Scureman v. Judge

• Decision Date: 30 September 1992
• Docket Number: No. 1486-S,1486-S
• Citation: 626 A.2d 5
• Parties: Murray S. SCUREMAN, et al., Plaintiffs, v. Richard B. JUDGE and Ingabritta Judge, Defendants-Third-Party Plaintiffs, v. Russell T. AARONSON, Jr., et al., Third-Party Defendants. Civ. A. . Date Submitted:
• Court: Court of Chancery of Delaware

Page 5

626 A.2d 5

Murray S. SCUREMAN, et al., Plaintiffs, v. Richard B. JUDGE and Ingabritta Judge, Defendants-Third-Party Plaintiffs, v. Russell T. AARONSON, Jr., et al., Third-Party Defendants.

Civ. A. No. 1486-S.

Court of Chancery of Delaware,

Sussex County.

Date Submitted: Sept. 30, 1992.

Date Decided: Oct. 29, 1992.

B. Wilson Redfearn, David G. Culley and Elizabeth Daniello, of Tybout, Redfearn & Pell, Wilmington, for Richard B. Judge.

William M. Chasanov, of Brown, Shiels & Chasanov, Georgetown, for Ingabritta Judge.

John A. Sergovic, Jr., of Sergovic & Ellis, Georgetown, for intervenor Rehoboth-By-The-Sea Realty Co.

Norman C. Barnett, of Schab & Barnett, P.A., Georgetown, for plaintiff and third-party defendant Sea Strand Owners.

James D. Griffin, of Griffin & Hackett, P.A., Georgetown, for plaintiffs Berman, Houlon and Berger.

J. Everett Moore, Jr. and John R. Kirk, of Moore & Rutt, Georgetown, for third-party defendant Draper and Carpenter Estates.

David A. Anderson, of Potter, Anderson & Corroon, Wilmington, for third-party defendant James L. Goodwill, III.

OPINION

JACOBS, Vice Chancellor.

Pending is a motion for summary judgment brought by the defendants, Richard B. Judge and his wife, Ingabritta Judge (the "Judges"), who are the owners of Block 50 1/2 in Dewey Beach, Delaware; and an intervenor, Rehoboth-By-The-Sea Realty Company ("RBTS"), the Judges' grantor and mortgagee. These parties are referred to collectively as the "movants." The property in dispute, Block 50 1/2, is landlocked. The Judges cannot gain access to it because Block 50 1/2 is bordered on the west by Silver Lake, on the east by the Atlantic Ocean, and on the north and south by private property. An original plot of the area, drawn in 1876, depicts a road called "Lake Drive" that was to be built around Silver Lake (then called Lake Charles) and Lake Comegys. Lake Drive has actually been built along the western side of Silver Lake but it remains unbuilt along a portion of the eastern side of Silver Lake and around Lake Comegys. The movants contend that that unbuilt portion of Lake Drive along the eastern side of Silver Lake is a publicly dedicated right-of-way that the Judges are entitled to use to gain access to Block 50 1/2. Alternatively, the movants argue that the Judges are entitled to an easement by necessity. The pending summary judgment motion implicates the merits of those claims. Briefing on that motion was completed on September 30, 1992 and the parties waived oral argument. This is the decision of the Court on the summary judgment motion.

I. FACTS

A. The Parties and the Disputed Property

To the south of Block 50 1/2, on portions of Blocks 49 and 50, lies the Sea Strand complex ("Sea Strand"). Sea Strand consists of four buildings that comprise 36 individual townhouse units. RBTS owns the land underlying Sea Strand, but leases it to the various owners of the townhouse units. To the immediate west of Sea Strand, also in Block 50, lie the Houlon, Berger, Berman, and Goodwill properties, each of which backs onto the southern side of Silver Lake. To the north of the Judges' property, on Blocks 51 and 52, lies an estate that for decades has been owned by members of the Carpenter and Draper families (the "Carpenter/Draper estate").

Because in this case there is merit to the adage that a picture may be worth a thousand words, Block 50 1/2 and the relevant portions of properties surrounding it are depicted below, for illustrative purposes only and not precisely to scale. The drawing is based upon App. C-4, ¹ and the shaded area represents the unbuilt portion of Lake Drive that is the subject of this litigation.

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

The named plaintiffs are eight Sea Strand (Block 50) leaseholders and three fee simple (Block 50) landowners. The plaintiffs originally brought this action against the Judges for a declaratory judgment that the Judges were not entitled to use Lake Drive to gain access to Block 50 1/2. The Judges responded by counterclaiming against the plaintiffs and filing a third-party complaint against (i) all 36 Sea Strand leaseholders, including the plaintiffs, (ii) all four Block 50 fee simple owners, and (iii) the Carpenter/Draper estate. These third-party defendants are collectively referred to as the "respondents." ²

B. Background of the Dispute

This litigation is the latest chapter in a long-standing and highly contentious dispute involving the Judges' effort to gain access to Block 50 1/2. In that connection some history is instructive. The Judges purchased Block 50 1/2 from RBTS on December 30, 1987. To enable the Judges to gain access to Block 50 1/2, RBTS also conveyed its reserved right to use the common passageways between the Sea Strand buildings. Several Sea Strand residents sued Mr. Judge in this Court, challenging the legality of that conveyed right of access. After trial, this Court ruled that the Judges had obtained no legally valid easement from RBTS, and, therefore, were not entitled to use the common Sea Strand passageways to gain access to Block 50 1/2. Rago v. Judge, Del.Ch., C.A. No. 1294, Hartnett, V.C., 1989 WL 25802 (March 16, 1989), aff'd, Del.Supr., 570 A.2d 253 (1990).

