Rau v. Collins

DAVIS, J. FACTUAL BACKGROUND AND LEGAL PROCEEDINGS Appellant, David Rau, filed a petition in the Circuit Court for Baltimore City to quiet title to a parcel of property (hereinafter “the subject property” or “the disputed property”) on January 7, 2004. Named in the petition were fifteen defendants, including appellee, Brenda Collins, whose property abuts that of appellant. The subject property, 3532 Frederick Road, is a 40' x 14' improved lot which fronts on Frederick Road and a macadam driveway provides access to the rear of the Rau lot. Appellee was the fee simple owner of 3600 Frederick Avenue (hereinafter the “Collins lot”) which, along with a parcel owned by Alphea Sanders, shares a common northern border with the disputed property, while the southern border of Rau’s property is contiguous with the subject property.

Appellant’s petition alleged a continuous, visible, notorious, and hostile possession of the subject property for more than twenty years, adverse to the claims of the defendants and all other persons. The trial date, set for May 10, 2004, was postponed until August 10, 2004, to allow appellee to obtain counsel. When appellee appeared without counsel on the new trial date, the circuit court, Nance, J., nevertheless commenced the trial, admitting the de bene esse deposition (Merkel Deposition) of a member of the family of the predecessors in interest in the Rau lot, Gerhardt Merkel. According to the Merkel deposition, which was read into evidence, relatives of a predecessor in interest to Collins, the daughter and son-in-law of a Mrs. Rush, had used the subject driveway with permission in the sixties, and they had built a parking pad on the lot.

A chain link fence was constructed in 1967, between the driveway on appellant’s property and appellee’s property, leaving no access to the parking pad. Appellee testified that there was parking on the street in front of her house. During her closing argument, appellee stated, “fajnd I don’t shovel the snow out the driveway, because I don’t have a car. I don’t go up ¹⁸⁰ through the driveway and when I walk up there, I walk through on the side of my house.

So, there’s no reason for me to get out there and shovel snow on the driveway that I don’t have a car.” After ruling from the bench that appellee had a right of ingress and egress over the Rau driveway, the trial judge continued the hearing to determine whether the driveway in question was private property or a public street. After a brief proceeding on November 17, 2004, in which the court ruled that appellee should be granted an easement by necessity “to give this lady an easement for access to the pad behind her house,” the court again continued the case in order to determine whether the driveway was public or private. On December 13, 2004, appellant filed a trial memorandum in which he opposed the court’s ruling, granting appellee an easement by necessity. The purpose of the continuance, having been satisfied by the appearance of counsel for the City who confirmed that the driveway was a private driveway, the court allowed “[appellee’s] lawyer to submit whatever he does in writing with [appellant] to have an opportunity to respond to it.” On February 16, 2005, appellee filed her Trial Memorandum in Support of Prescriptive Easement, to which appellant answered by filing his Response to Trial Memorandum in Support of Prescriptive Easement. 1 In that same trial ¹⁸¹ memorandum, appellee concedes that there is no factual basis to support an argument that she should have an easement by necessity over the Rau driveway.

On April 22, 2005, the circuit court filed its Memorandum Opinion and Order, granting title to the disputed parcel to appellant, but granting an implied easement to appellee. The court ruled: This case comes before this Court on a Petition to Quiet Title of property by asserting adverse possession. In 1988, [Appellant] (“Rau”) purchased, in fee simple absolute, property commonly known as 3532 Frederick Avenue. Boundaries of the said parcel are defined by a chain link fence that is shared by adjacent properties.

On May 26, 1999[sic], [Appellee] (“Collins”) purchased a single family home, known as 3600 Frederick Avenue. [Ap-pellee]^ property is adjacent to [Appellant’s Property. This matter was originally scheduled before this court as part of the expedited docket. A hearing was begun on May 6, 2004, at which time, the case was continued on August 10, 2004. On August 10, 2004, a full hearing was held, with testimony and evidence introduced into the record.

This court finds that [Appellant] presented sufficient evidence to establish adverse possession of a portion of land in the rear of 3600 Frederick Avenue. This land is established as a section, fourteen feet by forty feet, north of the chain link fence enclosing [Collins]’s rear yard. In the matter of quiet title, there remained the question of the use of a driveway duly deeded to [Appellant], immedi ¹⁸² ately adjacent to [Appelleej’s property. [Appellee] possesses a concrete parking pad for her vehicle within a defined portion of her rear yard. The only means of [Appellee] to access her parking pad is by way of the driveway. [There exists little to no curbside parking in the area of the subject property].

