Potomac Electric Power Co. v. Lytle

Lowe, J., delivered the opinion of the Court. Around the turn of the century William Arthur Dunkerley said that “To every man there openeth a way, and ways and a way. . . .” Over sixty years later the Potomac Electric Power Company (Pepeo) said to Lester, Paul and Margaret Lytle that the way to their property, used for more than half century, was no longer open to them. Pepco’s action left the Lytles with no access to their retreat on the Paskahansa Creek, except by water. Appellees Lester F., Paul E. and Margaret Lytle are the owners as tenants in common of a one-half interest in a three acre point of land, known as “Jones Point,” which protrudes into Paskahansa Creek.

Their interest was derived in 19-57 from Noah Lytle who was the father-in-law of Margaret and the father of Lester and Paul. Noah Lytle had acquired the property as a tenant in common with a “Mr. Menguel.” The property is improved by a house and, with the exception of the riparian boundaries, is surrounded by a four hundred and fifty-three acre farm. Since at least 1919, ingress and egress from the nearest public way (which is now Route #301) to the dominant “Jones Point” was over a dirt or gravel road crossing the servient farm then owned by John Matthews, known as “Laidloes Ferry” (more recently renamed “Rosedale”). No difficulties ever arose regarding that use for at least fifty-five years, during which Lester and Paul Lytle remembered regularly using the road.

In their youth, on nearly every weekend they were taken to “Jones Point” by their parents, and after their maturity they reciprocated by taking their parents, or they journeyed alone. Until approximately five years ⁵³² ago, these trips occurred every year throughout “[p]ractically the entire year, off and on, one or the other of us, either hunting, fishing or vacationing,” would traverse the right-of-way to the bucolic sanctuary. The appellees with or on behalf of their father maintained the right-of-way to the point. There occurred one incident when Mr. Matthews who then owned the Laidloes Ferry farm “. . . tore it [the right-of-way] up hauling crops in.

He repaired it, apologized, and repaired the road.” In 1957 appellant Pepeo, as an undisclosed principal, purchased the “Laidloes Ferry” farm. Sometime soon thereafter it also acquired the one-half interest in “Jones Point” from Mr. Menguel. In 1963 Pepeo sought to barricade the right-of-way with a chain. Lester Lytle “sawed the lock off” and “continued to use it [the right-of-way] clean up to about five years ago.” The erection of a chain link fence at that time foreclosed any further use of the access road.

With the exception of one entry, made through another road built by Pepeo, the Lytles have been reduced to occasional visits to their property by boat. During the interim their boats and furniture have been stolen and their home has deteriorated. Appellees’ sought to enjoin Pepeo from obstructing their right-of-way. The case was heard by the Honorable Joseph A. Mattingly presiding as Chancellor in the Circuit Court for Charles County.

Judge Mattingly found: “. . . that this piece of land down there had a right-of-way to it and the right-of-way came out through Pepco’s property and Pepeo can’t come in here and deny a right-of-way to that property nor depress the value of this property. Now Pepeo has had some fifteen years, as has been pointed out by counsel, has had fifteen years in which to file a petition [partition] proceeding, to file a condemnation proceeding, and has done neither. And the Court feels that it certainly would be a grave injustice to the Plaintiffs here to deny them ⁵³³ that they have a right to this property in there and deny them this right naturally would depress the value of the land to a great extent.” After reviewing the record we agree with the Chancellor that appellees met their burden of proving “an adverse, exclusive and uninterrupted use of the way for twenty years.” Zehner v. Fink, 19 Md. App. 338 , citing Condry v. Laurie, 184 Md. 317 . Burden of Proof Appellant questions the specificity of description of the way in question, and argues that the appellees failed to meet their burden by omitting “center line descriptions or metes and bounds references to the boundaries thereof. . . .” Having never questioned the physical presence or location of the right-of-way at the trial below, the issue is not before us.

Md. Rule 1085. Even assuming the necessary foundation, however, we find the way adequately described. Appellees introduced three plats all of which had the way clearly marked upon them. One was the tax assessor’s record [Planimetric Manuscript T-10915], one was a survey plat of the farm prepared by a registered surveyor in 1957 (apparently pursuant to Pepco’s purchase) and the third was a plat prepared for Pepeo pursuant to a proposed “Dolphins and Barge Unloading Dock in The Potomac River.” These plats clearly indicate the existence of the way.

Appellees are not required to introduce a precise metes and bounds description of the way, as long as its location is ascertainable. The way was shown with considerable precision on the plats. On one plat, a portion even showed locations and directions marked by surveyor’s stakes as well as metes and bounds descriptions. That the remainder was drawn by the surveyor without the metes and bounds set forth does not mean it lacked the specificity necessary to determine its location.

Appellant’s further argument that appellees failed to submit sufficient proof, focused upon an alleged discrepancy between the Lytle brothers’ testimony as to where each left ⁵³⁴ the public road to enter upon the way which crossed the servient farm. The plat markings indicated the way was Y-shaped with the base terminating at Jones Point, and each prong of the fork intersecting Route #301. On cross-examination Paul marked a different point of ingress than had Lester; however, the record shows that the matter was clarified on redirect when Paul’s recollection was refreshed and he recalled that upon entering the premises they had: “. . . passed ... to the, actually it would be to the north of [the cemetery]. Q. Now, do you find the cemetery on this map?

A. Yes, here is the cemetery. Q. Does that line up the way you recall it? The cemetery would be to the right of the — A. To the left of the road, well, to the right of the road as you come in.” Appellant relies on nothing else for its argument that plat references without markings made the testimony utterly incomprehensible on review. As Judge Thompson stated in Zehner, supra, “While the testimony is not as clear as desirable, it is sufficient for us to decide the issues as presented.” Id. at 339 .

When we consider that memories of events occurring on land as much as fifty years ago were being tested by use of maps and plats, we find the evidence reasonably clear — certainly not “utterly incomprehensible” as described by appellant. The Presumption of Adverse Use Having found that appellees met their responsibility by proving all the necessary elements of prescription, we need hardly note that in doing so they proved inter alia that they had “. . . used a roadway over the land of another openly and continuously and without objection for twenty years.” By doing so, a presumption of adverse use under claim of right arose in their favor. Zehner, 19 Md. App. at 344 . This presumption of adverse use is rebuttable by evidence of ⁵³⁵ permission or license inconsistent with a claim of right.

Wilson v. Waters, 192 Md. 221, 227 . That it rebutted that presumption is projected as appellant’s second contention, a contention with which we do not agree. Louise Matthews, daughter of John Matthews, the former owner of Laidloes Ferry, deposed before trial that she knew of no arrangements made between her father and Mr. Lytle relative to the use of the road. However, she did say that: “They have discussed it lots of times and laughed about it, and he [John Matthews] said, ‘You can always come through my property.’ He was very fond of him, [Noah Lytle] and he never expected to pass on at that time, and I don’t imagine Mr. Lytle did, and it was a verbal understanding that he was to be able to come through the property always.” Appellant complains that the Chancellor stated that in determining whether the reference to a “verbal understanding” meant permission or an expressed understanding of Mr. Lytle’s right to use the way, the