Baugh v. Arnold

• Decision Date: 18 March 1914
• Docket Number: 3.
• Citation: 91 A. 151,123 Md. 6
• Parties: BAUGH v. ARNOLD.
• Court: Maryland Court of Appeals

91 A. 151

123 Md. 6

BAUGH v. ARNOLD.

No. 3.

Court of Appeals of Maryland

March 18, 1914

On Motion for Reargument, May 14, 1914.

Appeal from Circuit Court, Howard County; Wm. Henry Forsythe, Jr. and Jas. R. Brashears, Judges.

"To be officially reported."

Action by Alton R. Arnold against Edwin P. Baugh, Jr. From a judgment for plaintiff, defendant appeals. Reversed.

Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, URNER STOCKBRIDGE, and CONSTABLE, JJ.

Arthur R. Padgett and John Philip Hill, both of Baltimore, for appellant. Robert Moss, of Annapolis (Joseph L. Donovan, of Ellicott City, on the brief), for appellee.

PATTISON J.

This is an action brought by the appellee against the appellant to recover for damages for the obstruction of an alleged right of way of the plaintiff over the lands of the defendant. At the conclusion of the plaintiff's testimony the defendant offered a prayer asking the court to take the case from the jury. This was refused, and at the conclusion of the defendant's testimony the prayer was renewed and was again refused, and, the evidence being submitted to a jury, a verdict was rendered for the plaintiff, upon which judgment was entered.

One of the questions raised by this appeal is: Does the evidence of the plaintiff, corroborated as it is by the evidence of the defendant, show an abandonment and extinguishment of the easement? After a careful examination of the evidence and the law applicable thereto, it is our opinion that the right of way of the plaintiff, if it ever existed, has been extinguished by its nonuser for a prescriptive period united with an adverse use of the servient estate inconsistent with the existence of the alleged easement.

The law as established in this state (Canton Co. v. Baltimore City, 106 Md. 69, 66 A. 679, 67 A. 274, 11 L. R. A. [N S.] 129) and elsewhere is that the mere nonuser of an easement even for more than 20 years will not afford a conclusive evidence of abandonment, but such nonuser for a prescriptive period, united with an adverse use of the servient estate inconsistent with the existence of the easement, will extinguish it. Washburn on Easements, §§ 551, 552; 14 Cyc. 1195; 10 A. & E. Ency. of Law, 436; Woodruff v. Paddock, 130 N.Y. 618, 29 N.E. 1021; Matter of City of New York, 73 A.D. 394, 77 N.Y.S. 31; Smyles v. Hastings, 22 N.Y. 224; Smith v. Langewald, 140 Mass. 205, 4 N.E. 571; Spackman v. Steidel, 88 Pa. 453; Horner v. Stillwell, 35 N. J. Law, 307; Bently v. Root, 19 R.I. 205, 32 A. 918; McKinney v. Lanning, 139 Ind. 170, 38 N.E. 601; Lathrop v. Esner, 93 Mich. 599, 53 N.W. 791; Louisville v. Quinn, 94 Ky. 310, 22 S.W. 221.

The right of way in this case is claimed by the plaintiff under a grant dated the 19th day of November, 1853, from one Elijah R. Arnold, the then owner of the servient estate, to one Levi Sheckells, the owner at such time of the dominant estate, as claimed by the plaintiff, whereby the grantor therein conveyed unto the grantee "his heirs and assigns, the right and privilege of the original road through his (the grantor's) farm lying in Anne Arundel county that leads to Chaney's creek." The grant by which Sheckells became the owner of the dominant estate, if there was a dominant estate, is not in evidence, but by a deed executed on the 23d day of October, 1877, by Ann M. Insley and Caroline E. Sherbert, the only children and heirs at law of Sheckells, certain lands therein described, said by the defendant to have been the dominant estate, were granted to Thomas H. Arnold, the grantor of the plaintiff; and in said deed reference is made to the fact that the land thereby conveyed "was a part of the same land that is described in a deed executed on the 19th day of November, 1853, by E. R. Arnold and wife to Levi Sheckells," and recorded among the land records of Anne Arundel county in liber N.H. G. No. 2, folio 626, etc.; and in this deed were granted to Thomas H. Arnold the right and ways, etc., appurtenant to the lands so conveyed, "especially the right of way granted to the said Levi Sheckells and assigns by deed from E. R. Arnold, dated the 19th day of November, 1853, and recorded among said land records in liber N.H. G. No. 2, folio 630.

The lands mentioned in the deed from Ann M. Insley and Caroline Sherbert to Thomas H. Arnold were thereafter conveyed, on the 23d day of February, 1885, by the said Thomas H. Arnold unto his son, Alton R. Arnold, the plaintiff, together with the ways, appurtenances, and advantages thereto belonging. In this deed, however, no special reference is made to the right of way granted on November 19, 1853, by Elijah R. Arnold to Levi Sheckells, nor was special reference thereto necessary to convey such right had it existed at such time. The failure to mention it specially is referred to only as reflecting upon the fact whether or not at such time it existed.

The plaintiff, when upon the stand, located upon the lands of the defendant the right of way mentioned and described in the grant from Arnold to Sheckells dated November 19, 1853, as " the original road" through the farm at that time owned by Elijah R. Arnold, the grantor, and, at the request of the defendant, located the said right of way upon a plat, which the reporter is requested to insert in his report of this case. The original road as located by him is designated on said plat as A, B, C, D, E. The point A is on the county road at or near the present entrance of the defendant's property, and is the place at which the obstruction complained of is...