Purnell v. Beard & Bone, LLC

SHARER, J. Appellee, Beard and Bone, LLC, (Beard & Bone) filed a complaint to quiet title and for declaratory judgment against Mary Ann Cantwell (Cantwell) in the Circuit Court for Worcester County. Beard & Bone later filed an amended complaint, which added appellants, the Estate of Helen Marie Brittingham Purnell, Marion Purnell Smith, Harold William Purnell, and Eunice Purnell Williams (the Purnells), as parties. Beard & Bone, which owned a landlocked parcel of land, sought an easement by necessity over and across the properties of Cantwell and the Purnells, both of which bordered a public road. The trial court ruled that an easement by necessity had been created in 1918 and that the easement still existed.

Thus, the trial court granted Beard & Bone a 12-foot easement, with half over and across the northern most six feet of the Cantwell property and the other half over and across the southern most six feet of the Purnell property. 1 In their timely appeal, the Purnells present the following questions for our review, which we have slightly rephrased: 2 1. Was an easement by necessity created over the Purnell property where it was the first property conveyed from a common grantor, and was not the cause of the Beard & Bone property being landlocked? ⁵⁰² 2. Was there sufficient evidence of an apparent use of the purported easement to establish an implied easement by reservation? 3. Was the alleged easement by necessity over the Purnell property abandoned or extinguished by adverse possession? 4.

Does the doctrine of laches preclude Beard & Bone from seeking to establish an easement by necessity? For the reasons discussed, we shall affirm the judgment of the circuit court. BACKGROUND The Beard & Bone property consists of approximately 51 acres located west of Evans Road, a public road in Worcester County. It was acquired by Beard & Bone at auction in 2007.

The property had been used for timber and hunting. John Andrews, a registered land surveyor, surveyed the Beard & Bone, Cantwell, and Purnell properties, and other nearby properties, and determined that the Beard & Bone property did not connect to a public road or to any private roads with access to a public road. The Cantwell and Purnell properties, which are contiguous along their respective northern and southern boundaries, are located to the east of the Beard & Bone property and thus lie between the Beard & Bone property and Evans Road. Andrews testified that the most direct or reasonable route to access a public road from the Beard & Bone property was across the Purnell and Cantwell properties.

He explained that the right of way would have to be 12 to 14 feet wide because if the timber were to be harvested from the Beard & Bone property, the “timber trucks are going to need every bit of that.” Susan Pusey, qualified as an expert in title abstracting, testified that she prepared chains of title for the Beard & Bone, Cantwell, and Purnell properties. All three properties were originally owned by James Givans as one parcel. Givans transferred the entire tract to Orlando Harrison and George A. Harrison (the Harrisons). On July 19, 1918, the Harrisons divided the parcel, selling off the Purnell property to the ⁵⁰³ Purnells’ predecessor in title and the Cantwell property to Cantwell’s predecessor in title.

The Harrisons retained, inter alia, what is now the Beard & Bone property. There was evidence that the Harrisons later operated a nursery on the property, because in 1929 they transferred the present Beard & Bone property to Harrisons’ Nurseries, Inc. The deeds conveying the Purnell and Cantwell properties were executed and dated the same day—July 19, 1918. They were also recorded in the same book but, of necessity, one recording preceded the other. That is, the Purnell deed was recorded at page 303 of the deed book, and the Cantwell deed was recorded at page 307.

Neither deed reserved any express right of way or easement allowing the Harrisons, or their successors in title, to access a public road across the Purnell or Cantwell properties. Richard Rice, an owner of Beard & Bone, testified that the Beard & Bone property was landlocked. Rice stated that when Beard & Bone bought the property at auction, he was aware that there were problems with access. Rice had attempted, unsuccessfully, to obtain a right of way from a neighbor to the north.

