Millar v. Bowie

• Decision Date: 01 September 1996
• Docket Number: No. 1454,1454
• Citation: 115 Md.App. 682,694 A.2d 509
• Parties: William C. MILLAR, Trustee of the William C. Millar Trust v. C. Keating BOWIE et ux. ,
• Court: Court of Special Appeals of Maryland

Page 682

115 Md.App. 682

694 A.2d 509

William C. MILLAR, Trustee of the William C. Millar Trust v. C. Keating BOWIE et ux.

No. 1454, Sept.Term, 1996.

Court of Special Appeals of Maryland.

June 2, 1997.

Richard A. DeTar and David R. Thompson (Miles & Stockbridge, P.C. and Cowdrey, Thompson & Karsten, on the brief), Easton, for Appellant.

Willard C. Parker, II (John G. Ong and Wheeler, Thompson, Parker & Counts, on the brief), Easton, for Appellees.

Argued before CATHELL and SONNER, JJ., and PATRICK L. WOODWARD, J. (Specially Assigned).

CATHELL, Judge.

William C. Millar, Trustee of the William C. Millar Trust, appeals from a judgment of the Circuit Court for Talbot County (Horne, J., presiding) that set a boundary line between his property (the "Eastern Parcel"), and the property of C. Keating and Alice F. Bowie, appellees, (the "Western Parcel") of what formerly was known as "Evergreen Farm." Appellant presents several issues:

1. Whether a deed which describes a boundary line by reference to a monument (i.e., an "old fence line") requires resort to extrinsic evidence to determine the location of the boundary line[.][ ¹

2. Whether the Trial Court may ignore language in a deed which describes the boundary line by reference to a monument because the Trial Court believes other language in the deed more clearly describes the location of the boundary line[.]

3. Assuming arguendo that the description of the boundary line in the Bowies' Deed requires resort to extrinsic evidence to locate the monument (i.e., the old fence line), whether the Trial Court erred as a matter of law when it failed to consider a plat, depicting an angled old fence line between the properties, which was incorporated by reference into the contract of sale by which the Bowies acquired their property[.]

4. Whether it was an abuse of discretion that the Trial Court did not factually determine that the boundary line is angled when the extrinsic evidence was uncontroverted that historically there was an angled old fence located in between the Eastern and Western Parcels[.]

Under the circumstances of the case sub judice, the answer to question number one is no. We answer question two by noting that Judge Horne did not ignore the deed language; he rejected it as not creating the type of ambiguity that made it directly relevant to the final disposition. Moreover, Judge Horne found that the operative language, "continuing in the same straight line" (emphasis added), clearly described the boundary line, i.e., was not ambiguous in the first instance. As to question number two, Judge Horne was not clearly erroneous--in fact, we perceive that he was correct. As to questions three and four, we see no need to assume anything arguendo. Initially, it was not the Bowies' deed that established the boundary line. It is the Jean Koehn deed that is the senior deed, i.e., the deed that controls. The Bowies' deed is essentially irrelevant to the establishment of the boundary. See Ski Roundtop, Inc. v. Wagerman, 79 Md.App. 357, 365, 556 A.2d 1144 (1989) ("Any discussion of subsequent deeds is irrelevant.") Moreover, our response to appellant's first two issues and our affirmance of the trial court for those reasons makes it unnecessary to resolve questions three and four. We note, however, that in our discussion and resolution of issues one and two, we will address, to some extent, questions three and four.

Periodically, as we discuss the facts, we will assess the trial court's factual findings. We may, in our holding, on occasion, repeat that assessment.

Appellant's title to the property at issue was derived from Jean W. Koehn, ² who, as a result of marital difficulties between her and C. Campbell Koehn Sr., obtained title to the tract through a deed that divided Evergreen Farm. This deed to her (the Jean Koehn deed), the senior deed at issue here, was executed and recorded in January of 1961. It provided a description that read:

BEGINNING on the Northwesterly side of the main driveway at the Southerly end of a concrete abutment erected over the causeway in said driveway and running thence with the Northwesterly side of said driveway and a hedgerow in a Southwesterly direction and in a straight line to a point at the Southerly end of said driveway and the Southwesterly side of the barn road;[ ³] thence continuing in the same straight line and with an old fence line between the park woods and the reserved land of the Grantors to the top of the bank along the shore line of Island Creek; thence at right angles to the shore line of Island Creek in a Southerly direction to the mean-low-water line of Island Creek; thence up and with the meanderings of the mean-low-water line of Island Creek and a cove thereof to the Southerly end of the Southeasterly concrete abutment over the above-mentioned causeway; thence in a Northwesterly direction across the main driveway to the point of beginning; SUBJECT, HOWEVER, to a right of way for purposes of ingress and egress to the barn road over that part of the main driveway included in the outline of the above conveyance. [Emphasis added.]

