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Opinions – 7/2/12: Maryland Court of Special Appeals

Real Property

Interpretation of deed

BOTTOM LINE: The circuit court did not err by declaring that plaintiff owned no interest in a 10-foot strip of land that borders property owned by both plaintiff and defendants, and that defendant holds all right, title and interest in and to the strip, subject to an easement.

CASE: Annapolis Roads Property Owners Association v. Lindsay, No. 1380, September Term, 2010 (filed June 4, 2012) (Judges Matricciani, WATTS & Eyler, J. (retired, specially assigned)). RecordFax No. 12-0604-01, 65 pages.

FACTS: In 1925, the Annapolis Roads subdivision, then known as “Belmont,” was conveyed to The Armstrong Company by Rella Abell Armstrong. In 1927, The Armstrong Company entered into an agreement with The Munsey Trust Company regarding the Annapolis Roads subdivision. The agreement, dated November 22, 1927, required The Munsey Trust Company to develop the community and make payments on a proposed mortgage in favor of The Equitable Company. This agreement required the following language to be included in all subsequent deeds for sale of property in the Annapolis Roads subdivision: “The ARMSTRONG CORPORATION especially reserves all riparian rights appurtenant to the land as well as the beds of all roads, lakes and ponds, and agrees to construct roadways of approved type as indicated on the plat and survey made by Olmstead Brothers and recorded in the land records of Anne Arundel County, Maryland.”

In 1927, Equitable, as mortgagee, lent the Annapolis Roads Company (ARC) $250,000. ARC conveyed fee simple title to Equitable with a grant of possession to ARC, until default of the loan, upon which event Equitable would possess the property. In the 1927 Mortgage, ARC granted unto Equitable, in fee simple, all the land known as “Belmont,” “together with the building and improvements thereon and the rights, roads, ways, waters, privileges, appurtenances and advantages, thereto belonging or in anywise appertaining.”

On September 18, 1928, the 1928 Plat was recorded, creating Lots 18, 19, 20, and 21. A ten-foot strip of land (the Strip) was first depicted on the 1928 Plat. As shown on the 1928 Plat, Lot 21 had no access to Carrollton Road except over the Strip. Lot 18 had access to Carrollton Road over the Strip and over a similar strip binding the opposite side of Lot 19 running between Lots 16 and 19. Lots 19 and 20 fronted Carrollton Road, having direct access to it.

On December 10, 1928, ARC conveyed Lot 18 to F.K. Mohler together with “all…the rights, alleys, ways, privileges, appurtenances and advantages to the same belonging or in anywise appertaining.” ARC reserved the beds of all roadways, lakes and ponds. Mohler conveyed Lot 18 back to ARC in 1929 but in 1931, ARC conveyed Lot 18 back to Mohler.

In 1957, the Powells, the subsequent owners of Lot 18, conveyed a portion of Lot 18 to the owners of Lot 19. In 1961, the Powells conveyed Lot 18 to Thomas F. and Dorothy S. Horton. In 1962, the Hortons conveyed a portion of Lot 18 to the owners of Lot 19. In 1992, the Estate of R.N. Brown sold Lot 18, as well as Lot 17, to Stanley and Barbara Samorajczyk. Lot 18 is now in combination with Lot 17 and is designated as 2525 Carrollton Road, and is owned by the Samorajczyks.

By deed dated October 8, 1928, ARC conveyed Lot 19 to Homes Improvement Company, together with “all…the rights, alleys, ways…privileges, and appurtenances and advantages to the same belonging or in anywise appertaining.” ARC “reserve[d] and retaine[d]…the beds of all roadways, lakes and ponds.”

In 1928, The Homes Improvement Company conveyed Lot 19 to Mr. and Mrs. Clinton Bradley. In 1941, Mrs. Bradley sold Lots 19, 20, and 21 to Jean Pierre and Margery Dort Trouchaud. In 1957, the Trouchauds conveyed Lot 19 to Harry T. and Grace E. Solomon. In 1957, the Solomons conveyed Lot 19 to Mary Baquol and, on the same day, Baquol conveyed Lot 19 back to the Solomons. In 1977, the Solomons conveyed Lot 19 to John H. Gill, who conveyed it to the Kinneys in 1983. In 2006, the Kinneys conveyed Lot 19 to Thomas C. Lindsay, Sr. and The Thomas C. Lindsay, Sr. Revocable Trust (the Lindsay Trust). Lot 19 is designated as 2515 Carrollton Road and is owned by the Lindsay Trust.

By deed dated June 23, 1932, ARC conveyed Lots 20 and 21 to Helen Sagrario. This deed included no reservation by ARC of the beds of roadways or any other reservation, restriction, or retention of any kind. On July 6, 1932, Sagrario conveyed Lots 20 and 21 to Mrs. Bradley using the standard form of contract of sale and deed that previously had been used by ARC, prior to the conveyance to Sagrario.