The Beard & Bone property is subject to a conservation easement and its current uses are limited to timber and hunting. Rice stated that the requested 14-foot easement across the Purnell and Cantwell properties was the shortest route to a public road. The current owners of the Purnell property acquired title in 2008 through the estate of their mother, Helen Marie Britting-ham Purnell who, as a tenant by the entirety with her late husband, acquired title in 1951. Harold Purnell, one of the current owners, testified that he has been farming the property for about 50 years and has been familiar with the Purnell property his entire life.

He stated that he went by the Purnell property “maybe daily[,]” farmed the ten acres of cleared land on the property, and leased out the wooded acreage to hunters. Harold Purnell testified that he had never seen anyone access the Beard & Bone property through the Purnell prop ⁵⁰⁴ erty or by any road, path, or trail across the Purnell Property. He added that “no trespassing” signs were posted at the front of the Purnell property along Evans Road and that the entrances to the Purnell property had chains across them. Harold Purnell further testified that the timber had been cut from the Beard & Bone property “about ten years ago” and that access was gained through the Widgeon property, to the north, and not across the Purnell property.

He added that a drainage ditch was located on the Purnell property line where Beard & Bone wanted to place the easement. Calvin Purnell, Harold Purnell’s son, testified that he had helped his father farm the Purnell property for the past 20 years. During that time, he would go by the property three or four times per week. Calvin Purnell also recalled that he had never seen anyone access the Beard & Bone property from the Purnell property, or seen any indication on the Purnell property that someone was using it to access the Beard & Bone property.

He also stated that “no trespassing” signs were posted on the Purnell property. Dawn Webb testified that she had been the immediate predecessor in title to Beard & Bone. She stated that the property did not have access to a public road and that it was made clear to all potential purchasers that the property was landlocked. She added that her father, from whom she acquired title, had cut the timber on the property several years ago, but that he had not gained access to the property by crossing the Purnell property.

Webb also testified that as far as she knew, her father had never gained access by crossing the Purnell property. Webb had never been on the property when her father owned it, or when she owned it. Cantwell testified that she had been familiar with the Cant-well property all of her 51 years and that no one had ever accessed the Beard & Bone property by crossing the Cantwell property. Standard of Review This Court, in Rau v. Collins, 167 Md.App. 176, 184-85 , 891 A.2d 1175 (2006), set forth the relevant standard of review: ⁵⁰⁵ When, as in the case at bar, an action has been tried without a jury, the appellate court will review the case on both the law and the evidence.

It 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. Maryland Rule 8-131. Easements by Necessity Resolution of this appeal implicates the doctrine of easements by necessity. “An easement is broadly defined as a nonpossessory interest in the real property of another.... ” Boucher v. Boyer, 301 Md. 679, 688 , 484 A.2d 630 (1984) (citations omitted). “In general, the terms ‘easement’ and ‘right-of-way’ are regarded as synonymous.” Miller v. Kirkpatrick, 377 Md. 335, 349 , 833 A.2d 536 (2003) (citation omitted). “An easement may be created by express grant, by reservation in a conveyance of land, or by implication.” Kobrina L.L. C. v. Metzger, 380 Md. 620, 635 , 846 A.2d 403 (2004). At issue in the present case is a form of implied easement, an easement by necessity.

