Andersons v. Great Bay Solar

243 Md. App. 557

• Court: Court of Special Appeals of Maryland
• Decided: December 18, 2019
• Docket: 2387/18
• Status: Published

Opinion

Andersons v. Great Bay Solar, LLC, et al., No. 2387, September Term, 2018. Opinion by Graeff, J.

PROPERTY — OWNERSHIP — PUBLIC HIGHWAYS

In the case of an ordinary highway, the general rule is that, absent evidence to the contrary, the public acquires only an easement of passage, and the adjacent landowner, subject to this easement, owns the land below the surface of the road. When a municipality acquires an easement of passage on a public street, however, it acquires the right to improve and maintain the road. Additionally, when land abutting a road is transferred, there is a presumption that title to the center of a binding street passes to the grantee under both common law and Md. Code (2015 Repl. Vol.) § 2-114(a) of the Real Property Article (“RP”). Absent evidence to the contrary, the Andersons’ evidence of their ownership of the farms established they own the land under the roads in fee simple, and the circuit court should issue a declaratory judgment in that regard.

PROPERTY — EASEMENT

An easement holder generally cannot use the land for any purpose other than that contemplated by the grant, although the scope of the easement may account for evolving uses consistent with the easement’s original purpose. Because the circuit court did not state the basis for its finding that the County had a “sufficient interest” to grant GBS the right to install the collections systems in the roads, and because factual findings are required to resolve this issue, the case must be remanded to the circuit court for clarification regarding this issue.

EQUITY — LACHES

Laches precludes equitable relief when there is an unreasonable delay in the assertion of rights, and that delay results in prejudice to the opposing party. A relatively short period of time may be found to constitute an unreasonable delay under the circumstances of the case. When a party knows that construction is scheduled to occur, they must diligently protest their rights, and waiting until the defendant incurs significant costs before filing suit may result in the claim being barred by laches. In this case, the court properly denied the Andersons’ request that the court order GBS to remove the cables and restore the roads to their previous condition. Circuit Court for Somerset County Case No. C-19-CV-17-000128

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 2387

September Term, 2018

______________________________________

WILLIAM H. ANDERSON and H. KEVIN ANDERSON

v.

GREAT BAY SOLAR I, LLC and BOARD OF COMMISSIONERS OF SOMERSET COUNTY

Graeff, Nazarian, Arthur, JJ. ______________________________________

Opinion by Graeff, J. ______________________________________ _________________ Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Filed: December 18, 2019 2019-12-18 14:49-05:00

Suzanne C. Johnson, Clerk Appellant, William Anderson, is the owner of two agricultural properties in

Somerset County. He is the sole owner of the Ira Barnes Farm, and he co-owns the Ben

Barnes Farm with his son, Kevin Anderson, also an appellant. The farms abut, or are

bisected by, Dublin Road and Old Princess Anne Road. On June 29, 2015, Somerset

County entered into an Easement Agreement with Great Bay Solar I, LLC (“GBS”),

appellee, to allow GBS to install collection systems along or below certain county roads,

including Dublin Road and Old Princess Anne Road, to transport the power from their solar

panels to the general electric grid.1

In April 2017, GBS began laying cable under these roads in accordance with the

Easement Agreement. The Andersons objected to the project, and on July 5, 2017, they

filed in the Circuit Court for Somerset County a complaint against GBS, seeking a

temporary restraining order, a preliminary injunction, and a permanent injunction to halt

the project. The Andersons alleged that they had fee simple ownership of the roadbeds

where GBS was burying the collection systems, and therefore, GBS was trespassing.

On September 8, 2017, the Andersons filed an amended complaint. They added as

a defendant the Board of County Commissioners of Somerset County (the “County”),

appellee, and added a request for a declaratory judgment that they owned in fee simple the

1 GBS states in its brief that its solar facility in Somerset County

“harvests” solar energy, which then must be converted to markable electricity at an offsite substation. The solar energy is conveyed to the substation via underground transmission cables (“collection systems”) from five solar “farms” in the area near Appellants’ property. Great Bay is engaged in the business of producing and selling the electricity generated by the solar facilities into the electrical grid. land beneath Old Princess Anne Road and Dublin Road where the roads abutted or bisected

their property and that GBS’s installation of high voltage electric cable constituted an

unlawful trespass on their property. They also sought an order directing GBS to remove

all electric cable from beneath the roadbeds.

On October 27, 2017, GBS filed a Counterclaim for Declaratory Judgment. It

requested a declaratory judgment that: (1) the County owned the roadbeds under the roads

at issue; (2) alternatively, that the County possessed a sufficient interest in the roads to

support the grant to GBS of rights to install the collection systems; or (3) alternatively, that

the Andersons were precluded from equitable relief based on the doctrines of waiver,

estoppel, and laches.

On August 30, 2018, after a three-day bench trial, the circuit court issued a written

“Opinion and Declaratory Judgment.” It ruled that neither the Andersons nor the County

met their burden of proof that they had a fee simple interest in the roads, that the County

possessed sufficient interest in the roads to grant GBS the right to install the collection

systems, that GBS had the legal right to install them, and that the Andersons were barred

“from any equitable relief they seek based on the doctrines of waiver, estoppel, and laches.”

On appeal, the Andersons present the following questions for this Court’s review,

which we have consolidated and rephrased slightly, as follows:

1. Did the circuit court err in finding that the Andersons did not present sufficient evidence to support their claim that they have a fee simple interest in the land lying beneath the portion of Dublin Road running through and bisecting the Ira Barnes Farm and beneath the portions of Dublin Road and Old Princess Anne Road bisecting and abutting the Ben Barnes Farm?

2 2. Did the circuit court err in concluding that, even though Somerset County does not have a fee simple interest in the roads, it nonetheless possesses a “sufficient interest” to permit it to grant GBS the right to utilize the land beneath the roadbeds for the installation of its industrial-scale, electrical cables?

3. Did the circuit court err in concluding that the doctrines of waiver, estoppel and laches barred the Andersons’ claims for equitable relief, and if not, are their claims for a legal remedy also barred?

On cross-appeal, GBS and the County raised the following additional question:

Did the circuit court err in holding that the County failed to prove that it owned Dublin Road and Old Princess Anne Road in fee simple?

For the reasons set forth below, we shall affirm, in part, and reverse, in part, the

judgment of the circuit court and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

A.

The Solar Project

Appellants, William Anderson and Kevin Anderson, have lived and worked as

farmers in Somerset County all their lives. William Anderson owns both the Ira Barnes

Farm and the Ben Barnes Farm, the latter of which he co-owns with his son, Kevin

Anderson. The Andersons use these farms to grow barley, wheat, corn, and soybeans. The

farms are located approximately two miles south of the town of Princess Anne, outside the

reach of municipal utilities such as water, sewer, or cable lines.

This appeal relates to the roads that bisect and border these two farms. Dublin Road

runs east-west and bisects both farms across their northern portions. Old Princess Anne

Road is perpendicular to Dublin Road, running north-south, and it establishes the western

3 border of the Ben Barnes Farm. Dublin Road terminates at Old Princess Anne Road at the

northwest border of the Ben Barnes Farm.2

In 2014, before obtaining an easement from the County to install the collection

system under the roads, representatives from Pioneer Green, the former parent corporation

of GBS, approached the Andersons about leasing or buying a portion of their farmland as

a site for a wind project.3 The Andersons refused to sell or lease their farms. The company

subsequently proposed leasing a right-of-way to place a collection system through the

property, and they reached a verbal agreement to a “40 foot right-of-way adjoining Dublin

Road.” When the company drew up the paperwork, however, the terms of the agreement

had been changed, without notice, to a 50-foot right-of-way for no additional

compensation. The Andersons advised that they were not interested “in doing business

with dishonest people.” That ended GBS’s attempt to lease land from the Andersons.

Kevin Anderson testified that, in June or July 2015, during a meeting on another

issue, GBS informed him that it did not need the right-of-way from him anymore because

the County had granted them permission to “run their cables down [the County’s] right-of-

way.” Kevin Anderson replied: “I don’t believe the [C]ounty can give you the authority to

do what you’re trying to do, I think you need the landowner’s permission.” Although

Kevin Anderson testified that GBS did not say specifically what the plans were, he testified

2 Arden Station Road initially was included in GBS’s collection system plans, but this plan was dropped. 3 The project initially was planned as a wind project, but the plan subsequently switched to a solar project. 4 that, in February or March of 2015, he saw GBS surveying roads in the area, particularly

Dublin Road and Arden Station Road. He testified that this was the first time that he

became “aware that they were contemplating burying cables in these roads.”

In February 2015, Kevin Anderson met with Woody Barnes, head of the County

Roads Department, regarding the surveying. Kevin Anderson stated his belief that he

owned the section of Dublin Road that bisected his property, and the County merely had a

right-of-way to maintain a public road. Mr. Barnes said that he understood Mr. Anderson’s

concern, but he worked for the County, and his “job was to facilitate this venture, not

obstruct it.”4

On June 29, 2015, GBS entered into an agreement (the “Easement Agreement”)

with the County that allowed GBS to lay collection systems under various county roads,

including Dublin Road and Old Princess Anne Road. The Easement Agreement authorized

GBS to

access and utilize County roadways, install facilities in, through, along, over or under, and make necessary improvements to, County right-of-way and other real property in order to transport equipment used in electric generation facilities and transmit electricity and electrical connection services through Public Ways of the County[.]

“Public Way” is defined in the agreement as “the surface of, and the space above and

below, any public right-of-way . . . now or hereafter held in fee simple title or any other

4 Mr. Barnes testified that he first learned of Kevin Anderson’s concern in February 2016, at which time they discussed the County’s intent to enter an agreement with GBS to run transmission lines down the roads, including Old Princess Anne Road and Dublin Road. Given the timing of the County’s ultimate agreement in June 2015, the meeting most likely was in 2015.

5 lesser or conditional estate, grant or leasehold interest by the County in those certain rights-

of-way” as identified on an attached map showing the roads and properties pertinent to this

appeal. The Easement Agreement was recorded in the land records for Somerset County

in Liber 0904, folio 0461.

The GBS project was discussed at multiple meetings of the Somerset County

Planning and Zoning Commission (the “Commission”). The Planning Commission was

responsible for reviewing the solar project and approving the site plans for each of the sites

where solar panels were proposed. Kevin Anderson, a Commission member since 2013,

and Vice Chairman since 2016, testified that the role of the Planning Commission is to

prepare recommendations for the County Commissioners’ approval, not to “have the final

say on whether [an action] is approved or rejected.”

Kevin Anderson was present for all but one of the meetings during which the GBS

project was discussed. In a meeting in 2014, Jim Porter, the Commission’s attorney, stated

that, based on his research in the context of setbacks for the project in its early stages, he

determined that most county roads in Maryland were rights-of-way, not property owned

by the County.

