SHARER, J.
Appellee, Beard and Bone, LLC, (Beard & Bone) filed a complaint to quiet title and
The trial court ruled that an easement by necessity had been created in 1918 and that the easement still existed. Thus, the trial court granted Beard & Bone a 12-foot easement, with half over and across the northern most six feet of the Cantwell property and the other half over and across the southern most six feet of the Purnell property.
In their timely appeal, the Purnells present the following questions for our review, which we have slightly rephrased:
For the reasons discussed, we shall affirm the judgment of the circuit court.
The Beard & Bone property consists of approximately 51 acres located west of Evans Road, a public road in Worcester County. It was acquired by Beard & Bone at auction in 2007. The property had been used for timber and hunting. John Andrews, a registered land surveyor, surveyed the Beard & Bone, Cantwell, and Purnell properties, and other nearby properties, and determined that the Beard & Bone property did not connect to a public road or to any private roads with access to a public road. The Cantwell and Purnell properties, which are contiguous along their respective northern and southern boundaries, are located to the east of the Beard & Bone property and thus lie between the Beard & Bone property and Evans Road. Andrews testified that the most direct or reasonable route to access a public road from the Beard & Bone property was across the Purnell and Cantwell properties. He explained that the right of way would have to be 12 to 14 feet wide because if the timber were to be harvested from the Beard & Bone property, the "timber trucks are going to need every bit of that."
Susan Pusey, qualified as an expert in title abstracting, testified that she prepared chains of title for the Beard & Bone, Cantwell, and Purnell properties. All three properties were originally owned by James Givans as one parcel. Givans
The deeds conveying the Purnell and Cantwell properties were executed and dated the same day—July 19, 1918. They were also recorded in the same book but, of necessity, one recording preceded the other. That is, the Purnell deed was recorded at page 303 of the deed book, and the Cantwell deed was recorded at page 307. Neither deed reserved any express right of way or easement allowing the Harrisons, or their successors in title, to access a public road across the Purnell or Cantwell properties.
Richard Rice, an owner of Beard & Bone, testified that the Beard & Bone property was landlocked. Rice stated that when Beard & Bone bought the property at auction, he was aware that there were problems with access. Rice had attempted, unsuccessfully, to obtain a right of way from a neighbor to the north. The Beard & Bone property is subject to a conservation easement and its current uses are limited to timber and hunting. Rice stated that the requested 14-foot easement across the Purnell and Cantwell properties was the shortest route to a public road.
The current owners of the Purnell property acquired title in 2008 through the estate of their mother, Helen Marie Brittingham Purnell who, as a tenant by the entirety with her late husband, acquired title in 1951. Harold Purnell, one of the current owners, testified that he has been farming the property for about 50 years and has been familiar with the Purnell property his entire life. He stated that he went by the Purnell property "maybe daily[,]" farmed the ten acres of cleared land on the property, and leased out the wooded acreage to hunters.
Harold Purnell testified that he had never seen anyone access the Beard & Bone property through the Purnell property or by any road, path, or trail across the Purnell Property. He added that "no trespassing" signs were posted at the front of the Purnell property along Evans Road and that the entrances to the Purnell property had chains across them. Harold Purnell further testified that the timber had been cut from the Beard & Bone property "about ten years ago" and that access was gained through the Widgeon property, to the north, and not across the Purnell property. He added that a drainage ditch was located on the Purnell property line where Beard & Bone wanted to place the easement.
Calvin Purnell, Harold Purnell's son, testified that he had helped his father farm the Purnell property for the past 20 years. During that time, he would go by the property three or four times per week. Calvin Purnell also recalled that he had never seen anyone access the Beard & Bone property from the Purnell property, or seen any indication on the Purnell property that someone was using it to access the Beard & Bone property. He also stated that "no trespassing" signs were posted on the Purnell property.
Dawn Webb testified that she had been the immediate predecessor in title to Beard & Bone. She stated that the property did not have access to a public road and that it was made clear to all potential purchasers that the property was landlocked.
Cantwell testified that she had been familiar with the Cantwell property all of her 51 years and that no one had ever accessed the Beard & Bone property by crossing the Cantwell property.
