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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1454 SEPTEMBER TERM, 1996 ___________________________________

WILLIAM C. MILLAR, Trustee of the William C. Millar Trust v. C. KEATING BOWIE et ux.

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Cathell, Sonner, Woodward, Patrick L. (specially assigned), JJ. ___________________________________ Opinion by Cathell, J. ___________________________________

Filed:

June 2, 1997

William C. Millar, Trustee of the William C. Millar Trust, appeals from a judgment of the Circuit Court for Talbot County (Horne, J., presiding) that set a boundary line between his

property (the "Eastern Parcel"), and the property of C. Keating and Alice F. Bowie, appellees, (the "Western Parcel") of what formerly was known as "Evergreen Farm." 1. Appellant presents several issues:

Whether a deed which describes a boundary line by reference to a monument (i.e., an "old fence line") requires resort to extrinsic evidence to determine the location of the boundary line[.][1] Whether the Trial Court may ignore language in a deed which describes the boundary line by reference to a monument because the Trial Court believes other language in the deed more clearly describes the location of the boundary line[.] Assuming arguendo that the description of the boundary line in the Bowies' Deed requires resort to extrinsic evidence to locate the monument (i.e., the old fence line), whether the Trial Court erred as a matter of law when it failed to consider

2.

3.

We attach hereto a copy of a portion of a map prepared in 1989 or later. We furnish it only to indicate that appellant contends that the boundary line is shown by the line we have identified on the map as angled "old fence line" and that appellees contended below and the trial court found that the boundary line is that line we have indicated by referring to it as "continuing in the same straight line." We have relocated the directional arrow for reference purposes. We emphasize that during the operative period in January of 1961, there were no metes and bounds descriptions. They were added in the 1989 map.

1

a plat, depicting an angled old fence line between the properties, which was incorporated by reference into the contract of sale by which the Bowies acquired their property[.] 4. Whether it was an abuse of discretion that the Trial Court did not factually determine that the boundary line is angled when the extrinsic evidence was uncontroverted that historically there was an angled old fence located in between the Eastern and Western Parcels[.]

Under the circumstances of the case sub judice, the answer to question number one is no. We answer question two by noting that

Judge Horne did not ignore the deed language; he rejected it as not creating the type of ambiguity that made it directly relevant to the final disposition. Moreover, Judge Horne found that the

operative language, "continuing in the same straight line" (emphasis added), clearly described the boundary line, i.e., was not ambiguous in the first instance. As to question number two, Judge Horne was

not clearly erroneous -- in fact, we perceive that he was correct. As to questions three and four, we see no need to assume anything arguendo. Initially, it was not the Bowies' deed that established It is the Jean Koehn deed that is the senior The Bowies' deed is essentially See Ski Roundtop, Inc. discussion of

the boundary line.

deed, i.e., the deed that controls.

irrelevant to the establishment of the boundary. v. Wagerman, 79 Md. App. 357, 365 (1989) ("Any

subsequent deeds is irrelevant.")

Moreover, our response to

appellant's first two issues and our affirmance of the trial court

- 3 for those reasons makes it unnecessary to resolve questions three and four. We note, however, that in our discussion and resolution

of issues one and two, we will address, to some extent, questions three and four. Periodically, as we discuss the facts, we will assess the trial court's factual findings. occasion, repeat that assessment. Appellant's title to the property at issue was derived from Jean W. Koehn,2 who, as a result of marital difficulties between her and C. Campbell Koehn Sr., obtained title to the tract through a deed that divided Evergreen Farm. This deed to her (the Jean We may, in our holding, on

Koehn deed), the senior deed at issue here, was executed and recorded in January of 1961. It provided a description that read:

BEGINNING on the Northwesterly side of the main driveway at the Southerly end of a concrete abutment erected over the causeway in said driveway and [1] running thence with the Northwesterly side of said driveway and a hedgerow in a Southwesterly direction and in a straight line to a point at the Southerly end of said driveway and the Southwesterly side of the barn road;[3] [2] thence continuing in the same straight line and with an old fence line between the park woods and the reserved land of the Grantors to the top of the bank along the shore line of Island Creek; thence at right angles to the shore line of Island Creek in a Southerly direction to the mean2

Jean Koehn subsequently remarried a Mr. Shannahan. sometimes referred to as Ms. Shannahan or Jean Shannahan.
3

She is

This point on the "barn road" has the characteristics of a "monument." It was extant in 1961. There is no dispute that it then existed or as to its location.

- 4 low-water line of Island Creek; thence up and with the meanderings of the mean-low-water line of Island Creek and a cove thereof to the Southerly end of the Southeasterly concrete abutment over the above-mentioned causeway; thence in a Northwesterly direction across the main driveway to the point of beginning; SUBJECT, HOWEVER, to a right of way for purposes of ingress and egress to the barn road over that part of the main driveway included in the outline of the above conveyance. [Emphasis added.] Subsequent to the January 1961 conveyance to Jean Koehn that partitioned Evergreen Farm, C. Campbell Koehn Sr. proposed to sell the remainder of Evergreen Farm. A real estate agent, Mr.

