Mavromoustakos v. Padussis

DAVIS, Judge. Anthony G. Padussis and Edwards & Anthony Drug Co., Inc. (Padussis), appellees, filed a Complaint in the Circuit Court for Baltimore City for injunctive relief, claiming a prescriptive easement over a paved lot owned by appellants George and Tsambika Mavromoustakos. Following a bench trial, the circuit court (Rombro, J.) found a prescriptive easement as to Mavromoustakos’s rear lot, permitting the place ⁶² ment of a dumpster on the servient lot and permitting ingress and egress for delivery of merchandise and trash removal. Mavromoustakos appeals from this judgment.

We restate the questions presented as follows: I. Was the trial court clearly erroneous when it applied the presumption of adverse use under claim of right, thus shifting the burden to appellant to show permissive use?

II

Should Maryland adopt the rule of Chaconas v. Meyers, that introducing evidence of “neighborly accommodation” rebuts the presumption of adverse use?

III

Was the trial court clearly erroneous in concluding that Mavromoustakos had failed to carry the burden of proving Padussis’s use of the lot was permissive? We answer all three questions in the negative, and affirm the judgment of the circuit court. FACTS The facts of this case are not disputed by the parties. In 1948, Padussis leased the building at 6510 O’Donnell Street in Baltimore City from the O’Donnell Building Corporation, the owner of both 6510 O’Donnell Street and adjacent buildings at 6500-08 O’Donnell Street.

Padussis, a pharmacist, leased the building in order to run his pharmacy. All of these buildings are part of a strip mall shaped like an “L,” 6510 O’Donnell Street being within the short side of the “L” and 6500-08 O’Donnell Street comprising the longer side. At the beginning of Padussis’s lease, 6510 O’Donnell Street was only 50 feet deep running back from O’Donnell Street, the same depth as the buildings located at 6500-08 O’Donnell Street. In 1950, Nathan Felsenberg and Harry Plissner bought the buildings at 6510 and 6500-08 O’Donnell Street.

The property included the vacant lots behind the buildings. From 1948 to 1953, Padussis would place his trash dumpster on the lot directly behind 6510 O’Donnell Street. The trash truck would access the dumpster from a public alley, entering onto the rear lot. In 1953, Felsenberg and Plissner expanded 6510 O’Donnell Street by increasing its depth from 50 feet to ⁶³ 100 feet.

This caused the rear of 6510 O’Donnell Street to abut the rear portion of 6508 O’Donnell Street. Felsenberg had a side door and a basement door built in the wall facing the rear lot of the O’Donnell Street stores, allowing access to the rear lot of 6500-08 O’Donnell Street. Padussis continued to place his dumpster behind 6510 O’Donnell Street as before, but now it rested on the rear lot of 6500-08 O’Donnell Street. In addition to the dumpster being located on the back lot, delivery trucks delivered store merchandise and pharmacy supplies through the back lot of 6500-08 O’Donnell Street to the side door and basement door of 6510 O’Donnell Street.

On at least two occasions, Padussis- and another tenant had pot holes in the rear lot repaired while they were repaving the front lot. Padussis testified that he assumed responsibility for keeping the lot clean and swept. He also testified that until he sold his pharmacy in 1970, he would park his delivery van on the lot, and would exit the rear door of his business onto the rear lot between ten and twelve times a day. This pattern, begun in 1953, continued without interruption despite changes in the ownership of both properties.

Over the years, different people leased 6510 O’Donnell Street. On July 31, 1958, Padussis purchased the property, through a corporation, from Felsenberg and Plissner. In the deed, an easement was retained by Felsenberg and Plissner for customer parking in the front parking area of the lot. Nothing in the deed referred to the servient lot.

In 1970, Padussis leased the property to Voxakis, one of his employees, when he sold Voxakis the pharmacy business. Voxakis continued to use the rear lot for the dumpster, deliveries, and parking. He testified at trial that these uses were “done from as long as [he] ever worked there,” and that he “never gave it a second thought.” When asked whether he knew who owned the rear lot, Voxakis testified that he thought the rear lot was a “common ground.” He testified that, since 1970, he parked his private vehicle there, like Padussis before him. Voxakis sold the business in 1987 and the new owners of the pharmacy continued to lease the building from Padussis. ⁶⁴ In 1964, Plissner, et al, sold 6510 O’Donnell Street to.

