Zimmerman v. Summers

• Decision Date: 10 January 1975
• Docket Number: No. 75,75
• Citation: 24 Md.App. 100,330 A.2d 722
• Parties: Henry D. ZIMMERMAN et ux. v. Gorman Franklin SUMMERS et ux.
• Court: Court of Special Appeals of Maryland

Page 100

24 Md.App. 100

330 A.2d 722

Henry D. ZIMMERMAN et ux. v. Gorman Franklin SUMMERS et ux.

No. 75.

Court of Special Appeals of Maryland.

Jan. 10, 1975.

Reginald D. Malloy, Ellicott City, for appellants.

Orrin J. Brown, Ellicott City, for appellees.

Argued before ORTH, C. J., and POWERS and GILBERT, JJ.

POWERS, Judge.

This case illustrates the serious consequences of careless or uninformed dealing with rights in real estate. For many years Henry D. Zimmerman and Mollie Naomi Zimmerman, his wife, had been crossing a small area in the corner of their neighbor's property in going to and from their own. Both properties are located in Howard County, near Ellicott City. In May, 1971, Gorman Franklin Summers and Ruth Ann Summers, his wife, present owners of the adjoining property, filed a bill of complaint in the Circuit Court for Howard County, seeking to enjoin what they alleged to be a continuing trespass. The Zimmermans denied that they were trespassers, and claimed that their use of the Summers property was a matter of right.

The court, T. Hunt Mayfield, judge, entered a decree restraining and enjoining the Zimmermans from trespassing on the property of the Summerses. The Zimmermans appealed from that decree.

A. The Facts

Each of the two parcels contains between one and one half and two acres. They lie side by side. The front lines of the two parcels appear to form one continuous line. This front line abuts other private property, and is more than 250 feet away from what was formerly known as Old Jonestown Road, relocated some years ago as Rogers Avenue. Ingress and egress for each of the two parcels has been over a private roadway, 14 feet wide, which begins at the front line of the Summers parcel, where it corners with the Zimmerman parcel, and runs out to the public road. An easement over this 14 foot roadway is shown by the land records to be appurtenant to the Summers parcel. There was no evidence one way or the other to show any recorded right over the roadway appurtenant to the Zimmerman parcel, but that use is not an issue here. The record indicates some doubt whether that private roadway continues across the space between the old public road and the present Rogers Avenue, but that question is not involved in this case. What is clear beyond doubt is that the private roadway comes to a dead end against the Summers parcel only. It shares a common corner, but no common line, with Zimmerman. With respect to that 14 foot private roadway and the Zimmerman parcel, their contiguity might be described as one of infinite minuteness.

The Zimmermans acquired title to their property in 1954 by a deed from Mrs. Zimmerman's mother. The grantor then owned a tract of slightly more than seven acres, some of which fronted on the public road. The Zimmermans obtained a building permit in 1954, and over a period of about three years, they built the house in which they still live. They testified that they began some preparatory activity on the parcel as early as 1949, and that from the beginning, they crossed the corner of the adjoining parcel to gain access.

A Mr. Richards testified that he acquired what is now the Summers parcel by deed from his mother in 1953. There was an old house on it which he remodeled. It had belonged to his grandmother, and he had known the property all of his life. He was familiar with the private roadway from the front line of his property to the public road. He knew, also, that a 12 foot strip along the side of the property, an extension of the 14 foot private roadway, was subject to an easement for access to property to the rear, but was no longer used and was overgrown.

Mr. Richards testified that the first work on the Zimmerman property was begun in 1954, and that until that time, the property was grown up as high as the telephone wires with honeysuckle. He said that he and some friends hunted rabbits on it. He said that Mrs. Zimmerman called him on the telephone in the spring of 1954, and asked his permission to use his driveway to bring in building materials. He gave the permission, and they started using his driveway during the summer of 1954. Their work continued into 1956. Mr. Richards said that about a month after the telephone call, he received a legal document to sign about the right of way. After he showed the paper to a lawyer, he informed the Zimmermans that he would not sign it-that they would have to go out through her mother's property. Mr. Richards said that he and the Zimmermans got along pretty well living there together, but that in 1955 or 1956, and a number of times after that, he told one or both of them, in a congenial way, that they should arrange for another way to go in and out. He said also that for a couple of years, around 1958 or 1959, the Zimmermans operated a store at Woodlawn and lived in that area. There was other evidence that they never moved out of the house at Ellicott City and continued to occupy it on a part time basis before coming back full time.

