USA Cartage Leasing, LLC v. Baer

KEHOE, J. This appeal involves an easement dispute between two adjoining landowners: USA Cartage Leasing, LLC (“Cartage”), appellant, and Todd A. Baer, appellee. Their properties (the “Cartage Parcel” and the “Baer Parcel,” respectively) abut Governor Lane Boulevard in Washington County. Edwin B. Glesner, Jr. and Rebecca A. Glesner (the “Glesners”), who are also parties to the case, 1 are predecessors in title to both Cartage and Baer. ¹⁵² After earlier granting Baer’s motion for summary judgment as to the existence of an easement across the Cartage parcel, the Circuit Court for Washington County entered a judgment, which it certified as final for purposes of appeal, declaring that Baer had a right-of-way 2 over a portion of the Cartage Parcel, establishing a precise location for the right-of-way and enjoining Cartage from interfering with Baer’s use of it. This appeal followed.

Cartage presents eight issues, which we have condensed and rephrased as four questions. In addition, we must consider a preliminary question, not raised by the parties, as to our own jurisdiction to consider the appeal. 3 Accordingly, we shall consider the following questions, in this order: 1. Is the declaratory judgment appealable, either as an interlocutory order or as a permissible exercise of the circuit court’s discretion under Maryland Rule 2-602(b)? 2. Did the purported easement over Cartage’s land fail for lack of sufficient description and lack of agreement as to location? 3.

Did the circuit court err by using the balancing analysis developed in implied easements by necessity cases in order to locate the purported express easement on the ground? 4. Did the circuit court err in granting summary judgment as to Cartage’s defenses of estoppel, abandonment, and adverse possession? 5. Did the circuit court err or abuse its discretion in identifying a specific location for the easement across the Cartage parcel? We will decide that the appeal is properly before us.

We will explain why in Part I of this opinion. In Part II, we set forth the appropriate standards of review. In Part III, we ¹⁵³ discuss why the circuit court correctly decided that the easement was not void because of an inadequate description or the lack of an agreement as to its location. In Part IV, we conclude that a balancing analysis, similar to that employed by courts in implied easement cases, as an appropriate means to specify a precise location for the right-of-way in this case.

However, as we will explain in Part V, the circuit court erred in entering summary judgment in light of disputed material facts concerning Cartage’s adverse possession defense. In light of this holding, it is unnecessary for us to decide whether the circuit court correctly applied the balancing analysis to determine an exact location for the easement but we will provide guidance to the court and the parties as to this issue on remand in Part VI. Therefore, we will vacate the judgment of the circuit court and remand the case for further proceedings. BACKGROUND Our statement of facts is drawn from what is undisputed in the parties’ pleadings and summary judgment papers, taken in the light most favorable to Cartage, as the non-moving party.

The Glesners acquired what are now the two properties at issue in 1984. At that time, the parcel was a single 5.26-acre lot, located at the southeasterly intersection of State Route 68 and Governor Lane Boulevard. The northerly boundary 4 of the parcel abutted Governor Lane Boulevard; the southerly boundary backed up to railroad tracks owned by Conrail. The property was bounded on the west by Maryland Route 68 and on the east by another property.

In 1985, the Glesners subdivided the lot into two roughly rectangular parcels. At the time, they retained one parcel (now owned by Cartage) and conveyed the other (now owned by Baer) to M.K.S. Development. Of central importance to this appeal, the deed to M.K.S. also granted it an easement ¹⁵⁴ over the Cartage Parcel, described as “a non-exclusive right-of-way 25 feet in width, leading from the existing entrance from Governor Lane Boulevard, shown on the Plat of the above-referenced property, recorded at Plat folio 1806, to the property hereby conveyed.” The deed did not otherwise describe the easement. The plat referred to in the deed was prepared in November 1984 by Fox & Associates, Inc. (the “Fox Plat”), which we reproduce (not to scale) on the following page.

The Fox Plat showed an “Exist[ing] Entrance” to the Cartage Parcel from Governor Lane Boulevard, near the dividing line between the Cartage Parcel and the Baer Parcel. Just on the other side of the dividing line between the two parcels, the Fox Plat also showed a “Prop[osed] Entrance” to the Baer Parcel from Governor Lane Boulevard, of similar dimensions to the “Exist[ing] Entrance” on the Cartage Parcel. However, the Fox Plat did not mention or depict the easement. We reproduce the plat (not to scale and with language added to identify the parcels). [[Image here]] The Baer Parcel changed hands several times before it came to be owned by Baer.

In November 1988, M.K.S. conveyed the property to Patrick Grunberg and Lee U. Michael. ¹⁵⁵ This deed expressly conveyed the “non-exclusive right-of-way 25 feet in width” over the Cartage Parcel, using the description taken verbatim from the Glesner/M.K.S. deed. Just over a month later, Michael deeded his interest in the Baer Parcel to Grunberg. This deed did not expressly mention the right-of-way. In November 1992, Grunberg conveyed the Baer Parcel to Donald L. Baer and Joan H. Baer (“Mr. and Mrs. Baer”), who are Todd Baer’s parents.

Once again, the deed did not refer to a right-of-way over the Cartage Parcel. In early 2008, two additional deeds pertaining to the Baer Parcel were filed. The first was a confirmatory deed from Grunberg and the Personal Representative of the Estate of Lee U. Michael. 5 This deed recounted that the deed from M.K.S. to Grunberg and Michael had conveyed the Baer Parcel along with the right-of-way and, although the deeds from Michael to Grunberg and from Grunberg to the Baers did not expressly refer to the right of way, the grantors of those deeds intended to convey to their respective grantees all rights appertaining to the Baer Parcel, including the right-of-way. The deed reconveyed the Baer Parcel to the Baers with a description that included the description of the right-of-way using language identical to that in the Glesner/M.K.S. deed.

The second deed, both in date of execution and filing, was a deed by which Mr. and Mrs. Baer conveyed the Baer Parcel to their son, Todd A. Baer. This deed included a reference to the right-of-way. In the meantime, the Cartage Parcel changed hands only once. The Glesners conveyed that lot to Cartage by a deed dated April 7, 1995 (i.e., after Grunberg had conveyed the Baer Parcel to the Baers in 1992, but before the confirmatory deed and the deed from Mr. and Mrs. Baer to Todd Baer were filed in 2008).

