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Opinions – 12/27/11: Maryland Court of Special Appeals

Civil Procedure

Declaratory judgment

BOTTOM LINE: Because of the pending criminal trial against defendant in the district court, the circuit court lacked jurisdiction to issue a declaratory judgment.

CASE: Vargas-Aguila v. State, No. 1638, Sept. Term, 2010 (filed Dec. 2, 2011) (Judges Meredith, ZARNOCH & Thieme (retired, specially assigned)). RecordFax No. 11-1202-02, 12 pages.

FACTS: Jose Vargas–Aguila was arrested on suspicion of driving under the influence of alcohol. A breath test determined that Vargas-Aguila’s blood-alcohol content was 0.30 grams of alcohol per 210 liters of breath, above the legal limit to drive. Vargas–Aguila was charged with numerous traffic offenses.

At trial in the district court, Vargas–Aguila objected to the State’s introduction of the results of his breath test from the evening of his arrest, citing CJ §10–304. Under this provision, when a breath test is used by the police as evidence in a prosecution for driving under the influence of alcohol or while intoxicated, “[t]he test of breath shall be administered by a qualified person with equipment approved by the toxicologist under the Postmortem Examiners Commission at the direction of a police officer.” Vargas-Aguila alleged that the “Regulations of the Toxicologist, Post Mortem Examiners Commission, State of Maryland, Regarding Tests of Breath and Blood for Alcohol” (toxicologist standards) were invalid because they had not been adopted in accordance with the rulemaking requirements of the State Administrative Procedure Act (APA), SG, §§10–101.

The district court judge did not make a legal ruling on the validity of the toxicologist standards, but rather, stayed the criminal case and allowed Vargas–Aguila to file a declaratory action in circuit court.

Vargas-Aguila filed a complaint seeking declaratory relief in the circuit court against the State of Maryland, Office of the Chief Medical Examiner (the State). He sought a declaration that the toxicologist standards were invalid. The State moved to dismiss the declaratory judgment action on the grounds that it sought an improper exercise of the circuit court’s jurisdiction and intruded on the pending criminal trial in the district court. The court denied the objection.

The circuit court issued a declaratory judgment that the State had not promulgated the toxicologist regulations in conformity with the APA.

The Court of Special Appeals reversed.

LAW: Maryland’s Declaratory Judgment Act, CJ §§3-401 through 3-415, is to be “liberally construed,” but “there are certain restrictions in its application.” Sprenger v. PSC, 400 Md. 1, 24 (2007). “[T]he court will refuse a declaration where another court has jurisdiction of the issue, where a proceeding involving identical issues is already pending in another tribunal, where a special statutory remedy has been provided, or where another remedy will be more effective or appropriate under the circumstances.” Haynie v. Gold Bond Bldg. Products, 306 Md. 644, 651 (1986).

Ordering declaratory relief “to decide an issue, even though the issue is presented in another pending case between the parties” is reserved for “very unusual and compelling circumstances.” Id. at 652. These principles are applicable regardless of whether the pending case is a civil or criminal action, id.; or whether the pending action is in the district court and the declaration is sought in the circuit court. A.S. Abell Co. v. Sweeney, 274 Md. 715, 719–21 (1975).

In Grimm v. Co. Comr’s. for Washington Co., 252 Md. 626 (1969), the Court of Appeals held that a declaratory judgment action was properly dismissed where the plaintiff sought to adjudicate issues presented for resolution in a pending criminal case. To rule otherwise “would be unfortunate as it would unduly burden the courts.” Id. at 640–41.

Here, Vargas–Aguila’s criminal trial in district court presented the same issues as the declaratory relief he sought in the circuit court. In fact, Vargas–Aguila’s action in circuit court was a direct challenge to the evidence proposed by the State in the district court prosecution.

Although the district court lacks the power to issue a declaratory judgment, it certainly would have been within its authority to determine the legal question of the validity of the toxicologist standards. See Howard v. State, 76 Md.App. 447, 450–51 (1988).

