Millar v. Bowie

CATHELL, Judge. William C. Millar, Trustee of the William C. Millar Trust, appeals from a judgment of the Circuit Court for Talbot County (Horne, J., presiding) that set a boundary line between his property (the “Eastern Parcel”), and the property of C. Keating and Alice F. Bowie, appellees, (the “Western Parcel”) of what formerly was known as “Evergreen Farm.” Appellant presents several issues: 1. Whether a deed which describes a boundary line by reference to a monument (i.e., an “old fence line”) requires resort to extrinsic evidence to determine the location of the boundary liner.][ 1 ] 2. Whether the Trial Court may ignore language in a deed which describes the boundary line by reference to a monument because the Trial Court believes other language in the deed more clearly describes the location of the boundary line[.] 3.

Assuming arguendo that the description of the boundary line in the Bowies’ Deed requires resort to extrinsic evidence to locate the monument (i.e., the old fence line), whether the Trial Court erred as a matter of law when it failed to consider a plat, depicting an angled old fence line between the properties, which was incorporated by ⁶⁸⁴ reference into the contract of sale by which the Bowies acquired their property[.] 4. Whether it was an abuse of discretion that the Trial Court did not factually determine that the boundary line is angled when the extrinsic evidence was uncontrovert-ed that historically there was an angled old fence located in between the Eastern and Western Parcels[.j Under the circumstances of the case sub judice, the answer to question number one is no. We answer question two by noting that Judge Horne did not ignore the deed language; he rejected it as not creating the type of ambiguity that made it directly relevant to the final disposition. Moreover, Judge Horne found that the operative language, “continuing in the same straight line” (emphasis added), clearly described the boundary line, ie., was not ambiguous in the first instance.

As to question number two, Judge Horne was not clearly erroneous — in fact, we perceive that he was correct. As to questions three and four, we see no need to assume anything arguendo. Initially, it was not the Bowies’ deed that established the boundary line. It is the Jean Koehn deed that is the senior deed, i.e., the deed that controls.

The Bowies’ deed is essentially irrelevant to the establishment of the boundary. See Ski Roundtop, Inc. v. Wagerman, 79 Md.App. 357, 365 , 556 A.2d 1144 (1989) (“Any discussion of subsequent deeds is irrelevant.”) Moreover, our response to appellant’s first two issues and our affirmance of the trial court for those reasons makes it unnecessary to resolve questions three and four. We note, however, that in our discussion and resolution of issues one and two, we will address, to some extent, questions three and four. Periodically, as we discuss the facts, we will assess the trial court’s factual findings.

We may, in our holding, on occasion, repeat that assessment. Appellant’s title to the property at issue was derived from ⁶⁸⁵ Jean W. Koehn, 2 who, as a result of marital difficulties between her and C. Campbell Koehn Sr., obtained title to the tract through a deed that divided Evergreen Farm. This deed to her (the Jean Koehn deed), the senior deed at issue here, was executed and recorded in January of 1961. It provided a description that read: BEGINNING on the Northwesterly side of the main driveway at the Southerly end of a concrete abutment erected over the causeway in said driveway and [1] running thence with the Northwesterly side of said driveway and a hedgerow in a Southwesterly direction and in a straight line to a point at the Southerly end of said driveway and the Southwesterly side of the barn road;[ 3 ] [2] thence continuing in the same straight line and with an old fence line between the park woods and the reserved land of the Grantors to the top of the bank along the shore line of Island Creek; thence at right angles to the shore line of Island Creek in a Southerly direction to the mean-low-water line of Island Creek; thence up and with the meanderings of the mean-low-water line of Island Creek and a cove thereof to the Southerly end of the Southeasterly concrete abutment over the above-mentioned causeway; thence in a Northwesterly direction across the main driveway to the point of beginning; SUBJECT, HOWEVER, to a right of way for purposes of ingress and egress to the barn road over that part of the main driveway included in the outline of the above conveyance. [Emphasis added.] Subsequent to the January 1961 conveyance to Jean Koehn that partitioned Evergreen Farm, C. Campbell Koehn Sr. proposed to sell the remainder of Evergreen Farm.

