Michael v. Needham

Liss, J., delivered the opinion of the Court. This appeal arises out of a dispute between owners of adjoining tracts of land over the alleged existence of a right of way of necessity claimed by the owner of a “landlocked” property, Nellie M. Michael, appellant, over the tract of land owned by the appellee, Laurie E. Needham. ²⁷³ The dispute had its origin in the fact that prior to September 22,1931 one Raleigh Sherman was the owner of two separate tracts of land which he treated as a unitary tract. He died in 1931 owning both tracts. One of the parcels was a 61.5 acre wooded tract and it adjoined a 238 acre parcel known as the “Lower Farm.” The 61.5 acre tract was to the east of and uphill from the Lower Farm.

The closest county road was Mill’s Road, and it traversed the Lower Farm across the center of the tract in a north-south direction dividing the farm into its eastern and western portions. The eastern portion of the Lower Farm separated the 61.5 acre wooded area from access to Mill’s Road. On September 22,1931 the executor of Sherman’s estate sold the 61.5 acre tract at public sale and a deed dated January 12,1932 was delivered to the purchaser, Charles Hartle and his wife. That deed, for reasons not disclosed to the trial court, was not recorded until December 26, 1939.

Subsequently, the tract was conveyed on June 11, 1946 to Boyd J. Michael, Sr. and Nellie M. Michael, his wife — Boyd J. Michael having since died and his wife being the sole appellant in this proceeding. The 238-acre parcel, the contract for sale of which was also entered into on September 22, 1931, was conveyed by deed dated December 23, 1934 from the executor to Victor Smith and his wife. They, by deed dated December 31, 1954, conveyed the Lower Farm to Lester Shimp and Clara Shimp, his wife. The Shimps, in turn, by deed dated June 29, 1973, conveyed the tract to Harry Wolfe and Mary Wolfe, his wife.

The Wolfes decided to subdivide and develop the Lower Farm and had the land surveyed and laid out into individual lots. The eastern portion of the Lower Farm was divided into five lots, designated as lots four, five, six, seven, and the 15.79 acre tract. By deed dated February 5, 1975 the Wolfes conveyed the 15.79 acre lot to the appellee, Laurie E. Needham. That deed represented the second conveyance out of the Lower Farm property.

Each of the five lots laid out by Wolfe on the eastern portion of the Lower Farm was bounded by the 61.5-acre wooded tract on the east and by Mills Road on the west. ²⁷⁴ The lot owned by the appellee is improved by fences and numerous outbuildings, including an old stone house and an area designated, when Sherman owned the property, as the hogpen. The 61.5 acre tract was at that time used by Sherman for the purpose of raising timber, and testimony was adduced at the trial of this case that Sherman used a right of way passing between the stone house and the hogpen for access to the timber located up the hill from the Lower Farm. It is conceded that unless the appellant does in fact have a right of way over some part of the eastern portion to Lower Farm, she has. no access to the wooded tract from Mills Road, and the tract is effectively “landlocked.” The dispute between the parties evidenced itself in an incident which occurred in April of 1975. At that time, Boyd Michael, Jr., the son of the appellant and her deceased husband, had crossed the appellee’s land on foot to go to the 61.5 acre tract and was returning when he was accosted by the appellee, who called to him to get off the property.

He stated that he had a right of way and she replied that if he continued to enter the property he would be arrested for trespassing. The appellant thereupon filed suit in the Circuit Court for Washington County, praying that an injunction issue against the appellee’s further interference with the appellant’s continued use of the alleged right of way. A hearing was held at which numerous witnesses were produced by both sides to the controversy and exhibits were placed into evidence. At the conclusion of the case, the chancellor signed an order dismissing the appellant’s bill of complaint but concluding that “the Michaels [(appellants)] had a way of necessity over the land of Harry Wolfe [(appellee’s predecessor in title)] when Wolfe acquired the land in 1973”; however, “[w]here the right of way of necessity should now go is not before the court; but the court does decide the issue that under all circumstances, the plaintiff has no right of way over the land of the Defendant.” It is from that order that the instant appeal was taken.

