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The purpose of this column is to review recent (or fairly recent) appellate court decisions from around the nation on the law of land boundaries and related legal topics.

The focus of this month's column is a case that took place in my home state of Maryland. Cited as Miller v. Kirkpatrick, 377 Md. 335, 833 A.2d 536 (2003), it concerned an action seeking to have barbed wire fences removed from a rightof-way, which effectively narrowed its width. The issues in this Miller case had nothing necessarily to do with pure surveying principles, but it is important to us surveyors because we should understand those principles of the law that are so intertwined with the duties of our profession. I've often wondered where the line is drawn between surveying and legal topics, per se, with regard to the law of easements, deeds, adverse possession, and the like. But I believe, as do all the writers of surveying treatises, that surveyors must have a firm understanding about those legal subjects that we come in contact with in performing typical surveying tasks. Therefore this Miller case becomes important in order for us surveyors to better understand some of the elements of an easement.

To begin any discussion of easements, I always like to quote from the Minimum Standard Detail Requirements for ALTA/ACS M Land Title Surveys, at paragraph 5(h), which states in part:
All easements evidenced by a Record Document which have been delivered to the surveyor shall be shown, both those burdening and those benefiting the property surveyed, indicating recording information .... Observable evidence of easements and/or servitudes of all kinds, such as those created by road; rights-of-way;.., on or across the surveyed property and on adjoining properties if they appear to affect the surveyed property, shall be located and noted ....

The facts of this Miller case are that the Millers filed a complaint against the Kirkpatricks, their adjacent neighbors, in response to the Kirkpatricks' installation of two parallel barbed wire fences, inside the drainage ditches, along each side of an access road, that was contained within a "right-of-way easement" created by a deed which benefitted the Millers. At the conclusion of all the evidence, the trial judge found that the Millers possessed an express grant of a "right-of-way easement," twenty feet in width. However, the jury found that the Kirkpatricks were not liable to the Millers for interference with the use of the easement, and the trial judge refused to order the removal of the fences.

The background behind this case is that after the relationship between these neighbors had for some reason deteriorated substantially, Mr. Kirkpatrick erected the two fences, approximately twelve feet apart, thus limiting the Millers' ability to use or maintain forty percent of the right-of-way to the Millers' farm fields.

On the initial appeal of this case to the Maryland Court of Special Appeals, that Court agreed with the trial court regarding the use of the right-of-way. Upon a further appeal, this time to the Maryland Court of Appeals, it was held that as a matter of law, the Kirkpatricks, standing in the chain of title as grantors of the express easement, could not unilaterally narrow the "right-of-way easement" from twenty feet to twelve feet by the installation of the fences.

As our appeals courts have said many times, an easement is broadly defined as a non-possessory interest in the real property of another. The Maryland Court of Appeals went on to state in this case that "in general, the terms `easement' and `right-of-way' are regarded as synonymous." However, I should digress for a moment at this point and expound upon my surveying proverb, that "all easements are rights-of-way, but not all rights-of-way are easements."

In many appellate court opinions the words "right-of-way" and "easement" are used interchangeably. One often sees these words referred to in title reports, and wonders whether the phase "right-of-way" connotes a fee simple interest, or only a right to use a certain strip of property for a particular purpose. An easement is only an interest in land. At common law it is generally a right in the owner of one parcel of land, by reason of such ownership, to use the land of another for a special purpose. That is, an easement is a restriction upon the property rights of the owner of the servient estate by the owner of the dominant estate. One could conclude, however, after a study of the language in the entire instrument creating a so-called "right-of-way," that the prescribed area is in fee simple.

In Moakley v. Los Angeles Pac. Ry. Co., 139 Cal. App. 421, 34 P.2d 218 (1934), the Kentucky Appeals Court said that "the term `right of way' has a twofold signification. It sometimes is used to describe a right of passage belonging to a party; and it is also used to describe the strip of land which railroad companies take in which to construct their roadbed." In Maysville & B.S.R. Co. v. Ball, 108 Ky 241, 56 S.W. 188 (1900), the California Appeals Court discussed the term "right-of-way" in more detail, writing that in order to determine whether the land taken was in fee, or was it only an easement, said that it "is the rule that a grant is to be interpreted so as to give effect to the intention of the parties, and that for this purpose the whole instrument should be considered.

It seems that when an instrument grants the right only to use a piece of land for a particular purpose, and it is clear from the language of the whole instrument that the grant is not in fee, it is an easement, but a right-of-way could either be a conveyance "in fee," or the grant of an "easement." That is, the term "right-of-way" generally signifies an easement in the absence of special circumstances indicting a contrary meaning.

Saying all of that, in the Miller case at hand, one will notice that the Maryland Court of Appeals is using the words "right-of-way easement" together in combination, but what we really have here is just a plain "easement," or, the right of one party to use the land of another party for a particular use.

With respect to the Miller easement, the Appeals Court stated that the Millers had a right to traverse it, and that the Kirkpatricks, as the owners of the fee, were also entitled to use the property in question, but that the Kirkpatricks could not obstruct the use of the easement. This Court concluded that the Kirkpatricks could make use of the access road, but they could not unilaterally modify or reduce the "right-of-way" in a manner or extent that is inconsistent with the intention of the parties as gleaned from the language of the deed granting the right-of-way.

In looking at other cases, the Maryland Court of Appeals stated that "a right to use a piece of property includes the last inch as well as the first inch and a fence or obstruction placed upon it by the servient tenement is an invasion of the dominant tenements' rights." The Court further stated that "it is axiomatic that an express easement for ingress and egress included the right to unfettered physical access up to the boundaries of the easement." Therefore, the Court remanded this case to the trial court for an order for the removal of the fences.

The general rule from this Miller case is that the owner of a servient tenement cannot close or obstruct an easement against those who are entitled to its use in such a manner as to prevent or interfere with the reasonable enjoyment by the dominant owner. This column is designed for all of you who enjoy reading about how the law interacts with land surveying.

If there is a particular legal topic that you may wish that I discuss on these pages, please forward your suggestions via the "Contact Us" section of www.theamericansurveyor.com.

Jim Demma is a licensed surveyor and attorney in Rockville, Maryland. Demma has extensive experience in the area of Land Use & Development, and has supervised and conducted more than 7,000 real estate settlements in Maryland, Virginia, and Washington, D.C.

A 1.227Mb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE