Shuggars v. Brake, 589

• Decision Date: 09 November 1967
• Docket Number: No. 589,589
• Citation: 248 Md. 38,234 A.2d 752
• Parties: William T. SHUGGARS et ux. v. Philip I. BRAKE et al.
• Court: Maryland Court of Appeals

Page 38

248 Md. 38

234 A.2d 752

William T. SHUGGARS et ux. v. Philip I. BRAKE et al.

No. 589.

Court of Appeals of Maryland.

Nov. 9, 1967.

Charles W. Woodward, Jr., Rockville, for appellants.

Robert Anthony Jacques, Rockville, for appellees.

Before HAMMOND, C. J., and HORNEY, MARBURY, BARNES and FINAN, JJ.

HORNEY, Judge.

Whether or not the appellees (Philip I. Brake, et ux. and Eugene R. Gaither, et ux.) have an easement by prescription over a roadway on the land of one of the appellants (Catherine I. Shuggars), is the only question presented by this appeal.

Catherine I. Shuggars, formerly Hager, is the owner of the house and lot ¹ located in the Damascus District of Montgomery County, where she now resides with her present husband, William T. Shuggars, and the adjoining one-half acre schoolhouse lot, ² which she and her former husband acquired from the county Board of Education in 1940. Both lots front on State Route 27 and the school lot is bounded by the easterly line of the Gaither lot. The disputed roadway lies within the bounds of the school lot and extends the whole depth of the lot from the highway to the Gaither lot.

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

Eugene R. and Mary E. Gaither are the owners of a lot, ³ containing one and one-half acres, located off the state highway at the rear of the school lot. The only access to the Gaither lot from the highway is the disputed roadway along the northerly line of the school lot.

Philip I. and Elaine L. Brake are the owners of two lots or parcels of land, ⁴, ⁵ containing eight and six-tenths acres in the aggregate, lying to the south and west of the Gaither lot with a narrow strip of land along the northerly line of the Gaither lot (which together with a 'deeded' right of way over the Gaither lot extending from the westerly end of the disputed roadway in a northerly direction to the easterly end of the above mentioned narrow strip of land) is used by the Brakes as a roadway to and from their property to the disputed school lot roadway leading to the state highway.

On behalf of the appellees (the plaintiffs below), there was testimony by Eugene Gaither to the effect that he and his family had resided no lot '(3)' since 1932; that they acquired title to the property in 1944; that the school lot roadway had always been used as a means of access to the highway and no one had ever told them not to use it; that the road was there when the schoolhouse was in use; that it was the only road in and out of the property and led directly to his house; that when at one time, posts were erected across the roadway for the purpose of fencing in animals, he had removed them and resumed using the road; that throughout most of the time he and his wife had resided on the property he had owned an automobile and, except for the last four years, had travelel back and forth over the road; that thereafter he and his wife usually used the roadway on foot; and that friends often picked them up to go for rides in their automobiles.

Mary Gaither also testified that she began to reside on the property when she was married in 1932; that she had used the road continuously both before and after the Hagers bought the school lot in 1940; that she was never told not to use it; and that she never asked permission to use it except on one occasion when she had planned a church social at her house.

Edith M. W. Jackson, the eighty-three year old former owner of the seven and six-tenths acre parcel '(4)' testified that what is now the Brake property was acquired by her mother in 1878; that she remembered the schoolhouse and had used the roadway to go to school; that she and her family had used the road continuously from at least 1907, the year of her marriage, and possibly as early as 1878; that the disputed road was reached by means of the granted right of way over the Gaither lot; that after the house on the property burned down in 1952 or 1953 and she had gone to live with a sister, a nephew had stayed on the property in a house that had not burned until after she sold it to the Brakes; and that she had continued to go back to the property from time to time to see after the chickens and to get different things.

Philip Brake also testified that he acquired parcel '(4)' in August of 1961 from Edith Jackson; that at the time there was a roadway along the east line of the Gaither lot (mentioned in the deed from Atsie N. Gaither to Eugene and Mary Gaither) which he used from time to time after purchasing the property to get to the disputed roadway leading to the state highway; and that while he was never forbidden to use the school house roadway until 1964, he had been informed before buying the property that there was no right-of-way of record across the school lot. After he was forbidden to use the roadway he acquired a right-of-way from lot '(5)' across the adjoining tract of A. L. Tuckman, which gave him access to the state highway over a more circuitous and unimproved route that is impassable in wet weather. Several photographs taken by Brake from both directions show a well defined and used roadway leading from the highway to the Gaither property.

On behalf of the appellants (the defendants below), Catherine Shuggars testified to the effect that her former husband had made a roadway and put a fence on each side of it; that the conversation she had with Philip Brake in 1964 about the use of the roadway resulted in an altercation between them; and that afterward she threw three cement blocks in the roadway and finally had him arrested for trespassing. She admitted that the roadway was being used by the Gaithers when she and her former husband moved to their home property in 1937.

Oliver Hager, a son of Catherine Shuggars, testified that there were no buildings on the school lot '(2)'; that while there was a roadway along a part of the northerly or far side of the school lot, it was put there by his father as a part of a semi-circular driveway on the rear of both lots which lead to a workshop on the home lot '(1)' and then back to the state highway on the southerly side of the residence; that there never was a roadway along the north line until his father constructed the driveway for the use of the home property; and that at one time he had put posts completely across the roadway but that the Gaithers had removed them. He admitted that the roadway was the only one suitable for motor vehicle traffic; and that the Gaithers had used it for that purpose.

William Shuggars testified that when he talked to Philip Brake in 1961 he told him that there was no right-of-way through the school lot; that he and his wife had let the Brakes use the roadway without restrictions until they began widening it in front of the Gaither house; that no trespassing signs were then put up near the entrance; that he had never seen the Gaithers either repair or improve the roadway; and that the Gaithers had three ways of getting out-the present roadway, over the recently acquired Brake easement from lot '(5)' and through the property of the mother of Eugene Gaither situated south of the Shuggars home lot '(1)'.

As there is no controversy with respect to the existence of a right of way across the Gaither lot between the Brake property and the westerly end of the school lot roadway, only the road leading from the state highway to and from the Gaither lot is in dispute.

The chancellor found that even though the statute of limitations did not run so long as the Board of...