The deed to Cartage made no mention of the right-of-way over the Cartage Parcel. ¹⁵⁶ Cartage is a commercial trucking business. While the record is not entirely clear as to all of the specifics, at one time Cartage leased the property from the Glesners. After the lease terminated, there was a period of time, perhaps four years, before Cartage purchased the property. The Cartage Parcel is developed for commercial use, with at least one building on it, although the date of the building’s construction is uncertain.

The portion of the Cartage Parcel that is immediately adjacent to the Baer Parcel is a gravel parking lot'for trucks and other vehicles. The Baer Parcel, in contrast, is undeveloped. On August 4, 2008, Baer filed a Complaint for Declaratory Judgment and Other Relief against Cartage, which contained two counts. The first count sought a declaratory judgment that Baer “holds a legally valid and effective right-of-way over [Cartage’s] Property.” Although Baer conceded that “[t]he location of [Baer’s] Right-of-Way is not specified in the language of the deeds in the chain of title from the Glesners to [Baer], and has not been determined by custom or usage by [Baer] or his predecessors in title,” he nevertheless alleged that the Cartage Parcel “was and is now subject to [Baer’s] right of way.” As an exhibit to his complaint, Baer attached a plat prepared by Davis, Renn & Associates, Inc. (the “DavisRenn Plat”), showing a proposed location of the easement, E54, which he asserted was “the least burdensome location for a 25-foot right of way capable of providing reasonable commercial ingress and egress from the ‘existing entrance’ shown on the [Fox] Plat to [the Baer] Property.” Baer asked the court to “[d]eclare that the proper location of [Baer’s] Right-of-Way is shown on [the Davis-Renn Plat] or, in the alternative, determine a reasonable location for [Baer’s] Right-of-Way.” The second count of Baer’s complaint alleged that Cartage, “without just cause or excuse, has interfered with and continues to interfere with [Baer’s] lawful use of enjoyment of [Baer’s] Right-of-Way.” He sought an injunction prohibiting Cartage from such interference, as well as damages of $250,000. ¹⁵⁷ In its answer, Cartage denied any liability and raised, among others, the defenses of waiver, laches, estoppel, abandonment, and adverse possession.

Cartage filed a one-count counterclaim seeking to quiet title to the Cartage Parcel, free of Baer’s asserted right-of-way. In addition, Cartage filed a third party complaint for damages and related relief against the Glesners, alleging that the Glesners breached a warranty of title contained in the Glesner/Cartage deed. On July 13, 2009, Baer filed a motion for summary judgment. After recounting the deed transactions we have reviewed, Baer asserted that the right-of-way is part of the chains of title to both parcels.

Baer acknowledged that the location of the right-of-way had not been previously established. Nevertheless, he maintained that he “has not abandoned the Right-of-Way, and USA Cartage has provided no evidence of abandonment sufficient to meet the standard required by Maryland law.” Moreover, he contended that Cartage could not adduce evidence sufficient to establish a claim for adverse possession. To support these allegations, Baer provided excerpts of a deposition of Ralph Richmond, a member of USA Cartage Leasing, LLC. Richmond’s deposition testimony was a substantial basis for the circuit court’s decision to grant summary judgment in Baer’s favor.

We will summarize the most relevant portions. Richmond testified that Cartage began leasing the Cartage Parcel beginning in 1986 (ie., shortly after the Glesners subdivided their property and sold the Baer Parcel to M.K.S. in 1985). At that time, there was a line of “old telephone poles” already in place, laid flat on the ground end-to-end, running parallel with the boundary line with the Baer Parcel. The line of telephone poles ran from the rear property line separating the Cartage Parcel from the adjacent railroad property to within a short distance of the front property line at Governor Lane Boulevard.

The poles covered “the entire area ... that you could come into with a vehicle,” and their purpose was “to keep vehicles from going over them” in situations in which one would “back[ a] trailer against it or ears going up, or trucks going into—over the area.” Rich ¹⁵⁸ mond was not aware of any vehicle ever going over the poles, and there were no vehicles in Cartage’s possession that “would be able to go over them.” He opined that “there would be no way to go over the poles.” When asked if there would be any way to go “around the poles,” he responded: “I don’t know that. Again it depends on the vehicle, I guess____I mean you would not take your—like a car[ ] and do that.” He indicated that “whatever they’re capable of blocking today, they’ve been capable of blocking continuously for twenty years.” Richmond recalled that, shortly after Cartage purchased the property, the company moved the line of poles closer to the boundary with the Baer Parcel, and “put gravel in,” so as to create “extra space for parking.” Aside from that relocation, the poles had “[n]ever,” to Richmond’s knowledge, been “moved or disturbed ... during [Cartage’s] ownership of the property.” 6 In December 1994, after it signed a contract to buy the Cartage Parcel from the Glesners, Cartage applied for a variance to county setback requirements so that it could expand the existing building. Both Richmond and Donald Baer (Baer’s father) participated in the hearing before the county zoning board. According to Richmond, Mr. Baer initially opposed Cartage’s variance request.

