Mauck v. WALTER BAILEY, ADMINISTRATOR OF ESTATE OF LESTER

Barnes, J., delivered the opinion of the Court. ⁴³⁷ The principal question raised by this appeal is the sufficiencj? of the evidence to support the finding in the decree of the Circuit Court for Anne Arundel County (Sachse, J.) that the appellee’s decedent, Emma O. Lester, the plaintiff below, had acquired title by adverse possession to a tract of land in Deale Beach in the Seventh Election District of Anne Arundel County. The suit was filed on February 14, 1963, by Mrs. Lester against the appellants Herman E. Mauck, and Ethel V. Mauck, his wife, the owners of lots near the disputed property and a claimant of the disputed property, alleging, inter alia, that the Maucks tore down the fence which had been erected by Mrs. Lester in 1939 and had erected another fence across a roadway used by Mrs. Lester as a means of ingress and egress to her property for over 20 years. The plaintiff prayed that the Maucks be enjoined from continuing the fence on the disputed land and for other relief. John J. Gormley, on behalf of himself and other residents and property owners in Deale Beach similarly situated, prayed leave to intervene on March 18, 1963, as a party defendant, alleging that the disputed property involved a portion of Chesapeake Drive in Deale Beach and the intervenor and other residents and property owners similarly situated had a direct interest in the outcome of the suit because it could deprive them of the use of Chesapeake Drive as an access to the waters of Chesapeake Bay.

Leave to intervene was granted by the Chancellor on April 25, 1963. The intervenor filed a counter bill of complaint on May 8, 1963, alleging that the plaintiff and cross defendant, Mrs. Lester, had encroached upon a public right-of-way by a dwelling house and other constructions and prayed that the court direct a survey, issue a mandatory injunction to compel removal of the encroachments, issue a negative injunction prohibiting encroachment or obstruction by Mrs. Lester on Chesapeake Drive, require Mrs. Lester to pay the costs of survey and removal of encroachments and grant other relief. After the suit was at issue on the pleadings, a considerable amount of testimony was taken. The evidence showed that The Bay Beach Realty Company had subdivided a number of acres in Anne Arundel County in 1935 into a number of lots with ⁴³⁸ frontages of approximately 25 feet.

The development was called Deale Beach and was bounded on the north and northwest by Carr’s Creek. On the south, southeast and east part of the land is bounded by the Chesapeake Bay. A plat of the subdivision was recorded among the Land Records of Anne Arundel County. Various streets are shown on the plat.

Main Street, 40 feet wide, which runs approximately in an east-west direction ultimately connects with Sixth Street which runs in a north-south direction to the Chesapeake Bay. Chesapeake Drive, 25 feet wide, begins on the east side of Sixth Street approximately 100 feet south of the intersection of Main Street and Sixth Street. It runs approximately due east for one-half of its distance and then in a south-easterly direction ending at the Chesapeake Bay. The last six lots on the southerly side of Chesapeake Drive are lots 45, 46, 47, 48, 49 and 50, in Block L on the plat.

These lots were purchased by Mrs. Lester from the developer on September 8, 1938. The deed of that date, duly recorded among the Land Records of Anne Arundel County, described the six lots by number and block by reference to the plat and contained eight restrictive covenants, running with the land. The first and third restrictions provide: “1. All dwellings shall be set back from the street upon which the premises front not less than 25 feet, and all garages shall be set back not less than 70 feet, and garages on corner lots shall be set back not less than 20 feet from the side street, and no dwelling shall be built on a plot having a frontage of less than 40 feet on the street on which the plot fronts, and no dwelling shall be built on a corner lot having a frontage of less than 60 feet on the street on which the plot fronts and such dwelling shall be set back not less than 20 feet from the side street, and no dwelling shall cost less than $500.00. “3.

No fence, wall or hedge shall be built or maintained unless the location, nature, shape and material be first made known to the grantor in said deed or its successors, and receive its or their approval in writing.” ⁴³⁹ On the northerly side of Chesapeake Drive was an area marked “Reserved” on the plat, which extends approximately 230 feet westerly from the Chesapeake Bay to the easterly line of Lot 5 in Block M and then runs in a northerly direction along the easterly line of Lot 5 to an area marked “Sand Bar Reserved.” The line of the reserved area then proceeds in a southeasterly direction to its beginning at the intersection of the northerly side of Chesapeake Drive and the Chesapeake Bay. The Maucks purchased Lots 1, 2, 3, 4 and 5 in Block M in 1950. As indicated, Lot 5 immediately adjoins the area marked “Reserved.” On June 24, 1961, the Maucks purchased from The Bay Beach Realty Company a portion of the “Reserved” area which included the portion of that area claimed by Mrs. Lester. The evidence introduced on behalf of Mrs. Lester indicated that when her home was built in 1939, a corner of the house was built upon the 25 foot right-of-way of Chesapeake Drive, extending into that right-of-way approximately four feet.