At a meeting held on May 7, 2015, Gary Pusey, the Somerset County Planning

Director, informed the Commission that GBS was pursuing a solar project, as opposed to

the initial wind turbine project. The power generated would be used “entirely off-site.”

On September 3, 2015, Mr. Pusey provided the update that the project was being

reviewed by the Public Service Commission. He gave Commission members a map

showing “what sites were possibly being considered.”

6 At the January 7, 2016, meeting, Mr. Pusey informed members that the project had

received approval by the Public Service Commission, with the condition that the Planning

Commission give site plan approval. He advised that there had been a roads agreement

with the County. Mr. Pusey stated that the Planning Commission would review the plans

“for zoning issues, setbacks, buffering issues, and so on.”

The minutes reflect that Kevin Anderson was not present for this meeting. He

testified, however, that he talked to Mr. Pusey at the January meeting about his concern

regarding “the roads issue” and the site plans. He stated that Mr. Pusey responded that the

Planning Commission was responsible only for the site plans, which “would not contain

anything to do with the roads,” which would be handled by the Roads Board.

On February 4, 2016, Mr. Pusey informed the Commission that plans for the five

solar sites and a substation were under review by planning staff and would be presented to

the Planning Commission at the next meeting. Kevin Anderson wanted to ensure that the

County addressed drainage. The minutes reflect that “Mr. Anderson stated concerns of

setbacks from roads and ensuring proper maintenance of the ditches.”

Also in February 2016, Kevin Anderson met again with Woody Barnes, who told

him that GBS would be laying the collection system “down the center of the road[s]”

pursuant to the Easement Agreement. Mr. Anderson testified, however, that Mr. Barnes

did not specify the roads to which he was referring.

7 At the March 3, 2016, meeting, approval of the site plan for GBS’s solar project was

a central topic of discussion.5 Mr. Anderson understood that GBS was waiting for the

County’s permission “to go ahead with the site plans.” The locations for the solar farms

were discussed, but Mr. Anderson testified that the site plans introduced at the meeting did

not include any reference or depiction of the collection systems that were going to transfer

the electricity generated on the sites to the substation. Mr. Pusey testified that, prior to the

approval of the site plans, there was a statement that the transmission lines would be located

in the roads, including Old Princess Anne Road and Dublin Road. Mr. Anderson testified

that, in response to this comment, he stated that he wanted to hear more about this, but he

was advised that it did not impact the site plan, and the Commission had no “say over it.”

The minutes reflect that Mr. Anderson made several comments, but he ultimately voted to

approve the proposed site plans.6

Following this meeting, Mr. Anderson began having conversations with County

officials more involved with the Roads Department. He met with Charles Fisher, a County

Commissioner, and explained his view that he held title to the property, the County had

only a right-of-way through the roads for a public way, and he did not “think the [C]ounty

5 The minutes refer to the project as the “Algonquin Solar Project.” Algonquin Power was the parent company of GBS at the time of this meeting, having acquired it from Pioneer Green in August 2015. 6 David Philpott, Senior Product Manager with Algonquin Power, testified that it was “well known” to members of the Planning Commission since March 2016 that collection lines would be installed underneath the roadbeds of Dublin Road and Old Princess Anne Road.

8 had the ability to transfer their right-of-way to another private entity.” Mr. Fisher told Mr.

Anderson that, although the County owned the roads and could do anything they wanted

with them, Mr. Anderson should not worry about the solar project because there were

problems with concrete under the road, and the project was a “dying issue” that “wasn’t

coming.” Moreover, Mr. Fisher informed Mr. Anderson that the economic viability of the

project was being reviewed because the value of Emission Reduction Credits had dropped.7

After Mr. Anderson was told that the project probably would not go forward, and he

witnessed no further activity on the roads in the ensuing months, Mr. Anderson “dropped

[his] guard down” and ceased to be actively concerned.

Mr. Anderson also met with Rex Simpkins, another County Commissioner. Mr.

Simpkins stated that the County was confident that it owned the roads and that the

Andersons’ claims had no merit. Mr. Anderson testified that, during these discussions, he

never saw any documentation regarding exactly how or where the collection systems were

going to run.

GBS, meanwhile, was working on its plan. It obtained zoning certificates and

building permits in February 2017.

On March 29, 2017, and April 5, 2017, the local newspaper posted a temporary road

closure notice, stating that “construction and feeder routes to the solar farms of [GBS]”

would begin on April 17, 2017, and it named Old Princess Anne Road and Dublin Road as

7 The Emission Reduction Credit Program is an environmental credit program used to as an incentive to reduce air pollutants in accordance with the Clean Air Act. Melissa Hearne, Pulling Profit from Air, 35 Md. B. J. 22, 23 (2002). 9 affected areas. Kevin Anderson testified that he saw this notice in the paper. Also on

March 29, 2017, the Andersons received a form letter from Algonquin Power advising

them that the company had been authorized “to begin work within the County Right of

Way for the completion of the Great Bay Solar I Project[,]” and that work would begin the

week of April 3, 2017. Construction began on the project on April 19, 2017.8

Kevin Anderson testified that he was “aware that they were contemplating burying

cables in the roads” when he saw GBS surveying Dublin Road and Arden Station Road in

Spring 2015. He first learned that the cables were going to be buried in Dublin Road and

Old Princess Anne Road from the public notice. The following colloquy then ensued about

his knowledge of the plan:

[Mr. Anderson]: The public notice that was in the paper didn’t tell us where and how, it just told us that these roads would be closed for installation of cable. I mean I never knew that they were going – I never knew that they were going down the road excavating out a trench and backfilling it with concrete until they started the work.

[Counsel for the Andersons]: Well, you must have had some awareness or some idea that they were going to be doing this on Dublin Road and Old Princess Anne Road bordering your farms when you went to see the commissioners and county attorney?

[Mr. Anderson]: I knew that it was proposed and it was a possibility but, for instance, Arden Station Road had been in the project, had been surveyed and been a part of all of this investigation but Arden Station Road was never used. And the description from what they had signed with the county, they had multiple roads listed. I mean they had more roads listed than they used. So it was very vague, you know, and nobody ever came – nobody ever came to us

8 Kevin Anderson testified that the collection system was buried under the westbound lane of Dublin Road and the northbound lane of Old Princess Anne Road to maintain traffic flow during construction. The northbound lane of Old Princess Anne is the side of the road abutting the Ben Barnes Farm.

10 offering to give us information, even though I was certainly asking for it. I did not actually know the plan for Dublin Road until the construction people got there and started putting up the signs and I asked them. I didn’t know if they were going to trench it down the side of the road like they bury existing electrical cable. Delmarva Power usually doesn’t dig up the road or excavate material out, they use something called a plow and plow it in. And I didn’t know what technique they were going to use.

After receiving the notice, Mr. Anderson went to the GBS work site construction trailer to

advise that he had a problem with the project, and they were trespassing on his property.

In April 2017, the Andersons retained legal counsel, who drafted a letter to GBS

stating the Andersons’ objections. Lacking the requisite contact information for the

contractors working on the project to copy them on the letter, counsel asked Mr. Anderson

to return to the work site trailer to inquire about this information. On this second visit to

the trailer on May 11, 2017, Mr. Anderson spoke with a handful of contractors, and for the

first time, he saw the official plans for the installation of the cable under Dublin Road. Mr.

Anderson reiterated his position that his property rights were being infringed upon, and he

requested that the contractors stop immediately. One of the contractors testified that Mr.

Anderson stated during this visit that he had no legal right to Old Princess Anne Road

because it used to be a state highway, but he argued that Dublin Road was his property.

David Philpott, Senior Project Manager for Algonquin Power, and GBS’s expert

witness, testified that they began installing cables on Old Princess Anne on approximately

April 19, 2017. On May 17, 2017, GBS received a cease and desist letter from an attorney

11 for the Andersons.9 On May 24, 2017, GBS’s attorneys replied, stating that GBS had been

granted easement rights from the County, the owner of the public road. The letter asserted

many of the claims raised here, and it requested copies of any documents showing that the

Andersons owned the property. Additional correspondence ensued.10

On July 5, 2017, failing to resolve the issue out of court, the Andersons filed a

complaint. Kevin Anderson testified that the reason for the delay between the final letter

on June 16 and the initial complaint on July 5 was because they were waiting on a search

of the deeds and tracking down proper titles. GBS asserts that, by the time the complaint

was filed, it had completed 90–95% of the work installing collection systems along Dublin

Road and Old Princess Anne Road.11 Mr. Philpott testified that the cost of installation

under these roads was nine to ten million dollars, and it would cost approximately two

million dollars to remove the cables.

9 Kevin Anderson testified that he retained counsel in reaction to the public notice and form letter on March 29, 2017. The delay in action between the March 29 notice and the May 17 letter was due to his dissatisfaction with his previous attorney’s response to the matter, which forced him to shop around for a new local attorney, many of whom had conflicts with the County. 10 The Andersons’ attorney responded via e-mail on June 5, 2017, re-stating their claim that the County did not have the authority to grant the easement. GBS’s attorney stated at trial that he never received this e-mail from the Andersons’ attorney because it was sent to the wrong address. On June 16, 2017, GBS’s attorney sent a “follow up” letter stating that they had not received a response, and please reply. 11 Cable installation on Old Princess Anne Road began in mid-April and was completed by mid-May; the cable installation then began on Dublin Road.

12 B.

Procedural History

In the July 5, 2017, complaint against GBS, the Andersons sought a temporary

restraining order and a preliminary and permanent injunction enjoining GBS from

trespassing on their land to bury the collection systems beneath the roadbeds and a

permanent injunction requiring GBS to remove the collection systems already laid and

restore the roadbeds to their preexisting condition.12 The Andersons stated that, unless

GBS was restrained from continuing to place “encased high voltage electric cables”

beneath the roads, they would suffer “irreparable injury” because the concrete wall would

“severely limit and may even preclude Plaintiffs from being able to run irrigation pipes and

public utility companies from being able to run ordinary utility lines under and across the

roads to provide needed service,” due to “the depth that would be required for such

crossings to maintain adequate separation from the high voltage cables.” They alleged that

granting injunctive relief was in the public interest because it would reduce the amount of

work needed to remove the concrete walls and cables, which the Andersons noted would

12 The complaint stated:

The procedure for the installation of Defendant’s cable consists of excavating a trench through the road pavement that is approximately two feet wide and four feet deep, selling or otherwise arranging for the removal of the excavated dirt to or by third parties, laying the cable on the dirt at the bottom of the trench, filling up the trench with concrete so as to be level with the road surface, thereby creating an uninterrupted, underground 2’x4’ concrete wall under the road surface. 13 “be more complicated, expensive and time consuming than their installation, the cost of

which is impossible to even estimate.”

The court held a hearing on August 8, 2017. On September 7, 2017, the court issued

an order granting a preliminary injunction. The court noted that, at the time of the hearing,

GBS had completed the installation of cable in the portion of the roads at issue on appeal,

and the request for an injunction prohibiting further cable installation was moot. The court

issued a preliminary injunction restraining GBS from placing new asphalt on the road or

installing cable under other portions of Old Princess Anne Road.

