On July 17, 2008, appellant, Arthur E. Selnick Associates, Inc. (“Selnick”), filed a Complaint seeking declaratory, injunctive, and monetary relief against Howard County, Maryland in the Circuit Court for Howard County. After a lengthy procedural history, including removal to and remand from federal court and the joinder of numerous defendants, the circuit court ruled that the passage of time had converted a temporary easement into a perpetual easement pursuant to the thirty-year limit on possibilities of reverter under Md.Code (2010), § 6-101 of the Real Property Article (“R.P.”).
Accordingly, the circuit court granted the defendants’ motions to dismiss and motions for summary judgment, holding that the temporary easement had not terminated and reverted to Selniek. Instead, the easement had become a permanent easement as of September 6, 2004, thirty years from the grant of the temporary easement. The circuit court also held that Howard County had not constructively condemned the property over which the easement ran because the easement had not reverted to Selniek. Selniek timely appealed, presenting the following questions:
1. Did the Circuit Court err in ruling that Md. Real Prop.Code Ann. § 6-101 entitled, “Possibility of Reverter,” applied to convert the Temporary Easement into a Perpetual Easement?
2. Did the Circuit Court err in excluding consideration of parol evidence from the construction of the deed granting the Temporary Easement and Option Agreement between Selniek and the SHA?
3. Did the Circuit Court err in determining that no unconstitutional taking of Selnick’s property occurred by the actions of Howard County?
For the reasons that follow, we answer the first question in the affirmative and second and third questions in the negative. Thus, we reverse the judgment • of the circuit court and remand for an entry of a declaratory judgment that R.P. § 6-101 does not apply to easements.
FACTUAL BACKGROUND
As this case was decided on summary judgment, we discern the following based on the pleadings. Kaiser Aetna developed the Route 100 Business Park (“Business Park”) in the early 1970s in Elkridge, Maryland. On November 12, 1972, Kaiser Aetna recorded a subdivision plat that laid out the design of the Business Park and included a note that stated:
The area bounded by (1), (4), (15), [and] (19) is a revertible easement and a temporary entrance only. The ultimate permanent entrance will be at another location to be designated by the State Highway Administration. After the permanent entrance is built[,] the easement for access through the temporary easement will terminate and be void.
On September 6, 1974, Kaiser Aetna deeded land for the planned roadways in the Business Park to Howard County in fee simple. Kaiser Aetna, however, only deeded a temporary easement to Howard County over the portion of land that was to become part of Amberton Drive and serve as an entrance to the Business Park. The entrance was to be built as part of Howard County’s Route 100 Road Extension Project. An exhibit to the deed contained a legal description of the land over
In addition to the foregoing, [Kaiser Aetna] does hereby grant to [Howard County] a revertible easement for a public road for use as a temporary entrance only, in, over and through the following described parcel, it being understood and agreed that upon completion of all improvement, grading and paving by the State Highway Administration of a permanent entrance to said Route One Hundred Business Park at the location described in Exhibit I hereto, and the availability thereof for use by the owners, occupants and tenants of the Route One Hundred Business Park and their respective employees, customers and invitees, the said revertible easement hereby granted will automatically terminate and be and become null and void and all rights therein shall automatically then revert to [Kaiser Aetna], its successors and assigns:
Temporary entranceway, 100 feet wide and approximately 453 feet long, leading from U.S. Route 1 to Amberton Drive, as shown on a Plat of Subdivision of Route One Hundred Business Park recorded among the Land Records of Howard County, Maryland on November 24,1972 in Plat Book 24, folio 14, and more particularly described in Exhibit J hereto.
On September 30, 1975, Kaiser Aetna entered into an Option Agreement with the SHA, whereby SHA:
propose[d] to lay out, open, establish, construct, extend, widen, straighten, grade and improve as a part of the State Roads System of Maryland, a highway and/or bridge, together with the appurtenances thereto belonging, shown on the plans designated as Contract No. HO 362-3-771 for the improvement to Md. Rte. 100 in Howard County.
