Miller v. Kirkpatrick

HARRELL, J. On 31 October 2000, Harold Miller, Jr. and his wife, Bride (“the Millers”), Petitioners here, filed a complaint in the Circuit Court for Dorchester County against Respondents, Roger Kirkpatrick and his wife, Elsie (“the Kirkpatricks”). The complaint was in response to the Kirkpatricks’ installation of two parallel barbed wire fences (“the fences”) along an access road within a right-of-way easement created by deed and benefitting the Millers. Among various claims in the complaint, the Millers sought a declaration to quiet title, damages based on trespass, and an order requiring removal of the fences from the right-of-way. A three-day trial was held in the spring of 2001.

The equitable claims were tried to the court while a jury concurrently considered the damages claim. At the conclusion of all the evidence, the trial judge found, as a matter of law, that the Millers possessed an express grant of a right-of-way easement, twenty feet in width, accomplished by a reservation in a deed, across the Kirkpatricks’ property. The jury then found ³⁴¹ that the Kirkpatricks were not liable to the Millers for interference with use of the easement or failure to contribute to the maintenance of the roadway within the right-of-way, and declined to award compensatory damages. Following the jury verdict, the trial judge refused to order removal of the fences from the right-of-way.

Subsequently, he also denied various post-trial motions filed by the Millers, including a motion for new trial in which the judge’s recusal was sought based on alleged acts of bias against the Millers and their attorneys during the trial. On direct appeal by the Millers, the Court of Special Appeals, in an unreported opinion, affirmed the judgment. We granted Petitioners’ petition for writ of certiorari, Miller v. Kirkpatrick, 374 Md. 82 , 821 A.2d 370 (2003), to consider two questions: 1. Where the Trial Court has declared that a right-of-way is 20 feet in width, was it error for the Trial Court to refuse to grant injunctive relief for the removal of two parallel barbed wire spite fences constructed within the right-of-way, on the basis that the jury refused to award monetary damages for past interference? 2.

Does the requirement of this Court in Surratt v. Prince George’s County, 320 Md. 439 , 578 A.2d 745 (1990), that under appropriate circumstances, a different judge should hear the evidence on allegations of judicial misconduct, apply to a hearing on post-trial motions where court personnel are prepared to testify about the one-sided misconduct of the Trial Judge before the jury, and that Trial Judge himself puts on the record, his strongly-felt previously undisclosed bias arising from unrelated cases up to three years earlier, against counsel for the dominant tenement, as an apparent explanation for his conduct? I. A. Factual Background We quote from the unreported opinion of the Court of Special Appeals: ³⁴² “On or about December 9, 1957, Thomas M. Galbreath Jr. and his wife, Ethel, obtained a survey of their property, known as Travers Farm, in order to subdivide it into two distinct parcels. The survey also platted a twenty-foot wide right-of-way as the means of unrestricted access to and from the smaller parcel of property and the public road. The right-of-way is located on the larger parcel, now owned by members of the Kirkpatrick family, and is contiguous to the northern boundary of the smaller property. [Petitioners] own the smaller of the two parcels (the ‘Miller property’), which includes the original residential farmhouse and tillable lands. “By deed dated February 7, 1958, the Galbreaths conveyed the smaller of the two parcels, including the farmhouse, to Stanton H. Davis and his wife, Ruth Noe Davis.

On February 23, 1966, the elder Kirkpatricks acquired the larger parcel. The deed stated that the conveyance was subject tó the right-of-way granted to Mr. and Mrs. Davis. Then, by deed dated October 27, 1977, Mr. and Mrs. Davis conveyed their parcel to [Petitioners]. The deed included an easement for the right-of-way.

At the time of the conveyance, the 1957 survey was recorded in the land records. It is undisputed that there were no fences in the right-of-way when it was created. “Mr. Kirkpatrick initially farmed the Miller property and also maintained the right-of-way. In 1984, however, when the Millers hired another person to farm their land, their relationship with Mr. Kirkpatrick deteriorated substantially. As a result, Mr. Miller assumed primary responsibility for maintenance of the right-of-way, and [Petitioners] claimed that Mr. Kirkpatrick interfered with that effort.

According to [Petitioners], Mr. Kirkpatrick repeatedly put obstacles on the road that damaged their equipment and threatened the Millers with physical harm. For example, on one occasion, Mr. Kirkpatrick approached Mr. Miller while holding a rifle, poked Mr. Miller with it in the chest, and threatened bodily harm if Mr. Miller continued to maintain the entire right-of- ³⁴³ way. That incident was the subject of a criminal prosecution.” In July 2000, Mr. Kirkpatrick erected two parallel barbed wire fences, inside the drainage ditches, along each side of the access road, approximately twelve feet apart. The fences foreclosed the Millers’ ability to use or maintain forty percent of the right-of-way and prevented access directly from the right-of-way to the Millers’ farm fields.

