Miceli v. Foley

• Court: Maryland Court of Appeals
• Writing for the Court: BISHOP; Davidson
• Citation: Miceli v. Foley, 83 Md.App. 541, 575 A.2d 1249 (Md. App. 1990)
• Decision Date: 02 July 1990
• Docket Number: No. 1170,1170
• Parties: Philip V. MICELI v. Robert FOLEY, et al. Sept. Term 1989.

Page 541

83 Md.App. 541

575 A.2d 1249

Philip V. MICELI v. Robert FOLEY, et al.

No. 1170 Sept. Term 1989.

Court of Special Appeals of Maryland.

July 2, 1990.

Douglas L. Burgess (Nolan, Plumhoff & Williams, Chartered), Towson, for appellant.

Robert R. Bowie, Jr. (White, Mindel, Clarke & Hill, on the brief), Towson, for appellee, Foley.

Roger L. Elliott, Towson, for appellees, the Millers and the Bronzerts.

Argued before BISHOP, BLOOM and ROBERT M. BELL, JJ.

BISHOP, Judge.

Appellant, Philip V. Miceli, the owner of a parcel of land in Glen Arm, Maryland, filed a complaint against all interested neighbors to protect his claim to land along the southwestern and northwestern borders of his property. ¹ The landowners along the southwestern boundary (hereinafter referred to as the Dollenberg Strip ²), appellees here, were Robert and Jean Foley and Melvin and Lorriane Bronzert. Property owners along the northwestern boundary (hereinafter referred to as the abandoned railroad right of way) include appellees Richard J. and Gail G. Watson, Kenneth Fowler, Exterior Design, Inc., Mildred Liersmann, Charles and Mary Miller, Ruth and Dewey Beitler ³ and Melvin and Lorraine Bronzert. Miceli's complaint alleged counts of ejectment, trespass, quiet title, and adverse possession. Appellees challenged these counts and asserted claim to the property based on adverse possession.

This case is an appeal from the Circuit Court for Baltimore County (Fader, J.) which found that "[a]s a matter of title, survey and boundary law" the Dollenberg Strip was "vested" in Miceli; however, the court denied Miceli's claim to quiet title and adverse possession, ejectment and trespass to the Dollenberg strip and ruled that defendants and counter-plaintiffs Bronzert and Foley had obtained the land by adverse possession. With respect to the railroad right of way, the court held that Miceli had no title to the land and found that Liersmann, Miller, Beitler, and Bronzert acquired fee simple title by means of adverse possession to the parts of the railroad adjacent to their properties. Watson and Fowler's claim for adverse possession was denied.

ISSUES

Miceli asks this Court:

I. Whether the circuit court erred in ruling that Foley and Bronzert were the owners of the Dollenberg Strip by adverse possession;

II. Whether the circuit court erred in ruling that Liersmann, Beitler, Miller and Bronzert were owners of the former railroad property by adverse possession;

III. Whether the circuit court erred in ruling that Miceli was not the record owner of the former railroad right of way.

FACTS ⁴

On May 31, 1960, planning to expand his tool company, Philip V. Miceli ⁵ purchased from Charles and Viola Eck a rectangular, unimproved parcel of land in Glen Arm, Maryland. Included in the deed to this parcel was the right to use, with others entitled thereto, a twelve foot right of way which served as the only access to a public road. A year and a half later, on January 29, 1962, Miceli purchased a contiguous strip of land immediately adjacent to his first parcel from the Maryland and Pennsylvania Railroad Company. This 1.5 acre strip is commonly referred to as the old Maryland and Pennsylvania Railroad right of way.

The appeal sub judice concerns boundary disputes along the northwestern and southwestern borders of Miceli's land. The first contested boundary, a fifty-foot wide area referred to by the parties as the Dollenberg Strip, runs along the entire length of the southwestern border. The northwestern boundary is comprised of the former railroad right of way. This parcel varies in width from thirty to forty feet. We will first examine the dispute concerning the southwestern boundary, the Dollenberg Strip, and then we will turn to the claims to land along the northwestern boundary, the railroad right of way.

I. Southwestern Boundary: The Dollenberg Strip

The testimony traced title in this land back to a 116 acre parcel owned by George and Georgie Issennock who acquired it by deed on December 18, 1917. The Issennocks subsequently conveyed two portions of it. The first 38.5 acres was initially conveyed on August 14, 1923 to William and Louise Piper and eventually to Philip V. and Doris M. Miceli by Deed from Charles Eck and wife on May 31, 1960.

