Zimmerman v. Summers

Powers, J., delivered the opinion of the Court. This case illustrates the serious consequences of careless or uninformed dealing with rights in real estate. For many years Henry D. Zimmerman and Mollie Naomi Zimmerman, his wife, had been crossing a small area in the corner of their neighbor’s property in going to and from their own. Both properties are located in Howard County, near Ellicott City.

In May, 1971, Gorman Franklin Summers and Ruth Ann ¹⁰² Summers, his wife, present owners of the adjoining property, filed a bill of complaint in the Circuit Court for Howard County, seeking to enjoin what they alleged to be a continuing trespass. The Zimmermans denied that they were trespassers, and claimed that their use of the Summers property was a matter of right. The court, T. Hunt Mayfield, judge, entered a decree restraining and enjoining the Zimmermans from trespassing on the property of the Summerses. The Zimmermans appealed from that decree.

A. The Facts Each of the two parcels contains between one and one half and two acres. They lie side by side. The front lines of the two parcels appear to form one continuous line. This front line abuts other private property, and is more than 250 feet away from what was formerly known as Old Jonestown Road, relocated some years ago as Rogers Avenue.

Ingress and egress for each of the two parcels has been over a private roadway, 14 feet wide, which begins at the front line of the Summers parcel, where it corners with the Zimmerman parcel, and runs out to the public road. An easement over this 14 foot roadway is shown by the land records to be appurtenant to the Summers parcel. There was no evidence one way or the other to show any recorded right over the roadway appurtenant to the Zimmerman parcel, but that use is not an issue here. The record indicates some doubt whether that private roadway continues across the space between the old public road and the present Rogers Avenue, but that question is not involved in this case.

What is clear beyond doubt is that the private roadway comes to a dead end against the Summers parcel only. It shares a common corner, but no common line, with Zimmerman. With respect to that 14 foot private roadway and the Zimmerman parcel, their contiguity might be described as one of infinite minuteness. The Zimmermans acquired title to their property in 1954 by a deed from Mrs. Zimmerman’s mother.

The grantor then ¹⁰³ owned a tract of slightly more than seven acres, some of which fronted on the public road. The Zimmermans obtained a building permit in 1954, and over a period of about three years, they built the house in which they still live. They testified that they began some preparatory activity on the parcel as early as 1949, and that from the beginning, they crossed the corner of the adjoining parcel to gain access. A Mr. Richards testified that he acquired what is now the Summers parcel by deed from his mother in 1953.

There was an old house on it which he remodeled. It had belonged to his grandmother, and he had known the property all of his life. He was familiar with the private roadway from the front line of his property to the public road. He knew, also, that a 12 foot strip along the side of the property, an extension of the 14 foot private roadway, was subject to an easement for access to property to the rear, but was no longer used and was overgrown.

Mr. Richards testified that the first work on the Zimmerman property was begun in 1954, and that until that time, the property was grown up as high as the telephone wires with honeysuckle. He said that he and some friends hunted rabbits on it. He said that Mrs. Zimmerman called him on the telephone in the spring of 1954, and asked his permission to use his driveway to bring in building materials. He gave the permission, and they started using his driveway during the summer of 1954.

Their work continued into 1956. Mr. Richards said that about a month after the telephone call, he received a legal document to sign about the right of way. After he showed the paper to a lawyer, he informed the Zimmermans that he would not sign it — that they would have to go out through her mother’s property. Mr. Richards said that he and the Zimmermans got along pretty well living there together, but that in 1955 or 1956, and a number of times after that, he told one or both of them, in a congenial way, that they should arrange for another way to go in and out.

He said also that for a couple of years, around 1958 or 1959, the Zimmermans operated a store at Woodlawn and lived in that area. There was other evidence that they never moved out of ¹⁰⁴ the house at Ellicott City and continued to occupy it on a part time basis before coming back full time. The Richards property was conveyed to Mr. and Mrs. Summers in 1969. They were related to the Richards family, and knew the property before they bought it.

