Turnbull, H. Rutherford, III

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Maryland Law ReviewVolume 21 | Issue 2 Article 7Partition of Land by Grantee of Easement -Baltimore G. & E. Co. v. BowersH. Rutherford Turnbull IIIFollow this and additional works at: http://digitalcommons.law.umaryland.edu/mlrPart of the Property Law and Real Estate CommonsThis Casenotes and Comments is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has beenaccepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, pleasecontact smccarty@law.umaryland.edu.Recommended CitationH. R. Turnbull III, Partition of Land by Grantee of Easement - Baltimore G. & E. Co. v. Bowers, 21 Md. L. Rev. 146 (1961)Available at: http://digitalcommons.law.umaryland.edu/mlr/vol21/iss2/7MARYLAND LAW REVIEWPartition Of Land By Grantee Of EasementBaltimore G. & E. Co. v. Bowers'Plaintiff is the grantee of an easement for an electrictransmission line conveyed by one of two tenants incommon. Defendants are the heirs and successors in titleof the two original tenants in common. These tenants incommon held the fee between themselves by applicationof the rule in Shelley's Case, subject to a life estate in thewhole in the survivor. At the time of the grant of theeasement, in 1924, one tenant in common had died, and thesurvivor held the entire possessory interest by reason ofthe life estate in the whole. The survivor conveyed theeasement without the joinder of the heirs of the deceasedtenant in common. Because of this failure, only the heirsof the granting tenant in common, and not the heirs of thedeceased tenant in common, had been held bound by thegrant as to an undivided one-half interest in the fee.2In resisting an ejectment suit filed by the heirs of thenon-assenting tenant in common, the plaintiff sought anorder requiring the heirs of the granting cotenant to joinas party-plaintiffs in the plaintiff's bill for partition. TheCourt of Appeals held that the grantee of this easementfrom less than all of the cotenants had a right in equity torequire the grantor or her heirs to seek partition againstthe non-assenting cotenant's heirs.3 In reaching this result,the Court did not have to consider the question of prescrip-tion since prescription, did not begin to run, against theremaindermen, heirs of the non-assenting tenant in com-mon, until these remaindermen were vested with posses-sion. Under the deed, vesting of the right to possessioncould not occur until the death of the survivor in 1943; and.prescription could not have been completed before 1963.The instant suit raises the issue of how the plaintiffcan preserve and protect its easement so as to receive thefull benefit of its grant and protect itself against the heirs1221 Md. 337, 157 A. 2d 610 (1960).IBurnham v. Gas & Electric Co., 217 Md. 507, 144 A. 2d 80 (1958), noted19 Md. L. Rev. 43 (1959). There, by an application of the rule in Shelley'sCase, the Court held that the grant of the easement operated to bind theheirs of the grantor as to an undivided one-half interest in the tract ofland as tenants in common with the heirs of the non-assenting tenant incommon, but did not bind the latter. Cf. Williams v. Armiger, 129 Md. 222,98 A. 542 (1916).8 Supra, n. 1.[VOL. XXIBALTO. G. & E. CO. v. BOWERSof the non-assenting tenant in common, who sued to ejectthe plaintiff.4The general rule5 appears to be that where the validityof the easement is in dispute, the party claiming the ease-ment is a proper and even a necessary party to the suit ifthe conveyance by which the easement was granted is notabsolutely void. Previous to the instant suit, the heirs ofthe non-assenting grantor had challenged the validity ofthe easement by an ejectment suit, and it was held in theprevious litigation between the parties that the convey-ance was valid only as to the grantor -and her heirs.6The holding in the instant case that the grantee of theeasement has a right to require the grantor or her heirs toseek partition against the non-assenting cotenant's heirsis supported by Mee v. BenedictT where the Michigancourt held that although the grantee had no property rightin himself to support a partition suit, he did have a "rightin equity to require his grantor to sue for a partition of theland," saying, inter alia:".. . the only means of making that conveyance ef-fectual to carry into effect the intent of the partieswas for said owners of