Johnson v. Robinson

Lowe, J., delivered the opinion of the Court. In Slear v. Jankiewicz, 189 Md. 18, 24 , Judge Markell quoted without need for attribution “You take my house when you do take the prop that doth sustain my house.” The original author continued “You take my life when you do take the means whereby I live.” Appellant may well have added “You take my land when you deny me the way to its enjoyment.” On May 20, 1953 Sarah Johnson contracted to sell to Odessa B. Robinson “20 acres” of land for two thousand dollars, nineteen hundred of which was to be paid “at a rate of $35.00 per month until paid in full.” Although Mrs. Robinson was limited by her counsel to testifying to ownership, her son Otay Smith, having “handle[d] all the transactions in connection with this property” testified at ⁵⁷⁰ length. Actually, by an affirmative response to his mother’s counsel, it was indicated that it was he who had “entered into [the] contract to buy this 20 acre tract and a fraction acre of land through [his] mother.” We shall thus refer to Mr. Smith as the purchaser. The final payment for the property was at least a decade later, and while the parties were not certain actually when, 1 the chancellor found it to be in 1964.

The extended period of payment, as well as the looseness of the arrangement was explained by Mr. Smith indirectly when he testified to his relationship with Mrs. Johnson whom he “trusted like a mother,” and more directly when he said: “ . . .1 actually borrowed more money, that is why it took more than ten years to pay for. See, I made two personal loans from her. I borrowed $300.00 from her and I borrowed $600.00 from her and this was all paid for in ten years. . . .” The conveyance finally came by way of an undated deed, notarized on March 6, 1972 and recorded the following day. The eight year delay following final payment was at least partially attributable to Mrs. Johnson who declined to execute a deed until she established the boundary lines of other land she chose to retain which land was ultimately determined to be situate behind that which she had sold appellee.

Mrs. Johnson was concerned that the retained land which had not been accurately located would be denied access to a public road by the conveyance to appellee. “I wanted an outlet. I was fastened in. I didn’t know where my land was at first, see. And I had to pay the taxes every year for twenty-five acres of land and four acres.

I didn’t know where it was at.” In 1967 or 1968 Mr. Smith pressed for his deed. It was then that he first heard that the reason Mrs. Johnson was ⁵⁷¹ hesitating to provide the deed was because she wanted some means of ingress to and egress from her land-locked property. Mr. Smith then: “ . . . asked her where was the land. She said she was going to have it surveyed and let me know.

I said on my plat it doesn’t show you own any land anywhere back there.” Mr. Smith testified further on cross-examination that he did recall telling Mrs. Johnson prior to the deed’s execution that he was “going to let her out.” “I said we would try to work out something if she would tell me where the land was but she couldn’t tell me where the land was. She said in the back. I think that is all I can get out of her here. I said when are you going to have it surveyed but she never had it surveyed and showed me nothing.

The only time I found it is when I went down to the court house and checked it out. That was in 1971 or 1972.” The lost land apparently had as its origin a deed dated 1873, describing a 70 acre tract which was owned by two persons as tenants in common. The tract was physically divided, ultimately descending, one-half to Mrs. Johnson, the adjoining one-half to Nathaniel Fleet, et ux. by mesne conveyance. The division line in the rear of Mrs. Johnson’s half was never clearly established; however, from time to time she sold off several small parcels of her land near the public road on which it bordered and where her ownership was unquestioned.

The final sale of 20 acres was the last to which she could safely provide title until the boundary between her and Mr. Fleet was established. The remaining few acres were reserved and might serve as a cushion for error until the division line was established. That line was finally established by agreement consummated by a derivative deed confirming the agreed boundary dated February 8, 1968 between appellant and the Fleets. The deed recited the common ownership in 1873, its ⁵⁷² division, the lack of record of such division and the purpose and desire to confirm that division of record.

A surveyed boundary line was agreed to in this confirmatory deed. The approximately 20 acres included in the conveyance to appellee together with appellant’s “lost land” is shaped like an awkward funnel with the narrow spout meeting the road for only 70 feet. The remainder of appellee’s 20 acres lay between the road and Mrs. Johnson’s retained land which lay at the top of the funnel between Mr. Fleet and appellee. 2 Appellee’s own limited road front may account for his reluctance to share access to the road with Mrs. Johnson, however, while on the stand, Mr. Smith denied that he had “no intention of letting her [Mrs. Johnson] through [the] property.” Indeed he said he would “let her out”: “If there is any way humanly possible that it wouldn’t affect my place, or what I want to do to the property.” Regrettably, to that intended purpose we are not made privy that we might have more clearly understood his reply. We know, however, why Mrs. Johnson finally signed the deed without the desired reservation: \ “Why did you ultimately sign the deed and deliver the deed without resolving the access problem?

A. Well, he cut up and act so nasty about it and told me that he had paid $50.00 for the deed and he just went on and unnerved me and I forgot when I went to Mr. Lancaster to say that I didn’t have no outlet. Who is Mr. Lancaster? A. He is a lawyer.”; ⁵⁷³ although Mr. Smith did not recall that version of her oversight: “Q. Did she at that time make any statement to her attorney that she had any land that she wanted a right of way on your property? A. Yes, she did.