The next day, September 8, 2017, the Andersons filed an Amended Complaint for

Declaratory Judgment, Injunctive and Other Relief. The amended complaint added the

County as a defendant, and it requested a declaratory judgment that the Andersons owned

in fee simple the land beneath Old Princess Anne Road and Dublin Road where the roads

abut the Andersons’ farms and that GBS’s cable installation constituted an unlawful

trespass on their property. It also sought an order directing GBS to remove the collection

systems, refill the trenches, and repave the road surfaces, as well as an order granting the

Andersons a permanent injunction restraining GBS from burying electrical cable under the

roads.

On October 27, 2017, GBS filed a Counterclaim for Declaratory Judgment,

requesting that the court declare that the County either owned the roadbeds or had an

interest sufficient to grant GBS the right to install the collection systems. Alternatively, it

requested a declaration that the Andersons were “precluded from the equitable relief they

seek based on the doctrines of waiver, estoppel and laches.”

14 In this regard, GBS alleged that, after providing notice on March 29, and April 5,

2017, the installation of the collector lines would begin, GBS began installing the cables

in the roadbed of Old Princess Anne Road “in plain view of” the Andersons, and they

completed the work on approximately May 19, 2017. They began installation under Dublin

Road on approximately June 19, 2017, and at the time of the filing of the counterclaim, it

had completed the installation of 9,750 feet of collector lines.

GBS also alleged that roads have a nominal value of one dollar in the context of

condemnation proceedings. As another alternative, GBS requested that the Andersons

were entitled to payment of one dollar for GBS’s use of the roadbeds.

The circuit court held a three-day bench trial on June 20–22, 2018. On August 30,

2018, the court issued an Opinion and Declaratory Judgment. It included, among other

things, the following factual findings:

4. Somerset County has maintained Dublin Road and Old Princess Anne Road for decades. In addition to maintaining the surface of the roads, the County has maintained the subsurface of said roads, including the maintenance of drainage pipes and culverts underneath the roadbeds. These pipes and culverts benefit the farms that Plaintiffs own.

5. In March and April of 2015, Plaintiffs negotiated with Great Bay to lay cable under Plaintiffs’ farms, the negotiations failed and, on or about 29 June 2015, Great Bay entered into an Easement Agreement with Somerset County to lay cables under certain County roads.

6. In January 2016, Plaintiffs began surveying Old Princess Anne Road.

7. In February 2016, Plaintiffs learned the County and Great Bay had entered into an Easement Agreement to install the cables under County roads.

8. On 3 March 2016, Plaintiff Kevin Anderson participated in a Planning and Zoning Commission meeting in which cable installation under Old

15 Princess Anne Road, Dublin Road, and Arden Station Road was discussed; he also voted to approve the proposed cable installation.

9. In late 2016, both Plaintiffs informed County Commissioners Charles Fisher and Rex Simpkins that they objected to cable installation under Old Princess Anne Road, Dublin Road, and Arden Station Road, on the theory that they actually own the roads; Mr. Fisher and Mr. Simpkins responded that the County owns the roads, and Mr. Simpkins said, “If you disagree, that’s why we have a courthouse.”

10. On or about 29 March 2017, Plaintiffs received a form letter from the County informing them that portions of Old Princess Anne Road, Dublin Road, and Arden Station Road would soon be closed to accommodate cable installation; and, at about the same time, Plaintiffs saw a notice to that effect in a local paper.

11. On or about 5 April 2017, Plaintiffs again saw a notice in the local paper warning that the three roads which are the subject of this suit would soon be closed to accommodate cable installation.

12. Shortly thereafter, cable installation began on Old Princess Anne Road, and was completed by early May, when cable installation began on Dublin Road.

13. On or about 16 May 2017, Plaintiff Kevin Anderson entered a trailer serving as a field headquarters for Great Bay work crews installing the cable, informed the workers that he and his father were asserting ownership to Dublin Road, and asked for contact information so he or his attorney could write Great Bay demanding installation stop.

14. On 17 May 2017, [counsel for the Andersons] wrote on behalf of Plaintiffs to Great Bay, asserting that Plaintiffs own Old Princess Anne Road and Dublin Road, or portions of them, and demanding installation stop.

After setting forth these factual findings, the court then stated that it had reached the

following “conclusions of law”:

a. Neither Plaintiff has met his burden of proof that he has a fee simple ownership interest in either Dublin Road or Old Princess Anne Road;

16 b. Somerset County has failed to prove that it owns a fee simple interest in said roadbeds whether by patent, deed, adverse possession, eminent domain, dedication, or any other method.

c. Somerset County is lawfully maintaining the surface of both Dublin Road and Old Princess Anne Road, as well the subsurface culverts, drains, pipes, and gutters used for water run-off; and

d. By virtue of the finding of fact in paragraphs 4-14 above, Plaintiffs are barred from any equitable relief they seek based on the doctrines of waiver, estoppel, and laches.

The court ultimately ruled that the County “possesses sufficient interest in Dublin

Road, and Old Princess Anne Road to grant to Great Bay Solar I, LLC the right to install

the collection system in such roadbeds in accordance with the terms of the Easement

Agreement,” and therefore, GBS had “the legal right to install its collection systems in the

roadbeds.” Accordingly, the court denied the request for permanent injunction requiring

GBS to remove the collection systems and prevent additional installation of the systems.

The Andersons’ appeal, and the cross-appeals of GBS and the County, followed.

STANDARD OF REVIEW

Md. Rule 8–131(c) provides:

When 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.

The Court of Appeals has further described the standard of review under Md. Rule

8–131(c), as follows:

We give due regard to the trial court’s role as fact-finder[,] and will not set aside factual findings unless they are clearly erroneous. The appellate court must consider evidence [that is] produced at the trial in a light most favorable

17 to the prevailing party[,] and[,] if substantial evidence was presented to support the trial court’s determination, it is not clearly erroneous[,] and cannot be disturbed. Questions of law, however, require our non-deferential review. When the trial court’s decision involves an interpretation and application of Maryland statutory and case law, [this] Court must determine whether the trial court’s conclusions are legally correct. Where a case involves both issues of fact and questions of law, this Court will apply the appropriate standard to each issue.

Estate of Zimmerman v. Blatter, 458 Md. 698, 717–18 (2018) (quoting Bottini v. Dep’t of

Fin., 450 Md. 177, 187 (2016)).

DISCUSSION

I.

Ownership Interest in the Roadbeds

The Andersons and the County each contend that they have a fee simple interest in

Old Princess Anne Road and Dublin Road. They each assert that the circuit court’s finding

that they failed to show fee simple ownership was erroneous.

The Andersons contend that their expert witness, Christopher Custis, a licensed

property line surveyor, traced the Andersons’ ownership “back to original land patents

granted by the State of Maryland or its predecessor, the Lord Proprietor, and through the

fee simple deeds to them.”13 With respect to Dublin Road, which was established after the

13 “Land patents are the first link in the chain of title of ownership of land in Maryland.” Marquardt v. Papenfuse, 92 Md. App. 683, 689, cert. denied, 328 Md. 93 (1992). In 1632, King Charles I granted Maryland to the Calverts, making Lord Baltimore the Lord Proprietor of Maryland, having the right to grant land to others by means of patents. Id. at 689–90. Accord Maryland Coal & Realty Co. v. Eckhart, 25 Md. App. 605, 606–09, cert. denied, 275 Md. 753 (1975). Article 5 of the Maryland Declaration of Rights confirmed that the “Inhabitants of Maryland are also entitled to all property derived to them from, or under the Charter granted by his majesty Charles the First to Caecilius Calvert,

18 patents for the land had been granted, they assert that the evidence presented, as well as the

lack of any “recorded deed or other instrument” conveying fee simple title of the road to

the County, shows that they own the land on which the road rests, “subject to the County’s

right-of-way easement.”

With respect to Old Princess Anne Road, abutting the Ben Barnes Farm, the

Andersons contend that they have fee simple title to the southerly 2,400 feet under which

GBS has buried its cable. They assert that “[t]he land under the already existing road was

not reserved when the Lord Proprietor granted the Arracoco Neck/Double Purchase patent

in 1680 and neither Mr. Custis nor Mr. Simpkins located any subsequently recorded deed

or other instrument conveying fee simple title to the County or the State.”

The Andersons argue that the roadbeds are included in the property transfers about

which Mr. Custis testified because, under Md. Code (2015 Repl. Vol.) § 2-114(a) of the

Real Property Article (“RP”), any deed “that grants land binding on any street or highway

. . . shall be construed to pass to the devisee, donee, or grantee all the right, title and interest

of the devisor, donor, or grantor . . . in the street or highway for that portion on which it

binds.” They assert that, because the deeds for each farm describe the property as binding

to the road, these property transfers include the land under the abutted road.

Appellees contend that the trial court properly concluded that the Andersons failed

to meet their burden of proof to establish fee ownership. With respect to the Ben Barnes

Baron of Baltimore.” See also Porter v. Schaffer, 126 Md. App. 237, 245, cert. denied, 355 Md. 613 (1999), noting that, “[w]hen the Colony of Maryland became the State of Maryland, the power of the Lord Proprietor to grant land passed to the judges of the Land Office, a position now represented by the Commissioner of Land Patent.” 19 Farm, GBS asserts that there was a 176-year gap in the chain of title. With respect to the

Ira Barnes Farm, it asserts that the evidence showed that, in 1947, the State exercised a

purchase option for Dublin Road to widen it to accommodate certain utilities. GBS argues

that, although no deed was found to give legal title, “the State acquired equitable title to

Dublin Road in 1947 when the Purchase Option was executed.” With respect to the

Andersons’ reliance on Md. Code RP § 2-114, GBS contends that the reliance is misguided

because it simply contains a presumption for a conveyance when the grantor already has

title to the road, but it does not address the issue of ownership.

The County argues that Mr. Custis admitted that the deeds and patents he reviewed

did not reference ownership of the roads. It asserts that Mr. Custis’ conclusion that,

“because he did not find deeds to the County for the roads, the Andersons must own them

[is] a leap of faith truly Olympic in dimension.” The County argues that, to meet their

burden to prove that they owned the roads, the Andersons “had to do more than simply cast

doubt upon the County’s ownership.”

Appellees also contend, in their cross-appeal, that the circuit court erred in

concluding that the County did not have fee simple ownership of the roads because the

County acquired the roads by adverse possession. They further assert that Mr. Simpkins

explained that the roads were “established hundreds of years ago through a process he

likened to a ‘judicial taking,’ or eminent domain proceeding.” And, they argue, in 1947,

the State purchased options in fee simple to expand Dublin Road, and “[s]ince the options

were to purchase land in fee simple, it stands to reason the road being enlarged was itself

owned by the State in fee simple.”

