Peck v. Baltimore County

Smith, J., delivered the opinion of the Court. This case involves the condemnation of the fee simple title to the bed of a street in Towson. Questions are raised as to whether the public easement was abandoned, whether a proposed use is within the scope of the easement, and the proper role of summary judgment. We cannot say as a matter of law whether there was or was not an abandonment because we conclude that triable issues of fact are presented.

Accordingly, we hold that the Court of Special Appeals in affirming a summary judgment erred in Peck v. Baltimore County, 41 Md. App. 323 , 397 A.2d 615 (1979). Thus, the case must be remanded for trial. Baltimore County began a highway improvement program in the Towson area in 1973. This included a relocation of Bosley Avenue.

(The facts here will be more clearly understood by reference to the attached plat.) ³⁷⁰ Appellants, Elizabeth Sellers Peck et al. (Peck), are the descendants of Washington Townsend. In 1862 Townsend acquired a large tract of land in the Towson area and then proceeded to sell off a number of lots. 1 Chief Judge LeGrand said for this Court in White v. Flannigain, 1 Md. 525, 540 (1852), "[W]here a party sells property lying within the limits of a city, and in the conveyance, bounds such property by streets designated as such, in the conveyance, or on a map made by the city, or by the owner of the property, such sale implies, necessarily, a covenant that the purchaser shall have the use of such streets.” (Emphasis in original.) To like effect see Tinges v. Baltimore, 51 Md. 600, 609 (1879). It is conceded that the easement created by the selling off of these lots is vested in the County and that the County holds nothing more than an easement in the Baltimore Avenue area at the present time. On July 7, 1975, the County filed suit to condemn Peck’s ³⁷¹ interest in the bed of Baltimore Avenue.

The petition as initially filed said the land was sought “for the purpose of the construction of the new Bosley Avenue.” Ultimately, however, it was amended by deleting those words and inserting that it was sought for the “landscaping of a mini-park on a portion of the parcel and to improve highway design for traffic flow on the remainder of the parcel, which will continue to serve as a public road as part of Baltimore Avenue, Bosley Avenue, and the public road serving the Baltimore County Jail.” Although the County seeks to acquire 28,563 square feet of land from Peck, only the 9,500 square foot area marked with a crosshatch on the attached plat is in controversy here. It is Peck's contention that the County has abandoned that easement. Peck’s appraiser said that if Peck owned the land in fee simple without the encumbrance of an easement it would be worth $118,750. The County values it as subject to an easement and thus worth but $1.00, based upon the holding of this Court in King v. Rockville, 249 Md. 243 , 238 A.2d 898 (1968).

In an answer to interrogatories the County said: 12. Since the purpose of the mini-park is to aid in traffic control and as a pedestrian thoroughfare in connection with a highway project funded by the State and Federal governments, we still consider it a part of the road system. There has been no formal road closing pertaining to this property____ Inspection records in the county indicate that the section of Baltimore Avenue sought to be condemned was physically closed to vehicular traffic by April 11, 1975.... 13. The juncture of Baltimore, Susquehanna and Bosley Avenues was first used by the public at a time beyond the memory of any living person.

The portion of the road at which Susquehanna Avenue intersects Baltimore Avenue and then flows to Bosley Avenue is visible on a photograph dated June 17, 1974. ³⁷² A somewhat similar statement was made in an affidavit by a project engineer for the County. He also said, “Planning and engineering considerations on the general improvement scheme for Bosley Avenue began circa 1960. Development of landscaping schemes was in process by early 1973. The highway construction contract was executed June 13, 1973, and the landscaping contract executed January 20, 1976.” Photographs were part of the record.

Peck’s memorandum to the trial judge said: As shown on the photograph taken by the Baltimore County Office of Information, and Research on June 17, 1974, a copy of which is attached hereto as Exhibit A, the realignment of Bosley'Avenue under the Campbell contract had caused this parcel of land to cease to be used for road purposes by at least the middle of June, 1974. A photograph taken on May 19, 1974, by John W. Perry, Jr., a copy of which is attached hereto as Exhibit B, appears to show traffic control flashers barring entry onto the parcel by at least mid-May, 1974. Further, photographs taken by Mr. Perry on July 14, 1974, and August 18, 1974, copies of which are attached hereto as Exhibits C and D, respectively, show that the roadbed was torn up by at least the dates of those photographs. Further, all of the photographs clearly show a new routing of traffic onto Bosley Avenue by means of a new roadway to the west of the parcel of land in question.

