Libertini v. Schroeder

Parke, J., delivered the opinion of the Court. An amended bill in equity wa,s filed by the appellants, Louis Libertini and Rose Tfibertini, bis wife, and Catherine Elizabeth Reichert and Philip’ Reichert, her husband, against the appellee, Augustus R. Schroeder, Jr., alleging that an ancient road extending from the south end of the Belair Road Bridge over the Gunpowder River in a southerly direction across the land of Louis Libertini, thence over the adjoining land of Catherine Elizabeth Reichert,' and thence through the adjacent land of Augustus R. Schroeder, Jr., and thence continuing through the successive lands of other owners, was the right of way of the appellants, Junis Libortini and Catherine E. Reicbert, by adverse user; and that the appellee had obstructed the way so as to prevent the appellants from traveling over the same, to their irreparable injury. The particular relief prayed for wa's a mandatory injunction to require the appellee forthwith to remove the distractions and to restore the way to its former condition; and an injunction to compel the defendant, his agents and servants, from any further obstruction of the way or interference with its use by the appellants. The court passed an order nisi, and the defendant answered, admitting- the obstruction of the way claimed hv the hill of complaint, but denying that the appellants had any right to the way, which was asserted to he an abandoned public highway, whose bed ⁴⁸⁷ liad nwitcd to flu* respective1 owners in fee of tlie soil.

On the issue's tlins made testimony was taken by the litigants before1 tlie court, which passed a decree dismissing the bill of e'omplaint. The present controversy carries ns back to conditions which existed many years ago, and which are now difficult to re-establish through the1 imperfect medium of the recollection of ageel witnesses as to what were exact conditions in the days of tlieir youth. The1 incorporation of the Baltimore and Jerusalem Turnpike Company on March 18th,' 1867, will serve as a convenient point at which to begin our statement of tlie facts necessary to the presentation of the case. By Chapter 143 of the Acts of 1867, the General Assembly of Mary lam el incorporated the Baltimore and Jerusalem Turnpike1 Company for the purpose:, and with the1 power, to grade1 and make a turnpike roael “beginning for the: same at the; limits of the City erf Baltimore1 em the Bed Air Road and running upon and occupying the: said Bel Air Road from the: saiel city to the old stage or Camp Chapel Roael, and from thence1 on saiel Bed Air Roael to the Little Gunpowder Balls, with power to diverge from the bed of said road when and where1 it may be desirable1 to said company, to use and occupy a width of thirty feet on each side from the center.” The company was granted tlie franchise to collect toll, and tlie privilege of eminent domain, which should "vest the title and interest of the owners thereof in the property condemned in the said company.” Sections 3-11, 13.

See Douglass v. Boonsborough Turnpike Co., 22 Md. 219, 236, 237 . The turnpike company built the turnpike for eight miles from Baltimore on the1 road-bed of the Bel Air Road and then1 stopped. Tlie terminus of this paved surface wa's about one mile south of the1 property now owned by the appellee, and at the northwest corner of this property the Bol Air dirt highway folked. The continuation of the road in a straight line, over a hill through the present Schroeder, Reichert, and Libertini properties, and a1, fourth tract, to ⁴⁸⁸ the bridge carrying the Bela.ir Road over the Gunpowder Falls, formed the right or eastern branch of the fork; and its left or. western branch was the route around the hill and along the northwestern boundary lines of the three tracts of land now owned by the appellants and appellee, whence it turned sharply to the east and united with the right branch of the'fork at the public bridge.

These branches separated at >an acute angle and, at their point of greatest divergence, were never more than approximately three hundred and fifty feet apart. This was the situation when the turnpike company was incorporated, hut the record does not disclose how long- it had previously subsisted. It does appear that the right branch wias the original line of the Bel Air highway, hut when its surface way became so had as to cause a, deflection of public travel to the left branch cannot he determined from the record. The testimony of-all the witnesses w'as that since 1859 to 1886, or the year in which the right branch was improved by the turnpike company, there had been no public travel on the right branch, but that as early as the year 1859 the public use was by the Left branch around the hill.

Only the appellant Philip Reichert can go SO' far hack. In that year he was a youth of ten years, and it was at this tender1 age that four other witnesses, Catherine Elizabeth Reichert, who is an appellant, John C. Halbert, John Furnkase, and John Dunty, speak as to like conditions of public travel from 1861, 1864, 1865 and 1866 respectively, to about 1886. How long before these years the public had traveled the left branch of the folk because of the condition of the way on the right branch, there is no satisfactory proof. It is over this unused portion of the original Bel Air public highway, which we have for1 convenience named the right branch, that the appellants, Louis Libertiui and Catherine Elizabeth Reichert, claim a private right of way.

In support of their position they go hack as far as 1859 to show acts of user by their predecessors in title. Any such proof prior to the second half of the year 1866 must he the result ⁴⁸⁹ of an imperfect memory, because all the land in controversy was but a single tract, wbicb Was owned until February 6th, 1850, by Hairy D1. Gr. Carroll, and from that year1 until 1866-by Robert G. Purvianee and others.

Mitchell v. Seipel, 53 Md. 263 ; Stewart v. May, 119 Md. 18, 19 ; Capron v. Greenway, 74 Md. 293 . 1. The first severance of this tract was under the deed of Robert G. Purvianee and others to John Schroeder for sixty acres, three roods and twenty-nine perches of land, more or less. The deed is dated June 22nd, 1866, but the acknowledgment of Purvianee was not until August 15th, 1866. The next deed was by Robert G. Purvianee and others to Benjamin Marple, dated June 28th, 1866.