The agreement went on to state that:
it is hereby understood and agreed that the [SHA] will do the following: Amberton Drive now being used by the [Business Park] as its main access street into U.S. Route 1 is a temporary facility and will be replaced at the time of the improvement to this project with a new constructed tie-in at Hunting Mills Drive projected to U.S. Route 1 at the expense of the [SHA] and will replace in kind. (A dual within a 100’ R/W).
A plat recorded on December 7, 1983 in the Land Records for Howard County that includes the parcel now at issue includes the following language:
* Note:
In accordance with understanding set forth in a letter from Kaiser Aetna to Mr. D.H. Fisher, State Highway Administration, dated June 28, 1972[,] the area bounded by the points 1 to 7, to 23, to 19, to 1, is a revertible easement and a temporary entrance only. The ultimate permanent entrance will be at another location to be designated by the State Highway Administration. After the permanent entrance is built the easement for access through the temporary entrance will terminate and be void.
Howard County constructed a four lane road, known as Amberton Drive, with a median and traffic signal over the temporary easement, and the public has used the road to access the Business Park since the county completed construction.
On December 28, 1983, Selnick purchased, in fee simple absolute, a lot in the Business Park. The purchase included the land comprising the temporary easement, and the deed stated that the land was “[s]ubject to part of a Revertible Easement and a Temporary Entrance, as shown on [the] plat.” The plat reiterated
On or about November 14, 1989, based on prior conversations, the local right of way agent for SHA, William Ravenscroft, informed Selnick that SHA was in the process of securing the right of way for a new entrance road into the Business Park. Mr. Ravenscroft informed Selnick that a new entrance would be constructed when a ramp leading from eastbound Route 100 onto U.S. Route 1 northbound was completed. The new entrance would make the temporary easement unnecessary, and SHA would provide an aesthetically pleasing permanent barrier to close the road over the temporary easement. On November 27, 1989, based on the discussions, Selnick granted SHA an option to purchase a portion of its property in conjunction with “improvements to Maryland Route 100 from 1-95 to east of Maryland Route 713.” The Option Agreement was later replaced by an almost identical agreement dated June 12, 1990; sections M and Ml of both agreements stated:
(M) It is hereby understood and agreed that [SHA] will do the following:
(Ml) At the time Amberton Drive is closed SHA will provide a well defined break in the roadway to prevent all traffic from entry from the ramp.
The Route 100 Extension Project ended in 1998, but due to expenditure of funds, SHA did not construct a new entrance into the Business Park. SHA deferred construction “until traffic warrants closure/relocation of U.S. 1 Amberton Drive intersection.” Selnick was advised of the deferral.
Since Selnick acquired its property in the Business Park in 1983, traffic over the temporary easement increased significantly. A 350 unit condominium and townhouse project used the temporary easement as the sole entrance and exit. Selnick noticed the increased traffic across the temporary easement and claimed to have lost a valuable tenant in its building as a result of a lack of parking. Selnick then inquired as to Howard County’s plans to construct a new entrance to the Business Park and close the road over the temporary easement.
In January 2008, Howard County advised Selnick that it was going to fund the design, acquisition, and construction of a new entrance to the Business Park, which would create a second point of access, triggering the termination of the temporary easement. Howard County, however, advised Selnick that it planned to continue to maintain the road over the temporary easement. In response, Selnick sought compensation from Howard County for condemning his property rights to the land covered by the temporary easement, which Howard County denied.
Selnick filed a Complaint in the Circuit Court for Howard County, seeking a declaration that Howard County constructively condemned the temporary easement or, in the alternative, that Howard County was no longer entitled to the temporary easement. Howard County filed a motion to dismiss, arguing, inter alia, that Selnick had failed to join as necessary defendants other property owners in the Business Park because their right to use the temporary easement as means of access could be affected by the outcome of the case. The circuit court granted the motion with leave to amend the complaint.
In response to the circuit court’s ruling, Selnick filed an Amended Complaint, joining all ninety-one property owners who used Amberton Drive for access to their properties as necessary defendants. One such defendant was the United States Postal Service (“USPS”), who removed the case to the United States District Court
With the case back in the circuit court, Selnick filed a Second Amended Complaint, which reiterated the allegations against Howard County and added counts against SHA for breach of contract and specific performance based on the 1990 Option Agreement. SHA filed a motion for summary judgment, and Howard County filed a motion to dismiss or for summary judgment, which several property owners incorporated in their respective motions to dismiss. Selnick filed a motion for partial summary judgment, in which it argued that Howard County had committed a de facto or constructive condemnation of the temporary easement when it planned to maintain the original access in addition to the planned second access to the Business Park.