See Hancock v. Henderson, 236 Md. 98, 102 , 202 A.2d 599 (1964) (“Ways by necessity are a special class of implied grants and have been recognized in this State for a good many years.”) “[I]mplied easements by necessity arise from a presumption that the party needing the easement should have access over the land.” Calvert Joint Venture #140 v. Snider, 373 Md. 18, 39-40 , 816 A.2d 854 (2003). The doctrine of easements by necessity “is based upon public policy, which is favorable to full utilization of land and the presumption that parties do not intend to render land unfit for occupancy.” Condry v. Laurie, 184 Md. 317, 321 , 41 A.2d 66 (1945); see also Rau v. Collins, 167 Md.App. 176, 186 , 891 A.2d 1175 (2006) (citations omitted) (“Full utilization of land is favored, and it is presumed that parties do not intend to render conveyed property unfit for occupancy.”) Recently, in Sharp v. Downey, 197 Md.App. 123, 167 , 13 A.3d 1 (2010), cert. granted, 419 Md. 646 , 20 A.3d 115 (2011) (footnote omitted), this Court explained: ⁵⁰⁶ The public policy exists in recognition that to allow a landlocked parcel inadvertently to be created affects not only the initial owner of that parcel, but every subsequent owner as well. By cutting off the land from all access to public ways, landlocking a parcel renders the land unuseable for virtually any future purpose. Despite this public policy, “the law does not prohibit one from cutting himself off from all access to his land.” Shpak v. Oletsky, 280 Md. 355, 364-65 , 373 A.2d 1234 (1977) (citation omitted). “The determination that the parcels were once a unitary tract of land and owned by a common grantor is critical to finding an implied easement by necessity.” Rau, 167 Md.App. at 190 , 891 A.2d 1175 .

Stated another way, “[i]n order to establish a right of way of necessity, it must be shown that sometime in the past the land for the benefit of which the easement is claimed and that over which it is claimed belonged to the same person.” Michael v. Needham, 39 Md.App. 271, 275 , 384 A.2d 473 (1978) (citation omitted); see also Shpak, 280 Md. at 361 , 373 A.2d 1234 (“An easement by implied reservation must arise at a time when there is unity of title.”) (Citations omitted); Oliver v. Hook, 47 Md. 301, 310 (1877) (“[A] right of way of necessity can only be raised out of the land granted or reserved by the grantor, and never out of the land of a stranger.”) There are two types of easements of necessity, implied reservation and implied grant. Shpak, 280 Md. at 360 , 373 A.2d 1234 . “[G]rants of easements by implication are looked upon with jealousy and are construed with strictness by the courts.” Condry, 184 Md. at 321 , 41 A.2d 66 (citation omitted). The case before us involves an easement by implied reservation, and “[t]he rule with respect to implied reservations is much more strict than that with respect to implied grants.” Hansel v. Collins, 180 Md. 209, 215 , 23 A.2d 686 (1942). “It is only in cases of the strictest necessity, and where it would not be reasonable to suppose that the parties intended the contrary, that the principle of implied reserva ⁵⁰⁷ tion can be invoked.” Burns v. Gallagher, 62 Md. 462, 472 (1884) (emphasis in original and citations omitted); see also Mitchell v. Houstle, 217 Md. 259, 264 , 142 A.2d 556 (1958) (“From a very early date, a distinction has been made between an implied grant and an implied reservation, with the rule being much more strict when called upon to create an easement by implied reservation than to create one by implied grant.”) In McTavish v. Carroll, 7 Md. 352, 359 (1855), the Court of Appeals set forth the basic contours of an easement by implied reservation: “[W]here a man owns two closes, A and B, with a road from A over B, to the highway, and he sells close B, without reserving, in the deed, any right of way, if he has no other road, he may use the one over B as a way of necessity.” Although this language of strictness is used in regard to easements by implied reservation, “Maryland has accepted the general rule that where there is a grant of land without any express reservation of an easement, a reservation is implied if the easement is reasonably necessary for the fair enjoyment of the property.” Greenwalt v. McCardell, 178 Md. 132, 138 , 12 A.2d 522 (1940) (citations omitted). The Court of Appeals has also described the required necessity to be “imperative and absolute,” Shpak, 280 Md. at 361 , 373 A.2d 1234 (citations omitted), but then explained the importance of the intention of the parties: “ ‘It is not the necessity which creates the right of way, but the fair construction of the acts of the parties.’ The necessity merely furnishes evidence as to the real intention of the parties. ‘For the law will not presume that it was the intention of the parties that one should convey land to the other in such manner that the grantee could derive no benefit from the conveyance; nor that he should so convey a portion as to deprive himself of the enjoyment of the remainder.