At issue is whether this [Appellee] has the right-of-way and use of this portion of [Appellant’s property for ingress and egress to her parking pad. This court questioned whether the driveway was city property, as it appears to be, by appearance in photo exhibits, that it might be or may have been a city street or alleyway. In a hearing on December 14, 2004, the City of Baltimore, by its attorney, appeared and informed the Court that the subject driveway was not city property and that the City of Baltimore had no property interest. DISCUSSION In general, “easement” and “right-of-way” are regarded as synonymous.

Miller v. Kilpatrick[Kirkpatrick], 377 Md. 335, 349 , 833 A.2d 536, 544 (2003) (citing Chevy Chase Land Co. v. United States, 355 Md. 11 [0], 126, 733 A.2d 1055, 1063 (1999)). The Court of Appeals has broadly defined an easement as a “nonpossessory interest in the real property of another.” Calvert Joint Venture # 140 v. Snider, 373 Md. 18, 39 , 816 A.2d 854 (2003) (citing Boucher v. Boyer, 301 Md. 679, 688 , 484 A.2d 630, 635 (1984)). Easements may be created by express grant or by implication. Shpak v. Oletsky, 280 Md. 355, 360-61 , 373 A.2d 1234 (1977).

Necessity of an easement is one way in which an implied easement is created. Hancock v. Henderson, 236 Md. 98, 102 , 202 A.2d 599, 601 (1964). Evidence presented indicates that there is no alternative access to the said concrete parking pad within [Appelleej’s rear yard, absent the driveway. From the evidence presented by [Appellant], the prior owner of [Appelleej’s property freely and fully utilized the said driveway for ingress and egress to this concrete parking pad in the rear of [Appelleej’s dwelling.

The Court of Appeals observed that ¹⁸³ “[a]n 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,” and that, “[a]s a result, courts often refer to extraneous factors to ascertain the intention of the parties.” Kobrine L.L.C. v. Metzger, 380 Md. 620, 638 , 846 A.2d 403, 414 (2004) (internal citations omitted). This court, having fully considered the evidence before it, finds that a grant of an implied easement of necessity to access the parking pad was the presumed intent of the owner of the property prior to [Appellant], As successor in interest to the said property known as 3600 Frederick Avenue, [Appellee] possesses an easement that permits the use of the driveway as the dominant estate, with [Appellant] maintaining the servient estate. “In every instance of a private easement — that is, an easement not enjoyed by the public — there exists the characteristic feature of two distinct tenements — one dominant and the other servient.” Miller v. Kilpatrick[Kirkpatrick], 377 Md. 335, 349 , 833 A.2d 536, 544 (2003) (internal citation omitted). [Appellee]’s use of the implied easement of necessity may not be inhibited. The owner of the dominant tenement is entitled to use the easement only in such a manner as is fairly contemplated by [the initial] grant, whether expressly or implied, and the owner of the servient tenement is entitled to use and enjoy his property to the fullest extent consistent with the reasonably necessary use thereof by his neighbor in accordance with the terms and conditions of the grant. Miller v. Kilpatrick[Kirkpatrick], 377 Md. 335, 350 , 833 A.2d 536, 544 (2003) (citing Millson v. Laughlin, 217 Md. 576, 585 , 142 A.2d 810, 814 (1958)).

Upon careful consideration of all facts surrounding these properties, and in light of the permanent nature of the concrete parking pad enclosed within the rear yard of [Appellee], this court finds by the evidence presented that an implied easement of necessity does exist. Therefore, [Appellant’s] Petition to Quiet Title is HEREBY, GRANTED. [Appellant] Rau has acquired a section of ¹⁸⁴ property to the rear of 3600 Frederick Avenue defined as fourteen feet by forty feet north of the chain link fence enclosing [Appellee] Collin’s [sic] rear yard. Further, this Court HEREBY, GRANTS [Appellee] Collins an implied easement of necessity to utilize the driveway immediately adjacent to 3600 Frederick Avenue to access the concrete parking pad within the rear yard of said property. Subsequently, appellant filed a Motion to Alter or Amend Judgment, which was denied by the court on May 10, 2005.

