Washington Land Co. v. Potomac Ridge Development Corp.

THIEME, Judge. Appellant Washington Land Company brought this action in the Circuit Court for Washington County, seeking an injunction to prevent appellee Potomac Ridge Development Corporation from using for its condominium project certain water and sewer utility lines. Appellant installed these lines in 1974 in an easement purchased from the Lorich Corporation over land owned by that company. The court below ordered the City of Hagerstown, also an appellee here, and Lorich to be joined as additional parties. 1 Appellant cross-claimed against the City and elected a trial by jury.

Appellees challenged the right to trial by jury, and after the court denied their motion, the trial began. At the conclusion of appellant’s case, both appellees moved for judgment, and the court granted those motions. Appellant noted a timely appeal, and the City and Potomac Ridge noted cross-appeals. Appellant asks: 1.

Did the court below err when it found for appellees based on implicit dedication? 2. Did the court below err when it found for appellees based on prescription? ³⁷ To these questions, we answer “yes,” and we remand to the Circuit Court for reconsideration of these issues by a jury. On cross-appeal, appellees ask: 1. Did the court below err when it denied appellees’ motion that appellant was not entitled to trial by jury? 2.

Did the court below err when it denied appellees’ motion for judgment based on laches? 3. Did the court below err when it denied appellees’ motion for judgment based on limitations? 4. Did the court below err when it denied appellees’ motion for judgment based on equitable estoppel? We decline to reach these other questions, because our remand on appellant’s questions disposes of this case entirely.

Facts In 1970, appellant Washington Land Company bought the Martz farm, located east of Hagerstown in Washington County, intending to develop the land for apartments and single-family homes. To connect the nearby municipal water and sewer utility services operated by the City of Hagerstown, appellant purchased in 1972 from the Lorich Corporation an easement of approximately two thousand linear feet connecting the Martz farm with U.S. Route 40, a divided highway. After it obtained the easement, appellant applied to the City of Hagerstown to secure the necessary utility connections. In the negotiations that followed, the City asked that appellant dedicate the lines to the City for no consideration, and that appellant pay development connection fees, i.e., “tap fees,” for using those lines.

We note that appellant paid for construction of the lines. In turn, appellant asked the City for consideration. To allow the City to control the lines, appellant requested a credit against future tap fees in an amount equal to their construction costs, $149,450. While the lines were under construction, the City Attorney met with appellant and pressed the City’s request for dedica ³⁸ tion.

Appellant and the City never reached any agreement, but following the meeting, water and sewer connections were made. Appellant neither received nor executed any deed, plat, or other instrument of dedication. In the years that followed, appellant paid the tap fees to the City and continued to develop the lands that comprise the apartment community and residential subdivisions known as “Londontowne” and “Fairway Meadows.” These developments received City water and sewer services via the easement. In 1995, appellant learned that appellee Potomac Ridge had submitted plans to the Washington County Planning Department for the development of a parcel next to Londontowne.

Drawings submitted to the County showed that Potomac Ridge intended to connect its utility lines to the lines in Londontowne, which were, in turn, served by the water and sewer lines installed by appellant in the easement. To protect the remaining development capacity of its water and sewer lines, appellant advised Potomac Ridge of its position on their use. It also wrote the City’s water and sewer departments, informing them of its objections to appellee’s use of the lines. It received no responses to its letters.

Meanwhile, Potomac Ridge continued its condominium development, and after paying to the City connection fees of $149,165, established utility connections to the City water and sewer services by installing pipes under Landis Road and tapping into the lines in Londontowne. While construction at Potomac Ridge was underway, appellant filed the action sub judice to enjoin this connection from being made. Potomac Ridge, in turn, petitioned the court to require Lorich and the City to be joined as additional parties, and, when the court so ordered, appellant filed a cross-claim against the City seeking disgorgement of tap fees collected from Potomac Ridge. Appellant elected a jury trial.

