An оld adage claims that “good fences make good neighbors.” The present case may stand for the corollary principle that disputes over fences virtually guarantee unneighborly outcomes.
On 11 August 2009, the Webbs filed suit in the Circuit Court for Washington County against the Nowaks. The timing of the filing of the suit was precipitated by the removal by the Nowaks of merchantable timber from the Disputed Land. The Webbs sought compensatory and punitive damages, as well as damages under a common law theory for trespass. The Nowaks filed a counter-complaint seeking, among other relief, a declaratory judgment that they hold fee simple title to the Disputed Land and therefore owe nothing to the Nowaks for the removal of the timber.
The parties’ disagreements stem from conflicting interpretations of a 1928 recorded deed from the heirs of Samuel Miller to Alice Wolf (the “Wolf deed”), a predecessor owner in the relevant chain of title. The Wolf deed describes a fence in a certain location as cоnstituting the western boundary line of the property conveyed to Wolf. During the first half of 2007,
The Circuit Court for Washington County entered judgment in favor of the Nowaks, finding, by clear and convincing evidence, that the western boundary of the Webbs’ property was, in fact, the Existing Fence referred to in the Frederick Survey. The Court of Special Appeals affirmed in an unreported opinion. The Webbs filed a petition for writ of certiorari, challenging the judgment of the intermediate appellate court on the grounds that it not only erred in its determination as to the location of the disputed boundary, but also applied the incorrect standard of review in doing sо. We granted the petition,
1) Is the principle that the interpretation of a deed is a question of law to be considered de novo on appellate review*671 inapplicable in boundary disputes, as the Court of Special Appeals opined?
2) May the preference for monuments over courses and distances be applied to reduce the amount of a grant, as the Court of Special Appeals determined?
3) Was the trial court’s interpretation of the deed incorrect?
FACTUAL BACKGROUND
A. The Wolf Deed
The Disputed Land (and the undisputed land owned now by the Wеbbs and the Nowaks) was originally part of 236 acres acquired by Samuel Miller in 1883. Miller’s heirs sold from Miller’s property a lot with frontage on a private lane
The Webbs and Nowaks contest the beginning point of the front portion of the lot formerly owned by Wolf as described in the Wolf dеed. The calls of the boundaries in the Wolf deed are as follows:
Beginning for the same at a stake located on the west side of the County road leading to Sharpsburg, which said place of beginning is at a point one hundred and five (105) feet in a northerly direction from a large gate post located at or near said County road, and [1] running thence in a westerly direction at a distance of three hundred (300) feet, more or less, to a stake at a fence which said stake is located a distance of one hundred and five (105) feet, in a Northerly direction along sаid fence from the Northwest corner of the property of Elliott C. Long and [2] running thence in a northerly direction along said fence a distance of*672 one hundred (100) feet to a stake [3] thence in a easterly direction by a line parallel to the first line of this description a distance of three hundred forty (340) feet, more or less, to the west side of a Private road, which leads to the aforesaid County road, and [4] thence along said private road a distance of one hundred (100) feet more or less to the place of beginning, together with a right of way to the grantee, her heirs or assigns over the aforesaid private road, as means of ingress and egress to said County road.
(Emphasis added; boldfaced bracketed numerals at the beginning of each call were added by the Court of Special Appeals in its unreported opinion in this case and are retained by this Court.)
B. The Webb and Nowak Properties
The Webbs own three abutting parcels. They are referred to by letter — from north to south along the private lane — as Parcels “A,” “B,” and “C.” Parcel A is a “panhandle lot,” with a mere 12 feet of frontage on the private road providing access to the flared balance of the lot. According to the Zenith Survey (and the Webbs), Parcel A extends back 340 feet from the private road along its northerly boundary. At the end of the 340-foot call, Parcel A’s boundary then turns to the southeast and extends 357 feet to the property’s southwesterly corner. Parcel A’s boundary line then turns to the east for 153 feet to the property’s southeasterly corner. Parcel A’s boundary then extends 88 feet to the 12-foot-wide “panhandle” frontage that extends back in an easterly direction to the private road. According to the Webbs’ estimation, Parcel A extends an additional 139 feet farther to the west than does Parcel B or Parcel C. Parcels B and C each have 50 feet of frontage on the private lane and extend westerly from the road for approximately 190-200 feet. These two parcels are each shaped, in essence, like parallelograms. See Appendix A.