There are two questions presented in this appeal. The first is whether the appellant has established the existence of a ²⁷⁵ way of necessity over the Lower Farm for access to the wooded 61.5 acre lot owned by her. The second question is whether the location of the right of way of necessity can be changed by the subsequent sale and division of the servient land. We shall answer the first question in the affirmative and, in view of the factual circumstances in this case, the second in the negative.

I. In order to establish a right of way of necessity, it must be shown that sometime in the past the land for the benefit of which the easement is claimed and that over which it is claimed belonged to the same person. Johnson v. Robinson, 26 Md. App. 568 , 338 A. 2d 88 , cert. denied, 276 Md. 748 (1975). “[A] right of way of necessity can only be raised out of the land granted or reserved by the grantor, and never out of the land of a stranger.” Oliver v. Hook, 47 Md. 301, 310 (1877); 2 G. Thompson, Commentaries on the Modern Law of Real Property Section 362 (J. Grimes ed. 1961). An easement by implication must arise at a time when there is unity of title. Hancock v. Henderson, 236 Md. 98 , 202 A. 2d 599 (1964); Hansel v. Collins, 180 Md. 209 , 23 A. 2d 686 (1942).

There are two types of ways of necessity, those created by implied reservation and those created by implied grant. Dalton v. Real Estate and Improvement Co., 201 Md. 34 , 92 A. 2d 585 (1952); Slear v. Jankiewicz, 189 Md. 18 , 54 A. 2d 137 (1947); Jay v. Michael, 92 Md. 198 , 48 A. 61 (1900). A “quasi-easement” is a legal fiction developed to overcome the legal premise that an easement cannot exist over one’s own land. It arises where, prior to division of the unitary tract without express reservation or grant of an easement, a part of the land is used by the owner for the benefit of another part.

Johnson v. Robinson, supra; Tiffany, Real Property, Section 781 (3d ed.). “It is also well settled that such quasi easements as pass by implication and ripen into easements for the benefit of the dominant estate, must have been, and must be at the time of the conveyance, apparent and continuous.” Kelly v. Nagle, 150 Md. 125, 132 , 132 A. 587 (1926). ²⁷⁶ Judge Smith, speaking for the Court of Appeals in Shpak v. Oletsky, 280 Md. 355 , 373 A. 2d 1234 (1977), discussed the presumption of intent to create an easement which arises from a finding of necessity. Quoting Jones, Easements, Section 304 (1898), he stated: “ ‘It is not the necessity which creates the right of way, but the fair construction of the acts of the parties.’ The necessity merely furnishes evidence as to the real intention of the parties. ‘For the law will not presume that it was the intention of the parties that one should convey land to the other in such manner that the grantee could derive no benefit from the conveyance; nor that he should so convey a portion as to deprive himself of the enjoyment of the remainder. The law under such circumstances will give effect to the grant according to the presumed intent of the parties.’ ” (Footnotes omitted). Id. 280 Md. at 361-62 .

The degree of necessity which must be shown in order to give rise to this presumption of intent to create an easement differs between implied grants and implied reservations. In Dalton v. Real Estate and Improvement Co., supra, 201 Md. at 47 , the Court stated: “A distinction has been maintained in the law between implied grants and implied reservations. If an easement is continuous and apparent and necessary to the reasonable enjoyment of the premises granted, it will be implied that the grant included the easement. However, if a grantor intends to reserve any rights or uses in or over the tenement granted, he must reserve them expressly, and the only exception is of easements, including ways, of actual, strict necessity.

The reason for the last rule is said to be that a grantor cannot derogate from his grant. There is a discussion of the two rules and examples of their application in Slear v. Jankiewicz [supra]. See also Mitchell v. Seipel [ 53 Md. 251 (1880)].” ²⁷⁷ Though the present dispute is over the burdens and benefits to the land of distant successors in interest to Raleigh Sherman, resolution of this case must depend upon the presumed intention of the parties to the two original deeds executed by Sherman’s executor. In Hancock v. Henderson, supra, the Court of Appeals noted that in order for there to be a way of necessity it must have been created by implication in the original division of the unitary tract into its dominant and