It then referred to the answer to interrogatories which we have quoted above and said that this answer “admits that the new route was in operation by at least June 17, 1974.” In ruling on the motion for summary judgment the trial judge said: The Court has carefully and fully considered the affidavits and exhibits filed by the parties. There can be no doubt that there does not exist a material dispute of fact. It is clear that Baltimore County never intended to abandon the use of the property in question for its highway purposes. It is also clear, ³⁷³ beyond question, the use of a portion of the property for a “mini-park” and pedestrian thoroughfare is clearly incidental to the traffic control upon the adjacent highway.

Accordingly, he granted summary judgment in favor of the County and awarded Peck $1.00 in damages. Peck here presents two contentions, (1) that the construction of an alternate way for traffic and the closure of Baltimore Avenue to vehicular traffic establish as a matter of law an intention on the part of the County to abandon the public easement as of the time of the closure, and (2) that in any event the mini-park is not within the scope of the easement. Since, as we shall hereafter develop, it cannot be said as a matter of law that the County has manifested an intention to abandon the public easement, a factual dispute concerning its intent is generated. I Abandonment This Court has held repeatedly that whether an easement has been abandoned is a question of fact.

We reviewed and discussed authorities to that effect in D. C. Transit v. State Rds. Comm’n, 265 Md. 622 , 290 A.2d 807 (1972), and D. C. Transit Systems v. S.R.C., 259 Md. 675 , 270 A.2d 793 (1970). As Judge Gray put it for the Court in Millson v. Laughlin, 217 Md. 576, 589 , 142 A.2d 810 (1958), “Intention to abandon is strictly a question of fact,” citing Vogler v. Geiss, 51 Md. 407, 410 (1879). In the context of a dispute between two individuals where one claimed an easement over the land of another, Judge Alvey said for the Court in the latter case: The act or acts relied on, however, to effect such result, must be of a decisive character; and while a mere declaration of an intention to abandon will not alone be sufficient, the question, whether the act of the party entitled to the easement amounts to an abandonment or not, depends upon the intention with which it was done, and that is a subject for the consideration of the jury. [Id. at 410.] ³⁷⁴ To similar effect see Ayres v. Hellen, 235 Md. 258, 260-61 , 201 A.2d 509 (1964); Knotts v. Summit Park Co., 146 Md. 234, 240-41 , 126 A. 280 (1924); Stewart v. May, 119 Md. 10, 19 , 85 A. 957 (1912); and Glenn v. Davis, 35 Md. 208, 217 (1872). 2 G. Thompson, Real Property § 443 (1961 Repl.

Yol., J. Grimes) states: Abandonment is a question of fact not of law. The question of whether there has been an abandonment of an easement is usually one of fact for the trial court or jury. The burden of proof to show an abandonment of an easement is upon the party claiming such abandonment, and he must establish the fact by clear and unequivocal evidence. [Id. at 779-80 (footnotes omitted).] Ayres makes a similar statement relative to burden of proof at 261, citing Klein v. Dove, 205 Md. 285 , 107 A.2d 82 (1954), and Sachs & Sons v. Ward, 182 Md. 385 , 35 A.2d 161 (1943). In this case Peck relies upon Libertini v. Schroeder, 149 Md. 484 , 132 A. 64 (1926), and Jenkins v. Riggs, 100 Md. 427 , 59 A. 758 (1905), for her proposition that the closing of Baltimore Avenue to vehicular traffic and the opening of an alternate route constitutes an abandonment of the easement as a matter of law as of the time of such closure.

