WASHINGTON LAND v. POTOMAC RIDGE

• Decision Date: 01 March 2001
• Docket Number: No. 2850,2850
• Citation: 137 Md. App. 33,767 A.2d 891
• Parties: WASHINGTON LAND COMPANY, v. POTOMAC RIDGE DEVELOPMENT CORPORATION et al.
• Court: Court of Special Appeals of Maryland

767 A.2d 891

137 Md. App. 33

WASHINGTON LAND COMPANY, v. POTOMAC RIDGE DEVELOPMENT CORPORATION et al.

No. 2850, Sept. Term, 1999.

Court of Special Appeals of Maryland.

March 1, 2001.

William C. Wantz, Hagerstown, for appellant.

John H. Urner (Mark K. Boyer, Urner, Nairn & Boyer, LLC, and Roger Schlossberg, on the brief), Hagerstown, for appellees.

Argued before THIEME,¹ KENNEY, and JAMES S. GETTY (Ret'd, Specially Assigned), JJ. THIEME, Judge.

Appellant Washington Land Company brought this action in the Circuit Court for Washington County, seeking an injunction to prevent appellee Potomac Ridge Development Corporation from using for its condominium project certain water and sewer utility lines. Appellant installed these lines in 1974 in an easement purchased from the Lorich Corporation over land owned by that company. The court below ordered the City of Hagerstown, also an appellee here, and Lorich to be joined as additional parties.² Appellant cross-claimed against the City and elected a trial by jury. Appellees challenged the right to trial by jury, and after the court denied their motion, the trial began. At the conclusion of appellant's case, both appellees moved for judgment, and the court granted those motions. Appellant noted a timely appeal, and the City and Potomac Ridge noted cross-appeals. Appellant asks:

1. Did the court below err when it found for appellees based on implicit dedication?

2. Did the court below err when it found for appellees based on prescription?

To these questions, we answer "yes," and we remand to the Circuit Court for reconsideration of these issues by a jury. On cross-appeal, appellees ask:

1. Did the court below err when it denied appellees' motion that appellant was not entitled to trial by jury?

2. Did the court below err when it denied appellees' motion for judgment based on laches?

3. Did the court below err when it denied appellees' motion for judgment based on limitations?

4. Did the court below err when it denied appellees' motion for judgment based on equitable estoppel?

We decline to reach these other questions, because our remand on appellant's questions disposes of this case entirely.

Facts

In 1970, appellant Washington Land Company bought the Martz farm, located east of Hagerstown in Washington County, intending to develop the land for apartments and single-family homes. To connect the nearby municipal water and sewer utility services operated by the City of Hagerstown, appellant purchased in 1972 from the Lorich Corporation an easement of approximately two thousand linear feet connecting the Martz farm with U.S. Route 40, a divided highway.

After it obtained the easement, appellant applied to the City of Hagerstown to secure the necessary utility connections. In the negotiations that followed, the City asked that appellant dedicate the lines to the City for no consideration, and that appellant pay development connection fees, i.e., "tap fees," for using those lines. We note that appellant paid for construction of the lines. In turn, appellant asked the City for consideration. To allow the City to control the lines, appellant requested a credit against future tap fees in an amount equal to their construction costs, $149,450.

While the lines were under construction, the City Attorney met with appellant and pressed the City's request for dedication. Appellant and the City never reached any agreement, but following the meeting, water and sewer connections were made. Appellant neither received nor executed any deed, plat, or other instrument of dedication.

In the years that followed, appellant paid the tap fees to the City and continued to develop the lands that comprise the apartment community and residential subdivisions known as "Londontowne" and "Fairway Meadows." These developments received City water and sewer services via the easement.

In 1995, appellant learned that appellee Potomac Ridge had submitted plans to the Washington County Planning Department for the development of a parcel next to Londontowne. Drawings submitted to the County showed that Potomac Ridge intended to connect its utility lines to the lines in Londontowne, which were, in turn, served by the water and sewer lines installed by appellant in the easement.

To protect the remaining development capacity of its water and sewer lines, appellant advised Potomac Ridge of its position on their use. It also wrote the City's water and sewer departments, informing them of its objections to appellee's use of the lines. It received no responses to its letters. Meanwhile, Potomac Ridge continued its condominium development, and after paying to the City connection fees of $149,165, established utility connections to the City water and sewer services by installing pipes under Landis Road and tapping into the lines in Londontowne.

