Weems v. County Commissioners

CATHELL, J. Thomas I. Weems, Jr., M. Linda Weems, George J. Weems, Jr., Thomas Loch Weems, Courtney Weems-Looman, Marsha Wall Taylor, and Fred Taylor, Jr., appellants, (sometimes referred to as Weems) filed a declaratory judgment action in the Circuit Court for Calvert County against the County Commissioners of Calvert County, appellees, with respect to disputes arising out of land located in that County. They sought a declaration as to the westerly terminus of a public easement, a declaration as to the ownership of an area known as Leitch’s Wharf, and a declaration that § 15-201 of the Calvert County Code—as it pertains to the property known as Leitch’s Wharf—is unconstitutional in that the statute constitutes a taking of the Weems’ property without just compensation. Thus, began the litigation odyssey upon which the parties are embarked. After a decision they deemed adverse to their interests, the Weems appealed to the Court of Special Appeals.

There they raised the following issues: “I. Whether the trial court erred in finding the easement granted to the County in the 1949 deed was ambiguous and that the location of the easement extends to the present day barricade where no competent evidence was presented to show the easement extends past the turnaround described by appellants’ -witness who had both personal knowledge and expertise in property law, and where his testimony was consistent with a surveyor’s letter and photograph entered into evidence. “II. Whether the trial court erred when it denied appellants’ motion to alter or amend judgment and/or for a new trial where appellants attached letters from the sheriffs office and office of the State’s Attorney for Calvert County indicating trespassers, when confronted by a Deputy, pre ⁶⁰⁹ sented a copy of § 15-201 of the County Code to justify their use of Leitch’s Wharf and the State’s Attorney opined that the law is unconstitutional but that his office does not have the power to make a constitutional determination for that conclusion rests with the judiciary. “III. Whether the trial court erred when it granted only partial summary judgment to plaintiff/appellants where appellee’s opposition to summary judgment contained affidavits from two road workers that did not address the easements and were unresponsive to appellants’ affidavits, where the workers had no personal knowledge of the legal status of the road, the deeds or the easement. “IV. Whether the trial court erred as a matter of law when it dismissed appellants’ request for a declaratory judgment on the constitutionality of § 15-201 of the Calvert County Code. “Appellants ask this Court in the interest of time and justice to determine the constitutionality of § 15-201 of the Calvert County Code—Where it is undisputed the County easement does not extend to Leitch’s Wharf; Leitch’s Wharf is specifically named in the local code; the Attorney General’s office indicated it would not participate in the action; appellants’ property is still subject to trespass; and without a ruling on the constitutionality of the code, law enforcement cannot effectively respond to the public’s unlawful use of appellants’ property and the State’s Attorney’s office cannot prosecute offenders for criminal trespass.” Initially, the Court of Special Appeals, in an unreported opinion, found the language of the easement at issue to be ambiguous: “Appellants’ next contention contains two parts.

First, appellants claim that the trial court erred in finding that the 1949 Deed was ambiguous. Second, they complain that the court erred in ruling that the easement ‘extends to the present day barricade....’, because there was ‘no competent evidence’ that showed that the easement extends past ⁶¹⁰ the turn around [sic].... We shall resolve the first point, but we are unable to resolve the second.” In concluding that the easement was indeed ambiguous, the intermediate appellate court further found that the testimony at the trial, by the nature in which it was given and the failure of trial counsel to clarify the issues by connecting the testimony to the exhibits in the record, did not contain a sufficient description of the easement, as presented in that record, to resolve the language it considered ambiguous. Accordingly, the intermediate appellate court found it necessary to remand the case for further proceedings.

Furthermore, because of its determination regarding the easement, the court did not resolve any of the other issues. Rather, the court chose to “neither affirm nor reverse the [trial] court’s determination as to the location of the easement” and stated that, “[i]nstead, we shall remand for further proceedings----Given our resolution of the case, we also decline to reach the constitutionality claim in Count III, which the [trial] court below did not address based on a finding of mootness.” After the remand hearing, appellants again appealed. On our own motion we issued a writ of certiorari on December 11, 2006, to the Court of Special Appeals prior to any further proceedings in that court. Weems v. Calvert County, 396 Md. 11 , 912 A.2d 647 (2006).

In this appeal appellants present two questions: “I. Whether the trial court erred in arbitrarily disregarding appellants’ expert’s opinion and thereafter finding that the westerly terminal of the easement granted in the 1949 Deed, was located within Appellant Weems’ property[?] II. Whether the trial court erred when it did not find § 15-201 of the Calvert County Code unconstitutional as applied to appellants’ property at Leitch’s Wharf[?]” In reaching our determination, it is necessary to review the two key documents that are in dispute: (1) the easement at issue and (2) § 15-201 of the Calvert County Code. The language of the easement that creates the present controversy is found in a Deed granting easements from ⁶¹¹ numerous parties to the “County Commissioners” of Calvert County. The controversial language provides: “2.