As the deed to John Schroeder embraced the appellee’s parcel and'that owned by the appellant Catherine Elizabeth Reichert, and the deed to Benj amin Marple included the farm of the appellant Imuis Libertini, it is a necessary conclusion that all evidence of an adverse user by John Schroeder and Benjamin Marple and their1 successors in title must relate, at the earliest, to the period beginning after June 25th, 186b, when there was a division in the ownership of the land, which then included both the -asserted dominant and servient estates. 2. After June 25th, 1866, and until the year 1886, the evidence must be considered to have established that the right branch of the road was not used by the public but by the owners of all the properties through which the right branch passed to the public’bridge over the Gunpowder Falls. This user was for access and egress to and from their farms and public ways and places and was in no respect inconsistent with the continued existence of a public; highway. Canton Co. v. Baltimore, 106 Md. 100 ; Baugh v. Arnold, 123 Md. 7 .

Moreover, prescription does not run against the public to defeat its claim to a public road. Brady v. Baltimore, 130 Md. 513 ; Cushwa v. Williamsport, 117 Md. 318, 319 ; Ulman’s Case, 83 Md. 144, 145 ; Sapp v. Northern Central Railway Co., 51 Md. 115 ; Patapsco Co. v. Baltimore ⁴⁹⁰ City, 110 Md. 311 ; Baldwin v. Trimble, 88 Md. 402 . Let us assume, however, that the public had abandoned the right branch of the fork so that the soil had reverted to the owners, and was, therefore, subject to the operation of adverse possession. On this assumption, the proof is that the right branch was cleared for a width of sixty feet, graded, improved and opened to public travel as a part of the turnpike road, some time in 1886.

Hence it cannot he said that the requisite period of twenty clear years of adverse user has been established by the appellants, Who hear the burden of proof. 3. However, tbe appellant -Catherine Elizabeth Reichert, who acquired her tract of land from her brother, Augustus Schroeder, Sr., on Tune 16th, .1875, when the land she purchased was unimproved, set up- towards the close of the ease a right to use the road over the remaining land of Augustus Schroeder, Sr., by reason of these circumstances. The appellant’s husband, Philip Reichert, was in the course of the negotiations with Augustus Schroeder, Sr., for the purchase of the laud, which, as we have stated, hounded on the left branch of the fork of the Bel Air Road, and was traversed by the right branch, when the husband inquired about an outlet, and he swore, in effect, that the vendor showed him a plat of the farm with the roadway in question and told him that lie could úse the right branch of the fork to the Bel Air Road “my life time and forever.” • The wife’s evidence substantially is that her brother told her she could use this roadway through his place until the end of time*. These conversations were before the purchase by the appellant, who would not have bought the property without the roadway in question.

The deed, however, did not mention the right of way, and the appellant Catherine1 Elizabeth Reichert relied upon an easement by implication or by estoppel, iipon the theories (a) that the roadway was an easement whose use was continuous and apparent, and necessary for the reasonable enjoyment of flic1 land conveyed; and (b) that a vendor is estopped to demy the exist ⁴⁹¹ ence of a subsisting way upon the assurance of whose continuance and right to use the vendee made1 the purchase. See Gosnell v. Roberts, 147 Md. 625 . A. At the time of the grant in 1875, this road was used by Sehroeder as an ordinary farm road or outlet, and was not a way of necessity. The parcel of land under treaty had never been divided or used as a separate piece of property, but as a part of the whole farm, and was laid off for the purpose of that particular sale immediately before the deed to the buyer, and was bounded by the left branch of the fork, which was then a public way, only a short distance west of the way in dispute, and egress over* the land purchased to the then public road (now the improved state road) was of comparatively easy and convenient access.

The physical conditions of the surface of the Reichert property were the same in 1875 as, now, and the conclusion of the learned chancellor below, after hearing the testimony on the subject and making, in company with, counsel for the respective parties, a, personal inspection of the premises, is tlius expressed in his opinion giving his grounds for his denial of the injunction sought: “A view of the land leads me to believe that this, will work little or* no hardship to the complainants, a's the new state road passes right by these properties, improvised Ways to the state road have already been created, and with very slight expenditure, can be made into good and practical entrances.” It does not seem to us that the evidence furnishes any sufficient reason to disturb this finding or to hold that under* the deed of 1875 the way over the remaining Sehroeder land passed by legal implication as appurtenant to the estate of the Reichert grantee. The proven private use relied on was of a noneontinuons easement. Oliver v. Hook, 47 Md. 307 ; Duvall v. Ridout, 124 Md. 193, 197 ; Washburn on Easements (4th Kd.), pp. 106, 107; Lippincott v. Harvey, 72 Md. 572, 579 ; Gulick v. Fisher, 92 Md. 353 ; Howard v. West Md. Ry. Co., 138 Md. 49 .

B. If the testimony of the Reicherts be given its full ⁴⁹² weight, and on it the vendor be held estopped to deny the right of the appellant, Catherine Elizabeth Reichert, to use the way oxxer his property, yet the vendor*, some tixxxe before his death, sold axxd conveyed, on September 1st, 1911, fox-value, the alleged servient estate to his son, Augustus R. Schdoedex*, Jr., the appellee, who knew xxothixxg' of the conversations and facts relied upon, here to raise axx estoppel for the bexxefit of the Reichert