At trial, appellant asserted that the City had never acquired title to the Lorich lines nor had it acquired an easement over the same, by dedication, condemnation, or otherwise. The ³⁹ City thus lacked authority, it argued, to permit Potomac Ridge to use the lines. The City argued that it implicitly owned the lines and enjoyed an easement because those lines were connected to its water and sewer systems, whether any formal dedication or transfer of rights had ever taken place. At the conclusion of appellant’s case, Potomac Ridge and the City moved for judgment under Maryland Rule 2-519(b).

The court below granted judgment and Washington Land noted this appeal. Discussion When a motion for judgment comes at the conclusion of plaintiffs case in a jury trial, Maryland Rule 2-519(b) governs its disposition: When a defendant moves for judgment at the close of the evidence offered by the plaintiff in an action tried by the court, the court may proceed, as the trier of fact, to determine the facts and to render judgment against the plaintiff or may decline to render judgment until the close of all the evidence. When a motion for judgment is made under any other circumstances, the court shall consider all evidence and inferences in the light most favorable to the party against whom the motion is made. In Thodos v. Bland, 75 Md.App. 700 , 542 A.2d 1307 (1988), we delineated the judge’s role in deciding such a motion from that of the jury: Although the trial judge, in ruling on a motion for judgment, must assess the sufficiency of the evidence to generate a jury question, once he or she has done so, it is up to the jury to determine the ultimate question, whether the burden of proof has been met.

In making its determination, the jury assesses and evaluates the weight to be assigned to the evidence presented to it and decides its effect. Neither the trial court nor this Court is permitted to substitute its evaluation of that evidence for that of the jury. To do so would be an invasion of the jury’s province. ⁴⁰ Id. at 713-14 , 542 A.2d 1307 (citations omitted). On review, we do essentially what the trial court should have done, by seeking to determine whether the evidence was sufficient to have created a jury question.

See, e.g., Garrison v. Shoppers Food Warehouse, 82 Md.App. 351, 353-57 , 571 A.2d 878 (1990); James v. General Motors Corp., 74 Md.App. 479, 484-85 , 538 A.2d 782 (1988); Pahanish v. Western Trails, Inc., 69 Md.App. 342, 353 , 517 A.2d 1122 (1986). Appellant contends that its evidence was sufficient to raise a jury question as to whether the lines had been had been dedicated to the City and as to whether an easement had been created. For this reason, it claims, the court erred in granting judgment for appellees at the end of appellant’s case. We agree and hold that the evidence, considered in the light most favorable to appellant, was sufficient to justify sending both issues to the jury, and we thereby remand.

I The court below found that a common law dedication for the water and sewer lines in question took place in 1974 and 1975. Appellant argues, and we agree, that common law dedication may not have taken place. 2 Appellant presented credible evidence that the City did not accept the terms of appellant’s formal offer, and the jury should have been given an opportunity to weigh that evidence. A When it determines whether a landowner has dedicated his land at common law to public use, the court must perform a fact-intensive analysis. It must consider “declarations of the landowner, his intentions as manifested by his acts, and all the other circumstances of the case.” Smith v. Shiebeck, 180 Md. 412, 420 , 24 A.2d 795 (1942).

A completed common law dedication requires an offer and an acceptance, Town of Glenarden v. Lewis, 261 Md. 1, 2 , 273 A.2d 140 (1971), ⁴¹ but whether dedication actually occurred turns upon a finding of intent by the owner to give his lands over to public use. Blank v. Park Lane Ctr., Inc., 209 Md. 568, 574 , 121 A.2d 846 (1956) (“Implied dedication is made up of acts and conduct of the owners of land with respect to a way which estop him from denying that his intention was to dedicate the way to the public. The intention of the owner is the governing test.”). Expression of that intent must be clear and unequivocal.

See, e.g., Department of Natural Res. v. Mayor & Council of Ocean City, 274 Md. 1, 8 , 332 A.2d 630 (1975) (“[The chancellor] concluded that dedication could not be implied, because there was no proof of a clear and unequivocal manifestation of an intent to dedicate. We think this conclusion was compelled by Toney Schloss v. Berenholtz, 243 Md. 195, 204-05 , 220 A.2d 910, 914 (1966); Canton Co. v. Baltimore, 106 Md. 69, 83-84 , 66 A. 679, 680 (1907); and Harbor Co. v. Smith, 85 Md. 537, 541-42 , (South Baltimore Harbor & Improvement Co. v. Smith,) 37 A. 27, 28 (1897).”). Indeed, an owner may not be deprived of his interest by dedication unless there has been some clear and decisive act indicating a desire to dedicate land to public use. North Beach v. North Chesapeake Beach Land & Improvement Co., 172 Md. 101, 115 , 191 A. 71 (1937).