The remaining of the above mentioned parties of the first part do hereby grant a parcel or strip of ground beginning for the same at the intersection of the present County road, and the land of Thomas I. Weems and Clifton Smith, and running in a westerly direction adjacent to and through the lands of the above mentioned parties of the first part, and running with the center of the said present county road, said 30 foot strip lying 15 feet on each side of the center line thereof, and having for its westerly terminal the lands of the grantor, Lydia Leitch.” [Emphasis added.] Section 15-201 of the Calvert County Code provides in relevant part: “Subtitle 2 Access to Wharves and Landings § 15-201. Established. [Code 1981, § 15-101, 1985, ch. 715, § 2] (a) The public shall have an easement or right-of-way over any roads or ways in Calvert County leading to ... Leitch’s Wharf.... (b) The purpose of this easement or right-of-way is solely for access to the wharves and landings and enjoyment of the wharves and landings by the public.” A. The Language of the Easement The only language of the easement that is in controversy in this case is the last phrase: “having for its westerly terminal the lands of the grantor, Lydia Leitch.” That language simply is not ambiguous.

While there may be some confusion as to who was a “party of the first part” at any given place in the granting document, the easement being granted had its westerly boundary clearly fixed. Therefore, as relevant to the present controversy, it makes no difference who was who. The easement ends at the easement’s westerly terminus, i.e., where it first touches the property then owned ⁶¹² by Lydia Leiteh. All of the evidence is consistent that the turnabout as shown on the various photographs and plats marks the point where the right-of-way first touched Lydia Leitch’s land.

None of the parties seriously contests that point. Accordingly, that is where the easement ends. 1 The term “westerly” as used in the deed of easement does not refer to the westerly boundary of the Leiteh property, it refers to the westerly boundary of the easement. The “lands of Lydia Leiteh” was, in essence, a “call”—it defined the western end point of the easement, i.e., the western boundary, which is the easement’s terminus. A “call” is a term used in describing the boundaries of property.

Black’s Law Dictionary 217 (8th ed.2004), defines a “call” as “5. A landmark designating a property boundary.” 2 In a case involving a dispute as to whether the underlying title of certain grantees carried to the middle of a public way, we explained the nature of “calls.” We said in Hunt v. Brown, 75 Md. 481, 483 , 23 A. 1029, 1030 (1892): “And, whatever may be the rule elsewhere, it is well settled in this State that a grant of land by metes and bounds and courses and distances, with calls for visible boundaries on the side of a highway; for instance a call for a stone planted in the south side of the road, and running thence, by the south side of the road to another stone, these calls and boundaries mil be construed as defining the limits of the property thereby conveyed; and the grantee under such a grant will not take the fee to the middle of the road.” (Emphasis added.) • See Gump v. Sibley, 79 Md. 165 , 28 A. 977 (1894). We noted in Crook v. Pitcher, 61 Md. 510 (1884), that we were faced with a claim that the description of a private way was ambiguous. The relevant language of the instrument provided “... from ⁶¹³ said ‘land, over a road adjoining the same, and running to the highway which leads from Chase’s Station to the Philadelphia road....’” Id. at 514 .

We held that “[t]he termini a quo [from which] and ad quem [point of arrival] are distinctly stated, ... and is ... a sufficient description of the way obstructed.” Id. at 514-15 (citations omitted). In respect to the description of the easement in the case sub judice, it, as indicated, sets its terminus as “the lands of Lydia Leiteh.” Laying a course to the lands of a particular party is, as noted supra, a call. It sets the boundary of that property being granted by referencing the boundary of another property beyond which the lands being granted do not go— unless expressly provided otherwise. We talked about beginning and ending terminus calls in Capron v. Greenway, 74 Md. 289, 291-98 , 22 A. 269, 269 (1891), albeit as dicta: “In the deed of February, 1872, from the trustees to the appellee, a private right of way, 66 feet in width was reserved, ‘running north from the above mentioned county road [now Merryman’s lane] and extending along the western line of said lot’ conveyed to Greenway....

The appellee erected a fence across this right of way, and the appellant filed a bill of complaint now before us, praying that Greenway might be required to open the right of way.... By the express terms of the deed of 1872, the way extended north from Merryman’s lane along the western line ..., and no further.... Its northern extremity was coincident with the northern terminus of Greenway’s western line in the deed of 1872, and that point was 525 feet north of Merry-man’s lane.” (Brackets in original.) See also Kelly v. Nagle, 150 Md. 125 , 132 A. 587 (1926); Rowe v. Natty, 81 Md. 367, 368 , 32 A. 198, 198 (1895) (“It was also averred ... he was entitled to have a gate maintained at the public road at the terminus of the strip.”). In the case sub judice, it is clear that the western boundary of the easement ends at the Leiteh property, not within the property, and not at the westerly boundary of the property, ⁶¹⁴ but at the very point where the easement first touches the then property of Lydia Leitch (extant from the record as marked on the various photographs and maps as the turnaround).