A real estate agent, Mr. Bartlett, knowing that the farm was for sale, made arrangements for appellees to view the property on the ⁶⁸⁶ 23rd day of September 1961. Prior to that time, but after the January 1961 partitioning of the farm, the real estate agent met with C. Campbell Koehn’s attorney, with Thomas Critch-low, apparently a co-listing broker of the property, and with a surveyor, Mr. Kastenhuber, at the farm to view the property. Neither appellees’ nor appellant’s predecessor was present at this meeting. At this meeting, eight months after appellant’s tract had been conveyed to Jean Koehn, and outside her presence, the surveyor, Kastenhuber, apparently suggested that a “new” boundary line be established by using an old fence line.

This fence line is later described as the “angled” fence line. There is no indication that at this meeting there was any discussion of the Jean Koehn deed or its description of the boundary as “a straight line” and “in the same straight line.” There is also little indication that Kastenhuber was, at that time, aware of the Jean Koehn deed. On the 23rd and 24th of September, appellees visited the property and, on the 24th, offered to purchase it. Appellees then purchased the property of C. Campbell Koehn, the Western Parcel or remainder of Evergreen Farm.

The contract of sale referred to an older plat dated 1919, that appellant asserts on appeal “contains an angled line drawn between the Eastern Parcel and the Western Parcel.” Firstly, that is simply incorrect. In 1919, there was not yet a Western or Eastern Parcel. The survey, as prepared, and as the trial judge found, had no “angled line.” The survey itself is a blueprint, i.e., white paper with blue lines. Someone has added to that white-on-blue survey a yellow line and called it a “Fence” and also has shown on it in yellow the outlines of a “Barn Road.” In the absence of any sufficient evidence explaining the affixing of the yellow lines to the 1919 survey, the trial judge found: The 1919 plat, which necessarily was prepared before the partition of the properties, has been altered.

A boundary line that is marked “fence” has been drawn onto the plat ⁶⁸⁷ with a yellow-colored pencil. [As a result,] [t]he boundary line angles in a more westerly direction.... Judge Horne later found as to the 1919 plat: The plat has been altered: an angled boundary line has been added with a yellow-colored pencil---- But for the penciled-in division line, the 1919 plat would be unilluminat-ing with respect to the correct location of the boundary line. The Court declines to rely on this altered plat for two reasons. First, the evidence as to whether the September 23, 1961, contract refers to the altered plat — the one that features the penciled-in boundary line — is equivocal.

While Mr. Bartlett stated that he observed a November 1919 plat, which depicted an angled fence line, when the contract was executed, Plaintiff [appellee] testified that he never saw the plat. The plat that is referenced in the contract could easily be the November 1919 plat of “Evergreen Farm” before it was partitioned [in 1961]. We hold that the trial court was correct in declining to attribute much value to the altered 1919 plat. First, the property was not divided until 1961 and, thus, the 1919 plat is merely a map of the entire tract.

The only facts adduced below support an inference that the yellow line was added to the map at the time of the September 1961 on-site discussion of a “new” division line. At oral argument, all parties conceded that the yellow line was not placed on that 1919 plat in 1919 but was added at some point thereafter, probably during the September 1961 event. However, by September of 1961, it was too late for the creation of a “new” division line. The division line had been created in January of that year by the Jean Koehn deed.

Ultimately, on January 31, 1962, more than a year after the division of Evergreen Farm, a deed was executed and recorded in favor of appellees that described all of Evergreen Farm but excepted that part of Evergreen Farm previously conveyed to Jean Koehn. We, therefore, shall be primarily required to assess the trial court’s construction of the Jean ⁶⁸⁸ Koehn deed and the court’s application of the relevant and proper facts in its construction. In a somewhat bizarre turn of events, Millar, the successor to Jean Koehn, argues in favor of Kastenhuber’s creation of a “new” division line, which is shown in two plats drafted by him in 1961 showing an angled line between the two properties. The Bowies, on the other hand, the successors in interest to C. Campbell Koehn Sr., the potential (and ultimate) buyers at the time of the preparation of Kastenhuber’s plats, argue that, because their deed excludes the tract conveyed by the Jean Koehn deed, Millar’s deed controls.