Nearly twenty years after the deed to the Pipers, the Issennocks conveyed an adjacent parcel containing 57.36 acres to Robert S. Durling, et ux. On May 18, 1950 Durling conveyed this land to Louvan and Violet Wood. Wood conveyed the northwestern pa

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[575 A.2d 1253] ----------

The present conflict concerning the boundary between Miceli's parcel and the Bronzert/Foley parcels can be traced to Issennock's first conveyance to Piper. The metes and bounds description in this deed conflicts with the metes and bounds description in the deeds subsequently transferred by Issennock. The following diagram ⁶ reflects this conflict. Bronzert and Foley claim title to the line represented by a crossed line in the diagram whereas Miceli contends that his property line extends to the line represented by dashes.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

After reviewing the testimony of land surveyors and title experts the court found that Miceli was the record owner of the land to which Foley and Bronzert claimed title. Foley and Bronzert contended that they had occupied this land adversely for the requisite statutory period and, therefore, title was theirs by operation of law.

In support of their claims to title, Foley and Bronzert produced evidence that a fence which had been erected between the Issennock and Piper properties, at the time of the initial division of the Issennock property, represented the metes and bounds of land use since 1923.

Leo J. Elwood, Issennock's son-in-law, who lived on the "Old Issennock" property since 1932, testified that he was "on the property" when Issennock sold a portion of the land to Durling. Issennock used the land to graze cattle, and Piper farmed it. He stated that the fence was erected in 1923 "at the latest" and that some posts and wire from the original fence were still in place at the time of trial.

Another witness, Harry K. Elwood, testified that a fence divided the Wood (Issennock's successor in title) and Eck (Piper's successor in title) parcels. Wood cleared and mowed the land up to the Eck border. Wood gathered firewood and his children played in the trees up to the fence.

Appellee Foley confirmed that there was a fence between the two properties during his period of possession. In 1972 he constructed an additional fence a few feet inside the old one. He placed "no trespassing" signs along the Dollenberg Strip on two occasions. His children used the area as a playground.

Appellee Bronzert stated that he had lived in the area since 1965. In 1971 he purchased Louvan Wood's property which was adjacent to the land Bronzert owned north of the right of way. At the time Bronzert purchased the property a fence ran down the eastern property line. In March, 1971 Bronzert constructed a new fence in front of the old one and erected two sheds. ⁷ He also added a "power pole" to bring energy to the sheds. In 1965 he observed the previous occupant, Dennis Cahill, ⁸ manually clearing the land and using the property on weekends. Cahill would camp on the property "right up against the fence line." Bronzert stated that in 1965 all of the Wood property (including the land eventually purchased by Foley) was cleared and planted with pine trees. Wood treated the entire area up to the fence as his own. Bronzert testified: "He maintained it, cut it, cut underbrush."

At the close of the evidence the trial judge found that Foley and Bronzert adversely possessed the land for the requisite twenty-year period. He found that Foley's testimony demonstrated that since 1971 he had assumed the requisite dominion and control over the property. Though he found that adverse use of the land prior to 1971 less clear cut, he found that the land had been possessed adversely and continuously since the initial Issennock conveyances. This period of use was tacked to appellees' use since 1971 to create adverse use for more than the requisite statutory period. The court stated inter alia:

... I believe that by preponderance of the evidence, more likely true than not true, more likely so than not so, at least 51 percent, certainly not to a mathematical certainty, that the adverse possession has existed since 1923.

By applying the principle of tacking the court concluded that Foley demonstrated that "his occupation of the land has been actual, hostile, notorious, and exclusive under a claim of title and continuous or uninterrupted use for a 20 year period of time."

The court was convinced that Bronzert took possession of the property in 1971 and under the principle of tacking claimed dominion and control over the land for the requisite period. We will provide additional facts where necessary in our discussion of the issues.

DISCUSSION

I. Adverse Possession of the Dollenberg Strip

To establish title by adverse possession a claimant must show possession of the property for twenty years. The land must be continually possessed in an actual, open, notorious, exclusive and hostile manner, under claim of title or ownership. Md. Courts and Judicial Proceedings Code Ann. § 5-103(a) (1989 Repl.Vol.); Costello v. Staubitz, 300 Md. 60, 67, 475 A.2d 1185, on remand, Peters v. Staubitz, 64 Md.App. 639, 644-645, 498 A.2d 661 (1984); Miklasz v. G.W. Stone, Inc., 60 Md.App. 438, 443, 483 A.2d 382, cert. denied, 302 Md. 570, 489 A.2d 1129 (1984); Wilt v. Wilt, 242 Md. 129, 135, 218 A.2d 180 (1966); East Wash. Railway v. Brooke, 244 Md. 287, 294-295, 223 A.2d 599 (1966). The burden of proving title by adverse possession is on the claimant. Costello v. Staubitz, 300 Md. 60, 67, 475 A.2d 1185 (1984). A court's determination of whether land is...