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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1573 September Term, 2010

JOHN T. TURNER , et ux. v. DONALD E. BOUCHARD

Eyler, Deborah S., Matricciani, Moylan, Charles E., Jr. (Retired, Specially Assigned) JJ.

Opinion by Matricciani, J.

Filed: December 2, 2011

Appellee, Donald E. Bouchard, filed a declaratory judgment action against his neighbors, appellants, John T. Turner and Marie Turner (collectively, "Turner"), on April 16, 2007 in the Circuit Court for Calvert County. Following a bench trial on April 2, 2008 and April 25, 2008, the circuit court on August 25, 2008 issued an opinion and order holding that Bouchard had a prescriptive easement over a portion of Turner's property and placing various restrictions on the use of the easement. Turner noted timely an appeal to this Court on September 8, 2010. Q UESTION P RESENTED Turner presents one question for our review, which we have rephrased as follows:1 I. Did the circuit court err in holding that Bouchard has a prescriptive easement over a portion of Turner's property? For the reasons that follow, we answer no and affirm the judgment of the circuit court.

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The questions presented as originally phrased in Turner's brief are as follows: 1. Did the circuit court err when it expanded an express easement beyond its original scope despite the fact that there is no evidence in the record, or finding by the court, of affirmative evidence of change to an adverse use? 2. Did the circuit court err when it failed to apply the "woodlands exception" to this case when the evidence of the case clearly demonstrates that the property met the criteria for applying this exception? 3. Did the circuit court err when it granted a prescriptive easement depsite [sic] the fact that the appellee did not present evidence to prove the necessary elements of a prescriptive easement?

F ACTUAL AND P ROCEDURAL H ISTORY The parties to this case own and live on two adjacent properties on Big Bear Lane in the town of Lusby, Maryland. Turner owns 11730 Big Bear Lane ("lot 17") and Bouchard owns 11734 Big Bear Lane ("lot 16"). The back yards of both lots abut Lake Lariat, a man-made lake used by both parties for recreational purposes. It is undisputed that Bouchard has an express easement, granted by a properly recorded deed, over a portion of Turner's property to serve as a driveway for pedestrian and vehicular ingress and egress to Bouchard's property.2 This case concerns a portion of lot 17 that is outside the boundary of the express easement (the "disputed area"). Chain of Title Both lot 16 and lot 17 were previously owned by Luther and Dorothy Muth. The Muths improved lot 16 by building a house, a crushed stone driveway, and a concrete retaining wall. A portion of the driveway and retaining wall were located on lot 17, but lot 17 was otherwise unimproved and did not have a house. The Muths sold lot 16 to Bouchard on October 29, 1975. Because the home on lot 16 was within a few feet of the property line, the Muths conveyed by separate recorded deed an express easement across

"In every instance of a private easement--that is, an easement not enjoyed by the public--there exists the characteristic feature of two distinct tenements--one dominant and the other servient." Board of County Comm'rs v. Bell Atlantic-Maryland , 346 Md. 160, 175 (1997). Here, Bouchard's lot 16 is the dominant tenement (the estate that benefits from the easement) and Turner's lot 17 is the servient tenement (the estate that is burdened by the easement). See Blacks Law Dictionary 589 (8th ed. 2004) (defining "dominant estate" and "servient estate"). -2-

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a small portion of lot 17 "to serve as a driveway for pedestrian and vehicular ingress and egress to a portion of" Bouchard's property. Bouchard has owned lot 16 continuously (previously with his wife and now as sole owner) since he purchased it in 1975. From 1975 to 1980 Bouchard used lot 16 "as a recreational place for the family." From 1980 until 1999 Bouchard used lot 16 as a rental property. The house on lot 16 did not become Bouchard's primary residence until 2000. Turner's parents have owned property in the subdivision since 1963, when they purchased lots 96 and 97. Those lots are also on Big Bear Lane, across the street and around the corner from lots 16 and 17. In 1967 Turner's parents built a cottage on their lots. They initially used the cottage as a vacation home, but moved there full time in the early 1970's. After building the cottage, Turner's parents bought a third lot in the subdivision, lot 18, adjacent to lot 17. Lot 17 was at that time still owned by the Muths. The Muths sold lot 17 to Bouchard and Turner's parents on December 9, 1980 as tenants in common. On August 24, 1984 Turner's parents bought out Bouchard's interest in lot 17 and became the sole owners of the property. Both the 1980 and the 1984 deeds expressly incorporated the express easement. From 1980 until 2005, Turner's parents used lots 17 and 18 as a recreational gathering point for the family. In 2005, Turner purchased lot 17 from his parents and built a house there.3