Vargas–Aguila contended that because the Office of the Chief Medical Examiner cannot be joined as a party to a criminal case, it would have been impossible for the district court to make a ruling concerning the validity of the regulations. However, joinder of the Chief Medical Examiner was unnecessary for the district court to exercise its fundamental jurisdiction to pass on the validity of the toxicologist standards.

Because the validity of the toxicologist standards could have been properly and adequately raised and decided in the criminal case, no declaratory judgment remedy in the circuit court was appropriate.

COMMENTARY: “If a statute providing a special form of remedy for a special type of case, that statutory remedy shall be followed in lieu of a [declaratory judgment] proceeding.” CJ §3–409(b). Such a special statutory remedy existed here.

The drunk driving offenses charged in the district court are statutory. The district court by statute has “exclusive original jurisdiction” to try such a case, CJ §4–301(a), and to provide a remedy of acquittal for these criminal charges. See Broadwater v. State, 401 Md. 175, 184 (2007); and Divver v. State, 356 Md. 379, 382 (1999). Therefore, the declaratory judgment action could have been properly dismissed on this ground.

Finally, a declaratory judgment should only be issued, “if it will serve to terminate the uncertainty or controversy giving rise to the proceeding.” CJ §3–409(a). Even if the declaratory judgment were issued in favor of Vargas–Aguila, it would not have necessarily terminated the controversy at issue, because he could be convicted on the basis of evidence other than the breath test.

PRACTICE TIPS: Courts of equity are restrained from interfering with criminal prosecutions, particularly when the “propriety of the investigative procedure” could be tested at the criminal trial. In re Criminal Investigation No. 13 in the Circuit Court for Dorchester County, 82 Md.App. 609, 613-14(1990), relying on Younger v. Harris, 401 U.S. 37 (1971). The Supreme Court has extended the principles of Younger v. Harris to a declaratory judgment action filed after a state criminal prosecution has begun, Steffel v. Thompson, 415 U.S. 452 (1974), and even to one filed before, if no proceedings of substance have taken place in federal court. Hicks v. Miranda, 422 U.S. 332 (1975).

Evidence

Prior inconsistent statements

BOTTOM LINE: A witness’s prior consistent statements were admissible under Rule 5–802.1 as an exception to the hearsay rule in order to rebut defendant’s claim that the witness fabricated testimony.

CASE: Thomas v. State, No. 2062 Sept. Term, 2010 (filed Dec. 2, 2011) (Judges Eyler, D., Kehoe & RAKER (retired, specially assigned)). RecordFax No. 11-1202-03, 16 pages.

FACTS: On December 9, 2009, Richard Benjamin contacted Kenneth Thomas to buy crack cocaine from him. Benjamin met Thomas him at a Blockbuster Video, where the transaction occurred. Unbeknownst to them, however, Officer Peter Johnson of the Montgomery County Police Department (MCPD) observed their interaction. Believing he had witnessed a drug purchase, Officer Johnson radioed other MCPD officers to intercept both men.

Two officers, including Jeffrey Rea, stopped Benjamin and began to question him. Officer Johnson arrived on the scene shortly thereafter. Benjamin consented to a search, and the officers discovered a .53 gram rock of crack cocaine in one of his shoes, whereupon he was placed under arrest and charged with possession. Benjamin told the police that he had just purchased the drugs near the local Blockbuster for $50 from a man he knew as “Kenny,” who drove a gold Saturn.

Other police officers stopped Thomas shortly after he left the shopping center parking lot. They found $275 in Thomas’s possession, including $50 consisting of two $20 bills and one $10 bill, discovered separately from the other money in his left jacket pocket. The police, however, did not find any drugs in Thomas’s car or on his person.

Benjamin was the first witness called by the State at trial. The State questioned him about his drug charge arising out of the events of the instant case as well as an unrelated unauthorized use of a motor vehicle charge that arose after this drug case. Benjamin stated that he had received probation before judgment (PBJ) in connection with his drug charge.

