Brown v. Smith

• Citation: 173 Md. App. 459,920 A.2d 18
• Decision Date: 29 March 2007
• Docket Number: No. 0929 Sept. Term, 2005.,0929 Sept. Term, 2005.
• Parties: Erin BROWN, et al. v. Grace SMITH, et al.
• Court: Court of Special Appeals of Maryland

920 A.2d 18

173 Md. App. 459

Erin BROWN, et al. v. Grace SMITH, et al.

No. 0929 Sept. Term, 2005.

Court of Special Appeals of Maryland.

March 29, 2007.

Robert A. Meier, Jr., Damascus, MD, for Appellants.

Earl W. Bartgis, Jr., Frederick, MD, for Appellees.

Panel: ADKINS, JAMES A. KENNEY, III,^* (Retired, Specially Assigned), RAYMOND G. THIEME, JR. (Retired, Specially Assigned) JJ.

ADKINS, Judge.

In this case, we must examine the nature of a nominal damages award, and whether there is a maximum limitation on the dollar amount that can be considered nominal damages. We do so in the context of a claim that appellants and cross-appellees Erin and Norma Brown trespassed on property owned by Grace and Viola Smith, appellees and cross-appellants, by traveling over a farm lane to access a public road from the Browns' property. The Browns appeal from the circuit court's decision that they had no right to use the farm lane, and from its award of $8,350 in "nominal damages" against the Browns.

The Browns raise five issues, which we reorder and restate as follows:

I. Is there a final appealable judgment, even though no judgment was entered on the third party complaint against neighbor and appellee Patricia Wolfe?

II. Did the trial court err in failing to find that the common grantor intended to create mutually reciprocal rights of way appurtenant to the Smith and Brown properties, via three 1875 deeds to the three parcels abutting the right of way?

III. Did the trial court err in failing to find the three deeds ambiguous?

IV. Did the trial court err in awarding "nominal damages" of $8,350 on the Smiths' trespass claim?¹

V. Did the trial court err in admitting expert opinion testimony?

In their cross-appeal, the Smiths raise a single issue:

VI. Did the trial court err in failing to enjoin the Browns from further trespass?

We conclude that there is a final judgment, and that the trial court did not err in admitting expert testimony, in interpreting the deeds, or in denying injunctive relief. We also conclude that the $8,350 damage award on the trespass count is too high to be a "nominal damages" award, and remand for reconsideration of that issue.

FACTS AND LEGAL PROCEEDINGS

The Properties And Dispute

On April 1, 1875, the Estate of John Harshman (the Estate)² divided Harshman's farm in the Myersville area of Frederick County, by issuing the three deeds that lie at the heart of this dispute. The three resulting parcels abut each other at a common corner. Title to the affected properties is now held by the following persons, all of whom are parties in this case:

• Sisters Grace and Viola Smith, appellees and cross-appellants, trace their title back through five generations, when their ancestor Josiah Smith received one of the three deeds in question from the Estate of John Harshman. The Smiths were born on this property, where they still live and farm dairy cows, sheep, and heifers.

• Spouses Erin and Norma Brown, appellants and cross-appellees, purchased the parcel adjacent to the Smith parcel on August 17, 2000. Their title traces back to a deed from the Estate to Ezra Harshman. This parcel is a subdivided portion of the property originally conveyed to Ezra Harshman. The Browns view it as an ideal location to raise quarter horses and to train them for the sport of "cutting," in which a horse separates a marked heifer from the rest of the herd.

• Patricia Wolfe, appellee, owns the parcel east of the Browns, which abuts Harp Hill Road. She derives her title from a third deed issued by the Estate, this one to Jacob L. Moser. Wolfe was brought into the dispute between the Browns and Smiths as a necessary third party defendant.

The Browns' parcel does not have direct access to a public road, but does have a right of way north to Pleasant Walk Road, across an adjacent property that is not involved in this litigation. Although the Browns have this northern access route, they contend that they also have a second right of way to use a farm road built and maintained by the Smiths. This lane passes along a portion of the southern boundary between the Brown and Smith parcels, then continues past the eastern boundary between the Brown and Wolfe properties, across land owned by the Smiths and out to Woodland Way Road, which lies along the eastern boundary of the Wolfe parcel. This lane is the Smiths' sole route from their home and farm to a public road.

