Stansbury v. MDR Development, L.L.C.

CATHELL, Judge. This case arises from an action by a property owner to prove the existence of an easement by necessity over another’s property. MDR Development, L.L.C. (“MDR”), respondent/cross-petitioner (hereinafter respondent), sought to build a footbridge across a waterway and a submerged portion of the property of Nancy R. Stansbury, petitioner/cross-respondent (hereinafter petitioner).

It is argued that the existence of an easement by necessity was, and is, essential in order for respondent, and respondent’s predecessors, to reasonably access a portion of respondent’s property which is bordered on three sides by navigable water and on one side by petitioner’s property. This issue reaches this Court after the Circuit Court for Anne Arundel County found there to be no easement by necessity 1 and the Court of Special Appeals, vacating ⁴⁸⁰ the Circuit Court’s judgment, held to the contrary. On May 17, 2005, Ms. Stansbury filed a petition for a writ of certiorari and MDR filed a conditional cross-petition; we granted certiorari as to both on July 18, 2005. Stansbury v. MDR Dev., L.L.C., 388 Md. 97 , 879 A.2d 42 (2005).

Ms. Stansbury’s petition for writ of certiorari presents two questions for our review: “I. Is an easement by necessity properly granted for the purpose of providing access to a portion of respondent’s property where the remaining portion is occupied and is accessible by road? “II. Is an easement by necessity properly granted to a portion of respondent’s property where access to that portion is available by navigable water?” 2 Based on the facts of the case at bar, we answer both of Ms. Stansbury’s questions in the affirmative, and therefore affirm the decision of the Court of Special Appeals. Under proper circumstances, such as those existing here, an easement by necessity exists to access a portion of a person’s property which is inaccessible except through another’s property, although there is access via navigable water. Because of our ⁴⁸¹ determination it is not necessary to address MDR’s conditional cross-petition.

I. Facts and Procedural History We adopt the facts as stated by Judge Kenney, writing for the Court of Special Appeals in its decision below: “This case concerns property located in the Pleasant Plains subdivision in Anne Arundel County, Maryland and shown below. [[Image here]] “Our primary focus is on lots 178, 179, 9A, and 10A, which, along with the other lots shown, were platted prior to the creation of the channel.[ 3 ] As platted, lots 179 and 10A shared a common lot line, as do lots 178 and 9A. The common lot lines are below and approximately midway [through] the channel. The depth of the channel varies with ⁴⁸² the tide, but it is stipulated to be navigable. The channel provides the eight lots shown above with water access to Pleasant Lake and, through the lake, to the Chesapeake Bay.[ 4 ] “On April 2, 1936, James Edward Stansbury, Ms. Stansbury’s father, acquired fee simple title to these four lots, subject to a life estate in Mallee B. Moore, Ms. Stansbury’s maternal grandmother.

At the time, Mr. Stansbury lived on Lot 7A, and in the mid 1950s he dredged the channel. After the channel was created, a footbridge, approximately 100 to 150 feet in length, was constructed over the channel in lots 9A and 178. Laura Stansbury, Ms. Stansbury’s mother, who resided on Lot 7A, used the footbridge to visit and care for her mother, Mallee B. Moore, who resided on Lot 179. The middle portion of the footbridge could be removed to allow small boats to traverse the channel and seek safe harbor during storms. “According to Ms. Stansbury, the Stansburys had little reason to utilize the footbridge after Mallee B. Moore’s death in 1973, and it fell into a ‘state of disuse.’ The Stansburys, who lived on Lot 7A, and who had access to Lot 10A across lots 8A and 9A, made little use of Lot 10A as the result of extensive erosion.

She described Lot 10A as a ‘rubble filled marshland with an old pier that extends into the Chesapeake Bay.’ “James Edward Stansbury died testate on March 25, 1977; Ms. Stansbury, Laura Stansbury, and Ms. Stansbury’s brother, James Elijah Stansbury, were the legatees of Mr. Stansbury’s property. On December 12,1984, Laura Stansbury, individually and as personal representative of her husband’s estate, entered into an Agreement of Distribution with her children to convey title to lots 178, 179, 9A, and 10A to the children as tenants in common as a part of ⁴⁸³ their inheritance. The children, in turn, would determine how the lots would be divided between them. For whatever reason, Laura Stansbury did not abide by the agreement; she never conveyed the lots to her children. “On December 30, 1986, Ms. Stansbury, who had resided on Lot 179 since 1983, executed a deed transferring her interest in lots 178 and 10A to her brother, and he executed a deed transferring his interest in lots 179 and 9A to her.