This Court, in Rau v. Collins, 167 Md.App. 176, 184-85, 891 A.2d 1175 (2006), set forth the relevant standard of review:
Resolution of this appeal implicates the doctrine of easements by necessity. "An easement is broadly defined as a nonpossessory interest in the real property of another...." Boucher v. Boyer, 301 Md. 679, 688, 484 A.2d 630 (1984) (citations omitted). "In general, the terms `easement' and `right-of-way' are regarded as synonymous." Miller v. Kirkpatrick, 377 Md. 335, 349, 833 A.2d 536 (2003) (citation omitted). "An easement may be created by express grant, by reservation in a conveyance of land, or by implication." Kobrine L.L.C. v. Metzger, 380 Md. 620, 635, 846 A.2d 403 (2004).
At issue in the present case is a form of implied easement, an easement by necessity. See Hancock v. Henderson, 236 Md. 98, 102, 202 A.2d 599 (1964) ("Ways by necessity are a special class of implied grants and have been recognized in this State for a good many years.") "[I]mplied easements by necessity arise from a presumption that the party needing the easement should have access over the land." Calvert Joint Venture #140 v. Snider, 373 Md. 18, 39-40, 816 A.2d 854 (2003). The doctrine of easements by necessity "is based upon public policy, which is favorable to full utilization of land and the presumption that parties do not intend to render land unfit for occupancy." Condry v. Laurie, 184 Md. 317, 321, 41 A.2d 66 (1945); see also Rau v. Collins, 167 Md.App. 176, 186, 891 A.2d 1175 (2006) (citations omitted) ("Full utilization of land is favored, and it is presumed that parties do not intend to render conveyed property unfit for occupancy.") Recently, in Sharp v. Downey, 197 Md.App. 123, 167, 13 A.3d 1 (2010), cert. granted, 419 Md. 646, 20 A.3d 115 (2011) (footnote omitted), this Court explained:
Despite this public policy, "the law does not prohibit one from cutting himself off from all access to his land." Shpak v. Oletsky, 280 Md. 355, 364-65, 373 A.2d 1234 (1977) (citation omitted).
There are two types of easements of necessity, implied reservation and implied grant. Shpak, 280 Md. at 360, 373 A.2d 1234. "[G]rants of easements by implication are looked upon with jealousy and are construed with strictness by the courts." Condry, 184 Md. at 321, 41 A.2d 66 (citation omitted). The case before us involves an easement by implied reservation, and "[t]he rule with respect to implied reservations is much more strict than that with respect to implied grants." Hansel v. Collins, 180 Md. 209, 215, 23 A.2d 686 (1942). "It is only in cases of the strictest necessity, and where it would not be reasonable to suppose that the parties intended the contrary, that the principle of implied reservation can be invoked." Burns v. Gallagher, 62 Md. 462, 472 (1884) (emphasis in original and citations omitted); see also Mitchell v. Houstle, 217 Md. 259, 264, 142 A.2d 556 (1958) ("From a very early date, a distinction has been made between an implied grant and an implied reservation, with the rule being much more strict when called upon to create an easement by implied reservation than to create one by implied grant.") In McTavish v. Carroll, 7 Md. 352, 359 (1855), the Court of Appeals set forth the basic contours of an easement by implied reservation: "[W]here a man owns two closes, A and B, with a road from A over B, to the highway, and he sells close B, without reserving, in the deed, any right of way, if he has no other road, he may use the one over B as a way of necessity."
Although this language of strictness is used in regard to easements by implied reservation, "Maryland has accepted the general rule that where there is a grant of land without any express reservation of an easement, a reservation is implied if the easement is reasonably necessary for the fair enjoyment of the property." Greenwalt v. McCardell, 178 Md. 132, 138, 12 A.2d 522 (1940) (citations omitted). The Court of Appeals has also described the required necessity to be "imperative and absolute," Shpak, 280 Md. at 361, 373 A.2d 1234 (citations omitted), but then explained the importance of the intention of the parties:
In other words, "an implied easement is based on the presumed intention of the parties at the time of the grant or reservation as disclosed from the surrounding circumstances rather than on the language of the deed." Boucher, 301 Md. at 688, 484 A.2d 630 (citation omitted). Thus, the necessity does not give rise to the easement; instead, it serves as evidence of the parties' intentions. Rau, 167 Md.App. at 190, 891 A.2d 1175 (citation omitted); see also Koch v. Strathmeyer, 357 Md. 193, 198, 742 A.2d 946 (1999) ("The standard of proof necessary to establish an implied easement ... is the `clear manifestation' of the intent of the common grantor.") (Quoting Williams Realty Co. v. Robey, 175 Md. 532, 539, 2 A.2d 683 (1938)); Greenwalt, 178 Md. at 139, 12 A.2d 522 ("Necessity of itself does not create a right of way; it is merely a fact offered in evidence to show an intention to establish a right of way by raising the presumption of a grant.")
