Condry v. Laurie

• Decision Date: 15 March 1946
• Docket Number: 96.
• Citation: 46 A.2d 196,186 Md. 194
• Parties: CONDRY et al. v. LAURIE et ux.
• Court: Maryland Court of Appeals

46 A.2d 196

186 Md. 194

CONDRY et al. v. LAURIE et ux.

No. 96.

Court of Appeals of Maryland

March 15, 1946

Rehearing Denied April 16, 1946.

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

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

Affirmed.

Thomas Lohr Richards, of Cumberland, and H. G Shores, of Keyser, W. Va., for appellants.

No appearance for appellees.

Submitted to MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

COLLINS Judge.

Charles C. Laurie and Bertha Laurie, his wife, on October 20, 1943 filed in the Circuit Court for Allegany County a bill of complaint against Martin Howard Condry and Joseph LaPorta alleging that the respondents had erected a barricade over and across an alley which was the only means of access to complainants' property. The bill asked that the respondents be enjoined from interfering with the complainants' use of said right-of-way and that a mandatory injunction be issued commanding the removal of the barriers across this right-of-way. After a hearing, the Court granted the relief prayed by a decree filed on July 27, 1944, and from that decree the respondents appealed here. The opinion of the Court appeared in the case Condry et al. v. Laurie et ux., 41 A.2d 66, 69.

This Court in that case held that a way of necessity existed to the appellees' land unless the appellees could reach the county road by a ten foot road along adjacent land as contended by the appellants. This Court remanded the case 'to give the parties an opportunity to present additional evidence for the purpose of determining whether or not complainants now have access to the county road.' This Court also held in that case that '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. * * * 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.'

The case was remanded and a further hearing held. As a result the Chancellor found that no alternate route out of the complainants' premises is legally available to them and even if it were, the cost of constructing such alternate route was entirely and unreasonably out of proportion to the value of complainants' land. Therefore he found that the original way of necessity from the complainants' land over the respondents' alley still existed and that complainants were entitled to the free and unobstructed use thereof. He signed the same decree as in the former case and from that decree the appellants appeal here.

The law announced in the case of Condry et al. v. Laurie et ux., Md., 41 A.2d 66, supra, becomes the law of this case.

It the case now before this Court the appellants filed a letter in this Court stating that as the appellees' brief of one page consisted only of a statement that it adopts 'the Chancellor's opinion which appeared on Page 21 of the appellants' brief,' and as counsel for the appellees advised this Court last December that they would file no brief, and as this so-called brief was filed too late, under the provisions of Rule 40, Section 2, of the Court of Appeals which provides that 'when an appellee is in default, he will not be heard except on consent of his adversary, or by request of the Court,' the appellants objected to the appellees' counsel being heard in argument. The appellees answered that no brief had been filed because of the inability of appellees to pay the costs. This Court therefore advised the counsel for the appellees on February 5, 1946, that we declined to hear argument of appellees in this case. The appellees have not paid the costs of the former case as ordered by this Court.

The appendix to the appellants' brief consists of nothing other than the opinion of the Chancellor and the decree. This Court very clearly and forcibly pointed out in the case of Strohecker v. Schumacher et al., Md., 43 A.2d 208 209, through Chief Judge Marbury the necessity, under Rule 39 of this Court, for the appellant to include in the appendix to his brief 'such part of the record as appellant desired the Court to read. * * * In the future, we do not intend to pass the one typewritten copy of the record from member to member of this Court so that each one may hunt up for himself what the appellant is discussing in his brief. * * * They should not be surprised if, in the future, the Court examines only the record printed in the appendices and decides cases on these printed portions alone.' ...