Appellee, Donald E. Bouchard, filed a declaratory judgment action against his neighbors, appellants, John T. Turner and Marie Turner (collectively, “Turner”), on April 16, 2007 in the Circuit Court for Calvert County. Following a bench trial on April 2, 2008 and April 25, 2008, the circuit court on August 25, 2008 issued an opinion and order holding that Bouchard had a prescriptive easement over a portion of Turner’s property and placing various restrictions on the use of the easement. Turner noted timely an appeal to this Court on September 8, 2010.
Question Presented
Turner presents one question for our review, which we have rephrased as follows:
*436 I. Did the circuit court err in-holding that Bouchard has a prescriptive easement over a portion of Turner’s property?
For the reasons that follow, we answer no and affirm the judgment of the circuit court.
Factual and Procedural History
The parties to this case own and live on two adjacent properties on Big Bear Lane in the town of Lusby, Maryland. Turner owns 11730 Big Bear Lane (“lot 17”) and Bouchard owns 11734 Big Bear Lane (“lot 16”). The back yards of both lots abut Lake Lariat, a man-made lake used by both parties for recreational purposes. It is undisputed that Bouchard has an express easement, granted by a properly recorded deed, over a portion of Turner’s property to serve as a driveway for pedestrian and vehicular ingress and egress to Bouchard’s property.
Chain of Title
Both lot 16 and lot 17 were previously owned by Luther and Dorothy Muth. The Muths improved lot 16 by building a house, a crushed stone driveway, and a concrete retaining wall. A portion of the driveway and retaining wall were located on lot 17, but lot 17 was otherwise unimproved and did not have a house. The Muths sold lot 16 to Bouchard on October 29, 1975. Because the home on lot 16 was within a few feet of the property line, the Muths conveyed by separate recorded deed an express easement across a small portion of
Turner’s parents have owned property in the subdivision since 1963, when they purchased lots 96 and 97. Those lots are also on Big Bear Lane, across the street and around the corner from lots 16 and 17. In 1967 Turner’s parents built a cottage on their lots. They initially used the cottage as a vacation home, but moved there full time in the early 1970’s. After building the cottage, Turner’s parents bought a third lot in the subdivision, lot 18, adjacent to lot 17. Lot 17 was at that time still owned by the Muths.
The Muths sold lot 17 to Bouchard and Turner’s parents on December 9, 1980 as tenants in common. On August 24, 1984 Turner’s parents bought out Bouchard’s interest in lot 17 and became the sole owners of the property. Both the 1980 and the 1984 deeds expressly incorporated the express easement. From 1980 until 2005, Turner’s parents used lots 17 and 18 as a recreational gathering point for the family. In 2005, Turner purchased lot 17 from his parents and built a house there.
The Disputed Area
The express easement is a sixty-one foot, three inch long trapezoid bounded on the south by the property line separating lot 16 from lot 17.
The properties share a concrete retaining wall that begins on lot 16, crosses the property line in a north-easternly direction, turns and veers approximately parallel to the property line, and then ends on lot 17. The retaining wall is entirely outside the boundary of the express easement. The disputed area can be most easily conceptualized as two shapes. The western portion of the disputed area is on lot 17 between
The parties disagree over whether there is an easement in the disputed area, and if so, the size of the easement; who may use the easement; how the easement may be used permissibly; and who is responsible for maintaining the easement.
The Lawsuit
The circuit court described the origins of the suit as follows: In 2006 the Turners demanded that the [Bouchards] cease using the Disputed Area. According to the Turners, the Bouchards were not entitled to use these portions of the land that was located on lot 17 between the lot line and the retaining wall. When [Bouchard] continued his use of the Disputed Area, the Turners physically moved some of the blocks that composed a portion of the retaining wall into the middle of the Bouchard driveway, which they believed to be the true boundary line of the easement.
On April 16, 2007 Bouchard filed a complaint for declaratory judgment under Maryland Code (1973, 2006 Repl.Vol.), Courts & Judicial Proceedings Article § 3-406. Bouchard argued that he had established a prescriptive easement over the disputed area and asked the circuit court to declare as such and determine the rights and liabilities of the parties.