PROCEDURAL BACKGROUND
On 11 August 2009, Petitioners filed an action in the Circuit Court for Washington County against Respondents for common law trespass and the destruction of merchantable timber under Md.Code (1973, 2012 Repl. Vol.), Natural Resources Article, § 5-409, which states, in relevant part:
Any person, his aiders, abettors, and counsellors, who willfully, negligently, recklessly, wrongfully, or maliciously enters upon lands or premises of another without written permission of the owner of the lands or premises, in order to cut, burn, or otherwise injure or destroy, or cause to be cut, burned, or otherwise injured, or destroyed, any merchantable trees or timber on the land is liable to the party injured or aggrieved in an amount triple the value of the trees or timber cut, burned, or otherwise injured or destroyed, plus the costs of any surveys, appraisals, attorney fees, or court fees in connection with the case. The damages are recoverable in a civil action, as in any other case.
The Webbs sought, inter alia, compensatory and punitive damages and counsel fees. Respondents filed a counter-complaint, seeking damages for trespass and a declaratory judgment that they owned the Disputed Land upon which the trespass was alleged to have occurred (based on their interpretation of title and a theory of adverse possession) and claimed damages for trespass. The actions were bifurcated and the declaratory judgment claim was set first for a bench trial. The Nowaks withdrew subsequently their claims for trespass and adverse possession. The declaratory judgment claim was tried before Judge Daniel P. Dwyer.
The surveyor who prepared the Zenith Survey died before trial. Petitioners, therefore, presented no testimonial evidence to the Circuit Court to explain directly their version of the discrepancy between the two surveys. Frederic Freder
Frederick continued that, “while the relevant portion of the Nowak property was no longer tilled, it had been so in the past and repeated plowings had resulted in troughs or swales indicating the edge of the cultivated area.” Shannon Stotler, an employee of Frederick’s who also testified at trial, stated that he observed such troughs in the ground along the location of the fence as posited by Frederick, but no such vestiges in the vicinity of the location urged by the Webbs. Thus, Frederick opined that the drafter of the Wolf deed erred in the third call supra, viz.: “thence in an easterly direction by a line parallel to the first line of this description a distance of three hundred forty feet, more or less, to the west side of a Private road, which leads to the aforesaid [County] road [Millers Sawmill Road].” (Emphasis added). Frederick believed that the reference to the “Private road” was intended to refer to the County road. He noted that, if the substitution he suggested was made, the western boundary of Parcel A would align with the Existing Fence line, forming the basis of the Nowaks’ claim to the Disputed Land. Stated otherwise, Frederick’s thesis was that the Existing Fence line intersects the north boundary at a point 340 feet west of the west side of the
Judge Dwyer found the Nowaks’ evidence persuasive. He concluded that the Disputed Land belongs to the Respondents and dismissed the Petitioners’ trespass claim as a consequence. Judge Dwyer determined, by clear and convincing evidence, that “the fence line that exists now is the monument that was referrеd to in the deed to Alice Wolfe [sic].” The trial judge concluded further that there was no other fence visible, other than the fence referred to in the Frederick survey. He was not persuaded that there ever was a different, previously existing fence as maintained by the Zenith Survey. Judge Dwyer noted that there is a depression along the existing fence line, but no such depression farther to the west where the Zenith Survey suggested a fence had existed. Finally, Judge Dwyer did not find it reasonable for the Disputed Land to jut out from the Webbs’ Parcel B and C property lines, where no comparable extension existed for the properties sharing a similar western border.