After considering all the pending motions and argument, the circuit court concluded that the easement still existed because the triggering event—the construction of a new access road to the Business Park by SHA—had not occurred. The court also ruled that the passage of time had converted the temporary easement into a perpetual easement pursuant to the thirty-year limit on possibilities of reverter under R.P. § 6-101. The circuit court stated that it would not consider parol evidence to construe the grant of the temporary easement or the terms of the Option Agreement with SHA because the triggering events were clear and had not taken place. Finally, the court held that there was no taking and that there could be no claim for inverse condemnation because the reversionary interest had not yet reverted.
STANDARD OF REVIEW
Although the defendants filed both motions to dismiss and motions for summary judgment, the circuit court decided that the issues could be “resolved by way of a motion for summary judgment.” When the underlying facts are uncontested, as was the case here, the role of an appellate court is substantially similar whether reviewing the grant of summary judgment or the grant of a motion to dismiss. See Napata v. Univ. of Md. Med. Sys. Corp.,
DISCUSSION
I. TEMPORARY EASEMENT
A. Terms of the Grant
First, we discern that the deed granting the easement was not ambiguous. In Gunby v. Olde Severna Park Improvement Ass’n,
When interpreting a deed, courts often look to surrounding documentation toaid in understanding a grantor’s intent if a provision is ambiguous, even in cases of summary judgment. See Kobrine, L.L.C., et al. v. Metzger, 380 Md. 620 ,846 A.2d 403 (2004) (reviewing award of summary judgment and analyzing various plats, deeds and documents, both with indirect chain of title and similar deeds by original subdivision developer in order to determine intent of grantor, in case where lot owner and home owners association claimed that plat legend indicated lot had been retained for beneficial use of all homeowners); cf. Calomiris v. Woods, 353 Md. 425,727 A.2d 358 (1999) (holding that lower court erred in awarding summary judgment based on extrinsic evidence to interpret release provision in mortgage contract where the provision was unambiguous). In Calomiris, the Court of Appeals, in reviewing an award of summary judgment, noted that an appellate court reviews de novo a trial court’s finding of ambiguity, but if it agrees with that finding [of ambiguity] it next “will apply a clearly erroneous standard to the trial court’s assessment of the construction of the contract in light of the parol evidence received.” Id. at 435 [727 A.2d 358 ].
Selnick argues that the lack of an end date conflicts with the characterization as “temporary,” and thus requires the admission of parol evidence to incorporate a “reasonable time” requirement in the deed. Specifically, Selnick posits that without parol evidence, it is impossible to determine when or whether Howard County or SHA would ever construct a new permanent entrance to the Business Park. Selnick contends that if the circuit court’s decision was correct, it “would never have been able to show its entitlement to the return of its property and the Temporary Easement, and certainly not within the 30 year life span for Possibilities of Reverter” in R.P. § 6-101. Selnick contends that the circuit court erred because its construction of the 1974 deed is directly at odds with the description of the easement as “temporary.”
Prehminarily, we note that the rules that govern contracts between individuals and private corporations also govern the construction of contracts between individuals and governmental entities. Anne Arundel Cnty. v. Crofton Corp.,
The deed granted an easement to Howard County until such time as there was a new access road to the Business Park. While the parties to the deed certainly could have included a duration limitation, they did not. R.P. § 4-105 states that “[ujnless a contrary intention appears by express terms or is necessarily implied, ... every grant or reservation of an easement passes or reserves an easement in perpetuity.” Here, the grant of the easement
Selnick directs our attention to Anne Arundel County v. Crofton Corp.,
Selnick also relies on Kiley v. First National Bank,
Finally, Selnick points to Gregg Neck Yacht Club, Inc. v. County Commissioners of Kent County,
Selnick urges us to examine these cases and conclude that the 1974 deed, which conveyed “a revertible easement for a public road for use as a temporary easement only,” is ambiguous. Selnick posits:
One may read the 1974 Deed as intending to be temporary in nature in the sense of not being perpetual. Or, one may read it as being temporary in the sense of the ordinary dictionary use of the term.[2 ] And, one may read the term in conjunction with the facts and circumstances surrounding its use and decide that the term as used in the 1974 Deed was intended to mean that the easement would last as long as the construction project within which the new entrance road was intended in 1974 to be constructed. The only possible use of the word “temporary” that must be excluded is the one accepted by the trial court—namely, that “temporary” may mean permanent or indefinite.
