Lichtenberg v. Sachs

Markell, J., delivered the opinion of the Court. These are appeals from a final decree for an injunction restraining defendants from interfering with the ¹⁴⁹ use by plaintiff and the owners and occupiers of certain land of plaintiff of a right of way as now laid out from plaintiff’s land through certain land of defendants to Hammonds Ferry Road. In a full and careful opinion Judge Clark held that plaintiff is entitled to a prescriptive right of way, and to protection by injunction against interference by defendants with use of this right of way. Neither the briefs nor the appendices, nor even the transcript (except Judge Clark’s opinion), contain a plat or an understandable description of the lands in question.

Judge Clark, “at the suggestion of defendants’ counsel, and with the consent of plaintiff’s counsel, went and look at the locus in quo.” He says, “The banks along the sides of this road, where it goes down the hill back of the tenant house on the Robinson property [defendants’ property], are, at places, at least six feet high. This ‘cut’ through which this road runs was not put there by grading or anything like that. It got there by the gradual erosion of the soil. The banks along the sides of this road, wherever it goes through a ‘cut’, have an old look.

I venture the opinion that that road has been there for more than one hundred years. But, we do not have to go back that far. The evidence clearly establishes that the road was there and in use when Mr. and Mrs. Jankiewicz purchased the property [plaintiff’s property] in 1898, and that it has been in use continuously ever since. This raises a presumption that the user was adverse, and, under a claim of right, and casts the burden of showing that the use of the way was permissive or by license inconsistent with a claim of right, on the owner of the land.

(Cox v. Forrest, 60 Md. 74 ; Potomac Edison Co., v. Routzahn, [ 192 Md. 449 , 65 A. 2d 580 ]; Wilson v. Waters, [ 192 Md. 221, 227 , 64 A. 2d 135 ]; Smith v. Shiebeck, 180 Md. 412 , 24 A. 2d 795 ; Southern Md. Agricultural Association v. Meyer, [ 196 Md. 31 ], 75 A. 2d 89 .)” Evidently Judge Clark understands the properties; we do not. Even if we were unable to accept his geological conclusions as to the age of the ¹⁵⁰ road, it is, as he says, unnecessary to go back that far. The testimony fully supports his conclusions as to the last fifty years. The properties are described in Judge Clark’s opinion. “The question posed by this case is whether the plaintiff is entitled to a right of way, by prescription, over the defendants’ property, to the Hammonds Ferry Road.

Said Hammonds Ferry Road, at this point, runs approximately north and south. The defendants own a farm containing 97% acres of land, situate and lying on the west side thereof. This farm formerly belonged to William A. Shipley and was devised by him to his daughter, Armenella M. Robinson, and in the testimony is generally referred to as the ‘Robinson property’. I will, hereinafter, at times, so refer to it.

The defendants acquired this farm by deed from John R. Norris, trustee, dated December 8, 1950, although they had purchased it sometime prior to that date. The whole 97% acres is in said deed described under one set of courses and distances, but it really consists of two tracts, one containing about 25 acres, and the other 70 some acres. The plaintiff owns a farm containing 35% acres of land, lying west and north of the defendant’s said land. The 25 acres tract belonging to the defendants as aforesaid, lies between the plaintiffs’ land and said Hammonds Ferry Road.

There is a small tenant house on said 25 acre tract about 1,000 feet back from said Hammonds Ferry Road. The road over which the plaintiff claims a right of way begins at said Hammonds Ferry Road añcl runs thence westerly to a point in front of said tenant house, and thence continues on past the same down through a small piece of woodland, to the plaintiff’s property, and thence continues on, first, over the plaintiff’s land, then over a small stream, and then on to the house thereon. The plaintiff acquired this land from his father by deed dated November 12, 1948, the elder Mr. Sachs acquired it from Frank Jankiewicz and Katie, his wife, ¹⁵¹ by deed dated October 4, 1933. Mr. Janicwicz and Katie, his wife, acquired it from James M. Pitcher, and others, by deed dated August 18, 1898.

The plaintiff’s land is entirely surrounded by the lands of others, and there is no means of ingress or egress thereto or therefrom except over the road in question. Shortly after the defendants bought the Robinson property, the elder Mr. Sachs, who apparently lives in the neighborhood, went over one day began ‘rounding up’ or grading the road with an auto-patrol, or gasoline propelled grading machine, and Mr. Lichtenberg ordered him off and threatened to shoot holes in the machine’s tires if he did not go. Mr. Sachs left. Mr. Lichtenberg then placed a barricade across the road.

This suit followed. When at the beginning of the trial, it was discovered that title to the Robinson property had been taken in the names of Mr. and Mrs. Lichtenberg, then plaintiff obtained leave to amend his bill by making Mrs. Lichtenberg a party defendant, and, when this amendment was made, it was agreed that the answer filed by Mr. Lichtenberg be considered as having been filed by both Mr. and Mrs. Lichtenberg, and the case continued with Mr. and Mrs. Lichtenberg as defendants. It will not be necessary for me to review the testimony. It suffices to say that it very definitely establishes that the plaintiff and his predecessors in title have used the road in question for at least fifty years.

