Knotts v. Summit Park Co.

• Decision Date: 21 June 1924
• Docket Number: 44.
• Citation: 126 A. 280,146 Md. 234
• Parties: KNOTTS v. SUMMIT PARK CO.
• Court: Maryland Court of Appeals

126 A. 280

146 Md. 234

KNOTTS v. SUMMIT PARK CO.

No. 44.

Court of Appeals of Maryland

June 21, 1924

Motion for Reargument Denied Oct. 9, 1924.

Appeal from Circuit Court, Baltimore County; Wm. H. Harlan, Judge.

"To be officially reported."

Suit by the Summit Park Company against Susan P. Knotts. Decree for plaintiff, and defendant appeals. Decree reversed, and bill dismissed.

Argued before PATTISON, URNER, ADKINS, OFFUTT, and BOND, JJ.

J. V Best and R. E. Kanode, both of Baltimore, for appellant.

John D Nock, of Baltimore (Benson, Nock & Rowe, of Baltimore, on the brief), for appellee.

ADKINS J.

The appellant and appellee in this case are owners of adjoining parcels of land in Baltimore county, both of which were formerly owned by Celestia A. Ferguson and used by her as one tract. It contained about 6 1/2 acres, with a frontage of 4.9 perches on the Frederick turnpike road and a greater width at the rear. By deed dated October 11, 1871, she conveyed to Catherine Luckett that part of her lot fronting on the turnpike and running back about 792 feet, containing about 1 3/4 acres. The deed contained the following reservation:

"Subject, however, to a right of carriage and footway through the above-described property on the east side thereof from the Frederick turnpike southerly to the remaining portion of the property now held by said Celestia A Ferguson."

This lot is now owned by the appellant. On May 4, 1872, Celestia A. Ferguson conveyed the remainder of the entire tract to Daniel Coakley, the deed containing the following provision:

"It is further understood and by these presents intended to be conveyed to said Coakley a right of way 30 feet wide (30) leading from the Frederick turnpike road as an entrance to the land bought by and hereby intended to be conveyed to him."

The latter parcel was on July 29, 1886, conveyed by Brown and wife, the then owners, to James A. Gary, and added to a tract of about 60 acres already owned by him and occupied as a country residence.

On October 10, 1919, James A. Gary conveyed this estate of 65 acres to Martin Healy and others, who on the same day conveyed it to appellee.

The bill of complaint filed on July 2, 1923, by appellee against the appellant sets up a right to the use of the carriage and footway reserved in the deed from Celestia A. Ferguson to Catherine Luckett, which on the plat filed with the bill is designated as "30-foot right of way." It alleges that this right was never questioned by any one until some time in the early part of December, 1922, when the plaintiff received notice from defendant's attorney that she questioned plaintiff's right to the use of said road or right of way, and the plaintiff was advised to discontinue the use of same, but plaintiff avers that for 2 1/2 years after acquiring title to said property it openly used said right of way as a matter of right, and their predecessors in title for 50 years or more have claimed the right to and have used same without question; that defendant has placed obstructions over said right of way for the purpose of preventing plaintiff from using same, and has thereby greatly interfered with the plaintiff in the enjoyment, operation, and plan of development of its land, and has and will continue to cause it great loss, injury, and damage, for which adequate compensation cannot be obtained in an action at law; and that, unless such interference and obstruction is restrained by a court of equity, they will be ruinous and irreparable, and will seriously impair the enjoyment and use of plaintiff's property, and greatly depreciate the value thereof.

The prayer of the bill is: (1) That defendant may be required to remove obstructions and restrained from interfering in any manner with the use of said roadway by plaintiff. (2) For other and further relief.

It thus appears that the plaintiff's claim for relief is as to a right of way 30 feet wide, and for the benefit of its entire development.

The grounds of defense, as claimed, are: (1) The reservation in the deed from Ferguson to Luckett is only a designation by the parties to the deed of the location of a way of necessity. (2) It was personal to the grantor, and as such terminated with the alienation of the dominant tenement, or with the death of grantor. (3) Abandonment by Gary, a former owner of the dominant tenement. (4) Changes in the dominant tenement involving an increased use of the easement not contemplated in its creation.

The trial court in an able opinion held that the right of way created by the reservation in the deed from Ferguson to Luckett is a subsisting easement appurtenant to the land conveyed by Brown and wife to Gary; but that the rights of the respective parties are fixed by the terms of the deed creating the right of way and not affected by a later deed of the owner of the dominant estate giving a different description, and consequently the description of the right of way in the deed from Ferguson to Coakley as being 30 feet in width is nugatory; that its width depends upon what the parties had in mind when the deed was executed and delivered; that the way must be a reasonable one, and of sufficient width to be conveniently used, but that there is no evidence in the case from which the court could determine what its width should be; that plaintiff's claim is much too broad; that the way is for the use of the land reserved by the grantor, and every person owning a portion of it is entitled to the use of the way for the benefit of his land, but not for the benefit of any other land that he may own, whether contiguous or not, and that one attempting to use this right of way for any purpose whatever except for the benefit of the land conveyed by Brown and wife to Gary is a trespasser; that the claim of the plaintiff to the use of this right of way as a road in the development of the Gary tract cannot be sustained.

The decree is that plaintiff, its successors and assigns are entitled to the right of a carriage and footway of sufficient width to be conveniently used through the property of defendant along the east side thereof from the Frederick turnpike southerly to that part of plaintiff's property formerly owned by Celestia A. Ferguson; said right of way being for the use and benefit of said land now owned by the plaintiff and formerly owned by the said Celestia A. Ferguson; that defendant is enjoined from obstructing or in any manner interfering with the use and enjoyment of said right of way as aforesaid, that defendant is required and ordered to remove any and all obstructions from said right of way.

From that decree this appeal was taken.

We do not find any support for defendant's first proposition. The fact that there would have been a way of necessity in the absence of a grant does not deprive a granted right of way of any of its incidents as a grant.

As to the second proposition: Words of limitation are not necessary to create a perpetual easement by reservation, where, in the absence of any provision in the deed, an easement by necessity would have been implied. 9 R. C. L. p. 753.

"When it appears by a fair interpretation of the words of a grant that it was the intent of the parties to create or reserve a right, in the nature of a servitude or easement, in the property granted, for the benefit of the other land owned by the grantor, and originally forming, with the land conveyed, one parcel, such right will be deemed appurtenant to the land of the grantor and binding on that conveyed to the grantee, and the right and burden thus created will respectively pass to and be binding on all subsequent grantees of the respective lots of land." Halle v. Newbold, 69 Md. 270, 14 A. 662; Douglass v. Riggin, 123 Md. 18, 90 A. 1000; 9 R. C. L....