He testified that within the prior two weeks he had been charged with unauthorized use of a motor vehicle, stemming from an incident in which he borrowed a truck from a friend of his girlfriend.

On further cross-examination, Benjamin testified that, a week prior to trial, Benjamin had spoken to the prosecutor and he had informed her of the charges against him for unauthorized use of a vehicle, thereby raising the inference that Benjamin hoped the prosecutor could help him with those charges.

Officer Johnson testified after Benjamin. Officer Johnson testified that he when he asked Benjamin where he got the crack cocaine from, he stated that he bought it from a guy named Kenny, at the Blockbuster, who drives a gold Saturn.

Officer Rea testified as well. Again, over defense counsel’s objections, the State elicited from the officer that Benjamin stated he had purchased the crack cocaine “from a black guy at a nearby shopping center”; “a man he knew as Kenny that was in a gold Saturn at Blockbuster”; and “that [Benjamin] paid for the crack cocaine with $50,” consisting of two $20 bills and one $10 bill.

Thomas did not call any witnesses. At the close of the trial, defense counsel devoted virtually her entire argument to attacking Benjamin’s credibility. She pointed out to the jury that Benjamin received no jail time for his possession charge and that he had spoken to the prosecutor about his pending unauthorized use of a vehicle charge.

The jury found Thomas guilty of one count of distribution of a controlled dangerous substance.

Thomas appealed to the Court of Special Appeals, which affirmed.

LAW: Rule 5–802.1 governs the admissibility of prior consistent statements. “The following statements previously made by a witness who testifies at the trial…and who is subject to cross-examination concerning the statement are not excluded by the hearsay rule: (b) A statement that is consistent with the declarant’s testimony, if the statement is offered to rebut an express or implied charge against the declarant of fabrication, or improper influence or motive[.]” Rule 5–802.1(b). Prior consistent statements admitted into evidence under Rule 5–802.1(b) may be admissible as substantive evidence.

Although the text of Rule 5–802.1(b) does not condition the admissibility of a prior consistent statement on its having been made before an alleged motive to fabricate arises, the Rule does include this temporal element. Holmes v. State, 350 Md. 412 (1998). At common law, the premotive requirement for admitting prior consistent statements was based upon the rationale that such statements have no relevancy to refute a charge of bias or motive to testify falsely unless the statements were made before the bias or motive arose.

In Tome v. United States, 513 U.S. 150, 152 (1995), the United States Supreme Court held that FRE 801(d)(1)(B) incorporated the common-law temporal element, even though the federal rule’s language—allowing admission of a prior consistent statement “to rebut a charge of a recent fabrication or improper influence or motive”—did not so require.

The Court of Appeals found evidence in the commentary of the Maryland Rules Committee suggesting that Rule 5–802.1(b), which was based on FRE 801(d)(1)(B), meant to incorporate the longstanding temporal condition, and held that “in order to be admissible under Rule 5–802.1(b), a prior consistent statement must have been made before the alleged fabrication or improper influence or motive arose.” Holmes, 350 Md. at 424.

There was no dispute that the statements that the State elicited were prior consistent statements. The heart of Thomas’s argument was that Benjamin’s motive to fabricate testimony arose as soon as the police stopped him and found crack cocaine in his possession and that since this motive arose before all of the statements in question occurred, the statements were not admissible under the Rule.

A witness’s prior consistent statement is admissible if made prior to the existence of any one of multiple biases or motives that an opposing party charges, expressly or impliedly, might have influenced the witness’s testimony.

In People v. Hayes, 802 P.2d 376 (Cal.1990), the defendant impeached a prosecution witness with the fact that he had criminal charges pending against him, and implied that the witness was testifying in a manner favorable to the prosecution to obtain a lenient disposition on those charges. Id. at 394. The prosecution sought to introduce the witness’s prior consistent statement, arguing that the criminal charges had not been brought at the time the witness made the statement. Id. The defendant responded that the witness still had a motive to lie when he made the prior consistent statement because he was on probation and was a suspect in the investigation of the crimes for which the defendant was on trial. Id. at 395. The trial court admitted the prior consistent statement and the California Supreme Court affirmed.

