Miceli v. Foley

BISHOP, Judge. Appellant, Philip V. Miceli, the owner of a parcel of land in Glen Arm, Maryland, filed a complaint against all interested neighbors to protect his claim to land along the southwestern and northwestern borders of his property. 1 The landowners along the southwestern boundary (hereinafter referred to as the Dollenberg Strip 2 ), appellees here, were Robert and Jean Foley and Melvin and Lorriane Bronzert. Property owners along the northwestern boundary (hereinafter referred to as the abandoned railroad right of way) include appellees Richard J. and Gail G. Watson, Kenneth Fowler, Exterior Design, Inc., Mildred Liersmann, Charles and Mary Miller, Ruth and Dewey Beitler 3 and Melvin and Lorraine Bronzert. Miceli’s complaint alleged counts of ejectment, trespass, quiet title, and adverse possession.

Appellees challenged these counts and asserted claim to the property based on adverse possession. ⁵⁴⁷ This case is an appeal from the Circuit Court for Baltimore County (Fader, J.) which found that “[a]s a matter of title, survey and boundary law” the Dollenberg Strip was “vested” in Miceli; however, the court denied Miceli’s claim to quiet title and adverse possession, ejectment and trespass to the Dollenberg strip and ruled that defendants and counter-plaintiffs Bronzert and Foley had obtained the land by adverse possession. With respect to the railroad right of way, the court held that Miceli had no title to the land and found that Liersmann, Miller, Beitler, and Bronzert acquired fee simple title by means of adverse possession to the parts of the railroad adjacent to their properties. Watson and Fowler’s claim for adverse possession was denied. ISSUES Miceli asks this Court: I. Whether the circuit court erred in ruling that Foley and Bronzert were the owners of the Dollenberg Strip by adverse possession; II.

Whether the circuit court erred in ruling that Liersmann, Beitler, Miller and Bronzert were owners of the former railroad property by adverse possession; III. Whether the circuit court erred in ruling that Miceli was not the record owner of the former railroad right of way. FACTS 4 On May 31, 1960, planning to expand his tool company, Philip V. Miceli 5 purchased from Charles and Viola Eck a rectangular, unimproved parcel of land in Glen Arm, Maryland. Included in the deed to this parcel was the right to ⁵⁴⁸ use, with others entitled thereto, a twelve foot right of way which served as the only access to a public road.

A year and a half later, on January 29, 1962, Miceli purchased a contiguous strip of land immediately adjacent to his first parcel from the Maryland and Pennsylvania Railroad Company. This 1.5 acre strip is commonly referred to as the old Maryland and Pennsylvania Railroad right of way. The appeal sub judice concerns boundary disputes along thé northwestern and southwestern borders of Miceli’s land. The first contested boundary, a fifty-foot wide area referred to by the parties as the Dollenberg Strip, runs along the entire length of the southwestern border.

The northwestern boundary is comprised of the former railroad right of way. This parcel varies in width from thirty to forty feet. We will first examine the dispute concerning the southwestern boundary, the Dollenberg Strip, and then we will turn to the claims to land along the northwestern boundary, the railroad right of way. I. Southwestern Boundary: The Dollenberg Strip The testimony traced title in this land back to a 116 acre parcel owned by George and Georgie Issennock who acquired it by deed on December 18, 1917.

The Issennocks subsequently conveyed two portions of it. The first 38.5 acres was initially conveyed on August 14, 1923 to William and Louise Piper and eventually to Philip V. and Doris M. Miceli by Deed from Charles Eck and wife on May 31,1960. Nearly twenty years after the deed to the Pipers, the Issennocks conveyed an adjacent parcel containing 57.36 acres to Robert S. Durling, et ux. On May 18,1950 Durling conveyed this land to Louvan and Violet Wood.

Wood conveyed the northwestern parcel to appellee Bronzert. On March 15, 1971 and August 24, 1971, Wood conveyed a second parcel from the southwestern part of the property to appellee Foley. The deed transactions for these parcels of land may be summarized as follows: ⁵⁴⁹ [[Image here]] The present conflict concerning the boundary between Miceli’s parcel and the Bronzert/Foley parcels can be traced to Issennock’s first conveyance to Piper. The metes and bounds description in this deed conflicts with the metes and bounds description in the deeds subsequently transferred by Issennock.

