Mahoney v. Devonshire, Inc.

DAVIS, Judge. Six corporations — Country Ridge Inc., Coventryshire, Inc., Crossfox, Inc., Devonshire, Inc., Dover Foxcroft, Inc., and Dublin Field, Inc. — sued George P. Mahoney, Jr. and his wife, Amanda S. Mahoney, for a declaration of their right to use a right-of-way, an injunction barring the Mahoneys from interfering with their use of the right-of-way, and a declaration of their rights to repair and pave the right-of-way, as well as for tort damages. The Mahoneys filed a counter-claim seeking a declaration of the parties’ rights regarding the right-of-way and an injunction against the use of the right-of-way inconsistent with the rights as determined by the court. From a decision of the judge that an easement of record existed and a determination by the judge of the scope of a prescriptive easement found by the jury, Mahoney and his wife appeal.

FACTS This appeal concerns the use of a roadway running over and through various properties located in Baltimore County, near Reisterstown, Maryland. The roadway, which essentially runs in an east to west direction, connects two roads located in the County, Longnecker Road and Hanover Pike. Longnecker Road and Hanover Pike both run, for our purposes, in a north to south direction. The properties concerned in this litigation lie between but do not reach either Longnecker Road or Hanover Pike.

George and Amanda Mahoney (the Mahoneys), appellants, own property which is situated-between Longnecker Road and Hanover Pike. In particular, this property is located east of and adjacent to property owned by six corporations doing business as the Security Development Company (the corporations), appellees. The appellees, in an effort to develop and market six parcels of land located to the northwest of the Mahoney property, used the roadway running over appellants’ property as ingress and egress to and from Longnecker Road. ⁶²⁷ Believing that appellees had no right to use the roadway traversing their property, appellants erected gates to foreclose access to appellees’ property. Appellants also allegedly communicated with prospective purchasers of appellees’ property to discourage its sale, and otherwise acted to prevent the development and sale of the property.

As a result of this activity, appellees filed suit in the Circuit Court for Baltimore County. Appellees sought a declaratory judgment establishing their right by way of easement to use the roadway and an injunction barring appellants from interfering with use of the roadway. Appellees also alleged damages for injurious falsehood and civil conspiracy. At trial and by agreement of the parties that the existence of an easement of record was a question of law for the court, the circuit court (Brennan, J.) found that a record easement existed over appellants’ property.

The question of the existence of a prescriptive easement was submitted to the jury. The jury found that an easement by prescription was established over appellants’ property. After argument at trial by appellants that the scope of the prescriptive easement should have been defined by the jury which found the existence of the easement, the judge, in a final judgment and order dated March 1, 1990, found that appellees had the right to maintain and repair a right-of-way sixteen feet wide, including the right to pave the roadway. The judge also enjoined appellants from erecting gates on the road and from otherwise interfering with appellees’ use of the roadway.

On appeal, appellants raise four issues: 1 1. Whether, in the absence of any deed or other conveyancing document in evidence, the trial court can properly find the existence of an easement of record; ⁶²⁸ 2. Whether expert testimony concerning the contents of deeds and conveyancing documents, and legal conclusions about the effect of those contents, is inadmissible; 3. Whether the trial court’s definition of the prescriptive easement is contrary to the weight of the evidence and; 4.

Whether the trial court erred in failing to submit factual issues about the scope of the prescriptive easement to the jury. Because we hold, addressing the third and fourth issues, that the lower court did not err in defining the scope of the prescriptive easement and in not submitting factual issues to the jury regarding this scope, we need not address the other issues raised by appellant. I. SCOPE OF THE PRESCRIPTIVE EASEMENT Appellants aver that the trial court’s determination of the scope of the prescriptive easement found by the jury was unsupported by the evidence. We cannot agree.

In Maryland, to establish an easement by prescription, it is necessary to prove an adverse, exclusive and uninterrupted use of a way for 20 years. Kiler v. Beam, 74 Md.App. 636, 639 , 539 A.2d 1138 (1988) citing Furman E. Hendrix, Inc. v. Hanna, 250 Md. 443, 445 , 243 A.2d 600 (1968); Shuggars v. Brake, 248 Md. 38 , 234 A.2d 752 (1967). It has been established that “[w]hen an easement has been acquired by prescription, the character and extent of the use permissible are commensurate with and determined by the character and extent of the use during the prescriptive period.” Bishields v. Campbell, 200 Md. 622, 625 , 91 A.2d 922 (1952); Barry v. Edlavitch, 84 Md. 95, 112 , 35 A. 170 (1896); Kiler, supra, 74 Md.App. at 640 , 539 A.2d 1138 ; L. ⁶²⁹ Jones Easements § 415; 5 Restatement, Property, §§ 477, 478. In Tong v. Feldman, 152 Md. 398, 403 , 136 A. 822 (1927), the Court of Appeals observed that: There have been many decisions upon changes made or attempted by owners of easements in the enjoyment of them, and as with discussions on other questions in the law of easements, the theories and principles stated have not been uniform.