timber to ask and obtain parti-tion of the lands. This they had the right, and it wastheir duty, to do, and equity would require and compelaction on their part to that end. * * *)"We do not depart from the doctrine that such con-veyance is void as against the cotenant, but it is voidonly in so far as it affects the cotenant's rights. * * *It is void so far as the cotenant's interest shall not beinjuriously affected by the conveyance; but it is notvoid as against the grantor, and we think it is compe-tent, under the general equity powers of the court, tocompel the grantor of a special interest to take suchsteps as to make his conveyance effectual.""Likewise, in Charleston C. & C. R. Co. v. Leech,9 the plain-tiff, grantee of an easement from a cotenant owning a one-third undivided interest in a tract of land, was held to beentitled to an order requiring partition as upon an appli-'Supra, n. 2.5 68 C.J.S. 118, Partition, § 75.6 Supra, n. 2.'98 Mich. 260, 57 N.W. 175 (1893).8 Id., 175-176.9 33 S.C. 175, 11 S.E. 631 (1890).1961]MARYLAND LAW REVIEWcation by the grantor, and, after the grantor's death, bythe successors in title.There is authority in other jurisdictions" supportingthis view that the grantor can be compelled in equity to"take such steps as having the common property parti-tioned in order to make his conveyance effectual."" Inthe Fourth Circuit,'2 the grantee of an easement from anowner of a two-thirds interest in land was held entitled"to have the land partitioned" so as to bind the grantorand his heirs by allotting to them the portion of the landon which the burden lies. Other cases cited by the Mary-land Court of Appeals in the instant case are to the sameor similar effect.' 3These cases rest on the Obvious proposition that aneasement would be worthless without a partition for itwould be ineffective against a tenant in common who didnot assent to the grant by his cotenant. 4 Under the ruleadopted in the instant case equity vests a right in thegrantee to effectuate his grant by bringing suit throughhis grantor against a non-assenting tenant in common fora partition.Inasmuch as the grantor himself could seek partitionfrom his cotenant, 5 it is apparent that a grantee of hisentire estate derives this right." The grantee stands in thegrantor's shoes, but exercises only a derivative power.This raises the question as to whether a grantee of a par-10Harrell v. Mason, 170 Ala. 282, 54 So. 105 (1911); Pellow v. ArcticIron Co., 164 Mich. 87, 128 N.W. 918 (1910); Cook v. International &G.N.R. Co., 3 Tex. Civ. App. 125, 22 S.W. 1012 (1893); 75 A.L.R. 1456(1931).n Saulsberry v. Saulsberry, 121 F. 2d 318 (6th Cir. 1941).'2Burdine v. Southern Public Utilities Co., 11 F. 2d 29 (4th Cir. 1926).13 Whitton v. Whitton, 38 N.H. 127 (1859) ; Jeter v. Knight, 81 S.C. 265,62 S.E. 259 (1908) ; Hitt v. Caney Fork Gulf Coal Co., 124 Tenn. 84, 139S.W. 693 (1911) ; Simpson-Feel Oil Co. v. Stanolind Oil & Gas Co., 136 Tex.158, 125 S.W. 2d 263 (1939) ; Thomas v. Southern Settlement & Develop.Co., 132 Tex. 413, 123 S.W. 2d 290 (1939) ; Jones v. Berg, 105 Wash. 69,177 Pac. 712 (1919)."I Susquehanna Co. v. St. Clair, 113 Md. 667, 672, 77 A. 2d 119, 121 (1910),states the rule that '"one tenant in common has no right to alter or changethe property to the injury of the other without his assent." See alsoDugan v. Baltimore, 70 Md. 1, 16 A. 501 (1889). The authorities appearto be uniform in holding that a cotenant cannot by himself grant aneasement that will bind his cotenants. 2 AMERICAN LAW OF PROPERTY(1952), § 6.12, 51; 2 TIFFANY, RRAi PROPERTY (3rd ed. 1939), § 456; 86C.J.S. 517, Tenancy in Common, § 111.152 MD. CODE (1957) Art. 16, § 154; Tolson v. Bryan, 130 Md. 338, 344,100 A. 366 (1917) ; Shipley v. Tome Institute, 99 Md. 520, 58 A. 200 (1904).See supra, n. 10.10Harrell v. Mason, 170 Ala. 282, 54 So. 105, 106 (1911) ("[Grantee] hasthe right to get the benefit of what he bought."). See also Cook v. Boehl,188 Md. 581, 53 A. 2d 573 (1947).