While construction at Potomac Ridge was underway, appellant filed the action sub judice to enjoin this connection from being made. Potomac Ridge, in turn, petitioned the court to require Lorich and the City to be joined as additional parties, and, when the court so ordered, appellant filed a cross-claim against the City seeking disgorgement of tap fees collected from Potomac Ridge. Appellant elected a jury trial.

At trial, appellant asserted that the City had never acquired title to the Lorich lines nor had it acquired an easement over the same, by dedication, condemnation, or otherwise. The City thus lacked authority, it argued, to permit Potomac Ridge to use the lines. The City argued that it implicitly owned the lines and enjoyed an easement because those lines were connected to its water and sewer systems, whether any formal dedication or transfer of rights had ever taken place. At the conclusion of appellant's case, Potomac Ridge and the City moved for judgment under Maryland Rule 2-519(b). The court below granted judgment and Washington Land noted this appeal.

Discussion

When a motion for judgment comes at the conclusion of plaintiff's case in a jury trial, Maryland Rule 2-519(b) governs its disposition:

When a defendant moves for judgment at the close of the evidence offered by the plaintiff in an action tried by the court, the court may proceed, as the trier of fact, to determine the facts and to render judgment against the plaintiff or may decline to render judgment until the close of all the evidence. When a motion for judgment is made under any other circumstances, the court shall consider all evidence and inferences in the light most favorable to the party against whom the motion is made.

In Thodos v. Bland, 75 Md.App. 700, 542 A.2d 1307 (1988), we delineated the judge's role in deciding such a motion from that of the jury:

Although the trial judge, in ruling on a motion for judgment, must assess the sufficiency of the evidence to generate a jury question, once he or she has done so, it is up to the jury to determine the ultimate question, whether the burden of proof has been met.

In making its determination, the jury assesses and evaluates the weight to be assigned to the evidence presented to it and decides its effect. Neither the trial court nor this Court is permitted to substitute its evaluation of that evidence for that of the jury. To do so would be an invasion of the jury's province.

Id. at 713-14, 542 A.2d 1307 (citations omitted). On review, we do essentially what the trial court should have done, by seeking to determine whether the evidence was sufficient to have created a jury question. See, e.g., Garrison v. Shoppers Food Warehouse, 82 Md.App. 351, 353-57, 571 A.2d 878 (1990)

; James v. General Motors Corp., 74 Md.App. 479, 484-85, 538 A.2d 782 (1988); Pahanish v. Western Trails, Inc., 69 Md.App. 342, 353, 517 A.2d 1122 (1986).

Appellant contends that its evidence was sufficient to raise a jury question as to whether the lines had been had been dedicated to the City and as to whether an easement had been created. For this reason, it claims, the court erred in granting judgment for appellees at the end of appellant's case. We agree and hold that the evidence, considered in the light most favorable to appellant, was sufficient to justify sending both issues to the jury, and we thereby remand.

I

The court below found that a common law dedication for the water and sewer lines in question took place in 1974 and 1975. Appellant argues, and we agree, that common law dedication may not have taken place.³ Appellant presented credible evidence that the City did not accept the terms of appellant's formal offer, and the jury should have been given an opportunity to weigh that evidence.

A

When it determines whether a landowner has dedicated his land at common law to public use, the court must perform a fact-intensive analysis. It must consider "declarations of the landowner, his intentions as manifested by his acts, and all the other circumstances of the case." Smith v. Shiebeck, 180 Md. 412, 420, 24 A.2d 795 (1942). A completed common law dedication requires an offer and an acceptance, Town of Glenarden v. Lewis, 261 Md. 1, 2, 273 A.2d 140 (1971), but whether dedication actually occurred turns upon a finding of intent by the owner to give his lands over to public use. Blank v. Park Lane Ctr., Inc., 209 Md. 568, 574, 121 A.2d 846 (1956) ("Implied dedication is made up of acts and conduct of the owners of land with respect to a way which estop him from denying that his intention was to dedicate the way to the public. The intention of the owner is the governing test."). Expression of that intent must be clear and unequivocal. See, e.g., Department of Natural Res. v. Mayor & Council of Ocean City, 274 Md. 1, 8, 332 A.2d 630 (1975)

("[The chancellor] concluded that dedication could not be implied, because there was no proof of a clear and unequivocal manifestation of an intent to dedicate. We think this conclusion was compelled by Toney Schloss v. Berenholtz, 243 Md. 195, 204-05, 220 A.2d 910, 914 (1966); Canton Co. v. Baltimore, 106...