Mrs. Summers testified that she asked the Zimmermans if they were going to stop using the driveway, and go out another way. Their response was that Mr. Richards always meant to give it to them, and that they would continue to use it. The area of the Summers land which the Zimmermans would be required to use to continue the same means of ingress and egress to their property is small. A triangle formed by two lines about 12 feet long across the front and down the side from the corner of the Summers parcel, with a base joining those two lines, would be sufficient.

The area would appear to be roughly 72 square feet. The Zimmermans claim a legal right to continue to use it. The chancellor, in an opinion filed on 27 November 1973, held that they had no right, and were trespassers. The opinion was followed by a decree filed on 4 December 1973.

The decree itself contained no findings. Aside from its formal parts, the decree provided that the Zimmermans “be, and they are hereby, restrained and enjoined from trespassing on the property” of the Summerses. In this appeal from the decree against them the Zimmermans alternatively contend: 1. That they acquired an easement by prescription across the corner of appellees’ property by adverse use for a period of twenty years. 2.

That the appellees are equitably estopped from enjoining the use because their predecessor gave the appellants a license to cross the property when they were constructing their house. The chancellor’s opinion clearly explained the factual background of the case, and the contentions of the parties. Its significant conclusory parts are: “This Court finds no legal right in the ¹⁰⁵ Respondents to the use of any part of the Complainants’ land. “The Respondents’ contention is that they have acquired title to the use of the twelve foot strip by their use thereof, and the use of their predecessors in title, for a period in excess of twenty years. The Court does not find such a right to have been established. “It is the opinion of this Court that the Complainants have clearly shown a continuing trespass by the Respondents on to the property of the Complainants, and that the Respondents should be enjoined from continuing such trespass.” B. The Law Of Easements By Prescription Several basic legal principles, as well as a few peripheral ones, are involved in the contention of the appellants that they acquired an easement by prescription across the property of the appellees by continued adverse use for a period of twenty years. 1.

In General One of the leading cases in Maryland defining the requirements of an easement by prescription is Cox v. Forrest, 60 Md. 74 (1883). In that case the plaintiffs sought to recover damages for obstruction of a private right of way which they claimed to have acquired over the defendant’s land. The Court of Appeals said, at 79-80: “In the absence of an express grant, it was necessary for the plaintiffs to prove an adverse, exclusive, and uninterrupted enjoyment of the right of way in question for twenty years. ¹⁰⁶ “By adverse is meant a user, without license or permission, for an adverse right of an easement cannot grow out of a mere permissive enjoyment, the real point of distinction being between a permissive or tolerated user, and one which is claimed as a matter of right. Where one, however, has used a right of way for twenty years unexplained, it is but fair to presume the user is under a claim of right, unless it appears to have been by permission.

In other words, the use of a way over the lands of another whenever one sees fit, and without asking leave, is an adverse use, and the burden is upon the owner of the land, to show that the use of the way was by license or contract inconsistent with a claim of right. Bachelder v. Wakefield, 8 Cush. 243 ; Hall v. McLeod, 2 Met. (Ky.) 98; Garrett v. Jackson, 20 Pa. St. 331; Tickle v. Brown, 4 Ad. & El. 369; School District, Etc. v. Lynch, 33 Conn. 334 ; Hammond v. Zehner, 23 Barb. 473 . “By exclusive, the law does not mean that the right of way must be used by one person only, because two or more persons may be entitled to the use of the same way, but simply that the right should not depend for its enjoyment upon a similar right in others, and that the party claiming it exercises it under some claim existing in his favor, independent of all others.

It must be exclusive as against the right of the community at large. “Nor does the law mean by ‘an uninterrupted and continuous enjoyment,’ that a person shall use the way every day for twenty years, but simply that he exercises the right more or less frequently, according to the nature of the use to which its enjoyment may be applied, and without objection on the part of the owner of the land, and under such circumstances as excludes the presumption of a voluntary abandonment on the part of the person claiming it.” ¹⁰⁷ The Court of Appeals held to the same effect in Condry v. Laurie, 184 Md. 317 , 41 A. 2d 66 (1945), where it said, at 321: “In order to establish an easement by prescription, it is necessary to prove an adverse, exclusive and uninterrupted use of the way for twenty years. Adverse use means use without license or permission. Where a person has used a right of way for twenty years unexplained, it is fair to presume that the use has been under a claim of right, unless it appears to have been by permission. Cox v. Forrest, 60 Md. 74, 79 ; Smith v. Shiebeck, 180 Md. 412 , 24 A. 2d 795 .” See also Dalton v. Real Estate & Improvement Co., 201 Md. 34 , 92 A. 2d 585 (1952). 2.