In order to ascertain the intention of the parties, courts may consider extraneous factors. Boucher, 301 Md. at 688, 484 A.2d 630. "Intention `is a question of fact,' and the surrounding circumstances of the case must be analyzed in order to truly understand an unexpressed intention." Koch, 357 Md. at 198, 742 A.2d 946 (quoting Scholtes v. McColgan, 184 Md. 480, 489, 41 A.2d 479 (1945)) (one citation omitted). But see Stansbury v. MDR Development, L.L.C., 390 Md. 476, 489, 889 A.2d 403 (2006) ("`The intent to create the easement is ... deemed to be shown by the type of transaction involved, and no other evidence is necessary to establish the intent of the parties to create a way of necessity.'") (Quoting 3 Herbert T. Tiffany, The Law of Real Property, § 793 (3rd ed.1939, 2004 Supp.)).
Further, the implied reservation is based on the intention of the parties at the time of the conveyance. See Boucher, 301 Md. at 688, 484 A.2d 630 ("An implied easement is based on the presumed intention of the parties at the time of the grant or reservation as disclosed from the surrounding circumstances rather than on the language of the deed.") (Citation omitted); Hancock v. Henderson, 236 Md. 98, 102, 202 A.2d 599 (1964) ("[R]emote grantees... cannot create the way of necessity. If the way of necessity was not implied at the time of the [original] grant . . ., it cannot be established by a subsequent necessity. In other words, the necessity must be determined from the conditions as they existed at the time of the conveyance.") (Citations omitted); Feldstein v. Segall, 198 Md. 285, 294, 81 A.2d 610 (1951) ("If a way of necessity is not implied in the grant, it cannot be established by any subsequent necessity."); see also Shpak, 280 Md. at 356, 373 A.2d 1234 ("the date for determining whether a way of necessity was created by an implied reservation was that of the contract between the original parties and not that of the ultimate deed...."); Michael, 39 Md.App. at 277-78, 384 A.2d 473 (relying on Shpak to conclude that the date for determining whether a way of necessity was created was that of the contract between the original parties and not the date of the deed or the date of recordation).
The easement also passes with each conveyance to subsequent grantees. Hancock, 236 Md. at 105, 202 A.2d 599. As a result, "a remote grantee of land not being used at the time of severance may nevertheless, when the use becomes necessary to the enjoyment of his property, claim the easement under his remote deed." Id. (citation omitted). In other
As a preamble to our resolution of the issues before us, we have engaged in a lengthy discussion of the concept of easements by necessity. The Court of Appeals has succinctly set forth the three basic requirements:
Stansbury, 390 Md. at 489, 889 A.2d 403.
The Purnells deny the existence of an easement. That is so, they assert, because when the deed conveying the Purnell property to their predecessor in title was recorded, the Beard & Bone property and the Cantwell property were still under common ownership. According to the Purnells, it was only when the deed to the Cantwell property was recorded, i.e., the Cantwell property was severed from the property retained by the Harrisons, that an easement of necessity arose because the Beard & Bone property then became landlocked.
The Purnells thus claim that it was the Harrisons' conveyance of the Cantwell property that caused the Beard & Bone property to become landlocked. They contend that because the Harrison-Cantwell deed was recorded later than the Harrison-Purnell deed, the Cantwell property was conveyed subsequent to the Purnell property. As a result, they posit, any easement by necessity exists only over the Cantwell property. The Purnells refer us to Stair v. Miller, 52 Md.App. 108, 447 A.2d 109 (1982), which we discuss, infra, in support of their position.
The Purnells allege that, in the absence of any evidence as to when the parties contracted, the time of recording of the deed controls the severance.
Beard & Bone contends that the Harrisons' unity of title in the three properties was severed on July 19, 1918, by the separate Purnell and Cantwell deeds. Beard & Bone asserts that the fact that the Harrison-Purnell deed was recorded four pages prior to the Harrison-Cantwell deed does not indicate an intent by the Harrisons to have established a conveyance priority. Beard & Bone claims that the Purnells presented no evidence sufficient to demonstrate that the Purnell property was intentionally conveyed and recorded prior to the Cantwell property, or that the easement by necessity could not exist over the Purnell property.