The law under such circumstances will give effect to the grant according to the presumed intent of the parties.’ ” ⁵⁰⁸ Shpak, 280 Md. at 361-62 , 373 A.2d 1234 (quoting L. Jones, Easements § 304 at 250) (footnotes omitted). In other words, “an implied easement is based on the presumed intention of the parties at the time of the grant or reservation as disclosed from the surrounding circumstances rather than on the language of the deed.” Boucher, 301 Md. at 688 , 484 A.2d 630 (citation omitted). Thus, the necessity does not give rise to the easement; instead, it serves as evidence of the parties’ intentions. Rau, 167 Md.App. at 190 , 891 A.2d 1175 (citation omitted); see also Koch v. Strathmeyer, 357 Md. 193, 198 , 742 A.2d 946 (1999) (“The standard of proof necessary to establish an implied easement ... is the ‘clear manifestation’ of the intent of the common grantor.”) (Quoting Williams Realty Co. v. Robey, 175 Md. 532, 539 , 2 A.2d 683 (1938)); Greenwalt, 178 Md. at 139 , 12 A.2d 522 (“Necessity of itself does not create a right of way; it is merely a fact offered in evidence to show an intention to establish a right of way by raising the presumption of a grant.”) In order to ascertain the intention of the parties, courts may consider extraneous factors.

Boucher, 301 Md. at 688 , 484 A.2d 630 . “Intention ‘is a question of fact,’ and the surrounding circumstances of the case must be analyzed in order to truly understand an unexpressed intention.” Koch, 357 Md. at 198 , 742 A.2d 946 (quoting Scholtes v. McColgan, 184 Md. 480, 489 , 41 A.2d 479 (1945)) (one citation omitted). But see Stansbury v. MDR Development, L.L.C., 390 Md. 476, 489 , 889 A.2d 403 (2006) (“ ‘The intent to create the easement is ... deemed to be shown by the type of transaction involved, and no other evidence is necessary to establish the intent of the parties to create a way of necessity.’ ”) (Quoting 3 Herbert T. Tiffany, The Law of Real Property, § 793 (3rd ed.1939, 2004 Supp.)). Further, the implied reservation is based on the intention of the parties at the time of the conveyance. See Boucher, 301 Md. at 688 , 484 A.2d 630 (“An implied easement is based on the presumed intention of the parties at the time ⁵⁰⁹ of the grant or reservation as disclosed from the surrounding circumstances rather than on the language of the deed.”) (Citation omitted); Hancock v. Henderson, 236 Md. 98, 102 , 202 A.2d 599 (1964) (“[RJemote grantees ... cannot create the way of necessity.

If the way of necessity was not implied at the time of the [original] grant ..., it cannot be established by a subsequent necessity. In other words, the necessity must be determined from the conditions as they existed at the time of the conveyance.”) (Citations omitted); Feldstein v. Segall, 198 Md. 285, 294 , 81 A.2d 610 (1951) (“If a way of necessity is not implied in the grant, it cannot be established by any subsequent necessity.”); see also Shpak, 280 Md. at 356 , 373 A.2d 1234 (“the date for determining whether a way of necessity was created by an implied reservation was that of the contract between the original parties and not that of the ultimate deed.... ”); Michael, 39 Md.App. at 277-78 , 384 A.2d 473 (relying on Shpak , to conclude that the date for determining whether a way of necessity was created was that of the contract between the original parties and not the date of the deed or the date of recordation). The easement also passes with each conveyance to subsequent grantees. Hancock, 236 Md. at 105 , 202 A.2d 599 .

As a result, “a remote grantee of land not being used at the time of severance may nevertheless, when the use becomes necessary to the enjoyment of his property, claim the easement under his remote deed.” Id. (citation omitted). In other words, “non-use alone is not sufficient to extinguish a way by necessity.” Id. (citation omitted). “Easements by necessity normally cease to exist when the necessity for the easement ceases.” Stansbury, 390 Md. at 491 , 889 A.2d 403 (citation omitted).

