Orfanos Contractors, Inc. v. Schaefer

ROSALYN B. BELL, Judge. Orfanos Contractors, Inc. (Orfanos) instituted suit against Louis M. Schaefer, et al. in the Circuit Court for Baltimore City, seeking declaratory and injunctive relief. For purposes of this appeal, the relevant litigants are: Schaefer & Strohminger, Inc., S & S Management Services, Inc. (S & S Management), Louda Limited Partnership, and David H. Murdock, t/a Murdock Investment Company (Murdock). 1 The dispute was over a paper street designated as ¹²⁵ Fleet Parcel Nos. 1, 2 and 3. 2 Orfanos sought a declaration that it possessed a private right of ingress and egress over that paper street. Orfanos also sought a permanent injunction, preventing Louis M. Schaefer and the other appellees from placing objects on any part of the paper street.

Appellee Schaefer & Strohminger, Inc. counterclaimed, seeking title to a portion of the parcel through adverse possession. After a nonjury trial, the trial judge ruled against Orfanos and for the appellees on all counts, including the counterclaim. This appeal followed. Three issues are raised for our consideration: — Whether the trial court erred in ruling that Schaefer & Strohminger, Inc. had acquired title by adverse possession to a portion of Fleet Parcel No. 2. — Whether the trial court erred by not ruling on Orfanos’s claim of an implied easement over the portion of Fleet Parcel No. 2 that Schaefer & Strohminger, Inc. acquired by adverse possession. — Whether the trial court erred in denying Orfanos an implied easement to use Fleet Street in both directions.

We hold there was no error and explain. BACKGROUND Orfanos is a construction contractor that stores materials and heavy equipment on real estate in Baltimore City. Orfanos is the record owner of the properties designated as Lot 73A, Lot 76-119, Fleet Parcel No. 1, and Fleet Parcel No. 2. Louis M. Schaefer and the other appellees are the ¹²⁶ record owners of Lots 75, 120, 120A, 121, and Fleet Parcel No. 3.

S & S Management owns Lots 75, 120, and 121. Louda Limited Partnership, a Maryland limited partnership, owns Lot 120A and Fleet Parcel No. 3. 3 Louda Limited Partnership purchased Fleet Parcel No. 3 after Orfanos instituted these proceedings. 4 Schaefer & Strohminger, Inc., a Maryland corporation, leases Lots 75, 120, 120A, 121 and Fleet Parcel No. 3 from Appellees S & S Management and Louda Limited Partnership. Schaefer & Strohminger has operated an automobile dealership on Lots 75 and 121, at the corner of Eastern and Dundalk, for 25 years. Since 1965, Schaefer & Strohminger has leased Lot 75, which bounds Fleet Parcel No. 2, and used it as a body shop.

The record reflects that Schaefer & Strohminger maintained Fleet Parcel No. 2 from 1965 to the present. The details of that use will be related later. The record indicates that Schaefer & Strohminger also used a portion of Fleet Parcel No. 2 for the storage of what Orfanos alleged were hazardous materials. That activity was terminated by a court order on January 27, 1989.

Also, in the late 1970s, Schaefer & Strohminger placed a trailer across Fleet Parcel No. 2 between Lots 74 and 75. This trailer was removed in June of 1988 upon the written demand of Orfanos and was in place less than 20 years. Fleet Parcel Nos. 1, 2 and 3 run amongst the various properties described. These parcels intersect Cornwall Street and run from Bonsai Street to Folcroft Street.

Bonsai, Folcroft and Cornwall Streets are all public roads. Fleet Parcel Nos. 1, 2 and 3 have always been privately owned and do not constitute a public road. While there is a dispute over whether the Fleet parcels have ever been used as a street, the record supports the finding that they have not. Photographs show that the ¹²⁷ Fleet parcels bear no resemblance to a street.

Schaefer & Strohminger has paved portions of Fleet Parcel Nos. 2 and 3. All of Fleet Parcel 1 and most of Fleet Parcel No. 2, however, are indistinguishable from the surrounding lots. The terrain is covered with grass and includes some trees and shrubs. A telephone pole sits in the middle of Fleet Parcel No. 2.

As shown in Appendix A, the Orfanos properties border in part Bonsai and Cornwall Streets, while appellees’ properties lie between Cornwall and Folcroft Streets. Orfanos stores its materials and equipment on Lot 73A, Fleet Parcel No. 1 and the western half of Lot 76/119. A fence Orfanos erected and maintains encloses these parcels. This fence denies others access to Bonsai Street over Fleet Parcel No. 1.