20 The circuit court found that neither the Andersons nor the County met their burden

of proof to show fee simple ownership of the relevant portions of Old Princess Anne Road

and Dublin Road. Before analyzing the court’s conclusion in that regard, we will discuss

the evidence regarding the two farms and the two roads.

The Ben Barnes Farm

1.

Evidence Regarding the Farm

The Ben Barnes Farm, totaling approximately 114 acres and depicted on Somerset

County Tax Map 0024 as Parcel 0004, is owned jointly by William Anderson and Kevin

Anderson as tenants in common. It is located directly to the west of the Ira Barnes Farm.

It is the only property owned by Kevin Anderson at issue in this appeal, which involves

the portion of Dublin Road that bisects the farm and Old Princess Anne Road, which abuts

the western boundary of the farm, running north-south. A body of water called Kings

Creek also bisects the wooded area of property, running from the farm’s western border,

where it crosses under a bridge (“Kings Creek Bridge”) on Old Princess Anne Road, to the

southeast corner of the farm.

Mr. Custis traced the Ben Barnes Farm back to several different patents. His

testimony focused on the chain of title for two of these patents, both of which are relevant

21 to the issues on appeal: the “Chance” patent, involving 90 acres, and the “Arraroco

Neck/Double Purchase” patent (also referred to as “Beverly”), involving 5,800 acres.14

The Chance patent, comprising most of the modern-day Ben Barnes Farm, was

transferred from the Lord Proprietor to Henry and Anne Smith in 1675. In 1681, the Smiths

transferred the property by will to the Whittington family, who eventually transferred it to

John King in 1734. Neither Mr. Custis nor the appellees’ land records expert, Kirk

Simpkins, could account for a 176-year gap in the chain of title for Chance, from 1734 until

1910. Dublin Road, which was established as a public road in 1785, was created during

this 176-year gap. In 1910, Benjamin Langford transferred the property to Emma F.

Barnes.

The Arraroco Neck patent, originally a 5,800 acre tract, comprises about 23 acres

of the southwestern corner of the Ben Barnes Farm. This patent, which includes the section

of Old Princess Anne Road claimed by the Andersons, i.e., from the Kings Creek Bridge

to the southwestern corner of the Ben Barnes Farm, was conveyed in 1680 from the Lord

Proprietor. Portions of this large tract were sold off throughout the years, and it was

partitioned in 1849. In 1865, Isaac T. Barnes received multiple partitioned pieces, and in

1894, he conveyed the relevant 23.75 acres to Francis J. Barnes.15

14 The original patents are not included in the record on appeal. 15 These older deeds are not included in the record. The Andersons argue the language of the deed matters because of their interpretation of RP § 2-144(a) (“[A]ny deed, will, or other instrument that grants land binding on any street or highway, or that includes any street or highway as 1 or more of the lines thereof, shall be construed to pass to the

22 In 1913, the pertinent areas were transferred to Benjamin J. Barnes, who sold the

parcel to Kings Creek Canning Company in 1952. Kings Creek Canning Company later

conveyed some parcels to other individuals, but in 2003, the bulk of the parcel was sold to

William and Kevin Anderson. The deed describes the property as “bounded” on the north,

east, and south by the adjoining properties and “bounded on the West by the Old Princess

Anne Road.”

2.

Old Princess Anne Road

The County introduced into evidence a report dated March 2, 2018, prepared by Mr.

Simpkins regarding the ownership of the roads. With respect to Old Princess Anne Road,

the report states that Somerset County was founded in 1666 and “made provisions for a

highway through Somerset County.” In 1835, the road was “moved or upgraded” in

response to citizen petitions.16 Mr. Simpkins testified that the procedure involved, from

approximately 1785 to 1890, was the “precursor to our present day eminent domain or

condemnation,” explaining that the land was taken and damages paid based on approval

from the Levy Court. He explained that this judicial taking process did not lead to the

creation of a deed but was done solely by commissioners approved by the Levy Court. In

the late 1700s and early 1800s, there was merely an index for roads.

devisee, donee, or grantee all the right, title, and interest of the devisor, donor, or grantor . . . in the street or highway for that portion on which it binds.”). 16 This section of the road is not included in the Andersons’ appeal.

23 In 1927, there were improvements to the road, and it became U.S. Route 13. Mr.

Simpkins testified that, with respect to “U.S. 13,” the State took possession of the roads by

adverse possession or condemnation. He testified that, in 1960, the State transferred

ownership of the current Old Princess Anne Road to the County’s inventory of public

roads.17 The minutes from a 1960 State Roads Commission meeting provide that the

Commission approved the transfer of “18.29 miles of State owned highway to the County

for maintenance purposes.” Mr. Simpkins testified that this portion of the road included

Old Princess Anne Road. Although the experts did not find any deed explicitly transferring

ownership of the road from a private party to the County or State, Mr. Simpkins stated that

the County has installed and maintained a “fairly substantial drainage system” under the

road without objection for years.18

3.

Dublin Road

Dublin Road was established as a public road by order of Governor William

Smallwood in 1785. The County submitted as an exhibit a copy of the Act by the General

17 The parties agree that U.S. Route 13 was moved to its present location at some point in time. 18 Mr. Simpkins submitted an affidavit stating:

The roads contain tiles, culverts and pipes which traverse the subsurface of the roadways between four and six feet in depth in order to create proper drainage between the ditches on either side of the road. These culverts, tiles and pipes have been maintained and upgraded continuously since the roads have been in the possession of the County. At no time have the [Andersons] or their predecessors in title ever contested or objected to the maintenance of the surface and the subsurface portion of the roads herein. 24 Assembly, in response to a petition by the citizens for a road, authorizing commissioners

to lay out a new road, which when open would be “deemed, taken and established, to all

intents and purposes, as a public road.”

Mr. Simpkins testified that there was no public record suggesting that the

government would operate the road merely as an easement, and the language stating that it

was taken to establish a public road was similar to language in the constitution on

condemnation and eminent domain. The Andersons contend that the establishment of the

Road, based on the petition of citizens, was an offer of dedication, which resulted in the

County acquiring only a right-of-way, not a fee simple interest.

Mr. Simpkins testified that, in 1938, when the State owned and maintained the

roads, it decided to widen and straighten Dublin Road, but the project was not started until

the late 1940s. Mr. Simpkins’ report stated that, in 1947, the State requested that the

owners of parcels adjacent to Dublin Road execute deeds and rights-of-way for the

widening and straightening of the road. Neither party, however, found any recorded deeds

conveying any title to the road to either the State or the County.

William Anderson testified that Dublin Road was paved sometime in the 1950s.

Prior to this time, the County installed a large water drainage system under the road, which

it has maintained in the intervening years without objection. Kevin Anderson testified that

he also had done significant work to maintain the drainage system for Dublin Road and

Old Princess Anne Road, at his own expense.

Further facts regarding Dublin Road, as they relate to the Ira Barnes Farm, will be

discussed, infra.

25 4.

Analysis

With that factual background in mind, we address the parties’ claims regarding fee

simple ownership of the roads abutting or bisecting the Ben Barnes Farm. Specifically, the

claims involving the collection systems installed under the west-bound lane of Dublin Road

and “the southerly 2300 feet of the north bound lane of Old Princess Anne Road.”19 The

Andersons assert that Mr. Custis was able to trace the initial patents for the property, with

the help of aerial photographs and deeds, to the Andersons’ acquisition of the land in 2003.

They argue that this evidence established that they are the fee simple owners of the land

under the portions of the roads at issue on appeal, subject to the public’s right-of-way

use/county’s right-of-way easement.

With respect to Dublin Road, the Andersons assert that the evidence showed that it

was and remains a public road laid out on and running over the middle of a historically privately-owned, Chance patented land sometime after its 1785 authorization. But there is no recorded deed or other instrument conveying to the County or the State a fee simple or other property interest in the road or the land beneath it.

With respect to Old Princess Anne Road, the analysis is different because the road

was established before the land was conveyed to private persons. The Andersons assert

that the road “was established as a road by the County Commissioners in 1667 as a result

of a 1666 proclamation by the Lord Proprietor,” when the land was owned by the Lord

19 The Andersons, for various reasons, do not pursue any claims regarding other portions Old Princess Anne Road abutting the Ben Barnes Farm. Accordingly, we will limit our analysis to this portion of the road. 26 Proprietor. There is no record of a deed or anything else conveying title to the road to the

County at that time or any time thereafter, and therefore, they argue the government merely

dedicated the land for the road to the County.

In support, the Andersons note that, in 1667, the County ordered that “every man

shall [mark] out and [clear] his own Land (excepting where bridges are judged needful) for

[a] highway by the [direction] of the [s]urveyors.” They assert that, after the road was

established, fee simple title to the land on which the road was located was conveyed by the

Lord Proprietor or the State as part of patent grants, which, according to Mr. Custis, did

not exclude from the grant any land occupied by the road. Accordingly, they argue that

the patentees acquired fee simple title to the land under Old Princess Anne Road, and Mr.

Custis testified that the land records did not “contain a deed from either patentee or any

subsequent owner of the patented land conveying to either the proprietary government

(before 1776) or to the State or the County (after 1776) fee simple title to the road.”

Here, we do not have the original land patents in the record. We note, however, that

a common law dedication of property generally conveys to the government and the public

only an easement. See King v. North Chesapeake Beach Land & Imp. Co. Of Calvert Cty.,

143 Md. 693, 697–98 (1923) (“Common law dedicator ‘has full dominion and control over

land, subject to an easement in the public[.]’”) (quoting 8 R.C.L. 909–10).20

20 As this Court explained in 100 Harborview Drive Condo. Council of Unit Owners v. Clark, 224 Md. App. 13 n.7 (2015), R.C.L., Ruling Case Law, was an American Legal Encyclopedia published from 1854 to 1955. 27 And the general rule regarding the interests involved with respect to a public

highway is as follows:

Subject to qualification under special conditions, the general rule is that in the case of an ordinary highway the public acquires only an easement of passage and its incidents, and the owner of the soil, subject to this servitude, is entitled, except so far as required for highway purposes, “to the earth, timber and grass growing thereon, and to all minerals, quarries and springs below the surface.”

Chesapeake & Potomac Telephone Co. of Baltimore City v. Goldsborough, 125 Md. 666

(1915) (quoting Cheasapeake & Potomac Telephone Co. v. Mackenzie, 74 Md. 36, 47

(1891)).

That the County has maintained the roads for years does not change this conclusion.

When a municipality acquires an easement of passage on a public street, it also acquires

“the right to grade and improve the surface, and to lay drains, sewers and pipes for various

utilities beneath the surface of the land.” Mayor and Council of City of Baltimore v. U.S.,

147 F.2d 786, 788 (4th Cir. 1945).21 Based on the general rule that the public acquires only

an easement for a public highway, absent evidence to the contrary, the Andersons would

own the land under the roads, subject to the County’s easement for the road.

