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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1458 September Term, 1994

Nan J. Barchowsky v. Silver Farms, Inc. et al.

Cathell, Salmon, Garrity, John, J. (ret'd, specially assigned),

JJ.

Opinion by Garrity, John J.

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Filed:

June 7, 1995

This matter concerns a boundary dispute involving a lane that runs between the properties of two neighboring farms in Harford County, near Aberdeen, Maryland. PROCEDURAL SUMMARY On May 5, 1992, Nan Jay Barchowsky, appellant/cross appellee, filed a complaint for trespass and ejectment against Silver Farms, Inc., and Arthur and Marie Silver Coates, appellees/cross

appellants, over a farm lane running between the properties of the parties. The defendants thereafter filed an answer and counter

complaint against Ms. Barchowsky, the Maryland Environment Trust (MET),1 Robert I. Callahan, and William B. Thompson,2 seeking a declaratory judgment that those parties had no right, title, or interest in the lane. On March 21, 1994, the Circuit Court for Harford County (Close, J.) granted partial relief to both parties. Although

principally determining that Silver Farms, Inc., was vested with fee simple title to the farm lane, the court concluded that a technical trespass to Ms. Barchowsky's property had occurred, as a result of the location of a gate. BACKGROUND OF FACTS

MET did not participate in this litigation. It represented to the Court that it would amend the property description in the conservation easement in accordance with Barchowsky's property rights as determined by the court. Thompson and Callahan, who were represented by the same attorney and firm that represented Ms. Barchowsky, did not personally appear for trial and did not file an appeal.
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For the past 185 years, the Jay family and the Silver family have been neighbors on adjoining farms. This dispute centers on

Ms. Barchowsky's efforts to secure recognition from Silver Farms, Inc., of two points: (1) that the easterly boundary of her 83.96 acre farm corresponds to the center line of a lane known as Silver Lane (formerly known as Hoopman Mill Road or the Mill Road) that runs between her farm and the Silver Farms tract; and (2) that she and her successors have an easement by prescription over the remaining half of the lane in order to secure access to her cultivated farm fields from U.S. Route 40. For the last 63 years,

four generations of farmers from the Osborn family have leased and farmed both the Jay and Silver fields that run along either side of the disputed lane. The Osborns gained access to both of these

fields by way of this lane. Both the Jay and the Silver farms originated from a larger tract of land acquired by Peter Hoopman in 1807. In 1809, Peter

Hoopman (the great-great-great grandfather of appellee Marie Silver Coates) conveyed 165 acres of land to Frances Griffith, who later married a Jay. The 1809 deed did not mention the lane. The metes

and bounds description of the Jay/Griffith tract included a call to a stone near the farmhouse, then continued "North 84 degrees East 72 perches to a stone...." The parties agree that the second

stone, marking the northeast corner of this tract, and therefore the easterly border of the property, cannot be found. The lane originally ran from this second stone to Post Road

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but has since been shortened by the construction of the B & O Railroad, the Philadelphia, Wilmington and Baltimore Railroad, and U.S. Route 40. The first indication in the land records of the

existence of the lane appeared in a deed by the Jays to John Hopper for 50 acres in 1849 (hereinafter referred to as the "Hopper deed"). The Hopper deed refers to the disputed lane as "Hoopman's

Mill Road" and mentions that it intersected with the right of way of the Philadelphia, Wilmington and Baltimore Railroad. In 1883, Jeremiah P. Silver and John Jay conveyed strips of their lands to the Baltimore and Ohio Railroad Company, as

described by respective plats attached to the deeds.

Both of these

plats clearly evidenced the dividing line between what was then the Jay and Silver properties as being the center line of the lane. Ms. Barchowsky has lived on and off the Jay/Griffith tract all of her life but made it her permanent residence in 1960 after the death of her aunt, from whom she inherited the property. Ms. In 1962,

Barchowsky hired Frederick Ward and Associates (Ward) to

conduct a survey of the property in order to determine its boundary lines. Using the boundary description contained in the 1809 deed, Ward was unable to locate the second stone that was to mark the easterly boundary line. Having noted that the 1809 deed called for

a line running 72 perches (which equates to 1,188 feet) from stone to stone but being unable to locate the second stone, he determined that the easterly portion of the Jay/Griffith tract was the center

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of Silver Lane, using the lane as a monument.