“The determination of ambiguity is a question of law, subject to de novo review.” Gregg Neck Yacht Club,
In Shallow Run Limited Partnership v. SHA,
Here, in the context of the deed, we discern that “temporary” was not ambiguous, as it meant that the easement would last until a new access road was built. We believe this definition is consistent with Selnick’s chosen “ordinary dictionary” definition of “temporary” as “lasting or meant to last only for a limited period of time.” As such, we agree with the circuit court that extrinsic, or parol, evidence was not needed to clarify any ambiguity, so admission would have been improper.
B. R.P. § 6-101 and Easements
On September 6, 1974, Selnick’s predecessor in title, Kaiser Aetna, granted a “revertible easement” for a “temporary entranceway” to Howard County that “will automatically terminate and be and become null and void and all rights therein shall automatically then revert to [Kaiser Aetna], its successors and assigns” when SHA constructed another entrance to the Business Park. According to the circuit court, because the triggering event—SHA constructing a new entrance to the Business Park—did not occur within thirty years, the easement became a permanent easement as of September 6, 2004 under R.P. § 6-101 and its thirty-year limit on possibilities of reverter and rights of entry.
Selnick, as the current owner of the servient estate to the temporary easement, contends that the conveyance created a temporary easement alone, with the fee simple estate remaining in the grantor. As such, Selnick argues that the circuit court incorrectly applied R.P. § 6-101 to the easement. Howard County and other appellees counter that we should uphold the circuit court’s decision because Kaiser Aetna granted a revertible easement, which, like a possibility of reverter in a fee simple determinable interest, is subject to R.P. § 6-101 and its thirty-year limit on revertible interests in land.
At the onset of our examination, it is worth noting that if R.P. § 6-101 applies to easements, the code section would also apply to the deed, even though not expressly referenced in the deed. See John Deere Constr. & Forestry Co. v. Reliable Tractor, Inc.,
Selnick contends that the language of the statute, which expressly applies to possibilities of reverter and rights of entry, does not apply to easements, temporary or otherwise. Selnick points to the original version of the statute, which explicitly stated that it applied to restrictions on “a fee simple estate in land.” In other words, Selnick asserts that the circuit court erred as a matter of law by applying R.P. § 6-101 to a grant by Kaiser Aetna of an easement because R.P. § 6-101 applies to fee simple determinable estates and fee simple subject to condition subsequent estates. Here, the grantor retained a fee simple estate, subject to an easement, and
Appellees counter that Selnick’s argument is a misinterpretation of the law that contradicts the thoughtful interpretations of other courts across the country and common sense in light of the public policy behind R.P. § 6-101. While Maryland courts have not had the opportunity to address whether possibilities of reverter and rights of entry apply to easements in addition to fee simple estates, other courts have concluded that they do. In its brief, Appellee NVR, Inc. (“NVR”) directs our attention to Jon Bruce’s and James Ely’s Law of Easements and Licenses in Land, a treatise that Maryland courts have recently cited with approval. See, e.g., Potomac Elec. Power Co. v. Classic Cmty. Corp.,
NVR also relies on Diaz v. Home Federal Savings and Loan Association of Elgin,
Provided however that if the said railroad shall not be constructed over and through said premises within two years or if the said Galena and Chicago Union Railroad Company or their assigns shall at any time hereafter cease permanently to use same railroad to be constructed and the same shall be abandoned or the route thereof changed so as to not be continued over said premises then and in that case the said land hereby granted shall revert to the said grantor his heirs or assigns.
