Rowe v. Nally

Bryan, J., delivered the opinion of the Court. The question in this case is presented by a demurrer which was filed to a declaration in the Court below. The demurrer was sustained, and the plaintiff has appealed to this Court. The declaration originally contained three counts; but the first one having been abandoned, the case rests entirely on the other two.

It will be necessary to examine the pleadings carefully. In the second count it is averred in substance that the defendant was the owner and possessor of a tract of land in Washington County, and that he also owned and possessed a strip of land, one perch in width, which extended southwardly from this tract to a public road; and that this strip was used by him as a roadway to said public road. It was also averred that the plaintiff owned and possessed land lying and bounding on each side of this strip, and that by reason of said ownership and possession and for the protection of his land, he was entitled to have a gate maintained at the public road at the terminus of the strip. It was further averred that the defendant, disregarding his rights in the premises at divers dates and times, demolished and removed the gate.

The statement of the alleged right of the plaintiff is somewhat vague and obscure. It may mean a right to have the gate maintained by the defendant, or it may mean that the plaintiff has a right to maintain it for himself at his own expense. We shall consider the question in both aspects. The declaration does not state that the defendant made a contract with the plaintiff that he would maintain the gate on his own land, or permit it to be maintained by the plaintiff.

But it sets up a claim to this privilege by reason of the possession and ownership of contiguous land. _ It is sought for this reason to impose a burden on the defendant’s land; this bare, naked, unqualified ownership and possession is the title which is alleged to confer a right in and control over adjoin ³⁶⁹ ing land. In the classification of the objects of property an interest of this kind is called an easement or a servitude; in the present case it would be an easement appurtenant to the plaintiff’s land. In Baltimore, &c., Railroad v. Algire, 63 Md. 323 , it was said that as a general rule an interest or easement in land must be acquired in the mode provided for the transfer of real estate. And in the common law treatises it is said that it cannot be acquired, except by grant or prescription, which pre-supposes a grant.

Gale 011 Easements, m. p. 18 and 86; Washburn on Easement, &c., m. p. 18. There are two very usual methods of creating an easement or imposing a servitude on land. The owner of a tract of land may convey a portion of it, and in the deed of conveyance may retain an easement in it for the benefit of the portion which he does not dispose of; or he may in the deed convey to his grantee an easement in the land which he retains in his possession. These easements are appurtenant to the land, and pass with it to successive grantees.

But they do not compel the owner of the land subject to them to perform work or service; such, for instance, as to maintain a gate. On this point the