In an opinion filed on August 25, 2010, the circuit court found:
[Bouchard], through a prescriptive easement, has the right to continue to use the Disputed Area. However, [Bouchard] cannot do anything that interferes with the Turners’ use and enjoyment of the land. Beach access cannot be*440 blocked by either party. The Bouchards cannot store boats or other personal property on the portion of the prescriptive easement that extends beyond the retaining wall to the water. The Turners cannot construct a wall, fence, or any type of structure or impediment, which will prevent the Bouchards from being able to use or access the easement.
The Turners retain full ownership of the land within the easement on lot 17, but they are the servient owners and therefore cannot prevent the use of the easement by Mr. Bouchard. Likewise, Mr. Bouchard does not own the land subject to the easement and therefore cannot interfere with the Turners’ use and enjoyment of the land. Neither side is to interfere with the beach access of the other.
In an attached order filed on the same day, the circuit court declared the extent of use and the prescriptive easement and the parties’ various responsibilities for maintenance of the easement as follows:
FOUND, that [Bouchard] has an express easement over [Turner’s] property, as described in the 1975 deed, and incorporated by reference in the 1980 and 1984 deeds conveying lot 17; and it is further
FOUND, that [Bouchard] has a prescriptive easement over the portion of lot 17, which lies between the concrete block wall and the property line between lots 16 and 17, and from the end of the block wall (in the center of the picture attached hereto) on lot 17 to the water’s edge; and it is further
ORDERED, that [Bouchard] may use both his express easement and prescriptive easement for ingress and egress onto lot 16, parking cars, beach access, and for other activities that do not affect the use and enjoyment of the land owned by [Turner]; and it is further
ORDERED, that there is to be no storage of boats or other personal property on the portion of the easement on the water side of a line running from the end of the wall and running perpendicular to the lot line; and it is further
*441 ORDERED, that the care and maintenance of the easement within the retaining wall is the responsibility of [Bouchard]; and it is further
ORDERED, that the care and maintenance of the easement from the bottom of the retaining wall to the water’s edge is the responsibility of [Turner].
Turner filed timely an appeal to this Court on September 8, 2010.
Discussion
An easement is a nonpossessory interest in the real property of another. An easement can be created expressly or by implication. One type of easement created by implication is an easement by prescription. Jurgensen v. New Phoenix Atl. Condo. Council,
It is undisputed that Bouchard had an express easement over a portion of Turner’s land for ingress and egress. The parties differ over whether Bouchard’s use of the disputed area outside the express easement created a prescriptive easement over the disputed area. Enlargement by prescription of an express easement is rare. We note the following:
“The comparatively few cases which a comprehensive search has revealed as involving the point clearly indicate that where an easement is granted for use in a specified manner or for a specified purpose, an open and continuous use thereof, under a claim of right, for the prescriptive period*442 for purposes or in a manner beyond the scope of the grant, will create an easement of the larger scope by prescription, although in the majority of such cases the enlarged easement was held in fact not to arise because of a lack of the elements necessary to create it.”
Annotation, Enlargement of Easement by Use for Purpose or in a Manner Other Than That Specified in the Grant,
I. Standard of Review
Our review of the circuit court’s order is governed by Rule 8-131(c), which 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 witness.
“The clearly erroneous standard does not apply to the circuit court’s legal conclusions, however, to which we accord no deference and which we review to determine whether they are legally correct.” Cattail Assocs. v. Sass,
The issue raised in this case, whether Bouchard’s use of the disputed area established a prescriptive easement, is a legal question involving the interpretation of Maryland case law as it relates to prescriptive easements. Therefore,
II. Burden of Proof
Turner argues that the circuit court erred, for two reasons, in not assigning Bouchard the burden of proving that his use of the disputed area was adverse. First, Turner contends that because there is an express easement Bouchard’s use of the disputed area was permissive. Therefore, Turner concludes, Bouchard must provide affirmative evidence of a change to an adverse use. Alternatively, Turner argues that lot 17 qualifies for the “woodlands exception,” which is recognized in Maryland and would result in a presumption that Bouchard’s use of the disputed area was permissive.