At some point in the hearing, it was suggested that the variance would be granted if Cartage ¹⁵⁹ would agree to plant a row of trees along its boundary with the Baer Parcel. Richmond could not recall specifically whether Mr. Baer, or a member of the zoning board, first made the suggestion but, once the suggestion was made “[t]hey just came to an agreement on it at that point, and then we were allowed to have the variance. [Mr. Baer] was good that if we would ... completely block off trees here, and everybody was good with that.” When asked whether it was Richmond’s “position ... that Donald Baer insisted on a particular type of screen,” Richmond stated: “That is not my position.” Richmond also did not recall whether Mr. Baer “insisted on screening being put along the entire property boundary.” Richmond did not remember the “exact words” of the discussion that took place at the hearing, but stated, “all I remember is that [Mr. Baer] finally came across that he would go with the board[’]s decision to allow us to have that variance.” Approximately six months after the hearing, Cartage planted a line of “roughly” twenty Leyland Cypress evergreen trees, “[e]nough to completely cover [the property] line,” within “two feet inside of our property line.” Thereafter, as mentioned, the line of telephone poles was moved closer to the boundary line between the Cartage Parcel and the Baer Parcel, such that the poles were situated “just in front” of the tree line. The immediately adjacent area on the Cartage Parcel became “gravel parking for trucks.” The trees have remained in place throughout the proceedings in the circuit court. According to Baer’s summary judgment motion, Richmond’s deposition testimony demonstrated that Donald Baer’s insistence on a barrier between the properties came in the context of the elder Baer’s opposition to Cartage’s variance request, and that Donald Baer’s objections were related to the capacity of the Cartage Parcel to handle an increased volume of truck traffic and a concern “that any storage areas that USA Cartage might install on the property ... may become an eyesore.” Therefore, reasoned Baer, “Donald Baer’s testimony at the variance request hearing ... was clearly related to ¹⁶⁰ his concerns regarding protecting his real estate investment, and not for the purpose of abandoning the Right-of-Way.” Baer further argued that Richmond’s testimony that there were “telephone poles laying end to end along the boundary line” between two properties did not establish adverse possession, because Cartage could not show that the telephone poles had continuously and completely blocked the right-of-way for a twenty-year period.

Moreover, Baer asserted that Richmond’s testimony demonstrated that the poles were not placed with the intention of blocking use of the right-of-way, but rather were placed so as to “ ‘keep vehicles from going over them’ when trucks would back up to the poles and park on USA Cartage’s property.” (Quoting Richmond’s deposition testimony). Cartage filed a multi-pronged defense to the motion. First, it argued that the attempted grant of the easement failed ab initio because: there was no evidence to show the intended location of the easement; the court could not determine a “location that never existed”; and “this is not a case requesting a way by necessity.” Second, Cartage contended that, even if “an easement had ever formed,” Baer’s predecessors in title had abandoned it. Further, Cartage suggested that the fact that “the ambiguous right-of-way language” was “dropped from the deed chain” constituted clear evidence of acquiescence in the loss of the easement.

Finally, Cartage maintained that the easement, if it existed at all, had been extinguished through adverse possession by Cartage and its predecessor’s-in-title. As exhibits to its opposition, Cartage attached an affidavit of Richmond and excerpts from a deposition of Donald Baer. We will now summarize the most relevant portions of each. In his affidavit, Richmond stated: “There is no indication on the USA Cartage parcel that a right-of-way exists, or has ever existed.” Further, he averred: The landscape has always evidenced the opposite, that there has been no visible use of the parcel as a right-of-way.

No paving has occurred. Trees and grass existed prior to ¹⁶¹ 1995, and further trees were planted as a landscape barrier thereafter, which exist to this day. Railroad ties [ 7 ] laid end-to-end across the area were utilized as backstops for trucks, preventing any vehicular traffic across since 1986. Large trucks have been parked daily for many years within that area now claimed by [Baer] for a right-of-way.

In his deposition, Donald Baer testified that, until his son Todd Baer realized that there was a possible right-of-way “in about 2006,” neither he nor his wife and co-tenant Joan Baer had been aware that any right to an easement over the Cartage Parcel existed. Indeed, during their ownership of the Baer Parcel, they “never used an easement or a right-of-way to get to [their] property over the USA Cartage parcel,” nor had they seen anyone else do so. They never had any discussions with Richmond or the Glesners regarding a right-of-way, nor did they ever complain to Richmond or the Glesners about obstruction of the right-of-way. While Donald Baer did not remember the details of the variance hearing at which the tree screen was proposed, he did not recall objecting to the proposal, or objecting to the placement of the trees or the “parking configuration that was then put in by USA Cartage.” When asked whether he “approved of the trees being placed in there,” he responded: “Well, it didn’t bother me so I guess I did.” While the summary judgment motion was pending, Cartage, with the Glesner’s consent, filed a consent motion for a separate trial of its third-party claims against them.

The circuit court granted the motion on August 10, 2009. The summary judgment motion was heard the next day, August 11, 2009. At the conclusion of the hearing, the circuit court granted Baer’s motion for summary judgment. At the ¹⁶² outset of his remarks, the trial judge recited the language from the deed to M.E.S. that created the purported easement, and stated: I don’t know why it was contemplated that Mr. Baer’s predecessor in title ever needed a right of way over the servient estate.

They clearly have plenty of road frontage____[Cjlearly, it’s not an easement by necessity in any way, shape or form. And there’s no evidence to show why it was put there ... or for that matter why Mr. Baer needs it because he has other access. But I don’t think those facts [are] relevant. I’ll assume for the sake of motion in the light most favorable to [Cartage] that this was done arbitrarily or maybe even ... inadvertently....

These considerations notwithstanding, the court observed that the easement “is a matter of record,” and “clearly should have been brought up in a title search of either property.” The court noted that, even though “subsequent deeds dropped this specific language[,] ____ [i]t doesn’t have to be specifically mentioned. That’s what title searches are for.” Citing Rogers v. P-M Hunter’s Ridge, LLC, 407 Md. 712 , 967 A.2d 807 (2009), the court determined that the language in the deed “does not create a specific easement of right of way but a general easement of right of way.... The general right of way isn’t extinguished under the Rogers holding simply because it isn’t specifically described where it exists or there’s not other evidence like an existing trail.... ” In the court’s view, “one way to determine” the location of a general easement “is by usage and custom.” However, the court stated: [a]nother way would just be consistent with the language of the cases that deal with right of way of necessity where it’s the least obtrusive. Where it would be most convenient.

Where it would ... impact on the servient ... estate the least. The court opined that the easement should be located such that it would cause “very minimal intrusion to the USA ¹⁶³ Cartage Parcel.... It should go somehow in a direct and convenient way from the existing entrance to ... the Baer Parcel.” The court also rejected Cartage’s abandonment and estoppel defenses. It stated that there was no evidence that Donald Baer “ever intended to abandon the right of way.

