Senez v. Collins

• Decision Date: 03 October 2008
• Docket Number: No. 111, Sept. Term, 2007.,111, Sept. Term, 2007.
• Parties: Linda Ann SENEZ v. Ann COLLINS, et al.
• Court: Court of Special Appeals of Maryland

957 A.2d 1057

182 Md. App. 300

Linda Ann SENEZ v. Ann COLLINS, et al.

No. 111, Sept. Term, 2007.

Court of Special Appeals of Maryland.

October 3, 2008.

Bruce E. Covahey (Edward C. Covahey, Jr., Covahey, Boozer, Devan Dore, PA, on brief), Towson, for Appellant.

Robert J. Thompson (J. Calvin Jenkins, Jr., on brief), Towson, for Appellee.

Panel: KRAUSER, C.J., HOLLANDER and CHARLES E. MOYLAN, JR., (retired, specially assigned), JJ.

HOLLANDER, J.

This appeal arises from a dispute as to the ownership of a 291-square-foot sliver of land situated along the boundary of two adjoining waterfront properties in the Middle River area of Baltimore County. The disputed area also includes a portion of a concrete boat ramp that straddles the common boundary. Linda Ann Senez, appellant, is the owner of 341 Worton Road (the "Senez Property"); Ann and Steve Collins, appellees, own 339 Worton Road (the "Collins Property"). Both properties front on Norman Creek, a tributary of the Chesapeake Bay, and each contains a single family home.

In September 2004, appellees filed a quiet title action in the Circuit Court for Baltimore County, and also alleged claims, inter alia, of trespass and nuisance. Appellant filed a counterclaim based on adverse possession. Following a bench trial in 2006, the court ruled in favor of appellees as to most of their claims, including adverse possession.

On appeal, appellant presents one issue: "Whether the circuit court erroneously denied the appellant's adverse possession claim despite the evidence of twenty-three years of hostile possession and the absence of any clear and unequivocal acts by the appellees to challenge her exclusive, hostile possession."

For the reasons that follow, we answer in the affirmative and shall therefore vacate the judgment and remand for further proceedings.

FACTUAL AND PROCEDURAL SUMMARY

Appellant purchased the Senez Property on November 22, 2000, and began to live there immediately. Her predecessors in title, Arthur L. and Joan E. Myers ("the Myers"), had previously acquired the property on April 6, 1981, and lived there continuously for approximately nineteen years and seven months.

Appellees purchased the Collins Property on August 14, 2000, from the estate of George Cook, who had owned the property with his wife, Madeline Cook ("the Cooks").¹ The Cooks had acquired the property on August 7, 1973. In October 2000, appellees tore down the existing house on the property and commenced construction of a new home. As a result, they did not begin living on the property until late July 2001. Thus, although appellees purchased the Collins Property before appellant acquired the Senez Property, appellant was already living on her property before appellees moved into theirs.

At the time the parties purchased their respective properties, the properties were separated by a concrete retaining wall (the "Wall"), which did not precisely track the property line. The Wall, approximately 115 feet long, extended almost the entire length of the boundary between the properties, beginning some 75 feet from Worton Road and terminating at the point where the Wall met a concrete sea wall, or bulkhead, which separated the Collins Property from Norman Creek. A survey of the Senez Property, which was conducted for appellant by Bryan R. Dietz, and which was later admitted at trial as a joint exhibit (the "Dietz Survey"), showed that approximately 35 feet before meeting the sea wall, the Wall diverged from the boundary line. Between that point and the sea wall, according to the Dietz Survey, the Wall sat entirely on the Collins side of the property line. As a result, a narrow strip of the Collins Property was located on the Senez side of the Wall. That narrow strip between the Wall and the boundary line is the area of land in dispute.

The disputed area contains part of a concrete boat ramp that extends past the sea wall, providing access from the Senez Property to Norman Creek. The boat ramp is entirely on the Senez side of the Wall. But, because the Wall does not follow the boundary, a portion of the boat ramp falls on the Collins side of the property line. In the disputed area, the elevation of the ground on the Senez side of the Wall is a few feet higher than the elevation on the Collins side. As noted, the Wall was a retaining wall; it maintained the properties at their differing elevations.

