Freed v. Cloverlea Citizens Ass'n

228 A.2d 421, 246 Md. 288, 1967 Md. LEXIS 452
CourtCourt of Appeals of Maryland
DecidedApril 10, 1967
Docket[No. 196, September Term, 1966.]
StatusPublished
Cited by18 cases

This text of 228 A.2d 421 (Freed v. Cloverlea Citizens Ass'n) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Freed v. Cloverlea Citizens Ass'n, 228 A.2d 421, 246 Md. 288, 1967 Md. LEXIS 452 (Md. 1967).

Opinion

McWilliams, J.,

delivered the opinion of the Court.

To prevail in this Court appellants (the Freeds) must establish their right to tack their adverse possession of 0.6 of an acre on the Rhode River (the triangular hatched area on Plat B) to the adverse possession of their predecessors in title. They lost in the court below because the trial judge thought they had shown “no color of title whatsoever.” In our recital of the facts we shall refer again to Plat B. Plat A, about which we shall also have more to say, is a part of the “Plat of Cloverlea.” Both are reproduced herein.

On 18 June 1926 Thomas Collison conveyed a 40 acre tract in Anne Arundel County to Walter Lyon. The deferred consideration for the transfer was secured by a purchase money mortgage. On 13 July 1929 Lyon recorded the “Plat of Clover-lea” which was dated 28 June 1926. It showed the subdivision of about 34 of the 40 acres into 183 lots, 47 of which fronted on the Rhode River. In 1933, as a result of the foreclosure of the purchase money mortgage, title to the 40 acre tract, including “Cloverlea,” reverted to the heirs of Thomas Collison.

Early in 1935 Donald Pitts, then about 26, his wife and his *291 parents visited Cloverlea. They were accosted by Emanuel Collison, one of the five children of Thomas, and asked to state their business. When they expressed an interest in buying a place for a summer home Collison, representing himself and the other owners, brought out a plat (probably the “Plat of Cloverlea”) and showed them around. They liked what appeared to be lots 19 and 20. Since the only access to lot 18,, according to Collison, was across a drainage ditch he urged the Pitts to buy it also. They agreed. The transaction was concluded by the execution of a contract of sale for lots 18, 19 and 20. In July 1938 the Pitts, pere et fils, obtained and recorded a deed for lots 18, 19 and 20.

Donald Pitts testified that, on the day they looked at the property, Collison picked up a stake and drove it into the ground on the north side of the drainage ditch near where it emptied into Rhode River, saying, “Your property line will run to here.” 1 The southern boundary of lot 18 as thus pointed out by Collison ran along the north side of the drainage ditch, to the water’s edge. The “bulkhead or retaining wall” shown on Plat B coincides with the north side of the ditch.

There are some deficiencies in the plat of Cloverlea (Plat A) which should be pointed out. There are no stakes, no pipes, no bench marks, no monuments, no Coast and Geodetic Survey markers, no works of man (except Cliff Drive, then a dirt road), no natural phenomena (other than Rhode River), no established lines or boundaries of adjoining properties shown thereon. There is not a line on the plat for which a compass course is shown. The depth of all lots and the frontage of some are shown by numbers followed by the more or less ( ± ) symbol. Other than the lot numbers and the street names the only other useful information appearing thereon consists of the arrow pointing North and the scale (1" = 100'). In short, like so many of the subdivision plats of the time, it was nothing more than a graphic representation of someone’s notion of how the property might be developed. There can be little doubt that lots 18, 19 and 20 did not exist on the ground. They existed only on the *292 plat. In fact, there was no information on the plat which would have enabled a surveyor or anyone else to locate accurately on the ground the boundary lines of any of the lots there shown.

Plat B was made by Warren Suitt who was employed by a •surveying firm. He testified that his employer was hired “to •establish the outlines of Cherry Stone Park” for the appellee (the association). He said “the plat of Cloverlea is not too •easy to work with, because of the lack of information(Emphasis supplied.) He thought, however, they had done “enough work in there that * * * [they] were positive that * * * [they] •did have the boundaries of Cherry Stone Park established.” It will be observed that the northern boundary of the park, according to Plat A, is also the southern boundary of lot 18. Since Mr. Suitt did not explain how he arrived at that conclusion we can only suppose that he intended nothing more than the delineation on paper of the contention of his employer’s •client. We shall have more to say about that.

Pitts said that because of a spring on the east side of Cliff Drive the “ditch was formed by nature.” He told how he put the first culvert under the road and how he “spent many hours in there keeping that ditch open.” The low area north of the ■ditch was filled, little by little, at first with dirt from the digging •of the basement and afterwards with dirt thrown up from the bottom of the ditch in the course of “keeping it open.” He had a vegetable garden in the hatched area within 4 or 5 feet •of the ditch where he grew tomatoes, beans, squash and cantaloupes. Flowers were planted. He remembers a row of peonies. There was a grape arbor and a willow tree. He kept the area mowed except during World War II when he was on duty with the Armed Forces. His pier having been destroyed by ice during the war he built one himself about in the center of the hatched area. On cross-examination he told how he had lost 8 to 10 feet of his property from erosion because he did not have a seawall. He said the stake driven by Emanuel Collison in 1935 disappeared as a result of the erosion. He never built a fence because “the ditch was a natural fence” and it ■“was a fairly straight ditch.”

*293 William J. Collison is a grandson of Thomas Collison. His mother owns lots 16 and 17. Lot 17 adjoins the south side of Cherry Stone Park. She also owns an undivided 1/5 interest in the park. He has lived in Cloverlea or within a few miles of it nearly all of his life. From 1937 to 1941 he was in charge of a crew that “used to take care of all those places along there, cutting grass, trimming.” He was familiar with the ditch and “helped clean it out lots and lots of times” and he and his crew would mow the grass on the Pitts property “down as close to the ditch as * * * [they] could get which was within a couple of feet of it.” He noticed there was a garden there (in the hatched area) “every year or so” except when Mr. Pitts was away.

Mrs. Edna Gessford had lived three doors from the property and she said she was familiar with the ditch and the hatched area. She remembers when Pitts sold to the Regans in February 1952. She said the Regans were looking for rocks to “build up a rock garden” and that “there was grass right straight to-the edge of the ditch” except where flowers and shrubs were planted. She recalled also when the Johnsons, “a young couple,”' bought the lots from the Regans in June 1953. They “put in a vegetable garden down along the ditch, close to the edge of the ditch, plus a rock garden,” she said.

William A. Irvine rented the property from the Johnsons, from June 1954 to June 1956. Pie testified that “as far as * * * [he] knew, the ditch was the property line and * * * [he] maintained and cut the lawn all the way down to this ditch, area all the way out to the water.”

Harry Hasslinger testified his wife’s parents bought lots 21,.

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Bluebook (online)
228 A.2d 421, 246 Md. 288, 1967 Md. LEXIS 452, Counsel Stack Legal Research, https://law.counselstack.com/opinion/freed-v-cloverlea-citizens-assn-md-1967.