Shpak v. Oletsky

Smith, J., delivered the opinion of the Court. We shall here hold that 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 which came after a period of litigation. Accordingly, we shall hold that appelleescross-appellants, Samuel Oletsky et al., do not have a way of necessity across lands of appellants-cross-appellees, Abraham A, Shpak et al. (Shpak), 1. The Pacts The facts will be better understood by reference to the plat appended to this opinion which the reporter is directed to reproduce.

Wm. H, Smith Company, Inc, (Smith), acquired 83,89 acres of land on Deer Park Road, a public highway in Baltimore County, Smith apparently had plans for a subdivision since a plat for such purpose was prepared. On July 26, 1958, Smith and Carl Kirby and wife (the Kirbys) entered into a contract by which the Kirbys purchased approximately 10 acres of land for $35,000, designated as Lot A on the appended plat. The contract contained what were styled “Additional Points of Agreement.” The fourth such point provided that until the roads “outlined on ‘the plan’ ha[d] been installed, the [Kirbys were to] have the right to use the [then] present lane from the acreage covered by th [at] agreement to Deer Park Road.” The next succeeding paragraph said: “5.

In the event Ivy Mill Road and that part of Gray Dawn Road which reaches the acreage ³⁵⁷ sold have not been completed within 3 years from date hereof, the seller will convey to the buyer the 80' strip to Deer Park Road (Ivy Mill Road on 'the plan’) together with lot No. 4 as shown on ‘the plan’ in fee simple with no restrictions whatsoever.” The contract was recorded among the land records of Baltimore County on March 20, 1959, subsequent to the deed from Smith to the Kirbys which was executed on September 8,1958, and recorded two days later. A preliminary subdivision plan of a development to be known as “Alvermar” was prepared by Smith. The last revision date appearing on the plat filed in these proceedings is October 29,1959. It shows the land conveyed to the Kirbys as Lot A, located off of Deer Park Road, the only then existing public road, surrounded by a number of paper lots and several paper roads.

It has some frontage on two paper roads, one known as “Grey Dawn Road” 1 and one known as “High Knoll Road.” On February 14, 1961, Smith conveyed Lot 3 to Henry D. Scriba and Margaret P. Scriba. On June 13, 1961, Smith conveyed to Grey Dawn Development Co., Inc. (Grey Dawn), the entire tract except for the previously conveyed Lot A and Lots 1 and 3. Thus, Grey Dawn acquired from Smith land with an outlet on Deer Park Road since its deed included Lot 2. On the same day Grey Dawn executed a mortgage to Prudential Savings and Loan Association, Inc. (Prudential), covering the land it had just bought except for Lot 2.

As the trial judge put it, “David Preller was named in the mortgage as the duly authorized attorney or agent of Prudential. The testimony . . . discloses that David Preller had examined the title to this property for Prudential, and presumably for Grey Dawn, either personally or through an agent. The testimony also discloses that at the time of the examination of such title, Mr. Preller was aware of the contract between Smith and Kirby concerning Lot No. 4.” Thus it follows that ³⁵⁸ Prudential was aware of the fact that if the roads required by paragraph 5 of the contract between the Kirbys and Smith were not completed in a little over a month after the date of the mortgage to it, there was the distinct possibility that Grey Dawn’s only access to the mortgaged land would be through Lot 2, not included in the mortgage to Prudentiál. On July 6, 1961, 20 days short of the expiration of the three-year period specified in paragraph 5 of the contract between Smith and the Kirbys for construction of the roads, Grey Dawn conveyed Lot 2 to Johnnie and Carolyn Martinez.

On October 11, 1961, counsel for the Kirbys filed a bill for specific performance against Smith, Grey Dawn, and Prudential, seeking enforcement of the contract of July 26, 1958, relative to Lot 4 and the 80 foot strip claiming that the roads mentioned in paragraph 5 of the additional points of agreement had not been constructed. (We shall hereafter refer to Lot 4 and the 80 foot strip as Lot 4.) A decree was passed by the Circuit Court for Baltimore County on April 25, 1962, directing conveyance in accordance with the terms of the contract. On August 15, 1962, Grey Dawn conveyed Lot No. 1 to Frances Atkins and Mary Radecke. The trial judge observed, “It is to be noted that this deed should have been executed by Smith, as it was excepted from the deed from Smith to Grey Dawn . . .