The Purnells respond that Stair stands for the proposition that the first property transferred by a common grantor and recorded among the land records cannot be subject to an easement by necessity, relying on the order of recordation, which placed the Purnell deed in the Land Record book before the Cantwell deed. The Purnells argue that when a deed is recorded, the property is deemed to be transferred, even if the deed is dated the same day as the deed to another property from a common grantor. According to the Purnells, the first property conveyed from a common grantor and recorded could not be subject to an easement by necessity.
The Purnells also note that Maryland is a race-notice jurisdiction. Thus, they claim, the Purnell deed, which was recorded first, would take priority over the Cantwell deed, recorded later, albeit in the same book on the same day. That fact, they assert, defeats an easement by necessity.
In granting an easement by necessity in favor of the Beard & Bone property, the Circuit Court issued a written Opinion and Order, which provided in relevant part:
The intentions of the common grantor control the creation, or non-creation, of an easement of necessity. If a common grantor conveys the two parcels of his or her property on the same date, the ability of one grantee to record the deed prior to that of the other grantee would frustrate the intentions of the parties. The Purnells' suggestion that we consider the page on which the deeds were recorded to determine that the properties were not severed at the same time would frustrate the intentions of the common grantor, absent credible evidence to the contrary.
Other than the recorded deeds, there are no documents, such as a contract of sale or other memoranda, from which the court might infer intent. As we have noted, the deeds were executed on the same date and subsequently recorded, again on the same date. Of necessity, when both deeds were presented to the land records clerk one would naturally precede the other in the deed book—if for no other reason than by whim of the clerk. Absent other evidence, we cannot agree with the Purnells' conclusion that the order of recordation bears on the intent of the parties.
In Stair, Miller owned a six-acre parcel without road frontage. Id. at 109. Two properties, one owned by Stair and another owned by a third party, Koontz, separated the Miller property from two public roads. Id. The circuit court granted Miller a right of way over the Stair property. Id. On appeal, Stair claimed that the circuit court erred in granting an easement of necessity over the Stair property when there was a right-of-way then existing over the Koontz property. Id. We concluded that the circuit court had committed no error and explained:
Id. at 110 (citations omitted).
Stair offers the Purnells no relief because the recordation date had no impact on our decision in that case. Rather, the import was that the Koontz property had been sold off before the Miller and Stair properties. In the present case, the Purnell and Cantwell properties were conveyed on the same day. There is simply no indication that the Purnell property was conveyed prior to the Cantwell property, or that the order of recordation established a priority. We have not uncovered a single easement-by-necessity case in which the court relied not just on the date of recordation, but the page in the deed book in which the deed was recorded to determine the order of severance of the parcels. Nor, do the Purnells refer us to any such case.
Indeed, in Michael v. Needham, 39 Md.App. 271, 384 A.2d 473 (1978), we declined to consider the date of recordation in determining when the way of necessity arose. Id. at 277, 384 A.2d 473. There, the deed was recorded more than eight years after the contract for the sale of the property. Id. We explained that if we relied on the date of recordation,
Id.
In addition, we relied on Shpak, supra, in which the Court of Appeals determined that the date of the contract controlled for determining whether a way by necessity was created by implied reservation. Id. at 277-78, 384 A.2d 473. See Shpak, 280 Md. at 356, 373 A.2d 1234 ("the date for determining whether a way of necessity was created by an implied reservation as that of the contract between the original parties and not that of the ultimate deed which came after a period of litigation.")
Easements of necessity are determined from conditions that existed at the time of the conveyance. See Mitchell v. Seipel, 53 Md. 251, 274 (1880) ("Whether it is a way of necessity or not, must depend upon the state of things existing at the date of the deed....") There was no evidence before the circuit court that could result in a conclusion that any date other than July 18, 1918, is relevant to the determination of the easement. We conclude that the trial court committed no error in ruling that the Purnell and Cantwell properties were conveyed at the same time, which severed the unity of title held by the Harrisons.