The circuit court found that the easement over Selnick’s estate was a determinable easement with a possibihty of reverter. The possibüity of reverter would be triggered by SHA constructing a second access to the Business Park. According to Bruce and Ely, such determinable easements are “commonly used to provide temporary access to a dominant estate pending the completion of construction work on another access route.” Bruce & Ely, The Law of Easements and Licenses in Land, § 10:3 (citing Dotson v. Wolfe,
A comparison of R.P. § 6-101 to its predecessor, Md.Code (1957, 1968 RepLVol., 1969 Cum.Supp.) Article 21, § 143 (“ § 143”) is appropriate. As mentioned, R.P. § 6-101, entitled “Thirty-year limit on possibilities of reverter and rights of entry created on or after July 1,1969,” states:
(b) Section effective on July 1, 1969.—This section is effective on July 1, 1969, with respect to (1) inter vivos instruments taking effect on or after that date, (2) wills of persons who die on or after that date, and (3) appointments by inter vivos instruments or wills made on or after that date under powers created before that date.
(c) Possibility or condition not valid after specified time.—If the specified contingency of a special limitation creating a possibility of reverter or of a condition subsequent creating a right of entry for condition broken does not occur within 30 years of the effective date of the instrument creating the possibility or condition, the possibility or condition no longer is valid thereafter.
§ 143, entitled “Thirty-year limit on possibilities of reverter and rights of entry created on or after July 1, 1969,” stated:
(a) A special limitation or a condition subsequent, which restricts a fee-simple estate in land, and the possibility of reverter or right of entry for condition broken thereby created, shall, if the specified contingency does not occur within thirty years after the possibility of reverter or right of entry was created, be extinguished and cease to be valid.Any estate of fee simple determinable or any fee-simple estate subject to a condition subsequent shall become a fee simple absolute if the specified contingency does not occur within thirty years from the effective date of the instrument creating the possibility of reverter or right of entry.
(b) Subsection (a) shall become effective on July 1, 1969, with respect to inter vivos instruments taking effect on or after that date, to the wills of persons who die on or after that date and to appointments made on or after that date, including appointments by inter vivos instruments or wills under powers created before such date.
Selnick points out that § 143 states that it applies to “a fee simple estate in land,” and this language is not in R.P. § 6-101. After 1969, § 143 and related sections were recodified in Article 21, Title 6, which was “derived in its entirety from §§ 143-147 of former Article 21.” Md.Code (1974), Title 6 of the Real Property Article (comment to former Article 21, Title 6). Then, the General Assembly enacted Md.Code (1974), § 6-101 of the Real Property Article, which consisted of “new language derived from former Article 21, § 6-101 of the Code” and was substantially similar to R.P. 6-101. The only substantive difference between R.P. § 6-101 and Md.Code (1974), § 6-101 of the Real Property Article is that R.P. § 6-101(a) provides that the “section does not apply to an affordable housing land trust agreement____” Sections (a) and (b) of Md.Code (1974), § 6-101 of the Real Property Article are identical to sections (b) and (c) of R.P. § 6-101. Otherwise, it appears that the differences between § 143 and R.P. § 6-101 are the result of the revision of the Maryland Code, without substantive change.
Maryland case law has differentiated between a possibility of reverter and a right of entry as follows:
The possibility of reverter is distinguished from the right of entry for condition broken in that it takes effect in possession automatically on the happening of the condition or event named in the creating instrument. But in the case of the right of entry, the grantor must elect to forfeit before the granted interest is terminated.
Lovell Land, Inc. v. State Highway Admin.,
R.P. § 6-102 expressly applies to “all possibilities of reverter and rights of entry on estates of fee simple, existing before July 1, 1969” and requires the holder of such a right to file a notice of intention to preserve the right for the interest
Our goal when undertaking to interpret a statute is “to ascertain and effectuate the intention of the legislature.” Johnson v. Mayor of Balt. City,
If we determine the statutory language to be ambiguous, then we “consider not only the literal or usual meaning of the words, but their meaning and effect in light of the setting, the objectives and purpose of [the] enactment.” Mehrling,
Nevertheless, the Court of Appeals has cautioned that an inquiry into the statutory history is “ ‘in the interest of completeness ... to look at the purpose of the statute and compare the result obtained by use of its plain language with that which results when the purpose of the statute is taken into account.’” Jaigobin,
An easement is “a non-possessory interest in the real property of another
R.P. § 6-101 explicitly controls with respect to possibilities of reverter and rights of entry. In fact, the title of R.P. § 6-101 clearly provides that the code section is a “[t]hirty-year limit on possibilities of reverter and rights of entry created on or after July 1, 1969.” Moreover, Title 6 of the Real Property Article, comprised of R.P. § 6-101 to § 6-105, is entitled “Rights of Entry and Possibilities of Reverter.” Maryland courts have yet to address whether R.P. § 6-101 applies to easements, but as discussed, Maryland case law has expressly defined possibilities of reverter and rights of entry.
