Jay v. Michael
| Decision Date | 13 December 1900 |
| Citation | 48 A. 61,92 Md. 198 |
| Parties | JAY et al. v. MICHAEL. |
| Court | Maryland Court of Appeals |
Appeal from circuit court, Harford county, in equity; James D Waters, Judge.
"To be officially reported."
Bill by John G. Jay and another against John M. Michael. From a decree in defendant's favor, plaintiffs appeal. Reversed.
Argued before McSHERRY, C.J., and FOWLER, PAGE, BOYD, SCHMUCKER, and PEARCE, JJ.
John L.G. Lee, for appellants.
George L. Van Bibber and S.A. Williams, for appellee.
The appellants filed a bill in equity in the circuit court for Harford county to restrain the appellee from obstructing a right of way claimed by them over lands of the appellee, and this appeal is from a decree dissolving the preliminary injunction granted and dismissing the bill. The controversy arises upon the following state of facts: Two sisters, Maria M. and Frenetta F. Smith, were the owners at two adjoining tracts of land in Harford county, one called "Mould's Success," containing 335 acres, and another called "Horner's Fishery," containing 9 acres. The former borders upon a public road. The latter projects into and is wholly surrounded by the former, except at two narrow points, where it touches the waters of Swan creek, which is one of the boundaries of Mould's Success and the only access from any public road to Horner's Fishery is by a private way over Mould's Success, leading from the public road to the buildings upon Mould's Success, and used for more than 40 years for access to these buildings and to Horner's Fishery. The Misses Smith derived their title to Mould's Success by deed from Priscilla Presbury in 1813, and to Horner's Fishery by inheritance from their brother Samuel Griffith Smith in 1845. They died seised of these two tracts in 1860, leaving wills by which they devised all their real estate to John Jay their brother of the half blood, for life, with remainders in fee to his two sons, the appellants in this case, who subsequently conveyed to their father their interest as remainder-men in Mould's Success, with covenants of special warranty. John Jay in 1889 conveyed Mould's Success to James B. Baker, with covenants of warranty against all persons claiming through him or his sons; and in 1893 Baker conveyed the same to the appellee, with like covenants of warranty. John Jay died in 1892. The appellee claimed that the conveyance from the appellants to their father embraced Horner's Fishery, and they brought an action of ejectment for its recovery. This case is reported in 82 Md. 1, 33 A. 322, and will be further reported in 91 Md. 75, 46 A. 385; their title being finally established in the latter case. The way claimed is a way of necessity. The bill avers that "the only road or access from the high road to Horner's Fishery is over the land of the defendant sold as aforesaid by the ancestor of complainants, who reserved thereon an easement or right of way to and from his said land, known as Horner's Fishery, to James B. Baker, and he to the defendant," and that a well-defined road running over Mould's Success, along its southern line, had existed and been continuously used in connection with Horner's Fishery for over 50 years by complainants and those under whom they claim, and that the defendant had obstructed said road by locking and chaining a gate thereon, and had refused their request to unchain and open the same. The answer admitted plaintiffs' title to Horner's Fishery, the locking and chaining of the gate, and the refusal to open it, but denied the reservation of the right of way alleged in the bill, and denied the existence of any right of way to Horner's Fishery, and referred to certified copies of the deeds from plaintiffs to their father, and from him to Baker, and from Baker to defendant, in none of which was there any mention of any such reservation or of any such existing road. The answer averred that previous to Baker's purchase of Mould's Success, in 1889, Horner's Fishery was always used as an undefined part of the farm called Mould's Success, and that the road now claimed by the plaintiffs was only used for the purposes of that farm, and by permission of the owners thereof, and that the effect of the conveyances mentioned was to estop the plaintiffs from claiming such right of way. It further charged that the plaintiffs had an adequate remedy at law for any alleged trespass, and that the law provided the means of procuring a private way over Mould's Success, if such way should be made to appear necessary and proper.
It appears from the testimony that an inlet of Swan creek divides Horner's Fishery into two parcels, and that the private road described has two distinct branches, one leading to each of these parcels. One of the plaintiffs testified that he had known this road for 45 years, that there was no other approach to Horner's Fishery, and that the two branches of that road had been used for access to these two parcels ever since he could remember. The defendant testified that he remembered the road for 35 years, and that he never knew it to be used except as a private road for the farm, for the tenant of the farm hauling grain to the point at the foot of the lane leading down to the smaller parcel of Horner's Fishery, and to haul fish from the point to Aberdeen. It appears from the testimony that part of Horner's Fishery was tillable land, and that, as its name indicates, seine hauling for fish was carried on there; and the testimony of the defendant would thus indicate that the Horner's Fishery tract in some way enjoyed the use of both branches of this road for the delivery at the point, or at Aberdeen, of the grain raised on the tillable land reached by the branch to the buildings on Mould's Success, and for the hauling of fish landed at the point from thence to Aberdeen. It is obvious, therefore, that, if the plaintiffs are entitled either to a way by prescription or to a way of necessity, none could be better adapted to the convenience of both parties than the existing road, with its two branches; and it is equally obvious, if it be assumed that the plaintiffs are only entitled to a way of necessity, that defendant could not rightfully obstruct the only existing way until he had assigned plaintiffs another suitable way. Oliver v. Hook, 47 Md. 310. And in McTavish v. Carroll, 7 Md. 352, it was held that where one owns two closes, with a road from the former over the latter to the highway, and sells the latter without reserving in the deed any right of way, he may, if he has no other, use the road over the latter as a way of necessity.
We think injunction the proper remedy in this case. In Amelung v. Seekamp, 9 Gill & J. 468, the bill did not aver that the way obstructed was the only way of the plaintiff, and did not state facts to satisfy the court that irreparable mischief would ensue, and for that reason the injunction was denied. But this bill does charge that the way obstructed is the only means of access, and that the plaintiffs' property will be permanently injured, and its value destroyed, if deprived of a right of way; and no argument is needed to show that such injury must be the necessary consequence of the position and condition of this property, as hereinbefore...
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