As a preamble to our resolution of the issues before us, we have engaged in a lengthy discussion of the concept of easements by necessity. The Court of Appeals has succinctly set forth the three basic requirements: The prerequisites to the creation of an easement by necessity can be summed up in three parts: (1) initial unity ⁵¹⁰ of title of the parcels of real property in question; (2) severance of the unity of title by conveyance of one of the parcels; and (3) the easement must be necessary in order for the grantor or grantee of the property in question to be able to access his or her land, with the necessity existing both at the time of the severance of title and at the time of the exercise of the easement. Stansbury, 390 Md. at 489 , 889 A.2d 403 . DISCUSSION 1.

Implied easement by necessity—the Purnell and Cant-well properties The Purnells deny the existence of an easement. That is so, they assert, because when the deed conveying the Purnell property to their predecessor in title was recorded, the Beard & Bone property and the Cantwell property were still under common ownership. According to the Purnells, it was only when the deed to the Cantwell property was recorded, i.e., the Cantwell property was severed from the property retained by the Harrisons, that an easement of necessity arose because the Beard & Bone property then became landlocked. The Purnells thus claim that it was the Harrisons’ conveyance of the Cantwell property that caused the Beard & Bone property to become landlocked.

They contend that because the Harrison-Cantwell deed was recorded later than the Harrison-Purnell deed, the Cantwell property was conveyed subsequent to the Purnell property. As a result, they posit, any easement by necessity exists only over the Cantwell property. The Purnells refer us to Stair v. Miller, 52 Md.App. 108 , 447 A.2d 109 (1982), which we discuss, infra, in support of their position. The Purnells allege that, in the absence of any evidence as to when the parties contracted, the time of recording of the deed controls the severance. 3 Thus, they assert, because the ⁵¹¹ deed to the Purnell property was recorded before the deed to the Cantwell property, an easement, to the extent that it exists in favor of Beard & Bone, exists exclusively over the Cantwell property.

Beard & Bone contends that the Harrisons’ unity of title in the three properties was severed on July 19, 1918, by the separate Purnell and Cantwell deeds. Beard & Bone asserts that the fact that the Harrison-Purnell deed was recorded four pages prior to the Harrison-Cantwell deed does not indicate an intent by the Harrisons to have established a conveyance priority. Beard & Bone claims that the Purnells presented no evidence sufficient to demonstrate that the Pur-nell property was intentionally conveyed and recorded prior to the Cantwell property, or that the easement by necessity could not exist over the Purnell property. Beard & Bone argues that Stair, supra, is inapposite to the present case because, unlike Stair , the Cantwell and Purnell properties were conveyed on the same day and, as found by the trial court, the Harrisons’ unity of title was severed by those conveyances on July 19,1918.

The Purnells respond that Stair stands for the proposition that the first property transferred by a common grantor and recorded among the land records cannot be subject to an easement by necessity, relying on the order of recordation, which placed the Purnell deed in the Land Record book before the Cantwell deed. The Purnells argue that when a deed is recorded, the property is deemed to be transferred, even if the deed is dated the same day as the deed to another property from a common grantor. According to the Purnells, the first property conveyed from a common grantor and recorded could not be subject to an easement by necessity. The Purnells also note that Maryland is a race-notice jurisdiction.

Thus, they claim, the Purnell deed, which was recorded first, would take priority over the Cantwell deed, recorded later, albeit in the same book on the same day. That fact, they assert, defeats an easement by necessity. ⁵¹² In granting an easement by necessity in favor of the Beard & Bone property, the Circuit Court issued a written Opinion and Order, which provided in relevant part: The Harrisons, as original grantors, severed the original parcel into three parcels on July 19, 1918. Two parcels were conveyed to [the Purnells’ and Cantwell’s] predecessors in title and the other was retained by the Harrisons, for their own use. [Beard & Bone] now owns the parcel originally retained by the Harrisons. Neither deed expressly reserved any access for the Harrisons, as grantors, to or from [Beard & Bone’s] parcel through the lands of [the Purnells and Cantwell].