Moreover, with respect to the portion of Old Princess Anne Road at issue on appeal,

the Andersons assert that the early deeds conveying the land in fee simple described the

21 The rule at common law was different for roads located in rural areas. See, e.g., Baltimore County Water & Elec. Co. v. Dubreuil, 105 Md. 424, 427 (1907) (“But the great weight of authority is to the effect that there is a distinction between the use of streets in cities and towns for gas and water pipes and the use of country or rural highways. . . . [In] ‘an ordinary road or highway in the country’ . . . ‘all the public acquires is the easement of passage and its incidents[.]’”) (quoting Chesapeake & Potomac Telephone Co. v. Mackenzie, 74 Md. 36, 47 (1891)). 28 land as running with the easterly side of the road, and therefore, pursuant to RP § 2-114,

the property includes title to the center line of the road. RP § 2-114 provides:

(a) Except as otherwise provided, any deed, will, or other instrument that grants land binding on any street or highway, or that includes any street or highway as 1 or more of the lines thereof, shall be construed to pass to the devisee, donee, or grantee all the right, title, and interest of the devisor, donor, or grantor (hereinafter referred to as the transferor) in the street or highway for that portion on which it binds.

(b) If the transferor owns other land on the opposite side of the street or highway, the deed, will, or other instrument shall be construed to pass the right, title, and interest of the transferor only to the center of that portion of the street or highway upon which the 2 or more tracts coextensively bind.

(c) The provisions of subsections (a) and (b) of this section do not apply if the transferor in express terms in the writing by which the devise, gift, or grant is made, either reserves to the transferor or grants to the transferee all the right, title, and interest to the street or highway.

The deed to the Andersons described the Ben Barnes Farm by reference to Old

Princess Anne Road and the adjacent properties, i.e., that the land was “bounded on the

West by the Old Princess Anne Road.” The Andersons argue that this deed incorporated

“all that property conveyed unto Kings Creek Canning Company” by the 1952 deed

conveying the property to the Kings Creek Canning Company, which described the land as

“binding on the east side of the old state road leading from Princess Anne to Westover.”

In Boucher v. Boyer, 301 Md. 679, 687 (1984), the Court of Appeals noted that this

statute “extends the common law presumption that title to the center of a binding street

passes to the grantee.” Accord Barchowsky v. Silver Farms, Inc., 105 Md. App. 228, 239

(1995), cert. denied, 340 Md. 301 (1995). The purpose of the statute “is to assure

landowners that they will have access to streets bounding on their land by granting to them

29 title to the center line of the street while recognizing an easement in the other half of the

street.” Boucher, 301 Md. at 693.

As appellees note, the statute does not apply to a conveyance prior to its passage in

1892. See Title, Inc. v. Dubel, 177 Md. 387, 389 (1939). The common law presumption

that title to the center of a binding street passes to the grantee, however, still applies. The

record here reflects that the land at issue was subject to deeds including the road as the line

of the property.

Accordingly, based on the statute and the common law, the Andersons’ evidence

would establish that they owned in fee simple the land underneath the roads at issue, absent

evidence to the contrary. As explained below, appellees failed to submit such evidence.

Appellees argue that they did produce evidence that the County had fee simple

ownership of the roadbeds abutting or bisecting the Ben Barnes Farm, and that the circuit

court erred in failing to issue a declaratory judgment to that effect. They assert that Mr.

Simpkins testified that the County purchased the roads by “a form of eminent domain, in

the nature of a condemnation or other judicial taking,” and “it was undisputed the roads

had passed to County ownership from the State and proprietary governments.”

Additionally, they assert that the evidence showed that the County maintained the roads

and the subsurface for more than 20 years, and therefore, it acquired the roads by adverse

possession.

With respect to the argument that the County obtained the property by eminent

domain, the Andersons contend that “[t]here is no evidence that the County has acquired

30 by eminent domain fee simple title to any of the land for roads that are the subject of the

Andersons’ title claims.” We agree.

To be sure, Mr. Simpkins testified that a portion of Old Princess Anne Road was

moved in 1835, and the process at that time was for land to be taken in a process similar to

a condemnation proceeding. Apart from the fact that the portion of the road involved is

not at issue in this appeal, there was no evidence to indicate whether the property interest

acquired was a fee simple interest or an easement. And with respect to Dublin Road, the

County’s argument is merely that the action taken “presumably followed the process used

. . . to extend Old Princess Anne Road in 1835.”

There is authority for the proposition that, where “land is appropriated to the public

use under the right of eminent domain,” the public authority generally is limited “to their

precise needs.” Thomas M. Cooley, Constitutional Limitations 557 (Spec. ed. 1987).

Thus, “[i]n the common highways, the public have a perpetual easement, but the soil is the

property of the adjacent owner, and he may make any use of it which does not interfere

with the public right of passage, and the public can use it only for the purposes usual with

such ways.” Id. at 558.22

Here, Mr. Simpkins’ testimony did not provide any basis, beside speculation, for

the court to find that this general rule did not apply, and the County instead acquired a fee

22 This rule has been recognized, and applied when appropriate, in several Maryland cases. See, e.g., Frederick Gas Co. v. Abrams, 264 Md. 135, 138 (1972); West v. Maryland Gas Transmission Corp., 162 Md. 298, 312–13 (1932); Baltimore County Water & Elec. Co. v. Dubreuil, 105 Md. at 427; Mackenzie, 74 Md. at 47; Thomas v. Ford, 63 Md. 346, 355 (1885). 31 simple interest. Accordingly, the circuit court did not err in determining that the County

did not show a fee simple interest in Old Princess Anne Road or Dublin Road based on

eminent domain. See Figgins v. Cochrane, 174 Md. App. 1, 14 (2007) (Court’s

determination that a party failed to meet its burden to persuade the court on a question of

fact is not clearly erroneous.), aff’d, 403 Md. 392 (2008); Bricker v. Warch, 152 Md. App.

119, 137 (2003) (“[I]t is almost impossible for a judge to be clearly erroneous when he [or

she] is simply NOT PERSUADED of something.”).

We next address the claim that the County acquired title to the roadbeds by adverse

possession. GBS argues that, because the County has owned, operated, and maintained the

roads and subsurface of the roads for more than 20 years, it owns the roadbeds in fee

simple. The Andersons contend that this contention fails because the County’s use of the

areas underneath the road to install the drainage system was not hostile, but rather, it was

permissive under the implied terms of the easement.

To prove ownership by adverse possession, “a claimant must show continuous

possession of the property for 20 years in an actual, open, notorious, exclusive, and hostile

manner, under claim of title or ownership.” Porter v. Schaffer, 126 Md. App. 237, 276,

cert. denied, 355 Md. 613 (1999). Hostile use is “a possession that is adverse in the sense

of it being without license or permission.” Yourik v. Mallonee, 174 Md. App. 415, 429

(2007) (cleaned up).

Here, we agree with the Andersons that the County’s use of the roadbeds was not

hostile because the County clearly had an easement, which permitted it to maintain the road

by installing the drainage systems and perform other road maintenance. See Wagner v.

32 Doehring, 315 Md. 97, 104 (1989) (“The grant of a right-of-way does, however, entitle the

holder to use the premises at reasonable times and to maintain, improve, or repair the way

to serve its purpose.”). The circuit court did not err in concluding that the County did not

have a fee simple interest in the land under the road based on adverse possession.

Accordingly, based on the evidence presented in this case, we conclude that, with

respect to the Ben Barnes Farm, the Andersons showed that they own in fee simple the land

under the portion of the roads at issue in this appeal. We turn next to the portion of Dublin

Road that bisects the Ira Barnes Farm.

B.

Ira Barnes Farm

The Ira Barnes Farm, a 192-acre-parcel depicted on Somerset County Tax Map 0024

as Parcels 0005, 0068, and 0069, is owned solely by William Anderson. Parcel 0005 is

separated from Parcels 0068 and 0069 by Dublin Road, with Parcel 0005 to the south of

the road and Parcels 0068 and 0069 positioned side by side to the north. The Ira Barnes

Farm does not border Old Princess Anne Road, and therefore, only Dublin Road is at issue

for this property.

Mr. Custis traced the history of Parcel 0005, the biggest portion of the Ira Barnes

Farm, back to the 1785 “Oxhead” patent. He traced the deeds from this initial patent to

present day, and he found that the property essentially remained intact from 1785 until

1910, when the initial patent was split into two pieces.

In 1936, the larger of these two pieces, i.e., the modern day Ira Barnes Farm, was

acquired by William Anderson’s father, Howard Anderson, from Ira Barnes. The chain of

33 title prepared by Mr. Custis shows that William Anderson’s mother, Elsie Anderson,

acquired an interest in 1951.

William Anderson gained fee simple title to Parcel 0005 of the Ira Barnes Farm

from his parents by inheritance in two parts—the first half interest when his mother died

in 1981, and the other half interest when his father died in 1984. Parcels 0068 and 0069,

which were part of the Oxhead patent and conveyed by Howard Anderson prior to his death

to his daughters (William Anderson’s sisters), were later transferred to William Anderson

in 1997 and 2005, respectively. Based on these transfers, William Anderson currently has

fee simple ownership of the Ira Barnes Farm.

Based on the evidence presented, and the common law rule that, absent evidence to

the contrary, the public generally obtains only an easement on a highway, Mr. Anderson

would own in fee simple the land under Dublin Road, as was the case for the Ben Barnes

Farm. There is a wrinkle, however, with respect to the County’s claim in this regard.

As indicated, Mr. Simpkins testified that the State received deeds and rights-of-way

from abutting property owners to widen and straighten Dublin Road. Appellees assert that

Mr. Simpkins found documents in the State Roads Commission files, which contained a

1947 agreement with the County to widen and pave Dublin Road. That same year, William

Anderson’s parents, Howard and Elsie Anderson, signed a purchase option agreement for

one dollar. The documents included in the record, however, are difficult to read, and the

terms of the agreement are unclear.

Mr. Custis stated that he did not know if the agreement gave title, but he believed

that the intent of the option was to transfer ownership. One of the documents in the

34 purchase option exhibit contained a line item list with “Howard Anderson” labeled as the

property owner and various numbers listed for “cultivated land in fee,” “cultivated land

easement,” “roads in fee,” and “roads in easement,” for a total of one dollar. No testimony

was provided to clarify these line items.

The purchase option exhibit also included a letter, which is very difficult to read. It

is dated 1947, from the “Right of Way Engineer,” and states: “The conveyance which you

signed will be turned over to the County Commissioners for recording.” Mr. Custis stated

that no deed with respect to this purchase option agreement was filed in the land records.

The State Highway Administration records included State road plats containing a

handwritten notation, by an unknown author, stating “file . . . indicates options were

obtained [and] title taken in name of county.” Two versions of the plats, however, were

found in the State Highway records, one with this notation and one without. No

explanation was given for this circumstance.

