Turner v. Bouchard

MATRICCIANI, J. Appellee, Donald E. Bouchard, filed a declaratory judgment action against his neighbors, appellants, John T. Turner and Marie Turner (collectively, “Turner”), on April 16, 2007 in the Circuit Court for Calvert County. Following a bench trial on April 2, 2008 and April 25, 2008, the circuit court on August 25, 2008 issued an opinion and order holding that Bouchard had a prescriptive easement over a portion of Turner’s property and placing various restrictions on the use of the easement. Turner noted timely an appeal to this Court on September 8, 2010. Question Presented Turner presents one question for our review, which we have rephrased as follows: 1 ⁴³⁶ I. Did the circuit court err in-holding that Bouchard has a prescriptive easement over a portion of Turner’s property?

For the reasons that follow, we answer no and affirm the judgment of the circuit court. Factual and Procedural History The parties to this case own and live on two adjacent properties on Big Bear Lane in the town of Lusby, Maryland. Turner owns 11730 Big Bear Lane (“lot 17”) and Bouchard owns 11734 Big Bear Lane (“lot 16”). The back yards of both lots abut Lake Lariat, a man-made lake used by both parties for recreational purposes.

It is undisputed that Bouchard has an express easement, granted by a properly recorded deed, over a portion of Turner’s property to serve as a driveway for pedestrian and vehicular ingress and egress to Bouchard’s property. 2 This case concerns a portion of lot 17 that is outside the boundary of the express easement (the “disputed area”). Chain of Title Both lot 16 and lot 17 were previously owned by Luther and Dorothy Muth. The Muths improved lot 16 by building a house, a crushed stone driveway, and a concrete retaining wall. A portion of the driveway and retaining wall were located on lot 17, but lot 17 was otherwise unimproved and did not have a house.

The Muths sold lot 16 to Bouchard on October 29, 1975. Because the home on lot 16 was within a few feet of the property line, the Muths conveyed by separate recorded deed an express easement across a small portion of ⁴³⁷ lot 17 “to serve as a driveway for pedestrian and vehicular ingress and egress to a portion of’ Bouchard’s property. Bouchard has owned lot 16 continuously (previously with his wife and now as sole owner) since he purchased it in 1975. From 1975 to 1980 Bouchard used lot 16 “as a recreational place for the family.” From 1980 until 1999 Bouchard used lot 16 as a rental property.

The house on lot 16 did not become Bouchard’s primary residence until 2000. Turner’s parents have owned property in the subdivision since 1963, when they purchased lots 96 and 97. Those lots are also on Big Bear Lane, across the street and around the corner from lots 16 and 17. In 1967 Turner’s parents built a cottage on their lots.

They initially used the cottage as a vacation home, but moved there full time in the early 1970’s. After building the cottage, Turner’s parents bought a third lot in the subdivision, lot 18, adjacent to lot 17. Lot 17 was at that time still owned by the Muths. The Muths sold lot 17 to Bouchard and Turner’s parents on December 9, 1980 as tenants in common.

On August 24, 1984 Turner’s parents bought out Bouchard’s interest in lot 17 and became the sole owners of the property. Both the 1980 and the 1984 deeds expressly incorporated the express easement. From 1980 until 2005, Turner’s parents used lots 17 and 18 as a recreational gathering point for the family. In 2005, Turner purchased lot 17 from his parents and built a house there. 3 The Disputed Area The express easement is a sixty-one foot, three inch long trapezoid bounded on the south by the property line separating lot 16 from lot 17. 4 At its most intrusive point, the express ⁴³⁸ easement extends northerly into lot 17 eight feet, where it runs parallel to the property line for twenty-eight feet, nine inches.

The eastern and western boundaries of the express easement are lines connecting the two parallel sides of the trapezoid at roughly forty-five degree angles to the property line. 5 The properties share a concrete retaining wall that begins on lot 16, crosses the property line in a north-easternly direction, turns and veers approximately parallel to the property line, and then ends on lot 17. The retaining wall is entirely outside the boundary of the express easement. The disputed area can be most easily conceptualized as two shapes. The western portion of the disputed area is on lot 17 between ⁴³⁹ the retaining wall and the trapezoidal express easement.

