Whittington v. Mann
| Decision Date | 09 November 1956 |
| Docket Number | No. 18,18 |
| Parties | Alrano WHITTINGTON v. Oscar MANN and Thomas L. Clark. |
| Court | Maryland Court of Appeals |
John G. Remey, Deale, for appellant.
George B. Woelfel, Annapolis, for appellee Oscar Mann.
Emanuel Klawans, Annapolis, for appellee Thomas L. Clark.
Before BRUNE, C. J., COLLINS, WILLIAM L. HENDERSON and HAMMOND, JJ., and GEORGE HENDERSON, Special Judge.
Oscar Mann, one of the appellees, filed a bill for specific performance of a contract by Thomas Clark, the other appellee, to purchase a lot of ground contiguous to a platted development called Herring Bay View, which Mann had subdivided into lots. Clark's answer alleged that Alrano Whittington, the appellant, owner of two lots in Herring Bay View, claimed a right of way thirty feet wide along two sides of the piece of ground he had bought. He filed a cross-bill against Mann for the diminution in the value of the lot that Whittington's right of way, if established, would cause, and interpleaded Whittington, who, in his answer, asserted claim to the right of way across the lot in question. The Chancellor held that the right of way did not pass over the lot but, rather, ran to the east of it, as laid out on a recorded plat of Herring Bay View, and granted specific performance against Clark, the purchaser.
Whittington's appeal urges that the right of way does pass over the lot so that the decree was erroneous and that the Chancellor should not have considered Mann's testimony that but one right of way was intended and should have admitted in evidence an unrecorded plat which, it is claimed, shows Mann's intent that the course of the right of way be as appellant claims it is.
In 1927 Mann recorded a plat of Herring Bay View showing lots numbered from 1 to 77 abutting on streets, with three unnumbered pieces of land. His testimony was that the unnumbered pieces were mere marshes that some day he hoped to fill but which were not in the subdivision. One of these pieces is the one Mann sold to Clark. This is the only plat that has been recorded and all sales or conveyances of the land were made by reference to the plat.
The plat shows part of a county road running east and west. It shows further a private road thirty feet wide extending south from the county road in a straight course to the waters of Rockhole Creek. For the first 357 feet south from the county road, the private road runs along the west line of Herring Bay View and is parallel with the east side of the property of Virgil Rogers. At this point the lot sold by Mann to Clark comes into the picture. From a point 357 feet south of the county road to Rockhole Creek, a distance of approximately 200 feet, the private road runs through Mann's land with Herring Bay View to the east and the lot sold by Mann to Clark to the west. The appellees contend that the private road shown on the plat is the thirty foot right of way to which Whittington is entitled.
Whittington admits that the right of way enjoyed by him is the private road shown on the plat for the first 357 feet south from the county road. He contends, however, that beginning 357 feet south of the county road it turns southwesterly at about a forty-five degree angle and runs along the northwest line of the Mann-Clark lot, which is also the southeast line of the Virgil Rogers land, for a distance of 259.80 feet, and that it then turns at right angles and runs southeasterly parallel with that line of the Mann-Clark lot for 87.8 feet to Rockhole Creek. The right of way claimed by him is over 700 feet long.
Whittington's claim arises from two deeds to predecessors in title, Harry C. Horton and wife. By the first deed, dated May 13, 1936, Mann conveyed to Horton and wife that lot 'which is designated as Lot No. 69 on the Plat of Herring Bay View, which Plat is duly recorded among the Plat Records of Anne Arundel County in Plat Book F.S.R. No. 1, folio 21.' The grant of the right of way was in this language: 'And particularly the right of way over a strip of land 30 feet in width, running along the North side of Grantors' property, parallel with the East side of property of Virgil Rogers, to the waters of Rockhold Creek, said strip of land being about 554 feet in length.'
The second deed was dated June 23, 1936, and by it Mann conveyed to the Hortons all that lot of ground 'which is designated as Lot No. 70 on the Plat of Herring Bay View, duly recorded among the Plat Records of Anne Arundel County in Plat Book F.S.R. No. 1, folio 21.' The grant of the right of way was in the following language: 'Together with a right of way over a strip of ground 30 feet in width running along the northwest side of the property of the said Oscar Mann, parallel with the east side of the property of Virgil Rogers, to the waters of Rockhold Creek, said strip of land being about 554 feet in length.'
There is an obvious ambiguity in the description of each of the deeds from Mann to the Hortons. Neither the north nor northwest side of Mann's property runs parallel with the east side of the property of Virgil Rogers, so it is a concessum in the case that in the deeds of lots 69 and 70, respectively, north and northwest side should read west side. The common lines of the Mann and Rogers property, other than the west and east lines respectively, do not fulfill any description in the Horton deeds. It is conceded, too, that at no time has either the right of way on the plat or the right of way claimed by Whittington existed on the ground, so that there is no physical evidence as to the intention of the parties. It was shown that Rockhole Creek at the end of the right of way on the plat was filled up by dredging operations of the Federal Government in 1941, but that it is still open along the westernmost 70 feet of the property which Clark contracted to purchase from Mann. However, when the Horton deeds were executed and delivered, there was water in Rockhole Creek at the end of the 30 foot right of way on the plat, as well as at the edge of the Clark property, so that no inference can be drawn that access to otherwise unavailable water was...
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