Subsequent to the January 1961 conveyance to Jean Koehn that partitioned Evergreen Farm, C. Campbell Koehn Sr. proposed to sell the remainder of Evergreen Farm. A real estate agent, Mr. Bartlett, knowing that the farm was for sale, made arrangements for appellees to view the property on the 23rd day of September 1961. Prior to that time, but after the January 1961 partitioning of the farm, the real estate agent met with C. Campbell Koehn's attorney, with Thomas Critchlow, apparently a co-listing broker of the property, and with a surveyor, Mr. Kastenhuber, at the farm to view the property. Neither appellees' nor appellant's predecessor was present at this meeting.

At this meeting, eight months after appellant's tract had been conveyed to Jean Koehn, and outside her presence, the surveyor, Kastenhuber, apparently suggested that a "new" boundary line be established by using an old fence line. This fence line is later described as the "angled" fence line. There is no indication that at this meeting there was any discussion of the Jean Koehn deed or its description of the boundary as "a straight line" and "in the same straight line." There is also little indication that Kastenhuber was, at that time, aware of the Jean Koehn deed. On the 23rd and 24th of September, appellees visited the property and, on the 24th, offered to purchase it.

Appellees then purchased the property of C. Campbell Koehn, the Western Parcel or remainder of Evergreen Farm. The contract of sale referred to an older plat dated 1919, that appellant asserts on appeal "contains an angled line drawn between the Eastern Parcel and the Western Parcel." Firstly, that is simply incorrect. In 1919, there was not yet a Western or Eastern Parcel. The survey, as prepared, and as the trial judge found, had no "angled line." The survey itself is a blueprint, i.e., white paper with blue lines. Someone has added to that white-on-blue survey a yellow line and called it a "Fence" and also has shown on it in yellow the outlines of a "Barn Road." In the absence of any sufficient evidence explaining the affixing of the yellow lines to the 1919 survey, the trial judge found:

The 1919 plat, which necessarily was prepared before the partition of the properties, has been altered. A boundary line that is marked "fence" has been drawn onto the plat with a yellow-colored pencil. [As a result,] [t]he boundary line angles in a more westerly direction....

Judge Horne later found as to the 1919 plat:

The plat has been altered: an angled boundary line has been added with a yellow-colored pencil.... But for the penciled-in division line, the 1919 plat would be unilluminating with respect to the correct location of the boundary line.

The Court declines to rely on this altered plat for two reasons. First, the evidence as to whether the September 23, 1961, contract refers to the altered plat--the one that features the penciled-in boundary line--is equivocal. While Mr. Bartlett stated that he observed a November 1919 plat, which depicted an angled fence line, when the contract was executed, Plaintiff [appellee] testified that he never saw the plat. The plat that is referenced in the contract could easily be the November 1919 plat of "Evergreen Farm" before it was partitioned [in 1961].

We hold that the trial court was correct in declining to attribute much value to the altered 1919 plat. First, the property was not divided until 1961 and, thus, the 1919 plat is merely a map of the entire tract. The only facts adduced below support an inference that the yellow line was added to the map at the time of the September 1961 on-site discussion of a "new" division line. At oral argument, all parties conceded that the yellow line was not placed on that 1919 plat in 1919 but was added at some point thereafter, probably during the September 1961 event. However, by September of 1961, it was too late for the creation of a "new" division line. The division line had been created in January of that year by the Jean Koehn deed.

Ultimately, on January 31, 1962, more than a year after the division of Evergreen Farm, a deed was executed and recorded in favor of appellees that described all of Evergreen Farm but excepted that part of Evergreen Farm previously conveyed to Jean Koehn. We, therefore, shall be primarily required to assess the trial court's construction of the Jean Koehn deed and the court's application of the relevant and proper facts in its construction.

In a somewhat bizarre turn of events, Millar, the successor to Jean Koehn, argues in favor of Kastenhuber's creation of a "new" division line, which is shown in two plats drafted by him in 1961 showing an angled line between the two properties. The Bowies, on the other hand, the successors in interest to C. Campbell Koehn Sr., the potential (and ultimate) buyers at the time of the preparation...