Likewise, the public must also show its intent to accept clearly and decisively. Id. at 116 , 191 A. 71 . One of the partners of appellant, Daniel H. Sheedy, testified at trial that appellant had not intended to dedicate the easement or utility lines to the City unless it received valuable consideration—its construction costs, in the form of tap fee credits spread over the build-out period for appellant’s development—and that the City never agreed to this condition. The court, nevertheless, noting that an offer “doesn’t have to be explicit,” found in appellant’s own case evidence supporting clear intent to make an unequivocal offer of dedication.

The court relied upon the instruments executed by appellant and Lorich and other correspondence related to the easement and lines. In reaching its ruling that an unequivocal offer had been made and accepted, the court reviewed the easement instru ⁴² ments and the factual circumstances surrounding their execution. The first easement instrument was prepared, executed and recorded in 1972, after Sheedy and the Lorich Corporation, in contemplation of subdividing their adjoining parcels, agreed to connect City utility lines that served Lorich lands with those of appellant. This agreement called for an easement across the Lorich tract to be granted in favor of appellant’s tract.

The instrument, executed May 23, 1972, states: And [Washington Land] does covenant and agree to convey, without money consideration, said parcel, easements and/or rights of way to the County Commissioners of Washington County, and appropriate utility companies for the purposes aforesaid. Because the water and sewer services available to these properties at that time and since were those of the City of Hagerstown, the court construed references to “appropriate utility companies” to include City-run utility services. The court next turned to the confirmatory instrument, executed November 8,1974, to reinforce its finding of intent in the first instrument. This instrument, we note, was prepared and procured by appellant within days of a meeting on October 28, 1974, attended by Sheedy, representing appellant; Robert Kuczynski, Esq., attorney for the City of Hagerstown; Gerald Cump, P.E., a consulting engineer doing work for appellant, and several others. 3 Meeting attendees discussed the relocation of sewer and water lines planned for the Lorich property and intended to serve Londontowne.

They also spoke about appellant’s plans to access an existing sewer pumping station near Londontowne that was and is owned by the City. The confirmatory instrument documents the relocation (at the behest of the City) of the water and sewer lines contemplated by the original easement instrument, 4 but it does ⁴³ not add to or subtract from that easement. The instrument specifically identifies the original easement throughout as a “utilities right-of-way.” The third leg supporting the court’s analysis was a letter from Cump to Kuczynski dated July 29, 1975, after the lines had been completed and placed into service. With this letter, Cump transferred to the City several documents, including “as built” construction drawings already on file with the City’s Engineering Department pertaining to the conveyance of utility easements for Londontowne Subdivision Section 4.

The letter clearly identifies one of three easements, Easement A, as “a 20 foot utility easement from the Northwestern property line of Londontowne—Section A through the lands of Lorich Co., Inc. (Dr. Richard Harrison, principal owner) to the Northeastern right-of-way line of U.S. Route 40.” 5 Cump also provided in the letter legal descriptions of the easements and language to have been used in an agreement for conveyancing the same to the City. The letter does not, however, express any conditions requiring payment of consideration to appellant and none requiring the appellant’s consent as to who could use or be connected to these water and sewer lines. Pointing out that Cump was, in fact, appellant’s agent, acting with apparent authority, and citing Smith, 180 Md. at 412 , 24 A.2d 795 , the ⁴⁴ court below found that the letter represented appellant’s unequivocal intent to make an offer. 6 The court likewise found acceptance of appellant’s offer by the City, turning to Windsor v. Mayor of Ocean City, 71 Md.App. 476 , 526 A.2d 102 (1987), for its reasoning. Windsor lays out four methods by which an offer may be accepted: by acceptance of a deed or other record; by acts in pais, such as opening, grading, etc., at the public expense; by long public use; or by express statutory or similar official action.

