Punte v. Taylor

• Decision Date: 08 July 1947
• Docket Number: 165.
• Citation: 53 A.2d 773,189 Md. 102
• Parties: PUNTE v. TAYLOR.
• Court: Maryland Court of Appeals

53 A.2d 773

189 Md. 102

PUNTE v. TAYLOR.

No. 165.

Court of Appeals of Maryland

July 8, 1947

Appeal from Circuit Court, Baltimore County; John B. Gontrum, Judge.

Suit by Emma V. Taylor against Joseph E. Punte to restrain obstruction of highway. From a decree for complainant defendant appeals.

Decree reversed and bill of complaint dismissed.

A. David Gomborov, of Baltimore (H. Lee Brill and A Jerome Diener, both of Baltimore, on the brief), for appellant.

John E. Raine, Jr., of Towson (James C. L. Anderson of Towson, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS GRASON, HENDERSON and MARKELL, JJ.

GRASON, Judge.

Emma V Taylor (appellee) filed a bill in the Circuit Court for Baltimore County, in Equity, against Joseph E. Punte (appellant), in which it is alleged: (1) That she owns a tract of about six and one-half acres of land located on the west side of Middle River, in Baltimore County, which she acquired from Robert H. Taylor by deed dated April 4, 1936. (2) That the defendant owns a tract of land adjoining on the west the land of the plaintiff, which he acquired from Henry P. Pilert by deed dated June 8, 1909. (3) That a road, owned in fee simple by plaintiff, is the only means of ingress and egress to her property; that this road runs, for a considerable distance, along the property of defendant, and has been used for a great number of years by the plaintiff and previous owners, and by the public in general as a means of ingress and egress to her property, and that its location has been established and used for more than 20 years; that the same has been improved from time to time in its present location by the Highways Department of Balitmore County, and that no question of the right of the complainant's use of the road as so located has ever been raised. (4) That defendant caused to be placed and erected a number of posts within the road as actually used; that these posts make it impossible to use the right of way and make the property of the plaintiff inaccessible to Back River Neck Road (or Eastern Avenue). That defendant has erected a sign in the roadbed, that the road is closed. (5) That the plaintiff conducts upon her property a restaurant, tavern, and shore resort, and the action of the defendant in blocking the road causes her irreparable damage and loss, by rendering her property inaccessible to the highways in the vicinity, and that she has no adequate remedy at law.

The bill prays: (1) That defendant show cause why the posts which he has erected and placed in said highway should not be removed. (2) That the court may pass such final order to restrain the defendant from preventing or in any manner interfering with the complainant's use of the road herein referred to. And (3) for general relief. The bill is sworn to.

The defendant, in his answer: (1) Denies that the road as being used has been used as such for more than 20 years, and avers that the said road had just been recently used by the complainant. (2) He admits the erection of the posts but avers that they are all on his property, and that the complainant has an adequate road, to wit, 'the original road as laid out to make their property accessible'. (3) That complainant has adequate means of conducting her business by using the original road as laid out.

The case was tried by the chancellor in open court. He decreed that the defendant remove the posts within 30 days from the date of the decree, and further ordered that 'the defendant be restrained and permanently enjoined from preventing or in any manner interfering with the complainant's use of the roadway referred to in the bill of complaint', and that the defendant pay the costs of the proceedings. From this decree the defendant appeals.

Two questions are raised by the appellant: (1) That appellee was not entitled to any relief in equity as she had an adequate and complete remedy at law. And (2) that, assuming that equity has jurisdiction, the evidence did not warrant the relief granted.

The evidence shows that there is a road which runs easterly from the Back River Neck Road (now called Eastern Avenue) for a distance of about 790 1/2 feet. The defendant's property lies south of this road. Immediately adjacent to the defendant's property, and binding on its easterly line, is the property of the plaintiff. At the western line of the plaintiff's property, and contiguous to the eastern line of defendant's property, there is a road which runs southerly along the eastern side of the defendant's property, on plaintiff's land, to the premises of the plaintiff. In order to get into her road one would have to make a right angle turn from the road running from Eastern Avenue. The plaintiff, her tenants, and patrons, instead of making this right angle turn into the plaintiff's road have, for some distance west of her entrance, curved around over the property of the defendant, making an arc from the former road ending some feet south of the plaintiff's entrance. It was along the former road, near the corner, and along the eastern side of the defendant's land along which the entrance to the plaintiff's premises ran, that these posts were placed. They thus served the purpose of stopping the use of this are over the defendant's land as a convenient way of getting to or out of the plaintiff's premises.

While title to the road leading to Eastern Avenue was alleged to be in the plaintiff, the proof fails tof establish this. In fact, the case was tried solely on the ground that the plaintiff had a right by prescription to use this arc over the defendant's land. The testimony seems to show that before Bob Taylor (the plaintiff's grantor) built the house now owned and occupied by her, the private road leading into the plaintiff's premises did not exist. At that time, and no doubt for some time prior thereto, the road from Eastern Avenue, where it is now intersected by the plaintiff's private entrance, seems to have ended at that point and from there the country was wooded and the land dropped from that point, down grade to Middle River. There were shore houses erected almost at the end of this road. The pictures in the case show this to be so, one being taken of the scene, at the entrance looking east, and the other being taken looking north as you enter the road leading to Eastern Avenue. Mr. Punte's home is just off the road leading from Eastern Avenue, and near the present entrance to Mrs. Taylor's property.

Charles A. Lawrence was superintendent of the Highways Department in the Fifteenth District. He visited this location and seems to have made some repairs to this road from 1918 to 1930. He could not say that the road was in the same location in 1930 as it was in 1927, and that there were no posts there. Appellant complained to his men, in 1944, that they were working and putting material on his road.

The appellee testified that she visited the property she now owns around 1924 or 1925, and occasionally thereafter she would stop in there, until she went there to live in 1932. That she has never noticed any change in the location or direction of the roadway into the property, where she has lived ever since; that 'the public, everybody that came in there, the bread man, the milkman, the groceryman, the customers' used the road. That when her patrons took their boats out they had a little bit of trouble getting them out the road, since it has been staked off. Her property adjoins Middle River. On her place is the big house where she conducts the restaurant, and five cottages. Some of these tenants walk, some come in cars; that some people have not been coming because they could not make the turn. She says quite a few of the stakes have been removed, and that has helped somewhat, but has not eliminated the trouble. What she means by stakes is not shown. It is evident she was not referring to the posts which the defendant planted, which are the subject of her complaint. Since 1932 she has used the road every day, and 'people would come in, customers, and the family, the tradesmen'. She stated: 'Since we have moved the stakes and some trees, and they took down quite a few of those big trees, they can just about make it (the turn), but they still scrape Mr. Punte's one post there and sometimes you can't help from knocking it over a little.' She said: 'The beer man, they could not bring their big trucks in and the soft drink man, and they told me they would either have to deliver, or if I want the stuff delivered myself or make other arrangements.' She thinks the posts were put up by the appellant in 1944, about two years before the case was tried. She was asked, on cross examination: 'Q. Now, tell what delivery man does not come in there? A. Well, they all come in but they still have trouble, I think Mr. Punte still has trouble with one of the two drivers because there was such a big truck he can't make a turn, he strikes the posts, and he can't help it.'

John Earl testified that he had been going down to Bob...