The eastern portion of the disputed area is a rectangle beginning at the retaining wall and continuing to the lake, bordered by the property line with lot 16 and a line parallel thereto. Bouchard used the western portion of the disputed area as a driveway to access his house and to park vehicles. He used the eastern portion of the disputed area to store various watercraft, as a picnic area, and as access to the lake. The parties disagree over whether there is an easement in the disputed area, and if so, the size of the easement; who may use the easement; how the easement may be used permissibly; and who is responsible for maintaining the easement.

The Lawsuit The circuit court described the origins of the suit as follows: In 2006 the Turners demanded that the [Bouchards] cease using the Disputed Area. According to the Turners, the Bouchards were not entitled to use these portions of the land that was located on lot 17 between the lot line and the retaining wall. When [Bouchard] continued his use of the Disputed Area, the Turners physically moved some of the blocks that composed a portion of the retaining wall into the middle of the Bouchard driveway, which they believed to be the true boundary line of the easement. On April 16, 2007 Bouchard filed a complaint for declaratory judgment under Maryland Code (1973, 2006 Repl.Vol.), Courts & Judicial Proceedings Article § 3-406.

Bouchard argued that he had established a prescriptive easement over the disputed area and asked the circuit court to declare as such and determine the rights and liabilities of the parties. In an opinion filed on August 25, 2010, the circuit court found: [Bouchard], through a prescriptive easement, has the right to continue to use the Disputed Area. However, [Bouchard] cannot do anything that interferes with the Turners’ use and enjoyment of the land. Beach access cannot be ⁴⁴⁰ blocked by either party.

The Bouchards cannot store boats or other personal property on the portion of the prescriptive easement that extends beyond the retaining wall to the water. The Turners cannot construct a wall, fence, or any type of structure or impediment, which will prevent the Bouchards from being able to use or access the easement. The Turners retain full ownership of the land within the easement on lot 17, but they are the servient owners and therefore cannot prevent the use of the easement by Mr. Bouchard. Likewise, Mr. Bouchard does not own the land subject to the easement and therefore cannot interfere with the Turners’ use and enjoyment of the land.

Neither side is to interfere with the beach access of the other. In an attached order filed on the same day, the circuit court declared the extent of use and the prescriptive easement and the parties’ various responsibilities for maintenance of the easement as follows: FOUND, that [Bouchard] has an express easement over [Turner’s] property, as described in the 1975 deed, and incorporated by reference in the 1980 and 1984 deeds conveying lot 17; and it is further FOUND, that [Bouchard] has a prescriptive easement over the portion of lot 17, which lies between the concrete block wall and the property line between lots 16 and 17, and from the end of the block wall (in the center of the picture attached hereto) on lot 17 to the water’s edge; and it is further ORDERED, that [Bouchard] may use both his express easement and prescriptive easement for ingress and egress onto lot 16, parking cars, beach access, and for other activities that do not affect the use and enjoyment of the land owned by [Turner]; and it is further ORDERED, that there is to be no storage of boats or other personal property on the portion of the easement on the water side of a line running from the end of the wall and running perpendicular to the lot line; and it is further ⁴⁴¹ ORDERED, that the care and maintenance of the easement within the retaining wall is the responsibility of [Bouchard]; and it is further ORDERED, that the care and maintenance of the easement from the bottom of the retaining wall to the water’s edge is the responsibility of [Turner]. Turner filed timely an appeal to this Court on September 8, 2010. 6 Discussion An easement is a nonpossessory interest in the real property of another. An easement can be created expressly or by implication.

One type of easement created by implication is an easement by prescription. Jurgensen v. New Phoenix Atl. Condo. Council, 380 Md. 106, 122-23 , 843 A.2d 865 (2004) (internal quotation and citations omitted).

To establish an easement by prescription a person must make an adverse, exclusive, and uninterrupted use of another’s real property for twenty years. Shuggars v. Brake, 248 Md. 38, 45 , 234 A.2d 752 (1967). As a general rule, a permissive use of another’s land cannot ripen into a prescriptive easement. Phillips v. Phillips, 215 Md. 28, 33 , 135 A.2d 849 (1957).