From the judgment of the circuit court, this timely appeal was filed, in which appellant raises the following questions: 1. Did the trial judge err as a matter of law in granting an easement by necessity over [Appellant’s] property in favor of [Appellee]? 2. Did the grant of the easement by necessity across [Appellant’s] property amount to an unconstitutional taking of [Appellant’s] property in violation of the Maryland Constitution? 3. Did the trial judge abuse his discretion in denying [Appellant’s] motion to alter or amend the judgment?

We hold that the trial court erred in granting appellee an easement over the property of appellant. Therefore, we reverse the order of the trial court granting appellee an implied easement to use the driveway of appellant, as well as the order requiring appellant to refrain from impeding appellee’s use of the driveway. Because our resolution of appellant’s first issue requires reversal, we need not reach appellant’s second and third issues raised. DISCUSSION I 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 ¹⁸⁵ give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Maryland Rule 8-131. Appellant initially contends that the trial court erred in granting appellee an easement by necessity over the private driveway over his property, running adjacent to the property of appellee. He asserts: In this case, there is no evidence of a common grantor with respect to the Rau Lot and the Collins Lot.

There is no evidence to establish Rau’s predecessor-in-interest intended to grant an irrevocable use of the disputed driveway. There is no evidence of a continuous, adverse and notorious use of the disputed driveway for a period of twenty years preceding this suit. In sum, he argues that there is simply no necessity requiring the grant of an easement because there is no evidence to support a finding that appellee does not have access to her property and there is no evidence that the two properties belonged to a common grantor. An easement is defined as a nonpossessory interest in the real property of another.

Boucher v. Boyer, 301 Md. 679, 688 , 484 A.2d 630 (1984). Judge Kenney, writing for this Court, explained: More specifically, an easement involves primarily the privilege of doing a certain class of act on, or to the detriment, of another’s land, or a right against another that he refrain from doing a certain class of act on or in connection with his own land, the holder of an easement having, as an integral part thereof, rights against the members of the community generally that they shall not interfere with the exercise or enjoyment of the easement. Stansbury v. MDR Development, L.L.C., 161 Md.App. 594, 610 , 871 A.2d 612 (2005), aff'd, 390 Md. 476 , 889 A.2d 403 (2006) (citing Herbert Thorndike Tiffany, Real Property (3d ed.1939) § 756). An easement may be created by either express grant, implied grant, reservation, prescription, estoppel, or through eminent domain.

Id. ¹⁸⁶ We consider in this case a special form of implied easement, an easement by necessity. 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); see also Shpak v. Oletsky, 280 Md. 355, 360 , 373 A.2d 1234 (1977). Where a grantor conveys a tract of land which has no outlet to a public highway except over his remaining land or over that of a stranger, a way of necessity over the grantor’s remaining property will be implied. Henderson, 236 Md. at 102 , 202 A.2d 599 (citations omitted).

If a reservation is not expressly made in the deed, it must be shown that there is a necessity for its use by the property retained over the property conveyed. Hansel v. Collins, 180 Md. 209, 216 , 23 A.2d 686 (1942). Full utilization of land is favored, and it is presumed that parties do not intend to render conveyed property unfit for occupancy. Condry v. Laurie, 184 Md. 317, 321 , 41 A.2d 66 (1945).

Ways of necessity are of two types, either implied grant or implied reservation. Oletsky, 280 Md. at 360 , 373 A.2d 1234 (citing Dalton v. Real Estate & Imp. Co., 201 Md. 34, 47 , 92 A.2d 585 (1952)); see also Michael v. Needham, 39 Md.App. 271, 275 , 384 A.2d 473 (1978). [G]rants of easements by implication are looked upon with jealousy and are construed with strictness by the courts. Laurie, 184 Md. at 321 , 41 A.2d 66 .

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. Boyer, 301 Md. at 688 , 484 A.2d 630 (citing 2 G. Thompson, Commentaries on the Modem Law of Real Property § 351 at 287 (J. Grimes ed.1984)). See also Koch v. Strathmeyer, 357 Md. 193, 198 , 742 A.2d 946 (1999)(“intention ‘is a question of fact,’ and the surrounding circumstances of the case must be analyzed in order to truly understand an unexpressed intention” (citing Scholtes v. McColgan, 184 Md. 480, 489 , 41 A.2d 479 (1945))). The dominant and servient estates must at some point have belonged to the same person.

In Needham, 39 Md.App. at 275 , 384 A.2d 473 , we said: ¹⁸⁷ In order to establish a right