On September 29, 2004, appellees filed suit against appellant, seeking monetary damages and injunctive relief, on the grounds of trespass, continuing trespass, private nuisance, quiet title, and invasion of privacy.² In relevant part, appellees contended that they owned "one half of a boat ramp which straddles the parties' properties," and that appellant had "[i]nstalled a wood fence between the properties, which fence not only encroaches on the Collins Property but at the south end of the Collins Property, also blocks access by [appellees] to that part of the Collins Property which includes the shared boat ramp."

In her Answer, appellant contended that she "presently owns the entirety of the boat ramp by adverse possession." She also denied "the allegation that any portion of the fence encroaches upon the Collins Property insofar as she presently owns the property in question by adverse possession." Then, on November 8, 2004, appellant filed a "Counterclaim for Title by Adverse Possession and Bill to Quiet Title."³ She alleged that "the Senez Property is ... marked at its boundary with the Collins Property by a one-foot wide block wall and a wooden privacy fence," and that she "and her predecessors in title for more than the prescriptive period of twenty (20) years have maintained the lawn, erected and/or maintained fencing and/or the aforedescribed block wall and/or have otherwise exercised actual peaceable possession" of the disputed area. Further, appellant contended that her predecessors' possession, as well as her own, had been "actual, open, notorious, exclusive and hostile, and that said possession has been continuous and uninterrupted," thus satisfying the requirements for adverse possession.

The matter was heard by the circuit court, sitting without a jury, in December 2006.⁴ All of the parties testified at trial.⁵

At trial, the court received into evidence as a joint exhibit the de bene esse deposition testimony of Arthur Myers, the prior owner of the property acquired by appellant. In his deposition, Mr. Myers stated that he purchased the property with his wife in 1980, but did not secure a boundary survey at that time. Mr. Myers recalled that the Wall (or a predecessor to it) was already in place when he purchased the property now owned by appellant. He did not know who originally constructed the Wall, however. Mr. Myers did not realize that the Wall did not track the property line, and he assumed that the Wall was situated on his neighbors' side of the boundary. According to Mr. Myers, in the late 1980's a portion of the original Wall fell down; the Cooks had the Wall rebuilt in the same footprint, at their own expense, with a better foundation and "weep holes" to allow drainage.

Throughout the time the Myers owned what is now the Senez Property, both when the original Wall existed and after the construction of the replacement Wall, the Myers maintained the property up to the Wall, doing yard maintenance and the like. According to Mr. Myers, the Cooks never objected to his maintenance of the property up to the Wall.

Mr. Myers recounted that he constructed the boat ramp while he lived at the property.⁶ Although Mr. Myers did not obtain a boundary survey at that time, he claimed that he never received any complaints that the boat ramp encroached on the Cooks' property. Mr. Myers never expanded the ramp, and had no need to perform significant maintenance on it.

In addition, Mr. Myers constructed a wooden sea wall, or bulkhead, across the eastern side of his property, fronting on Norman Creek. At the same time, he constructed a wooden bulkhead on the Cooks' side of the boat ramp, extending to the concrete sea wall along the east side of what is now the Collins Property. He explained that, due to erosion from the creek, "we were losing property."⁷ Mr. Myers testified:

The only discussion I had with George [Cook] was when I was gonna build the bulkhead the water had started eroding around his bulkhead and I say, "Well, I'll tie it into your bulkhead so the water can't get down there." You see, it was undermining his bulkhead, so that's why, if you see that there's some curve in this when I brought it back to meet his bulkhead.

Mr. Myers allowed many neighbors to use the boat ramp, "with permission." In particular, he recalled that he allowed various neighbors to use the ramp during a period in which "the local [public] ramp closed, and until it was opened again, I allowed them to come down and put their boats in." According to Mr. Myers, this use was infrequent, and "anyone [who] would launch their vessel from [his] ramp did so after first securing [Mr. Myers's] permission." Mr. Myers was emphatic that the ramp "was not open to the public [such] that they could wander down [the] property."

With regard to the Cooks, however, Mr. Myers asserted that there was no formal "understanding." In his words, "I'm a neighbor and I offered it." Mr. Myers also assisted the Cooks with launching boats from the ramp. When asked whether he recalled seeing anyone from the Cook family ever cross the Wall and use the boat ramp, Mr. Myers said: "I wouldn't have thought anything of it if they did." Mr. Myers indicated that, "to his recollection," after appellees purchased the Collins Property "they never used" the ramp.

Shortly before Mr. Myers sold his property to appellant in 2000, he obtained a survey of the property, to ensure that a fence he intended to construct on the southern boundary of his property (i.e., the opposite side from the Collins Property) correctly followed the property...