Porter v. Schaffer

HOLLANDER, Judge. This appeal arises from a dispute between Alan Porter, appellant, and Genevieve Yonkers Schaffer, appellee, regarding ownership of three unimproved tracts of woodland, located on the northwestern side of Polish Mountain in Allegany County. Together, the three parcels of land contain approximately two hundred acres. All of the property is situated within a larger, 886 jé acre tract called “Sideros,” surveyed by Richard Catón 1 in 1843. ²⁴³ The historical pedigree of the tracts has been contested for decades, and the briefs are not altogether helpful in eludicat-ing the factual contentions.

Two of the three pieces of land have historical nicknames that assist in referring to the parcels. One bears the name “Wolf Pen,” and consists of 71 acres. The other, “Hornet’s Nest”, is a 14 acre tract situated northwest of Wolf Pen. The third tract consists of 115 acres of land, and we shall refer to it as “the third tract.” Although its location is disputed, appellant asserts that the third tract is situated between Wolf Pen and Hornet’s Nest, and he claims ownership by adverse possession.

On April 15, 1996, Ms. Schaffer filed an action to quiet title against Porter in the Circuit Court for Allegany County. Ms. Schaffer claimed record title ownership to all three tracts of land, stemming from her title to Sideros. In an amended complaint filed on September 17, 1996, she also claimed ownership of all three tracts, by adverse possession. 2 In his answer to appellee’s amended complaint, Porter asserted record title to Wolf Pen and Hornet’s Nest, and title to all three tracts by adverse possession. 3 ²⁴⁴ After a three-day trial, the court (Leasure, J.) concluded that appellee had superior record title to Hornet’s Nest and the third tract. The court further concluded that although Porter’s chain of title to Wolf Pen stemmed from a patent that pre-dated appellee’s patent to Sideros, appellant failed to meet his burden of locating the tract within Sideros “with reasonable certainty.” The court also rejected Porter’s claim of adverse possession.

Accordingly, the court entered judgment in favor of Ms. Schaffer. That judgment spawned this appeal. Porter presents three issues for our review, which we have rephrased slightly: I. Did the trial court err in concluding that appellant did not establish with reasonable certainty the location of “Wolf Pen” within the present description of “Sideros”?

II

Did the trial court err in placing the burden of proof on appellant to prove his title to “Hornet’s Nest?” III. Did the trial court err in concluding that appellant did not establish title to the disputed land by adverse possession? We answer each question in the negative. Accordingly, we shall affirm.

Factual Background At trial, appellee presented a chain of title to the original patent of Sideros, which was issued in 1845. Appellant’s chain of title to Wolf Pen and Hornet’s Nest stemmed from a deed dated March 20, 1906, conveying portions of a farm owned by Amos Robinette to Frank Troutman, appellant’s predecessor in title. Appellant claimed that Robinette’s interest in Wolf Pen and Hornet’s Nest derived from the original patents for both tracts. The patent for Hornet’s Nest was issued in 1795 to Thomas Beall of Samuel; the patent for Wolf Pen was issued in 1841 to Robinette.

Appellant did not make a claim ²⁴⁵ of record title to the third tract, however. Rather, his claim to that tract was based entirely on adverse possession. We shall describe each party’s record title claims separately. As each party’s argument involves the interpretation of land patents issued in previous centuries, it is helpful to survey, by way of background, Maryland’s land patent system.

Land Patents in Maryland, A land patent “has been defined as a grant of some privilege, property, or authority, made by the government or sovereign of a country to one or more individuals... .When used in connection with real property, it means the title deed by which a government, either state or federal, conveys its lands.” 1 Logan D. Fitch, Abstracts and Titles to Real Property § 142 (1954). The patent process in Maryland has its roots in the charter given to George Calvert, Lord of Baltimore, by Charles I, in 1632. The Maryland Charter created in the Barons of Baltimore a “grand fief or honor, to be held of the Crown by the tenure of free and common socage,” which included an annual presentation to the King of two Native American arrows as a seal of the Lord Proprietor’s “tenure of petit sergeantry.” John M. Brewer and Lewis Mayer, The Law and Rules of the Land Office of Maryland 1 (1871); see also John Kilty, The Landholder’s Assistant (1808); Matthews v. Ward, 10 G. & J. 443, 450-51 (1839). When the colony of Maryland became the State of Maryland, the power of the Lord Proprietor to grant land passed to the judges of the Land Office, a position now represented by the Commissioner of Land Patents.