In a fee simple determinable estate, “ ‘where land is devised for a certain purpose, and it is the testator’s intention that it shall be used for that purpose only, and that on the cessation of such use, the estate shall end without reentry by the grantor, a possibility of reverter arises....’” The Knights and Ladies of Samaria v. Bd. of Educ. of Charles Cnty.,
In a fee simple subject to a condition subsequent estate, “[t]he failure of a condition subsequent ... merely gives rise to a right of entry; the grantor does not obtain a fee simple absolute [estate] until he or she enters and retakes the land.” The Knights and Ladies of Samaria,
Simply, easements, which are non-possessory rights to use the land of another, do not generate, in the traditional sense, possibilities of reverter and rights of entry. Possibilities of reverter and rights of entry follow fee simple estates.
II. 1990 Option Agreement
Selnick also argues that the 1990 Option Agreement was ambiguous, and therefore, the circuit court erred in refusing to allow parol evidence in its interpretation. To reiterate, language in a contract is ambiguous if it is susceptible to more than one meaning to a reasonably prudent person. Calomiris,
The 1990 Option Agreement stated “[a]t the time Amberton Drive is closed SHA will provide a well defined break in the roadway to prevent all traffic from entry from the ramp.” Selnick asserts that the language is ambiguous, so the circuit court should have admitted parol evidence to determine the intent of the parties. However, the language of the Option Agreement clearly sets forth that SHA’s duty to construct the break in the roadway does not arise until Amberton Drive is closed. To insert a “reasonable time” requirement in the contract language would run contrary to the clear language of the Option Agreement and would add a new term to the contract, which is expressly forbidden by Maryland contract law. See, e.g., Calomiris,
Because Amberton Drive has not been closed, SHA’s duty under the Option Agreement has yet to arise. Therefore, SHA cannot be in violation of the Option Agreement.
If, arguendo, the circuit court considered Mr. Selnick’s affidavit and the facts alleged therein, SHA was obligated to close Amberton Drive and construct a new entrance to the Business Park by 1993. Therefore, even allowing SHA until the end of the year in 1993, SHA’s performance was overdue no later than December 31, 1994. Mr. Selnick did not write a letter until October 2000, and Selnick did not file suit in this case until July 17, 2008. Neither Mr. Selnick’s letter nor the lawsuit were within a year of the latest possible date on which the claim in this case could have arisen.
Based on the above, even if the court accepted the evidence Selnick proffered, Selnick is not entitled to the sought after relief because the complaints are time-barred
III. Inverse Condemnation
Selniek also contends that the circuit court erred in its determination that Howard County’s actions did not amount to an unconstitutional taking. In College Bowl v. Baltimore,
In United States v. Clarke,445 U.S. 253 , 257,100 S.Ct. 1127 , 1130, 63 L.Ed.2d [373] (1980), the Supreme Court characterized an inverse condemnation as a “shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when condemnation proceedings have not been instituted.” In that regard, the Court adopted the view of D. Hagman, URBAN PLANNING AND LAND DEVELOPMENT CONTROL LAW 328 (1971) that “[i]nverse condemnation is ‘a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency.’ ” Id. See also Reichs Ford v. State Roads,388 Md. 500 , 511,880 A.2d 307 , 313 (2005). In determining whether governmental action constitutes an inverse taking, the Supreme Court has looked to whether the restriction “forc[es] some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” PruneYard Shopping Center v. Robins,447 U.S. 74 , 83,100 S.Ct. 2035 , 2041,64 L.Ed.2d 741 , 753 (1980), quoting from Armstrong v. United States,364 U.S. 40 , 49,80 S.Ct. 1563 , 1569,4 L.Ed.2d 1554 , 1561 (1960).
