Bassett v. Harrison

• Decision Date: 11 September 2002
• Docket Number: No. 1633,1633
• Citation: 807 A.2d 695,146 Md. App. 600
• Parties: Robert J. BASSETT, et ux. v. Hale HARRISON, et al.
• Court: Court of Special Appeals of Maryland

807 A.2d 695

146 Md. App. 600

Robert J. BASSETT, et ux. v.Hale HARRISON, et al.

No. 1633, Sept. Term, 2001.

Court of Special Appeals of Maryland.

September 11, 2002.

Robert B. Taylor(Adkins, Potts & Smethurst, LLP, Salisbury, Michael C. Vaeth, Snow Hill, on the brief), for appellants.

Hugh Cropper, IV, Anderson, Coe & King, LLP, Ocean City, Robert A. Eaton, Salisbury, on the brief, for appellees.

Argued before HOLLANDER, KRAUSER and THEODORE G. BLOOM(Ret'd Spec. Assigned) JJ.

KRAUSER, Judge.

This case involves a dispute between neighboring landowners, the Harrisons and the Bassetts, over the existence, use, and partial relocation of a right-of-way, known as "Woods Road," over the Harrisons' property.That dispute led Hale Harrison, John H. Harrison, and Helen Harrison Faucette to file suit in the Circuit Court for Worcester County against Robert J. Bassett and his wife, Connie L. Bassett, to enjoin the Bassetts from using the right-of-way to haul sand and gravel from a borrow pit¹ on their property to a public highway and from using the "relocated" westerly portion of that right-ofway for any purpose whatsoever.

Following a bench trial, the circuit court rendered a decision that disappointed both sides.On the one hand, the court held, to the Harrisons' dismay, that the Bassetts had a right to use Woods Road and had acquired a prescriptive easement in the "relocated" westerly portion.On the other hand, it declared, to the Bassetts' dismay, that they could only use the relocated portion for personal and agricultural purposes and that the rest of Woods Road served only that portion of their property that had been conveyed in the deed that had created the right-of-way.Cross-appeals followed.

On appeal, the Bassetts present four issues, which we have set forth below as they appear in their brief:

I.Whether a right-of-way for an access road has been relocated onto a separate parcel of land if for many years, during which that land and the initial servient estate were under common ownership, the relocated portion of the road was used for access to the dominant estate and the original roadway has been abandoned.

II.Whether by alleging in the initial and amended complaints that a right-ofway has been moved onto his property its owner has admitted that the right-ofway has been relocated onto his property.

III.Whether a right-of-way granted without any limitation of its usage may be used for hauling sand and gravel if that usage does not adversely affect the servient estate.IV.Whether a prescriptive easement based upon prior usage by trucks and other vehicles for farm operations and general access may be used by trucks for another purpose if the servient estate is not affected by such additional usage and its owners allow a third party to engage in similar usage of the roadway.

On cross-appeal, the Harrisons present two questions:

V.Did the trial court err when it granted appellants a prescriptive easement across the relocated portion of the right-of-way when there was no evidence that appellants' use was adverse?

VI.Did the trial court err when it granted appellants a prescriptive easement across the relocated portion of the right-of-way when appellants never pled a cause of action for prescriptive easement?

For the reasons that follow, we shall affirm the judgment of the circuit court.

Background

The Harrisons own a farm, known as the "Birch Farm."²Their neighbors, the Bassetts, own a 72 acre parcel of land that was originally acquired by William D. Bassitt³ from the Harrison family in 1913.In the 1913 deed transferring ownership from Orlando and George Harrison and their wives to Bassitt, a right-of-way (Woods Road) was granted to Bassitt across the Harrisons' farm (Birch Farm).A dispute between the parties over the existence, present location, and permitted use of the right-of-way is the subject of this case.To describe that right-of-way, we shall divide it into three segments as the parties did below and rely on the drawing reproduced in appellants' brief at "App. 1," which we have attached to this opinion.

The right-of-way at issue, known as Woods Road, runs east and west, across the Harrisons' Birch Farm for one mile until it reaches U.S. 113, which runs north and south.Segment 1 is the easterly portion of that road.It consumes all but the last 600 feet of Woods Road up to U.S. 113.The last 600 feet, the westerly portion of the road, is Segment 2.These two connected segments constitute "Woods Road" and the total right-of-way granted William Bassitt in the 1913 deed.