The Webbs appealed. Finding that the decision of the trial court was not “clearly erroneous,” a panel of the Court of Special Appeals affirmed in an unreported opinion. The intermediate appellate court noted the importance of “giving due regard to the opportunity of the trial court to judge the credibility of the witnesses.” We granted the Webbs’ petition for writ of certiorari on 21 December 2012.
ANALYSIS
I. The appropriate standard of appellate review.
The Court of Special Appeals applied the “clearly erroneous” standard in its review of the judgment of the trial
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 judge to judge the credibility of the witnesses.
“The clearly erroneous standard for appellate review in [Maryland Rule 8-131] section (c) ... [, however,] does not apply to a trial court’s determinations of legal questions or conclusions of law based on findings of fact.” Heat & Power Corp. v. Air Prods. & Chems., Inc.,
We agree with Respondents’ contention that the “clearly erroneous” standard is the correct standard of appellate review for this case. In Union United Methodist Church, Inc. v. Burton,
In Ski Roundtop, Inc. v. Wagerman,
The question before Judge Dwyer, therefore, was one of fact in resolving a boundary dispute. Indeed, the determination of the boundary line in this case (whether along the Existing Fence line as asserted by the Nowaks or some distance west of the Existing Fence as asserted by the Webbs) is a fact-intensive query based on testimonial and/or demonstrative evidence. Evеn counsel for the Webbs stated at trial that he “recogniz[ed] that there are issues of fact here____” As the Nowaks pointed out, “[the] inquiry, by its very nature, must involve comparing the Wolf deed to conditions in the field — e.g., the location and condition of the [Existing Fence], the location of the Private road and County road, the location of other monuments ... [the] topography of the land ... and even the location of surveyors’ pins.... ” Accordingly, we would consider without deference to the lower court’s decision regarding the legal interpretation of a deed only after the proper location of the disputed boundary line has been established by an adequate factual record. See, e.g., White v. Pines
II. Was the trial court’s judgment that the Disputed Land belongs to the Nowaks clearly erroneous?
“If any competent material evidence exists in support of the trial court’s factual findings, those findings cannot be held to be clearly erroneous.” Figgins v. Cochrane,
At trial, Frederick offered expert testimony in support of his opinion that the correct western boundary line of the Webbs’ property, as described in the Wolf deed, runs along the Existing Fence line that he identified in the field. Stotler, Frederick’s associate, testified consistently with Frederick’s view. Judge Dwyer believed that this testimony “was very compelling on the issue that is the crux of this.” In his opinion, Judge Dwyer held that, based on their testimony, he was “reasonably certain ... that the fence line that exists now is a monument that was referred to in the deed to Alice Wolfe [sic]. There’s no other ... fence visible оr evidence of a fence having been visible further back where the Zenith [S]urvey would have put it.” Judge Dwyer noted also that there is a depression along the Existing Fence line, but no evidence of any such depression further back at the location where the Webbs contended the fence line was according to the Zenith Survey. Finally, he did not believe that it was reasonable for the Disputed Land to jut out from the other lots comprising the Webbs’ property, where there was no companionable
Although Miller’s heirs cannot be considered rightly the original “surveyors” of the Disputed Land, they were in the best position unquestionably to ensure that the deed by which they conveyed to Alice Wolf was incontrovertible. In pursuit of that goal, they left much to the imagination. Compounding the problem, there is in the record no known survey or deed senior to the Wolf deed to illuminate the intent of Miller’s heirs regarding the western boundary line of the Disputed Land. The dearth of any hard evidence of a fence monument farther west impairs Petitioners’ contentions. The Existing Fence, plowing troughs neаr this fence, and inferential evidence of a boundary line in common with Parcels B and C, on the other hand, were found compelling by the Court of Special Appeals in reaching its decision that the trial court’s judgment was not “clearly erroneous.”