Later, because Laura Stansbury had not transferred the lots to the children, Ms. Stansbury filed a complaint to compel her mother to execute the deeds. Michael R. Robyler was appointed as a trustee to complete the transfer, and in March 1987, Ms. Stansbury and her brother were deeded fee simple title to their respective lots, as contemplated by the December 30, 1986, conveyances. “On February 22, 1988, James Elijah Stansbury mortgaged his two lots, 178 and 10A, to secure a $200,000 note to Francis C. and Shirley C. Cole. He defaulted on the note, and, in 1995, the property was acquired at a foreclosure sale by David L. and Charlotte Caldwell and James L. and Margaret F. Thrift (hereinafter collectively ‘Caldwell’). “When David Caldwell visited the property prior to the foreclosure sale, he observed an uninhabitable house on Lot 178, the pier located on Lot 10A, and the footbridge. He testified that the footbridge was in ‘passable’ condition at that time, and that Ms. Stansbury had escorted him across the footbridge during his visit.

Later, when he requested her permission to repair the footbridge to facilitate travel to Lot 10A, Ms. Stansbury would not agree. She expressed interest in purchasing lots 178 and 10A from Caldwell, but no agreement was reached. Sometime in 1997, an ‘eight to twelve’ foot long portion from the center of the footbridge was removed and a ‘no trespassing’ sign was posted on the portion of the footbridge located on Lot 9A. “In 1997, Caldwell obtained a variance from Anne Arundel County to construct a residence on Lot 178. On April 20, 1998, Caldwell entered into an agreement with the County to treat lots 178 and 10A as one lot.

The agree ⁴⁸⁴ ment, which was recorded among the land records of Anne Arundel County, provided that all interior lot lines connecting [lots 178 and 10A] shall no longer be considered lot lines for any purposes, including those set forth in the Anne Arundel County Code; it being the intent of both parties that the aforementioned lot shall be considered now and forevermore as one single lot or parcel of ground and that all other requirements of law now in full force and effect or hereinafter effective shall be applicable as if such property is one parcel of ground. “On October 13, 1998, in a document entitled Declaration of Easement Conditions and Restrictions, which was recorded in the land records of Anne Arundel County, Caldwell agreed not to construct any structure on Lot 10A, with the exception of a footbridge after obtaining all necessary Federal, State, and local permits for its construction. As proposed, the footbridge would extend across the channel from Lot 178 directly to Lot 10A. The right to construct the footbridge is at the heart of this controversy. “In 1999, Caldwell initiated a two-count complaint against Ms. Stansbury, asserting entitlement to an easement across a portion of lot 9A in order to gain access to 10A. The complaint sought declaratory relief in addition to monetary damages in the amount of $100,000.

Michael D. Reisinger, sole owner of MDR, had first visited lots 178 and 10A in 1996 or 1997. MDR purchased the lots from Caldwell on October 15, 2001. On October 25, 2001, MDR was substituted as the party plaintiff. “Trial was held on September 27, 2002, and November 1, 2002. In addition to the evidence summarized above, Ms. Stansbury offered evidence as to how her property, lots 179 and 9A, would be adversely affected by the construction of the footbridge.

She also testified that a footbridge would obstruct navigation in the channel and lower the property values of the riparian owners. “John Dowling, admitted as an expert witness ‘in the fields of title searching, real property issues, and surveying,’ ⁴⁸⁵ testified that in 1807 a land patent was issued to the land known as Grammer’s Pleasant Plains. According to Dowling, as a result of that land patent, Ms. Stansbury is the ‘supreme’ title holder of those portions of lots 179 and 9A beneath the channel over which the footbridge would cross. “On August 19, 2003, in a memorandum opinion and order, the circuit court determined that [MDR] is not entitled to the declaration of an easement over [Ms. Stansbury’s] property to facilitate pedestrian travel between Lots 178 and 10A. [MDR] is entitled to construct a footbridge-subject to all Federal, State and local regualtions [sic] — between Lots 178 and 10A free from any unsubstantiated claim by [Ms. Stansbury] that said footbridge will interfere with her property rights to a portion of land submerged beneath the water in the channel. Ms. Stansbury noted [a] timely appeal and MDR cross-appealed.” Stansbury v. MDR Dev., L.L.C., 161 Md.App. 594, 599-603 , 871 A.2d 612, 614-17 (2005). The Court of Special Appeals vacated the Circuit Court for Anne Arundel County’s judgment that: (1) MDR was not entitled to an easement over Ms. Stansbury’s property and (2) MDR was entitled to construct a footbridge pursuant to a balancing of equities.