The Meaning of Exclusive It should be noted that the requirement that the use be exclusive means that it is the claim of right rather than the use itself which must be exclusive. This distinction was expressed in Wilson v. Waters, 192 Md. 221 , 64 A. 2d 135 (1949), where the Court said, at 226: “It is well established that to acquire an easement by prescription, the claimant must prove adverse, exclusive and • continuous use for twenty years. Waters v. Snouffer, 88 Md. 391 , 41 A. 785 ; Smith v. Shiebeck, 180 Md. 412, 419 , 24 A. 2d 795 ; Condry v. Laurie, 184 Md. 317 , 41 A. 2d 66 ; Punte v. Taylor, 189 Md. 102, 111 , 53 A. 2d 773, 777 . We recognize, however, that while adverse possession, sufficient to establish title in fee simple, must be absolutely exclusive, the user essential for establishing an easement is exclusive in the limited sense that the claimant’s right must not depend for its enjoyment upon a similar right in others, and, though claimant may not have been the only one who used it, he used it under a claim of right independently of all others.

Cox v. Forrest, 60 Md. 74, 80 ; 4 Tiffany, Real Property, 3d Ed., sec. 1199.” ¹⁰⁸ 3. Interruption of Use or Intermittent Use One of the contentions argued on behalf of the Summerses is that there was a period of one to two years, in 1958 and 1959, when the Zimmermans moved away from the property, and that their being away interrupted whatever continuous use they claimed. Relevent to this contention there was evidence by the Zimmermans, which was not disputed, that they did not move their possessions out of the home, and although they lived away from it the better part of the time during that period, they occupied it on weekends and frequently at other times during the week. The requirement that adverse use be continuous does not mean that the user must be exercised constantly and without any intermission.

The requirement may be satisfied by use “with such frequency and constancy as to affect the landowner with notice that it is being exercised”, 4 Tiffany, The Law of Real Property, § 1202 (3d ed. B. Jones 1939). In Stuart v. Johnson, 181 Md. 145 , 28 A. 2d 837 (1942), the owner of the dominant tenement had lived on it while she was growing up and, during that period, had used the roadway on the servient tenement without interference from its owner. The house in which she lived was destroyed by fire and she moved away.

A few years later, she purchased the property, restored the house, and resumed the use of the roadway. The Court of Appeals held that the exercise of the user was sufficiently continuous to sustain the claimant’s burden of proving that she had acquired title by prescription to the right of way. In Clayton v. Jensen, 240 Md. 337 , 214 A. 2d 154 (1965), the Court of Appeals said, at 344-45: “Daily use of the right of way is not required, but only that use normally resulting from the nature of the use itself. It is only required that a cessation of use not indicate a voluntary abandonment of the use by the person claiming it.

Cox v. Forrest, supra. Indeed we have held that the absence of the person seeking to establish the easement from the dominant tenement for ‘a few ¹⁰⁹ years’ during which time the right of way was not used by that person, who, however, resumed the use upon her return, did not prevent the use from being continuous or indicate an abandonment of the use.” 4. Continuity of Use Before Ownership or Use By Predecessor Another contention advanced on behalf of the Summerses is that the Zimmermans did not acquire title to the dominant tenement until 1954 and could not claim use of the servient tenement prior to that time. Again there was contradicted evidence relating to the period prior to 1954.

