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No. 126, September Term, 1997 Robert E. Koch et al. v. Richard D. Strathmeyer et al.

[Whether Two Interior Lot Owners Enjoy An Implied Easement Over A 16 Foot Road Which Bisects The Property Of Two Waterfront Lot Owners]

IN THE COURT OF APPEALS OF MARYLAND No. 126 September Term, 1997 ___________________________________________

ROBERT E. KOCH et al.

v.

RICHARD D. STRATHMEYER et al.

__________________________________________ Bell, C.J., Eldridge Rodowsky *Chasanow Raker Wilner Cathell, JJ. ___________________________________________ Opinion by Eldridge, J. __________________________________________

*Chasanow, J., now retired, participated in the hearing and conference of this case while an active member of this Court but did not participate in the decision and adoption of this opinion
Filed: December 21, 1999

We granted a petition for writ of certiorari in this case to decide whether two interior lot owners enjoy an implied easement over a 16 foot road which bisects the property of two waterfront lot owners. I. In the Anne Arundel County waterfront subdivision formerly known as "Lerch's Point," there are four lots. On the west side of the subdivision, there are two waterfront lots owned by the petitioners (Mr. and Mrs. Koch and Mr. Brewer). Behind the petitioners' waterfront lots, on the east side of the community, there are two interior lots owned by the respondents (Mr. and Mrs. Strathmeyer and Mr. and Mrs. Hantske). A road, sixteen feet in width, runs between the Strathmeyer and Hantske lots on the east side of the community and continues between the Koch and Brewer lots leading west all the way to the water. The respondents, owners of the interior lots, claim that they have an easement over that road, between the two waterfront lots, so that they can access the water. The petitioners assert that the interior lot owners' easement does not extend west to the water, but that it is limited to ingress and egress from the interior lots to the public road on the east side of the community. The land that became this waterfront subdivision originally belonged to George Hazard. Hazard created the subdivision which he called "Lerch's Point" by having a plat of the property prepared in 1940. Although this plat was never recorded, Hazard began conveying away the land piecemeal according to the unrecorded plat. Hazard's original

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subdivision consisted of seven lots. Over time, those seven lots have been consolidated into the four lots presently owned by the parties in this case. The present-day waterfront lots, owned by the Koches and Mr. Brewer, were originally conveyed as four lots. The two lots directly abutting the water were conveyed first in 1940, and the two directly behind them were conveyed in 1941. The present-day interior lots, owned by the Strathmeyers and the Hantskes, were originally conveyed as three lots: two in 1948 and one in 1950. All four of the original deeds conveying the land which became the waterfront Koch and Brewer properties describe the lots in metes and bounds using the "16 foot road" as a boundary. From reading all four of the deeds, it is clear from the metes and bounds descriptions that the road runs between the present-day Koch and Brewer lots, leading from the shore of Lerch's Creek (formerly Gales Creek) on the west to the remainder of the property retained by Hazard on the east. All of the deeds refer to "the unrecorded plat of Lerch's Point." Today, the Koch and Brewer properties (the waterfront lots) are bisected by the 16 foot road, covered in gravel, up to a point 85 feet from Lerch's Creek. The shoreline in front of both properties is bulkheaded. From the bulkhead up to the gravel portion, the "road" is covered in grass, with the Koch and Brewer properties visibly blending into one another. Behind the Koch and Brewer lots, on the interior of the community, the 16 foot road then bisects what are now the two interior lots, owned by the Strathmeyers and the Hantskes. The Strathmeyers' lot, which is directly behind the Koches' lot, was originally conveyed as two lots by a single deed in 1948. This deed also uses the 16 foot road as a boundary in the

