Goss v. CAN Wildlife Trust, Inc.

• Decision Date: 02 July 2004
• Docket Number: No. 168,168
• Citation: 852 A.2d 996,157 Md. App. 447
• Parties: Geraldine E. GOSS, et al. v. C.A.N. WILDLIFE TRUST, INC.
• Court: Court of Special Appeals of Maryland

852 A.2d 996

157 Md. App. 447

Geraldine E. GOSS, et al. v. C.A.N. WILDLIFE TRUST, INC.

No. 168, September Term, 2003.

Court of Special Appeals of Maryland.

July 2, 2004.

John Robb, Jr., Cumberland, for appellant.

Robert O. Kazary (Kazary & Robinette on the brief), Cumberland, for appellee.

KRAUSER, LAWRENCE F. RODOWSKY (Retired, specially assigned), CHARLES E. MOYLAN (Retired, specially assigned), JJ.

KRAUSER, J.

We are asked to decide whether the right to hunt and fish on an adjoining property owner's land, when that right has been acquired by deed, is a "license" or a "profit a prendre." In this instance, we conclude it is a profit a prendre.

The parties to this controversy are appellants Geraldine E. Goss and her daughter, Christine L. Franklin, who own the right to hunt and fish on a property that adjoins theirs; appellee C.A.N. Wildlife Trust, Inc. (the "Trust"), the owner of the adjoining property; and appellants Donald R. Cook and Diane L. Cook, to whom Goss and her daughter assigned the right to hunt and fish on the Trust's property.

The property that Goss and Franklin own is a two acre property in Allegany County. It was originally purchased by Goss and her late husband for use as a hunting camp. When they purchased that property from its original owner, Charles F. Deffinbaugh, the deed conveying the two acres also granted them hunting and fishing rights on Deffinbaugh's contiguous 380 acres for the benefit of their hunting camp.

After Mr. Goss died, the ownership of the two acres was transferred to Mrs. Goss and her daughter. Years later, the two women assigned their hunting and fishing rights to Donald R. Cook and his wife, Diane L. Cook, without transferring ownership of or any interest in the two acres to the Cooks. The Cooks, in turn, granted a third party, Jacob Kasecamp, permission to hunt and fish on the Trust's property for the 2001 hunting season.

When the Trust discovered Kasecamp hunting on its property, it filed a complaint in the Circuit Court for Allegany County, requesting that the court declare, among other things, that the Gosses' right to hunt and fish on the Trust's property, granted by deed to them by the property's former owner, was personal and non-transferable; in other words, that it was a "license" and not an easement or a profit a prendre. In addition, the complaint sought damages, alleging that Goss, Franklin, and the Cooks had trespassed upon the Trust's property and had urged others to do the same.

Finding that "the Goss deed created a license, not an easement or a profit a prendre," the circuit court concluded that "the purported assignment" to the Cooks was "a nullity." It did, however, decline to award trespass damages, holding that the Trust had not produced sufficient evidence of trespass.

Challenging the court's conclusion that the Goss deed had created nothing more than a license, appellants noted this appeal. They present one compound question for our review:

Did the deed granting hunting and fishing rights on an adjoining property to Charles and Geraldine Goss create a profit a prendre or a license, and, if it created a profit a prendre, does the profit a prendre run with the land?

For the reasons that follow, we shall affirm the judgment of the circuit court, but we shall do so on grounds that differ from those relied upon by the circuit court.

FACTS

Approximately thirty years ago, Charles F. Deffinbaugh sold two of his 380 acres of land to Charles R. Goss and Geraldine E. Goss as tenants by the entireties for the sum of $10.00. In the deed transferring the property, Deffinbaugh "grant[ed] to the [Gosses] ... and to those invited guests at their camp all hunting and fishing rights and the use of the creek waters on the whole tract of land" that he owned. The Gosses then erected a hunting camp on the two acres so that Mr. Goss, an avid hunter, could hunt on Deffinbaugh's land.

In the years that followed that transaction, Deffinbaugh conveyed several other small portions of his property; seven of those conveyances included a grant of the right to hunt and fish on his land.¹ On February 11, 1977, Deffinbaugh sold the rest of his property, which then consisted of 323 acres, to Carl C. Benson and Charlotte A. Benson.² When the Bensons defaulted on their mortgage, their property was sold at a foreclosure sale. In 1995, the foreclosure sale purchaser sold the property to the Trust.

The Trust, a closely held family corporation, was formed by Donald H. Nixon and his two sons, who became its stockholders and officers. It was formed largely for the purpose of acquiring title to the Deffinbaugh property. That property was purchased by the Trust with the understanding that Nixon would lease from the Trust the "exclusive" right to hunt on the property. At the time that the Trust purchased the property and leased its hunting rights to Nixon, Nixon was aware that the property remained subject to at least two hunting easements. To "avoid litigation" over those easements, Nixon³ purchased at least one of the parcels, which had such an easement.