Appellees argue that the County gained fee simple ownership of the portion of

Dublin Road bisecting the Ira Barnes Farm when William Anderson’s parents signed the

purchase option agreement with the County in exchange for one dollar. They do not dispute

Mr. Anderson’s contention, however, that legal title “does not pass, other than by operation

of law, until a deed is properly executed and recorded.” Kingsley v. Makay, 253 Md. 24,

27 (1969).

Appellees assert that the County acquired equitable fee simple title by operation of

law when it exercised its purchase option. In response, the Andersons argue that the

County did not exercise the option as written because it did not record in the land records

35 the deed and the plats, which creates uncertainty regarding the equitable property interest

to which the County is entitled. They ultimately conclude, however, that,

given the evidence that Howard and Elsie Anderson (and others) wanted Dublin Road upgraded and had agreed to donate land for that purpose, and that the County proceeded to do it notwithstanding the lack of any recorded deeds and plats, a common law dedication of the upgraded road resulted in which the County acquired legal title – but only to an easement.

See Smith v. Shiebeck, 180 Md. 412, 418 (1942) (“In Maryland no particular form or

ceremony is necessary to dedicate land to public use. No deed is necessary to evidence a

dedication, nor any grantee in esse to take the title.”); King, 143 Md. at 697–98 (Common

law dedication of property conveys to the government and the public only an easement.).

Given the lack of evidence establishing the nature of the interest conveyed by the

purchase option, i.e., fee simple interest or an easement, we cannot conclude that the circuit

court was clearly erroneous in concluding that the County did not meet its burden of

showing that the purchase option agreement conveyed fee simple interest in the land under

Dublin Road. See Figgins, 174 Md. App. at 14 (Court’s determination that a party failed

to meet its burden to persuade the court on a question of fact was not clearly erroneous.),

aff’d 403 Md. 392 (2008). Bricker, 152 Md. App. at 137 (“[I]t is almost impossible for a

judge to be clearly erroneous when he [or she] is simply NOT PERSUADED of

something.”).

C.

Remand

Based on the analysis set forth above, we conclude that the circuit court erred in

finding that the Andersons did not own in fee simple the land under the roads at issue in

36 this appeal. Accordingly, we shall reverse that portion of the opinion and remand to the

circuit court to issue a declaratory judgment that the Andersons are the fee simple owners

of the roads.

II.

“Sufficient Interest”

The Andersons also sought a declaration that GBS, by burying its electric cables

beneath the roads without consent, trespassed on the Andersons’ property. The circuit

court did not issue such a declaration, instead concluding that, although the County failed

to show that it owns the land under the roads in fee simple, GBS nevertheless had the legal

right to install the collection systems because the County had a “sufficient interest” in the

roads to validly grant that right to GBS. The court did not explain the basis for this ruling

or specify the nature of the County’s interest. See Md. Rule 2-522 (In a contested court

trial, the judge shall provide “a brief statement of the reasons for the decision.”).

The Andersons argue on appeal that the court’s ruling in this regard was erroneous.

They assert that the only property interest in the roads that would be sufficient to entitle

the County to grant GBS an easement “to place industrial-scale, electrical cables beneath

the roadbeds is a fee simple interest,” which GBS and the County failed to establish. They

contend that the evidence established a dedication of the roads to the County, but only that

“of an implied, right-of-way or easement interest.” They argue that this right entitles the

County to use of the roads only for the purpose for which the easement was obtained, i.e.,

as a public way of transportation, and it does not allow the County to use the ground below,

37 or allow a third party to use the land, for other purposes without the permission of the

landowner.

GBS and the County contend that the trial court correctly concluded that the County

had a sufficient interest to grant GBS the right to install cables under the roads. Initially,

the County argues that the court’s sufficient interest finding was based on a finding that it

owned the roads in fee by adverse possession based on its maintenance of the roads for

more than 20 years. This assertion is inconsistent with the trial court’s finding that the

County did not prove ownership of the roads in fee simple. In any event, as we have

explained, the circuit court did not err in finding that the County did not establish fee simple

ownership of the land beneath the roads based on adverse possession.

The County next contends that, even if the County only has a public right-of-way

easement with respect to the roads, case law indicates that uses permitted within an

easement or right-of-way can evolve over time. It asserts:

If Somerset County roads, established in 1666 and 1795, are easements or rights of way, it is reasonable to anticipate that those rights of way ‘would conform over time to the reasonable demands of the public’ by permitting installation of electric transmission or collection lines in the beds of those public roads to serve the public.

It argues that, where the County “has maintained pipes under the roads to conduct

stormwater,” and it could have installed its own cables to conduct electrical current, it had

a sufficient interest to allow GBS to do what it could do itself.

If the County had a fee simple interest in the land under the roads permitting it to

install cables to transmit solar power, we would agree that the County could grant GBS an

easement to do the same. See West v. Maryland Gas Transmission Corp., 162 Md. 298,

38 316 (1932) (holders in fee simple of bed of the road have the right to lay pipes, subject to

the grant of an easement, and may convey this right to another). Here, however, the County

failed to prove this, and as indicated, in the absence of evidence to the contrary, the general

rule is that the public has only an easement interest in a highway.

The rights of someone with an easement interest are different and more nuanced.

As this Court has explained:

An easement is broadly defined as a nonpossessory interest in the real property of another. An easement involves primarily the privilege of doing a certain class of act on, or to the detriment, of another’s land, or a right against another that he refrain from doing a certain class of act on or in connection with his own land.

An easement may be created by express grant, by reservation in a conveyance of land, or by implication.

USA Cartage Leasing, LLC v. Baer, 202 Md. App. 138, 174–75 (2011) (cleaned up), aff’d,

429 Md. 199 (2012)). “Easements by implication may arise ‘by prescription, necessity,

the filing of plats, estoppel, and implied grant or reservation where a quasi-easement has

existed while the two tracts are one.’” Lindsay v. Annapolis Roads Property Owners Ass’n,

431 Md. 274, 291 (2013) (quoting Boucher, 301 Md. at 688).23 In general, “the terms

‘right-of-way’ and ‘easement’ are synonymous.” Chevy Chase Land Co. v. United States,

355 Md. 110, 126 (1999).

23 Maryland’s Public Utility Article also contains provisions providing for easements for telecommunication companies. Md. Code (2010) § 8–103(a) of the Public Utilities Article (“PU”) (A telephone company may construct lines “along and on a road, street, or highway[.]”); PU § 8–106(a) (To obtain an easement, telephone company can apply to circuit court to obtain appraisal of damages to be paid to property owners). 39 An easement holder generally “cannot use the land for any purpose other than that

contemplated by the grant.” Wagner, 315 Md. at 104. A use that is not within the scope of

the original terms or intent of the easement creates an additional servitude and entitles the

landowner to compensation. Peck v. Baltimore County, 286 Md. 368, 379 (1979). Whether

an additional servitude has occurred, however, is a question of fact for the circuit court to

decide. Id.

When there is an express grant, the court will look to the terms of the grant. See

Chevy Chase Land Co., 355 Md. at 143 (a recreational trail for bikers and hikers was within

scope of a right-of-way easement originally established for a railroad because this use was

consistent as a means of transit and the deed establishing the right-of-way contained no

limiting language). An implied easement is “based on the presumed intention of the parties

at the time of the grant or reservation as disclosed from the surrounding circumstances,”

and this intention is a factual question. Purnell v. Beard & Bone, LLC, 203 Md. App. 495,

508 (2012) (quoting Boucher, 301 Md. at 688).

Here, as indicated, the circuit court did not explain the basis for its conclusion that

the County had a “sufficient interest” in the roadbeds to grant GBS the right to install the

collection systems. Assuming that the circuit court found that the County had an easement,

it did not state the type of easement on which it was basing its conclusion or whether the

use involved was within the scope of the original easement. The court’s sparse discussion

does not permit this Court to make a determination whether any factual findings in this

regard were clearly erroneous.

40 Appellees contend, citing Wagner, 315 Md. at 104, that the grant of a right-of-way

generally entitles “the holder to use the premises at reasonable times and to maintain,

improve, or repair the way to serve its purpose.” They assert that this scope accounts for

evolving uses consistent with the easement’s original purpose. See Chevy Chase Land Co.,

355 Md. at 145.

With respect to the appropriate scope of a public highway easement, “the purpose

of a highway easement is for ‘passing and repassing’ and only when a use is ‘not incident

to such right of passage’ does it create an additional servitude.” Chevy Chase Land Co.,

355 Md. at 145 (quoting Poole v. Falls Road Electric Ry. Co., 88 Md. 533, 537 (1898)).

Rights incidental to a public highway easement include the “right to use the public

highways for all purposes of travel, including the conveyance of persons, the transfer of

goods and transmission of intelligence[.]” West, 162 Md. at 311–12 (quoting Crullen v.

Edison Elec. Illumination Co. of Boston, 254 Mass. 93, 94–95 (1925)).

The Court of Appeals has recognized, however, a “distinction between the use of

the streets in cities and towns for gas and water and the use of country or rural highways.”

Frederick Gas Co. v. Abrams, 264 Md. 135, 138 (1972). Accord Peck, 286 Md. at 380–

81; West, 162 Md. at 312–13. In Abrams, the Court stated that, in suburban and urban

areas, “the right-of-way for a public highway extends not only horizontally over the surface

of the land for the purpose of travel but also vertically below the surface of the roadbed”

to lay utility lines. 264 Md. at 140 (quoting Green v. Washington Suburban Sanitary

Commission, 259 Md. 206, 219 (1970)). The rationale is that, because utilities providing

modern comforts are central to life in more urban areas, those purchasing property there

41 are presumed to have consented “that such uses could be made of a street laid out over

land[.]” Id. at 138 (quoting Baltimore County Water & Electric Co. v. Dubreuil, 105 Md.

424, 440 (1907)).

In contrast, the Court of Appeals has viewed rural areas as lacking the same

expectations for things such as utility lines. Id. at 140, 146. For this reason, a right-of-way

easement in a rural area does not extend to the roadbed, i.e., the use of the roadbeds is not

within the scope of the highway easement. Id. at 139–40.24 Here, the court did not make a

factual finding regarding the character of the area at issue in this case.