The Purnells' tack was to limit the easement, if in fact the court found the existence of an easement, to the Cantwell property. They assert that the trial court erred in finding that there was an easement by necessity because there was no evidence that the easement was apparent in 1918 at the time the unity of the Harrison tract was severed. According to the Purnells, the Court of Appeals made clear in Burns v. Gallagher, 62 Md. 462 (1884), that an easement by implied reservation must be apparent at the time of its creation. They note that the easement is not apparent today and that there was no evidence demonstrating that the Beard & Bone property was ever accessed through the Purnell property. In essence, they argue that "apparent" means physically or visually apparent on the ground.
They contend that Hancock v. Henderson, 236 Md. 98, 202 A.2d 599 (1964), is distinguishable because the easement of necessity at issue there was one of implied grant and not implied reservation. Further, in Hancock, there was evidence of a road over the servient property.
Beard & Bone responds that the trial court correctly found the three requirements for the existence of an easement: (1) unity of title; (2) severance of that original unity of title by the conveyances to Purnell and Cantwell; and (3) the easement was necessary for the Harrisons to have continued access to their remaining parcel. In any event, Beard & Bone assert that the evidence was sufficient to establish that the easement satisfied the "apparent" requirement at the time of its creation. Beard & Bone posits that the easement was apparent because an examination of the property would have revealed that the Beard & Bone property was landlocked. Beard & Bone claims also that an examination of the Harrisons' retained property at the time of severance would have revealed a lack of access to a public road and the necessity for an easement.
Beard & Bone also asserts that the Purnells' argument that the easement be apparent at the time of its creation ignores the public policy underlying easements by necessity, i.e., favoring full utilization of
In Burns v. Gallagher, 62 Md. 462, 470-71 (1884), the easements in question, an alley and a drain, were, at the time of the conveyances, "in existence, open and apparent, and in constant use" until one of the successors in title closed the alley and obstructed the drain. The question before the Court of Appeals was
The properties had once been held by a common grantor, who had retained the defendants' property when he conveyed the plaintiffs' property. Id. at 469-70.
To be sure, in Burns, 62 Md. at 471-72, the Court of Appeals explained:
At issue in Burns was, in part, an implied grant of an easement or quasi easement. Id. at 473-74. The Court stated:
Id. at 473. Thus, it was unlawful for the common grantor's successor in title to block the alley or obstruct the drain. Id. at 474.
In Hancock v. Henderson, 236 Md. 98, 202 A.2d 599 (1964), William Gaton owned approximately 180 acres and, in 1898, conveyed 31 acres, which did not adjoin a public road, to Eliza Hutchins. Id. at 100, 202 A.2d 599. The only use made of the 31 acres, called Little Woods, was for timber and firewood. Id. The Hendersons were Hutchins' successors in title, and the Hancocks were Gaton's successors in title. Id. A roadway ran through the Hancocks' land
The Court of Appeals concluded that because the Hendersons had failed to prove that the roadway was in existence at the time of the 1898 conveyance, their claim of an easement by express grant failed. Id. at 102, 202 A.2d 599. The Court then considered whether the Hendersons had a way of necessity. Id. The Court stated: "We have said the doctrine of easements by necessity is based upon a public policy favoring full utilization of land and a presumption the parties do not intend the land conveyed be rendered unfit for occupancy." Id. at 103-04, 202 A.2d 599.
In concluding that an easement of necessity existed, the Court of Appeals wrote:
Hancock, 236 Md. at 104-05, 202 A.2d 599.
Thus, under Hancock, the easement of necessity need not be, at the time of the conveyance, physically or visually apparent, as the Purnells suggest. Indeed, there was no evidence in Hancock that the easement was in existence at the time of the 1898 conveyance.
This Court considered the meaning of "apparent" as used by the Burns Court in Johnson v. Robinson, 26 Md.App. 568, 338 A.2d 88 (1975). We wrote:
In the reverse but analogous situation an implied grant will exist where the necessity of an easement for the benefit of a grantee is apparent to the grantor:
The same principle is applied in the quasi-easement situation. A "quasi-easement" is a legal fiction developed to overcome the premise in law that one cannot have an easement over one's own land. When one utilizes a part of his land for benefit of another part and the land is separated without reservation or grant, a quasi-easement is implied. The phrase is no more than a convenient expression for an owner's utilization of one part of the land for the benefit of the other. Tiffany Real Property, (3d ed.), § 781.
