Banks v. Pusey

• Decision Date: 01 August 2006
• Docket Number: No. 135, September Term, 2005.,135, September Term, 2005.
• Citation: Banks v. Pusey, 904 A.2d 448, 393 Md. 688 (Md. App. 2006)
• Parties: R. Alan BANKS, Jr., et ux. v. Ira R. PUSEY.
• Court: Court of Special Appeals of Maryland

904 A.2d 448

393 Md. 688

R. Alan BANKS, Jr., et ux. v.Ira R. PUSEY.

No. 135, September Term, 2005.

Court of Appeals of Maryland.

August 1, 2006.

COPYRIGHT MATERIAL OMITTED

John B. Robins, IV(John B. Robins, IV, P.A., Salisbury), on brief, for petitioners.

Victor H. Laws, III(S. James Sarbanes of Law & Robertson, P.A., Salisbury), on brief, for respondent.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

CATHELL, J.

This case arises from a dispute between two land owners concerning an alleged right-of-way.Ira R. Pusey, respondent, contends that he has a right-of-way across R. Alan Banks, Jr.'s and his wife Shirley W. Banks, petitioners, property in order to access a public road.Respondent asserts that he has obtained an easement by prescription over the petitioners' property.On October 26, 2004, the Circuit Court for Worcester County found there to be such an easement by prescription.On November 29, 2004, the Banks filed an appeal to the Court of Special Appeals.On December 13, 2005, the Court of Special Appeals affirmed the Circuit Court in an unreported opinion.On January 6, 2006, the Banks filed a petition for writ of certiorari; we granted certiorari on March 9, 2006.Banks v. Pusey,391 Md. 577, 894 A.2d 545(2006).

The Banks' petition for writ of certiorari presents two questions for our review:

"(1) Does a presumption of adverse use arise in favor of a person who uses a lane or driveway for ingress and egress to the residence which he occupies with his parents so as to establish, as against the parents and their successors in title, a basis for a prescriptive easement?

"(2) Does the use of a lane or driveway by third party invitees constitute an adverse use that would entitle a person who, with permission, resides on the premises to assert as against the owner a legal right to continue to use and enjoy the access to the premises on the basis of a prescriptive easement?"¹

Based on the facts of the casesub judice,we answer both of the Banks' questions in the negative, and therefore reverse the decisions of the Court of Special Appeals and the Circuit Court.A presumption of adverse use does not arise in favor of a person when that person begins to live jointly with and on his or her parents' property as a minor and then continues to live on the property along with his or her parents as an adult unless there is clear and convincing evidence that such a person was residing there (or using a particular right-of-way) against his or her parents' will.In addition, the use of a lane or driveway by third-party invitees of a person with permission to use a lane or driveway does not constitute an adverse use in the context of establishing a prescriptive easement because that person's permission is conferred upon their own third-party invitees — as long as the use is within the scope of the permission.

I.Facts

The disputed alleged right-of-way pertains to a farm lane which runs from respondent's property, across a neighboring property, and across the Banks' property, exiting onto Snow Hill Road.The farm lane is also described as the driveway to the house on the Banks' property.

The parties' properties in question are located southeast of Salisbury — west of Salisbury/Snow Hill Road (Maryland Route 12) and north of Saint Luke's Road — just south of the Wicomico/Worcester County line, in Worcester County.The Banks' property is to the west of and adjacent to Snow Hill Road and consists of approximately 25 acres, a 20-acre portion of which is relevant to the case at bar.The farm lane or driveway runs in a westerly direction from Snow Hill Road across the northern portion of the Banks' property, through a neighboring property (the "Scrimgeour property"),² and into respondent's property, a 127-acre parcel of land.

The respondent's property consists of fields in the northern portion and forest in the remainder.The property has no direct road frontage on Snow Hill Road, but has approximately 400 to 500 feet of frontage on Saint Luke's Road.It is undisputed that the better means of access to and from the respondent's property (which is generally used for farming and hunting) is via the farm lane.Testimony was provided at trial that the frontage on Saint Luke's Road is low-lying and poorly drained, covered by forest and separated from the road by a ditch.