Therefore, this Court will only address the issue of whether the Harrisons, as original grantors, reserved unto themselves an easement of necessity by implied reservation. This Court finds that the requisite unity of title existed when the three parcels were owned as one by the Harrisons. On July 19, 1918, the Harrisons conveyed two parcels by deed and retained one parcel for themselves. The Pur-nell[s’][ ] counsel argues that because the Purnell[s’][ ] deed was recorded four pages prior to [ ] Cantwell’s no unity of title existed.

However, both deeds were executed on July 19, 1918. The fact that one deed was recorded four pages earlier than the other evidences nothing more than a possible shuffling of pages by the clerk. Ultimately, both parcels were conveyed on July 19, 1918 and there was unity of title when the parcels at issue here were conveyed by the Harrisons. As to the necessity of the easement, there is no dispute that the property is currently landlocked, with no access to any public road.

At the time of severance of the parcels, [Beard & Bone’s] parcel was retained by the original grant- or, the Harrisons, who must have had some access to and from the parcel, as there was testimony that the Harrisons operated a nursery at one time on the property. No ⁵¹³ testimony was provided as to where or what access entailed, but this Court finds that the Harrisons did not intend that the parcel be landlocked. It is certainly possible that the Widgeon property was the means utilized by the Harrisons and future title holders up to the point where the Widgeons revoked whatever right they had granted to [Beard & Bone’s] predecessor in title. However, what [Beard & Bone’s] predecessors may or may not have had with respect to the Widgeon property [the property to the north of the Bear'd & Bone Property] is not before this Court, and an easement by necessity cannot be granted through the lands of a stranger who does not share a common grantor....

Any license or otherwise that [Beard & Bone’s] predecessors in title might have enjoyed as a means of ingress and egress through the Widgeon property is not before this Court and has apparently been revoked, as evidenced by Dorothy Widgeon’s statement that she would not allow access [through] her property. Any remnants of a dirt road that may or may not have provided access to [Beard & Bone’s] parcel have long since been stolen back by time and no one can remember for certain if it was even there to begin with or if it provided access to a public road. Additionally, it appears that any dirt road that existed may have run through the lands of a party that did not share a common grantor with [Beard & Bone’s] parcel. Therefore, this Court finds that a strict necessity existed at the time of severance and exists today, as [Beard & Bone’s] parcel currently has no access to a public road.

Regardless of any licensed, or otherwise, access to the parcel the Harrisons or their future title holders might have shared at the time of severance of the parcels, this Court finds that the necessity was created at the time of the severance of the parcels at issue. Unfortunately, the parties to the original deeds are no longer alive to shed light on the location of any easement as ⁵¹⁴ it existed at the time of severance of the parcels. Therefore, we have no testimony or evidence of whether any easement was apparent at the time of the original severance. It is possible that the Harrisons and [the Purnells’ and Cantwell’s] predecessors in title were aware of and could locate an easement by necessity that was apparent and existed at the time of the severance.

Admittedly, the reverse could also be true. [The Purnells and Cantwell] testified, some remembering as far back as 50 years ago that as long as they could remember, no road or path has ever run through their parcels to the benefit of [Beard & Bone’s] parcel. In fact, no one was able to produce any evidence as to how [Beard & Bone’s] predecessors in title accessed the parcel other than by testimony from more recent memory, which showed that the parcel was accessed through the lands of the Widgeons for removing timber. No surveys were done of [] Cant-well’s parcel or of the Purnellf’s] parcel. This Court cannot speculate as to whether such surveys would have produced any evidence to support either an argument for or against the location of an easement.