Johnson, 26 Md.App. at 576-78, 338 A.2d 88 (footnote and one citation omitted) (some emphasis supplied).
Moreover, "`the rules regarding implied grants and implied reservations are both rules of construction.'" Shpak, 280 Md. at 363, 373 A.2d 1234 (quoting Slear v. Jankiewicz, 189 Md. 18, 24, 54 A.2d 137 (1947)). The Shpak Court relied on 3 H. Tiffany, The Law of Real Property § 781 (3d ed.1939) to explain:
See also Stansbury, 390 Md. at 490-91, 495-96, 889 A.2d 403 (where access to a landlocked parcel was gained from a neighboring parcel, but there was no evidence of a pre-existing easement, such as a path, trail, or roadway, an easement by necessity arose where there had been unity of title, that unity was severed, and the easement was necessary at the time of the severance in order to allow the new owner access to the landlocked parcel).
Thus, we conclude that the easement need not be apparent in the sense that, as the Purnells claim, it must have a physical presence or mark upon the land discernable to those who pass by. Rather, the easement must be apparent in the sense that there must be some notice or warning that the easement is in existence. We find no fault with the trial court's rulings as to the apparent nature of the easement at the time of the severance of the property by the Harrisons in 1918, as it was apparent that the property retained by the Harrisons was landlocked.
As their "fallback" position, the Purnells claim that, to the extent an easement existed over their property, it has been extinguished by adverse possession or by abandonment.
The Purnells further claim that the easement was abandoned due to non-use. They assert that Beard & Bone's predecessor in title demonstrated an intent to abandon the easement when, approximately 15 years earlier, they utilized a different adjacent property (the Widgeon property) to remove timber harvested from the Beard & Bone property. They rely also on the undisputed fact that the Beard & Bone property was marketed, and sold to Beard & Bone, as having no access to a public road.
Beard & Bone answers that the Purnells, who carry the burden of establishing adverse possession of the easement, failed to demonstrate how the farming of the land and the "no trespassing" signs constituted possession that is actual, open, notorious, exclusive, hostile, under claim of title or ownership, and continuous or uninterrupted for the 20-year statutory period.
Beard & Bone also states:
Beard & Bone further claims that there was no evidence of abandonment, which must be decisive, clear, and unequivocal. It asserts that permission by the Widgeon interests allowing Beard & Bone's predecessor in title to cross that land to remove timber was not a decisive, clear, and unequivocal act evidencing intent to abandon the easement. Beard & Bone maintains that the Purnells presented no evidence of the prior owner's reasons for using the adjacent property to remove the timber. It further states that the advertisement listing the Beard & Bone property as having no access did not demonstrate an intent to abandon the easement.
In rejecting the Purnells' claims of abandonment and extinguishment by adverse possession, the trial court found:
In Costello v. Staubitz, 300 Md. 60, 67, 475 A.2d 1185 (1984) (footnote omitted and citations omitted), the Court of Appeals explained:
An easement may be obtained or extinguished by adverse possession. USA Cartage v. Baer, 202 Md.App. 138, 32 A.3d 88 (2011); Read v. Montgomery County, 101 Md.App. 62, 68-69, 643 A.2d 476 (1994); see also 3 H. Tiffany, Real Property, § 827 at 395 ("An easement may be extinguished by the user of the servient tenement in a manner adverse to the exercise of the easement for the period required to give title to land by adverse possession....") (Footnote omitted). The analysis of the adverse possession of an easement is not the same as that conducted for the adverse possession of land:
Mueller v. Hoblyn, 887 P.2d 500, 507 (Wy. 1994) (some citations omitted). Further, "[a] narrow exception to the general rule that an easement may be extinguished by the adverse possession of the owner or possessor of the servient estate has evolved for easements that have not been definitively located through use." 3 H. Tiffany, Real Property, § 827 at 308 (2011-12 Supp.).
Although our research has revealed no Maryland case applying this exception, it has been applied by our sister states. A modern-day discussion of the exception can be found in Castle Assocs. v. Schwartz, 63 A.D.2d 481, 407 N.Y.S.2d 717 (N.Y.App. Div.1978). There, the New York Appellate Division held that an easement created by grant, but never located, i.e., a "paper" easement, could not be extinguished because the owner of the easement had never demanded that the easement be opened. Id. at 723. The Court concluded:
Id.
