Henderson, J.,
delivered the opinion of the Court.
The appellants filed a bill of complaint in the Circuit Court for Baltimore County, to enjoin the obstruction by the appellees of a driveway on the adjoining land of the appellees, the use of which the appellants claimed by prescription. The respondents filed an answer denying the claim and alleging that the use made of the driveway was permissive and not adverse. The case came on for hearing and at the conclusion of the complainants’ case the respondents offered a prayer for a directed verdict, which the court granted. From a decree dismissing the bill the case comes here.
The evidence produced by the complainants is virtually undisputed. The appellant, Theodore Phillips, is the son of the appellee, Mrs. Margaret Phillips, and the brother of the appellee, Vernon Phillips. Prior to 1935, Mrs. Phillips and her husband, since deceased, owned a tract of land on Dreher Avenue improved by a dwelling where they resided. Theodore was married in 1931, and on July 31, 1935, Mrs. Phillips and her husband conveyed a lot No. 20, which was carved out of the tract, to Theodore and his wife. In the survey prepared, lot 20 had a frontage on Dreher Avenue of 72 feet and a depth of 200 feet, leaving a frontage of 144 feet for lot 18, where the homestead was located. Subsequently, in 1941, lot 18 was conveyed to Mrs. Phillips and her son Vernon as joint tenants. There was an existing driveway from Dreher Avenue prior to 1935, on what became lot 18, near but not on the dividing line. Theodore constructed a house and separate two-car garage on lot 20, and moved in about November [32]*3224, 1935. He has used the driveway ever since as a means of access to his garage, and for about fifteen years used it to transport building materials used in his business, and to store them, contrary to the wishes of his mother and brother, on the vacant land behind his lot. Until July, 1955, when he erected a new garage, he used the driveway daily. Since that date he has used it for hauling dog food to the garage, for the passage of a small tractor stored in the garage, and for the servicing of a bottled gas tank. The Chancellor found that the use was open and notorious, continuous and uninterrupted, for more than twenty years. He found, however, that the use had not been adverse or under a claim of right.
On this point Theodore testified that at or about the time of the conveyance of lot 20 in 1935, and before construction of the house and garage had begun, he discussed the location of the garage with his mother and father. She suggested that he face it towards the existing driveway, to save the expense of a new driveway. He said, “Well, maybe sometime you might sell the property and that driveway would be closed to me.” She said, “Aw fiddlesticks, you know better than that. I’ll never leave here until they carry me off the place. You can use that driveway and you can always use it and nobody will ever stop you from using it, so you go ahead and build your garage there.” He testified, “that’s what I did, taking the driveway.” He also fenced in a triangular strip between the driveway and the boundary line, but no claim is asserted to this strip. He paved the driveway and has maintained it at his own expense ever since 1935. On December 19, 1955, lie received a letter from his mother directing him to vacate the driveway and remove the fence before January 15, 1956. She said: “As you know your side fence is on the property which some day will be Vernon’s at my death, and you are using the driveway belonging to this place. * * * I am going to fence this part of the place in so there will be no misunderstanding when I am gone.” Neither she nor Vernon had ever before objected to his use of the driveway.
The general rule set out in the Restatement, Property, § 458, is that a use, claimed as an easement by prescription, [33]*33must be adverse and not “made in subordination to” the owner of the fee. In Condry v. Laurie, 184 Md. 317, 319, where the deed contained a “license to use the private road * * * while they [the grantors] shall remain owners of the property”, it was held that the presumption arising from twenty years’ use was rebutted. It is generally held that a permissive use can never ripen into an easement by prescription, at least during the period within which permission is granted, but this rule does not apply where there has been an attempt to grant an easement which is void because of the Statute of Frauds. See 17A Am. Jur., Easements, § 86, p. 702, and Note 13 L. R. A. (N. S.) 991. In such cases the question whether an oral grant is intended to convey an irrevocable right or a mere license is one of fact. Cf. Clark v. Henckel, 26 A. 1039 (Md.). See also Note 27 A. L. R. 2d 332, 355. In Tiffany, Real Property (3d ed.), Sec. 1196, p. 562, it is said: “When the owner undertakes to confer upon another a perpetual right of user in the land, but fails to do so in a valid manner, as when he makes an oral grant of an easement, the user of the land by such other in accordance with the terms of the invalid grant cannot be regarded as permissive and in subordination to the rights of the landowner, but is in effect adverse to such rights.” This statement was cited with approval in Lichtenberg v. Sachs, 200 Md. 145, 154, where it was said: “If they [the claimants] got any permission to use the Robinson property, they probably thought it was irrevocable. An oral permission, believed to be irrevocable but unenforceable by reason of the Statute of Frauds, may evidence a claim of right and indicate that user was adverse and not permissive.”