Simply ... not knowing you have a right doesn’t mean you’ve intended to abandon the right.” In the court’s view, “acquiescing to trees being planted or railroad ties or telephone poles being placed there, [while] not knowing about the right of way is not evidence of intent to abandon the right of way.” Further, the court rejected the claim that the parking of trucks on the Cartage Parcel was relevant to the abandonment claim, stating: “Trucks aren’t fixtures. They can come and go.” “For the same reason,” the court said, “there’s not estoppel.” The court decided that Cartage’s adverse possession claim “also fails.” It explained: There was never any evidence that USA Cartage was intending to make this their property by putting insurmountable barriers up. Telephone poles, railroad ties are not permanent fixtures that can’t be moved. Trucks that are parked there every day, obviously can be moved to some other location.

There’s never been any claim of right that USA Cartage has. They had the right to use it, too. He owns the fee simple property underneath the right of way. He can use it in any way that’s not inconsistent with [the] right of way.

Because the right of way can be place and these ... telephone poles and barriers can easily be put ... aside. Mr. Richmond’s affidavit talks about the telephone poles or the barriers.... But in his deposition he does say that these poles have been there for more than twenty years.... So, it was, in effect, the purposes to keep the vehicles from going over them.

But that doesn’t necessarily mean it was ¹⁶⁴ the intent to block the vehicles from ever going over. It was just indicating where the vehicles were supposed to stop. Accordingly, the court concluded that it would grant summary judgment. The court then observed that the grant of summary judgment “still leaves the issue of where the right of way reasonably should be located.” After discussing procedural options with counsel, the court took testimony on behalf of Baer regarding the location, and held the record open for Cartage to develop an alternative suggestion for the location of the easement.

Baer then presented the testimony of Stephen Cvijanovich, a project manager with Davis, Renn, and Associates, who had prepared the Davis-Renn Plat. The court accepted Cvijanovich as an expert “on the reasonableness of commercial right of ways.” Cvijanovich testified that, after a site visit to the properties with Baer in January or February 2006, he “tried to determine what would be the ... least offensive easement over the lands of USA Cartage to allow ingress/egress to Mr. Baer’s property.” According to Cvijanovich, the Davis-Renn Plat showed a proposed right-of-way with a width of 25 feet and an inside turning radius of 25 feet. He explained: “Once we enter the USA Cartage Parcel via this easement, we immediately turn to the right and head towards Mr. Baer’s property. [T]his is ... probably one of the least offensive easement locations that could be selected.” In his view, there was no other potential location with an acceptable turning radius that would be “less offensive or less onerous to the USA Cartage Parcel.” We set out the Davis-Renn plat (not to scale): ¹⁶⁵ [[Image here]] The day after the hearing, on August 12, 2009, the court entered a written order granting Baer’s motion for summary judgment, and entered judgment in favor of Baer on his complaint, on Cartage’s counterclaim, and on Cartage’s “asserted defenses of abandonment and adverse possession.” ¹⁶⁶ On August 20, 2009, Cartage filed its proposal for the location of the right-of way, which consisted of a copy of the Fox Plat, on which Cartage had shaded a proposed location for the right-of-way that was entirely in the shoulder of Governor Lane Boulevard, and led to the “Prop[osed] Entrance” to the Baer Parcel delineated on the plat. We set out Cartage’s proposal (again, not to scale): [[Image here]] Cartage also submitted an affidavit of Richmond, who asserted that the proposed location would allow Baer “reasonable access to his land” and would be “less burdensome [than] the right-of-way proposed at trial by [Baer].” 8 In response, Baer argued that Cartage failed to present a plausible alternative location which raised any issue of fact as to the proper location of the right-of-way.

Baer pointed out that the entire shaded area on Cartage’s proposal lay within ¹⁶⁷ the public right-of-way for Governor Lane Boulevard. He attached an affidavit from Cvijanovich which stated that use of the shaded area for access to the Baer Parcel would result in unsafe turning motions and, in addition, would violate the “design and regulatory standards and requirements governing any proposed means of ingress and egress” to and from the Baer Parcel. On September 10, 2009, the court entered two orders. The first rejected Cartage’s proposed location for the right-of-way.

The second order was titled “Final Order Declaring Rights of Parties” (the “Declaratory Order”), which recited the facts and procedural history, and noted that Baer sought a declaratory judgment, injunctive relief, and monetary damages, 9 and also sought to quiet title. The Declaratory Order included the following provisions: ORDERED, ADJUDGED, AND DECREED, that [Baer] now holds and enjoys a legally valid and effective express easement or right-of-way over the [Cartage] Property for the purposes of ingress and egress to the [Baer] Property (the “Plaintiffs Right-of-Way”), being 25 feet in width and leading from the Existing Entrance on Governor Lane Boulevard, as shown on the [Fox] Plat, to the [Baer] Property, as set forth in the Glesners to M.K.S. Development deed; and it is further ORDERED, ADJUDGED, AND DECREED, that the Plaintiffs Right-of-Way has not been abandoned or extinguished by adverse possession; and it is further ORDERED, ADJUDGED, AND DECREED, that the proper location of the Plaintiffs Right-of-Way be and hereby is determined to be the Plaintiffs Proposed Location thereof, as depicted on the attached [Davis-Renn Plat], because the Plaintiffs Proposed Location is the location which is the least burdensome to [the Cartage] property and which, at the same time, provides [Baer] with reasonable access to his Property; and it is further ¹⁶⁸ ORDERED, ADJUDGED, AND DECREED, that [Cartage] be and hereby is permanently enjoined from interfering with or disturbing [Baer’s] lawful use and enjoyment of his Right-of-Way over [the Cartage] Property, including [Baer’s] improvement thereof in a manner suitable for vehicular ingress and egress and the removal of any present obstructions or impediments thereto; and it is further ORDERED, ADJUDGED, AND DECREED, that [Cartage’s] Counterclaim be and hereby is dismissed.... On September 21, 2009, Cartage filed a motion to revise the court’s orders to make them final for purposes of appeal pursuant to Maryland Rule 2-602(b), and to continue proceedings on the third party claim until the appeal was decided. After an exchange of pleadings in which the Glesners expressly conceded that they would be bound by the outcome of this appeal but which are otherwise not relevant to the issues before us, the court issued an order granting Cartage’s motion, “finding that there is no just reason for delay.” The order stated that “the orders of this Court dated and entered September 10, 2009 are revised from this date to be final for purposes of appeal” However, the court did not set forth any other reasons in the order for its certification of finality.