A. Presumption of Adverse Use
Ordinarily, the person claiming a prescriptive easement bears the burden of showing that “it has had the character and is of the duration required by law.” Dalton v. Real Estate Imp’v’t Co.,
Black’s Law Dictionary defines a “presumption” as “[a] legal inference or assumption that a fact exists, based on the known or proven existence of some other fact or group- of facts.” Black’s Law Dictionary 1223 (8th ed. 2004). Logic dictates that a presumption of adverse use is created only when there is an absence of any evidence which would indicate that [the use was permissive]. Or, phrased another way, it is only when no appearance of permission permeates the record, that a presumption of adverse use will arise. In the absence of such a presumption of adverse use, the burden of establishing such use is on the party claiming it. This is supported by the general rule that the creation of an easement by prescription is not favored by the law. Herbert T. Tiffany, The Law of Real Property, § 793 (3d ed.1939, 2006 Supp.)
Banks,
Turner relies on Feldstein v. Segall,
The Court of Appeals reversed the judgment of the circuit court and dismissed the complaint. The Court recognized that an express easement may be widened by prescription, but cautioned that “use originally permissive or of right is presumed to continue, and there must be affirmative evidence of
Turner interprets Feldstein to stand for the propositions that: (1) an express easement cannot be enlarged by prescription unless the dominant tenant can show affirmative evidence of a change to adverse use; and (2) there is a heightened burden of proof between neighbors. As to the first proposition, Feldstein is distinguishable for two reasons. First, a previous owner of the servient estate gave the easement holders permission to cross his property. Only because the use was permissive did the burden shift to the easement holder to show affirmative evidence of a change to an adverse use. Second, the use of the servient tenement was so miscellaneous and promiscuous that it failed to meet the adverse or exclusive elements of a prescriptive easement. Under Feldstein, the mere existence of an express easement does not necessarily create a presumption that a use in excess of that express easement is permissive.
As to the second proposition, Turner’s interpretation of the Court’s statement that unneighborly conduct cannot support title by adverse possession is overly broad. In Mavromoustakos v. Padussis, a case involving a disputed prescriptive easement between adjacent property owners, we declined to adopt the approach of District of Columbia courts that “neighborly accommodation” is sufficient to rebut the
In Maryland, by contrast, in order to rebut the presumption of adverse use, the servient owner must do more than merely present evidence of permission—he or she must prove its existence by affirmative evidence. As in most civil actions, the claimant satisfies this requirement upon a showing that it is more likely than not that the land was used with permission or license. As previous cases have demonstrated, merely presenting “some evidence” of permission will not overcome the presumption of adversity in this State, as it would in the District of Columbia.
In effect, once it is established that a presumption of adverse use applies in Maryland, the burden of persuasion shifts to the servient owner, and remains there.
Mavromoustakos and Feldstein, taken together, refute Turner’s argument that there is a heightened burden of proof between neighbors. Instead, the cases stand for the proposition that evidence of a permissive use of the servient estate will not be overcome by allegations of neighborly accommodation. The circuit court interpreted Feldstein properly, and declined to view Bouchard’s use of the disputed area as a permissive use merely because he had a smaller express easement. The circuit court found no other evidence that Bouchard’s use of the disputed area was permissive. Therefore, the circuit court • did not err in holding that it was Turner’s burden to produce affirmative evidence to the contrary.
B. Woodlands Exception
Turner argues next that the circuit court erred by not applying the “woodlands exception” to its analysis of the adverse element of a prescriptive easement. This exception, if applied, would lead to the presumption that Bouchard’s use of the disputed area was permissive, thus making the burden his to prove that such use was adverse. In Forrester v. Kiler,
The servient estate in Forrester was nearly a quarter mile from the nearest county road and consisted of eight acres of unenclosed wooded land. There, it was readily evident that the purported prescriptive easement crossed a dense forest in a general state of nature, and thus the burden-shifting exception applied. Turner argues that the woodlands exception applies here because: the disputed area is not visible from Big Bear Lane; due to the hilly terrain, the disputed area is not visible from lot 17; lot 17 was not developed until 2005; and lot 17 is entirely wooded and contains patches that are densely vegetated. The circuit court disagreed. Lots 16 and 17 are quarter-acre parcels located in a subdivision with hundreds of other similar sized parcels. Both lots are improved with houses and driveways, as well as less formal clearings that are used as paths to access the lake. Though some portions of lot 17 have a steep terrain and contain un-trimmed vegetation, the disputed area itself is bounded by a retaining wall and has been cleared and maintained.