Md.Code (1974, 1996 Repl.Vol.), § 13-201 of the Real Property Article; see Marquardt v. Papenfuse, 92 Md.App. 683, 690-91 , 610 A.2d 325 , cert. denied, 328 Md. 93 , 612 A.2d 1316 (1992). The transition from colony to state did not change the method for obtaining a patent, as the Land Office adopted the same warrant procedure employed by Lord Baltimore and his successors. An applicant who wished to claim vacant lands was required to apply to the Land Office for a warrant of survey or resurvey. That warrant compelled the county sur ²⁴⁶ veyor to conduct a survey within one year of the warrant.

Adjacent landowners were notified of the survey. Maryland Coal & Realty Co. v. Eckhart, 25 Md.App. 605, 610 , 337 A.2d 150 (1975); see Brewer and Mayer, 12-18. Several types of warrants could be obtained by a prospective grantee. The early case of Cunningham v. Browning, 1 Bland 299 , 310-12 (1827), is helpful in identifying a variety of warrants.

There were under the Proprietary’s government, and still are, five different modes of beginning to obtain title to lands, or, in other words, five several kinds of warrants____ If it be his object ... to obtain a certain quantity of vacant land any where, without regard to any particular space, or tract ... the register of the land office gives him a common warrant, directed to the surveyor, commanding him to lay out the specified quantity of land____ But if required by the applicant, ... the register will insert a particular description of the land ... in the warrant itself; which specification gives to it the denomination of a special warrant.... But, if the applicant had already obtained a title ... and only wished to add to it some contiguous vacancy, he may obtain ... a warrant of resurvey____ [I]f any one had caused a particular tract of land to be surveyed, but had failed to comply with the conditions ... and ... to take out a patent ... any one else ... may obtain ... a proclamation warrant authorizing the applicant to take up the same lands---- And finally, any one by ... setting forth that a ... tract of land had actually escheated by the death of the ... owner intestate and without heirs, may obtain immediately ... an escheat warrant.... (Emphasis added); see Marquardt, 92 Md.App. at 691-92 , 610 A.2d 325 . After the surveyor completed his work and returned a certificate of survey, the certificate remained with the Land Office for six months.

During that time, any interested party could enter a caveat. The Commissioner’s resolution of the caveat was final as to the patent, but it did not resolve all ²⁴⁷ questions of title in the land, because “a patentee could only take subject to all prior claims, encumbrances, and equities....” Eckhart, 25 Md.App. at 610-11, 337 A.2d 150 . Thus, “the general rule of the Land Office in doubtful cases was to let the patent issue, for if it were granted, the question thereafter could be brought before a court of law or equity to vacate the patent.” Id. at 611 , 337 A.2d 150 . Schaffer’s Record Title to “Sideros” Appellee claims a direct chain of title to the original land patent of Sideros.

In 1843, Richard Catón obtained a warrant of resurvey for Sideros. The resulting survey described Side-ros as containing 886 % acres. Catón died shortly after the survey was completed. In 1845, however, a patent for Sideros was issued to Caton’s four daughters.

Subsequently, the Catón lands were placed in a trust managed by the Alexander Yearley firm of Baltimore (the “Yearley Trustees”). The Yearley Trustees continued to manage Sideros, along with the remainder of Caton’s vast holdings in Allegany county, long after the last of the Catón daughters died. 4 As part of their duties, the Yearley Trustees submitted annual reports to the court. On April 5,1922, the Yearley Trustees executed a deed conveying Sideros to “Harry W. Yonker”, appellee’s father. 5 The deed provided: NOW, THEREFORE, in consideration of the premises and of the sum of One Dollar in hand paid, the said party of the first part [the Trustees] does hereby grant and convey unto the said party of the second part [Yonkers], all the right title and interest of the parties to said cause No. 2227 Equity, in and to a tract of land called “Sideros”, situate, lying and being in Election District No. 3, in Allegany County, Maryland originally patented December 24th, 1845 ²⁴⁸ to Mary Ann Wellesly and others for 886-1/2 [6 ] acres, except so much of the same as stated in the Report of Sale above mentioned, said original trust being described as follows: In the 18th Report of the Trustees, filed on November 22, 1921, the trustees reported the sale of Sideros to Yonkers, but provided the following exceptions: “... excepting the part containing 106 % acres sold to R. Buey on June 26th, 1893, and the part containing 199 acres sold to William Somerville in September, 1913, and also excepting all parts of said original tract to which others may have a better title than the parties to this cause.” (Emphasis added). On July 17, 1945, the property was conveyed to appellee in joint tenancy with her father.