Of course, a restriction in a grant or an express reservation must be given effect to its full extent, properly construed. But there is nothing in the nature of a right reserved or an easement, apart from an express prohibition, which prevents all change during the course of its enjoyment. (Emphasis added). Although Maryland courts have had occasion to decide issues of the enlarged or expanded permissive uses of easements, no case has directly addressed this issue where an easement created by prescription is concerned.

This case presents such an opportunity. In the case before us, we are called upon to determine whether the trial court clearly erred in expanding the scope of a prescriptive easement. Md.Rule 8-131(c). In our discussion, we shall be guided by other jurisdictions which have addressed this issue.

In Kuras v. Kope, 205 Conn. 332 , 533 A.2d 1202 (1987), the Supreme Court of Connecticut had occasion to decide whether the lower court erred in permitting easement owners to broaden the scope of a prescriptive easement. In Kuras , the Kopes obtained by prescription a right-of-way in the form of a dirt road approximately 1900 feet long. The Kuras family brought an action against the Kopes in which they sought, inter alia, a declaratory judgment defining the width, scope and nature of improvements which could be made to the dirt road. They also sought injunctive relief restraining the expansion, improvement or broadening of the easement.

After conducting the trial and viewing the locus in quo, the trial court determined that the right of the Kopes to use the dirt road was established by prescription; that the use ⁶³⁰ was limited to the use that established it; that the right-of-way was only about ten feet wide, and that although the .Kopes had a right to maintain the right-of-way as a dirt road, they could not add stone, gravel or sand to it. Nor could they grade the dirt or build “slopes” on the area along the right of way. On appeal, the Kopes averred that the decision of the trial court “has taken away all rights incident and necessary to its [the easement’s] enjoyment and has taken away its practical usefulness.” Id. 533 A.2d at 1206 . Further, the Kopes urged that the improvements were in keeping with the nature and use of the prescriptive right-of-way and were permissible so long as the improvements were made for purposes related only to ingress and egress to and from their residence.

Id. Finally, the Kopes argued under 5 Restatement, Property, §§ 478-79 that new needs, as evidenced by the improvements they proposed, “must have been satisfied if the prescriptive easement is to be effective.” Id. Agreeing with the Kopes that the trial court erred in restricting the scope of the easement, the Supreme Court observed: Even though the common and ordinary use which establishes the prescriptive right also limits and qualifies it, as one court aptly observed, “the use made during the prescriptive period does not fix the scope of the easement eternally.” One commentator in this field states that “if the above announced rule were applied with absolute strictness, the right acquired would frequently be of no utility whatsoever. A right-of-way, for instance, would, as has been judicially remarked ... be available for use only by the people and the vehicles which have passed during the prescriptive period.” But the rule is not applied with absolute strictness.

Id. at 1207. (Citations omitted, emphasis in original). After further discussion of the law regarding the increased permissible use of prescriptive easements, the Court said: ⁶³¹ The desire and need for improvements in such a prescriptive easement for ingress and egress emerges from the evolution of the dominant parcel. The nature and scope of such improvements, however, cannot be fully foretold.

Acknowledging that the interests and rights of both the dominant and servient tenements often conflict, the problem arises of how present needs may be justified under a prescriptive right that apparently met the needs of another day. This brings into focus the proposition that the use and improvement of this prescriptive easement must not unreasonably burden the servient tenement that is already burdened with the easement. Id. (Emphasis added).

See 5 Restatement, Property § 480. Bottomed on this enlightened approach, the Court found that the trial court erred in restricting use of and improvement to the right-of-way, and that, subject to further fact finding, the road could be graded and asphalt or gravel laid. The Court stated that: “It appears that one who has a prescriptive easement has the privilege to do such acts as are reasonably necessary to make effective enjoyment of the easement unless the burden on the servient tenement is thereby increased.” Id. at 1208. (Citations omitted).

See also Big Cottonwood Tanner Ditch Co. v. Moyle, 109 Utah 213 , 174 P.2d 148 (1946); Olcott v. Thompson, 47 AR 184 (1927). Clearly, the court in Kuras did not believe that the proposed improvements would necessarily and impermissively burden the servient estate. A similar result was reached in Jordan v. Worthen, 68 Cal.App.3d 310 , 137 Cal.Rptr. 282 (1977). In Jordan , the owners of eight parcels of land created by a subdivision of a 320 acre ranch sued the owners of two of several parcels subject to a prescriptive easement in a private road leading to the ranch.