Bartlett, knowing that the farm was for sale, made arrangements for appellees to view the property on the 23rd day of September 1961. Prior to that time, but after the January 1961 partitioning of the farm, the real estate agent met with C. Campbell Koehn's attorney, with Thomas Critchlow, apparently a co-listing broker of the

property, and with a surveyor, Mr. Kastenhuber, at the farm to view the property. Neither appellees' nor appellant's predecessor was

present at this meeting. At this meeting, eight months after appellant's tract had been conveyed to Jean Koehn, and outside her presence, the surveyor, Kastenhuber, apparently suggested that a "new" boundary line be established by using an old fence line. described as the "angled" fence line. This fence line is later

There is no indication that

at this meeting there was any discussion of the Jean Koehn deed or its description of the boundary as "a straight line" and "in the

- 5 same straight line." There is also little indication that On

Kastenhuber was, at that time, aware of the Jean Koehn deed.

the 23rd and 24th of September, appellees visited the property and, on the 24th, offered to purchase it. Appellees then purchased the property of C. Campbell Koehn, the Western Parcel or remainder of Evergreen Farm. The contract of

sale referred to an older plat dated 1919, that appellant asserts on appeal "contains an angled line drawn between the Eastern Parcel and the Western Parcel." Firstly, that is simply incorrect. In

1919, there was not yet a Western or Eastern Parcel.

The survey,

as prepared, and as the trial judge found, had no "angled line." The survey itself is a blueprint, i.e., white paper with blue lines. Someone has added to that white-on-blue survey a yellow line and called it a "Fence" and also has shown on it in yellow the outlines of a "Barn Road." In the absence of any sufficient evidence

explaining the affixing of the yellow lines to the 1919 survey, the trial judge found: The 1919 plat, which necessarily was prepared before the partition of the properties, has been altered. A boundary line that is marked "fence" has been drawn onto the plat with a yellow-colored pencil. [As a result,] [t]he boundary line angles in a more westerly direction . . . . Judge Horne later found as to the 1919 plat: The plat has been altered: an angled boundary line has been added with a yellow-colored pencil. . . . But for the penciled-in division line, the 1919 plat would be unilliminat-

- 6 ing with respect to the correct location of the boundary line. The Court declines to rely on this altered plat for two reasons. First, the evidence as to whether the September 23, 1961, contract refers to the altered plat -- the one that features the penciled-in boundary line -- is equivocal. While Mr. Bartlett stated that he observed a November 1919 plat, which depicted an angled fence line, when the contract was executed, Plaintiff [appellee] testified that he never saw the plat. The plat that is referenced in the contract could easily be the November 1919 plat of "Evergreen Farm" before it was partitioned [in 1961]. We hold that the trial court was correct in declining to attribute much value to the altered 1919 plat. First, the property

was not divided until 1961 and, thus, the 1919 plat is merely a map of the entire tract. The only facts adduced below support an

inference that the yellow line was added to the map at the time of the September 1961 on-site discussion of a "new" division line. At

oral argument, all parties conceded that the yellow line was not placed on that 1919 plat in 1919 but was added at some point thereafter, probably during the September 1961 event. However, by

September of 1961, it was too late for the creation of a "new" division line. The division line had been created in January of

that year by the Jean Koehn deed. Ultimately, on January 31, 1962, more than a year after the division of Evergreen Farm, a deed was executed and recorded in favor of appellees that described all of Evergreen Farm but

excepted that part of Evergreen Farm previously conveyed to Jean

- 7 Koehn. We, therefore, shall be primarily required to assess the

trial court's construction of the Jean Koehn deed and the court's application of the relevant and proper facts in its construction. In a somewhat bizarre turn of events, Millar, the successor to Jean Koehn, argues in favor of Kastenhuber's creation of a "new" division line, which is shown in two plats drafted by him in 1961 showing an angled line between the two properties. The Bowies, on

the other hand, the successors in interest to C. Campbell Koehn Sr., the potential (and ultimate) buyers at the time of the preparation of Kastenhuber's plats, argue that, because their deed excludes the tract conveyed by the Jean Koehn deed, Millar's deed controls. is But that is of little moment to the job before us. clear is that there was but one What

penultimately

instrument

construed below, and one that we will construe here -- the January 1961 deed to Jean Koehn. There is absolutely no conflict (nor

could there be) between that deed and the January 31, 1962 deed to the Bowies. They are, by their very nature, completely compatible.

The dispute is (1) whether the language of the Jean Koehn deed is sufficiently clear and definite to convey an exact parcel without reference to other evidence; (2) can subsequent instruments be used to explain prior instruments; and (3) if so, do the two 1961 Kastenhuber plats take priority, or explain, the language of the Jean Koehn deed. In addressing the trial court's resolution of

these issues, we shall touch upon the issues of senior/junior

- 8 priorities, the clear/ambiguous dichotomy, fences and/or old fence lines, calls and priorities, and the use of reverse courses. We initially note the standard of our review of a trial court's findings in cases such as this, which are largely fact dependent. We recently stated in Barchowsky v. Silver Farms, Inc., 105 Md.