Following her father’s death in 1951, appellee succeeded to her father’s interest. Robert Plummer, a surveyor, testified as an expert witness for Schaffer. Appellee’s counsel asked Plummer to identify the boundaries of Sideros on a “deed plot” of Sideros, entered into evidence as a joint exhibit. The plot was prepared by Larry J. McKenzie, appellant’s expert, in 1986.

The parties also entered as a joint exhibit a survey prepared by McKenzie in 1998, which identified appellant’s proposed locations of Wolf Pen, Hornet’s Nest, and the third tract. 7 After examining that survey, Plummer testified that all three tracts were situated within the area of the Sideros patent. In Plummer’s view, however, Wolf Pen could not be located where it is described on the 1998 McKenzie plat, because Wolf Pen’s location on McKenzie’s survey does not correspond to the twentieth, twenty-first and twenty-second lines of “Sugar Creek Camp.” The following colloquy is relevant: COUNSEL FOR APPELLEE: As shown on this map that Mr. McKenzie ... Wolf Pen being down here as identified ²⁴⁹ on the map ... do you agree as a surveyor to a reasonable degree of certainty used in your trade or profession that Wolf Pen is located right here where it’s shown in this map? PLUMMER: No sir, I could not say so.

COUNSEL FOR APPELLEE: Okay. Is it your testimony then that Wolf Pen cannot be located where it’s located here based on the patent metes and bounds descriptions that you’re aware of? PLUMMER: Yes. ❖ * * COUNSEL FOR APPELLEE: Again in the [Wolf Pen] patent itself it says the beginning point runs then with the lines of Sugar Creek Camp? PLUMMER: It says adjacent to.

COUNSEL FOR APPELLEE: Lines twenty, twenty-one, and twenty-two as drawn. Then the obvious question, Is Wolf Pen as shown on this map adjacent to lines twenty, twenty-one, and twenty-two? PLUMMER: No sir. Porter’s Record Title to “Hornet’s Nest” and “Wolf Pen” Appellant obtained a deed to Wolf Pen and Hornet’s Nest in 1968.

He asserts that Hornet’s Nest and Wolf Pen were both part of the “Robinette Farm,” which his direct predecessor in title acquired by deed in 1906. Hornet’s Nest was originally patented to Thomas Beall of Samuel in 1795. Thus, the patent for Hornet’s Nest pre-dated the patent for Sideros. On December 31, 1796, Beall conveyed the property to Isaac Walton.

On April 30, 1831, appellant contends that the tract was conveyed from William Wilson, who had inherited it from Walton, to Nathan Robi-nette. ²⁵⁰ Wolf Pen was patented to Amos Robinette in 1841. A certified copy of the patent was introduced at trial as a joint exhibit. The patent provides, in its entirety: 8 Know ye that whereas Amos Robinett [9] of Allegany County has surveyed and laid out for him a tract or parcel of land called “Wolf Pen”, lying in the County aforesaid, and containing seventy one acres, by virtue of thirty-three acres, part of a common warrant for fifty-three acres, obtained by him the tenth day of January Eighteen hundred and thirty nine, as appears, as he having fully compensated for said land according to law, the State of Maryland doth therefore hereby.grant unto him the said Amos Robinett the said land called “Wolf Pen”, lying in Allegany County, aforesaid, beginning at a bounded white oak, standing on the north side of the Wolf Pen Ridge, and south thirty degrees east about fifty perches [10] from Town Creek, and running thence, south eleven degrees west twenty three perches, south seventy three degrees east thirty two perches, south sixty degrees east thirty two perches, south sixty degrees east twenty perches, south eighty degrees east forty six perches, south forty eight degrees east forty perches, to three black oak saplings, growing from one stump and marked with three notches each, north thirty four degrees east twenty eight perches, south sixty two degrees east twenty perches, north fifty eight degrees east forty perches, to the centre between a hickory and white oak marked with six notches each standing at the head of a hollow, north forty-five degrees west fifty perches, north twenty seven degrees west twenty eight perches, north sixty degrees west forty six perches, north seventeen degrees west eighty five ²⁵¹ perches, to a white oak marked with six notches, south sixty five degrees west thirty eight and one half perches, to two pines marked with six notches each, south thirty six degrees east sixty six perches, south fifteen degrees east fifty two perches, to a white oak marked with six notches, south twenty degrees west twenty eight perches, west twenty seven perches, north sixty degrees west thirty eight perches, north forty five degrees west thirty four perches, to a chestnut oak marked with six notches, then by a straight line to the beginning containing seventy one acres, according to the certificate of survey thereof taken and returned into the Western Short Land Office bearing date the eighteenth day of December Eighteen hundred and twenty nine, and there remaining together with all rights, profits, benefits and privileges therewith belonging, to have and to hold the same unto him the said Amos Robinett, his heirs and assigns forever, given under the great seal of the State of Maryland this twenty fifth day of March, Eighteen hundred and forty one. Witness the Honorable Theodorick Bland, Esquire, Chancellor.

