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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1861 September Term, 2009 ____________________________________ HAROLD WILLIAM PURNELL, et al v. BEARD & BONE, LLC ____________________________________ Zarnoch, Hotten, Sharer, J. Frederick, (Retired, Specially Assigned)

JJ. ____________________________________ Opinion by Sharer, J. ____________________________________ Filed: March 1, 2012

Appellee, Beard and Bone, LLC, (Beard & Bone) filed a complaint to quiet title and for declaratory judgment against Mary Ann Cantwell (Cantwell) in the Circuit Court for Worcester County. Beard & Bone later filed an amended complaint, which added appellants, the Estate of Helen Marie Brittingham Purnell, Marion Purnell Smith, Harold William Purnell, and Eunice Purnell Williams (the Purnells), as parties. Beard & Bone, which owned a landlocked parcel of land, sought an easement by necessity over and across the properties of Cantwell and the Purnells, both of which bordered a public road. The trial court ruled that an easement by necessity had been created in 1918 and that the easement still existed. Thus, the trial court granted Beard & Bone a 12-foot easement, with half over and across the northern most six feet of the Cantwell property and the other half over and across the southern most six feet of the Purnell property.1 In their timely appeal, the Purnells present the following questions for our review, which we have slightly rephrased:2 1. Was an easement by necessity created over the Purnell property where it was the first property conveyed from a common grantor, and was not the cause of the Beard & Bone property being landlocked? 2. Was there sufficient evidence of an apparent use of the purported easement to establish an implied easement by reservation? 3. Was the alleged easement by necessity over the Purnell property abandoned or extinguished by adverse possession?

Other than suggesting that the easement ought to lie exclusively on the Cantwell property, appellants do not challenge the trial court's determination of the width or location of the easement.
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Cantwell is not a party to this appeal.

4. Does the doctrine of laches preclude Beard & Bone from seeking to establish an easement by necessity? For the reasons discussed, we shall affirm the judgment of the circuit court.

BACKGROUND
The Beard & Bone property consists of approximately 51 acres located west of Evans Road, a public road in Worcester County. It was acquired by Beard & Bone at auction in 2007. The property had been used for timber and hunting. John Andrews, a registered land surveyor, surveyed the Beard & Bone, Cantwell, and Purnell properties, and other nearby properties, and determined that the Beard & Bone property did not connect to a public road or to any private roads with access to a public road. The Cantwell and Purnell properties, which are contiguous along their respective northern and southern boundaries, are located to the east of the Beard & Bone property and thus lie between the Beard & Bone property and Evans Road. Andrews testified that the most direct or reasonable route to access a public road from the Beard & Bone property was across the Purnell and Cantwell properties. He explained that the right of way would have to be 12 to 14 feet wide because if the timber were to be harvested from the Beard & Bone property, the "timber trucks are going to need every bit of that." Susan Pusey, qualified as an expert in title abstracting, testified that she prepared chains of title for the Beard & Bone, Cantwell, and Purnell properties. All three properties were originally owned by James Givans as one parcel. Givans transferred the entire tract to Orlando Harrison and George A. Harrison (the Harrisons). On July 19, 1918, the Harrisons
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divided the parcel, selling off the Purnell property to the Purnells' predecessor in title and the Cantwell property to Cantwell's predecessor in title. The Harrisons retained, inter alia, what is now the Beard & Bone property. There was evidence that the Harrisons later operated a nursery on the property, because in 1929 they transferred the present Beard & Bone property to Harrisons' Nurseries, Inc. The deeds conveying the Purnell and Cantwell properties were executed and dated the same day - July 19, 1918. They were also recorded in the same book but, of necessity, one recording preceded the other. That is, the Purnell deed was recorded at page 303 of the deed book, and the Cantwell deed was recorded at page 307. Neither deed reserved any express right of way or easement allowing the Harrisons, or their successors in title, to access a public road across the Purnell or Cantwell properties. Richard Rice, an owner of Beard & Bone, testified that the Beard & Bone property was landlocked. Rice stated that when Beard & Bone bought the property at auction, he was aware that there were problems with access. Rice had attempted, unsuccessfully, to obtain a right of way from a neighbor to the north. The Beard & Bone property is subject to a conservation easement and its current uses are limited to timber and hunting. Rice stated that the requested 14-foot easement across the Purnell and Cantwell properties was the shortest route to a public road. The current owners of the Purnell property acquired title in 2008 through the estate of their mother, Helen Marie Brittingham Purnell who, as a tenant by the entirety with her late husband, acquired title in 1951. Harold Purnell, one of the current owners, testified that
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he has been farming the property for about 50 years and has been familiar with the Purnell property his entire life. He stated that he went by the Purnell property "maybe daily[,]" farmed the ten acres of cleared land on the property, and leased out the wooded acreage to hunters. Harold Purnell testified that he had never seen anyone access the Beard & Bone property through the Purnell property or by any road, path, or trail across the Purnell Property. He added that "no trespassing" signs were posted at the front of the Purnell property along Evans Road and that the entrances to the Purnell property had chains across them. Harold Purnell further testified that the timber had been cut from the Beard & Bone property "about ten years ago" and that access was gained through the Widgeon property, to the north, and not across the Purnell property. He added that a drainage ditch was located on the Purnell property line where Beard & Bone wanted to place the easement. Calvin Purnell, Harold Purnell's son, testified that he had helped his father farm the Purnell property for the past 20 years. During that time, he would go by the property three or four times per week. Calvin Purnell also recalled that he had never seen anyone access the Beard & Bone property from the Purnell property, or seen any indication on the Purnell property that someone was using it to access the Beard & Bone property. He also stated that "no trespassing" signs were posted on the Purnell property. Dawn Webb testified that she had been the immediate predecessor in title to Beard & Bone. She stated that the property did not have access to a public road and that it was made clear to all potential purchasers that the property was landlocked. She added that her father,
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from whom she acquired title, had cut the timber on the property several years ago, but that he had not gained access to the property by crossing the Purnell property. Webb also testified that as far as she knew, her father had never gained access by crossing the Purnell property. Webb had never been on the property when her father owned it, or when she owned it. Cantwell testified that she had been familiar with the Cantwell property all of her 51 years and that no one had ever accessed the Beard & Bone property by crossing the Cantwell property. Standard of Review This Court, in Rau v. Collins, 167 Md. App. 176, 184-85 (2006), set forth the relevant standard of review: When, as in the case at bar, an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Maryland Rule 8-131. Easements by Necessity Resolution of this appeal implicates the doctrine of easements by necessity. "An easement is broadly defined as a nonpossessory interest in the real property of another...." Boucher v. Boyer, 301 Md. 679, 688 (1984) (citations omitted). "In general, the terms `easement' and `right-of-way' are regarded as synonymous." Miller v. Kirkpatrick, 377 Md. 335, 349 (2003) (citation omitted). "An easement may be created by express grant, by