Padussis and sold their undivided one-half interest in 6500-08 O’Donnell Street to Irving Levy. Levy held his interest for 26 years. On May 17, 1990, Mavromoustakos purchased 6500-08 O’Donnell Street from the successors-in-interest to the Felsenberg ownership and Levy. In 1994, Mavromoustakos began to object to the use of the rear lot and in May of that year constructed the fence that is the subject of this dispute.

A friendly relationship existed between Padussis and Felsenberg while Felsenberg owned 6500-6508 O’Donnell Street. Padussis testified at trial that he and Felsenberg would often have coffee at Padussis’s pharmacy. He even testified that Felsenberg, an attorney, represented him in a case at one time. Felsenberg installed the basement door of 6510 O’Donnell Street at Padussis’s request.

Padussis testified, however, that he and Felsenberg never once discussed Padussis’s use of the rear lot for the dumpster or for deliveries of merchandise. Similarly, no conversation occurred between Padussis and Levy, the next owner of 6500-08. In fact, there appears to have been little, if any, contact of any kind between Padussis and Levy. At trial, Levy testified that, to his knowledge, he had never met Padussis.

He knew nothing about the trap door leading into the lot from 6510 O’Donnell Street, and only vaguely recalled seeing a truck unloading freight in the lot once. Beginning around 1966, Levy began policing the rear lot. He placed “no parking” signs between 6504 O’Donnell Street and another store, and also between 6506 and 6508 O’Donnell Street. Levy testified at trial that there was never a “parking problem” with the pharmacy at 6510 O’Donnell Street.

At about the same time, Levy also required that his tenants in 6500-08 O’Donnell Street place their garbage in the rear lot only on the day of trash pickup and not before. He never said anything to Padussis’s tenants about parking or about the dumpster. .When asked why he never said anything to Padussis’s tenants, Levy replied that ... I wanted to be friendly with my neighbor. I wanted to be accommodating to them and neighborly ... ⁶⁵ ... [Bjeing a businessman, you have to give a little to take a little as far as that’s concerned, about the moving of the trash.

I didn’t want that moving of the trash put in front of the store. LEGAL ANALYSIS In order to establish an easement by prescription, the user of a part of another’s real property must prove an adverse, exclusive, and uninterrupted use for twenty years. Shuggars v. Brake, 248 Md. 38, 45 , 234 A.2d 752 (1967); Dalton v. Real Estate Imp. Co., 201 Md. 34, 40-41 , 92 A.2d 585 (1952); Condry v. Laurie, 184 Md. 317, 321 , 41 A.2d 66 (1945). “Adverse use means use without license or permission.” Con-dry, 184 Md. at 321 , 41 A.2d 66 .

The burden of proof is on the claimant of the easement to show that it has had the character and is of the duration required by law. Dalton, 201 Md. at 41 , 92 A.2d 585 . I We initially consider when to apply a presumption of adversity to the use of a servient estate. The Court of Appeals, more than 100 years ago, set forth the controlling law: Where one ... has used a right of way for twenty years unexplained, it is but fair to presume the user is under a claim of right, unless it appears to have been by permission.

In other words, the use of a way over the lands of another whenever one sees fit, and without asking leave, is an adverse use, and the burden is upon the owner of the land, to show that the use of the way was by license or contract inconsistent with a claim of right. Cox v. Forrest, 60 Md. 74, 79-80 (1883) (first emphasis added, second in original). The presumption applies in Maryland only when the use over the twenty-year period is “unexplained” — that is, when the claimant of the easement has used the property as he or she sees fit, without asking for or receiving permission to do so. Id. at 79-80 .

See Zimmerman ⁶⁶ v. Summers, 24 Md.App. 100, 112 , 330 A.2d 722 (1975) (asking for permission implies a recognition of the right of the owner to stop the use, thus destroying adversity). Put another way, when a person has used the land of another openly and continuously and without objection for twenty years, it is presumed that the use has been adverse under a claim of right. Wilson v. Waters, 192 Md. 221, 227 , 64 A.2d 135 (1949). Mavromoustakos argues that Padussis’s use over the twenty years was not “unexplained,” and therefore the trial court erred in applying the presumption of adversity.