Frederick testified that there is evidence of old fence posts along the Existing Fence line, indicating that the fixture was both well-established and repaired extensively over time. Stotler, Frederick’s associate, testified that he identified a tree that had grown through and around a portion of the Existing Fence. He toоk a core sample of the tree and counted a range of 68 to 72 rings at different cross-sections. According to Stotler, this would date effectively the tree, and the fence within it, back to at least 1940 — just 12 years after the Wolf deed was recorded. Furthermore, Stotler concluded that,
Moreover, the Existing Fence that the Nowaks identified as the fence they believe is the same fence described in the Wolf deed matches three descriptions found in either the Wolf deed or a subsequent survey: 1) there is a boundary line of 100 feet in length that begins along a fence; 2) a fence that begins at a point exactly 105 feet from the northwest corner of the property of Elliot C. Lоng; 3) a survey completed in 1970 uses the Existing Fence as the border; and 4) all of the other properties to the north of the Disputed Land use the Existing Fence line as a western boundary line. “[U]nder the clearly erroneous standard, this Court does not sit as a second trial court, reviewing all the facts to determine whether an appellant has proven his case.” L.W. Wolfe Enterprises, Inc. v. Maryland Nat’l Golf, L.P.,
III. Do the canons of deed interpretation compel a different result?
We must determine now whether the canons of deed construction compel us to reverse the decision of the Circuit Court and Court of Special Appeals — that is to say, whether Judge Dwyer erred in interpreting the Wolf deed, based on
In Franklin Coal Co. v. McMillan,
The call for a bounded tree, standing on a point at the mouth of a creеk, where the tree, and spot where it stood, are lost, and are both incapable of ascertainment with a reasonable degree of certainty, ascertains with less certain*682 ty than the course and distance, the termination of the line, and therefore, cannot control them; certainty being the controlling object in all locations.
Id. at 608-09,
Petitioners argue here that, because the 1928 or earlier fence as located in the description in the Wolf deed is a “lost monument,” its status as a monument is terminated, and another object of a similar nature in a dissimilar location (the Existing Fence) may not be substituted in its place. They contend further that there exists today no indicia of a fence matching the description of the one described in the Wolf deed. Consequently, the original monument in the Wolf deed is lost and should be considered no longer a monument. The import of this is that the remaining associated course and distance prevail.
The location of a monument called for in a deed must be proven, however, with reasonable certainty. See Budd,
“Where the assumption of mistake in a single description harmonizes all the rest of the grant the court will make that assumption.” Kelso v. Steiger,
Given the choice between a leap of faith that an asserted lost monument once existed, in the absence of any additional supporting evidence or testimony, and affirming the lower courts which posited their decisions on firmer factual grounds, we choose the latter. To argue that a lost monument should be considered no monument at all, for the purposes of turning to default principles of deed interpretation, assumes too much on this record. Judge Dwyer was not clearly erroneous in his factual determination as to the correct boundary line, and no principle of deed interpretation requires otherwise.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. PETITIONER TO PAY COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS.
John L. Webb, Sr., et ux. v. G. Philip Nowak, et ux., No. 83. September Term, 2012
Notes
. The Webbs' properties are known commonly and designated as 17414 and 17416 Millers Sawmill Road. The three contiguous parcels are oriented north to south, run parallel to a private road, and are depicted as Parcels A, B, and C on Appendix A (based on tax map excerpt) to this opinion.
. The Nowaks' property is known commonly and designated as 17550 Millers Sawmill Road.
. At the time the Nowaks retained Frederick, they were unaware of a 2000 survey commissioned by the Webbs regarding the Webbs' properties.
. The private lane is referred to as a "private road’’ in the Wolf deed.
. In 1965, this parcel was subdivided to establish an additional lot abutting the private lane. The subdivision resulted in the current "panhandle” shape of Parcel A. See Appendix A.
. Demonstrative supporting evidence was admitted at trial in the form of photographs of fence remnants and a boring from a tree which had grown around a fence post.
. Section 14-111, in relevant part, provides as follows: "(c) Boundary lines. — If there is a dispute over any boundary line or if the bounds mentioned in a document are lost, on petition of any party in interest, the circuit court of the county where the property lies may establish the boundary lines or the location of the missing bounds. The court may appoint engineers, surveyors, or other experts to assist the court in its determination....”