Unable to secure access to Block 50 1/2 through the Sea Strand passageways, Mr. Judge attempted a different approach. He entered into a land sale contract with James L. Goodwill III to purchase Mr. Goodwill's property, which lies to the immediate west of Sea Strand. Mr. Judge sought access to Block 50 1/2 starting from Chesapeake Street in Dewey Beach through the Goodwill property, and then across the northwest corner of Sea Strand along an unbuilt portion of Lake Drive. On October 13, 1990, Mr. Judge obtained preliminary approval from the Town of Dewey Beach for a subdivision plan based upon that proposed access route. That approval was made contingent upon Mr. Judge's acquiring title to the Goodwill property.

On December 19, 1990, the plaintiffs filed this action to challenge the Judges' proposed use of Lake Drive. As a result Mr. Judge was unable to proceed with his agreement to purchase the Goodwill property, and the Judges decided to establish their right of access to Block 50 1/2 in this litigation. Accordingly, they answered the complaint, counterclaimed, and filed their third-party complaint against the respondents. On August 2, 1991, RBTS then moved to intervene as a party defendant, and its motion was granted.

C. The Origin of Lake Drive

On September 27, 1855, Robert West, who owned approximately 135 acres to the east and south of Silver Lake, recorded a plot of his lands, entitled "Plot of Rehoboth City." (App. A-30.) On March 15, 1871, sixteen years and several conveyances later, the General Assembly, by private Act, incorporated The Rehoboth Association, and "made [it] a body politic in law and in fact." 14 Del.Laws, Ch. 285, § 14 (App. A-69-71.). As declared in that Act:

The object of said Association shall be the development of lands now held by the parties above named and such as may be acquired under this Act into a Watering Place and City for the benefit and accommodation of those who may choose to settle in or inhabit it.

Id. The Legislature also delegated to the Association certain powers and rights, including:

the right to acquire by purchase, lease or contract, all such lands and tenements in the County of Sussex, as they deem necessary for the purpose of said Association, and to lay out the same, or any part thereof into lots, streets, and alleys, squares and parks.... 14 Del.Laws, Ch. 285, § 24 (emphasis added).

Pursuant to that Act, the Rehoboth Association recorded a "New Plot of Rehoboth City" on May 3, 1876. That 1876 Plot relevantly provided that the Rehoboth Association "does hereby lay out & dedicate to public use the City of Rehoboth & the several streets, avenues, alleys thereof including said parts of streets in accordance with the plans hereunto annexed." (App. A-72-73.) (emphasis added). One of the several plots that accompanied the text depicted streets and numbered blocks in the vicinity of Silver Lake. One of those streets was Lake Drive, which was shown as encircling Silver Lake. (App. A-75.) Over the years the streets and blocks laid out on these plots have reappeared in subsequent deeds, plots, and maps.

II. THE PARTIES' CONTENTIONS

A motion for summary judgment will be granted only when no genuine issue of material fact is in dispute and the moving party is entitled to judgment as a matter of law. Ch.Ct.R. 56(c); Nash v. Connell, Del.Ch., 99 A.2d 242 (1953). The moving party has the burden of establishing to the satisfaction of the Court the absence of any genuine issue of material fact, and any doubt regarding the existence of such an issue will be resolved against the movant. Brown v. Ocean Drilling & Exploration Co., Del.Supr., 403 A.2d 1114, 1115 (1979).

By this motion the movants urge this Court to determine as a matter of law that Lake Drive is a dedicated right-of-way that affords the Judges access to Block 50 1/2. In support of their position the movants advance five claims: (1) Lake Drive is a public highway by virtue of the actions taken by the Rehoboth Association in 1876 pursuant to the above-described legislation; (2) Lake Drive is a "common highway" by virtue of 17 Del.C. § 509, which declares (inter alia ) that certain public roads are common highways; (3) Lake Drive is a "public road" by virtue of 17 Del.C. § 131(b); (4) Lake Drive is a dedicated and accepted public road at common law, or, alternatively, is a road over which the Judges have an implied common law right of private easement; and (5) should the above arguments fail, the Judges are entitled to an easement by necessity over the adjoining landowners' property. The respondents dispute all of these claims. They also raise the affirmative defenses of lack of ripeness, lack of standing, estoppel, laches, and adverse possession.

The...