Breeding v. Koste

Ottis E. Breeding, Jr., et al. v. Christian Nicholas Koste, No. 66, September Term, 2014
“WOODLANDS EXCEPTION” – ADVERSE POSSESSION – Court of Appeals held
that: (I) “woodlands exception” applies to adverse possession where land at issue is
unimproved or otherwise in general state of nature; and (II) “woodlands exception” does
not apply under this case’s circumstances because land at issue is neither unimproved nor
otherwise in general state of nature.
Circuit Court for Caroline County
Case No. 05-C-10-014160
Argued: April 7, 2015
IN THE COURT OF APPEALS
OF MARYLAND
No. 66
September Term, 2014
______________________________________
OTTIS E. BREEDING, JR., ET AL.
v.
CHRISTIAN NICHOLAS KOSTE
______________________________________
Barbera, C.J.
Harrell
Battaglia
Greene
Adkins
McDonald
Watts,
JJ.
______________________________________
Opinion by Watts, J.
______________________________________
Filed: May 22, 2015
To establish a prescriptive easement,1 a claimant must show adverse, exclusive, and
uninterrupted use of another’s real property for twenty years. See Banks v. Pusey, 393 Md.
688, 699, 904 A.2d 448, 454 (2006). Where an easement is claimed on land that is
unimproved or otherwise in a general state of nature, there is a legal presumption that the
claimant’s use is by the owner’s permission. See Clickner v. Magothy River Ass’n Inc.,
424 Md. 253, 281, 35 A.3d 464, 482 (2012). This presumption, first referenced by this
Court in 1865, has been termed the “woodlands exception,” and, to date, has been applied
only in cases involving easements. Id. at 281-82, 35 A.3d at 482 (citation omitted).
Here, we decide: (I) whether the “woodlands exception” applies to adverse
possession; and, if so, (II) whether the “woodlands exception” applies under the
circumstances of this case.
We hold that: (I) the “woodlands exception” applies to adverse possession where
the land at issue is unimproved or otherwise in a general state of nature; and (II) the
“woodlands exception” does not apply under this case’s circumstances because the land at
issue is neither unimproved nor otherwise in a general state of nature.
BACKGROUND
Due to the claim’s nature, a detailed recitation of the case’s procedural and land
transfer history is necessary.
1
A prescriptive easement “is a nonpossessory interest in the real property of another
. . . which arise[s] when a party makes an adverse, exclusive, and uninterrupted use of
another’s real property for twenty years.” Banks v. Pusey, 393 Md. 688, 698, 904 A.2d
448, 454 (2006) (citations and internal quotation marks omitted).
On September 13, 2010, Christian Nicholas Koste (“Koste”), Respondent, filed in
the Circuit Court for Caroline County (“the circuit court”) a “Complaint for Title by
Adverse Possession and Bill to Quiet Title” against adjoining landowners, Ottis Breeding,
Jr., James “Rick” Breeding, and Terry Breeding (together, “the Breedings”), Petitioners,
concerning the ownership of a piece of land known as the Landing on Watts Creek (“the
Landing”). The Landing is a triangular parcel of land, more than 10,000 square feet in
area, that abuts the southern side of a small body of water known as Watts Creek. The
Landing is located between the northeast corner of Koste’s property (“the Koste property”)
and the northwest corner of the Breedings’ property (“the Breeding property”). The Koste
property and the Breeding property are adjoining tracts of land that are bound to the north
by Watts Creek. The Koste property is mostly wooded; and Koste resides in a home that
overlooks the Landing. The Breeding property is used for surface mining.2
On October 22, 2010, the Breedings filed an answer to the complaint. On November
22, 2010, the Breedings filed a “Counter Complaint to Quiet Title and for Relief from
Trespass,” alleging that they held title to the Landing and that Koste’s use of the Landing
constituted trespass.3
Beginning on May 14, 2012, the circuit court conducted a five-day bench trial,
2
Aerial photographs show that the Breeding property, like the Koste property, is
mostly wooded.
3
Koste used the Landing as a boat landing and mooring site, as a waterfowl hunting
blind site, and as a general recreational and picnic area.
-2-
which included the circuit court’s viewing the Landing.4 On November 19, 2012, the
circuit court issued a Memorandum Opinion and Order, ruling that Koste had established
a claim to the Landing by adverse possession.
As to the Koste property, the circuit court made the following findings of fact, which
we summarize. In December 1944, Koste’s grandparents purchased the Koste property,
which consisted of 125 acres of land, and moved into a home on the western end of the
Koste property. Shortly afterward, however, Koste’s grandparents built a new home in the
middle of the Koste property, close to Watts Creek. By 1950, Koste’s grandparents had
moved into the new home. In 1962, Koste’s grandparents sold approximately thirteen acres
of land, including the land that contained their old home. From 1975 to 1985, from age
five to fifteen, Koste lived with his grandparents at the Koste property. From 1985 to 1988,
Koste regularly visited his grandparents at the Koste property; and after graduating from
high school in 1988, Koste continued to visit, though not as frequently. In Koste’s
grandfather’s last will and testament, executed in February 1989, Koste’s grandfather
provided for conveyance of his interest in approximately forty acres of the Koste property
to Koste and another grandson. In 1999, Koste’s grandfather died. In 2004, a portion of
the Koste property was conveyed to Koste. On October 15, 2004, Koste applied for a
building permit to construct a home. On October 14, 2008, Koste received an occupancy
permit for his newly constructed home.
