Baltimore Gas & Elec. Co. v. Bowers

• Decision Date: 22 January 1960
• Docket Number: No. 89,89
• Court: Maryland Court of Appeals
• Parties: , 77 A.L.R.2d 1366 BALTIMORE GAS & ELECTRIC COMPANY v. John Denton BOWERS et al.

Page 337

221 Md. 337

157 A.2d 610, 77 A.L.R.2d 1366

BALTIMORE GAS & ELECTRIC COMPANY v. John Denton BOWERS et al.

No. 89.

Court of Appeals of Maryland.

Jan. 22, 1960.

Benjamin Chambers and Paul S. Clarkson, Baltimore (Alfred P. Ramsay, Baltimore, and John Grason Turnbull, Towson, on the brief), for appellant.

Kenneth C. Proctor and Claude A. Hanley, Towson (W. Lee Thomas and Charles J. Hessian, Towson, on the brief), for appellees.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HORNEY, Judge.

This appeal involves the second round in the controversy between the descendents of Mary Ann Burnham (the Burnhams) and the heirs of Priscilla Lee (the Lees) on one side and the Baltimore Gas and Electric Company (the company) on the other with respect to the grant of an easement by Mary Ann Burnham (the grantor) to the company across the tract of land now owned by the Burnhams and Lees as tenants in common, on which easement the company operates and maintains the electric transmission line it constructed thereon more than thirty years ago.

In the first round of this litigation, which was an ejectment suit, we held in Burnham v. Baltimore Gas & Electric Co., 1958, 217 Md. 507, 144 A.2d 80, that the grant of the easement operated (by the application of the Rule in Shelley's Case) to bind the Burnhams as to an undivided one-half interest in the tract as tenants in common with the Lees but did not bind the latter who own the other undivided one-half interest.

This second case, which is a partition proceeding, was filed by the company while the ejectment suit was pending. At our suggestion the lower court stayed further prosecution of the ejectment case pending the proceedings in this case, but we declined in the first appeal to pass upon the right of the company to maintain this partition suit. In this proceeding, the company seeks to have the tract divided in kind between the Burnhams and the Lees in such manner that the Burnhams be given that moiety of the tract across which the transmission line easement extends and that the Lees be given half of the tract in value free and clear of the easement, and, in the alternative, seek a sale of the land, subject to the company's easement, and a division of the proceeds between the Burnhams and the Lees in such manner as will protect the rights of the latter as if the burden created by the easement did not exist.

After the opinion in the ejectment case had been filed the company amended its prayers for relief in this partition proceeding to ask that the Burnhams be required by mandatory order to join in the company's bill for partition (whether or not the company was entitled to maintain this action in its own right) so that the company's easement 'may be perfected and preserved and so that the * * * [company] 'may receive the full benefit of its deed" from the grantor.

The Burnhams and Lees demurred to the amended bill on the sole ground 'that under the provisions of * * * [Code (1957), Art. 16, § 154, * * * the company] is not a party in interest authorized to bring' a bill for partition. The chancellor overruled the demurrer on the ground that the company as grantee of the easement had a right in equity to compel the Burnhams to exercise their right to partition 'to give the grantee the benefit of the grant.' In their answer, the Burnhams and Lees denied the material allegations of the bill as amended, including the allegation that the tract should be divided into two parcels. They did not, however, specifically seek partition in kind of their respective aliquot shares.

On June 28, 1852, Mary Ann Burnham and Priscilla Lee, who were sisters, were granted the 118-acre tract of land, located in Baltimore County thirteen miles north of downtown Baltimore City, which is the subject of this controversy, as tenants in common in fee, subject to a life estate of the surviving sister in the whole. When Priscilla died in 1861, her surviving sister, in addition to her own undivided interest in one-half of the tract in fee, had the entire possessory interest in the tract until her death in 1943. At the time of her death, Priscilla, who had not married, was survived by a son. On November 11, 1924, Mary Ann conveyed the easement in question to the company, but at that time the company did not know, nor was it advised by anyone, of an outstanding interest in the heirs of Priscilla. And, for more than twenty-five years none of the Lees, and, for more than thirteen years none of the Burnhams, made any objection to the operation and maintenance of the transmission line or asserted any unacquired or outstanding interest in the land across which the transmission line had been constructed following the grant of the easement. The southern portion of the tract, fronting about 1,200 feet on Broadway Road, is fairly level and generally cleared. North of the transmission line, which crosses the tract approximately parallel to and 900 feet north of the road, the tract is wooded, hilly and traversed by several small streams of water.