Under the facts of the instant case, we think the Chancellor was clearly wrong in finding that the use was not adverse and under a claim of right. The mother’s statement seems clearly to have imported that his use would never be interfered with by her or anyone else, even if the property were sold. The fact that he built the garage so that it faced the driveway, and paved and maintained the driveway thereafter, seems inconsistent with a belief on his part that the permission could be withdrawn at any time. The Chancellor [34]*34attempted to distinguish Lichtenberg v. Sachs, supra, on the ground that there was no family relationship between the parties. But that is only one of the facts to be considered, and is not controlling. Dalton v. Real Estate & Imp’v’t Co., 201 Md. 34, 45. In the instant case the fact of relationship, in connection with the clear intention to confer some privilege, would support an inference that a permanent grant was intended, rather than a mere license. If the mother had believed the grant to be revocable, it seems strange that she should not have raised the point when she caused lot 18 to be conveyed to herself and her son, Vernon, in 1941. There is no evidence that she or her son, Vernon, ever made any objection to the use until after the lapse of twenty years. Finding that there was an intention to grant an easement, it is unnecessary to consider the argument of the appellants that a grant could be implied, under the circumstances, from the conveyance of lot 20. Cf. Dalton v. Real Estate & Imp’v’t Co., supra.
Since the case must be reversed, the question arises as to whether we should direct the entry of a final decree. The Chancellor stated that he was deciding the case only on the basis of the evidence presented by the complainants, in view of the prayer for a directed verdict at the conclusion of the complainants’ case.
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Henderson, J.,
delivered the opinion of the Court.
The appellants filed a bill of complaint in the Circuit Court for Baltimore County, to enjoin the obstruction by the appellees of a driveway on the adjoining land of the appellees, the use of which the appellants claimed by prescription. The respondents filed an answer denying the claim and alleging that the use made of the driveway was permissive and not adverse. The case came on for hearing and at the conclusion of the complainants’ case the respondents offered a prayer for a directed verdict, which the court granted. From a decree dismissing the bill the case comes here.
The evidence produced by the complainants is virtually undisputed. The appellant, Theodore Phillips, is the son of the appellee, Mrs. Margaret Phillips, and the brother of the appellee, Vernon Phillips. Prior to 1935, Mrs. Phillips and her husband, since deceased, owned a tract of land on Dreher Avenue improved by a dwelling where they resided. Theodore was married in 1931, and on July 31, 1935, Mrs. Phillips and her husband conveyed a lot No. 20, which was carved out of the tract, to Theodore and his wife. In the survey prepared, lot 20 had a frontage on Dreher Avenue of 72 feet and a depth of 200 feet, leaving a frontage of 144 feet for lot 18, where the homestead was located. Subsequently, in 1941, lot 18 was conveyed to Mrs. Phillips and her son Vernon as joint tenants. There was an existing driveway from Dreher Avenue prior to 1935, on what became lot 18, near but not on the dividing line. Theodore constructed a house and separate two-car garage on lot 20, and moved in about November [32]*3224, 1935. He has used the driveway ever since as a means of access to his garage, and for about fifteen years used it to transport building materials used in his business, and to store them, contrary to the wishes of his mother and brother, on the vacant land behind his lot. Until July, 1955, when he erected a new garage, he used the driveway daily. Since that date he has used it for hauling dog food to the garage, for the passage of a small tractor stored in the garage, and for the servicing of a bottled gas tank. The Chancellor found that the use was open and notorious, continuous and uninterrupted, for more than twenty years. He found, however, that the use had not been adverse or under a claim of right.