Additionally, the court continued the third-party action “pending the resolution of any appeal from this final order.” DISCUSSION I. Appellate Jurisdiction The third-party claim between Cartage and the Glesners has yet to be resolved. It is a “long-standing bedrock rule of appellate jurisdiction, practice, and procedure that, unless otherwise provided by law, the right to seek appellate review ... ordinarily must await the entry of a final judgment that disposes of all claims against all parties.” Silbersack v. AC & S, Inc., 402 Md. 673, 678 , 938 A.2d 855 (2008) (emphasis added) (citations omitted). This rule has exceptions and two are relevant here. First, a party may note an interlocutory appeal from certain types of non-final orders, where statutori ¹⁶⁹ ly authorized by Md. Code Ann., Cts. & Jud.

Prog. (“C.J.”) § 12-303 (1973, 2006 Repl.Vol.); and, second, a party may appeal from an order that has been certified by the trial court as final under Rule 2-602(b). We will examine each possible source of jurisdiction. The Declaratory Order is an appealable interlocutory order under C.J. § 12-303(3)(i), which authorizes interlocutory appeal of an order “[g]ranting or dissolving an injunction.” The Declaratory Order contains an injunctive provision, enjoining Cartage from “interfering with or disturbing [Baer’s] lawful use and enjoyment of his Right-of-Way.” The grant of injunctive relief was predicated on the circuit court’s determination of the validity and location of Baer’s easement.

Because that determination was the basis for the injunction, we are empowered to review that determination on appeal. See County Comm’rs for Carroll County v. Forty West Builders, Inc., 178 Md.App. 328 , 941 A.2d 1181 , cert. denied, 405 Md. 63 , 949 A.2d 652 (2008) (appellate review of a contractual question was proper under C.J. § 12—303(3)(i) because the grant of injunctive relief was predicated on the circuit court’s finding on the contract issue); see also Evans v. State, 396 Md. 256, 327-50 , 914 A.2d 25 (2006); Schisler v. State, 394 Md. 519 , 907 A.2d 175 (2006); Ettridge v. TSI Group, Inc., 314 Md. 32 , 548 A.2d 813 (1988); Bd. of Trustees of the State Colleges of Md. v. Sherman, 280 Md. 373 , 373 A.2d 626 (1977); Hashem v. Taheri, 82 Md.App. 269 , 571 A.2d 837 (1990) (cases where courts have reviewed interlocutory injunctive orders pursuant to C.J. § 12-303(3)(i), not merely to discern the propriety of injunctive relief, but also to address the underlying substantive bases for the injunctions). We also conclude that the circuit court did not abuse its discretion in certifying the Declaratory Order as final for purposes of appeal. We are aware that “the discretion to enter judgment under Rule 2-602(b) ... [is] to be reserved for the ‘very infrequent harsh case.’ ” Silbersack, 402 Md. at 679 , 938 A.2d 855 .

Our task is complicated where, as here, the circuit court does not provide its reasons for certifying its ¹⁷⁰ judgment as final. Under those circumstances, we can afford no deference to the trial court’s decision, Miller Metal Fabrication, Inc. v. Wall, 415 Md. 210, 227 , 999 A.2d 1006 (2010), and the certification order “only will be a valid exercise of the trial court's discretion if the record clearly demonstrates” to the appellate court “ ‘the existence of any hardship or unfairness’ sufficient to ‘justify discretionary departure from the usual rule establishing the time for appeal.’ ” Id. at 228 , 999 A.2d 1006 (quoting Diener Enter. v. Miller, 266 Md. 551, 555 , 295 A.2d 470 (1972)). 10 There are two threshold conditions that must be satisfied before we can review the trial court’s exercise of discretion. First, the order must completely dispose of an entire claim of one or more parties. Planning Bd. of Howard County v. Mortimer, 310 Md. 639, 651 , 530 A.2d 1237 (1987).

Second, the circuit court must, in fact, enter a certification order as provided by the rule; that is, the court must expressly determine in “a written order that there is no just reason for delay” and the order must direct the clerk to enter judgment under Rule 2-601. Tharp v. Disabled Am. Veterans Dep’t, 121 Md.App. 548, 558 , 710 A.2d 378 (1998). Miller Metal sets out the factors we must consider in deciding whether a particular case satisfies Rule 2-602(b)’s requirement that there be “no just reason” to delay entry of a final judgment.

The Court noted that “[cjourts commonly find ‘no just reason for delay’ when delaying an appeal will have a significant adverse economic impact on the party requesting certification.” Id. at 229, 999 A.2d 1006 (citation omitted). However, the Court explained that there are countervailing factors: multiple appeals involving the same issues, the expense of repeated appellate litigation, delay in the timely resolution of the remaining issues in the case, disruption to the orderly operation of the trial court and the possibility that “ ‘partial rulings by the appellate court may do more ¹⁷¹ to confuse than clarify the unresolved issues.’ ” Id. (quoting Lead Indus. Ass’n, 386 Md. at 25-26, 871 A.2d 545 ).

In addition, the Court said: “Certification is also improper when the pending claim, or claims, and the claim subject to appeal ‘arise from a nexus of fact and law so intertwined that if we decide the one now, we may nonetheless face many of the same questions in determining the other later.’ ” Miller Metal, 415 Md. at 229 , 999 A.2d 1006 (quoting Bldg. Indus. Ass’n v. Babbitt, 161 F.3d 740, 745 (D.C.Cir.1998)). The factors identified in Miller Metal must be assessed in the context of “the interests of judicial economy and the strong policy against piecemeal review.” Canterbury Riding Condominium v. Chesapeake Investors, Inc., 66 Md.App. 635, 651 , 505 A.2d 858 (1986).

The focus of the “judicial economy” aspect of the analysis is on appellate, not trial, courts. Tharp, 121 Md.App. at 566 , 710 A.2d 378 . We turn to the case before us. We first note that the circuit court’s order satisfies the threshold requirements for Rule 2-602(b) certification.

