Rupli v. South Mountain Heritage Society, Inc.

JAMES A. KENNEY, III (Retired, Specially Assigned), J. At issue in this case is the continued use of a well that has supplied water to a neighboring property since before 1973. Appellant Brenda Rupli (“Rupli”) appeals the grant by the Circuit Court for Frederick County of a motion for summary ⁶⁷⁸ judgment in favor of appellee, the Southern Mountain Heritage Society, Inc. (“SMHS”), and the denial of summary judgment in her favor. She presents four questions which we have rephrased and consolidated as follows: did the circuit court err in granting summary judgment in favor of SMHS? 1 For the reasons that follow, we answer the question in the negative, and shall affirm the judgment of the circuit court. STATEMENT OF FACTS 2 In 1965, Moran Enterprises, Inc. (“Moran Inc.”) purchased the property at 1 E. Main Street, Burkittsville, MD (“the Rupli Property”).

The property adjacent to the Rupli Property, 3 E. Main Street (“the Church Property”), was at that time owned by Resurrection Reformed Church of Burkittsville (“RRCB”). Some time prior to 1973, because the well on the Rupli Property was contaminated, RRCB granted Mr. Moran permission to use a well on the Church Property and to run ⁶⁷⁹ piping between that well and the house on the Rupli Property. This well provided water to the Rupli property throughout Moran Inc.’s ownership of the Rupli Property. Rupli and her former husband, Mr. Rupli, purchased the Rupli Property from Moran in 1973. 3 At that time, Mr. Moran advised Mr. Rupli 4 that the well was used with permission from RRCB. 5 In 1979, SMHS, a not-for-profit corporation, purchased the Church Property.

At this time, SMHS knew of Rupli’s use of the well, which continued after SMHS purchased the Church Property. In 1998, Rupli approached SMHS with a deed of easement to the well on the Church Property, which she later described as an attempt to document “something she already had.” SMHS did not sign the deed of easement and, on November 16, 2005, SMHS directed Rupli to disconnect from the well because it had decided to hold events at the church which would require indoor plumbing. 6 Rupli refused. On September 14, 2009, SMHS filed an amended complaint in the Circuit Court for Frederick County seeking declaratory ⁶⁸⁰ relief with respect to use of the well (Count I), and to quiet title to the well (Count II). In each count SMHS requested that the court: A. Determine and adjudicate the rights of the parties with respect to their legal right to access and use the Well located on the Church Property, B. Declare that SMHS is entitled to the exclusive use of the Well on the Church Property, C. Enjoin ...

Rupli from any further use of the Well and • from any further trespass onto the Church Property, including use of the Well and removal of water from the Well, D. Require ... Rupli to remove all equipment from the Well that is designed to serve the Rupli Property, E. Declare that ... Rupli is obligated to cooperate with SMHS and provide access to such portions of the Rupli Property from the Well on the Church Property, F. Issue an award to SMHS of the costs of these proceedings, and G. Grant SMHS such other relief as the nature of this cause and justice requires. The parties filed cross-motions for summary judgment on both counts.

On November 18, 2009, the court held a hearing on the motions for summary judgment, and on December 8, 2009, the court issued its “opinion and order” on the motions. 7 Harmonizing Banks v. Pusey, 393 Md. 688 , 904 A.2d 448 (2006), with Rau v. Collins, 167 Md.App. 176 , 891 A.2d 1175 (2006), the court reasoned that ⁶⁸¹ [wjhile Rau clearly demonstrates that the grant of permission between RRCB and Moran terminated upon the disposition of the property, it does not demand that that transfer raised a presumption of adversity as a matter of law____ Thus, where initial permission has been proven the burden remains on the claimant to show via affirmative evidence how and when the license was repudiated____Absent unequivocal conduct giving the owner of the servient property notice of adversity, this Court will not conclude that a use initiated with permission could transform into one defined by hostility. Such a conclusion would damage the public interest of encouraging amicable relationships between neighbors. According to the circuit court, because the use of the well was “initiated with permission” to her predecessor in title, Rupli had the burden of proving adverse use with “affirmative evidence,” which she did not satisfy. In conclusion, the circuit court granted summary judgment in favor of SMHS, and further ORDERED that [SMHS] is the sole owner of the Well and is entitled to the exclusive use of the Well on the Church Property, and further ORDERED that [Rupli] is enjoined from any further use of the Well and from any further trespass onto the Church ⁶⁸² Property, including use of the Well and removal of water from the Well, and further, ORDERED that [Rupli] is required to remove all equipment from the Well that is designed to serve the Rupli property, and further, ORDERED that [Rupli] shall cooperate with SMHS by providing access to such portions of the Rupli Property, and take such other steps as may be necessary, to facilitate the disconnection of the Rupli Property from the Well on the Church Property. 8 DISCUSSION Standard of Review Maryland Rule 2-501 authorizes summary judgment where “there is no genuine dispute as to any material fact and ... the party in whose favor judgment is entered is entitled to judgment as a matter of law.” “Although a summary judgment in a declaratory judgment action is the exception rather than the rule, circumstances may warrant the entry of a full or partial summary judgment.” Loewenthal v. Security Ins.