It is undisputed that Bouchard had an express easement over a portion of Turner’s land for ingress and egress. The parties differ over whether Bouchard’s use of the disputed area outside the express easement created a prescriptive easement over the disputed area. Enlargement by prescription of an express easement is rare. We note the following: “The comparatively few cases which a comprehensive search has revealed as involving the point clearly indicate that where an easement is granted for use in a specified manner or for a specified purpose, an open and continuous use thereof, under a claim of right, for the prescriptive period ⁴⁴² for purposes or in a manner beyond the scope of the grant, will create an easement of the larger scope by prescription, although in the majority of such cases the enlarged easement was held in fact not to arise because of a lack of the elements necessary to create it.” Annotation, Enlargement of Easement by Use for Purpose or in a Manner Other Than That Specified in the Grant, 110 A.L.R. 916 (1937).

On review, we first address Turner’s arguments as to the parties’ burden of proving the prescriptive easement. Once the burden-shifting issue is resolved, we will review the circuit court’s factual findings to see if they support the elements of a prescriptive easement. I. Standard of Review Our review of the circuit court’s order is governed by Rule 8-131(c), which provides: When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witness. “The clearly erroneous standard does not apply to the circuit court’s legal conclusions, however, to which we accord no deference and which we review to determine whether they are legally correct.” Cattail Assocs. v. Sass, 170 Md.App. 474, 486 , 907 A.2d 828 (2006).

Additionally, “discussing Maryland Rule 886, predecessor to Rule 8-131(c), the Court found that it is equally obvious that the clearly erroneous portion of [the] Rule [ ] does not apply to a trial court’s determinations of legal questions or conclusions of law based upon findings of fact.” Garfink v. The Cloisters at Charles, Inc., 392 Md. 374, 383 , 897 A.2d 206 (2006) (internal quotations and citations omitted) The issue raised in this case, whether Bouchard’s use of the disputed area established a prescriptive easement, is a legal question involving the interpretation of Maryland case law as it relates to prescriptive easements. Therefore, ⁴⁴³ we will review the issue de novo. Banks v. Pusey, 393 Md. 688, 696 , 904 A.2d 448 (2006). In addition, whether the circuit court properly assigned the burden of proving the elements of a prescriptive easement is a question of law, and shall be reviewed de novo.

Conversely, the circuit court’s holding that Turner failed to carry the burden of showing a permissive use was a factual determination, and shall be reviewed under the clearly erroneous standard. Mavromoustakos v. Padussis, 112 Md.App. 59, 70, 74 , 684 A.2d 51 (1996). Likewise, the circuit court’s holding that the disputed area did not qualify for the so-called “woodlands exception” was a factual determination, and shall be reviewed under the clearly erroneous standard.

II

Burden of Proof Turner argues that the circuit court erred, for two reasons, in not assigning Bouchard the burden of proving that his use of the disputed area was adverse. First, Turner contends that because there is an express easement Bouchard’s use of the disputed area was permissive. Therefore, Turner concludes, Bouchard must provide affirmative evidence of a change to an adverse use. Alternatively, Turner argues that lot 17 qualifies for the “woodlands exception,” which is recognized in Maryland and would result in a presumption that Bouchard’s use of the disputed area was permissive.

A. Presumption of Adverse Use Ordinarily, the person claiming a prescriptive easement bears the burden of showing that “it has had the character and is of the duration required by law.” Dalton v. Real Estate Imp’v’t Co., 201 Md. 34, 41 , 92 A.2d 585 (1952). “When a person has used a right of way openly, continuously, and without explanation for twenty years” it is fair to presume adverse use. Kirby v. Hook, 347 Md. 380, 392 , 701 A.2d 397 (1997). In such a case, “[t]he burden then shifts to the [servient] landowner to show that the use was permissive.” Id. The burden will not shift, however, if the use appears to ⁴⁴⁴ have been by permission.