In 1953, the Trouchauds conveyed Lots 20 and 21 to Paul and Virginia Anderson by deed, including one-half of the Strip that bordered on Lot 20. The deed to the Andersons provided for a use in common of the Strip. In 1959, the Andersons conveyed Lots 20 and 21 to Edward and Agnes Erdelatz, who sold them to John Talbot and Margaret Talbot in 1976. By deed dated May 25, 1976, the Talbots conveyed the portion of the Strip binding Lots 20 and 21 to the Solomons. Lots 20 and 21 are designated as 2509 Carrollton Road, and are owned by Margaret Talbot.

In 2007, the Annapolis Roads Property Owners Association (ARPOA), Stanley and Barbara Samorajczyk, and Margaret Talbot, filed a complaint in the circuit court against the Lindsay Trust seeking a declaratory judgment that title to the Strip vests in ARPOA and not the Lindsay Trust. The Lindsay Trust filed a motion to dismiss.

The circuit court issued an order of declaratory judgment, declaring that ARPOA holds no right, title, or interest in the Strip “binding” upon Lots 18, 19, 20, and 21 of the Annapolis Roads subdivision (the First Declaratory Judgment). The court found, as a matter of law, that the plain language of the October 8, 1928 deed was ambiguous with regard to whether ARC intended to convey the Strip to Homes Improvement Company, its successors and assigns, including the Lindsay Trust. Therefore, that ambiguity was construed against ARPOA’s predecessor in interest, ARC.

The circuit court also issued a second declaratory judgment (the Second Declaratory Judgment) declaring that the Lindsay Trust holds all right, title and interest in the Strip “binding” upon Lots 18, 19, 20, and 21 of the Annapolis Roads subdivision, subject, however, to an easement appurtenant to Lot No. 18, owned by the Samorajczyks, to use the right of way for ingress and egress to Carrollton Road.

The Court of Special Appeals affirmed.

LAW: Preliminarily, the question was whether the Strip is a roadway. In 1913, a roadway was defined by Webster’s Dictionary as a “road; especially, the part traveled by carriages.” “Road,” in turn, was defined as any “place where one may ride; an open way or public passage for vehicles, persons, and animals; a track for travel, forming a means of communication between one city, town, or place, and another.”

The 1913 edition of Webster’s defined a “way” as “[t]hat by, upon, or along, which one passes or processes…; passage; road, street track, or path of any kind[.]” “Alley” was defined as a “narrow passage; especially a walk or passage in a garden or park, bordered by rows of trees or bushes; a bordered way.” “Way” was defined as “[t]hat by, upon, or along, which one passes or processes[.]”

The Strip is not a roadway, but rather it is a shared driveway. A review of the September 18, 1928, Plat clearly indicates that certain rights of way were specifically designated as roads in the Annapolis Roads Community, demonstrated predominantly by the right-of-way labeled “Carrol[1]ton Road.” By contrast, the Strip has no designation as a road of any kind.

A review of the 1928 Plat indicates that the Strip was shared access between Lots 18, 19, 20, and 21. Looking at the plain language of the deeds, ARC only retained rights and interests in the beds of roadways, conveying “all…alleys [and] ways, privileges, appurtenances and advantages to the same belonging or in anywise appertaining [to the lot].”

The Strip did not provide a track for travel between cities or towns, but rather allowed the owners of Lots 18, 19, 20, and 21 to access Carrollton Road as a “way.” As such, the Strip was a part of the lots binding it, and when lots were conveyed, the portion of the Strip binding the lots was also conveyed. Thus, on October 8, 1928, ARC’s conveyance by deed of Lot 19 to The Homes Improvement Company included the Strip.

Having determined that the Strip is a not road, ARC’s reservation in the “beds of all roadways” failed to expressly reserve any right to the Strip.

Under Art. 21 §5-114 (1957, 1973 Repl. Vol.), which was re-codified at RP §2-114, a deed which conveys land, binding on any street or highway, shall be construed to pass to the grantee all the right, title, and interest of the grantor in the street or highway. However, to the extent the grantor owns other land on the opposite side of the street or highway, then the deed passes the right, title, and interest of the grantor only to the center of that portion of the street or upon which the two tracts co-extensively bind. See Boucher v. Boyer, 301 Md. 679, 687 (1984).

As to Lots 18 and 19, ARC’s reservation in “the beds of all roadways” was not sufficient to constitute an “express reservation” in the Strip. The deeds conveyed to the grantees the “alleys” and “ways,” while reserving the interest in the “beds of all roadways”; because the Strip was not labeled as a road on the 1928 Plat nor specified in the deed as a road, it was unclear whether the deed reserving the grantor’s interest in the “beds of all roadways” included an express reservation in the Strip.

The burden is on the grantor to demonstrate an express intention to reserve the street after conveying the land bordering the street. See Bowie v. W. Md. R.R. Terminal Co., 133 Md. 1, 11 (1918). Any words in the deed susceptible of more than one construction are construed against the grantor and in favor of the grantee. Therefore, ARC failed to expressly reserve any interest in the Strip.

Applying this principle, and construing the language in favor of the grantees, the October 8, 1928, conveyance of Lot 19 to The Homes Improvement Company and the February 20, 1931, conveyance of Lot 18 to Mohler, conveyed with those Lots “to the center of” the Strip. See Art. 21 §5-114.