But that is of little moment to the job before us. What is penultimately clear is that there was but one instrument construed below, and one that we will construe here — the January 1961 deed to Jean Koehn. There is absolutely no conflict (nor could there be) between that deed and the January 31, 1962 deed to the Bowies. They are, by their very nature, completely compatible.

The dispute is (1) whether the language of the Jean Koehn deed is sufficiently clear and definite to convey an exact parcel without reference to other evidence; (2) can subsequent instruments be used to explain prior instruments; and (3) if so, do the two 1961 Kastenhuber plats take priority, or explain, the language of the Jean Koehn deed. In addressing the trial court’s resolution of these issues, we shall touch upon the issues of senior/junior priorities, the clear/ambiguous dichotomy, fences and/or old fence lines, calls and priorities, and the use of reverse courses. We initially note the standard of our review of a trial court’s findings in cases such as this, which are largely fact dependent. We recently stated in Barchowsky v. Silver Farms, Inc., 105 Md.App. 228, 239 , 659 A.2d 347 (1995), that “[i]t is clear that a decision of a trial judge, sitting without a jury, that resolves a boundary line dispute, is not to be disturbed unless clearly erroneous.” We next note that there is apparently no dispute below that the stone monument found by Kane in 1993 had been placed ⁶⁸⁹ on the property on, or after, September of 1961 by Kastenhu-ber, in an effort to create the “new” division line.

At least there is no evidence that it was placed at the time of the 1919 plat, as that plat does not indicate any monument. On appeal, no argument was presented that the monument had been placed prior to the January 1961 Jean Koehn deed or that it was placed as a part of the January 1961 division of Evergreen Farm. In Zawatsky Constr. Co. v. Feldman Dev.

Corp., 203 Md. 182, 186-87 , 100 A.2d 269 (1953), one of the issues concerned monuments not mentioned in the deed description but used by a subsequent surveyor to establish a point of beginning. As to the surveyor’s reliance upon the monument, the Court stated: But it is not safe to assume, without sufficient proof, that a monument which is not mentioned in the description of a tract is the beginning of one of the boundary lines of the tract, and then run the line based upon that assumption.... “It would enable the owner ... to fix the boundaries of his own property for the benefit of himself ... if he could plant a stone where he pleased, call it ‘a boundary’ ... and then when he is dead have his son testify to such facts ..,, without any explanation as to who planted the stone, or by what authority it was done.” It is recognized that where there are conflicting surveys, the problem before the court is fundamentally one of fact, inasmuch as the general rules as to preferences are merely guides for ascertaining the intention of the parties. Thus, while it is a general rule that calls in a deed ordinarily prevail over courses and distances, this rule is not applied if it defeats the manifest intention of the parties. [Citations omitted; emphasis added.] We recently noted in Barchowsky, 105 Md.App. at 238 , 659 A.2d 347 , that: As subsequent deeds may incorrectly reflect the intent of the original parties, we adhere to the longstanding rule that, in the absence of estoppel, a prior deed takes precedence over a subsequent deed in a dispute arising as to the boundary lines between adjoining tracts. ⁶⁹⁰ Also noteworthy is Tidler v. City of New Carrollton, 59 Md.App. 23, 28 , 474 A.2d 534 , cert. denied, 300 Md. 154 , 476 A.2d 722 , 723 (1984), in which we noted: [B]oth parties’ predecessors in title derived their interests in Lot 3 from a common grantor. Where contending innocent parties derive title of adjoining tracts from a common grantor by successive mesne conveyances and a shortage develops, the one claiming under the common grantor’s first deed is not required to contribute to the shortage....