Co., 50 Md.App. 112, 117 , 436 A.2d 493 (1981). We review a trial court’s grant or denial of a motion for summary judgment de novo to determine whether a dispute of material fact exists, and whether the movant is entitled to judgment as a matter of law. Haas v. Lockheed Martin Corp., 396 Md. 469, 479 , 914 A.2d 735 (2007). We do “not attempt to decide any issue of fact or credibility, but only whether such issues exist.” Eng’g Mgmt.

Servs. v. Md. State Highway Admin., 375 Md. 211, 226 , 825 A.2d 966 (2003). In so doing, we review “the same material from the record and ⁶⁸³ deeid[e] the same legal issues as the circuit court.” Lopata v. Miller, 122 Md.App. 76, 88 , 712 A.2d 24 (1998). “When both sides file cross-motions for summary judgment ... the judge must assess each party’s motion on its merits, drawing all reasonable factual inferences against the moving party,” MAMSI Life & Health Ins. Co. v. Callaway, 375 Md. 261, 278 , 825 A.2d 995 (2003) (citation omitted), but “it does not follow that the circuit court must grant one of the motions,” Callaway v. MAMSI Life & Health Ins. Co., 145 Md.App. 567, 580 , 806 A.2d 274 (2002), rev’d, on other grounds, 375 Md. 261 , 825 A.2d 995 (2003), for the filing of “cross-motions for summary judgment is not dispositive of the absence of a genuine dispute of material fact.” Taylor v. NationsBank, N.A., 365 Md. 166, 174 , 776 A.2d 645 (2001).

But where the litigants file cross-motions for summary judgment and there are no disputes of material fact, “it is clear that one of these motions should be granted.” Cook v. Alexandria Nat’l Bank, 263 Md. 147, 149 , 282 A.2d 97 (1971). In this case, both parties agreed that there were no disputes of material fact. 9 Did the Circuit Court Make Impermissible Factual Determinations? Rupli contends that “the Circuit Court improperly acted as the trier of fact, inappropriately decided [SMHS’s] intent and motives in relation to permission, and incorrectly ⁶⁸⁴ resolved inferences and factual disputes against [Rupli], the non-moving party.” In support of these contentions, Rupli offers the circuit court’s statement that SMHS “tolerated” Rupli’s use of the church well: 10 [t]he Circuit Court’s fact finding—that is, that ... Rupli’s use of the Well since 1973 was permissive because [SMHS] subjectively tolerated her use—has poisoned its entire ruling.

The Circuit Court accepted [SMHS’s] allegations that it tolerated ... Rupli’s usage of the Well as true (in the face of powerful, contrary inferences), and substituted its judgment for that of the jury. Indeed, the Circuit Court usurped the jury’s preliminary function—to weigh the evidence and to make factual findings. The Circuit Court, in essence, transformed the summary judgment procedure into a bench trial.

We are not persuaded that the circuit court’s statements that SMHS “tolerated” Rupli’s use of the well constituted an impermissible finding of fact. See Eng’g Mgmt. Servs. v. Md. State Highway Admin., 375 Md. 211, 226 , 825 A.2d 966 (2003). Rather, looking at the opinion as a whole, the court’s use of this term arose out of its legal conclusion that Rupli’s use of the well was presumptively permissive, and Rupli failed to proffer facts that would be legally sufficient to rebut this presumption.