Later, the Court of Appeals of New York recognized the exception in Spiegel v. Ferraro, 73 N.Y.2d 622, 543 N.Y.S.2d 15, 541 N.E.2d 15 (1989), and explained:
Id. at 626, 543 N.Y.S.2d 15, 541 N.E.2d 15 (quoting Monnot v. Murphy, 207 N.Y. 240, 100 N.E. 742, 743 (1913)) (some citations omitted); see also Sabino Town & Country Estates v. Carr, 186 Ariz. 146, 920 P.2d 920 P.2d 26, 30 (1996) (where deeded easement had not been developed, needed, or used, servient owner's fencing of easement was not adverse); Matoush v. Lovingood, 177 P.3d 1262, 1273-75 (Co.2008) (servient owner's use of easement, which had been expressly created, was not adverse until owner of dominant estate needed to use the easement); Kolouch v. Kramer, 120 Idaho 65, 813 P.2d 876, 879-80 (1991) (deeded easement not extinguished by adverse possession where owner of servient estate placed six trees down center of easement, constructed fence inside easement boundaries, constructed a concrete irrigation diversion at one end of the easement, and placed several large boulders within the easement; easement had never been used and owner of servient estate was "entitled to use his land ... for any purpose not inconsistent with the purpose reserved in the easement"); Pearson v. Virginia City Ranches Ass'n, 298 Mont. 52, 993 P.2d 688, 696 (2000) (erection of fence across easement, which had been referenced in deeds, was not adverse until the owners of the dominant tenements demanded that the
In contrast to the cases discussed, supra, we are concerned with an implied easement by necessity, not an express or deeded easement. We believe, however, that the reasoning of those cases is sound and that it should be likewise applied to situations where the easement is created by implication or necessity, as in the present case. We reach this conclusion for several reasons. First, an easement passes with each conveyance to subsequent grantees. Hancock, 236 Md. at 105, 202 A.2d 599. Thus, "a remote grantee of land not being used at the time of severance may nevertheless, when the use becomes necessary to the enjoyment of his property, claim the easement under his remote deed." Id. (citation omitted). Second, "[e]asements by necessity normally cease to exist when the necessity for the easement ceases." Stansbury, 390 Md. at 491, 889 A.2d 403 (citation omitted). In the instant case, the necessity has not been extinguished, that is, the Beard & Bone property remains landlocked. Third, the public policy supporting easements by necessity, i.e., the full utilization of land. Finally, in Orfanos Contractors v. Schaefer, 85 Md.App. 123, 136, 582 A.2d 547 (1990), we again noted that "[t]he rules regarding the creation of easements of necessity... are rules of construction for determining the scope of the conveyance." We added: "From a legal point of view, it is immaterial whether the easement was passed by an express grant in the conveyance or whether the circumstances call for a construction of the conveyance to create a grant." Id. (citation omitted).
As a result, we hold that the Purnells could not adversely possess the easement until such time as Beard & Bone sought to locate, develop, and use the easement. Only after Beard & Bone sought to open the easement, and the Purnells denied the use, could the prescriptive period begin to run.
"The burden of proving abandonment rests on the one who asserts or relies on it ... [and] the law is well settled that the intent to abandon may be shown by the acts of a party indicating such an intention." Read, 101 Md.App. at 73, 643 A.2d 476 (quoting Maryland & Pa. R.R. v. Mercantile-Safe Deposit & Trust Co., 224 Md. 34, 40, 166 A.2d 247 (1960)) (citations omitted). In Vogler v. Geiss, 51 Md. 407, 410 (1879) (citations omitted), the Court of Appeals set forth the standard by which to measure whether an easement has been abandoned:
See also Chevy Chase Land Co. v. United States, 355 Md. 110, 159, 733 A.2d 1055 (1999) ("non-use alone is insufficient to show an intent to abandon; there must be an act or a combination of acts that unequivocally demonstrate an intention to abandon") (citations omitted); Shuggars v. Brake, 248 Md. 38, 46, 234 A.2d 752 (1967) ("An easement may not be lost unless there is some act clearly and unequivocally indicating an intention to abandon it, and mere non-user is not enough."); Cooper v. Sanford Land Co., 224 Md. 263, 266, 167 A.2d 602 (1961) ("Two elements are necessary to show an abandonment, namely, an intention to abandon, and an overt act, or an omission to act, by which such intention is carried into effect.") But see Stewart v. May, 119 Md. 10, 19, 85 A. 957 (1912) (easement abandoned where holder of the easement had not used it for "at least twelve years" and, inter alia, "had built over the [easement] in such way as to make it impossible for them to enjoy [the easement]"); Duval v. Becker, 81 Md. 537, 32 A. 308 (1895) ("The mere cessor of use for a long space of time would be a strong fact to show an intention to abandon the right....")
