Phillips v. Phillips

• Decision Date: 02 November 1957
• Docket Number: No. 8,8
• Citation: 135 A.2d 849,215 Md. 28
• Parties: Theodore J. PHILLIPS et ux. v. Margaret PHILLIPS et al.
• Court: Maryland Court of Appeals

Page 28

215 Md. 28

135 A.2d 849

Theodore J. PHILLIPS et ux. v. Margaret PHILLIPS et al.

No. 8.

Court of Appeals of Maryland.

Nov. 2, 1957.

John A. Meyer, Baltimore, for appellants.

Arnold Fleischmann, Towson (Smalkin, Hessian, Martin & Taylor, Paul Martin and A. Frederick Taylor, Towson, on the brief), for appellees.

Before BRUNE, C. J., and COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ.

HENDERSON, Judge.

The appellants filed a bill of complaint in the Circuit Court for Baltimore County, to enjoin the obstruction by the appellees of a driveway on the adjoining land of the appellees, the use of which the appellants claimed by prescription. The respondents filed an answer denying the claim and alleging that the use made of the driveway was permissive and not adverse. The case came on for hearing and at the conclusion of the complainants' case the respondents offered a prayer for a directed verdict, which the court granted. From a decree dismissing the bill the case comes here.

The evidence produced by the complainants is virtually undisputed. The appellant, Theodore Phillips, is the son of the appellee, Mrs. Margaret Phillips, and the brother of the appellee, Vernon Phillips. Prior to 1935, Mrs. Phillips and her husband, since deceased, owned a tract of land on Dreher Avenue improved by a dwelling where they resided. Theodore was married in 1931, and on July 31, 1935, Mrs. Phillips and her husband conveyed a lot No. 20, which was carved out of the tract, to Theodore and his wife. In the survey prepared, lot 20 had a frontage on Dreher Avenue of 72 feet and a depth of 200 feet, leaving a frontage of 144 feet for lot 18, where the homestead was located. Subsequently, in 1941, lot 18 was conveyed to Mrs. Phillips and her son Vernon as joint tenants. There was an existing driveway from Dreher Avenue prior to 1935, on what became lot 18, near but not on the dividing line. Theodore constructed a house and separate two-car garage on lot 20, and moved in about November 24, 1935. He has used the driveway ever since as a means of access to his garage, and for about fifteen years used it to transport building materials used in his business, and to store them, contrary to the wishes of his mother and brother, on the vacant land behind his lot. Until July, 1955, when he erected a new garage, he used the driveway daily. Since that date he has used it for hauling dog food to the garage, for the passage of a small tractor stored in the garage, and for the servicing of a bottled gas tank. The Chancellor found that the use was open and notorious, continuous and uninterrupted, for more than twenty years. He found, however, that the use had not been adverse or under a claim of right.

On this point Theodore testified that at or about the time of the conveyance of lot 20 in 1935, and before construction of the house and garage had begun, he discussed the location of the garage with his mother and father. She suggested that he face it towards the existing driveway, to save the expense of a new driveway. He said, 'Well, maybe sometime you might sell the property and that driveway would be closed to me.' She said, 'Aw fiddlesticks, you know better than that. I'll never leave here until they carry me off the place. You can use that driveway and you can always use it and nobody will ever stop you from using it, so you go ahead and build your garage there.' He testified, 'that's what I did, taking the driveway.' He also fenced in a triangular strip between the driveway and the boundary line, but no claim is asserted to this strip. He paved the driveway and has maintained it at his own expense ever since 1935. On December 19, 1955, he received a letter from his mother directing him to vacate the driveway and remove the fence before January 15, 1956. She said: 'As you know your side fence is on the property which some day will be Vernon's at my death, and you are using the driveway belonging to this place. * * * I am going to fence this part of the place in so there will be no misunderstanding when I am gone.' Neither she nor Vernon had ever before objected to his use of the driveway.