See Zimmerman v. Summers, 24 Md.App. 100, 106 , 330 A.2d 722 (1975) (quoting Cox v. Forrest, 60 Md. 74, 80 (1883)) (“[A]n adverse right of an easement cannot grow out of a mere permissive enjoyment, the real point of distinction being between a permissive or tolerated user, and one which is claimed as a matter of right.”) (emphasis added). The court did not, so to speak, “put the cart before the horse.” Prescriptive Easement “A prescriptive easement arises when a party makes an adverse, exclusive, and uninterrupted use of another’s real ⁶⁸⁵ property for twenty years.” Kirby v. Hook, 347 Md. 380, 392 , 701 A.2d 397 (1997) (citations omitted). In her motion for summary judgment, Rupli states that “[tjhere is no genuine dispute that [she]” has: (1) used the Church Property for at least twenty years, (2) used the Church Property “exclusively” during this period; 11 (3) used the Church Property “uninterrupted” during this period; 12 and (4) used the property “adversely” during this period. SMHS did not dispute Rupli’s claims of actual exclusive and uninterrupted use, but, regarding Rupli’s fulfillment of the twenty year period, it states that “[Rupli] failed to put [SMHS] on notice prior to November 1998 that her use was adverse____ [Therefore, her adverse use began as early as 1998, but has not continued for 20 years.” Adverse Use 13 Rupli asserts that the circuit court erred in not finding her use of the well to be adverse as a matter of law ⁶⁸⁶ and not awarding her an easement by prescription.

As stated in Kirby, 347 Md. at 392 , 701 A.2d 397 , [a]n easement is a nonpossessory interest in the real property of another. An easement can be created expressly or by implication. One form of implied easement is an easement by prescription. A prescriptive easement arises when a party makes an adverse, exclusive, and uninterrupted use of another’s real property for twenty years.

(Internal citations omitted). In the absence of an express grant, the burden is on the party seeking the easement to ⁶⁸⁷ establish the elements of prescriptive use. Cox, 60 Md. at 79 . But [w]here one ... has used a right of way for twenty years unexplained, it is but fair to presume the user is under a claim of right....

In other words, the use of a way over the lands of another whenever one sees fit, and without asking leave, is an adverse use, and the burden is upon the owner of the land, to show that the use of the way was by license or contract inconsistent with a claim of right. Id. at 79-80 . See also Kirby, 347 Md. at 392 , 701 A.2d 397 (citing Condry v. Laurie, 184 Md. 317, 321 , 41 A.2d 66 (1945)) (“When a person has used a right of way openly, continuously, and without explanation for twenty years, it is presumed that the use has been adverse under a claim of right. The burden then shifts to the landowner to show that the use was [not adverse, but rather] permissive.”).

In a situation where “use begins adversely,” the servient owner’s “[m]ere failure to protest is not permission but acquiescence.” Mavromoustakos v. Padussis, 112 Md.App. 59, 73-74 , 684 A.2d 51 (1996) (quoting Dalton v. Real Estate & Improvement Co., 201 Md. 34, 50 , 92 A.2d 585 (1952)). To establish permission, failure to protest must be combined “with other indications of permission.” Id. at 74 , 684 A.2d 51 . But a presumption of adversity “will not arise if the use ... appears to have been by permission,” Banks v. Pusey, 393 Md. 688, 700 , 904 A.2d 448 (2006) (citing Cox, 60 Md. at 79 ) (emphasis in original), i.e., where any “appearance of permission permeates the record.” Id. at 701, 904 A.2d 448 . “In the absence of ... a presumption of adverse use, the burden of establishing such use is on the party claiming it. This logically follows the general rule that the creation of an easement by prescription is not favored by the law.” Id.

(citing 3 Herbert T. Tiffany, The Law of Real Property, § 796 (3d ed.1939, 2006 Supp.)). The Banks Court stated that the character of the initial use, whether “originally permissive or of right is presumed to continue.” Id. at 709 , 904 A.2d 448 (quoting Feldstein v. ⁶⁸⁸ Segall, 198 Md. 285, 295 , 81 A.2d 610 (1951)). That the character of the initial use is presumed to continue is consistent with the long-held principle “that where the original entry and subsequent occupancy of land was ... with the consent or permission of the owner, the possession would not be hostile or adverse and could not evolve into a subsisting title on which recovery could be had____” Id. at 710, 904 A.2d 448 (quoting Hungerford v. Hungerford, 284 Md. 338 , 341, 199 A.2d 209 (1964)). For use which is permissive in its inception to become adverse, “there must be affirmative evidence of change” offered by the party seeking the prescriptive easement.

