Preview:

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1797 SEPTEMBER TERM, 2009

USA CARTAGE LEASING, LLC v. TODD A. BAER, ET AL.

Hollander, Ellen L.,* Kehoe, Hotten, JJ.

Opinion by Kehoe, J.

* Ellen L. Hollander, J., participated in the hearing and conference of this case and contributed to the drafting of this opinion while an active member of this Court, but resigned from the Court of Special Appeals prior to its filing.

Filed: November 30, 2011

This appeal involves an easement dispute between two adjoining landowners: USA Cartage Leasing, LLC ("Cartage"), appellant, and Todd A. Baer, appellee. Their properties (the "Cartage Parcel" and the "Baer Parcel," respectively) abut Governor Lane Boulevard in Washington County. Edwin B. Glesner, Jr. and Rebecca A. Glesner (the "Glesners"), who are also parties to the case,1 are predecessors in title to both Cartage and Baer. After earlier granting Baer's motion for summary judgment as to the existence of an easement across the Cartage parcel, the Circuit Court for Washington County entered a judgment, which it certified as final for purposes of appeal, declaring that Baer had a rightof-way2 over a portion of the Cartage Parcel, establishing a precise location for the right-ofway and enjoining Cartage from interfering with Baer's use of it. This appeal followed. Cartage presents eight issues, which we have condensed and rephrased as four questions. In addition, we must consider a preliminary question, not raised by the parties, as to our own jurisdiction to consider the appeal.3 Accordingly, we shall consider the following questions, in this order: 1. Is the declaratory judgment appealable, either as an interlocutory order or as a permissible exercise of the circuit court's discretion under Maryland Rule 2-602(b)? 2. Did the purported easement over Cartage's land fail for lack of sufficient
1

The Glesners have not filed briefs in this Court.

Generally, "the terms `easement' and `right-of-way' are regarded as synonymous." Miller v. Kirkpatrick, 377 Md. 335, 349 (2003). We shall use the terms interchangeably here. We raised the question of appealability at oral argument and permitted the parties to file supplemental briefs on this issue.
3

2

description and lack of agreement as to location? 3. Did the circuit court err by using the balancing analysis developed in implied easements by necessity cases in order to locate the purported express easement on the ground? 4. Did the circuit court err in granting summary judgment as to Cartage's defenses of estoppel, abandonment, and adverse possession? 5. Did the circuit court err or abuse its discretion in identifying a specific location for the easement across the Cartage parcel? We will decide that the appeal is properly before us. We will explain why in Part I of this opinion. In Part II, we set forth the appropriate standards of review. In Part III, we discuss why the circuit court correctly decided that the easement was not void because of an inadequate description or the lack of an agreement as to its location. In Part IV, we conclude that a balancing analysis, similar to that employed by courts in implied easement cases, as an appropriate means to specify a precise location for the right-of-way in this case. However, as we will explain in Part V, the circuit court erred in entering summary judgment in light of disputed material facts concerning Cartage's adverse possession defense. In light of this holding, it is unnecessary for us to decide whether the circuit court correctly applied the balancing analysis to determine an exact location for the easement but we will provide guidance to the court and the parties as to this issue on remand in Part VI. Therefore, we will vacate the judgment of the circuit court and remand the case for further proceedings. BACKGROUND Our statement of facts is drawn from what is undisputed in the parties' pleadings and

2

summary judgment papers, taken in the light most favorable to Cartage, as the non-moving party. The Glesners acquired what are now the two properties at issue in 1984. At that time, the parcel was a single 5.26-acre lot, located at the southeasterly intersection of State Route 68 and Governor Lane Boulevard. The northerly boundary4 of the parcel abutted Governor Lane Boulevard; the southerly boundary backed up to railroad tracks owned by Conrail. The property was bounded on the west by Maryland Route 68 and on the east by another property. In 1985, the Glesners subdivided the lot into two roughly rectangular parcels. At the time, they retained one parcel (now owned by Cartage) and conveyed the other (now owned by Baer) to M.K.S. Development. Of central importance to this appeal, the deed to M.K.S. also granted it an easement over the Cartage Parcel, described as "a non-exclusive right-ofway 25 feet in width, leading from the existing entrance from Governor Lane Boulevard, shown on the Plat of the above-referenced property, recorded at Plat folio 1806, to the property hereby conveyed." The deed did not otherwise describe the easement. The plat referred to in the deed was prepared in November 1984 by Fox & Associates, Inc. (the "Fox Plat"), which we reproduce (not to scale) on the following page. The Fox Plat showed an "Exist[ing] Entrance" to the Cartage Parcel from Governor Lane Boulevard, near the dividing line between the Cartage Parcel and the Baer Parcel. Just on the other side of

For simplicity's sake, we will refer only to the cardinal points of the compass in describing the property; Governor Lane Boulevard actually runs from the northeast to the southwest.
3

4

the dividing line between the two parcels, the Fox Plat also showed a "Prop[osed] Entrance" to the Baer Parcel from Governor Lane Boulevard, of similar dimensions to the "Exist[ing] Entrance" on the Cartage Parcel. However, the Fox Plat did not mention or depict the easement. We reproduce the plat (not to scale and with language added to identify the parcels).