Cox v. Forrest, 60 Md. 74, 79 (1883). The Court of Appeals has explained: Black’s Law Dictionary defines a “presumption” as “[a] legal inference or assumption that a fact exists, based on the known or proven existence of some other fact or group- of facts.” Black’s Law Dictionary 1223 (8th ed. 2004). Logic dictates that a presumption of adverse use is created only when there is an absence of any evidence which would indicate that [the use was permissive]. Or, phrased another way, it is only when no appearance of permission permeates the record, that a presumption of adverse use will arise.

In the absence of such a presumption of adverse use, the burden of establishing such use is on the party claiming it. This is supported by the general rule that the creation of an easement by prescription is not favored by the law. Herbert T. Tiffany, The Law of Real Property, § 793 (3d ed.1939, 2006 Supp.) Banks, 393 Md. 688, 701 , 904 A.2d 448 (other internal citations omitted). Turner relies on Feldstein v. Segall, 198 Md. 285 , 81 A.2d 610 (1951), for the proposition that Bouchard’s use of the disputed area was permissive.

There, Feldstein filed suit against Segall in the Circuit Court for Baltimore City to establish the widening by prescription to twenty-three feet of a ten foot right of way granted by deed. The circuit court allowed Feldstein’s claim to a twenty-three foot right of way as to the southern portion of the claimed easement by prescription, and disallowed the claim as to the northern portion. The circuit court entered an order enjoining Segall from obstructing the southern portion of the expanded twenty-three foot right of way and the northern portion of the ten foot express right of way, and the parties filed cross-appeals. The Court of Appeals reversed the judgment of the circuit court and dismissed the complaint.

The Court recognized that an express easement may be widened by prescription, but cautioned that “use originally permissive or of right is presumed to continue, and there must be affirmative evidence of ⁴⁴⁵ change to adverse use.” Feldstein, 198 Md. at 295 , 81 A.2d 610 . The Court held that Feldstein’s use of the servient tenement was with permission of a prior owner of Segall’s property, and was so miscellaneous and promiscuous that it could not be called either adverse or exclusive. In holding that Feldstein did not establish a widened easement by prescription, the Court concluded that to “acquire title by adverse possession to one’s neighbor’s property the evidence must show something more than bad manners and unneighborly conduct.” Id. at 296 , 81 A.2d 610 . Thus, Feldstein is consistent with our observation at the outset that in most cases, an enlarged easement by prescription does not arise “because of a lack of the elements necessary to create it.” See 110 A.L.R. 916 .

Turner interprets Feldstein to stand for the propositions that: (1) an express easement cannot be enlarged by prescription unless the dominant tenant can show affirmative evidence of a change to adverse use; and (2) there is a heightened burden of proof between neighbors. As to the first proposition, Feldstein is distinguishable for two reasons. First, a previous owner of the servient estate gave the easement holders permission to cross his property. Only because the use was permissive did the burden shift to the easement holder to show affirmative evidence of a change to an adverse use.

Second, the use of the servient tenement was so miscellaneous and promiscuous that it failed to meet the adverse or exclusive elements of a prescriptive easement. Under Feldstein , the mere existence of an express easement does not necessarily create a presumption that a use in excess of that express easement is permissive. As to the second proposition, Turner’s interpretation of the Court’s statement that unneighborly conduct cannot support title by adverse possession is overly broad. In Mavromoustakos v. Padussis, a case involving a disputed prescriptive easement between adjacent property owners, we declined to adopt the approach of District of Columbia courts that “neighborly accommodation” is sufficient to rebut the ⁴⁴⁶ presumption of adverse use. 112 Md.App. 59, 68 , 684 A.2d 51 (1996).

We explained that the District of Columbia applies a different burden shifting scheme than Maryland: In Maryland, by contrast, in order to rebut the presumption of adverse use, the servient owner must do more than merely present evidence of permission—he or she must prove its existence by affirmative evidence. As in most civil actions, the claimant satisfies this requirement upon a showing that it is more likely than not that the land was used with permission or license. As previous cases have demonstrated, merely presenting “some evidence” of permission will not overcome the presumption of adversity in this State, as it would in the District of Columbia. In effect, once it is established that a presumption of adverse use applies in Maryland, the burden of persuasion shifts to the servient owner, and remains there.

Mavromoustakos and Feldstein , taken together, refute Turner’s argument that there is a heightened