The distance was In

thereby extended an additional 6.7 feet to 1,194.78 feet.

explaining the basis of extending the boundary line to the center of the lane, Ward stated: The only thing that we found was a fence post on the west side of this lane that we were discussing. And the distance was short of the 72 perches. And looking at all the evidence we had, the railroad plats which called for the center line of the lane as the property line, the distances on the deed and the knowledge that historically, if there was a road very close to a property line, they usually used the center line of the road as the property line. The road is obviously old. I don't know when it was put in, but it had obviously been there for a long, long time prior to 1962. So utilizing the evidence we had available in 1962, it was my determination that the proper location of that easterly boundary of the Barchowsky's property was the center line of that lane. Additionally, property line surveyor Vincent Nohe testified on behalf of Ms. Barchowsky. He placed the 1,188 foot point within

6.78 feet of the center of the lane, within the traveled portion of the present roadway, which was about 14 feet in width at the end of the 72 perch line. Relying on the Ward survey, Ms. Barchowsky, in 1978, executed a deed to the MET conveying a conservation easement in the

Jay/Griffith tract.

Additionally, in 1985, she executed a deed to

Callahan and Thompson conveying fee simple ownership to 2.82 acres, which included a portion of the lane in question. Ms. Barchowsky and her husband testified that they have

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casually used Silver Lane for walking, riding horses, and gathering firewood, residence. while using another road to gain access to their

Neither Ms. Barchowsky nor any of her predecessors in

title have paid for maintenance of the gravel surface of Silver Lane. Silver Farms, Inc., was incorporated in 1972. Its stock is

owned by Arthur and Marie Silver Coates who are also officers of the corporation. The corporation owns Silver Farms, consisting of

approximately 344 acres of land containing planted fields and a tree farming operation. In 1874, William S. Bowman was hired by The

the Silver family to conduct a survey of the Silver property.

Bowman survey concluded that the Silver property extended "to the West side of the Mill Road." The Coateses testified that the Silver family has claimed fee simple ownership of the entire road bed of Silver Lane and that they have never acknowledged that the Jays/Barchowskys have any right, title, or interest in the lane. M. Kirk Ritchie, a surveyor, testified on behalf of Silver Farms and opined that the easterly boundary of the Jays' property line runs near but to the westerly side of the gravel portion of Silver Lane, which he measured to vary in width from 9 to 11 feet. Ritchie stated that he had "no dispute with the measurements of the Ward survey. My difference of opinion is his opinion of the

eastern property line [which in Ward's opinion went to the center of the lane] not his measurement of distances." He further

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testified: Through lack of any other evidence, I would set the line at 1,188 feet from the stone found by the Barchowsky's house. That is what the deed (1809 deed) calls for. It doesn't call for a road. I would not extend it to a road. . . . There is a clearly defined order of definition of strength of boundary points. The most or the strongest boundary point to be used is the original documentation. The second strongest evidence in determining a boundary is the distance. The first strongest is not there. The stone does not exist. In October of 1991, the Silver family erected a gate across Silver Lane to protect their property against intruders who had vandalized their farm machinery, timber equipment and buildings, stolen property, ridden motorcycles and four-wheel drive vehicles up and down the lane, and dumped trash there. For some time, the

Osborns have been plowing snow off the lane and spraying weeds to prevent overgrowth, as a courtesy to both parties. The matter at bar commenced after the installation by the Coateses of the gate across Silver Lane and the fact that a key to the gate lock was not provided to the Barchowskys, although access has been continuously provided to the Osborns to farm the

Barchowsky fields.

After the gate and lock were installed, Ms.

Barchowsky filed suit against Silver Farms, Inc., and the Coateses for trespass and ejectment, claiming compensatory and punitive damages.

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The court's final judgment decreed: (1) Defendants' Motion to Enforce Stipulation and Agreement regarding damages and Motion to Alter, Amend or Revise Judgment is hereby Granted. (2) That neither the Plaintiff nor her predecessors in title acquired a right by prescriptive easement to use the lane in question. (3) That neither the Plaintiff nor her predecessors in title acquired by adverse possession a right to use the lane in question. (4) That the eastern boundary line of the Plaintiff's property is the west side of the lane in question. (5) That the Defendant, Silver Farms, Inc., is vested with fee simple title to the farm lane in question. (6) While the Court finds that a trespass and ejectment occurred, no damages will be awarded because of the stipulation and agreement of the parties as contained in the letter dated November 16, 1993, a copy of which was attached to Defendants' Motion referenced herein. (7) That the Court denies that the Plaintiff has an easement to use the lane either by way of implication or presumption. We are asked to determine: 1. Whether the circuit court correctly held that the easterly boundary of the Barchowsky parcel is to the west side of the disputed farm lane. 2. Whether the circuit court correctly held that Ms. Barchowsky did not establish a right to use the farm lane by prescriptive easement or by adverse possession.