Id. at 486-87 , 526 A.2d 102 . The court found two of the four methods to be applicable here. First, the court found long term public use of the lines, commencing in 1974 or 1975, in the sense of “all the citizens that were turning on tap water and flushing toilets.” For at least 23 years, water coursed through these lines from the City’s water supply to the consuming public, who then discharged used water and other matter into the sewer lines that flowed to the City’s waste water treatment plant. The public paid for the water it purchased; the sewage it sent for treatment; and the maintenance of the two systems, including the lines running through the easement on Lorich lands.

Long use by the public at large, the court reasoned, may be a form of acceptance of an offer of dedication. See Annapolis v. Waterman, 357 Md. 484, 506 , 745 A.2d 1000 (2000). Regarding acts in pais, moreover, the court noted, “There’s no doubt, and there’s no contradiction that the only party that serviced these water and sewer lines for the 23 years before suit was filed, was the City of Hagerstown.” Although the City receives fees for these services, the court acknowledged, public funds have paid for ⁴⁵ the maintenance of these lines, thus meeting the fourth criteria. B The court’s reasoning, however, does not carry the day.

The court seemed to ignore—or perhaps it improperly weighed—considerable testimonial evidence that the requisite intent for offer and acceptance was not present, and it possibly misinterpreted the very documents upon which it relied. In doing so, it strode firmly into the jury’s province. 1 Appellant contends that acceptance under contract law governs the law of dedication, and thus the City’s acceptance must meet and correspond with the terms of the offer in every respect, as though dedication were a garden variety contract. Canaras v. Lift Truck Services, Inc., 272 Md. 337, 346 , 322 A.2d 866 (1974) (citing Buffalo Pressed Steel Co. v. Kirwan, 138 Md. 60 , 113 A. 628 (1921)); Peoples Drug Stores, Inc. v. Fenton Realty Corp., 191 Md. 489, 494 , 62 A.2d 273 (1948) (same). 7 The City did not accept a key condition of appellant’s offer—to credit its construction costs against future tap fees— so acceptance of the precise offer appellant intended to make, even if implicit, 8 did not take place, appellant argues. ⁴⁶ At deposition and during several points in the hearing, appellant offered considerable testimony at trial supporting its theory. We reproduce herein several examples of testimony regarding appellant’s express condition and the parties’ failure to reach a meeting of the minds on that condition.

At deposition, for example, Sheedy testified about how negotiations with the City over the easement arose: Q: Alright, when you began the development, you realized you would have a need for water and sewer services, correct? ... How did you go about trying to obtain that? A: I went through the regular channels of preparing drawings, submitting the drawings to the County Planning Department, and then I would submit drawings to the City Water Department and the City Sewer Department, as well as to the State Health Department.... Q: Okay, so it is your understanding at this point, certainly at the time of this letter, the City was demanding unrestricted utility easements be deeded to them? ...

A: They wanted to have me turn over the easement which I had to them____I had already acquired the easement and had it for a couple of years before that was generated. I was unwilling to, you know, turn it over to them for nothing. Q: But at this point, your understanding of what they wanted was prior to hooking up you were going to have to give them that easement, correct? A: They wanted that all along, I was unwilling to give it to them. * * * Q: Well during the negotiations prior to the time the lines were completed, it was your understanding that the City was going to require easements so that they....

A: They wanted easements, I didn’t want to give them to them because I wanted an offset for the cost. ⁴⁷ Sheedy also testified regarding the discussions with the City that took place around the time construction began: I was interested either in having the City offset tap fees against my construction costs, or, if they were able to, early on I had discussed with them possibilities of getting a grant or them constructing the interceptor lines. As for the outcome of those discussions, Sheedy averred: I was unsuccessful in getting them to, uh, get a grant to construct the lines. I’d been unsuccessful in getting them to build the line for our use, so what I wanted to do, the only thing that I had left was to, uh, have an offset of a portion of the tap fees that we’d be paying in the future and offset against our construction costs, which was less than what the tap fees that I paid to the City in addition to the cost of the line. Q: And, what happened after you wrote this letter [summarizing the October 28 meeting] with regard to the preparation by the City attorney, of that agreement [to dedicate the easement]?

