Kirby v. Hook

• Citation: 701 A.2d 397,347 Md. 380
• Decision Date: 01 September 1996
• Docket Number: No. 89,89
• Parties: Elwood KIRBY et ux. v. Karen HOOK et vir. ,
• Court: Maryland Court of Appeals

Page 380

347 Md. 380

701 A.2d 397

Elwood KIRBY et ux. v. Karen HOOK et vir.

No. 89, Sept. Term, 1996.

Court of Appeals of Maryland.

Oct. 15, 1997.

Gorman E. Getty, III, Cumberland, for petitioner.

No brief filed on behalf of respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, ^* RAKER and WILNER, JJ.

CHASANOW, Judge.

In this case, we are called upon to decide whether the Court of Special Appeals erred in affirming the Circuit Court for Allegany County's decision to grant an injunction prohibiting Petitioners from interfering with or obstructing Respondents' use of water from a spring located on Petitioners' land. We shall affirm the judgment of the Court of Special Appeals.

I.

This case concerns an easement to take water from a spring. The spring is located on a parcel of land in Allegany County that was once part of a 3.42 acre parcel owned by Thomas and Mary Machin. On January 31, 1930, the Machins conveyed 1.61 acres of their 3.42 acre parcel to John and Bessie Orndorff. For clarity's sake, we shall refer to the 1.61 acre parcel that was conveyed to the Orndorffs as the spring parcel. The spring parcel contains the spring that is the subject of this suit. The Machin-Orndorff deed expressly reserved an easement for the Machins and their "heirs and assigns" to use water from the spring as follows:

"IT IS EXPRESSLY UNDERSTOOD that the [Machins] hereby reserve unto themselves, their heirs and assigns, the right to use jointly with the [Orndorffs], their heirs and assigns, the use of the spring on the above described land, with the right of ingress, egress and regress for the purpose of laying a pipe line from said spring and keeping it in order."

On May 17, 1946, the Machins sold the remaining 1.81 acres to Harry and Lavina Simpson. The Machin-Simpson deed conveyed the parcel

"TOGETHER with the buildings and improvements thereon, and the rights, roads, ways, waters, privileges and appurtenances thereunto belonging, or in anywise appertaining, including the right to the use of the water from the spring on the adjoining property which is now owned by John Orndorff as provided in the reservations made in the deed to the said John Orndorff...."

On August 15, 1952, this 1.81 acre parcel was divided into two parcels, a 1.31 acre parcel that remained with the Simpsons, which we shall refer to as Parcel A, and a one-half acre parcel that was conveyed to Gerald and Elsie Barb, which we shall call Parcel B. The Barbs' deed conveyed Parcel B to the Barbs:

"Together with the buildings and improvements thereon, and the rights, roads, ways, waters, privileges and appurtenances thereunto appertaining or in anywise belonging, including the right to the use of the water in the spring on the adjoining property which is now owned by John Orndorff et ux as provided in the reservations made in the deed to the said John Orndorff et ux from Thomas Machin et ux dated January 31, 1930...."

Parcel B does not physically adjoin the spring parcel, but is separated from the spring parcel by Parcel A.

The spring parcel was sold to Elwood and Emma Kirby, the petitioners in this action, on March 22, 1955. ¹ Sometime after this conveyance, the Barbs as owners of Parcel B, asked Petitioners for and received permission to install an underground water line that ran from the spring across Parcel A to Parcel B. The exact date that the water line was installed is uncertain, but it occurred after Petitioners purchased the spring parcel, in 1955, and before the Barbs sold Parcel B, in 1973.

Parcel B was sold to Karen and Stanley Hook, the respondents in this action, on January 19, 1973. The property was conveyed

"[t]ogether with the buildings and improvements thereon, and the rights, roads, ways, waters, privileges and appurtenances thereunto belonging or in anywise appertaining...."

Respondents used the spring until the summer of 1992, when Petitioners capped the pipeline ² on their property, thus cutting off Respondents' use of the water. ³

Respondents filed suit ⁴ in the Circuit Court for Allegany County, claiming the right to use water from the spring under several legal theories. First, Respondents claimed that an easement to take water from the spring had been expressly granted by a deed in the chain of title. Second, they argued that their status as riparian landowners gave them a valid interest in the spring. Finally, Respondents claimed that they had a right to use water piped from the spring via an easement by prescription. The trial court agreed with Respondents' arguments as to all three theories and granted an injunction prohibiting Petitioners from interfering with or obstructing Respondents' use of water from the spring.