Still, this Court presumes that the Harrisons, as original grantor, did not intend to lock their property out from means of access to a public road. While this Court is mindful that [Beard & Bone] purchased the parcel knowing that access to the property was undefined and may be landlocked, the Court does not find such acknowledgment dispositive of [its] claim. It seems wholly unrealistic and unreasonable to this Court that the Harrisons intended [Beard & Bone’s] parcel be landlocked with no access, especially considering that the parcel had once been a nursery. Turning, finally, to the location of the easement, because this Court finds that the three parcels were severed on the same day, this Court believes that the most fair and equitable resolution is for both Defendants’ parcels to share the burden of the easement.

Therefore, this Court shall grant [Beard & Bone] a twelve-foot easement, with conditions, ⁵¹⁵ through the [Purnell and Cantwell] parcels, which burden shall be shared equally.... The intentions of the common grantor control the creation, or non-creation, of an easement of necessity. If a common grantor conveys the two parcels of his or her property on the same date, the ability of one grantee to record the deed prior to that of the other grantee would frustrate the intentions of the parties. The Purnells’ suggestion that we consider the page on which the deeds were recorded to determine that the properties were not severed at the same time would frustrate the intentions of the common grantor, absent credible evidence to the contrary.

Other than the recorded deeds, there are no documents, such as a contract of sale or other memoranda, from which the court might infer intent. As we have noted, the deeds were executed on the same date and subsequently recorded, again on the same date. Of necessity, when both deeds were presented to the land records clerk one would naturally precede the other in the deed book—if for no other reason than by whim of the clerk. Absent other evidence, we cannot agree with the Purnells’ conclusion that the order of recordation bears on the intent of the parties.

In Stair , Miller owned a six-acre parcel without road frontage. Id. at 109 . Two properties, one owned by Stair and another owned by a third party, Koontz, separated the Miller property from two public roads. Id.

The circuit court granted Miller a right of way over the Stair property. Id. On appeal, Stair claimed that the circuit court erred in granting an easement of necessity over the Stair property when there was a right-of-way then existing over the Koontz property. Id.

We concluded that the circuit court had committed no error and explained: Although all the properties herein involved were at one time owned by a single ownership, the Koontz land was sold off prior to that of the lands of the remaining parties hereto and at that time all parcels had road frontage; therefore, ⁵¹⁶ there can be no right-of-way by necessity over the Koontz land. Id. at 110 (citations omitted). Stair offers the Purnells no relief because the recordation date had no impact on our decision in that case. Rather, the import was that the Koontz property had been sold off before the Miller and Stair properties.

In the present case, the Purnell and Cantwell properties were conveyed on the same day. There is simply no indication that the Purnell property was conveyed prior to the Cantwell property, or that the order of recordation established a priority. We have not uncovered a single easement-by-necessity case in which the court relied not just on the date of recordation, but the page in the deed book in which the deed was recorded to determine the order of severance of the parcels. Nor, do the Purnells refer us to any such case.

Indeed, in Michael v. Needham, 39 Md.App. 271 , 384 A.2d 473 (1978), we declined to consider the date of recordation in determining when the way of necessity arose. Id. at 277 , 384 A.2d 473 . There, the deed was recorded more than eight years after the contract for the sale of the property. Id.

We explained that if we relied on the date of recordation, we would be required to determine that the right of way arose, if at all, by reason of an implied reservation of the easement rather than by implied grant, and we would be required to test the creation of the right of way by the stricter standard of necessity. Id. In addition, we relied on Shpak, supra, in which the Court of Appeals determined that the date of the contract controlled for determining whether a way by necessity was created by implied reservation. Id. at 277-78, 384 A.2d 473 .