A: We were never able to work out our differences and there was no agreement prepared. Q: Now the City representatives at that meeting, none of them agreed to pay you any tap fees or any other consideration for this line, is that correct? A: That’s correct. Q: The City’s position was, I take it, that you had to give them the easement?

A: That’s correct. Q: And the City never changed that position, did they? A: Not to my knowledge. Q: So, whether you had one discussion with them, or more, their position remained that you had to give them the easement and the line, is that correct? ⁴⁸ A: They wanted us to give them the easement, and I would not.

Q: Okay. Now, on the second page of that letter [of October 29], you have a reference there with respect to your working on an easement document. A: Yes. Q: Now is it your testimony that you did no further work on an easement document?

A: There were discussions on it, there was no reaching ... Q: Is, is it your testimony, sir, that you did no further work on an easement document after this date? A: Easement document? No work on a document, that’s correct.

Q: Okay, so, notwithstanding what you said to the City in the letter, you didn’t do anymore [sic ] work on an easement document? ... A: I did work on it, I did discuss it with [Kuczynski], There was no document produced because we did not have a meeting of the minds on it. Finally, Sheedy explained when he was deposed why no formal agreement had ever been executed: Q: You don’t look at that [language in the agreement between appellant and Lorich] as part of the agreement with Lorich to make a dedication of grant easements to the City? A: The purpose is that, with the appropriate agreements and understandings with the City we would have granted the easement to them, but the negotiation was that we were to have an offset of our tap fees against the cost of the constructing of the main sewer interceptor line....

The foregoing examples are but part of the considerable body of testimony from Sheedy regarding the failure of the parties to reach a meeting of the minds on the terms of a dedication— and the City’s unwillingness to accept the offer that appellant intended to make. Considered in the light most favorable to ⁴⁹ appellant, such testimony is sufficient to create a jury issue regarding whether the City accepted the appellant’s actual offer. In turn, Sheedy’s testimony also calls into question whether appellant had the requisite unequivocal intent to dedicate the easement without compensation. Although offer and acceptance may be implied from conduct, i.e., “no form or ceremony is necessary to dedicate land to public use,” Smith, 180 Md. at 419 , 24 A.2d 795 , intent cannot be implied.

See Mayor & Council of Ocean City, 274 Md. at 8 , 332 A.2d 630 . That the court heard Sheedy’s above testimony and found for appellees anyway suggests that it sought to substitute its own credibility assessment for that of the jury. By doing so, it invaded the jury’s province, Thodos, 75 Md.App. at 714 , 542 A.2d 1307 , and its rationale supporting judgment for appellees cannot stand. Were a jury to believe Sheedy’s rendition of events, moreover, we believe that it might not have construed appellant’s offer to dedicate land to the City for compensation—and appellant’s refusal to give that land without compensation—as a dedication.

Although the easement over the Lorich parcel has long been subject to public use, the pre-condition of offer and acceptance was incomplete, and appellant’s donative intent was misconstrued, without acceptance of appellant’s precise conditions. See generally 11A McQuillan, Municipal Corporations § 33.35 (3d ed. rev.2000) (evidence of intent to dedicate, and conditions attached to dedication, shown by a variety of actions). There exists no Maryland case precisely on point to support our holding today, but appellant calls our attention to an Illinois case, Sundstrom v. Village of Oak Park, 374 Ill. 632 , 30 N.E.2d 58 (1940), which addresses this precise issue. In Sundstrom , an Illinois municipality claimed rights by common law dedication in certain water and sewer lines and in a concrete sidewalk.

The owner had sought compensation for the use of his land. Finding that the owner imposed restrictions that the municipality had been unwilling to respect, the ⁵⁰ Illinois Supreme Court resolved the dispute in the landowner’s favor, stating: The vital, controlling element in a common-law dedication is the animus dodandi (an intention to donate).... The language of the contract expressed on the plat shows there was no intention to donate the land to the public use. On the contrary, it shows an attempt to trade the land for the permanent exclusive use of a part of