A well was dug in the right-of-way and on part of the reserved area approximately 23 feet north of the northerly line of Lot 50. The well cover is 5.6 feet by 4.5 feet. Mrs. Lester used an eight foot road partly on the 25 foot right-of-way and partly on the reserved area in 1939 in which there was a gate at the eight foot road. The gate was kept padlocked.

Raymond Leon Fischer, who from time to time did work on Mrs. Lester’s property, first saw the property on October 16, 1939. At that time the fence was completely built, extending around the entire property in order to keep the dogs from getting out. The fence came around behind the well about four feet and extended about twelve feet beyond the well. In 1956, the fence was removed by a storm and was replaced by the witness and remained in place until it was removed by the Maucks.

There was a roadway made of gravel and shells raised above the surrounding marsh when he first went to the property. This was the eight foot roadway shown on plaintiff’s Exhibit 3. The witness also identified three photographs showing the fence and roadway. Clayson Simmons, who built the house for Mrs. Lester, and who had resided in the area all of his life, testified that after he had completed the house, he visited the property almost every ⁴⁴⁰ year.

The eight foot road had been on the property ever since the house was built in 1939 and the original fence shown in one of the photographs was always at the same place. When Mrs. Lester needed posts for the fence, she got them from the witness. Mrs. Alice Thelma Howes, a resident of Deale Beach, testified that the eight foot road was built when she moved to Deale Beach in October, 1942. She had been in the vicinity of Mrs. Lester’s house, during the 20 years she had lived in Deale Beach, an estimated 100 times.

There had never been any other road there other than the eight foot road, and the fence shown in one of the photographs (plaintiff’s Exhibit 4) was the only fence that had ever been there. Mrs. Lester testified that she had constructed the eight foot road in 1939 by using oyster shells, gravel and sand off the beach so that the level of the road was raised up three feet. No one helped her maintain the road. She installed the fence in 1939 all around the lot.

She identified various photographs. Since building the house, she had planted flowers in the area around the well. She also testified that the Maucks removed a portion of her fence in the fall of 1962, and erected a new fence. This new fence cut across the eight foot roadway used by her for ingress and egress.

She testified that she “could not say that there had been people going up and down when she wasn’t there; she didn’t know.” There was testimony offered on behalf of the defendants and the intervenor which in part was in conflict with the testimony offered on behalf of the plaintiff, Mrs. Lester. The Chancellor, without the objection of counsel for the parties, visited the site. The Chancellor in the decree of June 11, 1965, found that Mrs. Lester had acquired sole title by adverse possession and absolute ownership of the portion of land lying within the boundary of Chesapeake Drive, described by metes and bounds, and shown on plaintiff’s Exhibit 3 and the portion of the land on which the well was located, also shown on plaintiff’s Exhibit 3. The decree required the Maucks, within 15 days from the entry of the decree, to remove the fence erected by them on the land acquired by Mrs. Lester by adverse possession, including ⁴⁴¹ the portion of the fence blocking the eight foot road.

The counter-claim of the intervenor was dismissed and the Maucks required to pay the costs. Mrs. Lester died on September 1, 1965. Her death was duly suggested to the lower court and her administrator was substituted as a party appellee in this Court by order of April 20, 1967. The appellants raise four questions: (1) The evidence did not establish adverse possession; (2) There could be no adverse possession in land offered for dedication for public use; (3) The other property owners in the subdivision had acquired rights apart from any public rights; (4) Mrs. Lester was es-topped from asserting adverse possession.

We have concluded that the decree of the Chancellor should be affirmed. (1) In our recent decision in Freed v. Cloverlea Citizens Association, 246 Md. 288 , 228 A. 2d 421 (1967), Judge McWilliams, for the Court, carefully reviewed the prior decisions of this Court in regard to obtaining title by adverse possession in a case somewhat similar to the present case. He cited Blickenstaff v. Brom ley, 243 Md. 164, 171 , 220 A. 2d 558, 561 (1966), where we quoted with approval from 3 Am. Jur. 2d, Adverse Possession, sec. 14, the following: “It is sufficient if the acts of ownership are of such a character as to openly and publicly indicate an assumed control or use such as is consistent with the character of the premises in question.

The standard to be applied to any particular tract of land is whether the possession comports with the ordinary management of similar lands by their owners, and if so, it furnishes satisfactory evidence of