To determine whether the woodlands exception applied, the circuit court considered the testimony of witnesses, received photographs of the properties as exhibits, and visited the site to view the disputed area first hand. Our holding in the initial
III. Elements of Prescriptive Easements
As the Court of Appeals stated in Leekley v. Dewing,
A prescriptive easement was established in the land the Bouchards used because the Bouchards’ use, beginning in 1984, exceeded the scope of the original 1975 easement. By exceeding the scope, the easement became one of implication, rather than permission. The implied easement was adverse to the servient estate owners, because it was not used with permission or license.... [T]he use was also exclusive and uninterrupted for the [twenty] year statutory period. Therefore, a prescriptive easement was created.
A. Adverse
Adverse use is established when the use is without license or permission. Cox v. Forrest,
It was not until 2006 that Turner began to challenge Bouchard’s use of the disputed area by putting up “No Trespassing” signs and using blocks from the retaining wall to define the boundary of the express easement. Prior to that date, Bouchard never asked permission to use the disputed area, and neither Turner nor his parents ever volunteered permission for such use. In fact, Bouchard testified that he believed the original grant of the express easement extended to the retaining wall. The failure to protest Bouchard’s use of the disputed area by Turner or his parents was not permission, but acquiescence. Dalton,
The circuit court summarized its factual findings relating to adverse use as follows:
*450 When use of the express easement began, the Bouchards immediately began to exceed the scope, because there was no permission to use the land from the easement to the retaining wall, and there was also no permission to use the land from the end of the retaining wall to the beach. All of this use was adverse and against the interest of the Turners.
The use was also visible to the Turners. The driveway that was created under the easement and used by the Bouchards was the only way for cars to access the Bouchards’ garage. The driveway was used openly and nearly every day by the Bouchards or their tenants. The land extending from the end of the retaining wall to the water line was used by both parties for beach access. At any point while accessing the beach, the Turners would have seen the Bouchards were using the land for storing boats and picnics. All of this use was adverse to the Turners as it was without permission or license.
Turner challenges the circuit court’s conclusion that he or his parents “would have seen” Bouchard’s use of the disputed area. Turner argues that Bouchard failed to prove by direct evidence that Turner or his parents knew of Bouchard’s adverse use. While the issue of whether Turner or his parents had actual notice of Bouchard’s use of the disputed area is a relevant consideration, the alleged lack thereof does not negate the adverse requirement. The circuit court was entitled to draw inferences from the facts, and did so properly in concluding that the Turners would have seen Bouchard’s use of the disputed area at some point during the statutory period.
As discussed, Turner’s parents owned lot 18, which they used to store a small boat and access the lake. Bouchard testified that if the Turners ever launched their boat from lot 18 they would have passed Bouchard’s property, and, upon doing so, would have seen Bouchard’s open use of the disputed area as a storage space for his own boats. Further, Turner’s parents’ full-time home on lots 96 and 97 was a mere 100
Turner contends that he had no notice of Bouchard’s use of the disputed area because, due to the terrain on lot 17, he couldn’t see the disputed area until he built a two story house on the property. Turner’s indifference about inspecting his own property is difficult to comprehend. The case law does not support Turner’s view that he can claim to be unaware of any adverse use of his property simply because such use was not visible from his bedroom window. Rather, the law has long favored and protected “those who are active and vigilant, and not those who are sluggards and who sleep on their rights.” Dickey v. Permanent Land Co.,
As discussed, it was Turner’s burden to produce affirmative evidence that Bouchard’s use of the disputed area was permissive. Turner’s contention that Bouchard’s use was permissive solely by operation of the express easement is without merit. The record contains no other evidence to suggest that Bouchard or his tenants used the disputed area with permission. Turner’s claim that he was unaware of Bouchard’s use of the disputed area exceeds credulity. Accordingly, the circuit court was not clearly erroneous in holding that Bouchard’s use of the disputed area was adverse.
B. Exclusive
The exclusive requirement means “the claim of user must not depend on the claim of someone else.” Shug
C. Uninterrupted and Continuous For the Twenty Year Statutory Period
To be uninterrupted and continuous, the claimant need not use the right of way every day for the full twenty year period. Cox,
more or less frequently, according to the nature of the use to which its enjoyment may be applied, and without objection on the part of the owner of the land, and under such circumstances as excludes the presumption of a voluntary abandonment on the part of the person claiming it.