[VOL. XXIBALTO. G. & E. CO. v. BOWERStial interest can exercise this power in his own name or inthe name of the grantor. The Court of Appeals did notanswer this question; it refused to decide whether agrantee of an easement from one cotenant could be con-sidered a concurrent owner, but reached the same resultby upholding his right to force his grantor to partition theland. Equity thereby has safeguarded the easement if as-sent to a partitioning is not forthcoming from a non-assenting cotenant. If the grantee can not do directly inhis own name what is necessary to protect his interest, hewill be entitled to do it indirectly through his grantor.The rules governing partition are simple. Where one co-tenant conveys in fee simple his interest in an undividedshare of a definite parcel of property, the grantee thereof isby right entitled to seek partition, and will be protected inrespect to partition proceedings, in cases where the rightsof the other cotenants are not prejudiced.'7 The rule ap-plies independent of any statute" and is quoted in theinstant case with the statement that the "right of parti-tion in kind existed and continues to exist independentof statute" and, at common law, is "a matter of right,except where .. . inconvenience or difficulty would notformerly prevail to prevent it."'" On the contrary, the rulethat persons having interests in the property which do notmake them cotenants cannot maintain an action of parti-tion2" apparently requires that a plaintiff seeking parti-tion have a present possessory interest, legal or equitable,in the land. Lacking such an interest, the plaintiff will be" Highland Park Mfg. Co. v. Steele, 235 F. 465, 470 (4th Cir. 1916);Finley v. Dubach, 105 Kan. 664, 185 P. 886 (1919) ; Pellow v. Artic IronCo., 164 Mich. 87, 128 N.W. 918 (1910) ; Lasater v. Ramirez, 212 S.W. 935(Tex. 1919) ; Boggess v. Meredity, 16 W. Va. 1, 28-29 (1879) ; 2 AMERICANLAW OF PRoPERTY (1952)) §§ 6.21, 6.22; 75 A.L.R. 1456 et 8eq. (1931).1375 A.L.R. 1456 (1931); 68 C.J.S. 33-35, Partition, §§ 21, 22; 40 Am. Jur.88-96. Partition, §§ 106-111; 2 TIFFANY, REAL PROPERTY (3rd ed. 1939),§§ 473-476; 4 THOMPSON, RPAT PROPERrY (3rd ed. 1939), § 1984; WLKER,LAW OF PARTITION (2nd ed. 1882), 4.19 Baltimore G. & E. Co. v. Bowers, 221 Md. 337, 343, 157 A. 2d 610 (1959).At common law, only a coparcener had a right to partition. Later, by31 HEN. 8, c. 1 (1539), joint tenants and tenants in common were grantedthe right in their own name. This statute was extended by 32 HEN. 8, c. 32(1540), to all tenants for life or a term of years. In Maryland, MD. LAWs1785, Ch. 72, merely declared the common law, as did MD. LAws 1831,Ch. 311, and other legislation culminating in 2 MD. CODE (1957), Art. 16,§ 154. In Hardy v. Leager, 212 Md. 565, 130 A. 2d 737 (1957), the Courtheld that an absolute right of partition exists independent of the statute.The instant case, moreover, merely amplifies in whom the right exists andthe procedure for asserting the right. lit does not, however, decide whetherthe plaintiff is a concurrent owner entitled by statute to partition.0 Supra, ns. 18, 19. See also 2 AmEmIcAN LAW OF PROPERTY (1952), § 6.22,100.1961]MARYLAND LAW REVIEWdenied the right to sue.21 Thus, it is manifest that a co-tenant of a fee simple interest or his grantee may sue forpartition,22 and that a cotenant of a life estate or estate foryears may also sue; but partition, if granted, would notaffect the remaindermen.23Although it is not entirely clear from the authorities,a contrary rule has prevailed where a cotenant grantsto a third person the timber rights of his moiety. Insuch a case, the grant cannot, as against the cotenants ofthe grantor, create a cotenancy in the timber distinct fromthe land, so as to enable the grantee to sue for partitionof the timber but not of the land. "Separate ownership oftimber or a stratum of minerals is not a cotenancy andtherefore the owner cannot bring a partition suit."25There are two important considerations which theCourt leaves unanswered in the instant case. First, isthe plaintiff entitled to partition in his own right or musthe compel his grantors to bring a partition suit? Second,if partition in kind is not feasible, and a sale is required,how should the sale be made and the proceeds divided?The Court found it was not required to decide whetherthe plaintiff could sue for partition in his own name undera Maryland statute giving an equity court the right to:".... decree partition of any lands . . .or any right,interest or estate therein . . .on the bill or petitionof any joint tenant, tenant in common, or any parcener1126or any concurrent owner....The question of whether the grantee of an easementhas a right to seek partition by suing in his own name wasanswered in an Alabama case similar to the present suit.'There, plaintiff was a grantee of timber rights from onecotenant, and was held entitled to file a bill for partition,not as a cotenant, but through equity's power to enforcehis right to benefit from what he had purchased. TheCourt said, inter alia:"... there is an old maxim that equity affords a remedywherever there is a right which cannot be enforced21 2 TIFFANY, REAL PROPERTY (3rd ed. 1939), § 475, 476.2Cook v. Boehl, 188 Md. 581, 53 A. 2d 555 (1947) ; Dugan v. Baltimore,70 Md. 1, 16 A. 501 (1889) ; Gittings v. Worthington, 67 Md. 139, 9 A. 228(1887) ; Thruston v. Minke, 32 Md. 571 (1870).Supra, n. 16. 