See also Delphey v. Savage, 227 Md. 373, 379 , 177 A.2d 249 (1962) (“In the case now before us the conveyances by the common grantor ... were made before any subdivision plan ... so that [they] must be satisfied first.”). Likewise, in Bryan v. Harvey, 18 Md. 113, 128-30 (1861), the Court of Appeals stated: “Elk Garden,” and also the land conveyed to the plaintiff, belonged to the common grantors of these parties, at the date of the first deed, and it was the plaintiffs own fault to have taken a subsequent deed for land covered, in part, by the “Elk Garden” patent, without having had the lines of “Elk Garden” laid down so as to have known how much of “Elysiansylvania” was clear of the elder tract. Disputes often arise out of conflict between the lines of different tracts, but it was never held, as far as we are informed, that the junior title must have precedence____ ... It is well settled that where such is the case, and the first deed conveys by metes and bounds, or by what is an equivalent description, it must have precedence over a subsequent purchase.

The case of Mundell v. Perry, 2 G. & J. 193 [ (Md.1830) ], is much like the present, and is conclusive on this question____ It is upon the same principle that a senior patent is entitled to priority over a junior one____ This is in accord with the Texas case of Hill v. Whiteside, 749 S.W.2d 144, 151 (Tex.Ct.App.1988), in which the court opined “when the senior survey can be easily identified, a junior survey cannot be made to control the senior survey.” ⁶⁹¹ In the case sub judice, the only relevant “intentions of the parties” were the intentions of Jean Koehn and C. Campbell Koehn Sr. when they divided their property in January 1961. The fact that Kastenhuber, Bartlett, and others thereafter met on the site and discussed where they thought the line went (and may have made yellow penciled free hand marks on a 1919 plat in respect to it) has little relevance to the previous intentions of the Koehns. The deed to Jean Koehn carved her parcel out of the greater whole. Thereafter, the remainder was conveyed by a deed of the greater whole over a year later to appellees.

That deed excepted the parcel previously conveyed by the Jean Koehn deed. This is not an uncommon way for property to be conveyed. There is, therefore, no conflict between the respective instruments. In the present case, the deed to Jean Koehn is clearly the senior instrument.

The only deed to examine is the Jean Koehn deed. We now examine the language in that deed. In the first instance, we agree with Judge Horne that the language as to the direction of the course at issue is clear and unambiguous. If the description in the Jean Koehn deed had read “in a straight line with the fence line,” then it may have been ambiguous.

However, the deed provided that the line went along a course with the road in a straight line and then continued “in the same straight line ... to the top of the bank along the shore line.... ” (Emphasis added.) That language refers back to the previous course’s straight line and is the imperative call; it is thus unambiguous, and the added language, “with a fence line,” “between the park woods and the reserved land” is to be interpreted under this specific circumstance as referring to the line as being “generally” with a fence line. 12 Am Jur.2d Boundaries § 56 (1964) provides: [WJhen a description of the boundaries of land calls for a line from one monument to another, the law presumes that a straight line is intended; and a line which is marked for only part of a required distance should be followed in the same direction for the whole distance unless there is some marked corner to divert it. [Footnotes omitted.] ⁶⁹² The point where the first course became the second course in the Jean Koehn deed was at the southerly end of the driveway and the southwesterly side of the “barn road.” That point on the barn road was itself a monument. That monument clearly was not intended as a corner but as the monument marking the continuation of the same straight line as the previous course. The primary “call” in the course at issue was from a point on the southwesterly edge of the barn road “in the same straight line” as the previous course “to the top of the bank along the shore line of Island Creek.” The next call was to the top of the bank of the shore line of the creek. In Budd v. Brooke, 3 Gill 198, 221 (Md.1845), one of the descriptions at issue said as a course “running east north east up [a creek], for breadth the length of two hundred perches to a marked oak.” Although the Court eventually held otherwise, based upon the specific facts of the case, it nevertheless discussed the relevant law: Allanson’s Folly is described in the patent as “... running east north east up Chincomuxon, for breadth the length of two hundred perches to a marked oak.” Had no other more binding expression in relation to this line been used in the patent, the line must be run in a .straight direction from boundary to boundary; the words, “running up a creek,” not being a binding call, but merely indicating the general direction of the line referred to.

Id. at 221-22 . The language “with a fence line” is controlled by the specific language “continuing in the same straight line” (emphasis added), and, likewise, as we see it, refers merely to the general direction of the course and does not substitute the fence line (which apparently may not have then existed in any event) for “the same straight line.” We shall digress for a moment to discuss the two plats prepared in 1961 by Kastenhuber. There is what appears to be a final 1961 map (Joint Exhibit No. 2) and a working or preliminary map from which the final map was prepared (Def. Exhibit No. 9).

Neither of these maps was ever recorded, nor ⁶⁹³ was either one of them referred to in the Bowies’ deed. Moreover, they had not even been prepared, or even been commenced, at the time of the January 1961 division of Evergreen Farm. A comparison of these preliminary and final maps reveals an interesting omission on the final one. On the preliminary map, the course identified in the Jean Koehn deed as the straight line, ie., the previous straight line course that “the same straight line” language refers to, shows, very explicitly, that all along that referenced (the first) straight line course there was a fence and hedgerow and, moreover, that the first course line proceeds some forty feet past the southwesterly line of the barn road, the monument, to which the Jean Koehn deed refers.

However, on the final plat prepared by Kastenhuber, the language about the fence along the first course is omitted. Anyone, therefore, referring only to the final map would not know that there was an old fence line all along the previous-referenced course, to which the following course could refer. Moreover, the 1961 plats’ beginning points are considerably at variance with the beginning point described in the Jean Koehn deed. The initial point identified in the 1961 plat is approximately due north across the roadway from the southern point of the southeastern culvert.

The senior deed, the Jean Koehn deed, called for the beginning point to be northwest across the road from the southern end of the same southeastern culvert. The first course in the deed — the course over which there is no dispute — called for it to be “to a point at the southerly end of said driveway and the southwesterly side of the barn road.” The concrete monument, apparently placed by Kastenhuber in 1961 as the beginning point for the next course, is considerably southwest of the beginning point for that course named in the deed. The surveyor described this distance as “30 to 40 feet” beyond the barn road. At oral argument, appellant proffered that Kastenhu-ber placed the monument at that point because it was where the old fence line slanted away from the prior course of the fence line. ⁶⁹⁴ Furthermore, as we have said, the prior course was also along a fence line and hedgerow, as can be clearly seen from the draft prepared by Kastenhuber prior to his final, yet unrecorded, 1961 map.

The early draft indicates that the entire first course was along a fence (even at one point indicating that the hedge was 1.5 feet from the fence). The final, but unrecorded 1961 map, omitted any reference to a fence along that first course and inserted the words “Hedge Row” that were not on the draft map. When the Jean Koehn deed described its second course, it had already run one course in a straight line along a fence row. W(hen its description of the second course states: “thence continuing in the same straight line and with an old fence line” it actually runs in the same line and along the same fence line for another “30 to 40 feet” under all interpretations.

(Kastenhuber’s maps indicate that in September of 1961, the old fence line did not slant away from the previous course until that point.) It describes the running of the entire line as “in the same straight line ... to the top of the bank along the shore line of Island Creek.” (Emphasis added.) The deed description confines the first two courses to the same straight line. There may have been, at the time of the Jean Koehn deed, for the first thirty to forty feet, indications that remnants of an old fence line actually ran along that portion of the second “same straight line.” Moreover, there is no indication that the line (the first and second courses) was to meander. We perceive that the call to the first thirty to forty feet of the course as being “in the same straight line” fixed the direction of that line even under Kastenhuber’s version. There is absolutely no indication in the Jean Koehn deed that there was to be any change in direction at a point thirty to forty feet past the barn road.

There is no indication whatsoever that the' narration of a “same straight line” was anything other than a continuation of course. That language specifically confirms a continuation of the prior course. It states explicitly, “thence continuing in the same straight line.” (Emphasis added.) At all intended changes of course, the deed provides without qualification “thence