California’s statute governing the admission of prior consistent statements is similar to Maryland’s. The court held that a prior consistent statement, otherwise meeting the statutory requirements, “is admissible if it was made before the existence of any one or more of the biases or motives that, according to the opposing party’s express or implied charge, may have influenced the witness’s testimony.” Hayes, 802 P.2d at 395. Neither the California rule nor the Maryland rule requires that a prior consistent statement precede all alleged motives to fabricate.

Accordingly, Benjamin’s statements, offered in evidence through the police officers, that Benjamin bought the drugs from Thomas, was admissible under Rule 5–802.1(b). They were made by a witness subject to cross-examination, consistent with the witness’s in-court testimony, offered to rebut express or implied charges of fabrication, improper influence or motive.

COMMENTARY: Rule 5–616(c)(2) provides for the admission of prior consistent statements to rehabilitate a witness. Prior consistent statements admitted into evidence under Rule 5–616(c) are not admissible as substantive evidence but are admitted to rehabilitate the witness’s credibility.

“Under Md. Rule 5–616(c)(2), a prior consistent statement is admissible to rehabilitate a witness as long as the fact that the witness has made a consistent statement detracts from the impeachment. [S]uch statements by definition are not offered as hearsay and logically do not have to meet the same requirements as hearsay statements falling within an exception to the hearsay rule. We therefore conclude that a relevant consistent statement admitted solely for the purpose of rehabilitation is not required to meet the stringent premotive requirement of Md. Rule 5–802.1(b).” Holmes, 350 Md. at 427.

“Because Holmes does not require the State to articulate whether it is seeking to admit the prior consistent statement for substantive or rehabilitative purposes, it places two burdens on the defendant. First, it is incumbent on the defendant to inquire about the basis upon which the State intends to introduce the prior consistent statement. Second, the defendant must request a jury instruction limiting the use of the prior consistent statement for rehabilitative purposes only.” McCray v. State, 122 Md.App. 598, 609 (1998).

Thus, at a minimum, if Thomas wished to limit the use of the prior consistent statements to rehabilitative purposes rather than as substantive evidence, he needed to raise the issue with the court and request a limiting instruction. He did not do so.

Accordingly, Benjamin’s prior consistent statements were admissible also under Rule 5–616(c) as rehabilitative evidence.

PRACTICE TIPS: Prior consistent statements offered merely as corroborative evidence are excluded on relevancy grounds and also on the need to avoid unnecessary repetition of cumulative evidence, as well as the need to prevent fabrication of evidence.

Family Law

Jurisdiction

BOTTOM LINE: Where husband first filed his petition for a divorce and custody in a circuit court in Ghana, under the rules of comity, the circuit court in Harford County did not have jurisdiction over Wife’s complaint for divorce and custody.

CASE: Apenyo v. Apenyo, No. 1461, Sept. Term, 2010 (filed Dec. 2, 2011) (Judges Eyler, J., Wright, MOYLAN & Charles (retired, specially assigned)). RecordFax No. 11-1202-00, 31 pages.

FACTS: Kofi Apenyo (the Husband) and Mabel Apenyo (the Wife), both natives of Ghana, married in Ghana in 1995 and had two children, both of whom were born in Ghana. In 2002, the family moved to Harford County. Dede, the daughter, however, now 12, was sent back to Ghana to live with relatives one year later. By 2009, the marriage had deteriorated, and on July 1, 2009, the Husband returned to Ghana, taking with him his son, Tsikata, now 16.

On August 31, 2009, the Husband filed in a circuit court in Ghana his petition for a divorce and for the custody of both children. While the Wife was in Ghana shortly thereafter because of the death of her father, she was served with a copy of the Husband’s divorce petition.

Counsel for the Wife filed a notice of appearance in the Ghana court, and filed on the Wife’s behalf her motion to have the divorce petition dismissed on the ground that the Ghana court had no jurisdiction over the matter. The Wife’s motion to dismiss was denied.