Mavromoustakos points to evidence introduced at trial of implied permission as an “explanation” of the use by Padussis. We disagree. When he argues that evidence of implied permission over the course of the prescriptive period constitutes an “explanation,” Mavromoustakos misinterprets the meaning of the term as used by the Court of Appeals. As is evident from Cox and its progeny, the presumption of adversity and evidence sufficient to rebut that presumption can coexist.

The presumption, moreover, can only arise if the use is “unexplained.” Were we to adopt Mavromoustakos’s interpretation of the word “unexplained,” there would be no difference between the circumstances giving rise to the presumption of adversity and the circumstances rebutting it. If an “unexplained” use simply means one for which no permission was ever granted, as Mavromoustakos posits, then rebutting the presumption would be both unnecessary and impossible. To apply the presumption of adverse use at all would require a threshold finding that no permission exists. In short, Mavromoustakos’s interpretation would transform the presumption, when it is applied, into an irrebuttable one.

As the Court in Cox made clear, and as a century of case law has affirmed, the presumption of adverse use is meant to be rebuttable. As is evident by comparing the first and the second paragraphs in the quoted passage from Cox, 60 Md. at 79-80 , an “unexplained” use is simply one made by the user whenever he or she sees fit, and without asking leave. It is presumed to be an adverse use unless proven permissive by the servient owner. We take this path based on the particular ⁶⁷ language of Cox and following case law, despite the proposition in other cases cited by Mavromoustakos that the presumption is inapplicable in the first place when circumstantial evidence showed permissive use.

See Hassinger v. Kline, 91 A.D.2d 988 , 457 N.Y.S.2d 847 -48 (2d Dep’t 1983); Stubblefield v. Osborn, 149 Neb. 566 , 31 N.W.2d 547 (1948); Lunt v. Kitchens, 123 Utah 488 , 260 P.2d 535 (1953); Nature Conservancy v. Machipongo Club, Inc., 571 F.2d 1294 (4th Cir.1978) (applying Virginia law). 1 In Maryland, a trial court does not consider circumstantial evidence of implied permission when deciding whether to apply a presumption of adversity to a use of property by one claiming a prescriptive easement. In the present case, the use of the vacant lot by Padussis and his tenants has been open, continuous, and exclusive ever since 1948, the year Padussis began to keep his dumpster in Felsenberg’s empty lot behind the O’Donnell Street stores. For his use to be exclusive, Padussis must have used the property under his own claim of right, not that of another. See, e.g., Shuggars, 248 Md. at 45 , 234 A.2d 752 (“The requirement that the use be exclusive simply means that the claim of user must not depend on the claim of someone else”); Wilson, 192 Md. at 227-28 , 64 A.2d 135 (even in a case where the claimant is but one of many users, the use is exclusive when the claimant performs any “plain, unequivocal act, indicating a peculiar and exclusive claim, open and ostensible, and distinguishable from that of others”).

Padussis used the lot for his purposes without asking the permission of the owners. His use never depended on the ability of anyone else to use the lot. It is undisputed that no one objected to Padussis’s use of the vacant lot until 1994. In fact, it is undisputed that no conversation regarding Padussis’s use of the lot ever took place at all.

His use of the lot was unexplained, exclusive, and continuous for the prescriptive period. Under these facts, the trial court was correct to apply the presumption of adverse use. ⁶⁸ II Once the presumption of adverse use is applied, a servient owner may rebut it. Dalton, 201 Md. at 43 , 92 A.2d 585 . Mavromoustakos would have us adopt the reasoning of Chaconas v. Meyers, 465 A.2d 379 (D.C.1983), decided by the District of Columbia Court of Appeals.

In that case, the servient landowner had not objected to the use by another of a part of his yard to access another piece of property. In fact, the servient owner had maintained constant friendly contact with the user and, on several occasions, had restrained his dog so that the dominant user could pass over his property unimpeded. The Court of Appeals, placing great weight on the actions taken by the servient owner, held that such evidence of “neighborly accommodation” was sufficient to rebut the presumption of adverse use. Id. at