The official plat refers to Turner's property as Lot 17R. Lot 17 R is a combination of previously-numbered lots 17 and 18. For the sake of consistency and (continued...) -3-

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The Disputed Area The express easement is a sixty-one foot, three inch long trapezoid bounded on the south by the property line separating lot 16 from lot 17.4 At its most intrusive point, the (...continued) simplicity, we refer to Turner's property throughout this opinion as "lot 17." The complete description of the easement in the 1975 deed from the Muths to Bouchard is as follows: An easement for the benefit of and appurtenant to Lot # 16, the dominant tenement, and against Lot # 17, the servient tenement, both Lots situate in Section 2-L of the subdivision known as Chesapeake Ranch Estates as per plat thereof recorded among the Land Records of Calvert County in Plat Book J.B.L. # 1 at page 88, said subdivision being located in the First Election District of Calvert County, State of Maryland. Said easement is in the shape of a trapezoid and begins at a point on the boundary between Lots 16 and 17 (which boundary is a line running N 52 N 00' E as recorded on Survey and Improvement Location plat prepared for said Lot 16 by J.R. McCrone, Jr., Inc., registered professional engineers and land surveyors, on October 23, 1975, a copy of which is attached), which point is one hundred fifty-three feet nine inches from a pipe which marks the northwest corner of Lot 16 and the southwest corner of Lot 17, hereinafter called the corner pipe, and runs first for nineteen feet three inches in a northeasternly direction to a point which is eight feet from said boundary at right angles to a point on it one hundred seventy-one feet three inches from said corner pipe, thence in a more easterly direction parallel to said boundary for twentyeight feet nine inches to a point eight feet from said boundary and at right angles to a point on it two hundred feet from said corner pipe, thence in a more easterly direction seventeen feet to a point on said boundary two hundred fifteen feet from said (continued...) -44 3

express easement extends northerly into lot 17 eight feet, where it runs parallel to the property line for twenty-eight feet, nine inches. The eastern and western boundaries of the express easement are lines connecting the two parallel sides of the trapezoid at roughly forty-five degree angles to the property line.5 The properties share a concrete retaining wall that begins on lot 16, crosses the property line in a north-easternly direction, turns and veers approximately parallel to the property line, and then ends on lot 17. The retaining wall is entirely outside the boundary of the express easement. The disputed area can be most easily conceptualized as two shapes. The western portion of the disputed area is on lot 17 between the retaining wall and the trapezoidal express easement. The eastern portion of the disputed area is a rectangle beginning at the retaining wall and continuing to the lake, bordered by the property line with lot 16 and a line parallel thereto. Bouchard used the western portion of the disputed area as a driveway to access his house and to park vehicles. He used the eastern portion of the disputed area to store various watercraft, as a picnic area, and as
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(...continued) corner pipe, thence southwesterly along the boundary to the starting point at one hundred fifty-three feet nine inches from the corner pipe. This easement is to grant a right-of-way over land belonging to the grantors herein to serve as a driveway for pedestrian and vehicular ingress and egress to a portion of Lot 16. Grantors have no duty to maintain or to keep in repair said easement property.

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A survey of the express easement is attached hereto. -5-

access to the lake. The parties disagree over whether there is an easement in the disputed area, and if so, the size of the easement; who may use the easement; how the easement may be used permissibly; and who is responsible for maintaining the easement. The Lawsuit The circuit court described the origins of the suit as follows: In 2006 the Turners demanded that the [Bouchards] cease using the Disputed Area. According to the Turners, the Bouchards were not entitled to use these portions of the land that was located on lot 17 between the lot line and the retaining wall. When [Bouchard] continued his use of the Disputed Area, the Turners physically moved some of the blocks that composed a portion of the retaining wall into the middle of the Bouchard driveway, which they believed to be the true boundary line of the easement. On April 16, 2007 Bouchard filed a complaint for declaratory judgment under Maryland Code (1973, 2006 Repl. Vol.), Courts & Judicial Proceedings Article

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