At some point, Segment 2, the last 600 feet of Woods Road before it connects with U.S. 113, was abandoned in favor of Segment 3 which runs from Segment 1, the easterly portion of Woods Road, at about a thirty degree angle and in a southwesterly direction, crossing the northern tip of a parcel of land called the Evans lot⁴ until it reaches U.S. 113.Although the use of the entire right-of-way to haul sand and gravel is in dispute, much of our discussion will focus on Segment 3 as that is the principal source of disagreement between the parties.

As noted, in 1913, Orlando Harrison, George Harrison, and their wives conveyed, by deed, 72 acres of their land to Bassitt, who, at that time, owned several acres of adjacent farm land.That deed also granted Bassitt the right to use Woods Road, which he and his successorsin-interest did, transporting farm and domestic goods and equipment over it.

Prior to 1938, Segment 2, the 600 foot westerly portion of Woods Road, was abandoned, and Segment 3, a southwesterly route to U.S. 113, crossing the Evans lot from Segment 1, came into use.At trial, the Harrisons' real estate expert testified that, at that time, the Birch Farm and the Evans lot were under different ownership.He further opined that, from the date that the 72 acre parcel of land was conveyed by the Harrisons to William D. Bassitt in 1913 until a foreclosure sale in 1944, the two properties were, for the most part, under different ownership.

The Bassetts disagreed.They contended at trial that title reports of the Harrison heirs showed that the Birch Farm and the Evans lot were under common ownership or at least "substantially" under common ownership "for almost 50 years" before the Harrisons conveyed the Evans lot to Andrew Evans and his wife.Those title reports, the Bassetts claimed, showed that from 1917 to 1929 both properties were owned by Orlando Harrison or George H. Harrison or their relatives and devisees.Then, in 1929, G. Hale Harrison became the owner of a two-thirds undivided interest in the Birch Farm and a co-owner of the Evans lot in partnership with his two brothers, Henry L. Harrison and John L. Harrison, trading as the "Harrison Brothers Partnership."

Since the relocation of the westerly portion of the right-of-way, Woods Road has been used for sundry purposes.The Harrisons have used the road for farming and agricultural purposes and as access to a borrow pit that their "family used in the `50s and `60s."Their neighbor, Randy Hastings, presently uses it, with their permission, to haul sand and gravel from his farm across Woods Road.

The Bassetts have also used the rightof-way to obtain access to their property and have done so for many years.Floyd Bassett testified that he used the Woods Road for hunting with other members of the Bassett family during the 1940's and 1950's.Moreover, Clive Bassett, appellants' father, who owned the farm from 1947 until his death, farmed the land and used the road for that purpose.And Connie Bassett testified that, beginning in the early 1960s, the Bassetts continued to use the road to haul grain and feed to or from the entire farm.While the Harrisons acknowledge that the Bassetts have used the road for such purposes, Hale Harrison testified that they were unaware that the Bassetts were considering using the rightof-way to haul sand and gravel until 2000"when the Bassets filed for a borrow pit application."

On October 10, 2000, the Harrisons filed the action now before us.As noted, the circuit court subsequently held that the Harrisons had granted the Bassetts a right-of-way across their property, the Birch Farm, but it was intended to serve only the 72 acres acquired by William D. Bassitt in 1913 and not rest of their the property, where the borrow pit was located.The court also held that the Bassetts had acquired a prescriptive easement⁵ across the Evans lot (Segment 3) and that this prescriptive easement was limited to the right acquired during the prescriptive period to transport domestic and agricultural goods and equipment, and did not include "the right to pass and re-pass with trucks transporting sand and gravel."The court thereafter issued a written order declaring the rights and obligations of the parties consistent with its ruling, whereupon the parties filed cross-appeals.

Discussion

I.

The Bassetts contend that the circuit court erred in holding that the Harrisons could not have acquiesced in and consented to the relocation of the westerly portion of the right-of-way because the Harrisons' farm, known as the "Birch Farm," and the Evans lot were under different ownership or, as the circuit court put it, there was "no unity of title" between the two properties.Challenging that conclusion, the Bassetts maintain that from 1917 until 1963"the Evans lot and the Birch Farm were in substantially common (or identical) ownership."Consequently, they assert that a "consensual change" in the location of the westerly portion of the right-of-way could and did occur.We disagree.

The circuit court correctly held that the Harrisons, as owners of the Birch Farm, could not have consented to the "relocation" of the right-of-way because there was no identity of ownership between Birch Farm and the Evans lot at the time of the relocation.The relocation, the parties agree, occurred sometime between 1913 and 1938.But neither side could...