These cases do not support that proposition. In Libertini a turnpike company had been incorporated with power to build a turnpike road “on the Bel Air Road and running upon and occupying the said Bel Air Road from [the limits of the City of Baltimore] to the old stage or Camp Chapel Road, and from thence on said Bel Air Road to the Little Gunpowder Falls, with power to diverge from the bed of said road when and where it m[ight] be desirable to said company----” The paved surface of the road ended about one mile south of Schroeder’s land. The Bel Air dirt road forked at the northwest corner of the Schroeder property. The right fork took the road to the Gunpowder Falls.

The left fork went around a hill, ultimately reconnecting with the main road. The right fork fell into disuse by reason of its bad condition until the time when the turnpike company paved it. This paved ³⁷⁵ portion was a part of that which the turnpike company turned over to the State Roads Commission in 1911. The latter determined to improve the left fork.

Judge Parke said for the Court: From the opening of the turnpike road in 1886 until its being closed by the State in 1914 or 1915, the public used this turnpike for public travel, and among those using the turnpike highway were the appellants. After the state highway was completed in 1914 or 1915, the public used that highway, but the appellants continued to use the abandoned section of the turnpike or the right branch of the fork until some time in 1923, when the appellee stopped this use by an obstruction. [Id. at 494.] At another point in the opinion the Court referred to “abandonment by the State [of the right fork] in 1924.” Id. at 496 . Peck seizes upon the language of the Court where it said: The alteration of the location of the turnpike road was made by competent authority, and it operated as a discontinuance of that section of the turnpike which was thus abandoned. [Id. at 494.] This certainly does not support the proposition here put forward. Libertini was claiming a prescriptive easement over the right fork.

The Court said this could not accrue because “[d]uring the period [from] 1886 to 1924 ... the section of the roadway in dispute was a public highway.” Id. at 496 . One would infer from the statement of the Court that the State Roads Commission took some positive action in 1924 to abandon the right fork, this being some nine or ten years after it completed improvement of the left fork. Peck also relies upon language in Jenkins where the Court said: It has been repeatedly decided that an alteration by competent authority of an existing road or way operates as a discontinuance of such portions of the old road as are not embraced within the limits fixed ³⁷⁶ for the new one even if no formal or special order of closing or discontinuance is passed. Commonwealth v. Boston, 150 Mass. 174 ; Mill Creek Township v. Reed, 29 Penna. 195; Classe v. Hamblet, 27 Vt. 728 ; Brook v. Horton, 68 Cal. 554 . [Id. 100 Md. at 438 .] That statement must be put in the context of the case.

Riggs’ farm was bisected by a road which he wished to close. The Court said, “This old road had been used by the public for more than a century but there is no evidence that the title to/ its bed had ever been acquired by the County Commissioners.” Id. at 429 . It apparently had fallen into disrepair and the roads’ engineer of the county was of the view that it would cost a substantial amount of money to put it in proper condition. Riggs consulted the county commissioners.

Several schemes were considered. Ultimately an agreement was reached between Riggs and the County Commissioners of Baltimore County by which upon the opening of two new roads the bisecting road would be closed. Riggs conveyed the bed of the new roads to Baltimore County. The county commissioners went through the procedures established by statute for closing the old road.

No appeal was taken. Then Jenkins sought to enjoin Riggs from obstructing the bisecting road. Immediately prior to the statement cited by Peck which we have quoted, the Court said: The proceedings in this case were not separate and independent applications for the opening of the new roads and the closing of the old one. They were in the nature of proceedings to alter the location of an existing road to be accomplished, as such alteration must be, by closing a portion of the old road and opening the new ones to public travel in its place and stead.

It was therefore proper for the commissioners to make the agreement with Mr. Riggs that the old road should be closed through his farm in consideration of his conveying to them the land for the new ones. As he was the owner of the land on both sides of the entire portion of the old road which ³⁷⁷ was closed no other action than that taken by the commissioners was necessary to authorize him to enclose it and appropriate it to his own use. [Id. at 438.] Although Jenkins and Libertini do not support the proposition espoused by Peck, those cases are entirely consistent with the general law of this State. In Cooper v. Sanford Land Co., 224 Md. 263 , 167 A.2d 602 (1961), the Court remanded the case under Maryland Rule 871 a because of an inadequate record. However, in