One of the witnesses produced by the company, a real estate broker, was of the opinion that the tract was divisible in kind into two parcels so as to give the Lees the equivalent of one-half of the total value as if the tract was not subject to the easement, and after estimating the value of the whole, described several ways the tract could be divided between the Burnham descendants and the Lee heirs, which generally would allot the front portion to the Lees subject to a right of way for the use of the back portion to be alloted to the Burnhams. Another broker, although he found a different value, was also of the opinion that the tract could be divided into two parcels of equal value though not the same size. Both witnesses had walked over and examined the tract for the purpose of forming an opinion as to whether or not it could feasibly be divided in kind between the Burnhams and the Lees, but neither of them specifically testified that the tract could be partitioned without loss or injury. All three of the witnesses for the Burnhams and Lees were also real estate experts. One testified that the property could not be so divided as 'to allocate to each of those persons entitled' their aliquot share because the tract could not be divided into thirty-five parcels of varying sizes 'without seriously damaging the market value of the whole,' but he did not testify as to the feasibility of dividing the tract into two parcels. Another testified that the tract could not be divided into thirty-five parcels without loss or injury due to zoning regulations and the topography of the land. And the third witness testified that 'the property could not be actually divided in any way without substantial damage to both portions' or 'equally in any way into any number of parcels.' However, except for the statement as to zoning and topography, none of the three stated the basis for their opinions that the tract could not be partitioned in kind.

The chancellor, being of the opinion that the 'very nature of the property prevents a partition in kind without loss or injury,' declined to appoint commissioners to inquire into the feasibility of partitioning the tract, and dismissed the bill.

Since we have previously decided that the Burnhams are bound by the grant of the easement [Burnham v. Baltimore Gas & Electric Co., supra], the posture of the dispute on this appeal presents further problems of what a court of equity may do to protect the respective rights and interests of the parties.

The company in effect contends that it has a right to require a partition of the tract into two parcels of equal value and in such manner that only the Burnhams' portion would thereafter be subject to its easement; that commissioners should have been appointed to make such partition in kind; and that the Lees are estopped from objecting to the partition sought by the company. On the other hand, the Burnhams and the Lees, in opposing the position of the company, assert that a right to partition does not exist; that equity does not have jurisdiction in this case; and that the only remedy available to the company to perfect its defective title is by a condemnation suit at law.

As we see it the only questions presented on this appeal involve: (i) the right to partition and (ii) the right to have commissioners appointed to ascertain whether the tract is susceptible of partition.

(i) Right to Partition.

Code (1957), Art. 16, § 154, reads in pertinent part as follows:

'The court may decree a partition of any lands, * * * or any right, interest or estate therein, * * * on the bill or petition of any joint tenant, tenant in common, or any parcener or any concurrent owner, * * * or if it appear that said lands, * * * or right, interest or estate thereon cannot be divided without loss or injury to the parties interested, the court may decree a sale thereof, and a division of the money arising from such sale among the parties, according to their respective rights.'

At the old common law only coparceners had a right of partition. Originally joint tenants and tenants in common could not compel others to partition. But this was remedied by the statute of 31 Hen. 8, c. 1, providing that joint tenants and tenants in common in their own right could compel other owners to make partition in the same manner as coparceners had been and were compelled to do. Walker, Law and Practice of Partition [in England], p. 4 (2d ed. 1882). In these respects, the enactment of Chapter 72 of the Acts of 1785, was merely declaratory of the preexisting common law. Thus, as was stated in Hardy v. Leager, 1957, 212 Md. 565, 130 A.2d 737, the right of partition in kind existed and continues to exist independent of statute. General statutory authority to decree a sale and divide the proceeds was added by Chapter 311 of the Acts of 1831, as was the inclusion of a 'concurrent owner' among those entitled to...