(Emphasis added). The certificate of survey mentioned in the Wolf Pen patent was completed by Benjamin Brown, Surveyor for Allegany County, on January 18, 1829. Brown’s survey provided, in part: By virtue of thirty three acres, part of a Common Warrant for fifty three acres, granted out of the Land Office for the Western Shore to Amos Robinett of Allegany County bearing date the tenth day of January Eighteen Hundred and Twenty Nine, which said part was by [illegible], and the nineteenth day of February Eighteen Hundred and Twenty Nine, located for the said Amos Robinett, in a Book kept by me for the purpose of adjoining the twentieth, twenty first and twenty second lines of a Tract of land called “Sugar ²⁵² Tree Camps” [11] surveyed for John [illegible] Jones, and extending from said lines east for quantity. (Emphasis added).

In 1905, George W. Robinette, an heir of Amos Robinette, initiated a complaint against his co-heirs to partition the Robinette Farm. By deed dated March 20,1906, court appointed trustees of the disputed property conveyed the Robinette farm to Frank Troutman. The deed provided, in pertinent part: WHEREAS, by a decree of the Circuit Court for Allegany County, bearing date May 10th, 1905, and passed in a case in said Court depending, Whereas George W. Robinette was complainant and Jeremiah Robinette et al., were defendants, the same being No. 5652, on the Equity Docket of said Court, the above [names omitted] were duly appointed Trustees, with power and authority to sell the real estate in the proceedings in said cause mentioned. The deed described five tracts of land: “Crabtree Folly;” “Rose;” ‘Wolf Pen;” “Contention First Part;” and “Homett’s Nest.” 12 It described Hornet’s Nest and Wolf Pen as follows: 3rd, All that tract of land called Wolf Pen” and beginning for the Same at a bounded White Oak on the North side of the Wolf Pen Ridge, and running thence South 11 degrees West twenty three perches South 73 degrees East thirty two perches, South 63 degrees East 20 perches, South 80 degrees East forty six perches, South 48 degrees East forty perches to three Black Oaks, North 58 degrees East forty three perches to the centre between a Hickory and White Oak, then North 45 degrees West fifty perches, North 27 degrees West twenty eight perches, North 60 degrees West forty six perches, North 17 degrees West eighty five perches to a white Oak with six notches, South 65 degrees West ²⁵³ thirty eight and one half perches to a white Oak, then South 20 degrees West twenty eight perches, West twenty seven perches, North 60 degrees West thirty eight perches, North 45 degrees West thirty four perches to a Chestnut Oak, then by a straight line to the beginning.

Containing Seventy One (71) Acres. 5th, All that tract of land called “Homett’s Nest” And beginning at a bounded white Oak and running thence South 25 degrees West forty perches, South 51 degrees East sixty perches, North 51 degrees East twenty eight perches to a bounded Black Oak, then by a straight line to the beginning, containing Fourteen (14) Acres. [13] The deed notes that the property contained therein was “the same lands devised by the last Will and Testament of Amos Robinette ... unto his son Moses Robinette for life, with remainder in reversion to the children and heirs at law of said Moses, who have been made parties to the proceedings in aforementioned Equity case.” On December 29, 1911, Troutman conveyed the Robinette Farm to Harry H. Bible, who, in turn, conveyed it to Robert B. Lawrence on November 2, 1912. By deed dated February 24, 1920, Lawrence conveyed the property to Omar Vance. On December 2, 1944, Omar Vance conveyed the property to Ora Vance. Thereafter, on June 12, 1968, Ora Vance conveyed the property to Charles and Charlotte Burgess.