As a matter of fact, I think it had been used much longer than that.” Then follows the portion of the opinion first above quoted. As Judge Clark says, plaintiff’s property was conveyed to him by his father by deed dated November 12, 1948, to the father by the Jankiewiczs by deed dated October 4, 1933, and to the Jankiewiczs by deed dated August 18, 1898. The record does not show a common source of title to plaintiff’s and defendants’ properties. Defendants contend that although ordinamly this court does not review the lower court’s decision as to ¹⁵² the credibility of witnesses, the decision on the evidence is clearly erroneous and should be reversed.

They assert that the court’s opinion “is replete with beliefs and assumptions that have no factual support in the record”, No less than eight instances are specified. None of the eight can properly be so characterized — unless in a purely rhetorical sense. None of them are factually unsupported statements in the opinion; all are argumentative or verbal criticisms by defendants of the opinion, especially parts of the opinion which reflect Judge Clark’s impressions from viewing the property. We have suggested that we might hesitate to accept all of Judge Clark’s conclusions as to the age of the road.

On the other hand, on questions of fact on which defendants rely on bits of testimony and attenuated inferences contrary to what Judge Clark saw, e.g.., whether the road now physically exists, or whether between 1898 and 1914, in the eyes of a boy born in 1898, the right of way in question was a road or a “path”, and other questions as to use or abandonment of this road and use or existence of substitutes, we are disposed to give controlling weight to what Judge Clark saw and his inferences therefrom. We concur in the above quoted statements by Judge Clark, and in his reasons and citations of authorities, as to the continuous use of the road since 1898, and the presumption that the user was adverse. Defendants assert that the road was not used for more than twenty years, that the use was not adverse but permissive, and that it has been abandoned. These seemingly contradictory contentions reflect the same misinterpretation of the same facts which establish the opposite of these contentions.

This road is a road, not a “path”, but has never been a boulevard. Plaintiff’s property is not one of the paradises which exist in other parts of Anne Arundel County. It is partly woodland, it has not been continuously farmed, and the part of the road from ¹⁵³ plaintiff’s property to the Robinson tenant house has never been affected by congestion of traffic. Some of the tenants of plaintiff’s property have not even owned automobiles.

Consequently tenants have sometimes used the road principally by foot, and have had few visitors, on business or pleasure, by automobile. Nevertheless, the fact that the road has been less used than some other roads does not mean that it is not necessary — indeed indispensable. The fact that it is the only road makes it indispensable, whether it is used by automobile every hour or once a week. The same is true of defendants’ assertions that plaintiff, or his father, his predecessor in title, had other outlets by other public roads than Hammonds Ferry Road.

Plaintiff’s property adjoins one or more of his father’s properties which border on some other public road. When plaintiff’s father owned the property now in question, his tenant sometimes walked, and occasionally drove, on a good day, across the field to the father’s house and vice versa. There was, however, and is, no road across the fields, and hence no outlet from plaintiff’s property through his father’s. Any road, good or bad, is better than none at all, and some road is indispensable.

To show that use of the right of way was not adverse but permissive, defendants called as a witness a son of the Jankiewiczs, who was born a month before his parents moved to the property and therefore was about sixteen years old when they moved away. He says that when he was ten or twelve years old he heard conversations between his father and mother to the effect that sometime prior thereto the father had got permission to go through the Robinson property. Judge Clark says, “I do not think this testimony should be taken very seriously. * * * Unless he was a more precocious youngster than I think he was, he would hardly be remembering conversations which occurred before [or when] he was ten or twelve years old.” We agree, especially if the conversations indicated that ¹⁵⁴ user was permissive and not adverse, a distinction which probably neither the witness nor his parents then or ever since understood. Judge Clark also says, “As heretofore stated, the road was the only means of ingress to and egress from this property, and it is a little difficult for me to believe that Mr. and Mrs. Jankiewicz would have bought this property if they had not been told and believed that they could use the road in question as a matter of right.” If they got any permission to use the Robinson property, they probably thought it was irrevocable.

An oral permission, believed to be irrevocable but unenforceable by reason of the Statute of Frauds, may evidence a claim of right and indicate that user was adverse and not permissive. Tiffany on Real Property, (3d Ed.) § 1196; Schmidt v. Brown, 226 Ill. 590, 596-600 , 80 N. E. 1071 , 11 L. R. A., N. S., 457. Judge Clark says, “I am not quite clear as to exactly what the defendants’ defense is. In their answer, they seem to attempt to say that there is, in fact, no road running from the plaintiff’s property through their property to the Hammonds Ferry Road; and Mr. Lichtenberg testified that when he looked at the Robinson property before he bought it, he did not see any road running through it.

I just do not understand what he means