Cox,
The first consideration is the point in time when Bouchard’s use of the disputed area began to run for purposes of the twenty year statutory period. The Muths granted Bouchard the express easement in 1975 along with the title to lot 16, and Bouchard immediately began to exceed the scope of the
Bouchard used lot 16 as a rental property from 1980 until 1999. He then spent a year fixing up the property and began to live there full time in 2000. The use of the disputed area by Bouchard’s tenants and his own use of the disputed area may be combined and considered together as continuous use. The circuit court heard testimony that both Bouchard and his tenants used the disputed area to park vehicles and for access to the lake. The circuit court weighed the credibility of this testimony and found that such use was consistent with the nature of a right of way for ingress and egress and as a passage way to water access. To do so was not error.
CONCLUSION
While the law may disfavor easements by prescription, that policy cannot be twisted to protect landowners who sleep on their rights. The presumption which arises from the unexplained use of the right of way for twenty years that the use was under a claim of right, has not been rebutted by any evidence. See Cox,
JUDGMENT OF THE CIRCUIT COURT FOR CALVERT COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
EXHIBIT
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Notes
. The questions presented as originally phrased in Turner’s brief are as follows:
1. Did the circuit court err when it expanded an express easement beyond its original scope despite the fact that there is no evidence in the record, or finding by the court, of affirmative evidence of change to an adverse use?
2. Did the circuit court err when it failed to apply the "woodlands exception” to this case when the evidence of the case clearly demonstrates that the property met the criteria for applying this exception?
3. Did the circuit court err when it granted a prescriptive easement depsite [sic] the fact that the appellee did not present evidence to prove the necessary elements of a prescriptive easement?
. “In every instance of a private easement—that is, an easement not enjoyed by the public-—there exists the characteristic feature of two distinct tenements—one dominant and the other servient.” Board of County Comm’rs v. Bell Atlantic-Maryland,
. The official plat refers to Turner’s property as Lot 17R. Lot 17 R is a combination of previously-numbered lots 17 and 18. For the sake of consistency and simplicity, we refer to Turner’s property throughout this opinion as “lot 17.”
. The complete description of the easement in the 1975 deed from the Muths to Bouchard is as follows:
*438 An easement for the benefit of and appurtenant to Lot #16, the dominant tenement, and against Lot #17, the servient tenement, both Lots situate in Section 2-L of the subdivision known as Chesapeake Ranch Estates as per plat thereof recorded among the Land Records of Calvert County in Plat Book J.B.L. # 1 at page 88, said subdivision being located in the First Election District of Calvert County, State of Maryland.
Said easement is in the shape of a trapezoid and begins at a point on the boundary between Lots 16 and 17 (which boundary is a line running N 52° 00' E as recorded on Survey and Improvement Location plat prepared for said Lot 16 by J.R. McCrone, Jr., Inc., registered professional engineers and land surveyors, on October 23, 1975, a copy of which is attached), which point is one hundred fifty-three feet nine inches from a pipe which marks the northwest corner of Lot 16 and the southwest corner of Lot 17, hereinafter called the corner pipe, and runs first for nineteen feet three inches in a northeasternly direction to a point which is eight feet from said boundary at right angles to a point on it one hundred seventy-one feet three inches from said corner pipe, thence in a more easterly direction parallel to said boundary for twenty-eight feet nine inches to a point eight feet from said boundary and at right angles to a point on it two hundred feet from said corner pipe, thence in a more easterly direction seventeen feet to a point on said boundary two hundred fifteen feet from said corner pipe, thence southwesterly along the boundary to the starting point at one hundred fifty-three feet nine inches from the corner pipe.
This easement is to grant a right-of-way over land belonging to the grantors herein to serve as a driveway for pedestrian and vehicular ingress and egress to a portion of Lot 16. Grantors have no duty to maintain or to keep in repair said easement property.
. A survey of the express easement is attached hereto. .
. Neither party challenged on appeal the circuit court’s adjudication of their rights to use or responsibilities to maintain the disputed area. Accordingly, we shall leave the circuit court’s holding on that issue undisturbed. Md. Rule 8-131(a).