This clearly and unambiguously demarcates the westerly point of the right-of-way as described in the deed. There is no dispute as to the other boundaries of the easement relevant to the instant case. This case only concerns the western boundary of the public easement. The County has no rights, under this easement, beyond that point.

On that issue, there is no ambiguity in regard to the easement. When the Court of Special Appeals first addressed the issue, that court should not have remanded the case. It should have found the contested description in the easement to be unambiguous as we do today. In deeds granting easements, ambiguity only exists when the particular location point at issue cannot be determined, not in instances where the location point is clear from the language of the deed.

If there was any ambiguity in respect to language (of which there is none in this case with respect to the boundary at issue) then, in such an event, other evidence might be considered to attempt to locate the right of way. The case sub judice, however, is distinguishable from cases in which the Court has found it necessary to look outside the four corners of a granting document. The case of Sibbel v. Fitch, 182 Md. 323, 325-27 , 34 A.2d 773, 773-74 (1943), involved language granting an easement from one place to another but not fixing the intervening location. Grantors conveyed a 91 + acre tract of property that lay between the Grantors’ family cemetery and a public road, but included language in the conveyance that read: “ ‘saving thereout the family graveyard and reserving also a right of way to and from the graveyard.’ ” Id. at 325 , 34 A.2d at 773 .

There was no other attempt to fix the location of the right-of-way. From the time of the original conveyance in 1866 until at least 1918 (during which period there were conveyances of portions of the 91 + acre tract) “the right of way to the family graveyard ran in an easterly direction between the house and ⁶¹⁵ barn that were on the farm in 1866, and after passing the barn turned north and ran to the graveyard.” Id. It was called the “Old Road.” Id. During the period of 1917 through 1926 a new road was built by one of the successors to the original grantee of the 91 + acre tract.

The original “old road” was still intermittently used. Between 1926 and 1939 there were seven funerals, “all of which went over the new road.” Id. at 326 , 34 A.2d at 773 . In 1939, the owners of the servient tract erected a barrier to keep persons from using the new road to reach the graveyard. We described the initial issue as: “The principal question for decision is whether the appellees have acquired any vested right in the new road.” Id. at 326 , 34 A.2d at 774 .

The Court opined: “The deed of 1866 reserved a right of way in general terms, without defining its location my metes and bounds. For more than half a century the old road was used as the right of way reserved, and this raises an inference that the owners of the dominant and servient tenements had agreed upon the metes and bounds of the right of way reserved, and its location thereby became as definite and fixed as if it had been described in the deed of 1866 by metes and bounds. There is every indication that the old road was in existence prior to 1866, and was the existing right of way to the family graveyard at the time the deed of 1866 was executed. “ ‘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 be held to be the location of the way granted unless a contrary intention appears.’ 28 C.J.S., Easements, Sec. 80, Subsec. b. “This principle of law is well settled, and after 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 ⁶¹⁶ can only be changed by agreement of the owners of the dominant and servient tenements. “ “Where an easement in land, such as a way, is granted in general terms, without giving definite location and description of it, the location may be subsequently fixed by an express agreement of the parties, or by an implied agreement arising out of the use of a particular way by the grantee and acquiescence on the part of the grantor, provided the way is located within the boundaries of the land over which the right is granted. As otherwise expressed, it is a familiar rule, that, when a right of way is granted without defined limits, the practical location and use of such a way by the grantee under his deed acquiesced in for a long time by the grantor will operate to fix the location.

The location thus determined will have the same legal effect as though it had been fully described by the terms of the grant.’ 28 C.J.S., Easements, Sec. 82.” Sibbel, 182 Md. at 326-27 , 34 A.2d at 774 (emphasis added). 3 See also Amabile v. Winkles, 276 Md. 234, 241 , 347 A.2d 212, 216 (1975) (‘“It must first be noted that an imprecisely described easement may be precisely located by user.”); Taylor v. Solter, 247 Md. 446 , 231 A.2d 697 (1967); Burroughs v. Milligan, 199 Md. 78, 84 , 85 A.2d 775, 778 (1952) (Where a right of way “over [an] existing road” was involved and the Court noted: “What that existing road was at that time is a question of fact.”); Weeks v. Lewis, 189 Md. 424 , 56 A.2d 46 (1947); Stevens v. Powell, 152 Md. 604, 608 , 137 A. 312, 313 (1927) (“The definition of its course by actual user during the period of its enjoyment by the dominant, and its recognition by the servient owners, is a sufficient identification of the way... .’ 4 ⁶¹⁷ In the case sub judice, the westerly terminus of the right of way was not couched in general terms, as were the boundaries in the cases above discussed, but, rather it was