McConihe v. Edmonston

² Digges, J., delivered the opinion of the Court. The question that is presented for determination in this case is, Does the appellant own in fee simple, unencumbered by any easement in the nature of a right of way, a strip of ground located in Montgomery County, Maryland, being 30 feet in width and extending for about 525 feet from the Roekville-Washington turnpike to an overhead bridge 14 feet in width, constructed across the right of way of the Metropolitan Branch of the Baltimore & Ohio Railroad. The appellant’s contention is that he is such a fee simple owner, while the contention of the appellees and the decision of the lower court is that they, the appellees, are entitled to a right of way over said strip for the purpose of ingress and egress to and from their property, which lies on the opposite or east side of said railroad. The appellant, under his claim of ownership, placed a fence or obstruction across said 30-foot strip near the railroad bridge, which obstruction was removed by the appellees.

The appellant then filed his bill in the Circuit Court for Montgomery County praying for an injunction restraining the appellees, their servants and employees, from using the said strip as a right of way appurtenant to the appellees’ land. The undisputed facts, as gathered from the record, are that a certain James W. Higgins was the owner of a farm in Montgomery County, being a tract of land bounded on the west and southwest by the Washington-Roekville pike for a distance of about 2,500 feet, and bounded on the south and southeast by a county road for a distance of 1,255 feet. The Higgins dwelling house and farm buildings were located from 750 to 800 feet in an easterly direction from the Rock-ville-Washington pike, and access to the same was from this pike. During his ownership of the farm, the Baltimore & Ohio Railroad acquired a right of way through his land, which resulted in about 35 acres of the farm being on the west side of the railroad, between the railroad right of way and the said pike, and the remainder on the east side, upon which latter portion were located the dwelling house and farm ³ buildings.

By virtue of a requirement in its charter, the railroad company in 1872 constructed an overhead bridge across its right of way for the use of Mr. Higgins, thereby providing communication between both sections of his farm, and also a place of ingress and egress from the KoekvilleWashington pike. Over the railroad right of way, as it extends through this property, are two lines of tracks for north and south bound trains, and there are deep cuts and steep embankments to either side of said right of way, with a large overhead bridge erected on concrete abutments connecting the two parcels. Mr. Higgins for many years farmed the land on both sides of the railroad right of way, and used the overhead bridge as a means of access between the two portions of the farm, as well as a means of ingress and egress to the pike as above stated. The appellant’s grantors were the heirs of Mr. Higgins, and, while they owned the property, they used it in the same way, including the strip in dispute, as had been done by their ancestor.

Upon the appellant acquiring the property in 1914, he and his tenants also continued to use this way across the railroad bridge to the pike. In 1916 the appellant sold to Sidney I. Law the southern portion of the property, lying to the west of the railroad and containing about 18 acres. This 18-acre tract, in the deed to Law, was described by metes and bounds, courses and distances, and included within its boundaries a portion of the road which had theretofore been used from’the railroad bridge to the pike. Directly after the acquisition by Law of this 18-acre tract, he erected a house near the northwest corner thereof, which occupied a portion of the site of the road theretofore used.

A tenant of the appellant testified that he was employed by Law in the excavation for the cellar of the house, and was at that time told by the appellant to move the road further to the north, so that the south line of the road would coincide with the north line of Law’s 18-acre tract, and which would make a straight road from the west end of the railroad bridge ⁴ to the pike; which was done, and the road from that time was used as thus changed. Ahont a year after the conveyance of the 18-acre tract to Law, the appellant then sold another tract on the west side of the railroad containing about 14 acres; this tract was also described by metes and bounds, courses and distances, and embraced all of the land then belonging to the appellant located on the west side of the railroad, except the strip of land 30 feet wide running from the bridge to the pike, which was then used, and has since been continuously used, as a right of way from the pike over the bridge to the land east of the railroad, up to shortly before the filing of the bill in this case. In other words, these two tracts of land, one containing 18 and the other 14 acres, were sold by the appellant to the same party, Law, but were separated by the 30-foot strip now in dispute; the north line of the 18-acre tract running from the pike to the southwest corner of the bridge, and the south line of the 14-acre tract being parallel therewith and 30 feet distant therefrom, and running from the pike to the northwest corner of the bridge. The next conveyance by the appellant was to the International Shoe Heel Corporation, by deed dated December 31st, 1920, and conveyed by metes and bounds all of the appellant’s remaining land on the east side of the railroad.

This deed contained the following clause, “Together with the buildings and improvements thereupon, erected, made or being; and all and every, the rights, alleys, ways, waters, privileges, appurtenances, and advantages, to the same belonging or in anywise appertaining.” There was no mention made of the strip of land extending from the bridge to the pike, and it was not embraced within the metes and bounds of that deed, although at that time it was the only apparent roadway from a public highway to the property sold. Two deeds of trust were executed by the corporation to secure a portion of the purchase money. The first was dated December 31st, 1920, to secure 680 bonds of $100 each, and conveyed “all of those certain six hundred and eighty-one lots ⁵ designated and shown on the plat of what is known as ‘Section A’ subdivision of Halpine Park, Montgomery County, Maryland, which said plat was made by Maddox & Starkey, Surveyors, and is to be recorded, just prior to this deed, among the Land Hecords of Montgomery County, Maryland.” There was excluded from this deed of trust about 8 acres on the county road, being the southern portion of the land on the east side of the railroad, which was set aside and known as the “Factory Site.” The second deed of trust was dated March 10th, 1921, and conveyed the land on the east side of the railroad containing 87 and a fraction acres clear of the railroad, “but excepting and not including in this deed of trust all of the 681 lots, streets, and avenues as shown on plat of record among the land records of said Montgomery County, Maryland, said plat designated as ‘Section A’ subdivision of Halpine Park, Montgomery County, Maryland.” The deed to the corporation, the two deeds of trust, and the plat, were all recorded on March 26th, 1921, they having been held in escrow by Frank Higgins, attorney representing the appellant, the appellant being then the owner of certain of the bonds secured by the deed of trust. This plat had upon it the following: “Owner’s dedication.