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3. Whether the circuit court erred in finding that a trespass and ejectment had occurred since Barchowsky failed to establish title to the farm lane and failed to establish the specific location of the boundary line in question relative to the location of the gate post. 4. Whether the trial court correctly concluded that Barchowsky, who failed to prevail on the issue of ownership at trial, is barred from seeking or recovering damages because of the terms of a pretrial settlement agreement that required her to prevail on both the issues of liability and ownership at trial in order to receive the stipulated damage amount. DISCUSSION OF LAW I. THE BOUNDARY LINE As to the location of the common boundary line, the trial judge succinctly observed that "this issue depends upon whether the Plaintiff's (Barchowsky's) easterly boundary line extends to the center of the farm lane or ends on the west side of the lane." In ruling that the 1809 deed had priority over all subsequent deeds, including the Jay & Silver railroad deeds of 1883 that had recognized the boundary line to be the center of the lane, the trial judge found: The 1809 deed clearly calls for a 72 perch line. Since the second stone cannot be found, the next strongest measurement for a surveyor to use is the distance line. As a result, it is almost irrelevant whether or not the second stone can be found or for that matter, when the road first appeared, because 72 perches equals 1,188 feet. Therefore, the Plaintiff's easterly boundary line ends on the west side of the farm lane.

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Appellant Barchowsky takes issue with the court's premise of using the distance line as the strongest measurement because of the inability of surveyors to locate the second boundary stone. She asseverates that the trial judge should have first

conducted an analysis of existing evidence to determine whether the position of the monument could be located with reasonable certainty before relying on a distance call. The Coateses argue, on the other hand, that, since the original deed of 1809 clearly stated the course and distance (72 perches) from the still existing stone as the easterly boundary of the Jay tract, there is no need to refer to subsequent instruments in the chain of title of either parcel. While

recognizing that the railroad right-of-way recorded subsequent to the original deed described the boundary of each parcel as being the center of the lane, they argue that such deeds

executed subsequent to the 1809 deed could not establish or alter the location of the easterly boundary lane of the JayBarchowsky parcel. In Ski Roundtop v. Wagerman, 79 Md. App. 357 (1989), we held that subsequent deeds do not control the location of a boundary, and stated that a mistake in later instruments will not change the true boundary established by the earlier

instrument in the absence of facts giving rise to an estoppel. Writing on our behalf, Judge Alpert looked to the original land patent to determine the location of the disputed boundary and

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observed: Any discussion of subsequent deeds is irrelevant. In the absence of facts giving rise to an estoppel, we decline to establish a rule of law that binds successors to real property to all descriptions of property made by their predecessors in prior deeds, particularly where the original patent contradicts such deeds. Moreover, one purporting to be an adjoining landowner should not be allowed to capitalize on such mistakes where the boundaries are correctly established by even earlier deeds or, in this case, earlier patents. Id. at 365. As subsequent deeds may incorrectly reflect the intent of the original parties, we adhere to the longstanding rule that, in the absence of estoppel, a prior deed takes precedence over a subsequent deed in a dispute arising as to the boundary lines between adjoining tracts. (1861). Bryan's Lessee v. Harvey, 18 Md. 113

Indeed, the evidence in this case demonstrates that railroad deeds, surveyed by the railroads, and

subsequent

executed by the Jays and Silvers to the B&O are inconsistent with the 1833 railroad deeds executed by the parties. Although

some of the railroad deeds seem to support Ms. Barchowsky's claim, there are other railroad deeds that support the Coateses' position because they call to the westerly side of the lane as the boundary location rather than its center. While it is true that there is a common law presumption that the grant of a parcel containing a call to a line binding on a public or private road, alley, street, or highway is

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presumed to carry title to the center of the roadway, the presumption is rebuttable, and it is the description in the original deed that controls. The common law presumption was

modified and codified by the Maryland General Assembly in 1892 and is now found in Maryland Code (1974, 1988 Repl. Vol.),

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