40 Am. Jur. 92, Partition, §§ 109, 110.40 Am. Jur. 88, Partition, § 106.212 AMERICAN LAW OF PROPERTY (1952), § 6.22, 100.2"2 MD. CODE (1957) Art. 16, § 154.Harrell v. Mason, 170 Ala. 282, 54 So. 105 (1911).[VOL. XXIBALTO. G. & E. CO. v. BOWERSin a court of law. The complainant having boughtthe undivided interest in the timber cannot cut andremove it without becoming liable to the other ownersof the lands; yet he has the right to get the benefitof what he has bought. * * * He nevertheless has theright to the timber on such part of the land as may beset apart to his grantor, and for the maintenance ofthis right must be allowed to prosecute a suit againstthe grantor and the other cotenants ..... ,,21A denial of partition in kind, however, would notleave the plaintiff without protection of his easement. Asale and division of the proceeds is permissible where theevidence affirmatively demonstrates that the property isnot divisible in kind without loss or damage to the parties.29The rationale for this rule lies in the fact that the commonlaw right to partition in kind produced many hardshipswhere partition destroyed the value of the land or wasimpossible because of the location of the land itself. Toprevent these hardships, many states, including Maryland,enacted legislation providing for a judicial sale of theland with a division of the proceeds among the variousowners.3 0 "The proceeds of the sale take the place of theland, and the respective rights of the cotenants to themoney are in proportion to the undivided interest ofeach in the land."13 ' To this rule may be added two corol-laries, that the person seeking a sale has the burden ofproof that the land is not partionable without injury to theparties, and that the criteria for granting or denying asale is "whether the value of the share of each [co-owner]in case of partition would be materially less than his shareof the money equivalent that could probably be obtainedfor the whole. '3 2 The early Maryland case of Earle v.Turton3" clearly states the rule which applies today:"Or upon proof that the land could not be dividedwithout loss or injury to the parties, [the Court] couldhave decreed a sale. * * * According to our constructionof the 99th section [now § 154] of the 16th Article, tojustify the court in passing a decree of sale in suchId., 106106.Earle v. Turton, 26 Md. 23 (1866).Supra, n. 26.40 Am. Jur. 73, Partition, § 83.'Id., 74.26i Md. 23 (1866).19611MARYLAND LAW REVIEWcase, it ought to be satisfied by proof that the landcannot be divided without loss or injury to the partiesinterested.' 3 4As a result of this decision, the trial court has beenordered to appoint Commissioners to determine if theland in controversy is partitionable in kind. If it is andpartition is decreed, the defendants will become separateowners, and the heirs of the plaintiff's grantor will beassigned that portion of the tract covered by plaintiff'seasement, thereby giving plaintiff full protection in theexercise of its rights.If, on the other hand, the land is not partitionable inkind, a judicial sale can be decreed, whereby the entiretract can be sold subject to plaintiff's easement and theproceeds apportioned among the defendants, after de-ducting from the share of the heirs of the plaintiff's grantorthe depreciation in the sale price caused by plaintiff's ease-ment. Under such a sale, plaintiff would receive fullprotection in the exercise of its easement as against thepurchaser.H. RuTxmwoRD Tuii uLL IIIM Id., 34.[VOL. XXI

Partition of Land by Grantee of Easement - Baltimore G. & E. Co. v. Bowers

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Partition of Land by Grantee of Easement - Baltimore G. & E. Co. v. Bowers

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