The Declaratory Order fully and finally resolved whether Baer is entitled to an easement over Cartage’s land and the precise location of that easement. The circuit court can afford no further relief to Baer; the only remaining issues for determination in the circuit court proceeding involve Cartage’s claim against the Glesners on its breach of warranty, indemnity, and contribution claims. Also, the circuit court complied with the literal dictates of Rule 2-602(b), by “expressly determin[ing] in a written order that there is no just reason for delay” and granting certification, albeit without providing its reasons for doing so. We next consider whether this is an “infrequent harsh case” in which “the record clearly demonstrates ‘the existence of any hardship or unfairness’ sufficient to ‘justify discretionary departure from the usual rule establishing the time for appeal.’ ” Miller Metal, 415 Md. at 228-29 , 999 A.2d 1006 (quoting Diener, 266 Md. at 555 , 295 A.2d 470 ).

We conclude that it is. ¹⁷² First, delaying an appeal will have a significant adverse economic impact upon the parties. Without certification, the Glesners will be forced, perhaps needlessly, to spend time and money to defend against Cartage’s claim, and Cartage will also expend additional resources litigating the issue. While significant, this consideration (or some variant on it) is present in every case in which a Rule 2-602(b) order is entered. Much more important, in our view, is that, until an appellate resolution, Baer is permitted, perhaps unjustly, to cross a portion of Cartage’s property.

This is an affront to “ ‘one of the most essential sticks in the bundle of rights that are commonly characterized as property,’ ” namely, Cartage’s “right to exclude others.” Weems v. County Comm’rs, 397 Md. 606, 619 , 919 A.2d 77 (2007) (quoting Kaiser Aetna v. United States, 444 U.S. 164, 176 , 100 S.Ct. 383 , 62 L.Ed.2d 332 (1979)). The other factors identified in Miller Metal point towards certification. There is little, if any, chance that there will be repeated appeals involving the same issues because the Glesners have agreed to be bound by the results of this proceeding. The remaining issues to be tried are factually and legally distinct from Baer’s right to an easement.

We are not confronted by an inextricably intertwined “nexus of fact and law” making repeated appellate review of the same issues likely or the possibility that “partial rulings by the appellate court may do more to confuse than clarify” the remaining claims. Considerations of appellate judicial economy militate in favor of certification. There is scant “ ‘possibility that the need for review might be mooted by future developments in the [trial] court.’ ” Canterbury Riding Condo., 66 Md.App. at 653 , 505 A.2d 858 (quoting Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2659 at 106). To the contrary, our immediate determination of the appeal may moot the need for further proceedings in the circuit court; and reaching the merits of this appeal will not “require us to determine questions that are still before the trial court.” Id. at 654, 505 A.2d 858 . ¹⁷³ In sum, our independent review of the record discloses that there is “ ‘hardship or unfairness’ sufficient to ‘justify discretionary departure from the usual rule establishing the time for appeal,’ ” Miller Metal, 415 Md. at 228 , 999 A.2d 1006 (citation omitted), and the relevant factors, including the judicial economy of the appellate courts, favor certification.

Accordingly, we discern no abuse of discretion in the circuit court’s Rule 2-602(b) certification. We turn to the merits of the appeal.

II

Standards of Review We will be applying more than one standard of review because the matters before us were resolved by the circuit court in part by way of summary judgment, and in part by way of a bench trial on the limited issue of the proper location of the right-of-way. The circuit court resolved at the summary judgment stage the questions of whether the right-of-way was a valid easement; whether the easement was defeated by Cartage’s defenses of abandonment, estoppel, or adverse possession; and whether the court could locate the easement by use of the equitable balancing analysis applicable to implied easements by necessity. We review those legal determinations under a de novo standard. Myers v. Kayhoe, 391 Md. 188, 203 , 892 A.2d 520 (2006).

Maryland Rule 2-501(f) sets forth the standard to be applied by the circuit court in considering a summary judgment motion: “The court shall enter judgment in favor of or against the moving party if the [summary judgment] motion and response show that there is no genuine dispute of material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” But, “if there is a genuine dispute as to any material fact, summary judgment is improper.” Hill v. Cross Country Settlements, LLC, 402 Md. 281, 294 , 936 A.2d 343 (2007). ¹⁷⁴ Moreover, if the material facts are “ ‘susceptible of more than one inference,’ ” the nonmoving party is “ ‘entitled to the inferences most favorable to his contentions.’” Id. (citation omitted). A material fact is “ ‘a fact the resolution of which will somehow affect the outcome of the case.’ ” Barbre v. Pope, 402 Md. 157, 171-72 , 935 A.2d 699 (2007) (citation omitted). On appeal, we “review independently the record to determine whether the parties generated a dispute of material fact and, if not, whether the moving party was entitled to judgment as a matter of law,” and we “review the record in the light most favorable to the non-moving party and construe any reasonable inferences that may be drawn from the well-plead facts against the moving party.” Tyler v. City of College Park, 415 Md. 475, 498-99 , 3 A.3d 421 (2010) (citations omitted).

III

Was the Easement Void as a Matter of Law? Cartage asserts that the circuit court erred in granting summary judgment to Baer because the easement was legally unenforceable. To understand the parties’ contentions, it is necessary to review briefly certain aspects of the law regarding easements. “ ‘An easement is broadly defined as a nonpossessory interest in the real property of another....’” Rogers v. P-M Hunter’s Ridge, supra, 407 Md. at 729 , 967 A.2d 807 (quoting Boucher v. Boyer, 301 Md. 679, 688 , 484 A.2d 630 (1984)). “‘[A]n easement involves primarily the privilege of doing a certain class of act on, or to the detriment, of another’s land, or a right against another that he refrain from doing a certain class of act on or in connection with his own land....’” Rau v. Collins, 167 Md.App. 176, 185 , 891 A.2d 1175 (2006) (citation omitted). “An easement may be created by express grant, by reservation in a conveyance of land, or by implication.” Kobrine, L.L.C. v. Metzger, 380 Md. 620, 635 , 846 A.2d 403 (2004). An express easement, whether by grant or reservation, must be created by a written memorandum that satisfies ¹⁷⁵ the Statute of Frauds; and, as we shall explore in greater detail in our discussion, a “right[ ] of way created by deed” must satisfy “ ‘the mode and manner prescribed by the recording statutes.’” Id. at 636 , 846 A.2d 403 (citations omitted).

