East Washington Ry. Co. v. Brooke

• Decision Date: 09 November 1966
• Docket Number: No. 448,448
• Citation: 244 Md. 287,223 A.2d 599
• Parties: EAST WASHINGTON RAILWAY COMPANY v. Mary G. BROOKE.
• Court: Maryland Court of Appeals

Page 287

244 Md. 287

223 A.2d 599

EAST WASHINGTON RAILWAY COMPANY v. Mary G. BROOKE.

No. 448.

Court of Appeals of Maryland.

Nov. 9, 1966.

Caesar L. Aiello, Washington, D. C., for appellant.

Kenneth E., Pruden, Upper Marlboro (George T. Burroughs, Upper Marlboro, on the brief), for appellee.

Before HAMMOND, C. J., and MARBURY, OPPENHEIMER, BARNES and McWILLIAMS, JJ.

MARBURY, Judge.

This was an action in equity to quiet title to a certain strip of land lying in Prince George's County, Maryland, 66 feet in width, which traverses and is located within part of a farm owned by Mary G. Brooke, plaintiff-appellee. She claimed title to the land in question by virtue of record title and of the fact that she has held and occupied the land under color of title for more than twenty years. The East Washington Railway Company, defendant-appellant, claimed title by virtue of a certain deed for the same strip of land used for railway purposes to its predecessor in title, the Chesapeake Beach Railway Company, sometimes referred to as Railroad. Judge Loveless of the Circuit Court for Prince George's County, after hearing the evidence, found that plaintiff had held the property for more than twenty years and thereby acquired title by adverse possession. The court also found that if defendant possessed an easement over the strip of land, the easement had been abandoned by cesser of uses thereof, coupled with acts clearly indicative of an intention to abandon it by the defendant. Therefore, the court found it unnecessary to decide the issue of what title, if any, was in the defendant. The chancellor also found that the plaintiff, Mary G. Brooke, had fee simple title to the contested property. From the decree embodying these findings the defendant has appealed.

The plaintiff was the fee simple owner of a tract of land known as Lots 4, 6 and 7 according to a survey and subdivision of the estate of Robert A. Clagett, excepting that portion of those lots which was previously conveyed to Louise and Edna C. Berry. The evidence as to the chain of title of the land which plaintiff claimed was that Robert A. Clagett was the owner of a large tract of land which included the strip in question. Robert A. Clagett died testate, leaving a life estate in his widow, who survived him, with a power to sell the land and convey a fee simple title. At the death of Robert A. Clagett's widow, none of the property involved in this case had been conveyed by her. A partition proceeding was filed in which all the devisees under the will of Robert A. Clagett were joined. A 'Decree for Partition' was issued by the Circuit Court for Prince George's County decreeing that there be a partition of all of the real estate of which Robert A. Clagett died seized and possessed in Prince George's County. The return of the Commissioners and the survey and resubdivision of this estate included and enclosed the strip of land in question within the metes and bounds description of lots numbered 4, 6 and 7. The return of the Commissioners appointed to make the partition was ratified and confirmed by the court on March 27, 1914. Thus, as of March 27, 1914, record title to Lots 4 and 7 was in one Emily M. Deming, and Lot 6 was in J. Lee D. Clagett. Emily M. Deming and her husband conveyed all of the property allocated to her on April 30, 1914, to William Mason Allen. The deed, which was recorded on May 19, 1914, contained a metes and bounds description of the lots conveyed which included and enclosed the strip of land in question. However, immediately after the metes and bounds description, there was a recital in the deed which summed up the metes and bounds description as 'containing 159.22 acres exclusive of the Chesapeake Beach R.R. right-of-way 66 feet wide, * * *.' The Allens conveyed, on October 22, 1920, all they received from Emily M. Deming and her husband to Walter T. Townshend.