4

The Baer Parcel changed hands several times before it came to be owned by Baer. In November 1988, M.K.S. conveyed the property to Patrick Grunberg and Lee U. Michael. This deed expressly conveyed the "non-exclusive right-of-way 25 feet in width" over the Cartage Parcel, using the description taken verbatim from the Glesner/M.K.S. deed. Just over a month later, Michael deeded his interest in the Baer Parcel to Grunberg. This deed did not expressly mention the right-of-way. In November 1992, Grunberg conveyed the Baer Parcel to Donald L. Baer and Joan H. Baer ("Mr. and Mrs. Baer"), who are Todd Baer's parents. Once again, the deed did not refer to a right-of-way over the Cartage Parcel. In early 2008, two additional deeds pertaining to the Baer Parcel were filed. The first was a confirmatory deed from Grunberg and the Personal Representative of the Estate of Lee U. Michael.5 This deed recounted that the deed from M.K.S. to Grunberg and Michael had conveyed the Baer Parcel along with the right-of-way and, although the deeds from Michael to Grunberg and from Grunberg to the Baers did not expressly refer to the right of way, the grantors of those deeds intended to convey to their respective grantees all rights appertaining to the Baer Parcel, including the right-of-way. The deed reconveyed the Baer Parcel to the Baers with a description that included the description of the right-of-way using language identical to that in the Glesner/M.K.S. deed. The second deed, both in date of execution and filing, was a deed by which Mr. and

5

Mr. Michael died in September 2007.
5

Mrs. Baer conveyed the Baer Parcel to their son, Todd A. Baer. This deed included a reference to the right-of-way. In the meantime, the Cartage Parcel changed hands only once. The Glesners conveyed that lot to Cartage by a deed dated April 7, 1995 (i.e., after Grunberg had conveyed the Baer Parcel to the Baers in 1992, but before the confirmatory deed and the deed from Mr. and Mrs. Baer to Todd Baer were filed in 2008). The deed to Cartage made no mention of the right-ofway over the Cartage Parcel. Cartage is a commercial trucking business. While the record is not entirely clear as to all of the specifics, at one time Cartage leased the property from the Glesners. After the lease terminated, there was a period of time, perhaps four years, before Cartage purchased the property. The Cartage Parcel is developed for commercial use, with at least one building on it, although the date of the building's construction is uncertain. The portion of the Cartage Parcel that is immediately adjacent to the Baer Parcel is a gravel parking lot for trucks and other vehicles. The Baer Parcel, in contrast, is undeveloped. On August 4, 2008, Baer filed a Complaint for Declaratory Judgment and Other Relief against Cartage, which contained two counts. The first count sought a declaratory judgment that Baer "holds a legally valid and effective right-of-way over [Cartage's] Property." Although Baer conceded that "[t]he location of [Baer's] Right-of-Way is not specified in the language of the deeds in the chain of title from the Glesners to [Baer], and has not been determined by custom or usage by [Baer] or his predecessors in title," he nevertheless alleged

6

that the Cartage Parcel "was and is now subject to [Baer's] right of way." As an exhibit to his complaint, Baer attached a plat prepared by Davis, Renn & Associates, Inc. (the "DavisRenn Plat"), showing a proposed location of the easement, E54, which he asserted was "the least burdensome location for a 25-foot right of way capable of providing reasonable commercial ingress and egress from the `existing entrance' shown on the [Fox] Plat to [the Baer] Property." Baer asked the court to "[d]eclare that the proper location of [Baer's] Right-of-Way is shown on [the Davis-Renn Plat] or, in the alternative, determine a reasonable location for [Baer's] Right-of-Way." The second count of Baer's complaint alleged that Cartage, "without just cause or excuse, has interfered with and continues to interfere with [Baer's] lawful use of enjoyment of [Baer's] Right-of-Way." He sought an injunction prohibiting Cartage from such

interference, as well as damages of $250,000. In its answer, Cartage denied any liability and raised, among others, the defenses of waiver, laches, estoppel, abandonment, and adverse possession. Cartage filed a one-count counterclaim seeking to quiet title to the Cartage Parcel, free of Baer's asserted right-of-way. In addition, Cartage filed a third party complaint for damages and related relief against the Glesners, alleging that the Glesners breached a warranty of title contained in the Glesner/Cartage deed. On July 13, 2009, Baer filed a motion for summary judgment. After recounting the deed transactions we have reviewed, Baer asserted that the right-of-way is part of the chains

7

of title to both parcels. Baer acknowledged that the location of the right-of-way had not been previously established. Nevertheless, he maintained that he "has not abandoned the Right-ofWay, and USA Cartage has provided no evidence of abandonment sufficient to meet the standard required by Maryland law." Moreover, he contended that Cartage could not adduce evidence sufficient to establish a claim for adverse possession. To support these allegations, Baer provided excerpts of a deposition of Ralph Richmond, a member of USA Cartage Leasing, LLC. Richmond's deposition testimony was a substantial basis for the circuit court's decision to grant summary judgment in Baer's favor. We will summarize the most relevant portions. Richmond testified that Cartage began leasing the Cartage Parcel beginning in 1986 (i.e., shortly after the Glesners subdivided their property and sold the Baer Parcel to M.K.S. in 1985). At that time, there was a line of "old telephone poles" already in place, laid flat on the ground end-to-end, running parallel with the boundary line with the Baer Parcel. The line of telephone poles ran from the rear property line separating the Cartage Parcel from the adjacent railroad property to within a short distance of the front property line at Governor Lane Boulevard. The poles covered "the entire area . . . that you could come into with a vehicle," and their purpose was "to keep vehicles from going over them" in situations in which one would "back[ a] trailer against it or cars going up, or trucks going into

Download USA Cartage v. Baer.pdf

Maryland Law