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metes and bounds description, separating the present-day Strathmeyer lot on the north from the present-day Hantske lot on the south. Finally, this deed also refers to "the unrecorded plat of Lerch's Point." After conveying away the land that became the Strathmeyer lot, Hazard conveyed his remaining interest in the property in 1950. This remainder, the present-day Hantske lot, is located directly behind Mr. Brewer's lot and directly across from the Strathmeyers' lot. Although this deed does not reference the unrecorded plat, it uses the 16 foot road as a boundary separating the present-day Hantske lot from the present-day Strathmeyer lot. The wording of the deed is unique in that it describes the road as "a 16 foot right of way (with use in common)." Finally, it is clear from the language of this deed that the 16 foot road ends on the east edge of the Strathmeyer and Hantske properties, where it intersects with a 20 foot-wide road. The 20 foot road runs north and south along the east edge of the community and leads to the "County Road" (presently named Church Lane). The Strathmeyers and Hantskes filed a two count complaint in the Circuit Court for Anne Arundel County against the Koches and Mr. Brewer. Count I sought a declaratory judgment that the plaintiffs enjoyed an implied easement over the 16 foot road extending all the way to Lerch's Creek. Count I also sought to enjoin Mr. and Mrs. Koch and Mr. Brewer from interfering with the plaintiffs' right-of-way, including the compelled removal of obstructions which existed in the right-of-way. Count II sought damages from Mr. and Mrs. Koch and Mr. Brewer for alleged interference with the plaintiffs' use of the right-of-way. The trial court held that the Strathmeyers and Hantskes had an implied easement over

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the 16 foot road extending from their properties all the way to Lerch's Creek. The court also enjoined Mr. and Mrs. Koch and Mr. Brewer from interfering with the Strathmeyers' and Hantskes' use of the right-of-way, and ordered the removal of obstructions from the right-ofway. As to Count II of the complaint, the trial court entered judgment in favor of the defendants. The Koches and Mr. Brewer appealed the adverse judgment under Count I to the Court of Special Appeals, which, in an unreported opinion, affirmed. Mr. and Mrs. Koch and Mr. Brewer filed in this Court a petition for a writ of certiorari which we granted. Koch v. Strathmeyer, 348 Md. 525, 704 A.2d 1245 (1998). In the certiorari petition, the following questions were presented:

"1. Must the existence of an implied easement be established by clear and convincing evidence or similar standard of proof? "2. Did the Court of Special Appeals err in not reversing the Trial Court's judgment as to Count I of the Complaint when the Trial Court was clearly erroneous in finding that Plaintiffs had proven the `clear manifestation' of the intent of the common grantor and the expectations of the original grantees necessary to establish that Plaintiffs now enjoy an implied easement to obtain access to Lerch Creek over an unimproved portion of a 16' right-of-way?"

II. We shall answer the two questions as one. The real issue presented to this Court is whether the creation of a "16 foot road" bounding all seven original lots in a waterfront subdivision, and leading from the public road directly to the water, is sufficient evidence of

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the "clear manifestation" of the common grantor's intent necessary to establish that the present interior lot owners enjoy an implied easement to the water over that 16 foot road. We shall hold that it is. The standard of proof necessary to establish an implied easement, under circumstances like these, is the "clear manifestation" of the intent of the common grantor. Williams Realty Co. v. Robey, 175 Md. 532, 539, 2 A.2d 683, 686 (1938). As this Court stated in Scholtes v. McColgan, 184 Md. 480, 489, 41 A.2d 479, 483-484 (1945), intention "is a question of fact," and the surrounding circumstances of the case must be analyzed in order to truly understand an unexpressed intention. Turner v. Brocato, 206 Md. 336, 351, 111 A.2d 855, 863 (1955) (concerning the intention to adopt a general scheme of development). The facts are undisputed. When George Hazard, the common grantor, conveyed the land then known as "Lerch's Point," he created a 16 foot road through the center of all seven lots. The road was used as a boundary in every original conveyance, and every lot conveyed abutted the road. The lots and the road were depicted in a plat adopted by the common grantor and referenced in all but one of the original conveyances. The road itself extended from a 20 foot road which led to the "County Road," through all the lots, and down to the edge of the water, then known as "Gales Creek." The existence, location, and size of this road is undisputed. By operation of law, when Hazard conveyed the property by a metes and bounds description naming the 16 foot road as a boundary, each lot owner acquired fee simple title

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up to the center of the road contiguous to his or her property. Maryland Code (1939), Art. 21,

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