Appellant acquired his interest from the Burgesses by deed filed and recorded on June 14, 1968. The “FIRST PARCEL” conveyed in the deed is described as follows: FIRST PARCEL: ALL that tract or parcel of land containing 2621/2 acres of land more or less, situated on Town Creek near Flintstone, Allegany County, Maryland and comprising five (5) tracts of land known as “Crabtree Folly”, ²⁵⁴ a tract of land called “Rose”, and a tract of land called “Wolf Pen”, a tract of land called “Hornet’s Nest”, all of which tracts and parcels of land herein conveyed are particularly and fully described in the deed from J.W. Scott Cochran et al [sic], Trustees, to Frank Troutman by deed dated February 19,1906 and recorded in Liber 99, folio 295, one of the Land Records of Allegany County, Maryland, reference to which deed is hereby made for a more particular metes and bounds description of said parcel of land. (Emphasis added). Larry J. McKenzie testified as an expert witness for Porter.

His survey of the property, previously disputed by Plummer, placed Wolf Pen to the southeast of Hornet’s Nest, with the western edge abutting a small portion of “Contention, 1st Part.” McKenzie stated that his survey located several of the corners described in the Wolf Pen patent. He described finding the stone pile between a hickory and a white pine, which was described as the starting point of the eighth line in the Wolf Pen patent. McKenzie also explained that “the patent called for seventy one acres and we came up with 70.83.” According to McKenzie’s survey, Wolf Pen intersects but does not join the twentieth, twenty first, and twenty second line of “Sugar Creek Camp.” Adverse Possession Appellant presented various witnesses at trial in support of his claim of title to all three tracts by adverse possession. Bernard Zlomack, a forester with the Department of Natural Resources (“DNR”), testified that in 1969 Porter implemented a Forest Recourse Management Plan in which the DNR helped Porter manage the land according to guidelines established by Porter.

Zlomack testified that Porter’s objectives for his property were to manage wildlife and timber. As part of the plan, the DNR assisted Porter in the removal, harvest, and planting of trees on the property. Paul Smith, a logger, testified that in 1970 or 1971, he thinned trees for Porter in an area identified by the DNR as ²⁵⁵ “Circle 11”. It is adjacent to Trespass Road, on the tract of land called “Contention.” Harry Hartman, also a forester with the DNR, testified that he had personal knowledge of a thirty-six inch white oak tree and a rock pile on the north slope of the mountain.

He testified that a thirty-six inch white oak is approximately two-hundred years old. 14 Porter testified that, in 1972, he commissioned a perimeter survey of the area. In addition, in 1973 he extended an existing road from his home to another road traversing the property called “Tresspass Road.” Porter opened the road because the only other means of egress from Porter’s property crossed a stream and was impassable when the water was high. The new road crossed portions of Wolf Pen as well as the third tract. Porter also testified that he has “never spoken to [appellee] in the thirty years [Porter has] had the property.

Nobody ever said one word to [him] or complained about the boundary lines or anything____” Furthermore, he testified that no one used the property for recreational purposes without his permission. Ms. Schaffer also produced witnesses in support of her adverse possession claim. John Trivett testified that in the early 1950’s, before he entered military service in 1958, he cut timber for Ms. Schaffer north and south of Trespass Road. Harry Moyer, who was raised on Polish Mountain, testified that Harry Yonkers employed him in the early 1950’s to cut timber north and south of Trespass Road.

Keith Price testified that he helped Ms. Schaffer post signs on the disputed property beginning in the early 1950’s. He also testified that he has seen some signs in the past “three or four years” with Porter’s name on them. Appellee, who graduated from law school in 1942, testified that she has spent most of her life on Polish Mountain. She moved there originally in 1922 when her father purchased ²⁵⁶ Sideros.

