Condry v. Laurie

• Decision Date: 30 January 1945
• Docket Number: 77.
• Parties: CONDRY et al. v. LAURIE et ux.
• Court: Maryland Court of Appeals

41 A.2d 66

184 Md. 317

CONDRY et al. v. LAURIE et ux.

No. 77.

Court of Appeals of Maryland

January 30, 1945

Dissenting Opinion February 10, 1945.

Appeal from Circuit Court, Allegany County; William A. Huster Judge.

Suit by Charles C. Laurie and his wife against Martin Howard Condry and Joseph La Porta to enjoin defendants from interfering with complainants' prescriptive right to use a private road over the property of defendant Condry. From a decree for complainants, defendants appeal.

Reversed and remanded.

HENDERSON and GRASON, JJ., dissenting in part.

Thomas Lohr Richards, of Cumberland (H. G. Shores, of Keyser, W.Va on the brief), for appellants.

William A. Gunter, of Cumberland, for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS GRASON, MELVIN, and HENDERSON, JJ.

DELAPLAINE Judge.

Charles C. Laurie and wife allege in their bill of complaint for injunction: (1) that they own a parcel of land near the county road in Eckhart, Allegany County; (2) that Martin Howard Condry, defendant, owns an adjoining parcel, and that his brother-in-law, Joseph La Porta, defendant, is one of the occupants of that property; (3) that complainants' only means of access to the county road is over a private road on Condry's property, which complainants and their predecessors in title have used continuously for many years as a means of ingress and egress, thereby acquiring a right of way by prescription; and (4) that in October, 1943, La Porta, acting for Condry, erected a barricade across the road, preventing complainants from entering their property.

The tract of land, comprising the two parcels, was originally divided into three lots on a plat made for Clayton Purnell, trustee, in 1918. This plat shows lot 1 binding on the county road, and lots 2 and 3 as inner lots, with a 15-foot road running through lots 1 and 2 to lot 3. In September, 1918, the trustee conveyed the entire tract to William H. Rephorn, who conveyed it to Justus Rephorn in October, 1918.

The inner parcel (lot 3 and all of lot 2 except a 15-foot strip adjacent to lot 1) was acquired by complainants in 1941. It appears that Justus Rephorn and wife conveyed this parcel on March 24, 1920, to William Hittle and wife, who were given in the deed a 'license to use the private road from the County Road to and from the property now conveyed * * * while they shall remain owners of the property.' On December 24, 1940, Hittle and wife conveyed the property to Alice Mae Stevens. In 1941 Mrs. Stevens and husband conveyed it to complainants.

The outer parcel (lot 1 and the remaining 15-foot strip of lot 2) was conveyed by Justus Rephorn and wife to Condry on May 11, 1920.

In October, 1943, complainants took down a part of the O'Brien fence along the road in order to be able to haul dirt by motor truck from the O'Brien property. Defendants claimed that, by doing so, complainants abused their permission to use the road and made it a public thoroughfare. For that reason, defendants said, they placed the barricade across the road.

It is an established principle that when an owner of land lays it off in lots and sells them as binding on certain streets, which are sufficiently designated, such a designation raises an implied covenant that a public way exists; and unless the grantor uses language to show that he did not intend a dedication to public use, the presumption of dedication becomes conclusive. Harlan v. Town of Bel Air, 178 Md. 260, 13 A.2d 370. Cooke's Lessee v. kell, 13 Md. 469, 493. The distinction between an easement and a mere license to use land is clear. While an easement implies an interest in land, a license is merely a personal privilege to do some particular act or series of acts on land without possessing any estate or interest therein. Shipley v. Fink, 102 Md. 219, 226, 62 A. 360, 2 L.R.A.,N.S., 1002; McClintic-Marshall Co. v. Ford Motor Co., 254 Mich. 305, 236 N.W. 792, 77 A.L.R. 807, 812. In De Haro v. United States, 5 Wall. 599, 627, 18 L.Ed. 681, 688, Justice Davis spoke of the incidents of a license as follows: 'It is an authority to do a lawful act, which, without it, would be unlawful, and while it remains unrevoked is a justification for the acts which it authorizes to be done. It ceases with the death of either party, and cannot be transferred or alienated by the licensee, because it is a personal matter, and is limited to the original parties to it.' In order to establish an easement by prescription, it is necessary to prove an adverse, exclusive and uninterrupted use of the way for twenty years. Adverse use means use without license or permission. Where a person has used a right of way for twenty years unexplained, it is fair to presume that the use has been under a claim of right, unless it appears to have been by permission. Cox v. Forrest, 60 Md. 74, 79; Smith v. Shiebeck, 180 Md. 412, 24 A.2d 795. The record in this case indicates that the Hittles used the private road for more than twenty years in pursuance of a license, and therefore did not acquire a prescriptive right.

