Stair v. Miller

• Decision Date: 09 July 1982
• Docket Number: No. 1378,1378
• Citation: 447 A.2d 109,52 Md.App. 108
• Parties: , 36 A.L.R.4th 764 Charles A. STAIR, et ux. v. William G. MILLER et al.
• Court: Court of Special Appeals of Maryland

Page 108

52 Md.App. 108

447 A.2d 109, 36 A.L.R.4th 764

Charles A. STAIR, et ux. v. William G. MILLER et al.

No. 1378.

Court of Special Appeals of Maryland.

July 9, 1982.

Sidney Schlachman, Baltimore, with whom were George E. Reuling and Steinberg, Schlachman, Potter, Belsky & Weiner, Baltimore, on the brief, for appellants.

Elwood E. Swam, Hampstead, for appellee, Miller.

Marker J. Lovell, Westminster, with whom was David H. Taylor, Westminster, on the brief, for appellees, Ralph E. Koontz and Treva I. Koontz.

Argued before MORTON, THOMPSON and LISS, JJ.

THOMPSON, Judge.

Charles A. Stair and Lorraine D. Stair, his wife, appellants, complain because the chancellor, Luke K. Burns, Jr., sitting in the Circuit Court for Carroll County, granted William G. Miller, one of the appellees, a right-of-way by necessity over their property instead of that of Ralph and Treva Koontz, also appellees.

The appellee, Miller, is the owner of six acres of land without road frontage. This land is separated from the Pleasant Valley Road by land of Ralph and Treva Koontz, and from Hughes Shop Road by land of the appellants and others. The appellants' first assertion is:

"I. An Equity Court Should Refuse to Create An Easement Over the Land of One Neighboring Landowner When An Easement Currently Exists Over the Land of Another Neighboring Landowner."

The Stairs contend the chancellor erred in granting the way of necessity over their land when there was a right-of-way existing over the land of the Koontzes. The argument is without merit. In order to establish a right-of-way by necessity, it must be demonstrated that the land for the benefit of which the easement is claimed and that over which it is claimed belonged to the same person at the same time. Michael v. Needham, 39 Md.App. 271, 384 A.2d 473, cert. denied, 283 Md. 736 (1978). Although all the properties herein involved were at one time owned by a single ownership, the Koontz land was sold off prior to that of the lands of the remaining parties hereto; therefore, there can be no right-of-way by necessity over the Koontz land. Oliver v. Hook, 47 Md. 301 (1877). See also, Hancock v. Henderson, 236 Md. 98, 202 A.2d 599 (1964); and Johnson v. Robinson, 26 Md.App. 568, 338 A.2d 88, cert. denied 276 Md. 748 (1975). There is no contention that there was an express grant of a right-of-way over the Koontz land and there is no evidence which would establish a right-of-way by prescription.

"II. When Locating An Easement By Necessity, A Trial Court Should Make Specific Findings Concerning the Degree of Burden Placed on the Servient Tenement."

The appellants assert that the trial judge failed to consider whether the right-of-way specified was the least burdensome and most reasonable route across appellants' land. We agree.

In directing the location of the easement, the trial court ordered:

FURTHER ORDERED AND DECREED that said Right of Way by Necessity shall run from the southwest portion of the Miller tract in a westerly direction for a distance of approximately eight hundred and seventy-five (875) feet and twenty (20) feet wide across the property of the Respondent, Charles A. Stair and Lorraine D. Stair, to Hughes Shop Road, in direct line with the depicted seven (7)-foot farm road on the R.T.F., Inc. survey of the William G. Miller property...."

That a road currently exists on the appellants' property does not conclusively establish that particular road as the right-of-way. It is only where the parties agree, either expressly or by implication, that that road is to be the right-of-way will the route be so enforced. See, Sibbel v. Fitch, 182 Md. 323, 34 A.2d 773 (1943). While William Miller, appellee, testified as to the landlocked status of his property, he at no time testified that he ever made use of appellants' road as the means of ingress or egress to and from his property. ¹ Thus, there was no implied agreement. As to the absence of an express agreement, Charles Stair testified that he had cleared the road solely for his own convenience and use in farming his property. Stair further stated that, from the inception of his grading of the road he had placed a large "No Trespassing" sign which, to his knowledge, had not been violated. Thus, we see no express agreement. It appears that the trial judge designated appellants' roadway for no reason other than its present existence. The appellants should not be so burdened merely because they have...