The Zimmermans said that they commenced the use of the driveway on the adjoining property in 1949 when they reached the agreement with Mrs. Zimmerman’s mother to buy the property. On the other hand, it was at least implied by the testimony of Mr. Richards that there was no use by the Zimmermans of the driveway on the property which he acquired in 1953 until the early part of 1954. While the resolution of disputed facts was for the judge, the law is as expressed in Clayton v. Jensen, supra, at 345: “It is clear that the possession taken prior to the deed under the contract of sale may be tacked to the possession after the delivery of the deed to establish the necessary period of adverse possession to perfect title in the contract vendee. See 2 C.J.S. Adverse Possession, § 130 (b), page 688 (1936) where it is stated: ‘Nevertheless, a vendee who had possession under an executory contract and subsequently acquired a deed may tack his possession before to his possession after the receipt of his deed to perfect title in himself.’ ” See also Stuart v. Johnson, supra, where the adverse use began before the owner of the dominant tenement acquired title to it and while she was living on the property during her childhood and young womanhood. ¹¹⁰ A slightly different aspect of this principle was expressed in Gore v. Hall, 206 Md. 485 , 112 A. 2d 675 (1955), where the Court said, at 491: “* * * where there is privity of estate between the successive parties in possession, the possession of such parties may be tacked so as to make the twenty years required by the Statute of Limitations.

The law is clear that such privity may be created by a sale and conveyance and possession under it as well as by-descent.” Tacking the adverse use by a predecessor owner of the dominant tenement in privity with the subsequent owner was also recognized in Zehner v. Fink, 19 Md. App. 338, 347 , 311 A. 2d 477 (1973). 5. Permissive Use Is Not Adverse Use of the land of another by permission of or license from the owner is not adverse and, no matter how long it is continued, cannot ripen into an easement by prescription. In Condry v. Laurie, supra, the Court of Appeals said, at 320-21: “The distinction between an easement and a mere license to use land is clear. While an easement implies an interest in land, a license is merely a personal privilege to do some particular act or series of acts on land without possessing any estate or interest therein.

Shipley v. Fink, 102 Md. 219, 226 , 62 A. 360 ; McClintic-Marshall Co. v. Ford Motor Co., 254 Mich. 305 , 236 N. W. 792 , 77 A.L.R. 807, 812 . In De Haro v. United States, 5 Wall. 599, 627 , 18 L. Ed. 681, 688 , Justice Davis spoke of the incidents of a license as follows: ‘It is an authority to do a lawful act, which, without it, would be unlawful, and while it remains unrevoked is a justification for the acts which it authorizes to be done. It ceases with the death of either party, and cannot be transferred or alienated by the licensee, ¹¹¹ because it is a personal matter, and is limited to the original parties to it.’ “The record in this case indicates that the Hittles used the private road for more than twenty years in pursuance of a license, and therefore did not acquire a prescriptive right.” The Court of Appeals in Dalton v. Real Estate & Improvement Co., supra, after finding that the evidence in that case showed exclusive and uninterrupted use of the disputed road for twenty years, said, at 43: “This being so, it will be presumed that the use has been adverse under a claim of right, unless it is proven that the use originated by permission and there has been no change since; the burden of showing that the use was by license or permission inconsistent with the claim of right is upon the owner of the land across which the way runs. Cox v. Forrest, supra; Wilson v. Waters, 192 Md. 221 , 64 A. 2d 135 .” The Court further observed, at 49, that, “Prescription has its birth and fruition in use without permission.” This is merely a restatement of the rule expressed by the Court in Cox v. Forrest, supra, when it said, at 79, “* * * an adverse right of an easement cannot grow out of a mere permissive enjoyment* * *.” We said in Zehner v. Fink, supra, citing and quoting from Wilson v. Waters, supra, that the burden is on the landowner to rebut a presumption of adverse use by showing, “* * * that the use of the way was by license inconsistent with a claim of right.” We said further, at 344: “The owner of the land across which the way runs (servient tenement) in order to rebut the presumption of adverse user must prove by affirmative evidence that the way was used with permission or license.” ¹¹² The nature of the legal document which Mr. Richards received from the Zimmermans in 1954, after he had given them permission to use a part of his driveway, is not further explained but it seems reasonable to infer that it constituted a request for either a formal grant or for written permission.

