Feldstein v. Segall

In Feldstein v. Segall, 198 Md. 285, 81 A.2d 610 (1991), Feldstein filed suit against Segall in the Circuit Court for Baltimore City to establish the widening by prescription to twenty-three feet of a ten foot right of way granted by deed. The circuit court allowed Feldstein's claim to a twenty-three foot right of way as to the southern portion of the claimed easement by prescription, and disallowed the claim as to the northern portion. The circuit court entered an order enjoining Segall from obstructing the southern portion of the expanded twenty-three foot right of way and the northern portion of the ten foot express right of way, and the parties filed cross-appeals. 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 change to adverse use." Feldstein, 198 Md. at 295. The Court held that Feldstein's use of the servient tenement was with permission of a prior owner of Segall's property, and was so miscellaneous and promiscuous that it could not be called either adverse or exclusive. In holding that Feldstein did not establish a widened easement by prescription, the Court concluded that to "acquire title by adverse possession to one's neighbor's property the evidence must show something more than bad manners and unneighborly conduct." Id. at 296. In Feldstein v. Segall, the Millers, in 1918 purchased from the trustee of Henry Lammers's estate two parcels identified as 3904 and 3906 Eastern Avenue, which were burdened with a ten foot wide easement. That same year, the Habersacks purchased from the trustee two parcels identified as 3908 and 3910 Eastern Avenue, which were benefitted by the easement. The Habersacks leased 3910 Eastern Avenue to the Crouchers. With permission of the Millers, the Habersacks and the Crouchers used more than the ten foot easement area. The Millers, in 1944, conveyed 3904 and 3906 Eastern Avenue to the Segalls, and, in 1946, the Habersacks conveyed 3908 and 3910 Eastern Avenue to the Feldsteins. The Feldsteins claimed a prescriptive easement based on the Habsersacks' and the Crouchers' use of land outside of the designated easement, and argued "that in determining whether or not they have established a widened right of way by prescription, their own use since 1946 may be tacked to the use by their predecessors in title, Habersack and Croucher . . . ." 198 Md. at 294. The Court stated, we do not find it necessary to pass upon this contention. If Habersack and Croucher, at the time of their deed to plaintiffs, had by prescription acquired a consummate right of way, their deed, and the appurtenance clause in it, is sufficient to convey such a right of way. If at the time of their deed, they had not acquired a prescriptive right of way, tacking plaintiffs' use from January, 1946 to September, 1947 would not establish such a right of way. If the evidence does not show adverse, exclusive and continuous use for twenty years before January, 1946, then there is no evidence to show such use for twenty years before September, 1947. Id. at 294-95. The Court held that the Habersacks and the Crouchers-and thus the Feldsteins-had not acquired a prescriptive easement because the original use of the expanded area was permissive, and thus the subsequent use by the Feldsteins was presumed to be permissive as well.