At trial, Orfanos stated that it used Bonsai Street on a regular basis to enter and exit its properties. Orfanos filed a Verified Complaint for Declaratory Judgment and Injunctive Relief against Louis B. Schaefer and the other appellees on December 2, 1988. The complaint contained eight counts. Counts I, II and III sought a declaration that Orfanos possessed a private right of ingress, egress and regress over Fleet Parcel No. 3.

Counts IV and VI sought to enjoin the named defendants from storing or leaving any object on Fleet Parcel No. 3 that would impede vehicular or pedestrian traffic. Count V sought a declaration that Orfanos had legal and equitable title to Fleet Parcel No. 2. Count VII was a trespass count relating to the storage of allegedly hazardous materials on Fleet Parcel No. 2, and Count VIII was a nuisance count relating to the storage of the same materials. Appellees filed separate answers to the complaint.

Appellees also opposed Orfanos’s application for an interlocutory injunction. Finally, Schaefer & Strohminger filed a counterclaim against Orfanos, alleging title to a portion of Fleet Parcel No. 2 by adverse possession. An evidentiary hearing on the interlocutory injunction application took place in January, 1989. The hearing judge ¹²⁸ ordered Schaefer & Strohminger to remove the steel drums and containers that contained the alleged hazardous materials from Fleet Parcel No. 2.

The judge denied all other relief requested in the application. 5 Trial on the merits took place on November 20 and 21, 1989. Prior to the presentation of any evidence, Orfanos dismissed Counts VII and VIII as moot. After the proceedings, the court declared that Orfanos did not possess a private right of ingress, egress and regress over Fleet Parcel No. 3. The court also concluded that Schaefer & Strohminger had acquired, by adverse possession, legal and equitable title to a portion of Fleet Parcel No. 2.

In its order, the court denied all other relief that Orfanos sought in its complaint. Orfanos filed this appeal on December 20, 1989. ADVERSE POSSESSION Orfanos argues that the trial court erred in ruling that Schaefer & Strohminger acquired title to a portion of Fleet Parcel No. 2 by adverse possession. To establish adverse possession, the claimant must show possession was actual, hostile, open, notorious, exclusive, under claim of title or ownership, and continuous or uninterrupted for the statutory period of 20 years.

Md.Cts. & Jud.Proc.Code Ann. § 5-103(a) (1974, 1984 Repl.Vol., 1989 Cum.Supp.); Costello v. Staubitz, 300 Md. 60, 67 , 475 A.2d 1185 (1984); Blickenstaff v. Bromley, 243 Md. 164, 170 , 220 A.2d 558 (1966). The trial court ruled that Schaefer & Strohminger acquired title by adverse possession to that portion of Fleet Parcel No. 2 directly behind Lot 75. The trial court also ruled that Orfanos was the owner of the rest of Fleet Parcel No. 2. The evidence fully supports the trial court’s findings as to each requirement of adverse possession.

Accordingly, we will affirm. Pahanish v. Western Trails, Inc., 69 Md.App. 342, 354 , 517 A.2d 1122 (1986). ¹²⁹ —Actual Possession— In determining whether a party has been in “actual” possession of the property, the court must consider the character and location of the land and the uses and purposes for which the land is naturally adapted. See Blickenstaff, 243 Md. at 171 , 220 A.2d 558 . Fleet Parcel No. 2 lies in an area zoned for business use in Baltimore City.

Schaefer & Strohminger has, since 1965, consistently used Fleet Parcel No. 2 for business. 6 Schaefer & Strohminger opened its auto dealership at Eastern and Dundalk Avenues in 1965. The dealership buildings and various storage lots were erected on and operated in Lot 121. Lot 75 was leased to Schaefer & Strohminger for use as a body shop for the dealership, but the lease did not include the paper street known as Fleet Street. The body shop has always opened onto Fleet Parcel No. 2.

From 1965 until the present, Schaefer & Strohminger used the portion of Fleet Parcel No. 2 behind Lot 75 as an extension of its body shop. It drove vehicles over Fleet Parcel No. 2 into the body shop on a daily basis; stored vehicles on Fleet Parcel No. 2; cleaned and maintained Fleet Parcel No. 2 as though that parcel were its own; blacktopped a portion of Fleet Parcel No. 2 at its own expense; and maintained a dumpster on Fleet Parcel No. 2. Schaefer & Strohminger’s use of Fleet Parcel No. 2 is consistent with the purposes for which the land is naturally adapted. Accordingly, Schaefer & Strohminger’s use of Fleet Parcel No. 2 has been “actual” since 1965. ¹³⁰ —Open and Notorious— Acts that make possession “actual” are ordinarily sufficient to make it visible and notorious.

