Weeks v. Lewis

• Decision Date: 12 December 1947
• Docket Number: 55.
• Citation: 56 A.2d 46,189 Md. 424
• Parties: WEEKS et al. v. LEWIS et al.
• Court: Maryland Court of Appeals

56 A.2d 46

189 Md. 424

WEEKS et al. v. LEWIS et al.

No. 55.

Court of Appeals of Maryland

December 12, 1947

Appeal from Circuit Court, St. Mary's County; John B. Gray, Jr. Judge.

Suit by Fulton Lewis, Jr., and another, against Mangum Weeks and another, to enjoin defendants, their agents, servants, and employees, from trespassing on plaintiffs' land. From decree granting relief prayed, the defendants appeal.

Affirmed.

William O. E. Sterling, of Leonardtown (John H. T Briscoe, Philip H. Dorsey, Jr., and Dorsey & Sterling, all of Leonardtown, on the brief), for appellants.

William Aleck Loker, of Leonardtown (Robert E. Wigginton and Loker & Wiginton, all of Leonardtown, on the brief), for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

HENDERSON Judge.

This appeal is from a final decree of the Circuit Court for St Mary's County, in equity, enjoining the appellants, their agents, servants and employees, from trespassing upon the lands of the appellees. The decree was signed after submission upon the pleadings and exhibits and an agreed statement of facts, the chancellor having previously sustained a demurrer to the appellants' answer to the bill of complaint. No question of jurisdiction was raised in this Court, or in the court below. Compare Punte v. Taylor, Md., 53 A.2d 773, 777.

The parties to the cause own contiguous properties in St. Mary's County, including two parcels, which together constitute Scotch Neck, a peninsula extending into the waters of Cuckold Creek, a tributary of the Patuxent River. Both parcels run the full length of the peninsula and are separated by a private roadway which was established by a partition deed between the then owners in 1920. This deed provided that 'the road which is the divisional line between the properties * * * shall be used in common' by the parties, their heirs and assigns 'and that said road shall not be less than 14 feet in width * * * and shall be kept in repair by both parties, their heirs and assigns.' In 1936 this roadway became impassable at one point, due to erosion following the hurricane of 1933, and since 1936 the appellees have used a roadway roughly parallel to the original road, lying entirely on the property now owned by the appellees.

The answer does not allege any express agreement between the parties to relocate the original common roadway, but alleges that the parties, since the year 1936, have 'jointly used in lieu of and as a substitute for said private road [on the division line] a new road entirely over the said Thomas Bennett's land * * * along the side of and parallel to the said private road,' and that the new road has been 'used continuously in lieu of and as a substitute for the portion of the said private road leading from near the said barns to said 'Yankee Point"; that the use was 'apparent from the physical appearance of said land,' that the complainants 'acquiesced in the use of said new road,' and that the 'change in easement' is binding upon them. The appellants admit that neither they nor the appellees have made improvements or incurred any expense whatever in connection with the new roadway. There is no claim that the new road is a way of necessity, or that the old road could not be restored to service by repair. Instead of repairing the old road, or calling upon the appellees to do so, they have simply deviated from the old road to serve their own convenience, without asking leave of the appellees or their predecessors in title.

The case of Sibbel v. Fitch, 182 Md. 323, 34 A.2d 773 774, appears to be directly in point. In that case it was contended that a...