An express easement can be either general or specific. Rogers, 407 Md. at 731 , 967 A.2d 807 . An easement is specific “when its location is easily discernible, such as from a metes and bounds description, a plat map, or a call.” 11 Id. On the other hand, “[a]n easement is reserved in general terms, when it is clear from the intentions of the parties that an easement has been created, but without a precise location.” Id.

The Rogers Court elaborated, id. at 732 , 967 A.2d 807 : If ... the easement is reserved in general terms only, an ambiguity regarding the location of the easement exists, and we look to the surrounding circumstances, including subsequent agreements and conduct of parties, which may evidence the parties’ intent. In contrast to express easements, easements by implication “ ‘may be created in a variety of ways, 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.’ ” Id. at 730 , 967 A.2d 807 (quoting Boucher, 301 Md. at 688 , 484 A.2d 630 ). The easement at issue in this case, if it exists at all, is an express easement; however, some of the principles of law pertaining to implied easements are relevant because, at Baer’s urging, the circuit court relied upon easement-by-necessity cases in determining the location of the purported express easement. An easement-by-necessity, which is a particular type of easement by implication, arises where a parcel is “landlocked” by other land that was originally held by a common grantor, such that the only way to reach a public road ¹⁷⁶ is by crossing adjacent property.

See Sharp v. Downey, 197 Md.App. 123, 167 , 13 A.3d 1 (2010). “Necessity” to reach a public way is a defining characteristic of an implied easement-by-necessity. “[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.” Condry v. Laurie, 184 Md. 317, 322 , 41 A.2d 66 (1945). Easements by necessity are “ ‘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.’” Stansbury v. MDR Dev., L.L.C., 390 Md. 476, 488 , 889 A.2d 403 (2006) (citation omitted); Sharp, 197 Md.App. at 167 , 13 A.3d 1 . Discussing how to locate implied easements by necessity, the Stansbury Court explained, 390 Md. at 485 n. 5, 889 A.2d 403 : Technically an easement by necessity exists by reason of the facts and circumstances present in a situation. It exists without a court order.

It exists by operation of law. When disputes arise as to its existence, however, a court action is the proper way to resolve the disputes. What a court does is to affirm (or not) that an easement by necessity already exists. The court does not “create” or “establish” such an easement.

In some circumstances—if an easement by necessity is determined to be in existence—a court may “locate” that pre-existing easement at a particular location. Maryland courts have held that, in order to determine the location of an easement-by-necessity, a court must perform an equitable balancing analysis, whereby the “ ‘way of necessity should be located so as to be the least onerous to the owner of the servient estate while, at the same time, being of reasonable convenience to the owner of the dominant estate.’ ” Sharp, 197 Md.App. at 178-79 , 13 A.3d 1 (citation omitted); see Hancock v. Henderson, 236 Md. 98, 105-06 , 202 A.2d 599 (1964) (remanding for location of an implied easement-byneeessity that “will be fair to both sides,” and explaining that, ¹⁷⁷ if the parties cannot “agree upon a way satisfactory to each,” then “the court itself should exercise jurisdiction in locating an adequate right of way over the servient tenement in a manner so as to permit ingress and egress of vehicular traffic, but also in a manner least burdensome to the servient tenement.”); see also Stair v. Miller, 52 Md.App. 108, 111, 447 A.2d 109 (1982); Michael v. Needham, 39 Md.App. 271, 281 , 384 A.2d 473 (1978); Johnson v. Robinson, 26 Md.App. 568, 582 , 338 A.2d 88 (1975). Here, the circuit court expressly applied this balancing analysis in locating the purported right-of-way. It stated from the bench that it could locate the easement “consistent with the language of the cases that deal with right of way by necessity,” and declared, in its Declaratory Order, that the right-of-way was at the location proposed by Baer, “because [Baer’s] Proposed Location is the location which is the least burdensome to [the Cartage] property and which, at the same time, provides [Baer] with reasonable access to his Property.” We turn now to the parties’ contentions.

Cartage contends that the purported easement was invalid, as a matter of law, because the “easement language ... failed to provide a description of the easement sufficient to identify such right-of-way on the ground with reasonable certainty, [and because] it entirely failed to identify its location at all.” 12 In this connection, Cartage cites Md. ¹⁷⁸ Code Ann., Real Prop. § 4-101(a)(l) (2010 Repl.Vol., 2010 Supp.) (“R.P.”), which provides: “Any deed containing the names of the grantor and grantee, a description of the property sufficient to identify it with reasonable certainty, and the interest or estate intended to be granted, is sufficient, if executed, acknowledged, and, where required, recorded.” (Cartage’s emphasis.) Looking to the easement language in the deed from the Glesners to M.K.S., Cartage argues that it fails under R.P. § 4-101. According to Cartage, the language of R.P. § 4-101(a)(l) is consistent with over a century of Maryland common law providing that, in its words, “[e]very conveyance must either on its face, or by words of reference, give to the subject intended to be conveyed, such a description as to identify it. If it be land it must be such as to afford the means of locating it.” Neel v. Hughes, 10 G. & J. 7, 10 (Md.1838); see, e.g., Kobrine, supra, 380 Md. at 635-36 , 846 A.2d 403 . The deed language at issue in this case purported to grant “a non-exclusive right-of-way 25 feet in width, leading from the existing entrance from Governor Lane Boulevard, shown on the [Fox] Plat ..., to the property hereby conveyed.” Neither the deed nor the Fox Plat gives any indication where the right-of-way enters the Baer Parcel, nor does it delineate the path the right-of-way takes across the Cartage Parcel to reach the Baer Parcel.