Because it is in the nature of a generic description, an inverse condemnation can take many different forms—the denial by a governmental agency of access to one’s property, regulatory actions that effectively deny an owner the physical or economically viable use of the property, conduct that causes a physical invasion of the property, hanging a credible and prolonged threat of condemnation over the property in a way that significantly diminishes its value, or, closer in point here, conduct that effectively forces an owner to sell. Amen v. City of Dearborn,,718 F.2d 789 (6th Cir.1983) illustrates the last of those types. It was a class action based on inverse condemnation against the city of Dearborn, Michigan, by former residents of certain neighborhoods in the city. In order to coerce residents into selling their homes to the city, the city denied or unreasonably delayed building and repair permits or demanded expensive renovations as a condition to receiving a permit, demanded that residents perform maintenance and repairs not required by the building code, publicly announced that the area would be cleared and thereby inhibited residents from selling their homes to others, and allowed properties in the area to remain vacant and unprotected. The court concluded that, while none of those actions alone might have sufficed, the aggregate of that conduct did result in a taking.
In Hardesty v. State Roads Commission,
As noted in Nichols, Eminent Domain § 6.1(1) (3rd ed.1970):
Constitutional rights rest on substance, not on form, and the liability to pay compensation for property taken cannot be evaded by leaving the title in the owner, while depriving him of the beneficial use of the property.... [A] legal restriction upon the use of land may constitute a taking, although the title is unaffected and the land is physically untouched, and the same is true when the owner’s enjoyment of the land is physically interfered with, although his legal rights remain unimpaired. However, just how severe the interference with the owner’s enjoyment of his property must be to constitute a taking ... is not a question which can be answered in such a way as to furnish a concise rule readily applicable to all cases likely to arise....
In stating that the weight of authority does not support the view that a physical appropriation is prerequisite to a “taking” of property in the constitutional sense, Nichols says at § 6.3:
The modern, prevailing view is that any substantial interference with private property which destroys or lessens its value (or by which the owner’s right to its use or enjoyment if in any substantial degree abridged or destroyed) is, in fact and in law, a ‘taking’ in the constitutional sense, to the extent of the damages suffered, even though the title and possession of the owner remains undisturbed.
Id. at 31-32,
While Selnick may well have suffered from the continued existence of the easement across what is now his property, the actions of Howard County and SHA do not amount to a taking. “[T]he Fifth Amendment was not meant to protect property owners in their voluntary dealings with the government.” Janowsky v. United States,
The easement across Selnick’s property was voluntarily deeded to Howard County by Selnick’s predecessor in title, Kaiser Aetna, so there could be no taking as long as the easement remained valid. Calvert Assocs. Ltd. P’ship v. Dep’t of Emp’t and Soc. Servs., Emp’t Sec. Admin.,
Moreover, the expanded use and improvement of the road over the easement by Howard County and SHA does not amount to a taking. “Where land is dedicated for the purpose of a public street, the municipality acquires not only the easement of passage but also the right to grade and improve the surface of the street, and to lay sewers, drains and pipes for various utilities beneath the surface.” Levi v. Schwartz,
We also note that Selnick contends that its property rights are being substantially interfered with, resulting in economic harm. Selnick posits that the alleged harm “demonstrate^] that a taking has already occurred, regardless of whether or not Howard County ever constructs the new entrance road, and regardless of whether or not it determines in the future to return Selnick’s reversionary interest.” As discussed above, a taking has not occurred. The problems Selnick details are the result of the unambiguous deed and option agreement. Such problems were reasonably foreseeable when Kaiser Aetna granted the easement, when Selnick purchased the property, and when Selnick entered into the option agreement. See Shallow Run L.P.,
Finally, Howard County’s alleged intentions in and of themselves to maintain the road over the easement even after there is a second entrance to the Business Park do not amount to a taking. Selnick directs our attention to the county’s budget legislation and its various communications with members of the county government. However, there must be some governmental action that amounts to a taking of property for an inverse condemnation
IV. Easement by Necessity
Even though not expressed in a deed, an easement may be created by implication. Stansbury,
Md. 18, 39-40,
“[T]he doctrine of [easements by necessity] is based upon public policy, which is favorable to full utilization of land and the presumption that parties do not intend to render land unfit for occupancy.” Condry,
“[E]asements by necessity must be created at the time of the initial grant of the property.” Stansbury,
If the way of necessity was not implied at the time of the grant ..., it cannot be established by a subsequent necessity. In other words, the necessity must be determined from the conditionsas they existed at the time of the conveyance .... Hence a remote grantee of land not being used at the time of the severance may nonetheless, when the use becomes necessary to the enjoyment of his property, claim the easement under his remote deed____This rule is consonant with the generally held view that non-use alone is not sufficient to extinguish a way by necessity.
