Stuart v. Johnson

• Decision Date: 18 November 1942
• Docket Number: 10.
• Parties: STUART et ux. v. JOHNSON.
• Court: Maryland Court of Appeals

28 A.2d 837

181 Md. 145

STUART et ux. v. JOHNSON.

No. 10.

Court of Appeals of Maryland

November 18, 1942

Appeal from Circuit Court, Anne Arundel County; Ridgely P. Melvin Judge.

Action by James Austin Stuart and wife against Mamie T. Johnson, to enjoin defendant from continuing the use of a roadway through plaintiffs' property. From a decree dismissing the bill plaintiffs appeal.

Affirmed.

George E. Rullman, of Annapolis, for appellants.

Benjamin Michaelson and William W. Townshend, Jr., both of Annapolis for appellee.

Before BOND, C.J., and SLOAN, JOHNSON, DELAPLAINE, COLLINS FORSYTHE, MARBURY, and GRASON, JJ.

SLOAN Judge.

The plaintiffs, James Austin Stuart and Sarah Cross Stuart, his wife, filed a bill against Mamie T. Johnson, defendant, to enjoin the latter, who owned and occupied an adjoining property, from continuing the use of a roadway through property in Anne Arundel County which the plaintiffs had recently purchased. From a decree dismissing the bill, the plaintiffs appeal.

The plaintiffs acquired the property from Katharine Taylor of Philadelphia, Pennsylvania, through her agent, Richard A. Neal, with whom the plaintiffs dealt. It was an 8-acre tract, through a narrow portion of which, 146 feet in length and 7 feet in width, the defendant had been using a roadway described by a surveyor, J. Revell Carr, as a road marked on a plat (not in the record) as an existing used road that leads from Mamie Turner Johnson's house down to the road that runs out to the county road.

The information we get from the record is none too definite as to the location of this road. At the time of the case all of the participants knew the property involved and the alleged easement in question. Even the Chancellor had viewed the premises. On appeal, the only source of information open to this court is the printed record, and our view of the situation depends upon the information thus relayed from the court room to us. The witnesses all seemed to know what the controversy was about; namely, a piece of road 146 feet long, about 7 feet wide, used by the defendant through the land of the plaintiffs.

There was no question of the jurisdiction between law and equity raised below, and, of course, it cannot be raised here. Code 1939, Art. 5,§ 10. There is no disagreement as to the requirements of a title by prescription as defined in Cox v. Forrest, 60 Md. 74; Peper v. Traeger, 152 Md. 174, 180, 181, 136 A. 537; Bonsal v. Baltimore & O. R. Co., 138 Md. 309, 314, 113 A. 751. The defendant answered, admitting her adverse and hostile use of the road, and asserted that it was a way of necessity; that it was her only way out to the public roads. It is not shown or claimed that plaintiffs and defendant held from or through a common grantor, so that there could not be a way of necessity. Oliver v. Hook, 47 Md. 301, 310. The defendant's claim of title to the easement is by over twenty years adverse, continuous, uninterrupted notorious user. The burden is on the plaintiffs to show that the defendant is a trespasser, but on the latter to show that she has been a continuous trespasser for the prescriptive period, at least twenty years. Oliver v. Hook, 47 Md. 301, 311; Hansel v. Collins, 180 Md. 209, 23 A.2d 686, 690. The question, therefore, as it was before the chancellor, becomes one of fact.

It is evident that before Major Stuart bought, he had inspected the premises and saw for himself that there was a used way through the property. He inquired of the owner's agent about this road and was assured it didn't mean anything, and that no one had acquired any rights of ownership of a way through the property. The agent, Neal, when the case came to trial, questioned as to the time of the user of the road, was not very definite; his response was that he 'never took account of it'--he didn't think it had been twenty years.

The testimony of the defendant was, that she had been born and reared on the land which she now owns and occupies. After the house in which she lived as a child and grown girl had been...