Although the “existing entrance” is shown on the Fox Plat, there was no plat or metes and bounds description showing the right-of-way itself. Cartage asserts: “No surveyor could take the language of the deed (or the plat to which it refers) and place the purported easement on the ground.” Cartage acknowledges that Maryland courts have stated: “ Where a way is granted without fixing its location, but there is a way already located at the time of the grant, such way will ¹⁷⁹ be held to be the location of the way granted unless a contrary intention appears.’ ” Weems, supra, 397 Md. at 615 , 919 A.2d 77 (quoting Sibbel v. Fitch, 182 Md. 323, 326-27 , 34 A.2d 773 (1943)) (quotation marks omitted). However, Cartage maintains that this principle does not apply here, because the parties agree that there was never a “right-of-way existing on the ground,” either at the time the Glesners conveyed the Baer Parcel to M.K.S., or at any time since. Cartage also recognizes that there is ample case law in Maryland to support the proposition that an easement is not invalid merely because it is conveyed in general, rather than specific, terms.

The rule in Maryland is: [A]fter the location of the right of way which has been granted in general terms has been defined and fixed by the owners of the dominant and servient tenements by user in a particular location over a long period of time, it becomes as definitely established as if the grant or reservation had so located it by metes and bounds and the location of the right of way as thus defined can only be changed by agreement of the owners of the dominant and servient tenements. Sibbel, 182 Md. at 327 , 34 A.2d 773 ; see also, Rogers, 407 Md. at 736-37 , 967 A.2d 807 ; Weems, 397 Md. at 615-16 , 919 A.2d 77 ; Amabile v. Winkles, 276 Md. 234, 241 , 347 A.2d 212 (1975) (“an imprecisely described easement may be precisely located by user”). Cartage contends that “[t]he higher courts have not in these several cases yet attempted to harmonize how the common law can provide exceptions” to what Cartage sees as the unyielding statutory requirements of R.P. § 4-101. Cartage “does not concede these seeming exceptions are statutorily permissible,” and maintains that, “to the extent a ‘general easement’ does not provide a description of the property sufficient to identify it with reasonable certainty, it violates the statutory requirements.... ” We do not agree.

We begin by noting that, as the Court of Appeals reiterated in Kobrine, supra, 380 Md. 620 , 846 A.2d 403 , “rights of way created by deed,” such as the purported right-of-way in this ¹⁸⁰ case, must satisfy the “ ‘mode and manner prescribed by the recording statutes.’ ” Id. at 635-36 , 846 A.2d 403 (citing Dubrowin v. Schremp, 248 Md. 166, 171 , 235 A.2d 722 (1967); Brehm v. Richards, 152 Md. 126, 132 , 136 A. 618 (1927); and Baltimore and Hanover R.R. Co. v. Algire, 63 Md. 319, 320 (1885)). This necessitates conformance to R.P. § 4-101, which requires that a valid deed state “the names of the grantor and grantee, a description of the property sufficient to identify it with reasonable certainty, and the interest or estate intended to be granted.” (Emphasis added.) However, if we were to accept Cartage’s interpretation of § 4-101, general easements would be effectively prohibited because a grant or reservation of a general easement, by definition, does not describe the right-of-way so as to locate it with “reasonable certainty.” We therefore conclude that the purpose of the statute is fulfilled when the description is sufficient to identify, with reasonable certainty, the servient estate, as opposed the specific location of the right-of-way across it. Moreover, Cartage’s position is inconsistent with several Maryland cases that endorse the concept that a general easement can be located through evidence of acts or agreements of the parties occurring subsequent to the grant of the easement. See, e.g., Rogers, 407 Md. at 732 , 967 A.2d 807 ; Weems, 397 Md. at 615-16 , 919 A.2d 77 ; Amabile, 276 Md. at 241 , 347 A.2d 212 ; Taylor, 247 Md. at 453, 231 A.2d 697 ; Hancock, 236 Md. at 101-02 , 202 A.2d 599 ; Sibbel, 182 Md. at 327 , 34 A.2d 773 ; Needham, 39 Md.App. at 280-81 , 384 A.2d 473 .

Although no such subsequent acts or agreements occurred in this case, the strong support for the principle that an easement may be located based on acts and agreements subsequent to the grant, strongly implies that, as a matter of logic, an easement is not void ab initio simply because it is described in general terms; if all general easements were void from their inception, logically, they could not be located by ¹⁸¹ evidence arising subsequent to their creation. 13 Moreover, we find support in the Restatement (Third) of Property: Servitudes (2000) (“Third Restatement”) 14 for the notion that recordation statutes merely require the specific location of the burdened property, not the specific location of the easement. The Third Restatement provides: The instrument [by which a servitude is created] must identify the parties ..., it must describe the burdened estate, and it must 'set forth the nature of the servitude, or the essential terms of the obligation. Although the burdened estate must be described, it is not necessary to describe the location of the servitude within the burdened estate. If the location is not described, the servitude is located under the rules stated in [Third Restatement] § 4.8.

Third Restatement, § 2.7, cmt. f at 118 (emphasis added). R.P. § 4-101 does require some degree of specificity in describing the location of an easement and there are Maryland cases in which the description of an easement has been tested against the metric of R.P. § 4-101, or its substantively analogous statutory predecessors. In Kelly v. Nagle, 150 Md. 125 , 132 A. 587 (1926), the Court considered a purported easement over a parcel of property “ ‘on which there is located a spring which is about one hundred fifty (150) feet from [a particular] public road....’” Id. at 128 , 132 A. 587 (quoting deed). The deed of easement ¹⁸² identified the servient property by reference to a description in an earlier deed, and granted to a neighboring landowner “ ‘an easement and right, use and privilege’ ” to install “ ‘a water pipe, not exceeding three-quarters of an inch in diameter, from the said spring to the lands of [the neighbor] so that the [neighbor] may enjoy the use of such water from said spring as she may need on her said property.’ ” Id.

(quoting deed). The deed also granted to the neighbor and her heirs and assigns “ ‘the right ... of ingress and egress over and upon the lands of the [grantor] for the purpose of keeping in repair the pipe as aforesaid.’ ” Id. (quoting deed). The easement language did not specify the precise path the pipe was to take, the path of the ingress/egress easement, nor the precise location on the shared border of the properties at which the pipe easement and the right-of-way would cross.

Nevertheless, the Court held that this “plain and unequivocal grant,” was “in full conformity with