Citing representations made by their seller, real estate agents, and surveyors that their property has the use of a deeded right of way to the public road east of the property, the Browns claim the right to use this farm lane. They have two reasons to prefer this route to the longer one across their own property leading to Pleasant Walk Road. First, the home they built during this dispute is situated near the southern boundary of their property, close to where the farm lane passes, making this route their most convenient to a public road. Second, by using the farm lane to Woodland Way Road, rather than crossing the full length of their own property to reach the right of way to Pleasant Walk Road, the Browns can pasture their horses without exposing them to the ingress and egress traffic generated by the Browns, their contractors, and business-related visitors.

The Smiths deny that the Browns have a right of way over any part of their property, asserting that the Smith family has had exclusive and peaceful use of the farm lane for more than one hundred years. The Smiths have used this lane for at least sixty years, traveling it several times each day during their dairy operations and to reach their residence. A fence erected long ago between the lane and what is now the Brown property has a system of gates, so that the Smiths' farm animals can be pastured safely. The fence and gates have been there in one version or another since 81 year old Grace Smith was in high school.

The debate between neighbors over the use of this farm lane escalated beyond words. Shortly after the Browns moved in, Erin Brown confronted the Smith sisters on the disputed lane. After introducing himself, he advised them that he intended to build a house and to use their farm lane to access Woodland Way Road. Over the Smiths' objections, the Browns removed a tree and cut a hole in the fence in order to use the lane. The Browns and their contractors continued to use the lane while they constructed a new residence, up until trial. The Smiths complain that the Browns' construction and business traffic has caused damage to their road and property. The Browns concede that there was some damage to the Smith property associated with their construction traffic.

At various times, one or the other party has put up or pulled down fences, gates, chains, roadblocks, and locks along the farm lane. The Smiths attempted to stop the Browns from using the lane by locking their gates, but the Browns removed those locks and replaced them with their own, thereby denying the Smiths access to their own property. Moreover, as a result of the Browns having cut a breach in the fence, replacing locks, and using the lane to access their property, the Smiths could not use portions of their own property to pasture their animals.

The Deeds In Question

For clarity, we shall identify the three deeds conveyed in 1875 by their modern-day recipients.

• A deed to the Smiths' predecessor, Josiah Smith (the Smith Deed), conveys a portion of the "Home Farm," as the original property of John Harshman was known. A right of way is created and described in the Smith Deed as follows:

Also the right of way or privilege of making and using conjointly with John T. Harshman and Jacob L. Moser a road as follows a space 5 foot wide along the 3rd line of John T. Harshman part and 8th line of J.L. Moser's part then beginning in the middle of said road at the end of 5 feet on the 8th line of said Jacob L. Moser's part and running through said land (20 foot wide) S. 86E., 34 ps to a stone planted N. 32° E. 10-3/4 ps to the end of the 20th line of said "Home Farm" then 15 feet wide on the 19th and 20th line of said Home Farm to the public road. (Emphasis added.)

• The deed to the Browns' predecessor, Ezra Harshman (the Brown Deed), conveys an adjacent portion of the Home Farm, immediately to the north of the Smith parcel, with the following exception referencing the right of way created in the Smith Deed:

excepting a piece 5 feet wide along the 3rd line of the 2nd part for use of J. Smith's part and 2nd pt. (Emphasis added.)

• A deed to Wolfe's predecessor, Jacob L. Moser (the Wolfe deed), conveys a third portion of the Home Farm, located directly east of the Brown property and north of the Smith property, with a differently worded exception referring to the right of way created in the Smith Deed:

excepting a road or right of way as described [in] Josiah Smith's deed for part of said land[.] (Emphasis added.)

Litigation

After the Browns locked the Smiths out of their property, the Smiths filed suit in the Circuit Court for Frederick County. Their claims, as amended, include ejectment trespass, and quiet title, and the relief sought includes money damages and injunction. The Browns moved to dismiss the Smiths' complaint on the ground that Wolfe was a necessary but unnamed party. The Browns also counterclaimed, asserting disparagement of title, destruction of property, and trespass claims. The motion court then permitted Wolfe to be named as a third party defendant.

After a bench trial, the court issued a written opinion and judgment, concluding inter alia that a right of way to use a specified lane over the plotted course was explicitly created in the Smiths' chain of title, but that there was no right of way granted to the Browns over the Smiths' property that would entitle the Browns to use the lane.³ It awarded the Smiths "nominal damages of Five (5) Dollars . . . on the Ejectment Count," plus "nominal damages of five (5) Dollars...