We, the undersigned makers of this plat hereby enter the same for record and dedicate the avenues, streets and roads to public use as indicated thereon. A. K. Pomeroy, president. E. W. Cissel, treasurer.” This plat shows the factory site bounded on the west by the railroad right of way, on the south by the county road, and on the east by a 40-foot avenue shown on the plat as Halpine Avenue. It further shows the subdivision of the remaining land on the east side of the railroad into 681 lots, with various streets and avenues delineated thereon, one of which is Halpine Avenue running near the eastern boundary of the subdivision, its full length, to the county road at.a point east of the factory site and also east of the railroad.

It shows the G-eorgetown-Hockville (Washington-Eockville) pike1, the county road, the two lots sold by the appellant to Law, now owned by Philander O. ⁶ Johnson and wife, and prominently shows the overhead bridge, the east end of which opens into one of the avenues in the subdivision, and the west end opening into the 30-foot strip now in dispute, which strip is indicated on said plat by two lines extending from the bridge to the pike, one of which lines marks the northern boundary of the 18-acre Law tract, and the other of which marks the southern boundary of the 14-acre Law tract. This plat was dated December 29th, 1920, and was in existence and known to the appellant at the time of his conveyance to the corporation, that deed being dated December 31st, 1920. Default occurring under the covenants of the deed of trust covering the property which had been subdivided as shown by the plat, and which lay adjacent to the overhead bridge, it was sold by the trustee to Raymond M. Hudson, the grantor of the appellees. The record further shows thait the subdivision of this, property was solely on paper, and none of the lots or streets as shown on the plat were ever marked on the ground or any of the lots sold; that at the foreclosure sale in May, 1924, the property was sold as a whole, and has' been occupied since thait time as a farm, the 30-foot strip being used as a right of way from the pike over the bridge to the farm, and there being no other visible way laid put from any public road as a way from the public highway to. the farm or to the buildings thereon; that the 8-acre tract designated as a factory site embraced the whole county road .frontage east of the railroad, with the exception of 40 feet designated on the plat, but never laid off on the ground, as Halpine Avenue.

This “Halpine Avenue” is separated from the county road by a fence, and would traverse, if laid out, wet, springy, or boggy ground. At the time of the conveyance from the appellant to the corporation, he owned in fee simple the land on the east side of the railroad and also the 30-foot strip in dispute. Therefore the question is, "Was a right of way over this 30-foot strip, granted by implication by that conveyance? In other words, did the corporation acquire, by implied grant; an easement in the nature of a right of way (over the 30-foot strip from the bridge to. the pike? ⁷ What easements do or do not pass by grant or by reservation, have been the subject of numerous decisions in this state, the distinction between an implied grant and an implied reservation having been preserved throughout these decisions.

In Janes v. Jenkins, 34 Md. 1 , the question there under ■consideration was whether or not, the grantor being the owner of two lots, the grantee of the one on which a house was erected was entitled to the free use and enjoyment of the lights in the walls as they then existed, as an incident and appurtenance to the land conveyed. Judge Alvey, speaking for this court, said: “The lights were then in existence, and were used and enjoyed as appurtenant to the Eastern lot, and being placed in the wall by the authority and under the grant of the appellant, while he was owner of the reversion; this is not different in principle, from the oases of the ■owner of two adjoining heritages', selling one; or of the owner ■of an entire heritage, selling and granting part; in which the law would seem to be well settled, that by the grant of the .adjoining heritage, or part of an entire heritage, there will pass to the grantee all such continuous and apparent easements as may be, at the time of the grant, in use for the beneficial enjoyment of the parcel granted; and this by implication, unless words are used in the grant, manifesting an intent to exclude them. Whenever, therefore, an owner has created and annexed peculiar qualities and incidents to different parts of his estate (and it matters not whether it be done by himself, or his tenant by his authority), so that ■one portion of his land becomes visibly dependent upon another for the supply or escape of water, or the supply of light and air, or for means of access, or for beneficial use and occupation, and he grants the part to which such incidents are annexed, those incidents thus plainly attached to the part granted, and to which another part is made servient, will pass to the grantee, as accessorial to the beneficial use and enjoyment of the land.” In Burns v. Gallagher, 62 Md. 462 , in which the question of the right to use an alley was in dispute, in an opinion, ⁸ also by Judge Alvey, it was said: “We may suppose these purchasers were induced to buy 'and pay for the lots, as doubtless they were; because of the existence of the apparent easements and privileges annexed to them; and in oi’der to ascertain what passed to* the purchasers under the assignments of the leases, regard must be had to the state of the premises, and the maimer of their enjoyment, at the time the assignments were made. The general principle of law is, that where a person makes a grant or conveyance of property he impliedly grants that also which is necessary to make the grant or conveyance of the principal subject effectual and beneficial; and in this case we must suppose that it was the intention, as doubtless it was the expectation, of the parties, that the premises sold and transferred to Gallagher should be used and enjoyed with the same easements and privileges with which they had previously been used and were then enjoyed.

And Coffay being then the owner of the easterly lot, through which the alley ran to Decker Street, and being a party to the sale of the middle or central lot to Gallagher, beneficially interested therein, he would be estopped to- deny or question the right of the occupants of the latter lot to use the lot as it was then 'and had beeif formerly used, through the adjoining lot on the east.” In Eliason v. Grove, 85 Md. 223 , the opinion being by Chief Judge Boyd, it was said: “It is true there have been many decisions to the