Judge v. Rago

• Decision Date: 29 August 1989
• Citation: 570 A.2d 253
• Parties: Richard B. JUDGE, Defendant Below, Appellant, v. Ina M. RAGO, Arunah S. Abell, Joseph E. McMahon, Henry J. Cadell, Margrit W. Vanderryn, Mrs. Robert J. Van Amberg, John F. Lynch, James Van Sweden, Phyllis Power, Susana Roveda, Anne R. Patteson and Peter Parker, Plaintiffs Below, Appellees. . Submitted:
• Court: Supreme Court of Delaware

Page 253

570 A.2d 253

Richard B. JUDGE, Defendant Below, Appellant, v. Ina M. RAGO, Arunah S. Abell, Joseph E. McMahon, Henry J Cadell, Margrit W. Vanderryn, Mrs. Robert J. Van Amberg John F. Lynch, James Van Sweden, Phyllis Power, Susana Roveda, Anne R. Patteson and Peter Parker, Plaintiffs Below Appellees.

Supreme Court of Delaware.

Submitted: Aug. 29, 1989.

Decided: Jan. 19, 1990.

Rehearing Denied Feb. 22, 1990.

David A. Drexler and Eric C. Howard, Morris, Nichols, Arsht & Tunnell, Wilmington, for appellant.

Norman C. Barnett, Schab & Barnett, P.A., Georgetown, for appellees.

Before CHRISTIE, C.J., MOORE, and WALSH, JJ.

WALSH, Justice:

This is an appeal from a decision of the Court of Chancery that granted declaratory judgment relief to certain owners of beachfront townhouses in a development known as Sea Strand, in Dewey Beach, Delaware. The Court of Chancery ruled that an adjacent property owner, Richard B. Judge ("Judge"), had no right of easement, express or implied, to use the designated access ways of Sea Strand. We find the Court of Chancery's findings and conclusions to be amply supported by the evidence and free of any error of law and, accordingly, affirm.

I

Sea Strand is a complex of four townhouse buildings denominated A, B, C, and D, which are located on both sides of Chesapeake Street in Dewey Beach. The buildings contain a total of thirty-six individual townhouse units. Building A is built on a plot of land known as Block 49, which is located on the south side of Chesapeake Street; this property is not involved in this litigation. Buildings B, C, and D are built on Block 50, which is adjacent to an undeveloped parcel known as Block 50 1/2. The Sea Strand buildings are linked by a series of small roadways that open onto Chesapeake Street. These roadways appear on the publicly recorded plots of the development, where they are designated as "access ways." In addition, the plots mark certain regions of Block 50 as "common areas." Judge claims no interest in the common areas, but asserts that he may use the access ways to traverse between Chesapeake Street and Block 50 1/2.

Sea Strand was constructed in the mid-1960s as the result of a joint venture between Rehoboth by the Sea Realty Company ("RSRC") and D.F.D., Inc. ("DFD"). At that time, RSRC was the owner in fee of Blocks 49, 50 and 50 1/2. DFD served as developer and promoter for the townhouse project. Upon their completion, the townhouses were sold to various individuals; the plaintiffs-appellees (the "owners" or the "townhouse owners") all own townhouses located on Block 50. RSRC retained ownership of the land underlying and surrounding the townhouses and in conjunction with each sale, it granted each townhouse owner a sixty-year lease of the land under his unit. Each lease also gave the buyer a right to use the common areas and access ways in common with other townhouse owners. Under the terms of the lease, the townhouse owners are responsible for the maintenance of the land and the payment of taxes and other charges assessed against it. Thus, although RSRC retains title to the land, it has ceded most of the incidents of ownership--the burdens as well as the rights--to the townhouse owners.

On December 30, 1987, RSRC sold Block 50 1/2 to Judge for the sum of $1,000,000. By quitclaim deed, RSRC purported to convey a right of access across Block 50, although it made no warranty that such an easement actually existed. Judge proposes to construct seven single-family homes on the newly acquired property.

In order to establish the nature of their rights under their respective leases, vis-a-vis Judge's claim of access, the owners filed a suit for declaratory judgment in the Court of Chancery. Following a two-day trial, the Vice Chancellor ruled that Block 50 was not burdened by any easement appurtenant to Block 50 1/2. Rago v. Judge, C.A. No. 1294, Hartnett, V.C., 1989 WL 25802 (Mar. 16, 1989). In its analysis of the owners' claims, the court found that the relevant terms of the leases were, at best, ambiguous. The court then examined parol evidence in an attempt to determine the original intent of the parties to the leases and concluded that RSRC had never intended to reserve an easement.