The Wife filed in the circuit court for Harford County her petition for a divorce and also asking for the custody of both children. The Husband was served in Ghana with a copy of that petition.

The Husband filed a motion to dismiss the Wife’s divorce complaint on the ground that his earlier filed divorce complaint was then pending in the courts of Ghana and took precedence over the later filed petition. The circuit court granted the Husband’s motion to dismiss.

The Wife appealed to the Court of Special Appeals, which affirmed.

LAW: Comity has two very different applications, one post-trial and the other pre-trial. Comity with a capital “C” refers to the deference that one jurisdiction should afford to the finally litigated judgments and orders of another jurisdiction, by way of recognizing and enforcing those judgments and orders. With respect to the states of the United States, such comity is constitutionally mandated by the Full Faith and Credit Clause of Article IV, Section 1. See Day v. Day, 237 Md. 229 (1965).

The pre-trial comity is essentially the courteous deference by one court to another court that has gone first. “As a matter of comity,…the court of one state may stay or dismiss a proceeding pending before it on the ground that a case involving the same subject matter and the same parties is pending in a court of another state or foreign country. A final judgment favorable to the plaintiffs in the prior action eliminates the need to proceed with the later action where the plaintiffs are the same in both actions; in turn, a final judgment favorable to the defendant may be pleaded in bar to the later action.” Corpus Juris Secundum, §308, p. 21.

Some of the Maryland caselaw on this general subject is limited to the deference which the courts of one Maryland county owe to the courts of another Maryland county which has made a prior assertion of jurisdiction over the case. State v. 91st Street Joint Venture, 330 Md. 620, 625 A.2d 953 (1993). There is also comity between American state and American state. There is finally the somewhat different question of comity between an American jurisdiction, such as Harford County, Maryland, and a foreign nation, such as Ghana. See, e.g., Telnikoff v. Matusevitch, 347 Md. 561 (1997).

“The decision to grant a stay or to dismiss a case due to the pendency of prior parallel proceedings in a different state or foreign country is generally within the sound discretion of the trial court. In deciding to dismiss a case on the ground of international comity, a court should normally consider whether an adequate forum exists in the objecting nation; whether the foreign court abides by fundamental standards of procedural fairness; and whether the defendant sought to be sued in the United States forum is subject to or has consented to the assertion of jurisdiction against it in the foreign forum.” Corpus Juris Secundum, at §309, p. 301.

The Wife cited to Garg v. Garg, 163 Md.App. 546 (2005), as authority for the proposition that the Harford County judge could have separated the disposition of the divorce case from that of the custody case, allowing the divorce action to stay in Harford County even if the custody case went to Ghana.

In Garg, the divorce case was remanded to the circuit court because the reason the circuit court had given for dismissing it was not a valid one. Although a custody action was already pending in India when the Baltimore County petition for both custody and divorce was filed, a prior divorce action was not so pending. Id. at 576.

Far from separating the divorce action from the custody action, however, the Garg decision also remanded the custody case to the circuit court for reconsideration, albeit for the different reason that no independent counsel for the child had been appointed. Id. at 577. It was that holding in Garg that was reversed by the Court of Appeals. See Garg v. Garg, 393 Md. 335 (2006).

At no point, however, was the Court in Garg ever asked to consider whether a divorce case could, or should, go in one jurisdictional direction while an intertwined custody case was going in a different jurisdictional direction or whether better policy should treat them as related aspects of a single indivisible domestic totality.

This was not simply a case wherein the divorce action was already pending in Ghana when the Harford County complaint for divorce was filed a month later. The Wife was in Ghana and was personally served in Ghana with a copy of the Husband’s complaint. A Ghana attorney entered his appearance in the Ghana court on her behalf. Through her attorney, moreover, the Wife filed a motion in the Ghana court to have the divorce action dismissed on the ground that the Ghana court had no jurisdiction.