On this point Theodore testified that at or about the time of the conveyance of lot 20 in 1935, and before construction of the house and garage had begun, he discussed the location of the garage with his mother and father. She suggested that he face it towards the existing driveway, to save the expense of a new driveway. He said, “Well, maybe sometime you might sell the property and that driveway would be closed to me.” She said, “Aw fiddlesticks, you know better than that. I’ll never leave here until they carry me off the place. You can use that driveway and you can always use it and nobody will ever stop you from using it, so you go ahead and build your garage there.” He testified, “that’s what I did, taking the driveway.” He also fenced in a triangular strip between the driveway and the boundary line, but no claim is asserted to this strip. He paved the driveway and has maintained it at his own expense ever since 1935. On December 19, 1955, lie received a letter from his mother directing him to vacate the driveway and remove the fence before January 15, 1956. She said: “As you know your side fence is on the property which some day will be Vernon’s at my death, and you are using the driveway belonging to this place. * * * I am going to fence this part of the place in so there will be no misunderstanding when I am gone.” Neither she nor Vernon had ever before objected to his use of the driveway.
The general rule set out in the Restatement, Property, § 458, is that a use, claimed as an easement by prescription, [33]*33must be adverse and not “made in subordination to” the owner of the fee. In Condry v. Laurie, 184 Md. 317, 319, where the deed contained a “license to use the private road * * * while they [the grantors] shall remain owners of the property”, it was held that the presumption arising from twenty years’ use was rebutted. It is generally held that a permissive use can never ripen into an easement by prescription, at least during the period within which permission is granted, but this rule does not apply where there has been an attempt to grant an easement which is void because of the Statute of Frauds. See 17A Am. Jur., Easements, § 86, p. 702, and Note 13 L. R. A. (N. S.) 991. In such cases the question whether an oral grant is intended to convey an irrevocable right or a mere license is one of fact. Cf. Clark v. Henckel, 26 A. 1039 (Md.). See also Note 27 A. L. R. 2d 332, 355. In Tiffany, Real Property (3d ed.), Sec. 1196, p. 562, it is said: “When the owner undertakes to confer upon another a perpetual right of user in the land, but fails to do so in a valid manner, as when he makes an oral grant of an easement, the user of the land by such other in accordance with the terms of the invalid grant cannot be regarded as permissive and in subordination to the rights of the landowner, but is in effect adverse to such rights.” This statement was cited with approval in Lichtenberg v. Sachs, 200 Md. 145, 154, where it was said: “If they [the claimants] got any permission to use the Robinson property, they probably thought it was irrevocable. An oral permission, believed to be irrevocable but unenforceable by reason of the Statute of Frauds, may evidence a claim of right and indicate that user was adverse and not permissive.”
Under the facts of the instant case, we think the Chancellor was clearly wrong in finding that the use was not adverse and under a claim of right. The mother’s statement seems clearly to have imported that his use would never be interfered with by her or anyone else, even if the property were sold. The fact that he built the garage so that it faced the driveway, and paved and maintained the driveway thereafter, seems inconsistent with a belief on his part that the permission could be withdrawn at any time. The Chancellor [34]*34attempted to distinguish Lichtenberg v. Sachs, supra, on the ground that there was no family relationship between the parties. But that is only one of the facts to be considered, and is not controlling. Dalton v. Real Estate & Imp’v’t Co., 201 Md. 34, 45. In the instant case the fact of relationship, in connection with the clear intention to confer some privilege, would support an inference that a permanent grant was intended, rather than a mere license. If the mother had believed the grant to be revocable, it seems strange that she should not have raised the point when she caused lot 18 to be conveyed to herself and her son, Vernon, in 1941. There is no evidence that she or her son, Vernon, ever made any objection to the use until after the lapse of twenty years. Finding that there was an intention to grant an easement, it is unnecessary to consider the argument of the appellants that a grant could be implied, under the circumstances, from the conveyance of lot 20. Cf. Dalton v. Real Estate & Imp’v’t Co., supra.