Instead, the Court of Special Appeals held that “MDR is entitled to a declaration establishing [ 5 ] an easement by necessity, subject to government regulation, for a pedestrian walkway in order to reasonably use and ⁴⁸⁶ enjoy Lot 10A....” Stansbury, 161 Md.App. at 619 , 871 A.2d at 627 .

II

Discussion Ms. Stansbury asserts that: (1) an easement by necessity does not exist for the purpose of providing access to an inaccessible portion of MDR’s property where the remaining portion of MDR’s property, particularly the portion that will contain a residence, is accessible by a public road; and (2) that in addition, an easement by necessity should not be recognized as to that inaccessible portion of MDR’s property where there is access to that portion via navigable water. We disagree as to both assertions. A. Easements by necessity. It is first necessary to outline the doctrine of easements by necessity in Maryland before we apply it to the circumstances of the case sub judice.

An easement is the “non-possessory interest in the real property of another” and arises through express grant or implication. Boucher v. Boyer, 301 Md. 679, 688 , 484 A.2d 630, 635 (1984) (citing Condry v. Laurie, 184 Md. 317, 320 , 41 A.2d 66 (1945)); Calvert Joint Venture #140 v. Snider, 373 Md. 18, 39 , 816 A.2d 854, 866 (2003). In Boucher , Judge Cole, writing for the Court, enumerated the several different ways in which easements by implication may be created: “... such as by prescription, necessity, the filing of plats, estoppel, and implied grant or reservation where a quasi-easement has existed while the two tracts are one.” 301 Md. at 688 , 484 A.2d at 635 (citations omitted) (emphasis added). Our focus is on easements by necessity. 6 Easements by necessity, also called ways of necessity, are a “special class of implied grants and have been recognized in this State for a good many years.” Hancock v. Henderson, 236 Md. 98, 102 , 202 A.2d 599, 601 (1964); Shpak ⁴⁸⁷ v. Oletsky, 280 Md. 355, 360 , 373 A.2d 1234, 1238 (1977).

As we stated in Calvert Joint Venture # 140, “[ijmplied easements by necessity arise from a presumption that the parties intended that the party needing the easement should have access over the land.” 373 Md. at 39-40 , 816 A.2d at 866 (citing Greenwalt v. McCardell, 178 Md. 132, 136 , 12 A.2d 522, 524 (1940)). Quoting Mullins v. Ray, 232 Md. 596, 599 , 194 A.2d 806, 807-08 (1963), the Hancock Court stated that easements by necessity typically arise: “ ‘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. Condry v. Laurie, 184 Md. 317, 321 , 41 A.2d 66 [, 68 (1945) ].’ ” Hancock, 236 Md. at 102 , 202 A.2d at 601 ; see also Greenwalt, 178 Md. at 138 , 12 A.2d at 525 (“At common law implied easements of necessity are recognized on the theory that when an owner of land grants a part of it surrounded by his own, he impliedly grants thereby a way to reach it, so that the land will not be rendered unlit for occupancy.”); Zimmerman v. Cockey, 118 Md. 491 , 84 A. 743, 745 (1912); Jay v. Michael, 92 Md. 198 , 48 A. 61, 63 (1900); Mitchell v. Seipel, 53 Md. 251, 267 (1880) (“[WJhere the owner of a close surrounded by his land grants the close to another without any express reservation of a way, if there is no other means of getting to the close, the law will imply a way over the grantor’s land as incident to the grant.”); Oliver v. Hook, 47 Md. 301, 309 (1877) (“[W]here one party deeds to another a parcel of land surrounded by other lands, and there is no access to the land thus conveyed, except over the lands of the grantor, the latter gives the grantee a right of way by implication, over his land to that conveyed by him.”); McTavish v. Carroll, 7 Md. 352, 359 (1855) (“Where a man owns two closes, A and B, with a road from A over B, to the highway, and sells close B, without reserving, in the deed, any right of way, if he has no other road, he may use the one over B as a way of necessity.”). ⁴⁸⁸ In Condry , the Court expounded upon the doctrine of easements by necessity, stating that “[t]he doctrine is based upon public policy, which is favorable to full utilization of land and the presumption that parties do not intend to render land unfit for occupancy.” 184 Md. at 321 , 41 A.2d at 68 . We do not, however, affirm the existence of these easements lightly, as “[i]t is recognized, however, that grants of easements by implication are looked upon with jealousy and are construed with strictness by the courts.” Id.