On appeal, the Court of Special Appeals affirmed the decision of the trial court in an unreported, per curiam opinion primarily based on two grounds. The intermediate appellate court first assumed that the case turned upon the doctrine of riparian rights and affirmed on that basis. The intermediate appellate court also stated, however, that even if the riparian rights doctrine did not apply, the trial court's decision would still be affirmed because Respondents automatically received an appurtenant easement to use the spring because such easements run with the land. This Court granted a writ of certiorari to consider the following issues:

1. Did the trial court and the intermediate appellate court err in finding that a grant of riparian rights to a nonriparian property was valid?

2. Did the Respondents fail, as a matter of law, to establish a prescriptive right to take water from the spring?

3. Did the trial court err when it concluded that a grant of permission to take water from a spring was void as an attempt to convey an interest in real property, in violation of the statute of frauds?

4. Was the intermediate appellate court wrong to determine that the Respondents' right to use Petitioners' spring "may be more in the nature of a real property right"?

5. Was the intermediate appellate court's determination that an easement, not mentioned in a deed to a non-contiguous property, is nonetheless "appurtenant," legally wrong?

II.

We can dispense with the first issue raised in the petition for certiorari immediately. This case does not involve riparian rights because no permanent watercourse or stream emanates from the spring at issue. Thus, the doctrine of riparian rights does not apply.

Both the trial court and the Court of Special Appeals concluded that, although Respondents were not owners of riparian land, they were nevertheless entitled to use water piped from Petitioners' spring under the law of riparian rights. Both courts relied heavily on the case of Kelly v. Nagle, 150 Md. 125, 132 A. 587 (1926). In Kelly, Thomas Nagle and his wife obtained from Alverda Hood and her husband approximately fifty-six acres of land located on the south side of a public road on March 1, 1900. 150 Md. at 127, 132 A. at 588. Fifteen years later, Thomas Nagle conveyed to James Kelly a large portion of the land, but kept approximately six acres which contained their home and a large spring forming the source of a stream. Id. The spring was located between the Nagles' home and a public road. 150 Md. at 127, 132 A. at 588-89. The water from the spring flowed over this six-acre parcel. 150 Md. at 139, 132 A. at 593. On April 19, 1921, Thomas Nagle obtained from Spencer Nagle six and one-half acres of land located on the north side of the public road separated by the road from the property which contained the spring. 150 Md. at 127, 132 A. at 588. On February 14, 1922, Thomas Nagle and his wife conveyed this six and one-half acre tract to their daughter-in-law, Jennie Nagle:

"Together with the buildings and improvements thereupon and all and every the rights, roads, ways, waters, easements and appurtenances thereto belonging or in any wise appertaining."

150 Md. at 127-28, 132 A. at 589. Shortly thereafter, on November 16, 1922, Thomas Nagle executed another deed to Jennie Nagle which granted her "the right and privilege of laying a water pipe, not exceeding three-quarters of an inch in diameter" directly from the spring located on Thomas Nagle's land across to Jennie Nagle's land so that she "may enjoy the use of such water from said spring as she may need on her ... property." 150 Md. at 128, 132 A. at 589. Jennie Nagle subsequently laid a three-quarter inch pipe from the spring to her property. After Thomas Nagle died, Kelly acquired the Nagles' approximately six acre tract of land containing the spring in May 1924 and, as a result, owned the entire fifty-six acre parcel that Thomas Nagle had purchased from Hood. 150 Md. at 129, 132 A. at 589. In February 1925, Kelly plugged up the pipe which ran from the spring to Jennie Nagle's property. 150 Md. at 129, 132 A. at 589.

Jennie Nagle later filed suit against Kelly claiming that she had a right to use the water from the spring by virtue of the deed expressly conveying to her the right to lay and maintain the pipe from the spring to her property. 150 Md. at 129-30, 132 A. at 589. Kelly argued that Thomas Nagle did not have the right "to dispose of the water directly from the spring ... because it was an invasion and in derogation of [Kelly's] riparian rights." 150 Md. at 136, 132 A. at 592. This Court concluded that Kelly's rights as a lower riparian owner "entitle[d] him to have the water of a stream flow down to his land as it is wont to flow, in its natural course and manner, unimpaired in quality and undiminished in quantity, with the limitation that every other riparian owner above is entitled to the reasonable use of the water." 150 Md. at 137-38, 132 A. at 592. However, this Court concluded that the reasonableness test did not apply since the case involved a dispute between a riparian owner, Kelly, and a non-riparian owner, Jennie Nagle. 150 Md. at 139, 132 A. at 593. Although Jennie Nagle's land bordered on the...