The Ghana circuit court judge postponed the hearing on the Wife’s motion, at the Wife’s request. The motion was ultimately submitted to the judge on the basis of legal argument, supporting documents, and factual affidavits filed by both the Wife and the Husband. The judge’s opinion and ruling made several critical findings of fact and ultimately denied the Wife’s motion to dismiss. Copies of all of these proceedings were in the file before the circuit court judge in Harford County.

Accordingly, the trial judge did not err in dismissing the divorce complaint in Harford County.

COMMENTARY: Section 9.5–201(a)(1) provides that a Maryland court has jurisdiction to make an initial child custody determination if Maryland “was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in his State.”

FL §9.5–101(h)(1) defines “home state” as: “the state in which a child lived with a parent…for at least 6 consecutive months, including any temporary absence immediately before the commencement of a child custody proceeding.”

Maryland clearly was the “home state” of Tsikata within the six-month period prior to September 28, 2009, when the wife filed here petition.

Under FL §9.5–206(a), a court may not exercise its jurisdiction if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this title.”

The presumption was that the law of Ghana “is in substantial conformity with Maryland law.” Unless the burden of rebutting the presumption of jurisdictional adequacy was satisfied, the circuit court was required to grant comity to Ghana’s assertion of jurisdiction over the case.

The Wife did not offer any evidence to rebut the presumption of jurisdictional adequacy, despite being given multiple opportunities to do so. Thus, the Harford County circuit court judge did not err in granting the Husband’s motion to dismiss.

Dede, however, returned to Ghana within a year of arriving in the United States with her parents and she has lived in Ghana uninterruptedly for the last eight years. Maryland was not the “home state” of Dede and, therefore, Harford County, pursuant to §9.5–201, had no jurisdiction over her case in the first place.

PRACTICE TIPS: “[T]he best interests and welfare of the children of the same parents are best served by keeping them together to grow up as brothers and sisters under the same roof” and “Maryland law frowns upon the division of siblings.” Hadick v. Hadick, 90 Md.App. 740, 748 (1992).

Real Property

Prescriptive easement

BOTTOM LINE: Plaintiff established a prescriptive easement over a portion of defendant’s property where plaintiff’s use of the property was adverse, exclusive, and continuous for the statutory period requirements.

CASE: Turner v. Bouchard, No. 1573, Sept. Term, 2010 (filed Dec. 2, 2011) (Judges Eyler, D., MATRICCIANI & Moylan (retired, specially assigned)). RecordFax No. 11-1202-01, 26 pages.

FACTS: John and Marie Turner owned 11730 Big Bear Lane (lot 17) and Donald Bouchard owned 11734 Big Bear Lane (lot 16). The back yards of both lots abut Lake Lariat, a man-made lake used by both parties for recreational purposes.

Both lot 16 and lot 17 were previously owned by Luther and Dorothy Muth. The Muths improved lot 16 by building a house, a crushed stone driveway, and a concrete retaining wall. A portion of the driveway and retaining wall were located on lot 17, but lot 17 was otherwise unimproved and did not have a house.

The Muths sold lot 16 to Bouchard on October 29, 1975. Because the home on lot 16 was within a few feet of the property line, the Muths conveyed by separate recorded deed an express easement across a small portion of lot 17 to serve as a driveway for pedestrian and vehicular ingress and egress to a portion of Bouchard’s property. From 1975 to 1980 Bouchard used lot 16 as a recreational place for the family. From 1980 until 1999 Bouchard used lot 16 as a rental property. The house on lot 16 did not become Bouchard’s primary residence until 2000.

The Muths sold lot 17 to Bouchard and Turner’s parents on December 9, 1980 as tenants in common. In 1984, Turner’s parents bought out Bouchard’s interest in lot 17 and became the sole owners of the property. Both the 1980 and the 1984 deeds expressly incorporated the express easement. In 2005, Turner purchased lot 17 from his parents and built a house there.

The properties share a concrete retaining wall that begins on lot 16, crosses the property line in a north-easternly direction, turns and veers approximately parallel to the property line, and then ends on lot 17.