Her residence was interrupted only by a four-year period in which she lived in England, and a brief time in the Philippines in 1959. Further, she testified that she has paid taxes on the property since she acquired an interest in it in 1945. In support of her assertion, appellee furnished tax bills in the name of appellee or her father dating from 1945 to the date of trial. Even when abroad, she stated that she mailed a signed check to the tax office in Elizabeth, Maryland; employees at the tax office “figured it up, filled it out, and paid [the taxes].” The Trial Court’s Ruling On August 1, 1998, the court granted Ms. Schaffer’s complaint to quiet title.

The order stated: “The Court determines that Plaintiff has superior record title to the property in dispute and that the defendant has failed to establish his claim of adverse possession.” A written opinion filed with the order explained the court’s findings of fact and conclusions of law. The court found that “the credible evidence, including the testimony of the parties’ respective surveyors, establishes that the disputed acreage is within the original metes and bounds description of ‘Sideros.’ There is no evidence that Plaintiff or her predecessor in title conveyed any portion of ‘Sideros’ to Defendant or his predecessors.” The court then examined the record title claims of appellant to Wolf Pen and Hornet’s Nest. Regarding Wolf Pen, the court found that even though the original patent to Wolf Pen pre-dates the patent to Sideros, appellant failed to “establish the location of Wolf Pen’ in relation to the disputed parcel.” ¡ The court said: The original warrant of resurvey indicates the parcel adjoins Lines 20, 21 and 22 of a patent known as “Sugar Tree Camp”. The surveyors for both parties agree as to the location of “Sugar Tree Camp”.

As plotted by the Defendant, “Wolf Pen” is not adjacent to these lines. Similarly, the patent of “Wolf Pen” notes its beginning point to be on the “... north side of Wolf Penn Ridge- and South thirty degrees East about Fifty perches from Town ²⁵⁷ Creek.” With a perch equalling approximately 16.5 feet, this would cause the beginning point to be approximately 825 feet from the identified creek. In contrast, the Defendant identifies the beginning point of “Wolf Pen” as being approximately 4500 feet east of the creek. Further, the Defendant places “Wolf Pen” as adjoining yet another patent identified as “Contention”.

The parties agree as to the location of “Contention”, which was surveyed in 1795. The original patent of “Wolf Pen” makes no reference to “Contention” or to any other patent other than “Sugar Tree Camp.” In summary, while the patent “Wolf Pen” is senior to “Sideros,” the Defendant has failed to establish with any reasonable degree of certainty its location. It may or may not be within the disputed area. Therefore, Defendant’s claim based on his record title must fail.

The court also concluded that the 1906 deed purporting to convey Hornet’s Nest to Frank Troutman, Porter’s predecessor in title, could not have done so, because Hornet’s Nest had never been conveyed to Amos Robinette or his heirs. The court said: Defendant’s record claim to “Hornet’s Nest” is predicated on a deed from Trustees appointed in the partition sale of the Amos Robinette Farm (No. 5652 Equity) in 1906. However, a review of that proceeding includes testimony from the Plaintiff, George W. Robinette, recorded on April 19, 1905. He was questioned regarding the property included in the farm in the following exchange: Q. What tracts belong to the farm you have mentioned not mentioned in the will of Amos Robinette, which were acquired as part of said farm not through will.

A. Contention, Rose, he bought Hornet’s Nest at Trustee’s sale but never got any deed for it he took up Wolf Pen. [Emphasis supplied] Since “Hornet’s Nest” was never conveyed to Amos Robi-nette or his heirs, the record title to the Defendant is incomplete and inferior to the title of the Plaintiff. ²⁵⁸ After considering Porter’s claim of adverse possession, the court found that defendant’s “acts of dominion on the tract” were not “sufficiently pronounced and continuous in nature to charge the record owner with notice that an adverse claim to the property was being asserted.” The court also determined that “[t]he property is unfenced and without a visible line of demarcation from other parcels.” The court observed: Evidence of posting is somewhat unclear. The Defendant testified he has posted the perimeter with no trespassing signs. However, another defense witness indicated he helped the Defendant in posting signs, but not in the area in dispute. He described the posting taking place in other portions of Defendant’s property.