Mr. Kirkpatrick testified that he erected the fences “to protect [his] property” because he “did not want Mr. Miller to steal it.” Respondents’ daughter, Deborah Kirkpatrick Harrison, when asked: “What function does the fence serve as you understand it?,” replied “I think nothing says keep out more than a barb wire fence.” B. Procedural History In the Trial Court As noted above, the Millers filed a complaint in the Circuit Court for Dorchester County on 31 October 2000. Their flagship claims sought a declaration to quiet title, removal of the fences, and damages based on trespass. At the conclusion of the evidence at the three day trial, the trial judge found preliminarily, as a matter of law, that the right-of-way existed and was twenty feet wide. The judge then submitted the following pertinent questions to the jury on the verdict sheet: 1.

Do you find that the Defendants, or any of them, are liable to the Plaintiffs for intrusion upon their seclusion? Yes No If your answer is “no”, go to question 2. 2. Do you find that the Defendants or any of them, are liable to the Plaintiffs for interference with and/or for failure to contribute to the maintenance of the common roadway? ³⁴⁴ Yes No The jury answered “no” to both questions. Accordingly, the jury did not award any compensatory damages to the Millers.

After the jury returned its verdict, the trial judge continued his oral ruling as to the remaining equitable claims, stating in pertinent part: “Now, I look at the request here. The plaintiff has requested that the fence be prohibited from trespassing on the Miller property. Well, there’s no evidence that they had been trespassing on the Miller property. The controversy here is over the right-of-way which is not Miller property.

It is Kirkpatrick property which the Millers have the right to use. Request for interfering in any way with the use of maintenance [sic] of the roadway by plaintiffs and their family, friends and business invitees I deny that request because there’s no showing that in fact there was such interference. “There’s a request that the barbed wire be removed. I deny that request. So far as I know the owner of property in fee simple has the right to use that property in any way he sees fit, that’s not contrary to law, [or] the rights of somebody else. “Now, an easement does not necessarily mean that the person may not use the — the owner of the underlying fee may not use the property in any way.... “Now, I deny the request to prohibit the defendants from threatening or seeking to intimidate the plaintiff or family, friends, or business invitees from using or maintaining the roadway, including without limitation — well, firearms.

The jury has found in this matter that there has been no interference with the right of user of the roadway. Some of these requests are duplicates.... ” The Millers’ counsel remonstrated that the jury only had been asked to consider damages for interference, not whether any interference had -occurred. The ensuing colloquy between Petitioners’ counsel and the trial judge is noteworthy: ³⁴⁵ “[PETITIONERS’ COUNSEL]: [T]he court has declared, as the Millers have contended right along, that there is a twenty foot right-of-way. There was substantial evidence that the fence interfered with the maintenance and use of that right-of-way. “THE COURT: I found by a preponderance of the evidence that it did not. “[PETITIONERS’ COUNSEL]: I’d like to be heard on the whole thing because I want a complete record on this. “[THE COURT]: All right, sir.

Make your record. “[PETITIONERS’ COUNSEL]: But, basically the determination that the fence does not interfere where there is such substantial evidence really guts the declaration of the court of any meaning and effect. The fence is — you know, if the fence were at the edge of the twenty foot boundary, no problem. “[THE COURT]: They’ve got a right to put a fence on there anywhere they want to as long as they don’t interfere with the use of the easement. “[PETITIONERS’ COUNSEL]: But you’ve had substantial evidence that they did interfere with the easement. “[THE COURT]: And there was evidence that they did not. “[PETITIONERS’ COUNSEL]: What, Mr. Jackson [a farmer who worked the Kirkpatricks’ fields] might be able to get his tractor down— “[THE COURT]: Well, he said it was a very close fit but he could get through there. And I find by a preponderance of the evidence that there’s no interference. Now let’s get on. “[PETITIONERS’ COUNSEL]: Well, I understand what your — what your finding is, but I’d like this record to be clear because I think that is an egregious error in this case not to deal with the fence and to require [it] to be removed ... outside of the twenty foot boundary.

Now, the whole— all of the evidence was that the reason that this suit was filed was that fence was such a material factor. The notion that Mr. Jackson might be able to get his combine down— ³⁴⁶ “[THE COURT]: More than might. “[PETITIONERS’ COUNSEL]: Well, it was definitely might because he hadn’t done it and he said that. I said your combine is twelve feet across. We know that the fence post[s] certainly come at least as close as twelve feet across.