She told Mr. Lancaster, said Mr. Lancaster, I am messed up here, somehow or another I locked myself in. Said I sold this gentleman here some land, he has paid for it, he has the tax receipt and all, the receipts he has paid for it and I locked myself in and he thinks I should give him a deed. I said I wasn’t going to give him a deed until I talked to you. So he advised her, said this man has paid for it, some ten years prior to now, he said he has paid for it, the only thing you can do is go ahead and give this man his deed.

He said you sign it and I will notarize it, which he did in his office. That was in ’72, ten years after I had paid for it.” Finding no express reservation of a right-of-way as alternatively prayed by the appellant in her suit in the Circuit Court for Charles County, the chancellor narrowed the issue to whether or not appellant could claim a way of necessity which was her other prayer. The chancellor found as a fact “that Mrs. Johnson owned a tract of land of which the conveyance to Mrs. Robinson was a part.” As a consequence “If she does have an easement of necessity it must be by implied reservation as she is seeking a right of way across property which she conveyed for the benefit of property which she retained.” He then concluded by quoting from Burns v. Gallagher, 62 Md. 462 , 471 “ ‘. . . that no easement or quasi easement can be taken as reserved by implication, unless it be de facto annexed and in use at the time of the grant, and it be shown moreover to be actually necessary ⁵⁷⁴ to the enjoyment of the estate or parcel retained by the grantor.’ ” The chancellor then added: “Pacts in this case clearly show the necessity for the right of way, however, there is not showing that the right of way was in use at the time of the sale of the property or at the time of the settlement. For these reasons the relief prayed by the Plaintiff is denied. . . .” A right-of-way of necessity is supposed by some to exist merely by reason of the fact that without it one has no access to his land.

Brice v. Randall, 7 G. & J. 349 . Such does not appear to be the case. In order to establish such a way, it must be shown that sometime in the past the land for the benefit of which the way is claimed, and that in which it is claimed, belonged to the same person. Such an easement usually arises (and originally arose exclusively) when one conveys land to another which is accessible from a public road only through retained land of the grantor or through land of a stranger.

Fox v. Paul, 158 Md. 379, 386 . This right does not arise from any express grant but from a presumption that it was the intention of the parties that the grantee should have access to his land over the lands of the grantor. McTavish v. Carroll, 7 Md. 352 . It has come to be referred to as an implied grant.

Duvall v. Ridout, 124 Md. 193 . A second method by which a way of necessity may be given effect is by implied reservation. It wasn’t until 1879 that the Court of Appeals had reason to decide whether or not a way of necessity might thus arise in Maryland. In an analytical opinion delivered in Mitchell v. Seipel, 53 Md. 251 , the Court decided that a grantor who had denied himself access to reserved land by not expressly reserving an easement through land he had conveyed may in cases of strictest necessity be permitted a way of necessity. “Finding then no binding decision of this Court, and no decided preponderance of authority in this ⁵⁷⁵ country, to prevent us from following the law as it has recently been settled by the decisions in England, and being satisfied the distinction so clearly drawn in those decisions between what has been called an implied grant, and what has been attempted to be established under the name of an implied reservation, is not only founded in reason, but has existed almost as far back as the law upon the subject can be traced, we shall apply it to the case before us.

It remains then to ascertain whether this alley is a way of necessity, so as to fall within the exception to the second proposition stated in Wheeldon vs. Burrows. [Law Rep., 12 Ch. Div. 31].” Mitchell, 53 Md. at 273 . The “second proposition” of Wheeldon had been previously discussed in Mitchell, 53 Md. at 269 : “In an able and extended opinion delivered by THESIGER, L. J., all the leading English decisions are reviewed, and as the result of this review two propositions are stated: First, that all these continuous or apparent easements, or in other words all these easements which are necessary to the reasonable enjoyment of the premises granted, and which have been and are at the time of the grant used by the owner of the entirety for the benefit of the part granted will pass to the grantee under the grant. Second, that if the grantor intends to reserve any right over the tenement granted it is his duty to reserve it expressly in the grant, and to this the only exception is of ways or easements of necessity.

Both these general rules are founded upon the maxim that ‘a grantor shall not derogate from his grant.’ ” Five years later the “leading case” of Burns v. Gallagher, supra, 62 Md. 462 , firmly established the implied reservation as part of our law. The sentence quoted by the chancellor ⁵⁷⁶ was rather a part of a general statement of law than án expression of a defined prerequisite in the rule under discussion: j “For the principle is well settled, and it is founded in reason and good sense, that no easement or quasi easement can be taken as reserved by implication, unless it be de facto annexed and in use at the time of the grant, and it be shown moreover to be actually necessary to the enjoyment of the estate or parcel retained by the grantor. And such necessity cannot be deemed to exist if a similar way or easement may be secured by reasonable trouble and expense, and especially not if the necessary way or easement can be provided through the grantor’s own property. In order to give rise to the presumption of a reservation of an existing easement or quasi easement, where the deed is silent upon the subject, the necessity must be of such strict nature as to leave no room for doubt of the intention,, of the parties that the adjoining properties should continue to be used and enjoyed, in respect to existing easements or quasi easements, as before the severance of ownership; for otherwise parties would never know the real purport of their deeds.

K the grantor intends to reserve any right or easement over the property granted, it should be done by express terms, and not afterwards require a plain grant, it may be