Further, Plaintiff disputes that Defendant posted in the disputed area and insists she has, in fact, erected no trespass notices. In addition, the court found that Ms. Schaffer has paid taxes on the property since 1922. Further, the court rejected Porter’s claim that his implementation of the DNR Forest Resource Management Plan established an adverse use. The court reasoned: Defendant produced evidence that for a number of years he has placed his farm, including the tract in question, in a woodland management program with the State of Maryland.

The primary objectives were to provide a wildlife habitat and to improve the timber stand. As part of that plan, approximately 11,000 trees were planted in 1970. However, it appears these trees were planted in a field belonging to the Defendant which is not part of the property in dispute. As a further part of the program, trees were identified by a forester for select cutting.

These were, in fact, cut by the Defendant during the 1970’s. This involved approximately 100 trees in an area of approximately five acres. Some of this acreage was in the disputed area, but some was in other property belonging to the Defendant. The exact locations of this cutting was not established.

Such cutting in an unenclosed area does not establish adverse possession to a tract of over 200 acres. See, Malone v. Long, 128 Md. 377 , 97 A. 643 . ²⁵⁹ On November 10, 1997, the court denied Porter’s motion to alter or amend judgment. This appeal followed. We will include other facts in our discussion of the issues.

Discussion As this case was tried without a jury, we review the case both on the law and the evidence. Md. Rule 8-131(c). We will not “set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Md. Rule 8-131(c). Barnes v. Children’s Hospital, 109 Md.App. 543, 552-53 , 675 A.2d 558 (1996).

The court’s findings of fact are not clearly erroneous if they are supported by substantial evidence. Walker v. State, 125 Md.App. 48, 54 , 723 A.2d 922 (1999); Oliver v. Hays, 121 Md.App. 292, 306-306 , 708 A.2d 1140 (1998); Nicholson Air Services, Inc. v. Board of County Com’rs of Allegany County, 120 Md.App. 47, 66 , 706 A.2d 124 (1998); Sea Watch Stores Ltd. Liability Co. v. Council of Unit Owners, 115 Md.App. 5, 31 , 691 A.2d 750 , cert. dismissed, 347 Md. 622 , 702 A.2d 260 (1997). In making this determination, “we may not substitute our judgment for that of the fact finder, even if we might have reached a different result.” Oliver v. Hays, 121 Md.App. at 306 , 708 A.2d 1140 ; Nicholson Air Services, 120 Md.App. at 67 , 706 A.2d 124 . Rather, “we must assume the truth of all the evidence, and of all the favorable inferences fairly deducible therefrom, tending to support the factual conclusions of the lower court.” Oliver v. Hays, 121 Md.App. at 306 , 708 A.2d 1140 ; Mercedes-Benz v. Garten, 94 Md.App. 547, 556 , 618 A.2d 233 (1993).

The clearly erroneous standard does not apply to the trial court’s conclusions of law, however. Thus, “[p]ure conclusions of law are not entitled to any deference.” Oliver v. Hays, 121 Md.App. at 306 , 708 A.2d 1140 . Moreover, we review the trial court’s application of the law to the facts on an abuse of discretion standard. Nicholson Air Services, 120 Md.App. at 67 , 706 A.2d 124 ; Pierce v. Montgomery County, 116 Md.App. 522, 529 , 698 A.2d 1127 (1997). ²⁶⁰ Real Property Article § 14-108 governs an action to quiet title in real estate.

That section provides: Quieting title. (a) Conditions. — Any person in actual peaceable possession of property, or, if the property is vacant and unoccupied, in constructive and peaceable possession of it, either under color of title or claim of right by reason of his or her predecessor’s adverse possession for the statutory period, when his title to the property is denied or disputed, or when any other person claims, of record or otherwise to own the property, or any part of it, or to hold any lien encumbrance on it, regardless of whether or not the hostile outstanding claim is being actively asserted, and if an action at law or proceeding in equity is not pending to enforce or test the validity of the title, lien, encumbrance, or other adverse claim, the person may maintain a suit in equity in the county where the property lies to quiet or remove any cloud from the title, or determine any adverse claim. (b) Proceeding. — The proceeding shall be deemed in rem or quasi in rem so long as the only relief sought is a decree that the plaintiff has absolute ownership and the right of disposition of the property, and an injunction against the assertion by the person named as the party defendant, of his claim by any action at law or otherwise. Any person who appears of record, or claims to have a hostile outstanding right, shall be made a defendant in the proceedings.