II

In this appeal, we are presented with issues implicating both contract interpretation and the common law of real property. Because both matters involve questions of law, our review of these matters is plenary. Rohner v. Niemann, Del.Supr., 380 A.2d 549 (1977); Fiduciary Trust Co. of N.Y. v. Fiduciary Trust Co. of N.Y., Del.Supr., 445 A.2d 927, 930 (1982). However, insofar as the court below relied upon parol evidence to aid in its interpretation of the Sea Strand leases, its factual findings are entitled to greater deference. Levitt v. Bouvier, Del.Supr., 287 A.2d 671 (1972).

An easement may be created in any of several ways: by express grant or reservation, by implication, by necessity, or by prescription. Leach v. Anderl, N.J.Super., App.Div., 218 N.J.Super. 18, 526 A.2d 1096, 1099 (1987). Judge argues, primarily, that RSRC reserved an express easement allowing access to Block 50 1/2 when it leased Block 50, and that it was free to transfer that easement in conjunction with the sale to Judge. Alternatively, Judge contends that if ambiguity in the leases precludes the finding of an express easement, an implied easement should be found to have arisen from the dealings of the parties. No evidence suggests the existence of a prescriptive easement, and although there is reason to believe that Block 50 1/2 is landlocked, Judge has never asserted, in this litigation, that an easement by necessity has arisen.

In arguing that RSRC reserved an express easement, Judge relies upon three types of documents: the sales contract for each Sea Strand townhouse, the ground lease executed by each townhouse buyer, and the publicly recorded plots of the development. A representative sales contract identifies the property conveyed as:

Sea Strand Unit [ ], Building [ ], Block 50, Rehoboth By The Sea, Lewes-Rehoboth Hundred, Sussex County, Del. and leasehold interest to that land beneath said building and as shown on Sea/Strand plat, said plat to be presented at settlement--leasehold to be for 60 years under standard Rehoboth By The Sea lease, more fully described in Schedule A attached to and made part of this contract.

A standard lease describes the demised premises as:

All that certain lot, piece and parcel of land situate in Lewes and Rehoboth Hundred, Sussex County, Delaware more particularly described as follows, to wit:

.. Unit No. [ ] Building [ ], as shown on a plot of Sea-Strand, in Block No. 50, together with a right in common to the Common Areas, as shown on said Plot, and subject to the access agreement shown thereon, as surveyed and plotted by Wingate & Eschenbach, Registered Surveyors, on [ ], and filed for record in the Office of the Recorder of Deeds, at Georgetown, Delaware, in Plot Book No. [ ], Page [ ].

Judge asserts that the language "subject to the access agreement shown thereon" was intended to establish the respective rights of the townhouse owners and RSRC to use the access areas.

Unfortunately, the recorded plots do not contain explicit language that may form the basis for a verbal agreement; they are merely schematic diagrams of Block 50, with certain portions delineated as buildings, common areas, and access ways. Moreover, each building is recorded on a separate plot that displays only those access ways directly adjacent to the building. Nevertheless, Judge argues that the depiction of the access ways on the plot constitutes the access agreement. He asserts that the owners of property displayed on the plots may use all access ways to which they are adjacent, as well as such other access ways as may be needed to reach Chesapeake Street. Thus, the owner of a townhouse in Building C may use access ways shown on the plot of Building C, as well as access ways on the plot of Buildings B and D that may be needed to reach Chesapeake Street. By the same token, because the access ways on the plots of Buildings B and C touch the boundary between Blocks 50 and 50 1/2, Judge argues that he, and his successors in interest, may use the Sea Strand access ways to traverse between his property and the public roadways.

The documents that the Vice Chancellor was required to interpret are hardly models of clarity. They do, however, reveal a few salient facts. Under the sales contracts, Sea Strand residents own their townhouses subject to ground leases. RSRC, in turn, owns Block 50 in fee, subject to the fact that it "has granted, demised, leased and let" the property to the individual townhouse owners, "with all the rights, privileges, easements and appurtenances thereunto attaching and belonging unto the said Lessee[s], [their] heirs and assigns, for and during the full term of Sixty (60) years." The leases, in turn, are subject to "[a]ll restrictions, easements and rights-of-way appearing of record in the chain of title," and "[t]he reservation, restriction, covenants and limitations ... set forth [in the leases]." With the exception of the purported access agreement, however, no recorded encumbrance or lease term even arguably suggests that Block 50 is burdened by an easement appurtenant to Block 50 1/2.

Because it creates an interest in land, the grant of an express easement must satisfy the Statute of Frauds to be valid. 37 C.J.S. Frauds, Statute of § 71; Burns v. Baumgardner, 303 Pa.Super. 85, 449 A.2d 590 (1982); Merchants' Trust Co. of Newark v. Vollick, N.J. Ch., 103 N.J.Eq. 167, 142 A. 645 (1928). Judge argues that any written evidence will suffice, as long as it demonstrates a meeting of minds; thus, a diagram may serve as well as words. The issue posed, however, is not whether the various "writings," however cryptic, constitute an agreement but whether Judge's property can be said to have been within the contemplation of the...