USA Cartage Leasing, LLC v. Baer

McDonald, J. Maryland law has traditionally categorized grants of easements as either general or specific. The difference between the two is that the granting deed of a general easement does not describe the precise location of the easement whereas the granting deed of a specific easement does. In this case, we are asked to decide on the existence and possible means of locating a general easement that provides a right-of-way from a major road. The easement in question crosses the property of USA Cartage Leasing, LLC, (“Cartage”) as an access route for neighboring property owned by Todd A. Baer (“Baer”).

Maryland’s recording statute for deeds requires that a deed contain “a description of the property sufficient to identify it with reasonable certainty.” 1 This case presents the novel question of whether this requirement, in the context of a grant of land that includes an easement, applies to the description of the easement itself or merely to that of the servient property. The Court of Special Appeals determined that the correct answer was the latter. That court further instructed the circuit court to locate the easement according to the principles set forth of § 4.8 in the Restatement 3d of Property: Servitudes (the “Restatement”). For the reasons that follow, we affirm the well-reasoned opinion of the Court of Special Appeals.

Background 2 Creation of the Easement In 1984, Edwin and Rebecca Glesner (the “Glesners”) acquired a 5.26-acre lot in Washington County, Maryland. 3 In ²⁰⁴ 1985, the Glesners subdivided the lot into two roughly rectangular parcels. At that time, they conveyed one parcel — the parcel that now belongs to Baer (the “Baer parcel”). They retained the other parcel for a time — the parcel that now belongs to Cartage (the “Cartage parcel”). The original deed by the Glesners conveying the Baer parcel granted to its new owner an easement over the Cartage parcel.

That deed defined the easement 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, ... to the property hereby conveyed” without further elaboration. A plat prepared for the Glesners in November 1984 showed an entrance to the Cartage parcel from Governor Lane Boulevard labeled “Existing Entrance” near the line dividing the two parcels. The plat did not depict the easement. 4 In 1995, the Glesners conveyed the Cartage parcel to Cartage, which continues to own it. The deed to Cartage did not mention the easement previously granted to the adjacent tract.

The Baer parcel came into the possession of its current owner, Todd Baer, in 2008. Intervening deeds had not mentioned the right-of-way over the Cartage parcel. The Cartage parcel has been developed for commercial use, includes at least one building, and has a gravel parking lot for trucks and other vehicles immediately adjacent to the Baer parcel. The Baer parcel remains undeveloped.

Circuit Court Judgment Fixing Location of Easement On August 4, 2008, Baer filed a Complaint for Declaratory Judgment and Other Relief against Cartage in the Circuit Court for Washington County. The complaint contained two counts. First, Baer sought a declaratory judgment that he “holds a legally valid and effective right-of-way over [Cart ²⁰⁵ age’s] Property.” In his complaint, Baer acknowledged that the location of the right-of-way “is not specified in the language of the deeds in the chain of title from the Glesners” to himself and that it had never been determined by custom or usage by himself or his predecessors in title. As an exhibit to his complaint, Baer attached a plat showing a proposed location for the easement that he described as 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 [1984] Plat.” He asked for a declaratory judgment declaring that proposal, or a reasonable alternative, as the right-of-way.

Second, Baer alleged that Cartage, “without just cause or excuse, has interfered with and continues to interfere with [Baer’s] lawful use of enjoyment of [the] Right-of-Way.” He requested an injunction prohibiting Cartage from such interference, and damages in the amount of $250,000. Cartage denied liability and filed a counterclaim seeking to quiet title to the Cartage parcel free of the claimed right-of-way. On July 13, 2009, Baer filed a motion for summary judgment. In response, Cartage argued that the easement described in the original 1985 deed was ineffective as a matter of law because the easement could not be precisely located by either its original terms or by subsequent conduct and circumstances.

A hearing on the motion was held on August 11, 2009, at which time the Circuit Court granted Baer’s motion. In its oral ruling on summary judgment, the Circuit Court found that the language in the 1985 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 ... simply because it isn’t specifically described where it exists or there’s not other evidence like an existing trail[.]” The court decided that the easement should be located such that it would cause “very minimal intrusion to the USA Cartage Parcel[.] It should go somehow in a direct and convenient way from the existing entrance to ... the Baer property.” ²⁰⁶ In the order granting summary judgment, the court did not decide where the right-of-way should be located. Instead, the court invited both sides to offer evidence and argument — an invitation that both parties accepted.

After the parties had submitted their respective proposals, the court entered two orders on September 10, 2009. The first order rejected Cartage’s proposed location for the right-of-way. The second order adopted Baer’s proposed location for the right-of-way and enjoined Cartage from interfering with Baer’s use of the right-of-way. On September 21, 2009, Cartage filed a motion to make final the court’s orders for purposes of appeal pursuant to Maryland Rule 2-602(b), 5 there being other related proceedings still in progress.