In sum, because the circuit court’s order does not state the basis for its finding that

the County had a “sufficient interest” to grant GBS the right to install the collections

systems in the roads, and because factual findings are required to resolve this issue, we

remand to the circuit court for clarification regarding this issue.25

24 Appellees argue that the precedent in Frederick Gas Co. v. Abrams, 264 Md. 135 (1972), is outdated and should not be followed. In that case, the Court of Appeals credited the utility’s argument that the qualities of rural communities justifying this distinction had shifted since the rule was established by the Court in Dubreuil in 1907. Id. at 146–47. The Court, however, was reluctant to eliminate the distinction between rural and urban communities absent action from the legislature. Id. Because neither the General Assembly nor the Court of Appeals have taken such action since Abrams, we are bound by previous case law to apply this distinction. 25 We also note that, in Abrams, the Court stated that “[w]hether the utility installed in the public way is within the original scope of the easement” depends on a “factual determination of whether it is for the benefit of the immediate surrounding community.” 264 Md. at 145 (quoting 2 American Law of Property, § 9.51 (1952 ed.)) “Where the construction is for the benefit of a distant community, such as a natural gas pipeline or water main, it has generally been held that such use imposes an additional servitude[.]” Id. Given this case law, even if the circuit court finds the area to be urban or suburban, it may want to consider whether the solar energy transported by the collection systems was for the

42 III.

Delay in filing suit

In GBS’s counterclaim for a declaratory judgment, GBS asserted that the Andersons

strategically delayed asserting their claims, and therefore, it requested a declaration that

they had “waived and/or are barred by the doctrines of estoppel and/or laches from

asserting any right they hold to require Great Bay to remove installed collector lines in

Dublin Road and Old Princess Anne Road.” It sought a declaration that the Andersons

were “precluded from the equitable relief they seek based on the doctrines of waiver,

estoppel and laches.” The circuit court issued such an order, stating that the Andersons

“are barred from any equitable relief they seek based on the doctrines of waiver, estoppel,

and laches.”

The Andersons contend that the court erred in so ruling. They assert that the court

did not explain the basis for its findings, the evidence does not support the findings, and

the court’s factual findings were clearly erroneous.

GBS and the County contend that the court correctly found that all three defenses

barred relief. GBS asserts that the Andersons believed years before they filed suit that they

held legal rights to block installation of the cables, but they did nothing to enforce those

rights. It points specifically to the March 3, 2016, Planning Commission meeting, where

Kevin Anderson voted to approve the site plan for the project. The County contends that

the Andersons should have brought suit after receiving notice in March 2017 that the cable

benefit of a distant community, given David Philpott’s testimony that GBS had entered into a contract to sell the power to the United States government. 43 installation would begin, but they “sat back and watched while cable was installed,” filing

suit only after “cable installation was virtually complete,” after GBS “had committed itself

irretrievably.”

As the Andersons note, the circuit court did not elaborate on the basis of its

conclusion that they were barred from equitable relief based on the doctrines of waiver,

estoppel, and laches. The court merely stated that this conclusion was based on the

following factual findings:

4. Somerset County has maintained Dublin Road and Old Princess Anne Road for decades. In addition to maintaining the surface of the roads, the County has maintained the subsurface of said roads, including the maintenance of drainage pipes and culverts underneath the roadbeds. These pipes and culverts benefit the farms that Plaintiffs own.

5. In March and April of 2015, Plaintiffs negotiated with Great Bay to lay cable under Plaintiffs’ farms, the negotiations failed and, on or about 29 June 2015, Great Bay entered into an Easement Agreement with Somerset County to lay cables under certain County roads.

6. In January 2016, Plaintiffs began surveying Old Princess Anne Road.

7. In February 2016, Plaintiffs learned the County and Great Bay had entered into an Easement Agreement to install the cables under County roads.

8. On 3 March 2016, Plaintiff Kevin Anderson participated in a Planning and Zoning Commission meeting in which cable installation under Old Princess Anne Road, Dublin Road, and Arden Station Road was discussed; he also voted to approve the proposed cable installation.

9. In late 2016, both Plaintiffs informed County Commissioners Charles Fisher and Rex Simpkins that they objected to cable installation under Old Princess Anne Road, Dublin Road, and Arden Station Road, on the theory that they actually own the roads; Mr. Fisher and Mr. Simpkins responded that the County owns the roads, and Mr. Simpkins said, “If you disagree, that’s why we have a courthouse.”

44 10. On or about 29 March 2017, Plaintiffs received a form letter from the County informing them that portions of Old Princess Anne Road, Dublin Road, and Arden Station Road would soon be closed to accommodate cable installation; and, at about the same time, Plaintiffs saw a notice to that effect in a local paper.

11. On or about 5 April 2017, Plaintiffs again saw a notice in the local paper warning that the three roads which are the subject of this suit would soon be closed to accommodate cable installation.

12. Shortly thereafter, cable installation began on Old Princess Anne Road, and was completed by early May, when cable installation began on Dublin Road.

13. On or about 16 May 2017, Plaintiff Kevin Anderson entered a trailer serving as a field headquarters for Great Bay work crews installing the cable, informed the workers that he and his father were asserting ownership to Dublin Road, and asked for contact information so he or his attorney could write Great Bay demanding installation stop.

14. On 17 May 2017, Mr. Smethurst wrote on behalf of Plaintiffs to Great Bay, asserting that Plaintiffs own Old Princess Anne Road and Dublin Road, or portions of them, and demanding installation stop.

(Emphasis added.)

We begin by addressing the Andersons’ contention that Paragraph 8 of the court’s

opinion contains incorrect fact findings. This Court will not disturb a factual finding made

by the circuit court at a bench trial unless it is clearly erroneous, and we “will give due

regard to the opportunity of the trial court to judge the credibility of the witnesses.” Md.

Rule 8-131(c). “If there is any competent evidence to support the factual findings below,

those findings cannot be held to be clearly erroneous.” Solomon v. Solomon, 383 Md. 176,

202 (2004) (quoting Fuge v. Fuge, 146 Md. App. 142, 180 (2002)).

We agree with the Andersons that the trial court’s factual finding, that Kevin

Anderson voted at the March 3, 2016, meeting of the Planning Commission “to approve

45 the proposed cable installation,” was clearly erroneous. The minutes from the March 3,

2016, meeting, and the testimony by Kevin Anderson and Mr. Pusey, make clear that the

vote taken that day was not on the cable installation, but instead, it was on the site and

substation locations. And Kevin Anderson gave uncontradicted testimony that the

Planning Commission was not involved with approval of cable installation under the

roads.26 Therefore, this was a clearly erroneous factual finding by the circuit court.

We next consider the effect that this erroneous finding of fact had on the circuit

court’s ultimate conclusion regarding waiver, estoppel, and laches. We will address each

defense, in turn.

Waiver

Waiver is the “intentional relinquishment of a known right, or such conduct as

warrants an inference of the relinquishment of such right, and may result from an express

agreement or be inferred from circumstances.” Creveling v. Gov’t Employees Ins. Co., 376

Md. 72, 96 (2003) (quoting Food Fair v. Blumberg, 234 Md. 521, 531 (1964)). Waiver,

therefore, hinges on the intent of the party and requires an unequivocal demonstration that

waiver was intended. Taylor v. Mandel, 402 Md. 109, 135–36 (2007). Accord Kiley v.

First Nat’l Bank of Maryland, 102 Md. App. 317, 338 (1994) (waiver argument rejected

where no clear intention to relinquish forever a right), cert. denied, 338 Md. 116 (1995).

26 At oral argument, appellees agreed that the March vote by the Planning Commission was not to approve the cable installation in the roads, although they argued that this was the practical effect of the vote.

46 Whether a party has waived its right to assert a claim is a question of fact, which this Court

will not disturb unless clearly erroneous. Hoskins v. Warden of Md. House of Correction,

235 Md. 613, 615 (1964) (“[T]he sufficiency of the waiver is a question of fact.”).

Here, although the court did not specify the basis of its waiver finding, the factual

findings referred to by appellees involve: (1) Kevin Anderson’s March 3, 2016, vote as a

member of the Planning Commission; and (2) the notice given to the Andersons on March

29 and April 5, 2017, that the roads would be closed for cable installation.27 With respect

to the first factual finding, we have already stated that this was clearly erroneous, and

therefore, it would not support a finding of waiver. With respect to the notices received in

the spring of 2017, there was a delay of approximately three months after receiving these

notices before the Andersons filed suit. This delay does not, by itself, support a finding of

an intentional relinquishment of the right to contest the installation of the cables.28

Accordingly, the circuit court’s finding that the Andersons’ claim for injunctive relief was

barred based on waiver was clearly erroneous.

27 We note that, although Kevin Anderson stated that he knew the project was a possibility before this, he was told in 2016 that the project was not going to move forward, so he should not worry about it. He testified that it was not until the notices in the spring of 2017 that he knew that the project actually would proceed. 28 GBS asserts on appeal that the Andersons intentionally delayed their filing until construction was nearly complete in retaliation for their inability to close the initial easement deal for compensation back in 2014 and to force GBS back to the table for payment. Even if there was evidence of such an intent, and the court made a factual finding to that effect, which it did not, it is not clear that this would satisfy the requirements necessary to find a waiver. 47 B.

Estoppel

“[E]stoppel rests upon a detrimental change of position induced by the acts or

conduct of the party estopped.” Gould v. Transamerican Assocs., 224 Md. 285, 295 (1961).

This Court has described estoppel as follows:

Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded both at law and in equity, from asserting rights which might perhaps have otherwise existed . . . as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse and who on his part acquires some corresponding right, either of property, of contract, or of remedy.

Olde Severna Park Improvement Ass’n, Inc. v. Barry, 188 Md. App. 582, 595 (2009)

(quoting Knill v. Knill, 306 Md. 527, 534 (1986)), cert. denied, 412 Md. 496 (2010).

The doctrine of estoppel applies where there is (1) voluntary conduct or

representation; (2) reliance; and (3) detriment. Id. The Court of Appeals explained in Knill

that these elements are inherently interrelated. 306 Md. at 535. “The voluntary conduct or

representation of the party to be estopped must give rise to the estopping party’s reliance

and, in turn, result in detriment to the estopping party.” Id. Although wrongful conduct is

often found where estoppel is present, the Court of Appeals has held that “estoppel may

arise even where there is no intent to mislead, if the actions of one party cause a prejudicial

change in the conduct of the other.” Id. at 534.

“The party asserting estoppel ‘bears the burden of proving the facts that create it.’”

Nationwide Mut. Ins. Co. v. Regency Furniture, Inc., 183 Md. App. 710, 732 (2009)

(quoting Creveling, 376 Md. at 102). Whether estoppel applies to bar a claim “is a question

48 of fact to be determined in each case,” and therefore, we will not disturb the circuit court’s

judgment unless it was clearly erroneous. Barry, 188 Md. App. at 595. Accord Heartwood

88, Inc. v. Montgomery County, 156 Md. App. 333, 370 (2004) (“[T]he question of estoppel

is a question of fact because it involves ‘the assessment of conduct by one party and

reliance by another.’”) (quoting Allstate Ins. Co. v. Reliance Ins. Co., 141 Md. App. 506,

515 (2002)).