After her husband's death, Goss conveyed the two acres of land she had owned with her husband to herself and her daughter, Christine L. Franklin, as joint tenants with the right of survivorship. Because the first deed to Goss and Franklin failed to mention the hunting and fishing rights, Goss filed a Deed of Correction, granting to her and her daughter, along with the ownership of the two acres, all the hunting and fishing rights she had on what was then the Trust's property.

On July 18, 2001, Goss and Franklin assigned to Donald R. Cook and Diane L. Cook their rights to hunt and fish on the Trust's property. In return, the Cooks cleaned up the hunting camp by removing the overgrowth of weeds and bushes as the camp had become, in the words of Mrs. Goss, an "eyesore." The Cooks also installed electrical power. In the fall of 2001, the Cooks gave Jacob Kasecamp⁴ permission to hunt and fish on the Trust's property for the 2001 hunting season.⁵

In December 2001, Goss and Franklin leased their property to the Cooks. The lease contained an option to purchase and an assignment of all rights to hunt and fish on the Trust's property. The lease required the Cooks to pay $585.00 per month in rent, "starting January 30, 2002 or/until the sum of $7,000.00 (purchasing price) is paid within the year." "If full payment is not made within the rental year," the lease provided, "the purchasing price may increase, but not exceed $9,000 if agreed upon by Landlord to allow additional time for purchase." When the trial of this matter began, the Cooks were in the process of purchasing the property. In fact, at the time of trial, they were only one payment short of completing the purchase.

The same month that the Cooks signed the lease for the Goss property, December 2001, Kasecamp and two others were found hunting on the Trust's property.⁶ That prompted the Trust to file a complaint in the Circuit Court for Allegany County, seeking to quiet title as to the hunting and fishing rights on its land as well as damages from Goss, Franklin, and the Cooks for trespass. Although the circuit court held that the Goss deed created only a license to hunt and fish on the Trust's property, it declined to award any trespass damages to the Trust. Appellants then noted this appeal.

STANDARD OF REVIEW

Because the trial below was a non-jury trial, our standard of review is governed by Maryland Rule 8-131. Boyd v. State, 22 Md.App. 539, 323 A.2d 684, cert. denied, 272 Md. 738 (1974). That rule provides that this Court "will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses." Md. Rule 8-131(c). "A finding of a trial court is not clearly erroneous if there is competent or material evidence in the record to support the court's conclusion." Lemley v. Lemley, 109 Md.App. 620, 628, 675 A.2d 596 (1996).

Moreover, "[u]nder the clearly erroneous standard, this Court does not sit as a second trial court, reviewing all the facts to determine whether an appellant has proven his case." Id. Nor is it our function to weigh conflicting evidence. Bausch & Lomb, Inc. v. Utica Mut. Ins. Co., 355 Md. 566, 586-87, 735 A.2d 1081 (1999); Weisman v. Connors, 76 Md.App. 488, 547 A.2d 636 (1988), cert. denied, 314 Md. 497, 551 A.2d 868 (1989). Our task is limited to deciding whether the circuit court's factual findings were supported by "substantial evidence" in the record. GMC v. Schmitz, 362 Md. 229, 234, 764 A.2d 838 (2001)(quoting Ryan v. Thurston, 276 Md. 390, 392, 347 A.2d 834 (1975)). And, to that end, we view all the evidence "in a light most favorable to the prevailing party." Id.

Although the factual determinations of the circuit court are afforded significant deference on review, its legal determinations are not. "`[T]he clearly erroneous standard for appellate review in [Maryland Rule 8-131] section (c) ... does not apply to a trial court's determinations of legal questions or conclusions of law based on findings of fact.'" Ins. Co. of N. Am. v. Miller, 362 Md. 361, 372, 765 A.2d 587 (2001)(quoting Heat & Power Corp. v. Air Prods. & Chem. Inc., 320 Md. 584, 591, 578 A.2d 1202 (1990)). Indeed, the appropriate inquiry for such determinations is whether the circuit court was "legally correct." Maryland Envtl. Trust v. Gaynor, 140 Md.App. 433, 440, 780 A.2d 1193 (2001).

DISCUSSION

Appellants claim that the Goss deed created, not a license, but a profit a prendre to hunt and fish on the Deffinbaugh property, which is now owned by the Trust. That profit, appellant maintains, was assignable to others, such as the Cooks. The circuit court disagreed. Observing that the language of the deed conferring hunting and fishing rights on the Gosses "did not use terms such as heirs or assigns that would suggest an intention to make [those...