When ARC conveyed Lots 20 and 21 to Sagrario on June 23, 1932, ARC failed to expressly reserve a right to the beds of all roadways. The June 1932 conveyance of Lots 20 and 21 conveyed, by operation of law, any interest that ARC had in the Strip.

Thus, the circuit court properly entered the First Declaratory Judgment finding that ARPOA holds no right, title, or interest in and to the Strip. When ARC conveyed Lot 19 to The Homes Improvement Company in 1928, Lot 18 to Mohler in 1928 and 1931, and Lots 20 and 21 to Sagrario in 1932, ARC conveyed its interest in the Strip.

Furthermore, the circuit court properly issued the Second Declaratory Judgment holding that the Lindsay Trust holds all right, title, and interest in and to the Strip. The following conveyances supported this conclusion.

In 1957, the Trouchauds conveyed Lot 19 to the Solomons. After this conveyance the Solomons owned the portion of the Strip binding Lot 19. In 1962, the Hortons conveyed title to one-half of the Strip owned by Lot 18 to the Solomons. The deed reserved to the Hortons and their successors a right to use the one-half of the Strip owned by Lot 18 to access Carrollton Road. At that point, the Solomons owned the portion of the Strip binding Lots 18 and 19. On May 25, 1976, the Talbots conveyed, by express grant, title to the remaining portion of the Strip, i.e. the portion of the Strip binding Lots 20 and 21, to the Solomons. Following these three conveyances, the Solomons became the fee simple owners of the Strip. In 2006, the Solomons conveyed Lot 19 and their interest in the entire Strip to the Lindsay Trust.

As such, the Lindsay Trust holds all right, title, and interest in and to the Strip.

COMMENTARY: The Lindsay Trust filed a cross-appeal arguing that the circuit court erred in finding that the Strip is subject to an easement appurtenant to Lot 18.

“An easement is broadly defined as a nonpossessory interest in the real property of another. An easement involves the privilege of doing a certain class of act on, or to the detriment of, another’s land, or a right against another that he refrain from doing a certain class of act on or in connection with his own land[.]” Sharp v. Downey, 197 Md. App. 123, 159-60 (2010).

When interpreting an instrument creating an express easement, the basic principles of contract interpretation apply. See White v. Pines Cmty. Improvement Ass’n, 403 Md. 13, 31-32 (2008). “The primary consideration in construing the scope of an express easement is the language of the grant.” Md. Agric. Land Pres. Found. v. Claggett, 412 Md. 45, 63 (2009).

“An easement may be created by express grant, by reservation in a conveyance of land, or by implication.” Sharp, 197 Md.App. at 160-61.

An express easement can be created only through a written instrument containing “the names of the grantor and grantee, a description of the property sufficient to identify it with reasonable certainty, and the interest or estate intended to be granted.” Kobrine v. Metzger, 380 Md. 620, 630 (2004).

The August 15, 1962, deed in which the Hortons conveyed a portion of Lot 18 to the Solomons included an express easement. Pursuant to the deed, the Hortons conveyed fee simple title to the Strip to the Solomons, who incorporated it into Lot 19. In doing so, however, the Hortons unambiguously reserved the right to use that strip of land for ingress and egress to Carrollton Road. The terms of that reservation are specific, and the location of the easement reserved is described by metes and bounds-”10 ft. right-of-way.”

“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. “[A] deed that is silent as to the right of way but refers to a plat that establishes such a right of way creates a rebuttable presumption that the parties intended to incorporate the right of way in the transaction.” Id. at 689.

The December 10, 1928, deed from ARC to Mohler conveying Lot 18 made a reference to the 1928 Plat, which clearly depicted the Strip. The reference to the 1928 Plat created a strong presumption that the conveyance included an easement to use the Strip for ingress and egress to and from Carrollton Road. The 1928 Plat depicts the Strip, and the Strip’s location between Lots 18, 19, 20 and 21.

Although the second conveyance from ARC to Mohler in the 1931 did not explicitly state a reference the 1928 plat, the conveyance referred to the 1928 Plat in three other specific ways. Those three specific pieces of information, combined with the chain of title containing the specific reference to the 1928 Plat, were sufficient to constitute a specific plat reference for purposes of conveyance and an easement to use the Strip.

Thus, the circuit court properly found that the Lindsay Trust holds all right, title and interest in and to the Strip subject to an easement appurtenant to Lot 18 to use the Strip for ingress and egress to Carrollton Road.

PRACTICE TIPS: “An owner’s ‘chain of title’ is simply the preceding recorded deeds…going back in time, in order. In Maryland, these deeds or instruments are generally found in the public land records, testamentary records, Orphans’ Court records, and judgment and lien records of the particular county wherein the land is located. A subsequent owner, therefore, has notice of what is contained in his or her actual chain of title even if he or she has never seen it, heard it, or even imagined that it existed.” Bright v. Lake Linganore Ass’n, Inc., 104 Md. App. 394, 424-25 (1995).