The general rule set out in the Restatement, Property, § 458, is that a use, claimed as an easement by prescription must be adverse and not 'made in subordination to' the owner of the fee. In Condry v. Laurie, 184 Md. 317, 319, 41 A.2d 66, 67, where the deed contained a 'license to use the private road * * * while they [the grantors] shall remain owners of the property', it was held that the presumption arising from twenty years' use was rebutted. It is generally held that a permissive use can never ripen into an easement by prescription, at least during the period within which permission is granted, but this rule does not apply where there has been an attempt to grant an easement which is void because of the Statute of Frauds. See 17A Am.Jur., Easements, § 86, p. 702, and Note 13 L.R.A.,N.S., 991. In such cases the question whether an oral grant is intended to convey an irrevocable right or a mere license is one of fact. Cf. Clark v. Henckel, Md., 26 A. 1039. See also Note 27 A.L.R.2d 332, 355. In Tiffany, Real Property, 3d Ed., Sec. 1196, p. 562, it is said: 'When the owner undertakes to confer upon another a perpetual right of user in the land, but fails to do so in a valid manner, as when he makes an oral grant of an easement, the user of the land by such other in accordance with the terms of the invalid grant cannot be regarded as permissive and in subordination to the rights of the landowner, but is in effect adverse to such rights.' This statement was cited with approval in Lichtenberg v. Sachs, 200 Md. 145, 154, 88 A.2d 450, 454, where it was said: 'If they [the claimants] got any permission to use the Robinson property, they probably thought it was irrevocable. An oral permission, believed to be irrevocable but unenforceable by reason of the Statute of Frauds, may evidence a claim of right and indicate that user was adverse amd not permissive.'

Under the facts of the instant case, we think the Chancellor was clearly wrong in finding that the use was not adverse and under a claim of right. The mother's statement seems clearly to have imported that his use would never be interfered with by her or anyone else, even if the property were sold. The fact that he built the garage so that it faced the driveway, and paved and maintained the driveway thereafter, seems inconsistent with a belief on his part that the permission could be withdrawn at any time. The Chancellor attempted to distinguish Lichtenberg v. Sachs, supra, on the ground that there was no family relationship between the parties. But that is only one of the facts to be considered, and is not controlling. Dalton v. Real Estate & Imp'v't Co., 201 Md. 34, 45, 92 A.2d 585. In the instant case the fact of relationship, in connection with the clear intention to confer some privilege, would support an inference that a permanent grant was intended, rather than a mere license. If the mother had believed the grant to be revocable, it seems strange that she should not have raised the point when she caused lot 18 to be conveyed to herself and her son, Vernon, in 1941. There is no evidence that she or her son, Vernon, ever made any objection to the use until after the lapse of twenty years. Finding that there was an intention to grant an easement, it is unnecessary to consider the argument of the appellants that a grant could be implied, under the circumstances, from the conveyance of lot 20. Cf. Dalton v. Real Estate & Imp'v't Co., supra.

Since the case must be reversed, the question arises as to whether we should direct the entry of a final decree. The Chancellor stated that he was deciding the case only on the basis of the evidence presented by the complainants, in view of the prayer for a directed verdict at the conclusion of the complainants' case. The filing of such a prayer is not proper in an equity proceeding, and even if it be treated as a motion to dismiss, it is generally held that the filing of such a motion is not the proper practice in equity, in the absence of statute or rule of court to the contrary. See Kiss v. Gale, 187 Va. 667, 47 S.E.2d 353; Kelley v. Mallory, 202 Or. 690, 277 P.2d 767; Humphreys v. Humphreys, 39 Tenn.App. 99, 281 S.W.2d 270; Sundlun v. Volpe, 62 R.I. 55, 2 A.2d 875; Pearce v. Tharpe, 118 Misc. 107, 79 So. 69; Garner v. Garner, 72 S.C. 437, 52 S.E. 194; 30 C.J.S. Equity § 579, page 972; 19...