In the suit, plaintiff owners sought, inter alia, an injunction against an obstruction (a locked chain) placed across the road. The trial court held that it was reasonably foreseeable that the ranch property would be subdivided and that the burden wrought on the owners of the servient estate by the increased use of the road was not ⁶³² unreasonable. From a judgment for plaintiffs, the owners of the servient estate appealed. The trial court in Jordan had made detailed findings regarding the road in question.

The court found that from the early 1900’s, the properties served by the road were large family farming units. The farmers were involved in the production of wood forest products, together with the growing of fruit trees, family gardens and the raising of sheep and cattle. The road was used in connection with these activities as ingress and egress to and from the ranch. The road was also used for access to one or more ranches beyond the subject ranch for the transport of considerable amounts of wood forest products.

Beginning in the 1940’s, the area including the ranch followed a pattern of subdivision into smaller parcels and a change from the original family farms to use as second or retirement homes. This resulted in increased population and vehicular use of available roads, including the roadway at issue in the case. At the time of trial, the roads were used only for access to and from the properties owned as second or retirement homes. In addition to finding that the evidence showed that the appellants knew of the changing nature in the use of the properties supported by the road, the California Supreme Court found that appellees’ use of the private road for residential traffic was not unreasonable.

The court said: Finally, we note that Civil Code Section 807 provides: “In case of partition of the dominant tenement the burden must be apportioned according to the division of the dominant tenement, but not in such a way as to increase the burden upon the servient tenement.” Strict application of this rule would limit the right to use the private road to one family, presumably the plaintiffs Jordan, who have acquired the old ranch house. The law, however, is not so unmalleable. The Restatement of Property indicates, “Except as limited by the terms of its transfer, or by the manner or terms of the creation of the easement appurtenant, those who succeed to the possession of each ⁶³³ of the parts into which a dominant tenement may be subdivided thereby succeed to the privileges of use of the servient tenement authorized by the easement. Jordan, 137 Cal.Rptr. at 292-93 .

Like the court in Kuras , the Jordan court found that the change in nature and scope of the use of the easement was permissible and did not unreasonably burden the servient estate. Another case, Hill v. Allan, 259 Cal.App.2d 470 , 66 Cal.Rptr. 676 (1968), is instructive. In Hill , “[t]he crux of the dispute was whether the use of the easement by 24 additional residences exceeds the general outline of the prescriptive right acquired by the adverse user over the years or whether it is merely a change in degree of established use.” Hill, 66 Cal.Rptr. at 686-687 . The Court was considering the question in the context of a change in the character of the use of the dominant tenement from a primarily agricultural to residential use.

The easement in controversy was an irregularly curving road which had served the dominant tenement for approximately 70 years. In finding that there was no substantial increase in the burdening of the servient estate or interference with the existing agricultural uses of that estate, the Court said: In view of the evolution of the dominant and servient tenements here from a primarily agricultural one in 1912 to a primarily residential one by 1958, we must apply the test of reasonable foreseeability____ As indicated by the Restatement [of Property § 478-79], no use can be exactly duplicated. The inevitability of change dictated by natural forces and human activities requires that subsequent users under prescriptive easements must vary in some degree from the users by which the easements were created. The real question is whether the Nielsons’ present and contemplated use of the easement as an access road for 24 additional homes on their 120-acre parcel was a reasonable foreseeable development of the dominant tenement as it evolved during the various prescriptive periods and whether a substantial increase in the servient tenement would result. ⁶³⁴ Id. at 687.

(Emphasis added). The Court decided that the development was foreseeable and that the increased use of the easement was not unreasonable as to the servient tenement. In Bodman v. Bodman, 456 Pa. 412 , 321 A.2d 910 (1974), appellees brought an action in equity to compel appellant to remove a chain barricade from a lane which crossed his property and provided access to appellees’ land. In enjoining appellant from interfering with appellees’ future reasonable use of the land, the Supreme Court of Pennsylvania stated: Because it is created by adverse use, an easement by prescription is limited by the use made during the prescriptive period.

This limitation is not, however, absolute. Easements by prescription may be apportioned when the dominant tenement is subdivided. Restatement of Property § 488 (1944). Furthermore, “normal evolution in the use of the dominant tenement ” will permit reasonable increases in the burden imposed on the servient tenement.

Here, the use during the prescriptive period was for entry and exit by various motor vehicles. Since a portion of