A portion of lot 17 is outside the boundary of the express easement (the Disputed Area). The western portion of the Disputed Area is on lot 17 between the retaining wall and the express easement. The eastern portion of the Disputed Area is a rectangle beginning at the retaining wall and continuing to the lake, bordered by the property line with lot 16 and a line parallel thereto. Bouchard used the western portion of the Disputed Area as a driveway to access his house and to park vehicles. He used the eastern portion of the Disputed Area to store various watercraft, as a picnic area, and as access to the lake.

In 2006 the Turners demanded that the Bouchards cease using the Disputed Area. According to the Turners, the Bouchards were not entitled to use the portion of the land that was located on lot 17 between the lot line and the retaining wall.

Bouchard filed a complaint for declaratory judgment under CJ §3–406. Bouchard argued that he had established a prescriptive easement over the Disputed Area. The circuit court found that Bouchard had a prescriptive easement over a portion of Turner’s property.

The Turners appealed to the Court of Special Appeals, which affirmed.

LAW: An easement is a nonpossessory interest in the real property of another. An easement can be created expressly or by implication. One type of easement created by implication is an easement by prescription. Jurgensen v. New Phoenix Atl. Condo. Council, 380 Md. 106, 122–23 (2004). To establish an easement by prescription a person must make an adverse, exclusive, and uninterrupted use of another’s real property for twenty years. Shuggars v. Brake, 248 Md. 38, 45 (1967).

Adverse use is established when the use is without license or permission. Cox v. Forrest, 60 Md. 74, 79 (1883). In determining whether a use is adverse, “the real point of distinction [is] between a permissive or tolerated user, and one which is claimed as a matter of right. 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” Id. at 79–80.

“The owner of the dominant tenement is entitled to use the easement only in such manner as is fairly contemplated by his grant.” Miller v. Kirkpatrick, 377 Md. 335, 350 (2003). Bouchard’s use of the Disputed Area was in excess of the use granted by deed, as the deed did not grant use all the way to the retaining wall, or from the retaining wall to the lake. Land the original easement deed did not convey to Bouchard was retained by the Muths, ran with the land, and is now Turner’s property. Millson v. Laughlin, 217 Md. 576, 585 (1958).

Turner’s parents owned lot 18, which they used to store a small boat and access the lake. Bouchard testified that if the Turners ever launched their boat from lot 18 they would have passed Bouchard’s property, and, upon doing so, would have seen Bouchard’s open use of the Disputed Area as a storage space for his own boats.

Further, Turner’s parents’ full-time home was a mere 100 yards from the driveway of lot 17. At any time during the statutory period they could have taken a short walk to inspect whether Bouchard’s use of their property was within the scope of the express easement.

It was Turner’s burden to produce affirmative evidence that Bouchard’s use of the Disputed Area was permissive, a burden which he did not satisfy. Accordingly, Bouchard’s use of the Disputed Area was adverse.

The exclusive requirement means “the claim of user must not depend on the claim of someone else.” Shuggars v. Brake, 248 Md. 38, 45 (1966).

There was no evidence that the Disputed Area was used by the general public. Because there was no evidence in the record to suggest that Bouchard’s use of the Disputed Area depended on the claim of anyone else, the circuit court held correctly that his use was exclusive. See Mahoney v. Devonshire, 86 Md.App. 624, 637 (1991).

To be uninterrupted and continuous, the claimant need not use the right of way every day for the full twenty year period. Rather, the claimant must exercise 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 a voluntary abandonment on the part of the person claiming it. Cox, 60 Md. at 80.

The Muths granted Bouchard the express easement in 1975 along with the title to lot 16, and Bouchard immediately began to exceed the scope of the express easement. Bouchard’s use of the Disputed Area was interrupted in 1980 when he gained an interest in lot 17. In 1984, Bouchard sold his interest in lot 17 to Turner’s parents, and continued to exceed the scope of the express easement.

