Schafer v. Bernstein

Per Curiam. The appellees-plaintiffs filed an action in equity in the Circuit Court for Montgomery County, titled a “Complaint for Declaratory Judgment — to Determine That Right of Way Was Extinguished by Tax Sales and/or ²¹⁹ Abandonment.” The purpose of the bill was to have the court decree that appellees held title to certain property free and clear of a right of way created in 1911, 15 feet wide and 108.62 feet in length, by virtue of its having been extinguished by either one or both of two tax sales in 1926 and 1938. It is unnecessary to recite in detail the chain of title and narrate the history that led to the ultimate acquisition of the property by the appellees. It suffices for the purpose of this opinion to point out that the appellants-defendants, owners of the dominant tenement, filed an answer and counterclaim setting up a defense by way of adverse usage.

Both parties moved for a summary judgment, upon which motions the Court gave the following ruling, in pertinent part: «* * * ¡-jj£ jg conclusion of the Court that the motion of the plaintiffs for summary judgment under Rule 610 should be granted, and that the cross-motion of the defendants for summary judgment should be denied. This leaves for consideration the question of the abandonment or withdrawal of count 2, action upon which has heretofore been deferred by the Court. It is the Court’s conclusion that the motion of the plaintiffs to withdraw count 2 should be granted. We think that this is a matter of right so far as the plaintiffs are concerned.

This leaves necessarily for consideration and determination the motion of the defendants for leave to amend the answer and counterclaim in order to assert a right to the easement question by virtue of adverse user. It seems in order for the defendants to assert this claim it must be asserted by way of counterclaim rather than by answer, inasmuch as it is essentially a response to the abandonment provisions of count 2. At all events, we feel certainly on the basis of representations made by plaintiffs’ counsel ²²⁰ during the course of argument this morning there is no objection on the part of the plaintiffs to the continuation of this case at least for the proceedings to go forward on the basis of the defendants’ claim of adverse user. It would seem that the logical and orderly-procedure would dictate that the matter go forward on that basis,