That order was granted, and an appeal was timely noted to the Court of Special Appeals. Court of Special Appeals: Standard for Locating an Express Easement The Court of Special Appeals affirmed the Circuit Court’s ruling that the easement was not void as a matter of law. It vacated the judgment and remanded the case on other grounds unrelated to the present appeal, however. 6 On the question of the validity of the easement, it held that: [Wjhere ... an express easement has been established without fixing its location, and the location of the easement cannot be established either (a) by reference to a road or way in existence at the time of the deed; (b) by a subse ²⁰⁷ quent, unopposed long-term use by the dominant tenant; or (c) by a subsequent agreement of the parties, the court may establish the easement’s location 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 ... in light of the purposes of the easement. 202 Md.App. at 195, 32 A.3d 88 (internal citations and quotations omitted). The court derived this formulation from principles governing implied easements of necessity and from § 4.8 of the Restatement 3d of Property: Servitudes.

The court directed: On remand, if the circuit court determines that Cartage’s defenses to the easement do not succeed, the circuit court should conform to the procedure specified in the Third Restatement to locate the easement. Id. at 205, 32 A.3d 88 . Cartage sought further review in this Court arguing, among other things, that the decision of the intermediate appellate court was contrary to the Maryland Code, Real Property Article (“RP”), § 4-101, the statute governing the recording of deeds. We granted certiorari to consider the proper application of the recording statute and, if necessary, the appropriate standard of locating such an easement.

Discussion This case requires that we harmonize two independent — and not always congruent — lines of authority that govern easements. One concerns the requisites for an express grant of an interest in real property, including easements. The other concerns the validity and means of locating a particular type of express easement known as a general easement. Easements At the basic level, an easement is a “nonpossessory interest in the real property of another.” Rogers v. P-M Hunter’s Ridge, LLC, 407 Md. 712, 729 , 967 A.2d 807 (2009).

It is a species of “servitude.” See Ross v. McGee, 98 Md. 389, ²⁰⁸ 394 , 56 A. 1128 (1904); see also Black’s Law Dictionary (9th ed.2009) at p. 1492; Restatement 3d of Property: Servitudes, § 1.1. When the easement is for the benefit of another property — for example, an easement to provide access to an adjacent property — the neighboring property is known as the dominant estate, while the property subject to the easement is known as the servient estate. Rogers, 407 Md. at 730-31 , 967 A.2d 807 . An easement may be created by express grant, by reservation in a conveyance of land, or by implication.

Kobrine v. Metzger, 380 Md. 620, 635 , 846 A.2d 403 (2004). An easement by implication can be created in several ways, including by necessity. Rogers, 407 Md. at 730 , 967 A.2d 807 . The easement in controversy is an express easement because it was expressly granted by deed, although the effectiveness of that grant is in dispute.

An express easement may be categorized as either general or specific. Rogers, 407 Md. at 731 , 967 A.2d 807 . “An easement is reserved in specific terms when its location is easily discernible, such as from a metes and bounds description, a plat map, or a call. An 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. (citation omitted).

As is evident, the easement in controversy is a general easement. As indicated above, one type of implied easement is an easement of necessity. An easement of necessity typically arises when a grantor conveys a tract of land that lacks an outlet to a public highway, except over land retained by the grantor or over a third party’s land. Stansbury v. MDR Development, LLC, 390 Md. 476, 487 , 889 A.2d 403 (2006).

Because an easement of necessity theoretically exists by operation of law as a result of circumstances, it is not “created” by a court; rather, the court is said to “locate” the easement. Id. at 485 & n. 5, 889 A.2d 403 . While this case does not involve an ²⁰⁹ easement of necessity, 7 some of the principles governing such easements are pertinent, as we shall see below. The Recording Statute and Cases Requiring Specificity in Grants of Land An express easement granted or reserved by deed may be created only in the mode and manner prescribed by the applicable recording statute.

Kobrine, 380 Md. at 635-36 , 846 A.2d 403 . The Maryland recording statute applicable to deeds 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. RP § 4 — 101(a)(1). Apart from recodifications and some modernization of the language, this statute has been in continuous effect since at least the mid-19th century.

See Chapter 154, § 24, Laws of Maryland 1856 at 255. 8 As is evident, this statute incorporates four requirements: (1) The deed must name the grantor and grantee; (2) The deed must describe the property sufficiently to identify it with reasonable certainty; (3) the deed must state the interest or estate to be granted; and (4) the deed must be executed, acknowledged, and, where required, recorded. The second element of the recording statute is also reflected in a number of older cases involving grants of land, although those cases did not purport to be construing the statute. For example, in an 1874 decision, this Court observed: “There is ²¹⁰ no doubt of the rule that every 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, and if it be land, it must be such as to afford the means of locating it.” Carmody v. Brooks, 40 Md. 240, 246 (1874); see also Berry v. Derwart, 55 Md. 66 (1880) (“It is perfectly well settled, both upon reason and authority, that every deed of conveyance, in order to transfer title, must either in terms, or by reference, or other designation, give such description of the subject-matter intended to be conveyed, as will be sufficient to identify the same with reasonable certainty.”); Neel v. Hughes, 10 G. & J. 7, 10 (Md.1838) (“Every 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.”).

None of those cases involved easements. This Court reiterated that requirement more recently in McDonough v. Roland Park Co., 189 Md. 659 , 57 A.2d