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reservation in a conveyance of land, or by implication." Kobrine L.L.C. v. Metzger, 380 Md. 620, 635 (2004). At issue in the present case is a form of implied easement, an easement by necessity. See Hancock v. Henderson, 236 Md. 98, 102 (1964) ("Ways by necessity are a special class of implied grants and have been recognized in this State for a good many years.") "[I]mplied easements by necessity arise from a presumption that the party needing the easement should have access over the land." Calvert Joint Venture #140 v. Snider, 373 Md. 18, 39-40 (2003). The doctrine of easements by necessity "is based upon public policy, which is favorable to full utilization of land and the presumption that parties do not intend to render land unfit for occupancy." Condry v. Laurie, 184 Md. 317, 321 (1945); see also Rau v. Collins, 167 Md. App. 176, 186 (2006) (citations omitted) ("Full utilization of land is favored, and it is presumed that parties do not intend to render conveyed property unfit for occupancy.") Recently, in Sharp v. Downey, 197 Md. App. 123, 167 (2010), cert. granted, 419 Md. 646 (2011) (footnote omitted), this Court explained: The public policy exists in recognition that to allow a landlocked parcel inadvertently to be created affects not only the initial owner of that parcel, but every subsequent owner as well. By cutting off the land from all access to public ways, landlocking a parcel renders the land unuseable for virtually any future purpose. Despite this public policy, "the law does not prohibit one from cutting himself off from all access to his land." Shpak v. Oletsky, 280 Md. 355, 364-65 (1977) (citation omitted).

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"The determination that the parcels were once a unitary tract of land and owned by a common grantor is critical to finding an implied easement by necessity." Rau, 167 Md. App. at 190. Stated another way, "[i]n order to establish a right of way of necessity, it must be shown that sometime in the past the land for the benefit of which the easement is claimed and that over which it is claimed belonged to the same person." Michael v. Needham, 39 Md. App. 271, 275 (1978) (citation omitted); see also Shpak, 280 Md. at 361 ("An easement by implied reservation must arise at a time when there is unity of title.") (Citations omitted); Oliver v. Hook, 47 Md. 301, 310 (1877) ("[A] right of way of necessity can only be raised out of the land granted or reserved by the grantor, and never out of the land of a stranger.") There are two types of easements of necessity, implied reservation and implied grant. Shpak, 280 Md. at 360. "[G]rants of easements by implication are looked upon with jealousy and are construed with strictness by the courts." Condry, 184 Md. at 321 (citation omitted). The case before us involves an easement by implied reservation, and "[t]he rule with respect to implied reservations is much more strict than that with respect to implied grants." Hansel v. Collins, 180 Md. 209, 215 (1942). "It is only in cases of the strictest necessity, and where it would not be reasonable to suppose that the parties intended the contrary, that the principle of implied reservation can be invoked." Burns v. Gallagher, 62 Md. 462, 472 (1884) (emphasis in original and citations omitted); see also Mitchell v. Houstle, 217 Md. 259, 264 (1958) ("From a very early date, a distinction has been made between an implied grant and an implied reservation, with the rule being much more strict when called upon to create an easement by implied reservation than to create one by implied grant.") In McTavish v.
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Carroll, 7 Md. 352, 359 (1855), the Court of Appeals set forth the basic contours of an easement by implied reservation: "[W]here a man owns two closes, A and B, with a road from A over B, to the highway, and he sells close B, without reserving, in the deed, any right of way, if he has no other road, he may use the one over B as a way of necessity." Although this language of strictness is used in regard to easements by implied reservation, "Maryland has accepted the general rule that where there is a grant of land without any express reservation of an easement, a reservation is implied if the easement is reasonably necessary for the fair enjoyment of the property." Greenwalt v. McCardell, 178 Md. 132, 138 (1940) (citations omitted). The Court of Appeals has also described the required necessity to be "imperative and absolute," Shpak, 280 Md. at 361 (citations omitted), but then explained the importance of the intention of the parties: "`It is not the necessity which creates the right of way, but the fair construction of the acts of the parties.' The necessity merely furnishes evidence as to the real intention of the parties. `For the law will not presume that it was the intention of the parties that one should convey land to the other in such manner that the grantee could derive no benefit from the conveyance; nor that he should so convey a portion as to deprive himself of the enjoyment of the remainder. The law under such circumstances will give effect to the grant according to the presumed intent of the parties.'" Shpak, 280 Md. at 361-62 (quoting L. Jones, Easements

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