Thus, for purposes of evaluating the statutory period, the operative year is 1984. Twenty-two years passed before Turner began protesting Bouchard’s use of the Disputed Area in 2006, so the statutory period of twenty years was satisfied.

Bouchard used lot 16 as a rental property from 1980 until 1999. He then spent a year fixing up the property and began to live there full time in 2000. The use of the Disputed Area by Bouchard’s tenants and his own use of the Disputed Area may be combined and considered together as continuous use.

Based on the evidence presented, the circuit court did not err in finding that Bouchard’s use of the Disputed Area was continuous and uninterrupted. Because Bouchard use of the Disputed Area was adverse, exclusive, and continuous for the statutory period, Bouchard established a prescriptive easement over the Disputed Area.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Turner argued that the circuit court erred in not assigning Bouchard the burden of proving that his use of the Disputed Area was adverse.

Ordinarily, the person claiming a prescriptive easement bears the burden of showing that “it has had the character and is of the duration required by law.” Dalton v. Real Estate Imp’v’t Co., 201 Md. 34, 41 (1952).

In Feldstein v. Segall, 198 Md. 285 (1991), Feldstein filed suit against Segall to establish the widening by prescription to twenty-three feet of a ten foot right of way granted by deed. The circuit court allowed Feldstein’s claim to a twenty-three foot right of way as to the southern portion of the claimed easement by prescription, and disallowed the claim as to the northern portion.

The Court of Appeals reversed the judgment of the circuit court and dismissed the complaint. The Court recognized that an express easement may be widened by prescription, but cautioned that “use originally permissive or of right is presumed to continue, and there must be affirmative evidence of change to adverse use.” Feldstein, 198 Md. at 295. Feldstein’s use of the servient tenement was with permission of a prior owner of Segall’s property, and was so miscellaneous and promiscuous that it could not be called either adverse or exclusive. In holding that Feldstein did not establish a widened easement by prescription, the Court concluded that to “acquire title by adverse possession to one’s neighbor’s property the evidence must show something more than bad manners and unneighborly conduct.” Id. at 296.

Turner interpreted Feldstein to stand for the propositions that: (1) an express easement cannot be enlarged by prescription unless the dominant tenant can show affirmative evidence of a change to adverse use; and (2) there is a heightened burden of proof between neighbors.

Feldstein was distinguishable from this case. First, a previous owner of the servient estate gave the easement holders permission to cross his property. Only because the use was permissive did the burden shift to the easement holder to show affirmative evidence of a change to an adverse use. Second, the use of the servient tenement was so miscellaneous and promiscuous that it failed to meet the adverse or exclusive elements of a prescriptive easement.

Moreover, evidence of a permissive use of the servient estate will not be overcome by allegations of neighborly accommodation. See Mavromoustakos v. Padussis, 112 Md.App. 59 (1996).

The circuit court interpreted Feldstein properly. The circuit court found no other evidence that Bouchard’s use of the Disputed Area was permissive.

Under the “woodlands exception,” “when unenclosed and unimproved wildlands or woodlands are involved, the presumption is that the use was permissive, and the burden of proving that the use was adverse or under a claim of right is upon the one asserting these rights.” Forrester v. Kiler, 98 Md.App. 481, 485 (1993).

Lots 16 and 17 are quarter-acre parcels located in a subdivision with hundreds of other similar sized parcels. Both lots are improved with houses and driveways, as well as less formal clearings that are used as paths to access the lake. Though some portions of lot 17 have a steep terrain and contain un-trimmed vegetation, the Disputed Area itself is bounded by a retaining wall and has been cleared and maintained.

The circuit court did not err in finding that the woodlands exception did not apply.

PRACTICE TIPS: “In every instance of a private easement—that is, an easement not enjoyed by the public—there exists the characteristic feature of two distinct tenements—one dominant [the estate that benefits from the easement] and the other servient [the estate that is burdened by the easement].” Board of County Comm’rs v. Bell Atlantic–Maryland, 346 Md. 160, 175 (1997).