Jackson has never been down there so that is pure speculation. “What is not speculation is the fact that the ability to maintain those ditches within the twenty feet so as to avoid the build up of brush, so as to permit a free flow of drainage and to permit the avoiding [of] problems with the drifting of snow, that evidence is unrebutted. The notion that you can go along with a scythe and'get most of it misses the boat. It really makes the declaration meaningless in terms of this case. “And so without the — the whole concept — and really it’s contradictory really of the court’s own findings that the plaintiffs have a right to use and maintain the right-of-way free from unreasonable interference. What the testimony is, is that they haven’t been able to use and maintain it free from interference once that fence went up .... “The point is this.

I would urge the court to reconsider that issue with the fence, to require it to be removed to the twenty foot — I mean what is the point of the fence? There’s no livestock. The only point of the fence— “THE COURT: It doesn’t have to have a point. He’s got a right to put it.

As long as he doesn’t interfere he’s got an absolute right as the owner of the fee simple.” By written order, dated 13 June 2001, the Circuit Court memorialized that the parties’ predecessors in title created an express easement, by reservation in a deed, across the land owned by the Kirkpatricks, for the benefit of the land owned by the Millers, “for the passage and repassage of persons and ³⁴⁷ vehicles over the roadway....” The Circuit Court further found that the express easement had a width of twenty feet, and that Petitioners and their invitees were “entitled to pass over and across said roadway without interference from the [Respondents].” In addition, the Circuit Court held the “respective property owners ... equally responsible for the maintenance of ... [the] roadway.” Finally, the Circuit Court concluded that “the jury having found no interference with the use of the right-of-way, all requests for the injunction are denied.” The Millers submitted several post-trial motions, including a motion, filed on 13 June 2001, for a new trial based on their perception of the trial judge’s biased behavior against them and their attorneys in front of the jury. On the same day, the Millers moved to alter or amend the judgment. On 15 June 2001, they asked that another judge hear the motion for a new trial and, on 27 June 2001, they filed a motion to have the court visit and view the right-of-way in issue. The judge who presided at trial heard argument and denied all motions on 3 August 2001.

C. Procedural History on Appeal In the Court of Special Appeals, Petitioners argued that the Circuit Court erred in permitting the Kirkpatricks “to continue to maintain, within that declared right-of-way, the relatively recently erected parallel barbed wire fences 12-feet apart which effectively limit the [Petitioners’] right-of-way to a 12 foot width.” Petitioners also maintained that the trial court erred when it refused “to have another judge consider the motion for a new trial as to the jury’s determinations on damages premised on the personal misconduct of the Trial Judge” and when it refused “to grant the motion for new trial on the jury’s determinations on damages based on the material personal prejudicial misconduct of the Trial Judge in the presence of the jury.” The Court of Special Appeals, in an unreported opinion filed on 8 November 2002, affirmed the Circuit Court’s judgments. On the issue of the fences in the right-of-way, the intermediate ³⁴⁸ appellate court held that the Kirkpatricks, as owners of the fee, are entitled to use the access road also, so long as they do not unreasonably interfere with the Millers’ use. The court found there was no interference with the right-of-way because the jury’s determination not to award damages meant that it also found there was no interference that deprived the Millers of their use of the road. On the claims of judicial misconduct during the trial as asserted in the new trial motion, the court found no basis in the record to support Petitioners’ post-trial assertion that they were treated unfairly by the trial judge.

In addition, the court found that the allegations did not require another trial judge to decide the recusal request.

II

A. Summary of Our Conclusions We disagree with the Court of Special Appeals regarding the fences and the use of the right-of-way, but concur with its disposition of Petitioners’ motion for recusal of the trial judge. As regards the right-of way, given the absence in the Kirkpatrick’s deed of a reservation in them to modify the express easement prospectively, the Court of Special Appeals and the Circuit Court should not have concerned themselves with whether the Kirkpatricks’ alteration of the express easement, by installation of the fences, afforded the Millers reasonable access to their home and farm property. That is the wrong question to be analyzed. We hold rather, as a matter of law, that the Kirkpatricks, standing in chain of title as grantors of an express easement, may not unilaterally narrow the right-of-way easement from twenty feet to twelve feet by the installation of the fences.

As regards Petitioners’ motion for recusal of the trial judge, Petitioners waited until after an unfavorable jury verdict to file a motion for new trial and recusal reciting perceived wrongs or slights alleged to have occurred throughout or even prior to the trial, without proper preservation. Under the circumstances present in this case, we hold that the motion for recusal was, at a minimum, untimely. ³⁴⁹ B. The Fences As a prelude to considering this issue, it is useful to revisit some well-settled principles of real property law and particularly those governing easements. “An easement is broadly defined as a nonpossessory interest in the real property of another, and arises through express grant or implication.” Boucher v. Boyer, 301 Md. 679, 688 , 484 A.2d 630, 635 (1984) (citations omitted). In general, the terms “easement” and “right-of-way” are regarded as synonymous. Chevy Chase Land Co. v. United States, 355 Md. 110, 126 , 733 A.2d 1055, 1063 (1999).