Here, to the extent that the circuit court’s conclusion regarding estoppel was based

on its erroneous fact finding that Kevin Anderson voted to approve the cable installation,

this conclusion was clearly erroneous. And to the extent it was based on the Andersons’

delay in filing suit after they received the notices in the spring of 2017 that the installation

was going to happen, the record does not reflect, and the circuit court did not find, that

GBS changed its position on the project, i.e., decided to go forward with the installation

because the Andersons did not file suit as soon as they received the notices. See Savonis

v. Burke, 241 Md. 316, 319 (1966) (“It is essential for the application of the doctrine of

equitable estoppel that the party claiming the benefit . . . changed his position for the worse,

having believed and relied on the representations of the party sought to be estopped.”);

Lusby v. First Nat’l Bank of Md., 263 Md. 492, 506 (1971) (Lusby was not entitled to

invoke doctrine of equitable estoppel where there was no evidence that she had “changed

her position for the worse because of her reliance on the representation.”); Old Republic

Ins. Co. v. Gordon, 228 Md. App. 1, 12 (2016) (Where party did not allege that her position

changed based on other party’s actions, equitable estoppel was inapplicable). Indeed,

David Philpott testified that GBS proceeded with the installation, despite receiving a letter

49 from the Andersons’ attorney, because they had to maintain their construction schedule or

be subject to substantial penalties.

Accordingly, the circuit court’s finding that estoppel barred the Andersons’ request

for injunctive relief, based on the factual findings set forth in its opinion, was clearly

erroneous.

Laches

Laches precludes equitable relief when “a plaintiff has exhibited negligence or lack

of due diligence in asserting a right to the detriment of the defendant.” Jahnigen v. Smith,

143 Md. App. 547, 555, cert denied, 369 Md. 660 (2002). Laches “applies when there is

an unreasonable delay in the assertion of one’s rights and that delay results in prejudice to

the opposing party.” State Center, LLC v. Lexington Charles Ltd. Partnership, 438 Md.

451, 586 (2014) (quoting Liddy v. Lamone, 398 Md. 233, 244 (2007)). Accord Murray v.

Midland Funding, LLC, 233 Md. App. 254, 260 (2017) (In assessing a claim for laches, a

judge “considers plaintiff’s delay in asserting the claim and its causes and weighs that

against the prejudice to the defendant caused by the late assertion of the equitable claim.”).

Whether prejudice to the defendant has been established is dependent “upon the facts and

circumstances of each case, but it is generally held to be anything that places [an opposing

party] in a less favorable position.” Ademiluyi v. Egbuonu, 466 Md. 80, 124 (2019) (quoting

Parker v. Bd. of Election Sup’rs, 230 Md. 126, 130 (1962)).

In contrast to estoppel and waiver, the question of whether laches has been

established is a mixed question of fact and law. Liddy, 398 Md. at 245. Whether the

50 elements of laches have been established is a question of fact to be reviewed under a clearly

erroneous standard, but whether, “in view of the established facts, laches should be

invoked, is a question of law.” Id. at 246. “Accordingly, where the issue is whether a party

is precluded by laches from challenging an action of another party, we shall review the trial

court’s ultimate determination of the issue de novo.” Id. at 248–49.

Here, GBS argues that the Andersons are barred by the doctrine of laches from

asserting any right to require it to remove the installed collector lines. It can hardly be

disputed that the delay in filing suit until after the cables were almost completely installed

put GBS in a detrimental position. Mr. Philpott testified that it cost ten million dollars to

install the collection systems, and it would cost an additional two million dollars to remove

the cables at this point. Thus, the prejudice component of a laches defense has been

satisfied.

The more difficult question is the reasonableness of the Andersons’ delay in filing

suit. In that regard, we must ascertain the length of the delay, and then decide whether that

delay was unreasonable. Jones v. State, 445 Md. 324, 343–44 (2015). Accord State Center,

LLC, 438 Md. at 590 (To assess whether the delay is unreasonable, “we must analyze (i)

when, if ever, the claim became ripe (i.e., the earliest time at which [the Andersons] were

able to bring their claims); and (ii) whether the passage of time between then and when

[the Andersons] filed the complaint was unreasonable.”).

Here, as indicated, it is unclear from the circuit court’s opinion when the court

considered the clock to started running on laches. In order for a claim to ripen, however,

“a justiciable controversy must exist.” State Center, LLC, 438 Md. at 590. “Generally, an

51 action for declaratory relief lacks ripeness if it involves a request that the court ‘declare the

rights of parties upon a state of facts which has not yet arisen, [or] upon a matter which is

future, contingent and uncertain.’” Id. at 591 (quoting Boyds Civics Ass’n v. Montgomery

Cty. Counsel, 309 Md. 683, 690 (1987)). Based on Kevin Anderson’s testimony that he

was told in 2016 that the project was not going forward, we conclude that there was no

evidence that a claim was ripe at that point. Accordingly, we will confine our analysis to

the time beginning on March 29, 2017, when the Andersons received notice that the project

was going forward and installation of the cables in the roads was going to begin soon.

In assessing the reasonableness of the delay, therefore, we are looking at the delay

between March 29, 2017, and the filing of the complaint on July 5, 2017, a gap of

approximately three months. Although this is a short time period, “laches is not merely a

question of time, but principally the question of the inequity in permitting the claim to be

enforced.” Waller v. Golden, 706 S.E.2d 403, 406 (Ga. 2011) (quoting Hall v. Trubey, 498

S.E.2d 258, 261 (Ga. 1998)). Thus, even a relatively short period of time may be found to

constitute an unreasonable delay resulting in laches under the circumstances of the case.

In Parker v. Board of Election Supervisors, 230 Md. 126, 128 (1962), Parker filed

a complaint on September 25, 1962, alleging that “nominating petitions filed with the

Board of Supervisors of Elections were defective due to [among other things] the lack of a

sufficient number of legitimate signatures.” The Court of Appeals noted that Parker had

knowledge of the petitions when they were published on May 30, 1962, and his delay of

approximately four months before filing suit was unreasonable and unjustified given the

prejudice to appellees. Id. at 131–32. Similarly, in Liddy v. Lamone, 398 Md. at 236–38,

52 253, the Court held that a claim asserting that a political candidate was ineligible to hold

office was barred by laches because the lawsuit was filed four months after the candidate

filed his certificate of candidacy, one month after the candidate won the primary election,

and 18 days before the general election, and the unreasonable delay prejudiced the State

Board of Elections, which had insufficient time to change voting machines and reprint

ballots. Thus, the approximately three-month delay here, although not a lengthy delay,

could be deemed unreasonable, depending on the circumstances.

In assessing whether the delay here was unreasonable, we look to analogous

decisions in other jurisdictions, where suit was filed after construction was in progress. In

Waller, 706 S.E.2d at 404, the Goldens received approval from their Homeowner’s

Association to build a swimming pool in their yard. When construction began on the pool

on August 11, the neighbors complained. Id. at 405. The Association held a hearing on

August 21, and although the pool did not comply with the community’s restrictions, it

allowed construction to continue. Id. The Wallers sent a letter demanding that construction

stop on August 31, and they filed a lawsuit on September 3, when the pool was nearly

halfway complete, and the Goldens already had invested over $20,000 in the project. Id.

at 405, 407. The Supreme Court of Georgia held that the Wallers’ claims were barred by

laches because, even though the plaintiffs had previously lodged verbal objections, they

waited 24 days after receiving notice of the construction to file suit, and therefore, they

failed to act diligently to assert their interests. Id. at 407. Accord Osage Nation v. Bd. of

Comm’rs of Osage Cty., 394 P.3d 1224, 1237 (Okla. 2017) (“Laches requires reasonable

conduct on the part of a plaintiff in taking legal efforts to stop or prevent alleged wrongful

53 construction prior to an injury arising from economic damage occasioned by the project,

thus minimizing economic damage flowing from alleged wrongful construction.”); Carson

City v. Price, 934 P.2d 1042, 1043–44 (Nev. 1997) (Laches barred request to tear down

affordable housing units because plaintiffs waited eight months to file and costly

construction was already underway.); Bailey v. Chernoff, 45 A.D.3d 1113, 1115 (N.Y.

2007) (Laches barred request for injunctive relief to remove boathouse because

development homeowners were on notice of the intent to build the boathouse following an

open meeting in July 2004, and once construction began in May 2005, they “did not seek

a preliminary injunction and, instead, waited until after construction was completed” to file

suit in November 2005.).

This reasoning is helpful in determining whether the Andersons’ delay was

unreasonable given all the circumstances. We agree with these cases that, when a party

knows that construction is scheduled to occur, they must diligently protect their rights, and

waiting until the defendant incurs significant construction costs before filing suit may result

in the claim being barred by laches.

Here, the Andersons were on notice that the installation of the cables under the roads

was a possibility more than a year prior to the filing of their complaint. They were on

notice on March 29, 2017, that the collection systems were going to be installed under the

roadbeds, and they watched construction begin on the roads adjacent to their property,

starting in April 2017. Despite this, they waited to file suit until July 5, 2017, when the

multi-million-dollar project was 90–95% completed. Under these circumstances, the

54 circuit court was not clearly erroneous in concluding that the Andersons’ delay in filing

suit was unreasonable.

Given the Andersons’ unreasonable delay and the prejudice to GBS, the circuit court

did not err in concluding that the Andersons’ equitable claims were barred by laches.

Accordingly, it properly denied the Andersons’ request that the court order GBS to remove

the cables and restore the roads to their previous condition.29

IV.

Conclusion

In sum, we conclude that circuit court erred in finding that the Andersons did not

own in fee simple the land under the roads at issue in this appeal. Accordingly, we shall

remand to the circuit court to issue a declaratory judgment that the Andersons are the fee

simple owners of Dublin Road running from Old Princess Anne Road easterly through the

Ben Barnes Farm (Parcel 0004) and the Ira Barnes Farm (Parcels 0005, 0068, 0069) to its

intersection with Arden Station Road, except for the portion of the road lying directly in

front of Parcels 0076 and 0079, and the easterly half of Old Princess Anne Road extending

from the new Kings Creek bridge southerly approximately 2,400 feet to the southwest

corner of the Ben Barnes Farm (Parcel 0004).

With respect to the circuit court’s conclusion that the County had “sufficient

interest” in the roads to give GBS the “legal right to install the collection systems,” we

29 A request for a declaratory judgment generally is not subject to the defense of laches. See Murray v. Midland Funding, LLC, 233 Md. App. 254, 261 (2017). Accordingly, our holding that the Andersons own the roadbeds in fee simple is not altered by this laches analysis. 55 remand to the circuit court, without reversal or affirmance, to make further findings on this

issue, consistent with this opinion. If the court finds that GBS did not have the right to

install the collection systems pursuant to the Easement granted by the County, it shall

determine what remedy, if any, is available to the Andersons. With respect to the equitable

relief of an injunction to require GBS to remove the cables, however, we affirm the circuit

court’s finding that this claim is barred by laches.

JUDGMENT OF THE CIRCUIT COURT FOR SOMERSET COUNTY AFFIRMED, IN PART, REVERSED, IN PART, AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID 50% BY APPELLANTS AND 50% BY APPELLEES.