The following diagram 6 reflects this conflict. Bronzert and Foley claim title to the line represented by a crossed line in the diagram whereas Miceli contends that his property line extends to the line represented by dashes. ⁵⁵⁰ [[Image here]] After reviewing the testimony of land surveyors and title experts the court found that Miceli was the record owner of the land to which Foley and Bronzert claimed title. Foley and Bronzert contended that they had occupied this land adversely for the requisite statutory period and, therefore, title was theirs by operation of law. In support of their claims to title, Foley and Bronzert produced evidence that a fence which had been erected between the Issennock and Piper properties, at the time of the initial division of the Issennock property, represented the metes and bounds of land use since 1923.

Leo J. Elwood, Issennock’s son-in-law, who lived on the “Old Issennock” property since 1932, testified that he was “on the property” when Issennock sold a portion of the land to Durling. Issennock used the land to graze cattle, and Piper farmed it. He stated that the fence was erected in 1923 “at the latest” and that some posts and wire from the original fence were still in place at the time of trial. Another witness, Harry K. Elwood, testified that a fence divided the Wood (Issennock’s successor in title) and Eck (Piper’s successor in title) parcels.

Wood cleared and mowed the land up to the Eck border. Wood gathered ⁵⁵¹ firewood and his children played in the trees up to the fence. Appellee Foley confirmed that there was a fence between the two properties during his period of possession. In 1972 he constructed an additional fence a few feet inside the old one.

He placed “no trespassing” signs along the Dollenberg Strip on two occasions. His children used the area as a playground. Appellee Bronzert stated that he had lived in the area since 1965. In 1971 he purchased Louvan Wood’s property which was adjacent to the land Bronzert owned north of the right of way.

At the time Bronzert purchased the property a fence ran down the eastern property line. In March, 1971 Bronzert constructed a new fence in front of the old one and erected two sheds. 7 He also added a “power pole” to bring energy to the sheds. In 1965 he observed the previous occupant, Dennis Cahill, 8 manually clearing the land and using the property on weekends. Cahill would camp on the property “right up against the fence line.” Bronzert stated that in 1965 all of the Wood property (including the land eventually purchased by Foley) was cleared and planted with pine trees.

Wood treated the entire area up to the fence as his own. Bronzert testified: “He maintained it, cut it, cut underbrush.” At the close of the evidence the trial judge found that Foley and Bronzert adversely possessed the land for the requisite twenty-year period. He found that Foley’s testimony demonstrated that since 1971 he had assumed the requisite dominion and control over the property. Though he found that adverse use of the land prior to 1971 less clear cut, he found that the land had been possessed adversely and continuously since the initial Issennock convey ⁵⁵² anees.

This period of use was tacked to appellees’ use since 1971 to create adverse use for more than the requisite statutory period. The court stated inter alia: ... I believe that by preponderance of the evidence, more likely true than not true, more likely so than not so, at least 51 percent, certainly not to a mathematical certainty, that the adverse possession has existed since 1923. By applying the principle of tacking the court concluded that Foley demonstrated that “his occupation of the land has been actual, hostile, notorious, and exclusive under a claim of title and continuous or uninterrupted use for a 20 year period of time.” The court was convinced that Bronzert took possession of the property in 1971 and under the principle of tacking claimed dominion and control over the land for the requisite period.

We will provide additional facts where necessary in our discussion of the issues. DISCUSSION I. Adverse Possession of the Dollenberg Strip To establish title by adverse possession a claimant must show possession of the property for twenty years. The land must be continually possessed in an actual, open, notorious, exclusive and hostile manner, under claim of title or ownership. Md. Courts and Judicial Proceedings Code Ann. § 5-103(a) (1989 Repl.Vol.); Costello v. Staubitz, 300 Md. 60, 67 , 475 A.2d 1185 , on remand, Peters v. Staubitz, 64 Md.App. 639, 644-645 , 498 A.2d 661 (1984); Miklasz v. G.W. Stone, Inc., 60 Md.App. 438, 443 , 483 A.2d 382 , cert. denied, 302 Md. 570 , 489 A.2d 1129 (1984); Wilt v. Wilt, 242 Md. 129, 135 , 218 A.2d 180 (1966); East Wash.