An express easement by reservation arises when a property owner conveys part of his property to another, but includes language in the conveyance reserving the right to use some part of the transferred land as a right-of-way. Knotts v. Summit Park Co., 146 Md. 234, 239 , 126 A. 280, 281-82 (1924). “In every instance of a private easement — that is, an easement not enjoyed by the public — there exists the characteristic feature of two distinct tenements — one dominant and the other servient.” Bd. of County Comm’rs of Garrett County v. Bell Atlantic-Md., Inc., 346 Md. 160, 175 , 695 A.2d 171, 179 (1997). “Where a right of way is established by reservation, the land remains the property of the owner of the servient estate, and he is entitled to use it for any purpose that does not interfere with the easement.” Greenwalt v. McCardell, 178 Md. 132, 136 , 12 A.2d 522, 524 (1940) (citation omitted). The generally accepted rule for an express easement is “that [because] an easement is a restriction upon the rights of the servient property owner, no alteration can be made by the owner of the dominant estate which would increase such restriction except by mutual consent of both parties.” Reid v. Washington Gas Light Co., 232 Md. 545, 548-49 , 194 A.2d 636, 638 (1963) (citation omitted). Our cases establish that the Millers’ right-of-way entitles them to traverse it and that the Kirkpatricks, as owners of the fee, are also entitled to use the property. ³⁵⁰ The owner of the dominant tenement is entitled to use the easement only in such manner as is fairly contemplated by his grant, whether expressly or implied, and the owner of the servient tenement is entitled to use and enjoy his property to the fullest extent consistent with the reasonably necessary use thereof by his neighbor in accordance with the terms and conditions of the grant.

Millson v. Laughlin, 217 Md. 576, 585 , 142 A.2d 810, 814 (1958). The subservient tenement may not obstruct the use of the easement. We said in Maddran v. Mullendore, 206 Md. 291, 297 , 111 A.2d 608, 610 (1955), that “it is axiomatic that the owner of a servient tenement cannot close or obstruct the easement against those who are entitled to its use in such manner as to prevent or interfere with their reasonable enjoyment.” See also Klein v. Dove, 205 Md. 285 , 107 A.2d 82 (1954) (affirming decision of trial judge to grant an injunction requiring the defendants to remove obstructions from the right-of-way and restraining them from interfering with the plaintiffs right-of-way) Respondents’ brief in this Court adopted the Court of Special Appeals’s unreported opinion as their argument. The Court of Special Appeals held that the Kirkpatricks, as owners of the fee, are entitled to use the road, so long as they do not unreasonably interfere with the Millers’ use.

The court reasoned that there was no interference with the right-of-way by erection of the fences because the jury’s determination not to award damages for interference meant there was no interference that deprived the Millers of their use of the road. We conclude that, although the Kirkpatricks also may use the access road as such, they may not unilaterally modify or reduce the right-of-way in a manner or extent that is inconsistent with the intention of the parties as gleaned from the language of the deed granting the right-of-way. Chevy Chase Land Co., 355 Md. at 123 , 733 A.2d at 1062 . ³⁵¹ In construing the language of a deed, the basic principles of contract interpretation apply. The grant of an easement by deed is strictly construed.

Buckler v. Davis Sand and Gravel Corp., 221 Md. 532, 538 , 158 A.2d 319, 323 (1960). The extent of an easement created by an express grant depends upon a proper construction of the conveyance by which the easement was created. Id. “The primary rule for the construction of contracts generally — and the rule is applicable to the construction of a grant of an easement — is that a court should ascertain and give effect to the intention of the parties at the time the contract was made, if that be possible.” Id. Here the subject deed(s) and referenced survey— as determined by the Circuit Court — granted the dominant tenement a right-of-way for ingress and egress that was twenty feet in width.

The grant of the right-of-way to the Millers — as set forth in the deed, dated 27 October 1977 — does not contain any reservation of rights to the grantors. Similarly, there is no written instrument of record reserving to the owners of the servient tenement the power to modify the contractually fixed grant of the express easement. As we said as long ago as 1880, the grant of an express easement is founded upon the maxim that “a grantor shall not derogate from his grant.” 1 Mitchell v. Seipel, 53 Md. 251 (1880)(em-phasis in original). This principle is deeply embedded in the common law, and “if the grantor intends to