights forthwith determined by having the claim immediately established and enforced or his estate made secure against its operation. In this way bills quia timet anticipate and guard against future and contingent injuries and assure the estate of the owner. Bispham’s Principles of Equity, secs. 568, 575; Storyfs Equity Juris (14th Ed.), sec. 947; Polk v. Rose, 25 Md. 153, 160, 162 ; Holland v. Baltimore, 11 Md. 186, 197 ; Textor v. Shipley, 77 Md. 473, 475 , 26 A. 1019 , 28 A. 1060 ; Polk v. Pendleton, 31 Md. 118, 124 ; Steuart v. Meyer, 54 Md. 454, 467-468 ; Ca rswell v. Swindell, 102 Md. 636, 639 , 62 A. 956 ; Livingston v. Hall, 73 Md. 386, 395 , 21 A. 49 .

In the application of this principle in Maryland, the artificial test of jurisdiction that is condemned by Pomeroy is not adopted, as is shown by decrees removing clouds on title of the owner in possession in cases where the deed or other instrument, which was the basis of the pretender’s claim, and apparently valid, would inevitably be rendered invalid and its efficacy destroyed by the evidence which the claimant must necessarily offer in order to enforce it. As in Polk v. Rose (1866), 25 Md. 153 , 89 Am. Dec. 773 , where the deed was regular on its face but given by a collector of taxes as a result of a sale made in default of the payment of taxes due on the land sold and conveyed. In order to sustain the special power of the collector to sell and convey, the preliminary acts prescribed by law must exist; and, in the absence of a statute making the deed prima facie evidence of the regularity of the proceedings, the burden was upon the grantee to show a strict compliance with the statutory requirements by evidence extrinsic to the deed.

It was impossible in the case cited for the grantee to establish that the tax officer ⁴⁶⁸ acted in conformity with the- law, and therefore he did not attempt it, hut the owner of the land affected did present the facts which showed an absence of the conditions precedent to a valid sale and deed. The court, under the prayer for general relief, struck down the deed of the collector in order h> remove the cloud it cast on the title. Pages 159-162. Compare Steuart v. Meyer (1880), 54 Md. 454, 465-468 , decided after Acts of 1874, ch. 483, sec. 51, which put the burden of proof upon the party resisting the tax sale.

Code, art. 81, sec. 6,1. Again, in Duval v. Wilmer, 88 Md. 66 , 41 A. 122 , E and H purchased for their joint adventure seventeen lots, and entered into a written agreement whereby the title was to be taken in the name of D' and the lots were to be sold for their common benefit as defined by the agreement. The title was so taken, and E entered and held possession of the lots, and, before any lot was sold, H executed an unacknowledged sealed document which assigned all his interest in the lots to E. Subsequently, LI, who then had neither any legal nor equitable interest, executed a deed to W, purporting to assign his interest in the seventeen lots, and to convey another lot to E in which IT never had any interest; and W