The chancellor granted an injunction commanding defendants to remove the obstruction from the private road, and enjoining them from interfering with complainants' use of the road in the future. He based his decree, now appealed from, on the ground that complainants are entitled to a way of necessity. It is universally accepted that where a person conveys to another a parcel of land surrounded by other land, and there is no access to the land thus conveyed except over the grantor's land, the grantor gives to the grantee by implication a right of way over his own land to the land conveyed by him. The doctrine is based upon public policy, which is favorable to full utilization of land and the presumption that parties do not intend to render land unfit for occupancy. It is recognized, however, that grants of easements by implication are looked upon with jealousy and are construed with strictness by the courts. Nichols v. Luce, 24 Pick., Mass., 102, 35 Am.Dec. 302, 304. A way of necessity ceases to exist when the necessity for it ceases. Waubun Beach Ass'n v. Wilson, 274 Mich. 598, 265 N.W. 474, 103 A.L.R. 983. Judge Alvey said in Oliver v. Hook, 47 Md. 301, 309: 'But this way of necessity, is a way of new creation by operation of law, and is only provisional; for it is only brought into existence from the necessities of the estate granted, and continues to exist only so long as there may be a necessity for its use. If, therefore, the grantee acquires a new way to the estate previously reached by the way of necessity, the way of necessity is thereby extinguished.'

It was suggested that complainants could acquire access to the county road by a rear route. Complainants protested that it might cost as much as $500 to build a bridge over the creek in the rear of their property. Of course, if the cost of constructing a road over one's land as a means of access to the public highway would require unreasonable expense out of proportion to the value of the land, then there exists such necessity for a way over the grantor's land as to justify recognition of a way by implication. Fox v. Paul, 158 Md. 379, 386, 148 A. 809, 68 A.L.R. 520; Greenwalt v. McCardell, 178 Md. 132, 12 A.2d 522. But the court will not recognize a way of necessity if another road to the public highway can be made without unreasonable expense, even though the other road may be much less convenient. Mere inconvenience will not be sufficient to justify the finding of a way of necessity. It is only is case of strictest necessity, where it would not be reasonable to suppose that the parties intended the contrary, that the principle of implied easement can be invoked. Burns v. Gallagher, 62 Md. 462, 472; Zimmerman v. Cockey, 118 Md. 491, 496, 84 A. 743. In a California case, for illustration, where it was shown that the party claiming a right of way by implication could obtain access to the public highway by another road, although that road was obstructed by a slough and ditch, to mend which would cost about a thousand dollars, the court held that no way of necessity existed. Carey v. Rae, 58 Cal. 159; Washburn, Easements and Servitudes, 4th Ed., 259.

It was also suggested that complainants acquired in 1943 another parcel of land adjacent to and south of the parcel purchased in 1941, and that they could reach the county road by way of a 10-foot road along this adjacent land. Indeed, it is claimed that it was for the reason they knew they were using the 15-foot road merely by sufference that they acquired the additional parcel so that they could use the 10-foot road. The chancellor, however, asserted that the 10-foot road is owned by others, and complainants have no right to use it. Defendants denied the chancellor's assertion, and offered to produce evidence to prove that the road is open to the public. The chancellor refused to receive further evidence, stating that it would not change his decision. We are of the opinion that the chancellor should have considered the additional evidence. While the Hittles were...