The deed itself does not appear in this record. Although instances have been known of persons purporting to convey land in which they had no interest, we note that here the same individual was president of both Smith and Grey Dawn, thus giving rise to a suspicion that title may well have passed to Grey Dawn. Therefore, we observe that if Grey Dawn did own this land at the time of this conveyance, then almost four months after it became obligated under the court decree to make the conveyance of Lot 4 to the Kirbys it stripped itself of an outlet to the highway. In the view we take of this proceeding, however, whether title to Lot 1 had passed to Grey Dawn is irrevelant.

On September 20, 1963, Grey Dawn finally complied with ³⁵⁹ the specific performance decree and conveyed Lot 4 to the Kirbys. It will be perceived that as a result of that mandated conveyance Grey Dawn no longer had any frontage on Deer Park Road, the only public highway abutting on the original tract. Prudential did not join in the conveyance, despite the command of the decree. Instead, almost two years after the passage of the decree, it executed a partial release of mortgage on March 2,1964, so that the Kirbys then held the land acquired by the September 1963 conveyance free and clear of the Prudential lien.

Introduced into evidence below was a letter to Prudential from its attorney, dated a few days prior to the specific performance decree, in which he advised of a possible settlement without which the “tract wfould] be land-locked.” No such settlement was accomplished. The mortgage to Prudential was foreclosed. Prudential purchased the land at the sale. A short time after receipt of the deed it conveyed this land to Samuel Oletsky, Irvin Seiko, and Richard Falk.

On January 28,1966, the Kirbys conveyed their original 10 acres and Lot 4 to Shpak. Samuel Oletsky and Richard Falk, two of the three Prudential grantees, filed a bill for a declaratory judgment against Shpak in the Circuit Court for Baltimore County. They sought to have the Shpak property declared subject to a way of necessity. When it was suggested that all of the potential parties in interest were not parties to the case, an amended bill was filed naming Irvin Seiko as a party defendant.

As an apparent consequence of settlement of other litigation involving Oletsky, Falk, Seiko, and others, the interest of Seiko has been conveyed to Samuel Kalis, now a party to this proceeding. (We shall henceforth refer to Oletsky, Falk, and Kalis as Oletsky et al.) A second amended bill was filed naming the then owners of Lots 1, 2, and 3 as additional parties defendant. The trial court granted a motion for summary judgment in favor of those owners. No finding under Maryland Rule 605 a was made that there was “no just reason for delay” and there was no “express direction for the entry of judgment.” Thus, ³⁶⁰ it was not until the time of this appeal that there could have been a challenge to the correctness of that finding.

It is not attacked on appeal. At the ultimate trial the chancellor concluded that for there to be a way of necessity by implied reservation the way must be “apparent.” He held, citing Johnson v. Robinson, 26 Md. App. 568 , 338 A. 2d 88 , cert. denied, 276 Md. 748 (1975), that “[t]he critical time for determining the eodstence of the way of necessity or quasi easement is the date of the deed.” (Emphasis in original.) In due season he signed a decree establishing a way of necessity 10 feet in width. Both sides have appealed. We granted the writ of certiorari prior to consideration by the Court of Special Appeals.

Shpak claims, among other points, that there should be no way of necessity. Oletsky et al. contend that the width should be greater than 10 feet. In the light of our conclusion here it will be unnecessary to consider the cross-appeal. 2. The Law Judge Charles C. Marbury observed for the Court in 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.” There are two types of ways of necessity, implied reservation and implied grant.

Dalton v. Real Estate & Imp'v't Co., 201 Md. 34, 47 , 92 A. 2d 585 (1952); Slear v. Jankiewicz, 189 Md. 18, 22 , 54 A. 2d 137 (1947), cert. denied, 333 U. S. 827 (1948); Jay v. Michael, 92 Md. 198, 209 , 48 A. 61 (1900); Eliason v. Grove, 85 Md. 215, 225 , 36 A. 844 (1897); Mitchell v. Seipel, 53 Md. 251, 265 , 36 Am. Rep. 404 (1880); 3 H. Tiffany, The Law of Real Property § 779 (3d ed. 1939); 3 R. Powell, Real Property ¶ 410, at 428-30 (1977), and L. Jones, Easements § 306 (1898). 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). To similar effect relative to necessity, ³⁶¹ sometimes referred to as necessary to be “imperative and absolute,” see Condry v. Laurie, 184 Md. 317, 322 , 41 A. 2d 66 (1945); Tong v. Feldman, 152 Md. 398, 402 , 136 A. 822 (1927); Jay v. Michael, supra, 92 Md. at 210 ; Burns v. Gallagher, 62 Md. 462, 472 (1884); and 2 G. Thompson, Commentaries on the Modem Law of Real Property § 353 (J. Grimes ed., 1961). “[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.” Oliver v. Hook, 47 Md. 301, 310 ; Powell, op. cit. ¶ 410, at 436-37; Thompson, op. cit. § 362, at 412 and § 364, at 436, and Jones, op. cit. § 314.