It must also be recognized that “[a] way of necessity ceases to exist when the necessity for it ceases.” Id. Finally, “[m]ere inconvenience will not be sufficient to justify the finding of a way of necessity. It is only in [the] case of strictest necessity, where it would not be reasonable to suppose that the parties intended the contrary, that the principle of implied easement can be invoked.” Id. at 322 , 41 A.2d at 68 (citing Zimmerman, 118 Md. at 496 , 84 A. at 745 ; Burns v. Gallagher, 62 Md. 462, 472 (1884)). Nonetheless, “Maryland has accepted the general rule that where there is a grant of land without any express reservation of an easement, a reservation is implied if the easement is reasonably necessary for the fair enjoyment of the property.” Greenwalt, 178 Md. at 138 , 12 A.2d at 525 (citing Duvall v. Ridout, 124 Md. 193 , 92 A. 209 (1914); Mitchell, 53 Md. at 272 ). 7 It is also relevant that easements by necessity must be created at the time of the initial grant of the property.

As we stated in Hancock : “If the way of necessity was not implied at the time of the grant ..., it cannot be established by a subsequent necessity. Feldstein v. Segall, 198 Md. 285, 294 , 81 A.2d 610 [ (1951) ]; 28 C.J.S. Easements § 35 b. In other words, the ⁴⁸⁹ necessity must be determined from the conditions as they existed at the time of the conveyance.... Hence a remote grantee of land not being used at the time of severance may nevertheless, when the use becomes necessary to the enjoyment of his property, claim the easement under his remote deed....

This rule is consonant with the generally held view that non-use alone is not sufficient to extinguish a way by necessity. Knotts v. Summit Park Co., 146 Md. 234, 126 [A.] 280 [ (1924) ].” Hancock, 236 Md. at 104-05 , 202 A.2d at 603 (some citations omitted). 3 Herbert T. Tiffany, The Law of Real Property, § 793 (3rd ed.1939, 2004 Supp.) concurs and adds additional commentary: “The intent to create the easement is thus deemed to be shown by the type of transaction involved, and no other evidence is necessary to establish the intent of the parties to create a way of necessity. An easement by necessity also may be created where there are simultaneous conveyances by a common grantor, and one of ths conveyed lots is landlocked and inaccessible, in which case an easement over the other simultaneously conveyed lot to benefit the inaccessible lot may be implied.” (Emphasis added.) (Footnotes omitted.) The prerequisites to the creation of an easement by necessity can be summed up in three parts: (1) initial unity of title of the parcels of real property in question; (2) severance of the unity of title by conveyance of one of the parcels; and (3) the easement must be necessary in order for the grantor or grantee of the property in question to be able to access his or her land, with the necessity existing both at the time of the severance of title and at the time of the exercise of the easement. See also 28A C.J.S. Easements § 93 (2005).

B. Easement by necessity to reach an unaccessible portion of one’s property, where the remaining portion is accessible by public road. Ms. Stansbury argues that the Court of Special Appeals erred in recognizing the existence of an easement by ⁴⁹⁰ necessity to MDR over Lot 9A in order for access to a portion of its property, Lot 10A, which is surrounded on three sides by navigable water and on one side by Ms. Stansbury’s property. Ms. Stansbury asserts that because a portion of MDR’s property, Lot 178, where the residence will be located, has access to a public road, there is no need for MDR to have an easement by necessity. Ms. Stansbury’s argument rests on her assertion that MDR’s predecessor in interest to lots 178 and 10A, Caldwell, consolidated the lots into one lot, which now, as a single entity, has access to a public road.

It is contended that the consolidation of the lots into a single lot ended whatever necessity existed. We do not need to consider whether the Agreement entered into by Caldwell actually “consolidated” lots 178 and 10A as it is not determinative as to whether an easement by necessity exists in this situation. The parcel of land identified as lot 10A, consolidated or not, remains inaccessible except over Ms. Stansbury’s property, lots 179 and 9A. Thus, without a way of necessity the public policy of full utilization of land is frustrated.

Additionally, we do not presume that the parcel of land identified as Lot 10A was at the time of the transfer in ownership between Ms. Stansbury and her brother granted with the intent that it be “unfit for occupancy,” which would be the result for that area identified as Lot 10A, should we decline to recognize that an easement by necessity exists over lot 179 or 9A, or both. Condry, 184 Md. at 321 , 41 A.2d at 68 . The unity of title in the affected parcels existed until 1986, when Ms. Stansbury executed a deed