App. 228, 239 (1995), that "[i]t is clear that a decision of a trial judge, sitting without a jury, that resolves a boundary line dispute, is not to be disturbed unless clearly erroneous." We next note that there is apparently no dispute below that the stone monument found by Kane in 1993 had been placed on the property on, or after, September of 1961 by Kastenhuber, in an effort to create the "new" division line. At least there is no

evidence that it was placed at the time of the 1919 plat, as that plat does not indicate any monument. On appeal, no argument was

presented that the monument had been placed prior to the January 1961 Jean Koehn deed or that it was placed as a part of the January 1961 division of Evergreen Farm. In Zawatsky Constr. Co. v. Feldman Dev.

Corp., 203 Md. 182, 186-87 (1953), one of the issues concerned monuments not mentioned in the deed description but used by a subsequent surveyor to establish a point of beginning. surveyor's reliance upon the monument, the Court stated: But it is not safe to assume, without sufficient proof, that a monument which is not mentioned in the description of a tract is the beginning of one of the boundary lines of the tract, and then run the line based upon that assumption. . . . "It would enable the owner As to the

- 9 . . . to fix the boundaries of his own property for the benefit of himself . . . if he could plant a stone where he pleased, call it `a boundary' . . . and then when he is dead have his son testify to such facts . . . , without any explanation as to who planted the stone, or by what authority it was done." It is recognized that where there are conflicting surveys, the problem before the court is fundamentally one of fact, inasmuch as the general rules as to preferences are merely guides for ascertaining the intention of the parties. Thus, while it is a general rule that calls in a deed ordinarily prevail over courses and distances, this rule is not applied if it defeats the manifest intention of the parties. [Citations omitted; emphasis added.] We recently noted in Barchowsky, 105 Md. App. at 238, that: 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. Also noteworthy is Tidler v. City of New Carrollton, 59 Md. App. 23, 28, cert. denied, 300 Md. 154 (1984), in which we noted: [B]oth parties' predecessors in title derived their interests in Lot 3 from a common grantor. Where contending innocent parties derive title of adjoining tracts from a common grantor by successive mesne conveyances and a shortage develops, the one claiming under the common grantor's first deed is not required to contribute to the shortage . . . . See also Delphey v. Savage, 227 Md. 373, 379 (1962) ("In the case now before us the conveyances by the common grantor . . . were made

- 10 before any subdivision plan . . . so that [they] must be satisfied first."). Likewise, in Bryan v. Harvey, 18 Md. 113, 128-30 (1861), the Court of Appeals stated: "Elk Garden," and also the land conveyed to the plaintiff, belonged to the common grantors of these parties, at the date of the first deed, and it was the plaintiff's own fault to have taken a subsequent deed for land covered, in part, by the "Elk Garden" patent, without having had the lines of "Elk Garden" laid down so as to have known how much of "Elysiansylvania" was clear of the elder tract. Disputes often arise out of conflict between the lines of different tracts, but it was never held, as far as we are informed, that the junior title must have precedence . . . . . . . . . . . It is well settled that where such is the case, and the first deed conveys by metes and bounds, or by what is an equivalent description, it must have precedence over a subsequent purchase. The case of Mundell v. Perry, 2 G. & J. 193 [(Md. 1830)], is much like the present, and is conclusive on this question. . . . It is upon the same principle that a senior patent is entitled to priority over a junior one . . . . This is in accord with the Texas case of Hill v. Whitside, 749 S.W.2d 144, 151 (Tex. Ct. App. 1988), in which the court opined "when the senior survey can be easily identified, a junior survey cannot be made to control the senior survey." In the case sub judice, the only relevant "intentions of the parties" were the intentions of Jean Koehn and C. Campbell Koehn

- 11 Sr. when they divided their property in January 1961. The fact

that Kastenhuber, Bartlett, and others thereafter met on the site and discussed where they thought the line went (and may have made yellow penciled free hand marks on a 1919 plat in respect to it) has little relevance to the previous intentions of the Koehns. The

deed to Jean Koehn carved her parcel out of the greater whole. Thereafter, the remainder was conveyed by a deed of the greater whole over a year later to appellees. That deed excepted the This is not an

parcel previously conveyed by the Jean Koehn deed. uncommon way for property to be conveyed.

There is, therefore, no In the present case, The only

conflict between the respective instruments.

the deed to Jean Koehn is clearly the senior instrument. deed to examine is the Jean Koehn deed. language in that deed.

We now examine the

In the first instance, we agree with Judge Horne that the language as to the direction of the course at issue is clear and unambiguous. If the description in the Jean Koehn deed had read

"in a straight line with the fence line," then it may have been ambiguous. However, the deed provided that the line went along a

course with the road in a straight line and then continued "in the same straight line . . . to the top of the bank along the shore line . . . ." (Emphasis added.) That language refers back to the

previous course's straight line and is the imperative call; it is thus unambiguous, and the added language, "with a fence line,"

- 12 "between the park woods and the reserved land" is to be interpreted under this specific circumstance as referring to the line as being "generally" with a fence line. 12 Am Jur. 2d Boundaries

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