An easement by implied reservation must arise at a time when there is unity of title. Hansel v. Collins, supra, 180 Md. at 216 ; Powell, op. cit. ¶ 410, at 432; Thompson, op. cit. § 364, at 434, 446; Jones, op. cit. § 314, at 258, and E. Washburn, Easements and Servitudes 218 (2d 3d. 1867). “[G]rants of easements by implication are looked upon with jealousy and are construed with strictness by the courts.” Condry v. Laurie, supra, 184 Md. at 321 . “The rule with respect to implied reservations is much more strict than that with respect to implied grants.” Slear v. Jankiewicz, supra, 189 Md. at 22 , quoting Hansel v. Collins, supra, 180 Md. at 215 . In Greenwalt v. McCardell, 178 Md. 132, 139 , 12 A. 2d 522 (1940), our predecessors said, “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.” Although the Court was there concerned with an express grant, it would seem to follow that the same rule would be applicable to the creation of a way of necessity by reservation. Jones, op. cit. § 804, puts it slightly differently, stating: “ '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 ³⁶² 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.’ ” Id. at 250. (Footnotes omitted.) In Burns v. Gallagher, supra, 62 Md. 462 , Chief Judge Alvey said for our predecessors: “[T]he 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 of the intention of the parties that the adjoining properties should continue to be used and enjoyed, in respect to existing easements or quasi easements, as before the severance of ownership; for otherwise parties would never know the real purport of their deeds.” Id. at 471-72 .

This was quoted in Slear v. Jankiewicz, supra, 189 Md. at 23 . In Mitchell v. Seipel, supra, 53 Md. at 274-75 , our predecessors observed, “Whether it is a way of necessity or not, must depend upon the state of things existing at the date of the deed . . . , and not with reference to the changes subsequently made by the plaintiff on his own premises.” Jones, op. cit. § 325 endorses the first portion of this ³⁶³ statement. Statements similar to the latter portion are found in Hancock v. Henderson, supra, 236 Md. at 104 ; Feldstein v. Segall, 198 Md. 285, 294 , 81 A. 2d 610 (1951); and Powell, op. cit. ¶ 410, at 441 citing, among other cases, Mitchell. Although it is not an issue in this case, it should be observed that a way of necessity exists only so long as the necessity itself remains.

Hancock v. Henderson, supra, 236 Md. at 105 ; Condry v. Laurie, supra, 184 Md. at 321 ; Oliver v. Hook, supra, 47 Md. at 309 ; Washburn, op. cit. 220; and Thompson, op. cit. § 362, at 416. “[T]he court will not recognize a way of necessity if another road to the public highway can be made without unreasonable expense, even though the other road may be much less convenient. Mere inconvenience will not be sufficient to justify the finding of a way of necessity.” Condry v. Laurie, supra, 184 Md. at 322 . To like effect see Mullins v. Ray, 232 Md. 596, 599 , 194 A. 2d 806 (1963), and Thompson, op. cit. § 364, at 440. Judge Markell observed for the Court in Slear v. Jankiewicz, supra, 189 Md. at 24 , that “the rules regarding implied grants and implied reservations are both rules of construction.” Tiffany, op. cit., in discussing ways by necessity, states in § 781: “It has been stated that ‘the moment a severance occurs by the sale of a part, the right of the owner to re-distribute the properties of the respective portions ceases and easements or servitudes are created corresponding to the benefits and burdens mutually existing at the time of the sale.

This is not a rule for the benefit of purchasers, only, but is entirely reciprocal. Hence, if instead of a benefit conferred a burden has been imposed upon the portion sold, the purchaser, provided the marks of this burden are open and visible, takes the property with a servitude upon it. The parties are presumed to contract in reference to the condition of the property at the time of the sale, and neither has a right, by altering arrangements then openly ³⁶⁴ existing, to change materially the relative valúe of the respective parts. “It is perhaps unfortunate that the courts, in determining whether, in a