Respondent's father, Marion L. Pusey, owned both pieces of property from 1949 to 1954.According to respondent's answers to interrogatories, he lived with his family on the parcel which is now the Banks' property from 1939 until 1995.³Respondent and his father farmed the land and respondent lived in the residence with his father and step-mother.On March 24, 1954, Marion L. Pusey deeded respondent the 127-acre parcel.

Respondent's father passed away in 1979, at which time what is now the Banks' property was deeded by Marion's personal representative to Marion's second wife, Eva Pusey, for life with remainder to Andrew and Debra Pusey, two of Marion's grandchildren.Respondent continued to live on the property with his step-mother Eva until she died in 1995.At that point, what is now the Banks' property passed to Andrew and Debra; respondent continued to reside in the dwelling and use the farm lane with their consent.In May of 1998, the Banks purchased the property from Andrew and Debra Pusey.Respondent moved and, though no longer residing on the property, continued using the farm lane to cross over the Banks' property and access his 127-acre parcel.Throughout respondent's ownership of his 127-acre parcel (from 1954 on) numerous third-party invitees (farm laborers, timber and power companies, hunters, and others) have used the farm lane to access his property to and from Snow Hill Road.

The trial court judge found that respondent lived on what is now the Banks' property pursuant to the acquiescence of his family members.Respondent testified about his living there, stating: "Never asked them.Weren't nothing said about it."When asked as to whether he had permission to stay in the house, he stated: "Wasn't nothing said about it.I just stayed."Respondent never had an actual ownership interest in the Banks' property.Respondent testified that when the Banks purchased the property, however, he told them that he had a right-of-way to access his 127-acre parcel via the farm lane.The Banks searched the Worcester County Land Records and did not find any evidence of a deeded right-of-way, but nonetheless allowed respondent to use the farm lane for a period of time.Subsequently, the Banks revoked their consent to respondent's use of the farm lane and erected obstacles to prevent respondent's access.The respondent removed the obstacles and continued to use the farm lane, resulting in this matter being brought before the court.

On May 20, 2004, a non-jury trial was held in the Circuit Court for Worcester County.The trial court heard from fourteen witnesses throughout the course of the day-long trial and found that respondent"proffered a considerable amount of evidence . . . that his use of this farm lane has been uninterrupted and exclusive for more than the prescriptive period of twenty years."On October 26, 2004, the trial court filed its opinion, stating:

"[T]his Court finds that [respondent] is entitled to a presumption that his long-standing use of the disputed farm lane was adverse, and that the Banks bear the burden of proving that it was otherwise.After considering all of the testimony and the parties' memoranda it is clear to this Court that the Banks' have failed to satisfy their burden; they only point to the fact that [the respondent] lived on what is now the Banks' property with his parents.As Dalton⁴ instructs, showing a grant of permission or a license requires more than mere acquiescence on the part of the servient owner; and in the instant case, [respondent] never had any ownership interest in what is now the Banks' property — he resided there only by the acquiescence of the other family members.There is a dearth of evidence to show he had any permission or license to use the farm lane to serve his farm property in the capacity described by the witnesses who testified.Moreover, [respondent] himself, along with witness after witness denied any kind of permission or license to use the right of way.Thus, this Court can only find that [respondent's] uninterrupted and exclusive use of this road was adverse as well.

"In sum, this Court finds that [respondent's] use of the farm lane was uninterrupted, exclusive, and adverse for at least the prescriptive period of twenty years.Therefore, this Court holds that he has established that he has an easement by prescription in the farm road crossing over the Banks' property.Because this Court finds the [respondent] has an easement by prescription over the Banks' land, there is no need for this Court to further examine [respondent's] arguments that he alternatively has an easement by necessity or by implication over the Banks' land."

The Banks timely appealed to the Court of Special Appeals and, after hearing argument, on December 13, 2005, the Court of Special Appeals issued an unreported opinion affirming the trial court's decision.The Court of Special Appeals found that there was "legally sufficient evidence from which the [circuit] court could conclude the use [of the farm lane] was uninterrupted and exclusive for the prescriptive period."In addition, as to the Circuit Court's presumption that the use of the farm lane was adverse, the Court of Special Appeals addressed the Banks' argument in opposition — that the use was permissive:

"In an effort to show the use was permissive, [the Banks] produced evidence that [respondent] resided on the property with his father and step-mother for more than fifty years and that [the respondent]acknowledged that he had permission.[The Banks] argue that these facts, along with the fact that [...