Bishop v. Stackus, 206 Md. 493, 498 , 112 A.2d 472 (1955). The various uses of Fleet Parcel No. 2 by Schaefer & Strohminger were open and notorious. —Exclusive— Exclusive possession means that the claimant must possess the land as his own and not for another. Blickenstaff, 243 Md. at 173 , 220 A.2d 558 . Schaefer & Strohminger’s possession of Fleet Parcel No. 2 has been exclusive as against the rights of the community at large since 1965.

See Zimmerman v. Summers, 24 Md.App. 100, 106 , 330 A.2d 722 (1975). Schaefer & Strohminger has possessed Fleet Parcel No. 2 in a manner that would characterize an owner’s use. See Blickenstaff, 243 Md. at 173 , 220 A.2d 558 . Moreover, there was no evidence that the possession of Fleet Parcel No. 2 behind Schaefer & Strohminger’s was shared with anyone else. 7 —Hostile— In Hungerford v. Hungerford, 234 Md. 338, 340 , 199 A.2d 209 (1964), the Court of Appeals said: “The ‘hostility’ essential to acquisition of title by adverse possession does not necessarily impart enmity or ill will, but rather that the claimant’s possession be unaccompanied by any recognition, express or inferable from the circumstances, of the real owner’s right to the land.” The facts disclose no evidence that Schaefer & Strohminger’s possession of Fleet Parcel No. 2 was other than hostile.

Its use of Fleet Parcel No. 2 was and is inconsistent with an acknowledgement of any ownership rights in another. ¹³¹ —Continuous— The evidence demonstrates that Schaefer & Strohminger had utilized Fleet Parcel No. 2 in an uninterrupted manner since the opening of the body shop in 1965. The trial court found all of this sufficient: “I’m satisfied that that is clearly the state of the law. I’m also satisfied that the testimony and the evidence in this case is uncontradicted as to the manner in which this portion that I speak of that portion only that abuts Lot 75 of the defendants, was used in the manner that the defendants claim it was used. It’s un-rebutted [sic] testimony.

And I think that every criteria that is called for and that must be met by the claimant has been met — twenty years and then some, continuous, uninterrupted, actual use, open use, exclusive use, hostile use. I think all of these criteria have been clearly met. “Counsel for the plaintiff argues: Well, a trailer was here just for this period of time, or drums were there just for that period of time, that the drums weren’t there for twenty years, the trailer wasn’t there for twenty years, some of the cars were just driving through; all of that may be true, but I think the clear import of the testimony is that in a number of different ways this lot was being used for a period of over twenty years, uninterruptedly, for the business of a body shop. Even the parking of cars of employees, even the parking of cars of customers is using the lot for the body shop, no fence is required. The giving of estimates — I know in the complaint, the counter claim complaint, it’s alleged that body work was actually done on this lot.

The evidence doesn’t support that claim. But the fact that estimates were given there is part of the work of a body shop. It isn’t necessary that a particular facet of the operation continue for twenty years. What is important is that the use be continued for twenty years.” (Emphasis added.) Orfanos argues that the trial court erred in holding that Schaefer & Strohminger had shown actual possession of all ¹³² of that portion of Fleet Parcel No. 2 behind Lot 75.

The trial court expressly found this in the instant case: “... I think the clear import of the testimony is that in a number of different ways this lot was being used for a period of over twenty years, uninterruptedly, for the business of a body shop.” The trial court in this case made specific findings as to the location and duration of each act of ownership on the disputed property at the close of trial. In light of our review, we cannot say the trial court was clearly erroneous in finding that Schaefer & Strohminger had acquired title to all the portion of Fleet Parcel No. 2 adjacent to Lot 75 by adverse possession. We noted in Peters v. Staubitz, 64 Md.App. 639, 647 , 498 A.2d 661 (1985): “While there is no precise formula for determining what constitutes actual occupation, it would be virtually impossible to require that a claimant use every square inch of the disputed property for every moment of the statutory period to establish adverse possession.” FAILURE TO RULE Orfanos argues on appeal that the trial court erred in not ruling on its claim that it had an implied easement over the portion of Fleet Parcel No. 2 that Schaefer & Strohminger acquired by adverse possession.

We assume Orfanos is referring to the judge’s oral opinion at the close of trial. An oral opinion, however, is not a final judgment and is not subject to an appeal where a written opinion is directed to be submitted. Rule 2-601; Kearns v. Kearns, 78 Md.App. 461, 465 , 553 A.2d 1291 (1989). On December 4, 1989, judgment was entered with the written order.

In the order, after the specific