Railway v. Brooke, 244 Md. 287, 294-295 , 223 A.2d 599 (1966). The burden of proving title by adverse possession is on the claimant. Costello v. Staubitz, 300 Md. 60, 67 , 475 A.2d 1185 (1984). A court’s determination of whether land is possessed adversely should be based on the possessor’s objective manifestation of adverse use and not on his or her ⁵⁵³ subjective intent.

Miklasz, supra 60 Md.App. at 443 , 483 A.2d 382 . “[I]n determining whether the claimant’s acts of dominion constitute adverse possession, the court is to consider the character of the land and the uses and purposes to which it is adapted because ‘the type of possessory acts necessary to constitute actual possession in one case may not be essential in another.’ ” Peters, supra 64 Md. App. at 645 , 498 A.2d 661 , quoting Blickenstaff v. Bromley, 243 Md. 164, 171 , 220 A.2d 558 (1966). Accord Goen v. Sansbury, 219 Md. 289, 296 , 149 A.2d 17 (1959). A. The Costello Test Relying on Costello v. Staubitz, 300 Md. 60 , 475 A.2d 1185 (1984), Miceli asserts that because there was insufficient evidence that Foley’s and Bronzert’s predecessors intended to claim the land adversely up to the fence, the trial court’s ruling should be reversed. In Costello v. Staubitz, supra, the Court of Appeals discussed the appropriate inferences to be drawn from the existence of a visible line of demarcation when determining a claim of adverse possession.

A determination of the significance of a boundary marked by a fence is dependent upon who erected it and the purpose for which it was erected. Id. at 69, 71, 72, 475 A.2d 1185 . The Court elucidated general principles to be applied in such cases: 1) The existence of a visible line of demarcation ordinarily does not constitute evidence of adverse possession when: a) it was created by a record owner, for the record owner’s land, Storr [v. James ], 84 Md. [282] at 290-91, 35 A. [965] at 967 [(1896)]; or b) it was created by a party claiming title by adverse possession for the purpose of claiming the visible line of demarcation as a boundary only if it is in fact coincident with the actual boundary, [Miller v.] Tamburo, 203 Md. [329] at 336, 100 A.2d [818] at 821 [(1953)]. ⁵⁵⁴ 2) The existence of a visible line of demarcation ordinarily constitutes some evidence of adverse possession when: a) it was created by a party claiming title by adverse possession for the purpose of claiming the visible line of demarcation as a visible boundary delineating the extent of the claimed adverse possession, Tamburo, 203 Md. at 336, 100 A.2d at 821; or b) there is no evidence to show by whom and for what purpose the line of demarcation was created, Ridgely [v. Lewis ], 204 Md. [563] at 566-67, 105 A.2d [212] at 212-13 [(1954)]. Id. 300 Md. at 73 , 475 A.2d 1185 .

The Court continued to explain: The only evidence presented relating to the fence was that it was erected by a farmer who was the record owners’ predecessor in interest. The farmer’s sole purpose for erecting the fence was to confine his cattle to his own property, lot 233, and to prevent them from straying onto the adjoining property, lot 232. Thus, the record shows that the fence on the disputed property was erected by the record owners’ predecessor within the predecessor’s own boundaries and for the predecessor’s own purposes. Under these circumstances, the existing fence was not a visible boundary delineating the extent of the claimant’s adverse possession.

It, therefore, did not constitute evidence of adverse possession and was not an appropriate factor to be taken into account in determining the extent of the claimant’s adverse possession. Id. at 73-74 , 475 A.2d 1185 . Issennock erected a barbed wire fence in 1923 on Piper’s property. This fence ran parallel to his own property, land on which he raised cattle.

That fence, the court found as a matter of fact, was used as a demarcation line between the two properties. The court also found that since 1923 all subsequent landowners have considered that line as the demarcation between the two parcels. To some extent the fence still reflects a visible line of demarcation. ⁵⁵⁵ In the case sub judice the trial court explicitly and properly relied on Costello’s directives when ruling that adverse possession did exist for the requisite period of time. Consistent with Costello’s 2(a) the fence was “created by a party claiming title by adverse possession for the purpose of claiming ... a visible boundary.” Miceli’s suggestion that the court needed to find that Issennock intended to take the property adversely at the time he built the fence is untenable. “[T]he fact that the possession is due to inadvertence, ignorance or mistake, is entirely immaterial.” Tamburo v. Miller, 203 Md. 329, 336 , 100 A.2d 818 (1954) cited in Costello, supra 300 Md. at 71 , 475 A.2d 1185 .