Feldstein, 198 Md. at 295 , 81 A.2d 610 . See also 1931 Herbert T. Tiffany, The Law of Real Property, § 503 (enlarged ed. 1920) (“[I]f the possession was originally not adverse to the true owner, the statute cannot be set in motion against him until the possessor has changed the character of the possession by a denial of the title of such owner, and such change has been brought to the knowledge of the latter.”) (emphasis added). SMHS observes that “[t]his case turns entirely on the legal questions of which party is entitled to a presumption and whether the other party can offer sufficient evidence to rebut the countervailing presumption.” Because we essentially agree, we wiH first address who had the benefit of the controlling presumption. According to Rupli, “[t]he legal underpinnings of SMHS’s motion—that[, under Banks,] originally permissive use of land is presumed to continue until there is affirmative evidence of change to adverse use—only holds true when dealing with the original parties to the permissive use agreement.” (Emphasis added).

In Rupli’s view, the presumption of permissive use would terminate upon the sale of either the dominant or servient estate. In this case, both estates were sold—the dominant estate in 1973 and the servient estate in 1979— subsequent to the permissive use agreement between Moran Inc. and RRCB. Therefore, according to Rupli, SMHS had the burden of rebutting the presumption of her adverse use of the Church Property. ⁶⁸⁹ SMHS counters that Banks , which cited heavily from Hungerford, and Feldstein , did not make any distinction between whether the actual claimant or the claimant’s predecessor initiated the use, nor did it impose any requirement that the original user of the servient estate be the ultimate claimant. Rupli’s attempt to differentiate her use ‘as the claimant’ from her predecessor’s use is a distinction without difference and is not supported by Maryland law.

In other words, according to SMHS, the character of the use is determined when the use is initiated and the presumption of permissive use does not change with the sale of either estate. In Banks , beginning in 1939, the Pusey family, including father and son, lived on a large property consisting of two parcels. In 1954, the father deeded one parcel to his son, but kept the other, which included a farm lane connecting the two. In 1979, the father died, and the father’s parcel passed by deed to his wife, and, upon her death in 1995, to his grandchildren.

In 1998, the Banks family purchased the father’s parcel from the grandchildren. Despite owning his own parcel since 1954, the son had continued to live with his family on his father’s parcel until 1995, and had continued to use the farm lane over that parcel until at least 1998. The son filed a complaint alleging that he held a prescriptive easement across the father’s parcel, including the farm lane to access a public road. Reversing the circuit court’s finding that the son “has the right to use the farm lane in question under the theory of easement by prescription,” 393 Md. at 698 , 904 A.2d 448 , the Court of Appeals observed that “the parties do not dispute that the [son] made exclusive and uninterrupted use of the farm lane for a period in excess of twenty years,” for the son “lived on what is now the Banks’ property from approximately 1939 when he was a minor until 1998 and from 1954 [ ] on he ... used the farm lane to access his 127 acre-parcel of land,” both dates being more than 20 years before the 1998 conveyance of the father’s parcel to the Banks family.

Id. at 699 , 904 A.2d 448 . The court also stated, ⁶⁹⁰ [w]hat is primarily disputed ... is whether [the son’s] use of the farm lane was adverse during the period of time that he resided with his parents on what is now the Banks’ property. If [the son’s] use of the farm lane was not adverse during the relevant period of time that he resided on his parents’ property then, even if arguendo the use became adverse once the Banks obtained the property, it would not satisfy the required twenty-year time period. Id. at 699-700 , 904 A.2d 448 .

In Hungerford, in 1899 a farm was conveyed to Nathaniel Hungerford, Sr. for life with remainder to two of his sons, Nathaniel Jr. and Henry. In 1922, Henry “staked out a lot on the farm, which Henry orally agreed to convey to” a third son, William, “in exchange for William’s promise to perform certain labor or work for the life tenant.” 234 Md. at 339 , 199 A.2d 209 . William took possession of the lot, constructed a dwelling, and lived there without disturbance. Nathaniel Sr. died in 1935, and Nathaniel Jr. and Henry held the farm as tenants in common until 1944, when they partitioned it by deed into two twenty-five acre parcels.

Henry died in 1957, at which time his parcel passed to his wife, Susie. Henry had refused to convey the parcel to William, “before Henry’s interest became possessory ... after the death of [Nathaniel Sr.] and before the death of Henry in 1957----” Id. at 341 , 199 A.2d 209 . Susie also refused to convey the parcel to William after her husband’s death. William filed a bill of equity to quiet and confirm title based on adverse possession.