See Shpak, 280 Md. at 356 , 373 A.2d 1234 (“the date for determining whether a way of necessity was created by an implied reservation as that of the contract between the original parties and not that of the ultimate deed which came after a period of litigation.”) ⁵¹⁷ Easements of necessity are determined from conditions that existed at the time of the conveyance. See Mitchell v. Seipel, 53 Md. 251, 274 (1880) (“Whether it is a way of necessity or not, must depend upon the state of things existing at the date of the deed....”) There was no evidence before the circuit court that could result in a conclusion that any date other than July 18,1918, is relevant to the determination of the easement. We conclude that the trial court committed no error in ruling that the Purnell and Cantwell properties were conveyed at the same time, which severed the unity of title held by the Harrisons. 2. Sufficiency of the evidence, vis a vis, the Purnell property The Purnells’ tack was to limit the easement, if in fact the court found the existence of an easement, to the Cantwell property.

They assert that the trial court erred in finding that there was an easement by necessity because there was no evidence that the easement was apparent in 1918 at the time the unity of the Harrison tract was severed. According to the Purnells, the Court of Appeals made clear in Burns v. Gallagher, 62 Md. 462 (1884), that an easement by implied reservation must be apparent at the time of its creation. They note that the easement is not apparent today and that there was no evidence demonstrating that the Beard & Bone property was ever accessed through the Purnell property. In essence, they argue that “apparent” means physically or visually apparent on the ground.

They contend that Hancock v. Henderson, 236 Md. 98 , 202 A.2d 599 (1964), is distinguishable because the easement of necessity at issue there was one of implied grant and not implied reservation. Further, in Hancock , there was evidence of a road over the servient property. Beard & Bone responds that the trial court correctly found the three requirements for the existence of an easement: (1) unity of title; (2) severance of that original unity of title by the conveyances to Purnell and Cantwell; and (3) the easement ⁵¹⁸ was necessary for the Harrisons to have continued access to their remaining parcel. In any event, Beard & Bone assert that the evidence was sufficient to establish that the easement satisfied the “apparent” requirement at the time of its creation.

Beard & Bone posits that the easement was apparent because an examination of the property would have revealed that the Beard & Bone property was landlocked. Beard & Bone claims also that an examination of the Harrisons’ retained property at the time of severance would have revealed a lack of access to a public road and the necessity for an easement. Beard & Bone also asserts that the Purnells’ argument that the easement be apparent at the time of its creation ignores the public policy underlying easements by necessity, i.e., favoring full utilization of land and the presumption that parties do not intend to render land unfit for occupancy. Thus, Beard & Bone concludes that the trial court committed no error in recognizing the easement by implied reservation, relying on Hancock v. Henderson, 236 Md. 98 , 202 A.2d 599 (1964), in support of its position.

In Burns v. Gallagher, 62 Md. 462, 470-71 (1884), the easements in question, an alley and a drain, were, at the time of the conveyances, “in existence, open and apparent, and in constant use” until one of the successors in title closed the alley and obstructed the drain. The question before the Court of Appeals was “whether the defendants [who had blocked the alley and obstructed the drain] took their lot subject to the long existing, open and apparent quasi easement or servitude, for the benefit of the adjoining lot previously purchased by the party under whom the plaintiffs [the defendants’ neighbors who were blocked from using the alley and whose drain was obstructed] claim?” The properties had once been held by a common grantor, who had retained the defendants’ property when he conveyed the plaintiffs’ property. Id. at 469-70 . ⁵¹⁹ To be sure, in Burns, 62 Md. at 471-72 , the Court of Appeals explained: For the principle is well settled, and it is founded in reason and good sense, that no easement or quasi easement can be taken as reserved by implication, unless it be de facto annexed and in use at the time of the grant, and it be shown moreover to be actually necessary to the enjoyment of the estate or parcel retained by the grantor. And such necessity cannot be deemed to exist if a similar way or easement may be secured by reasonable trouble and expense, and especially not if the necessary way or easement can be provided through the grantor’s own property.

In order to give rise to the presumption of a reservation of an existing easement or quasi easement, where the deed is silent upon the subject, the necessity must be of such strict nature as to leave no room for doubt