The modern trend and the better rule is that where the visible boundaries have existed for the period set forth in the statute of limitations, title will vest in the adverse possessor where there is evidence of unequivocal acts of ownership. In this view it is immaterial that the holder supposed the visible boundary to be correct____ Costello, supra at 71 , 475 A.2d 1185 . We have reviewed the entire record and find no error in the court’s conclusion. Md. Rule 8-131(c); Rogers v. Burnopp, 263 Md. 357, 360 , 283 A.2d 367 (1971) (Judgment of lower court will not be set aside on the evidence unless clearly erroneous.) B. Unequivocal Act of Ownership Miceli’s second contention is that appellees’ and their predecessors’ uses of the Dollenberg Strip did not constitute “unequivocal acts of ownership.” He posits that pursuant to Costello such acts must precede a finding of adverse possession.

We do not find this argument to be persuasive because it is founded on a misconstruction of the breadth of the Costello holding. Judge Davidson writing for the Court acknowledged that as a general rule adverse possession without color of title extends to land actually occupied. However, this rule is relaxed where a visible boundary encompasses all of the claimed land: ⁵⁵⁶ [W]here visible boundaries have existed for the statutory period of limitations, if there is evidence of unequivocal acts of ownership, title will vest in the claimant not only to all land actually occupied, but rather to all land delineated by the visible boundary. Id. 300 Md. at 68 , 475 A.2d 1185 .

What constitutes an assertion of possession sufficient to be considered an act of dominion and thus an act of ownership over the land differs on a case by case basis. When determining whether a particular use is sufficient to constitute dominion over the land, a court will consider the character of the land and the purposes to which it is adapted. See Blickenstaff v. Bromley, supra; Peters v. Staubitz, supra. During the trial Bronzert and Harry Ellwood, a neighbor, testified that Wood (predecessor in title to both Bronzert and Foley) consistently maintained and mowed the parcel up to the fence line.

Elwood also testified that Wood used the land to gather firewood and as a playground for the children. Further, no evidence was produced that such uses are inconsistent with the nature of the residential property or with other uses in the neighborhood. Accordingly, we affirm the court’s finding that Foley, Bronzert and their predecessor assumed the requisite dominion and control over the property. C. Entry by Third Person Finally, Miceli asserts that appellees’ adverse use along the Dollenberg Strip was interrupted when his surveyor, Allan Evans, and his crew surveyed the land from 1960 to 1962.

As a result, he posits, appellees did not possess the. land for the statutory period. The running of the statutory period may be interrupted by the owner’s entry on the land. This entry must be made with a clearly demonstrated intention to repossess the land. Reentry onto the land must be made openly and under claim of right. 4 Tiffany, The Law of Real Property ⁵⁵⁷ § 1161 (3d ed.

Callaghan & Co. 1975) cited in Rosencrantz v. Shields, 28 Md.App. 379, 388-389 , 346 A.2d 237 (1975). “[A]ll authorities agree that entry to have such effect [of interrupting adverse possession] must be an actual entry upon some part of the land within the period of limitations, and must evince that it is made with the clear and unequivocal intent to invade and challenge the right of the holder of the adverse possession and to retake possession.” Rosencrantz, supra at 388-389 , 346 A.2d 237 quoting Wickes v. Wickes, 98 Md. 307, 328 , 56 A. 1017 (1904). Entry sufficient to interrupt an adverse possession need not be accomplished by the owner. A record owner’s agent or licensee may also interrupt the running of the statute. An agent’s entry must be characterized by a proper assertion of claim to the land. 5 Thompson, Commentaries on the Modern Law of Real Property § 2552 at 576-78 (Grimes repl.1957) quoted in Rosencrantz, supra 28 Md.App. at 391 , 346 A.2d 237 .