Id. at 488-89,
Therefore, there are three elements that each must be satisfied for a landowner to successfully obtain an easement by necessity:
(1) initial unity of title of the parcels of real property in question; (2) severance of the unity of title by conveyance of one of the parcels; and (3) the easement must be necessary in order for the grantor or grantee of that property in question to be able to access his or her land, with the necessity existing both at the time of the severance of title and at the time of the exercise of the easement.
Id. at 489,
Appellee Merritt-SBl, LLC (“Merritt”) asserts that the foregoing requirements are satisfied. The first two prongs are met because Merritt’s property and Selnick’s property were subdivided from the original 191 acre tract of land that was developed into the Business Park. Merritt’s argument regarding the third prong, however, is flawed. Merritt posits that if the temporary easement were to revert to Selnick or otherwise be extinguished, Merritt’s property would be landlocked and unusable, frustrating the public policy of full utilization of land. Merritt ignores the fact that the temporary easement would be extinguished when Howard County or SHA constructs a new access road to the Business Park, which would also relieve the absolute necessity to use the road over the temporary easement for Merritt to reach its property. Thus, we disregard Merritt’s contention that it has an easement by necessity across Selnick’s property, and that the easement is not subject to Selnick’s reversionary interest.
JUDGMENT OF THE CIRCUIT COURT FOR HOWARD COUNTY REVERSED. CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY HOWARD COUNTY AND THE STATE HIGHWAY ADMINISTRATION.
Notes
. R.P. § 6-101, entitled "Thirty-year limit on possibilities of reverter and rights of entry created on or after July 1, 1969,” states:
(a) Section effective on July 1, 1969.—This section is effective on July 1, 1969, with respect to (l) inter vivos instruments taking effect on or after that date, (2) wills of persons who die on or after that date, and (3) appointments by inter vivos instruments or wills made on or after that date under powers created before that date.
(b) Possibility or condition not valid after specified time.—If the specified contingency of a special limitation creating a possibility of reverter or of a condition subsequent creating a right of entry for condition broken does not occur within 30 years of the effective date of the instrument creating the possibility or condition, the possibility or condition no longer is valid thereafter.
. Selnick avers that the "ordinary dictionary” definition of "temporary” is “lasting or meant to last only for a limited period of time.”
. For a detailed discussion of the rule against perpetuities, see. Fitzpatrick v. Mercantile-Safe Deposit & Trust Co.,
. To date, S.G. 12-202 has not been modified.
. In its brief, SHA posits that the “completion'' of the option contract under S.G. § 12-202 occurred on August 16, 1990 when SHA tendered Selnick $57,225 for the transfer of the deed to the optioned land, barring Selnick’s claim on August 16, 1991.
. While Hardesty is a valuable resource for stating the generally applicable law, that case involved a "quick take,” or “immediate entry,” condemnation procedure, which is not the case here. Hardesty,
. Regardless, as was the case here, we note that “[o]n an appeal from the grant of a summary judgment which is reversible because of error in the grounds relied upon by the trial court[,] the appellate court will not ordinarily undertake to sustain the judgment by ruling on another ground, not ruled upon by the trial court, if the alternative ground is one as to which the trial court had a discretion to deny summary judgment. ” Geisz v. Greater Baltimore Med. Center,