Sibbel v. Fitch

• Decision Date: 14 December 1943
• Docket Number: 8.
• Parties: SIBBEL et ux. v. FITCH et al.
• Court: Maryland Court of Appeals

34 A.2d 773

182 Md. 323

SIBBEL et ux. v. FITCH et al.

No. 8.

Court of Appeals of Maryland

December 14, 1943

Appeal from Circuit Court, Baltimore County; J. Howard Murray Judge.

Action by George Fitch and Annie E. Reeves against Louis Sibbel Jr., and Wilhelmina Sibbel, his wife, to establish a right of way over property of defendants. From a decree granting the relief prayed, the defendants appeal.

Reversed and remanded, with directions.

Z. Townsend Parks, Jr., of Baltimore (Howard C Bregel, of Baltimore, on the brief), for appellants.

George M. Berry, of Towson, for appellees.

Before SLOAN, C.J., and DELAPLAINE, COLLINS, MARBURY, GRASON MELVIN, ADAMS, and BAILEY, JJ.

ADAMS Judge.

Appellees filed their bill in equity to have the court establish over the property of the appellants a right of way to and from a family graveyard, title to which is now vested in the appellees and a third person not a party to the proceeding, and for other relief. The court granted the relief prayed and from the decree this appeal was entered.

In 1866 Thomas and John E. Fitch, appellees predecessors in title, conveyed a tract of land containing 91 1/4 acres to John Sibbel and wife, 'saving thereout the family graveyard and reserving also a right of way to and from the graveyard'. Title to the family graveyard ultimately vested in the appellees and Mary A. Barsotti, as tenants in common. In 1884, a tract of 15 acres out of the 91 1/4 acre tract was conveyed to Louis Sibbel and wife, and in 1917, said 15 acre tract was conveyed to Louis Sibbel, Jr., and wife, the present owners thereof, and appellants here.

From the time of the original deed in 1866 down to at least 1918, the right of way to the family graveyard ran in an easterly direction between the house and barn that were on the farm in 1866, and after passing the barn turned north and ran to the graveyard. This road will be hereafter referred to as the 'Old Road'.

In 1917, Louis Sibbel, Jr., acquired title to the aforesaid 15 acre tract from his father, and he at that time built the house which now stands on said 15 acre tract. He testified that he used the old road to get to his house for 8 years, and in 1925 started to build a new road over the 15 acre tract owned by him, and finished it in 1926. In this he is corroborated by his wife, Mrs. Wilhelmina Sibbel, and his brother, John Sibbel. There was some evidence on the part of the complainants that they used the new road as early as 1918. The old road was used, however, to haul in the material to erect a fence around the graveyard. The witness, Ross W. Fitch, fixed the time of that occurrence as follows: 'That was around '22 or '23, I just can't recall, * * *, a year or two years or three years before he (James Murray) died'. James Murray died in 1926, and the uncontradicted evidence was that his funeral was the first to traverse the new road. Between 1926 and 1939 there were seven funerals, all of which went over the new road, and in 1939 the appellants erected barriers to prevent anyone from passing from their driveway, which was the new road, to the graveyard, and appellants denied that appellees had any right to use the new road.

Complainants alleged that the defendants acquiesced in and consented to the use of the new road by the complainants, but the defendants denied that they acquiesced in the use of the new road by the complainants, and there was testimony pro and con on this point.

The principal question for decision is whether the appellees have acquired any vested right in the new road. The deed of 1866 reserved a right of way in general terms, without defining its location by metes and bounds. For more than half a century the old road was used as the right of way reserved, and this raises an inference that the owners of the dominant and servient tenements had agreed upon the metes and bounds of the right of way reserved, and its location thereby became as definite and fixed as if it had been described in the deed of 1866 by metes and bounds. There is every indication that the old road was in existence prior to 1866, and was the existing right of way to the family graveyard at the time the deed of 1866 was executed.

'Where a way is granted without fixing its location, but there is a way already located at the time of the grant, such way will be held to be the location of the way granted unless a contrary intention appears.' 28 C.J.S., Easements, § 80 subsec. b.

This principal of law is well settled, and after the location of the right of way which has been granted in general terms has been defined and fixed by the owners of the dominant and servient tenements by user in a particular location over a long period of time, it becomes as definitely established as if the grant or reservation had so located it by metes and bounds and the location of the right of way as thus defined can only be changed...