Baker v. Frick

• Decision Date: 23 June 1876
• Citation: 45 Md. 337
• Parties: CHARLES J. BAKER v. WILLIAM F. FRICK.
• Court: Maryland Court of Appeals

45 Md. 337

CHARLES J. BAKER v. WILLIAM F. FRICK.

Court of Appeals of Maryland

June 23, 1876

APPEAL from the Superior Court of Baltimore City.

The case is stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., STEWART, GRASON, MILLER and ALVEY, J.

Arthur W. Machen and Fred'k W. Brune for the appellant.

William F. Frick and S. Teackle Wallis, for the appellee.

BARTOL C.J., delivered the opinion of the Court.

The appellant and appellee are owners of two parcels of land lying contiguous to each other in Baltimore County. Under certain deeds and contracts, contained in the record, the appellant is entitled to a right of way over the land of the appellee, by a road twenty-five feet wide, which has been laid out, graded and made at the joint expense of themselves and Alexander Rieman another adjoining proprietor who is also entitled to the same right of way. The agreements under which the right of way is claimed were executed in September 1873, and the road was constructed soon afterwards. The appellee, for the more secure and convenient use of his property, has placed gates upon the road at its termini, and claims the right to maintain the same while the appellant, claiming that he is entitled to an open and unobstructed road of the width of twenty-five feet, has instituted this suit for an alleged unlawful obstruction of the same by the gates of the defendant. The case was docketed by consent, and all errors of pleading and questions of jurisdiction were waived by agreement.

Evidence was introduced showing the relative location of the lands of plaintiff and defendant, and the manner in which they were acquired, and have been occupied and used, and the several agreements which have been, from time to time, entered into between the successive owners thereof with regard to rights of way over each other's lands, and the mode in which such rights have been used and enjoyed. This evidence is quite voluminous, it is fully set out in the record, and in the briefs, and need not be stated at length in this opinion.

The first question presented by this appeal is raised by the first prayer of the appellant, and the prayer of the appellee. By the former, the Court was asked to instruct the jury, "if they find the execution by Frick, Baker and Rieman of the several papers dated the 3rd September 1873, and that a road-bed had been made and constructed under said agreement twenty-five feet wide, from the point of intersection of the lands of said Frick, Baker and Rieman, out to the old Frederick road, as shown by the plats made by Mr. Boughan, offered in evidence, then by the true construction of said agreement, said Frick had no right afterwards to obstruct said road by gates, or to diminish the width of it, by fences or other obstructions." This prayer was refused, and the prayer of the appellee was granted, instructing the jury "that upon a proper construction of the agreement of September 3rd 1873, or any other papers of that date, executed between the parties, there is nothing in the said agreement and papers or any of them, which entitles the plaintiff as matter of law, to an open road without gates over the land of the defendant."

The agreements referred to, are designated as No. 1, No. 2 and No. 3. By No. 1, Frick agrees to give to Baker and Rieman " a right of way through his land and premises by a road twenty-five feet wide to be made," then follows an agreement that the cost of making the road shall be paid by the parties jointly. The line of the road is then particularly designated.

No. 2, is an agreement between the same parties, and Boughan the engineer, wherein the latter contracts to construct the road, "to cut, fill, grade and make a good and practicable road twenty-five feet wide."

By No. 3, Baker agrees to grant to Frick a right of way not less than twenty-five feet wide, through Baker's lands, from the terminus of said before mentioned road-way, and connecting therewith southwardly to the Frederick Turnpike road. But Baker to be under no obligation to grade or construct the road-bed of said right of way, until the uses of his lots fronting thereon shall in his opinion render the same necessary. The agreement further provides that "when the said road shall be so graded hereafter, as to make a continuous communication between the old Frederick road and the Frederick Turnpike road, the owners of all property fronting thereon, shall be entitled to use the same in either direction, as a common right of way, provided they pay their respective due proportions of the expenses of making, and keeping the same in good repair." It appears from the evidence that the road contemplated in this agreement has not yet been constructed.

Construing the agreements in the light of surrounding circumstances, as these are disclosed by the testimony, they do not, in the opinion of a majority of the Court either by their terms or legal effect, necessarily deprive the defendant of the right to erect gates on the road at its termini. His right to do so depends upon other considerations, and is not necessarily concluded by the agreements. These do not expressly grant to the plaintiff an open road without gates. The road in question is a private way over the defendant's lands. "Nothing passes as incident to such a grant, but that which is necessary for its reasonable and proper enjoyment." 3 Kent, 419, 420.

What is necessary for such reasonable and proper enjoyment of the way granted, and the limitations thereby imposed on the use of the land by the proprietor, depends upon the terms of the grant, the purposes for which it was made, the nature and situation of the property subject to the easement, and the manner in which it has been used and occupied.

As said by MARSHALL, C.J., in Maxwell vs. McAtee, 9 B Mon., 21, ...