Lot 6, which was awarded to J. Lee D. Clagett in the partition proceedings, was conveyed to Walter T. Townshend along with all reversionary interest he owned in the Chesapeake Beach Railroad right-of-way by deed dated March 1, 1926. Walter T. Townshend, then owner of Lots 2, 4, 6 and 7, and his wife conveyed Lot 6 on February 25, 1933, and Lots 2, 4 and 7 on August 26, 1936, to G. Wilmot Townshend. On June 2, 1943, G. Wilmot Townshend and his wife conveyed Lots 4, 6 and 7 to Mary G. Brooke 'together with all reversionary interests in the Chesapeake Beach Railroad right of way howsoever acquired and not heretofore conveyed, * * *.' The deed was recorded among the land records of Prince George's County on June 4, 1943. Shortly thereafter plaintiff and her husband moved to and entered into possession of the property and have had possession continuously and uninterruptedly since that time. The plaintiff's property lies on both sides of the right-of-way strip in question.

Defendant, East Washington Railway Company, claimed title to the strip of land in question by virtue of a deed from Emily M. Deming to J. Lee D. Clagett dated March 17, 1915, and recorded December 21, 1915, purportedly conveying her interest in the strip of land and by virtue of another deed from J. Lee D. Clagett and others to the Chesapeake Beach Railway Company dated March 24, 1915, purportedly conveying a strip of land running through the lands formerly owned by Robert A. Clagett as was located and used for railroad purposes. The conveyance from J. Lee D. Clagett to the Railroad was subject to certain conditions subsequent which are not pertinent to this decision. At the time of the deed from Deming to Allen, through which plaintiff claimed chain of title, the Railroad had no record title to the land in question.

In January 1898 the Chesapeake Beach Railway Company executed a deed of trust to the Continental Trust Company of New York as trustee to secure an issue of bonds of the railroad company. A suit was brought in the District Court of the United States for the District of Maryland by the New York Trust Company, successor-trustee, for a decree to sell the mortgaged property, and on July 19, 1935, a decree was passed and Charles R. Weber was appointed special master to make the sale. The property, including all of the interest of the railway company in its lands, was sold and conveyed to William V. Hodges, trustee representing the bondholders of the Chesapeake Beach Railway Company, who entered into possession of the land and proceeded to and did remove the ties, rails, and other facilities from the land. During the time of its operation the land was assessed to the Chesapeake Beach Railway Company, and except for the period when relieved from payment of state and county taxes by Act of Assembly, Laws of Maryland (1931), Chapter 523, at page 1307, the taxes were paid by it. Subsequently William V. Hodges, trustee, conveyed title to the East Washington Railway Company, which still holds paper title and has paid taxes on the property in question to date.

As to adverse possession, it was shown that in June of 1943 the plaintiff entered into possession of the property and has had possession continuously since then. At the time plaintiff moved to her farm, the strip of land here involved was fenced into the rest of the farm. The fences were continuously maintained. Plaintiff used this strip of land in the same manner as the rest of the farm, and more particularly, it was enclosed as a pasture field and used as pasture. Trees were cut off of it, tobacco seed beds were made on a portion of it, and, generally, it was used as a part of the farm. Ever since plaintiff and her husband moved to this farm the property was posted, and a 'No Hunting' sign was posted on a tree located on the strip of land in question. There were no rails or cross ties on the strip when plaintiff moved there, and when the farm roads needed repair, cinders were removed from the rail bed and used on the roads. Also plaintiff's husband kept the drainage culverts open and dug drainage ditches. The evidence showed that the fences and use of the land were visible from the former private road available to the owners of all of the lots of the Robert A. Clagett estate, but which has become a public road, now known as Brooke Road, running along the northerly outline of the property. Plaintiff was conveyed 95.71 acres, more or less, exclusive of the reversionary interest, but paid taxes on 100.7 acres, which included the right-of-way strip.

Assuming, without deciding, that Deming had fee simple title to the contested strip of land, and that the deed from Deming to Allen,...