Hancock v. Henderson

• Decision Date: 24 July 1964
• Docket Number: No. 431,431
• Parties: , 9 A.L.R.3d 592 Norman H. HANCOCK et ux. v. Walter M. HENDERSON et ux.
• Court: Maryland Court of Appeals

Page 98

236 Md. 98

202 A.2d 599, 9 A.L.R.3d 592

Norman H. HANCOCK et ux. v. Walter M. HENDERSON et ux.

No. 431.

Court of Appeals of Maryland.

July 24, 1964.

Charles A. Norris, Leonardtown, for appellants.

John Hanson Briscoe, Leonardtown (John H. T. Briscoe, Leonardtown, on the brief), for appellees.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT, HORNEY, MARBURY and SYBERT, JJ.

MARBURY, Judge.

We are asked in this appeal to determine whether the chancellor was correct in finding that the appellees, Mr. and Mrs. Walter M. Henderson, had an easement over a certain roadway located on the property of the appellants, Mr. and Mrs. Norman H. Hancock. The decree appealed from perpetually enjoined the appellants and their successors from obstructing and otherwise interfering with the construction, repair, maintenance and use of the right of way.

The facts as they developed at the trial generally are not disputed and are these. One William Gatton owned a tract of land in St. Mary's County of about one hundred eighty acres. By deed dated July 30, 1898, he and his wife conveyed a portion of the property to Eliza A. Hutchins. This five-sided tract, known as Little Woods, consisted of about thirty-one acres of unimproved woodland bounded by St. Thomas Creek on one side, by the parcel retained by the Gattons on another, and by others on the remaining sides. It appears from the testimony that no dwelling house or other improvement was on the property at the time it was sold off the larger tract, nor has there ever been a house on it within the recollections of the witnesses. Apparently the only use made of the property has been cutting the trees thereon for timber and firewood.

The deed contained no express grant of a particular road in fee, or an easement therein, but the 'together clause' was slightly different from the usual form and read as follows: 'Together with all and every, the rights, alleys, ways, waters, privileges, appurtenances and advantages, outlets or roadways, to the same belonging or in anywise appertaining.' (Emphasis added.) Through mesne conveyances the Hendersons are the present owners of Little Woods and the Hancocks own the remaining tract from which the thirty-one acre parcel was severed. There is a roadway running through the Hancock's land to the Henderson tract, and it is over this the Hendersons claim an easement. The testimony showed that while the roadway, estimated from ten to twelve feet wide, was still visible, it had through years of disuse been overgrown with bushes, small trees, and portions of decaying trees. The Hendersons were not able to prove that the roadway was in existence at the time of the July 1898 conveyance. The earliest date any witness could actually recall a use being made of a roadway was 1911. During part of that year a sawmill was in operation on the smaller tract and timber was cut and hauled over the roadway running from Little Woods through the larger tract to a public road. Mrs. Bernadine Raley, age eighty, testified she walked the road to take lunches to her brothers who operated the mill. She viewed the area in question prior to the trial and testified the road was in the same location she had remembered. The only vehicular traffic to utilize the road were a self-propelled steam engine and ox carts used while the timber was being cut. The sawmill operation ceased about Christmas 1911, and the road has apparently remained essentially unused for more than fifty years.

Although the appellees purchased the small tract in 1948, they did not attempt to use the road at that time. Mrs. Henderson testified that about twelve years ago Mr. Hayden Gatton, grandson of the owner of both parcels, pointed out the roadway to her and Mr. Henderson and showed them the property lines. In fact, she stated they actually walked the roadway. She further testified on cross-examination that the real estate agent with whom the Hendersons dealt, told them they had a right of way over the now disputed road. Recently the appellees decided to improve the road in preparation for building a dwelling house on the property as a home for their son. Bulldozers were brought in and had partially cleared the right of way when, so testified the son, Mr. Hancock at gunpoint ordered the working party off his land and further physically blocked the roadway. This suit followed.

While not as clearly asserted as it might have been, the theory of the appellees seems to be that the language used in the 'together clause' was sufficient to constitute an express grant of a general easement which subsequently became fixed by usage of the particular roadway. In support of this they cite Sibbel v. Fitch, 182 Md. 323, 34 A.2d 773. This was the view taken by the chancellor also, though appellants had argued below as they did in this Court, that even if the road were in existence in 1898 the 'together clause' in the deed was not sufficient to convey an express easement.

Even if we assume the phrase 'outlets or roadways' found in the deed were sufficient to convey an easement, failure of the appellees to prove the roadway was in existence or was agreed upon as a right of way in 1911 is fatal to substantiate an express grant of an easement. The rule that an easement conveyed in general terms may ultimately become fixed by metes and bounds through express agreement of the parties or by their actions was indeed stated in the Sibbel case in the form of a direct quotation from 28 C.J.S. Easements § 82. The principle had, however, been previously approved in this State in Stevens v. Powell, 152 Md. 604, 137 A. 312. But that rule presupposes a clearly indicated intention of the parties, or at least of the grantor, to convey an easement. Such intention is thereafter made manifest in the conveyancing instrument, albeit in general rather than specific language. Such is not the case here. In the early yet still important case dealing with easements, Oliver v. Hook, 47 Md. 301, 308, the opinion writer, referring there to a general 'together clause' said this:

'If apt and appropriate terms had been used in the deed, such as 'with the ways now used,' or 'used with the land hereby conveyed,' they would have passed the right to such ways as had been actually used in connection with the part granted; not, however, as existing easements, but those terms would have operated to create new easements, for the benefit of the estate granted.'

Since the appellees failed to prove the disputed roadway was in existence at the time of the severance of the parcel they now own, this claim of an express grant must also fail.

The more difficult problem to resolve is whether appellees have a way of necessity. Ways by necessity are a special class of implied grants and have been recognized in this State for a good many years. See Mullins v. Ray. 232 Md. 596, 599, 194 A.2d 806, where we said: 'Where a grantor conveys a tract of land which has no outlet to a public highway except over his remaining land or over that of a stranger, a way of necessity over the grantor's remaining property will be implied. Condry v. Laurie, 184 Md. 317, 321, 41 A.2d 66.'

In their brief, appellants state their opponents conceded in the lower court a way of necessity could not be established. Counsel for the appellees informed us at oral argument what he did not waive, but simply did not press the argument for a way by necessity. He took this position, apparently, on the basis of our decision in Woelfel v. Tyng, 221 Md. 539, 158 A.2d 311, which he understood to preclude reliance on an implied grant based upon encessity where, as here, the property bounds on navigable water. ¹ The Woelfel case involved an appeal from a decree overruling exceptions by, and ratifying a sale to, a purchaser at a judicial sale of certain marsh land. As a part of an argument that the notice of sale was insufficient, the purchaser cited the fact he discovered after the sale he had no right of way by land to the parcel he bought. The majority opinion, after noting there had been no representation made as to rights of way, stated at page 544, 158 A.2d at page 313, 'it has been held in some cases that a way of necessity cannot be implied over contiguous lands of a grantor, where there is access over navigable waters.' This was not dispositive of the case by any means, and was not meant to overrule (in fact the opinion cited but distinguished) Jay v. Michael, 92 Md. 198, 48 A. 61. There we approved a way of...