Greenwalt v. McCardell

• Decision Date: 17 April 1940
• Docket Number: 1.
• Citation: 12 A.2d 522,178 Md. 132
• Parties: GREENWALT v. McCARDELL et al.
• Court: Maryland Court of Appeals

12 A.2d 522

178 Md. 132

GREENWALT v. McCARDELL et al.

No. 1.

Court of Appeals of Maryland

April 17, 1940

Rehearing Denied May 22, 1940.

Appeal from Circuit Court, Washington County; D. Lindley Sloan Judge.

Suit by Frank T. Greenwalt against Thomas E. McCardell, Jr., and another to enjoin defendants from using a portion of a private roadway which runs through plaintiff's land. From a decree dismissing bill of complaint, plaintiff appeals.

Affirmed.

Edward Oswald, Jr., and George N. Oswald, both of Hagerstown, for appellant.

D. Angle Wolfinger, of Hagerstown, for appellees.

Submitted to BOND, C.J., and OFFUTT, PARKE, MITCHELL, SHEHAN, JOHNSON and DELAPLAINE, JJ.

DELAPLAINE Judge.

Frank T. Greenwalt is seeking an injunction to restrain Thomas E McCardell, Jr., and Wilfred O. McCardell from using the portion of a private roadway which runs through his land near the Potomac River to the public road leading to Sharpsburg in Washington County.

The appellant acquired a part of the farm of Edgar E. Line and Clara F. Line, his wife, on April 24, 1930. The roadway through it has been used for many years for hauling wood from nearby timber land. The deed conveyed to the appellant 'the right to use as means of ingress and egress to and from the land hereby conveyed the present farm road located near the east boundary of the tract herein described, leading from the public road southward to other lands of said Line and wife.'

The appellees have acquired a tract from the same farm. This tract, situated east of the appellant's property, was conveyed by the owners on August 31, 1931, to Noel Acton, of Baltimore. On July 16, 1937, the grantors executed a supplementary deed reciting that it was verbally understood and agreed that Action was to have a right of way, and since they desired to have that intention incorporated in writing 'to avoid any questions that might arise hereafter as to the right to use said roadway,' they therefore granted and conveyed 'a right of way and right to use the roadway known as the farm road * * * to the said Noel Acton, his heirs and assigns forever.' On the same day Acton conveyed the tract and the right of way to the appellees.

The appellant says that he bought his land under the impression that the roadway ran entirely on a strip reserved by the owners of the farm. The surveyor testified that he had noticed a few wagon tracks when he made the survey in April, 1930, but did not recall whether any of them were within the appellant's line at that time. In 1934, after rains had damaged the roadway running up the hill to the cottage, the appellant dug 'back into the bank' a distance of about four feet to 'seek more of level and get away from the ravine,' and also macadamized the road. Mrs. Line, now a widow, testified that the course of the macadam road does not differ from that of the old wagon road. J. Fred Roulette, a neighbor, declared that he could not see any change in the location of the road since he hauled wood over it 20 years ago. Another witness said that he saw no difference in the location in more than 30 years. However, the surveyor testified that a portion of the roadway is now within the appellant's boundary line. He expressed the opinion that another roadway east of the present one 'would probably get into the ditch.'

It is well established that whenever it appears from a fair construction of a deed that it was the purpose of the parties to create or reserve an easement in the property conveyed for the benefit of other land owned by the grantor, regardless of the form in which the purpose may have been expressed, such a right is deemed to be appurtenant to the land of the grantor and binding on that conveyed to the grantee; and the right thus created or reserved will pass to all subsequent owners of the land to which it is appurtenant. Knotts v. Summit Park Co., 146 Md. 234, 239, 126 A. 280. Where a right of way is established by reservation, the land remains the property of the owner of the servient estate, and he is entitled to use it for any purpose that does not interfere with the easement. Cibbons v. Ebding, 70 Ohio St. 298, 71 N.E. 720, 721, 101 Am.St.Rep. 900, 902; 17 Am.Jur., Easements, sec. 29. The courts generally hold that the reservation of an easement is not repugnant to the general words of a grant, especially when the grantee may acquire a valuable interest in the thing granted. Gay v. Walker, 36 Me. 54, 58 Am.Dec. 734. Even though a tract of land may be described by metes and bounds, easements appurtenant thereto nevertheless pass with the conveyance in favor of the dominant estate. If the land is conveyed in fee simple, and a strip thereof is excepted for a right of way, the courts hold that the land is conveyed subject to the easement in order to effectuate the intention of the parties. Elliot v. Small, 35 Minn. 396, 29 N.W. 158, 59 Am.Rep. 329; 16 Am.Jur., Deeds, sec. 311.

Moreover the assertion of the appellant that he had shifted the roadbed for his convenience does not have the effect of making the appellees trespassers. After an easement has been established, its location should not be changed by either party without the other's consent. But if a way has been slightly and not materially changed, and the owner of a dominant estate has used it for several years, his acquiescence will be presumed; and the changes do not invalidate the rights of the persons who are entitled to use the way. In such a case it has been held by the Court of Appeals of Kentucky: 'The fact that a few changes were made in the road by consent from time to time does not affect the rights of appellees. The changes were made merely for convenience, and, if the new way had been stopped up, the appellees could have returned to the old.' Crigler v. Newman, 91 S.W. 706, 707, 29 Ky. Law Rep. 27; 19 C.J., Easements, sec. 215. In...