The Richards property was conveyed to Mr. and Mrs. Summers in 1969. They were related to the Richards family, and knew the property before they bought it. Mrs. Summers testified that she asked the Zimmermans if they were going to stop using the driveway, and go out another way. Their response was that Mr. Richards always meant to give it to them, and that they would continue to use it.

The area of the Summers land which the Zimmermans would be required to use to continue the same means of ingress and egress to their property is small. A triangle formed by two lines about 12 feet long across the front and down the side from the corner of the Summers parcel, with a base joining those two lines, would be sufficient. The area would appear to be roughly 72 square feet. The Zimmermans claim a legal right to continue to use it.

The chancellor, in an opinion filed on 27 November 1973, held that they had no right, and were trespassers. The opinion was followed by a decree filed on 4 December 1973. The decree itself contained no findings. Aside from its formal parts, the decree provided that the Zimmermans 'be, and they are hereby, restrained and enjoined from trespassing on the property' of the Summerses.

In this appeal from the decree against them the Zimmermans alternatively contend:

1. That they acquired an easement by prescription across the corner of appellees' property by adverse use for a period of twenty years.

2. That the appellees are equitably estopped from enjoining the use because their predecessor gave the appellants a license to cross the property when they were constructing their house.

The chancellor's opinion clearly explained the factual background of the case, and the contentions of the parties. Its significant conclusory parts are:

'This Court finds no legal right in the Respondents to the use of any part of the Complainants' land.

'The Respondents' contention is that they have acquired title to the use of the twelve foot strip by their use thereof, and the use of their predecessors in title, for a period in excess of twenty years. The Court does not find such a right to have been established.

'It is the opinion of this Court that the Complainants have clearly shown a continuing trespass by the Respondents on to the property of the Complainants, and that the Respondents should be enjoined from continuing such trespass.'

B. The Law Of Easements By Prescription

Several basic legal principles, as well as a few peripheral ones, are involved in the contention of the appellants that they acquired an easement by prescription across the property of the appellees by continued adverse use for a period of twenty years.

1. In General

One of the leading cases in Maryland defining the requirements of an easement by prescription is Cox v. Forrest, 60 Md. 74 (1883). In that case the plaintiffs sought to recover damages for obstruction of a private right of way which they claimed to have acquired over the defendant's land. The Court of Appeals said, at 79-80:

'In the absence of an express grant, it was necessary for the plaintiffs to prove an adverse, exclusive, and uninterrupted enjoyment of the right of way in question for twenty years.

'By adverse is meant a user, without license or permission, for an adverse right of an easement cannot grow out of a mere permissive enjoyment, the real point of distinction being between a permissive or tolerated user, and one which is claimed as a matter of right. Where one, however, has used a right of way for twenty years unexplained, it is but fair to presume the user is under a claim of right, unless it appears to have been by permission. In other words, the use of a way over the lands of another whenever one sees fit, and without asking leave, is an adverse use, and the burden is upon the owner of the land, to show that the use of the way was by license or contract inconsistent with a claim of right. Bachelder v. Wakefield, 8 Cush., 243; Hall v. McLeod, 2 Metcalfe, Ky., 98; Garrett v. Jackson, 20 Penna., 331; Tickle v. Brown, 4 Ad. & El. 369; School District, etc. v. Lynch, 33 Conn. (330) 334; Hammond v. Zehner, 23 Barb., 473.

'By exclusive, the law does not mean that the right of way must be used by one person only, because two or more persons may be entitled to the use of the same way, but simply that the right should not depend for its enjoyment upon a similar right in others, and that the party claiming it exercises it under some claim existing in his favor, independent of all others. It must be Exclusive as against the right of the community at large.

'Nor does the law mean by 'an uninterrupted and continuous enjoyment,' that a person shall use the way every day for twenty years, but simply that he exercises the right more or less frequently, according to the nature of the use to which its enjoyment may be applied, and without objection on the part of the owner of the land, and under such circumstances as excludes the presumption of...