Whether a surveyor’s presence on land will interrupt the continuity of adverse possession sufficiently to toll the running of limitations “must necessarily be decided in each case according to the circumstances.” Rosencrantz, supra at 391 , 346 A.2d 237 . We agree with the reasoning of the Kentucky Supreme court which held that an entry for the purpose of a survey without a claim to the land is insufficient to oust an adverse possessor. Maysville & B.S.R. Co. v. Holton, 100 Ky. 665 , 39 S.W. 27, at 29 (1897) cited in Rosencrantz, supra 28 Md.App. at 392 , 346 A.2d 237 . In Maysville surveys were made on behalf of a railroad which had obtained a right of way by deed.

The court concluded: The mere walking along the right of way ... and retaking said right of way, were not sufficient to have established a re-entry, as against the continued and actual adverse possession held by appellees and those under whom they claim, or to have broken the continuity of their adverse holding. ⁵⁵⁸ Id. 39 S.W. at 29 . “Before the holder of record title can regain what he has lost ... ‘[h]e must assert his claim notoriously and openly, or perform some act which will reinstate him in possession.’ ” Id. 28 Md.App. at 392 , 346 A.2d 237 quoting Maysville 39 S.W. at 29 . In the case sub judice Allan Evans, a surveyor hired by Miceli, testified that he surveyed the property in 1960. He used stakes to determine the division between the two properties, and placed pipes at both corners. Between 1960 and 1962 the surveyor went back three times to re-establish this line because the original stakes had disappeared.

During this period he walked most of the property with Miceli. None of his testimony indicated that he accosted an adverse possessor while working for Miceli or that he had made any direct or indirect attempt to oust a possessor of the land. Without difficulty we hold that the surveyor’s entry onto the property, the staking and the walking of the property were not sufficient to interrupt appellees’ adverse use.

II

Northwestern, Boundary A. The Former Railroad Right of Way The Baltimore and Delta Railway Company, predecessor to the Maryland and Pennsylvania Railroad Company, acquired a 3.65 acre strip of land by condemnation from William W. Wilson in September, 1879. The railroad tracks extended across the width of what is now the Miceli property. This land was subsequently conveyed from the railroad to Miceli on January 29, 1962 by a quit-claim deed. Both Miceli and all landowners bordering the railroad claim title to the property.

The following diagram (not drawn to scale) clarifies the location of the abandoned right of way with reference to the other parcels: ⁵⁵⁹ [[Image here]] Miceli’s claim is based on actual title to the property. In the alternative he claims ownership by adverse possession. He has a quit-claim deed from the railroad and has paid taxes on the property since 1962. The landowners adjoining this right of way also claim title to the land by adverse possession.

All testified that they used the land as their own continually after the railroad ceased use of the strip. The court concluded that Miceli actually received no ownership rights in the property through the quit-claim deed because the railroad did not own a fee interest in the property. Instead, it found that the railroad owned a right of way and that this easement expired when the railroad abandoned it in 1957. As the railroad had no interest in the property after 1957, Miceli acquired nothing from it through the 1962 deed.

The court reasoned that because Miceli had no valid record title to the land, both he and the individual disputants had equal rights adversely to possess the land. After hearing testimony regarding each party’s use and control of the land, the court concluded that “under no circumstances has Mr. Miceli come close to having any title by adverse possession. I’m convinced that that is so.” Appellees Liersmann, Miller, Beitler and Bronzert were ⁵⁶⁰ awarded portions of the right of way by adverse possession. (See Appendix) 1.

Liersmann Ronald Edward Lynch, Mildred Liersmann’s son, testified at trial that he was born on the Liersmann property in 1946. After the railroad pulled up its ties in 1959 they began to use the right of way as their own. They removed railroad ties and stone from the land. The ties were used for building and the stone for fill-in.

In addition they have used the right of way for storage of firewood and other materials and they have mowed it. Though they consistently used the land, they never fenced it or paid taxes on it. Lynch also stated that he was away in the army for two years although he did not testify as to the dates. Miceli argues that this testimony was insufficient to prove that Mildred Liersmann’s adverse possession of the land was uninterrupted and continuous for the statutory period.

Miceli points specifically to Lynch’s two years of military service and suggests that it creates a gap in proof that the property was continually possessed for twenty years. We do not find this argument to be persuasive. While continuity is an element of