The circuit court found in favor of William, but the Court of Appeals reversed. Observing that “an original permissive possession is presumed to continue,” the court reasoned that William’s “repeated demands clearly indicate the [he], instead of claiming title as a matter of right by adverse possession, never ceased to recognize the continuance of the legal title in Henry and [Susie].” Id. In Feldstein , the Millers, in 1918 purchased from the trustee of Henry Lammers’s estate two parcels identified as 3904 and 3906 Eastern Avenue, which were burdened with a ten foot wide easement. That same year, the Habersacks pur ⁶⁹¹ chased from the trustee two parcels identified as 3908 and 3910 Eastern Avenue, which were benefited by the easement.

The Habersacks leased 3910 Eastern Avenue to the Crouchers. With permission of the Millers, the Habersacks and the Crouchers used more than the ten foot easement area. The Millers, in 1944, conveyed 3904 and 3906 Eastern Avenue to the Segalls, and, in 1946, the Habersacks conveyed 3908 and 3910 Eastern Avenue to the Feldsteins. The Feldsteins claimed a prescriptive easement based on the Habersacks’ and the Crouchers’ use of land outside of the designated easement, and argued “that in determining whether or not they have established a widened right of way by prescription, their own use since 1946 may be tacked to the use by their predecessors in title, Habersack and Croucher----” 198 Md. at 294 , 81 A.2d 610 .

The Court stated, [w]e do not find it necessary to pass upon this contention. If Habersack and Croucher, at the time of their deed to plaintiffs, had by prescription acquired a consummate right of way, their deed, and the appurtenance clause in it, is sufficient to convey such a right of way. If at the time of their deed, they had not acquired a prescriptive right of way, tacking plaintiffs’ use from January, 1946 to September, 1947 would not establish such a right of way. If the evidence does not show adverse, exclusive and continuous use for twenty years before January, 1946, then there is no evidence to show such use for twenty years before September, 1947.

Id. at 294-95 , 81 A.2d 610 (emphasis added). The Court held that the Habersacks and the Crouchers—and thus the Feldsteins—had not acquired a prescriptive easement because the original use of the expanded area was permissive, and thus the subsequent use by the Feldsteins was presumed to be permissive as well. Banks, 14 Hungerford, and Feldstein did not expressly address whether the transfer of the dominant or servient estate, ⁶⁹² or both, would convert a permissive use into an adverse use. 15 In Banks and Feldstein the original licensees and licensors did not transfer their properties during the relevant twenty year period, and in Hungerford there was no transfer at all. “The distinction between an easement and a mere license to use land is clear. While an easement implies an interest in land, a license is merely a personal privilege to do some particular act or series of acts on land without possessing any estate or interest therein.” Condry v. Laurie, 184 Md. 317, 320 , 41 A.2d 66 (1945) (citations omitted).

A license may be revoked expressly, “at the pleasure of the party making it,” Rau v. Collins, 167 Md.App. 176, 192 , 891 A.2d 1175 (2006), or implicitly, “by the transfer of ownership of either the land subject to the license or the land for the benefit of which the license was given.” Zimmerman v. Summers, 24 Md.App. 100, 124 , 330 A.2d 722 (1975) (emphasis added). See also Rau, 167 Md.App. at 192 , 891 A.2d 1175 (license is revoked by sale of licensor or licensee’s property). Even if, as SMHS contends, these statements are dicta in Rau and Zimmerman , the implicit revocation of a license upon the sale of the servient or dominant property, or both, is a well-established rule in Maryland. See Shipley v. Fink, 102 Md. 219, 228 , 62 A. 360 (1905) (citing Carter v. Harlan, 6 Md. 20 (1854)) (license “is in fact revoked by sale and conveyance” of the licensor’s property); Baltimore v. Brack, 175 Md. 615, 621 , 3 A.2d 471 (1939) (affirming Carter and Shipley); Busada v. Ransom Motors, Inc., 31 Md.App. 704, 705 , 358 A.2d 258 (1976) (quoting with approval the above language from Zimmerman ); De Haro v. United States, 72 U.S. 599, 627 , 5 Wall. 599 , 18 L.Ed. 681 (1867) (a license is “limited to the original ⁶⁹³ parties to it”) (quoted in Condry v. Laurie, 184 Md. 317, 320 , 41 A.2d 66 (1945)); 1219-20 Herbert T. Tiffany, The Law of Real Property, § 349 (enlarged ed.1920) (license terminates