The purpose of an action to quiet title is to “protect the owner of legal title ‘from being disturbed in his possession and from being harassed by suits in regard to his title by persons setting up unjust and illegal pretensions----’ ” Wathen v. Brown, 48 Md.App. 655, 658 , 429 A.2d 292 (1981)(quoting Textor v. Shipley, 77 Md. 473, 475 , 26 A. 1019 (1893)). In pressing such a claim, the plaintiff has the burden of establishing both possession and legal title by “clear proof.” Stewart v. May, 111 Md. 162, 173 , 73 A. 460 (1909); see Polk v. Pendleton, 31 Md. 118, 124 (1869)(stating that the claimant ²⁶¹ must prove “clear legal and equitable title to land connected with possession”). 15 A helpful notation in 65 Am.Jur.2d Quieting Title (1972 & Supp.1998) describes the various burdens of proof that traditionally apply to a quiet title action. The notation states, in part: § 78 Complainant’s burden of proof. In a quiet title action, or a proceeding to remove a cloud from title, the burden of proof rests with the complainant as to all issues which arise upon essential allegations of his complaint.

He must prove title in himself if the answer denies his title or if the defendant claims title adversely.... Complainant in a quiet title action must present clear or satisfactory proof of title to be entitled to relief; if the showing in this respect leaves judicial conscience in doubt, relief will be denied. As frequently stated, the complainant’s right to relief depends upon the strength of his own title, not upon the weakness of the title of his opponent. Thus, it has been said that a plaintiff has no interest in land if he himself does not own it, and that whomever the court determines to be the true owner is of no concern to him.

Having failed to establish title in himself, he cannot complain of insufficiency of the evidence upon which the court adjudged title to be in the defendant. § 79 Defendant’s burden of proof Where a defendant, in an action to quiet title, substantially asserts and relies upon a fact as an affirmative issue, he ²⁶² must establish such fact. The burden rests upon the defendant to establish a title which he has set up to defeat the complainant’s claim of ownership____ A patent, which is the highest evidence of title, is prima facie valid, and if its validity can be attacked at all, the burden of proof is upon the defendant to show how the patents were faulty or incomplete. (Footnotes omitted). With regard to a claim based on record title, the statute requires that the plaintiff show, at a minimum, “color of title.” “Color of title” denotes “that which in appearance is title, but which in reality is not good and sufficient title.” Gore v. Hall, 206 Md. 485, 490 , 112 A.2d 675 (1955).

In order for title based on a deed to “give color,” it must be “so far prima facie good in appearance as to be consistent with the idea of good faith on the part of the party entering under it.” Id. at 490-91 , 112 A.2d 675 . In Spicer v. Gore, 219 Md. 469, 476 , 150 A.2d 226 (1959), the Court defined “color of title” as “title papers good enough in appearance and ostensible effect to give [the party claiming title] the right to the bona fide belief they held that they owned the land.” See also Baker v. Swan’s Lessee, 32 Md. 355, 358 (1870). With these principles in mind, we turn to consider the court’s analysis of the record title claims. I. Record Title Claims A. Wolf Pen The court concluded that the patent for Wolf Pen was issued prior to the patent for Sideros.

Therefore, appellant’s record title claim to Wolf Pen ordinarily would be superior to appellee’s, because a patent gives title by relation to the date of the surveyor’s certificate. Smith’s Lessee v. Devecmon, 30 Md. 473 (1869); Steyer v. Hoye, 12 G. & J. 202 (1841); Eckhart, 25 Md.App. at 617-19 , 337 A.2d 150 . Nevertheless, the court concluded that Ms. Schaffer’s claim to the ²⁶³ land was superior to appellant’s claim, because Porter “failed to establish the location of ‘Wolf Pen’ in relation to the disputed parcel.” In reaching its conclusion, the court focused on inconsistencies between the survey prepared by McKenzie, appellant’s expert, and the description found in the 1841 patent and the 1829 survey upon which the patent was issued. As the court interpreted the 1829 survey, Wolf Pen was intended to lie parallel to the 20th, 21st and 22nd lines of “Sugar Tree Camp.” But the McKenzie survey situated Wolf Pen so that it intersected a line of Sugar Tree Camp; the survey did not show Wolf