When, by asking for permission, a person using the land of another recognizes the right of the owner to stop the use, then its character ceases to be adverse. 4 Tiffany, The Law of Real Property, § 1204 (3d ed. B. Jones 1939). See Note, “Elements of an Adverse User Sufficient to Start the Statute of Limitations Running — Prescriptive Easement”, 10 Md. L. Rev. 272 , 274 (1949), where it is said that to be adverse the user must be inconsistent with the rights of the landowner and must not be accompanied by any express or implied recognition of his right to put a stop to it. 6. There Was No Easement By Prescription Appellees say that the Zimmermans did not acquire an easement by prescription because, (a) the Zimmermans may not rely upon a use that preceded their title, in 1954, (b) the continuity of the use, whenever it began, was broken in 1958 and 1959 when the Zimmermans lived elsewhere, and (c) the use was permissive in 1954 and thereafter for two years or more, and could not have been continuous for 20 years.

We have shown that the cases recognize that an adverse use for the prescriptive period may be partly before and partly after the acquisition of record title, or may be partly by the present owners and partly by predecessors in privity. The cases show also that a use may be considered continuous under certain circumstances, even though it is occasional or intermittent. But there can be no doubt that adverse use and permissive use are mutually exclusive. One cannot exist along with the other.

The permission which the chancellor properly found was given by Mr. Richards in 1954, less than 20 years before this suit, made a prescriptive easement in this case impossible. ¹¹³ The chancellor found that the Zimmermans had not established a legal right to use any part of the land of the Summerses. Under the facts and the applicable law, any other finding would have been erroneous. C. Way of Necessity The appellants attempt to bolster their position by pointing out that there was no other access to their property from public roads, except by crossing the corner of the Richards property. The argument suggests that the Zimmermans should be entitled to a way of necessity, but this is not a case which requires consideration of the law dealing with that legal principle.

The property of the Zimmermans was separated as a landlocked parcel by the 1954 deed which conveyed it to them. Before that severance, it was a part of a larger tract of land which had frontage on a public road. The Court of Appeals said in Condry v. Laurie, supra, at 321: “It is universally accepted that where a person conveys to another a parcel of land surrounded by other land, and there is no access to the land thus conveyed except over the grantor’s land, the grantor gives to the grantee by implication a right of way over his own land to the land conveyed by him.” An earlier expression, more precisely apposite to the facts here, is found in Fox v. Paul, 158 Md. 379 , 148 A. 809 (1930), where the Court said, at 386: “A right to a way of necessity over the lands of the grantor to a public road or highway exists in favor of the grantee when the land granted to him is wholly surrounded by the land of the grantor, or partly by the land of the grantor and partly by the land of a stranger, if there is no other way or outlet from the grantee’s land to a public highway. This right, in such case, does not arise from an express grant, but from a presumption that it was the ¹¹⁴ intention of the parties that the grantee should have access to his lands over the lands of the grantor.” In Oliver v. Hook, 47 Md. 301 (1877), the Court said, at 310: “And a right of way of necessity can only be raised out of the land granted or reserved by the grantor, and never out of the land of a stranger.” The land of Richards was the land of a stranger, as far as the Zimmermans’ property was concerned.

If a way out of the Zimmermans’ property was necessary, it had to be over the retained property of their grantor. D. The Law of Equitable Estoppel 1. In General In support of their claim of estoppel, the appellants make these arguments in their brief. “Appellants clearly relied on Mr. Richards’ granting them a license to cross the corner of his property when bringing materials to build their house. The Appellants relied on the license in good faith because (1) they were on friendly terms with Mr. Richards and (2) a small area over the corner of Appellees’ lot did not affect Mr. Richards’ enjoyment of his land.

The Appellants could, in good faith, rely on having continued access to their lot over the corner of Appellees’ lot.” “The Appellants, in good faith, relied upon the license, voluntarily granted by Mr. Richards, in such a way that they will be seriously injured if the Appellees are allowed to obtain equitable remedies against them. The Appellants do not argue against Mr. Richards’ right to revoke his license, but rather urge the doctrine of equitable estoppel prevents the ¹¹⁵ successors in title to Mr. Richards from seeking equitable remedies against the Appellants.” They further argue that Mr. and Mrs. Summers were familiar with