Since the case must be reversed, the question arises as to whether we should direct the entry of a final decree. The Chancellor stated that he was deciding the case only on the basis of the evidence presented by the complainants, in view of the prayer for a directed verdict at the conclusion of the complainants’ case. The filing of such a prayer is not proper in an equity proceeding, and even if it be treated as a motion to dismiss, it is generally held that the filing of such a motion is not the proper practice in equity, in the absence of statute or rule of court to the contrary. See Kiss v. Gale, 47 S. E. 2d 353 (Va.); Kelley v. Mallory, 277 P. 2d 767 (Ore.); Humphreys v. Humphreys, 281 S. W. 2d 270 (Tenn. App.); Sundlun v. Volpe, 2 A. 2d 875 (R. I.); Pearce v. Tharpe, 79 So. 69 (Miss.); Garner v. Garner, 52 S. E. 194 (S. C.); 30 C. J. S. § 579, p. 972; 19 Am. Jur., p. 217; Ann. Cases 1913A, 283. The rule was recognized in Koebel v. Doyle, 100 N. E. 154 (Ill.), but subsequently changed by statute. See Johnson v. Johnson, 39 N. E. 2d 389, 393 (Ill. App.). It was recognized in Kelley v. Northern Ohio Co., 196 S. W. 2d 235 (Ark.), but subsequently changed by statute. See [35]*35Werbe v. Holt, 229 S. W. 2d 225 (Ark.). It was changed by rule of court in New Jersey. Ucci v. Ucci, 69 A. 2d 891 (N. J. Super.). The practice in the federal courts was also changed by rule of court. See Bach v. Friden Calculating Mach. Co., 148 F. 2d 407 (C. C. A. 6th). Under the recognized equity practice, a respondent may, of course, decline to submit evidence and submit the case for final determination, but he cannot move to dismiss and then go on with his evidence if the court rules against him. The Chancellor passes upon the whole case as submitted. The inquiry is simply whether the facts justify the relief prayed in the bill, applying the proper principles of law to the facts so established. It is unnecessary that any motions be filed, since objections thereto on the facts and the law are implicit in the submission for final decree.
We have found no Maryland case that has expressly passed on the point.
It was said in Loeber v. Schroeder, 76 Md. 347, 351, that where the respondent did not avail himself “of the opportunity to produce countervailing proof, which he now says he could have produced, to disprove the case made by the appellee”, but stood upon his contention that the appellee had no interest in the subject matter, the appellate court might properly “dispose of the case upon the testimony before us.” But in General Ins. Co. v. U. S. Ins. Co., 10 Md. 517, 528, it was noted that under Chapter 312, Acts of 1832 (Code (1951), Art. 5, Sec. 42; cf. Rule 871 a of the New Maryland Rules), this Court may remand for further proceedings “and, in such cases, we sometimes do more than the court below could have done of its own motion, because when a cause is; submitted for final decree, generally, it must be decided on the case as then presented.” In Tribull v. Tribull, 208 Md. 490, the Chancellor granted what was in effect a motion to dismiss, at the conclusion of the complainant’s testimony, holding that the complainant had no standing to sue under the allegations of the bill. We found otherwise on the point of law, and because of the paucity of the record on the point of an alleged confidential relationship, we remanded for fur[36]*36ther proceedings without affirming or reversing, with leave to make amendments to the pleadings. The propriety of the motion to dismiss was not considered. In Wardrop v. Wardrop, 211 Md. 14, 17, we said that it lies within the discretion of the Chancellor whether a motion to dismiss a bill at the conclusion of the complainant’s case should be granted, but the propriety of the motion was not discussed.
We think it is significant that under the new Maryland Rules applicable to non-jury cases, it is expressly provided that a defendant may move to dismiss at the conclusion of "the plaintiff’s case without waiving his right to offer evidence in the event the motion is not granted’ (Rules 565 and 741), but there is no similar provision in the rules applicable to trials in equity. Rule 1 d expressly provides that “these .Rules shall not be interpreted to affect the existing distinction between law and equity.” While in other respects the equity practice has been adopted in non-jury cases at law (see the Reporter’s Notes in Code (1947 Supp.), p. 2086, et seq.), it would appear that the rules cited preserve a feature of the law practice in non-jury cases. In any event, we find nothing in the rules to support a contention that the Equity practice has been altered in trials in equity. Doubtless, there-.are arguments that might be advanced in support of each rule. It may be argued that the non-jury practice has the virtue •of enabling a defendant to dispense with his proof, where a prima facie case is not made out, with a consequent saving of his time and that of the trial judge. On the other hand, as pointed out in some of the cases cited, the equity practice has the virtue of avoiding a piecemeal determination of the cause, .assuring a final determination on the merits, and obviating the necessity of a second appeal in some cases. But regardless of the virtues of the several rules, we think it is clear under the authorities that the equity practice is as we have stated it, and that the practice remains unaltered by the existing rules.
Because of the fact that the appellees were not required to submit the case for final determination, we are constrained to exercise our discretion to remand the case for the taking [37]*37of further testimony, under Rule 871 a, supra. Cf. Tribull v. Tribull, supra, and Sundlun v. Volpe, supra.
Case remanded without affirming or reversing the decree, for further proceedings not inconsistent with this opinion; with costs of this appeal to the appellants.