The record before us reveals that the Purnells presented evidence that they had farmed their property for 50 years, and that a drainage ditch existed where Beard & Bone sought to place the easement. There was, however, no evidence of any intention or overt act by Beard & Bone, or by any of Beard & Bone's predecessors in title, to abandon the easement. The evidence does not support a conclusion that the use of the Widgeon property to facilitate a one-time timbering operation constituted such an act. Again, we have no dispute with the trial court's finding that the easement had not been lost to abandonment.
Lastly, the Purnells assert that to the extent that an easement arose in this case, it did so in 1918, but for more than 90 years no action was taken to identify, delineate, or use the easement. They add that during that time period, they and their predecessors in title have improved the property and constructed drainage ditches in the precise area where Beard & Bone now seeks to locate an easement.
The Purnells also argue that there are likely no witnesses still alive with any knowledge of the historic uses of the properties in question. They conclude that they have been prejudiced by the failure of Beard & Bone and its predecessors in title to diligently pursue their claims. The Purnells assert that because of the substantial delay in asserting the easement rights, and the prejudices caused to them, the trial court erred as a matter of law when it failed to find that Beard & Bone's claims are barred by the doctrine of laches.
Beard & Bone respond that the Purnells made no showing of prejudice sufficient to meet the requirement of laches. According to Beard & Bone, demonstrable prejudice must be either in the form of evidence lost due to the delay that would support the opposing parties' position, or that the opposing party changed his position in a way that would not have occurred without the delay. Beard & Bone claim that the Purnells' assertion that improvement of the property and construction of a drainage ditch falls short of this standard. It further alleges that the Purnells presented no evidence that, had the delay in asserting the existence of the easement not occurred, the Purnells would not have constructed the drainage ditch. Beard & Bone
The Purnells respond that the record identifies the lost witnesses, to wit, the various individuals identified in the chain of title. They conclude that "[w]aiting over 100 years to assert rights to a claimed easement constitutes laches as a matter of law."
In denying the Purnells' claim under the doctrine of laches, the trial court wrote:
"Laches `is a defense in equity against stale claims, and is based upon grounds of sound public policy by discouraging fusty demands for the peace of society.'" Ross v. State Bd. of Elections, 387 Md. 649, 668, 876 A.2d 692 (2005) (quoting Parker v. Board of Election Supervisors, 230 Md. 126, 130, 186 A.2d 195 (1962)). "[T]here is no inflexible rule as to what constitutes, or what does not constitute, laches; hence its existence must be determined by the facts and circumstances of each case." Parker, 230 Md. at 130, 186 A.2d 195 (citations omitted). In Liddy v. Lamone, 398 Md. 233, 244-45, 919 A.2d 1276 (2007) (some citations omitted), the Court of Appeals set forth the doctrine of laches:
This Court has also explained the doctrine:
Greenfield v. Heckenbach, 144 Md.App. 108, 142 n. 11, 797 A.2d 63 (2002).
There was no evidence before the circuit court of any negligence or unreasonable delay on the part of Beard & Bone or any of its predecessors in title. This follows because there is no evidence that the easement was needed until Beard & Bone purchased the property in 2007. The evidence demonstrated that the prior owner gained access to the Beard & Bone property via the Widgeon property which, as we have held, did not extinguish the easement. As a result, based on the evidence presented at trial, when Beard & Bone was unable to gain access through the Widgeon property, it timely filed the present action.
There is nothing in the record that would support a conclusion that Beard & Bone, or their predecessors, slept on their rights, vis a vis, the easement. The trial court did not err in denying the Purnells' claim under the doctrine of laches.
In sum, we hold that: the evidence was sufficient do establish an easement of necessity or implication in favor of Beard & Bone across the property of the Purnells; the circuit court did err in the location of the easement; that the easement was neither abandoned nor extinguished by adverse possession; and that Beard & Bone's claim was not barred by laches.