4
Under Maryland Rule 2-515(a), “[t]he court, on motion of any party or on its own
initiative, may order that the trier of fact view any property that is involved in the litigation
or any place where a material fact in issue occurred.”
-3-
As to the Breeding property, the circuit court made the following findings of fact,
which we summarize. When Koste’s grandparents purchased the Koste property in 1944,
Beatrice Butler owned the Breeding property. In June 1946, Butler conveyed the Breeding
property to Elizabeth MacDonald, who, several months later, conveyed the Breeding
property to Leander and Madeline Jeffrey. In 1952, the Jeffreys conveyed the Breeding
property to Madeline and Charles Birch. In 1953, the Birches conveyed the Breeding
property to Chauncey and Marion Downes. In 1971, the Downeses conveyed the Breeding
property to Mathias and Regina Mueller, who created a gravel pit on the Breeding property.
On March 10, 1987, the Muellers conveyed the Breeding property to the Breedings and
their father as joint tenants; the Breedings and their father continued the use of the Breeding
property as a gravel pit. The Breedings’ father died, and, by deed dated December 28,
2006, title to the Breeding property changed from the Breedings’ holding the Breeding
property as joint tenants to the Breedings’ holding the Breeding property as tenants in
common.
In the Memorandum Opinion and Order, the circuit court also made the following
detailed findings of fact concerning the Landing:5
[] The Landing’s actual size or dimension is not definit[]e[,] as there
is no known survey of the Landing itself. As a result of th[e] present
litigation, Koste retained the services of Lane Engineering to establish the
common boundary line between the Koste/Breeding property[,] and[,] in a
survey [in] November 2011, an area is depicted as the “land as occupied,”
5
At oral argument, the Breedings’ counsel acknowledged that the circuit court’s
findings of fact were not clearly erroneous and stated that, with the exception of the date
on which Koste installed a floating dock off of the Landing—as to which there was
conflicting testimony from Koste—the record supports everything included in the circuit
court’s findings of fact.
-4-
consisting of .241 acres. This area includes, however, additional land [that
is] not part of the Landing to the east, so one can reasonably infer that the
Landing is less than .241 acres.
[] The Landing[,] as viewed by the Court on May 14th[,] is adequately
depicted in several pictures taken by [the] parties. Save for a few pictures of
the Landing taken by the Downes family in 1963, no other photograph[s]
exist.
[] The Court’s view involved an approach to the Landing from two
different angles. The first approach was from the east through the Breeding
gravel pit operation, traveling on four wheelers, stopping at the top of the
Landing. The second approach by car started at Pealiquor Road, at the
entrance to [the] Koste[] property, walking down the private roadway located
slightly to the west of the common boundary line shared by the parties.
[] Approaching from either direction, one must walk down an incline
to reach the Landing[,] which is essentially level with Watts Creek. A loop
[that] could be characterized as a path or narrow roadway is evident. From
Koste’s home[,] a path slopes down to the Landing.
[] Prior to the construction of [Koste’s] home, the roadway or lane on
the Koste property that accesses his home connected with the head of the
loop on the Landing. Construction of this road was started by [Koste’s
grandfather] in the late 1940s to access the Landing. In order to
accommodate the need for a septic field, that portion of the roadway was
abandoned[,] and the roadway now veers northwest towards Koste’s home.
The old roadway connecting to the loop remains somewhat visible[,]
although nature has clearly reclaimed the area.
[] Several live trees stand in the middle of the loop[,] along with low
lying shrubs, primarily mountain laurel, as well as a few dead trees. Chained
around a beech tree is a boat. Also in the middle of the loop is a pile of
decaying wood, which appears to be building material[,] as opposed to fallen
or cut timber. Standing at the Landing, looking out over [Watts C]reek[,] a
floating dock juts out on its eastern end. To the left or west of the Landing,
the remnants of old pilings are barely visible in [Watts C]reek.
[] Prior to walking down the incline towards the Landing, approaching
from the Breeding property[,] is a metal stake with an aging “No
Trespassing” sign facing the Breeding property. The sign is clearly depicted
on photographs . . . . Additionally[,] as depicted [i]n [] photographs . . ., there
are remnants of another sign, not legible, at the eastern edge of the Landing
-5-
on its east as one approaches from the Breeding property.
[Koste’s grandmother], who at the time of her deposition in July 2011
was 95½ years of age, dates the placement of the signs to shortly after she
and [Koste’s grandfather] purchased the [Koste] property [in 1944]. [Koste’s
grandfather] walked the [Koste] property’s boundaries with Wilbert
Merriken and placed the stakes in their present location. These stakes start
at the Pealiquor Road end of the boundary line and are staggered along the
boundary line. [Koste’s grandmother]’s visit to the [Koste] property prior to
her deposition confirmed her memory of these markers.
(Record references omitted). In its analysis, the circuit court set forth additional findings
of fact concerning the Landing, as well as conclusions of law, including the following:
According to [Koste’s grandmother], the only person whose memory of the
area dates back to the late 1940s, the Landing was visible[,] but not
accessible[,] when she and [Koste’s grandfather] purchased the [Koste]
property. . . . She also remembered that construction of the road system
presently visible, including the road bordering the common boundary with
the Breedings, was started as early as 1945, when [Koste’s grandfather]
arranged to use the inmates from the local jail for labor. [Koste’s
grandmother] also recalled that [Koste’s grandfather] cleared the Landing,
creating a loop or turn-around so that boats and a pick-up truck could make
its way down and back. . . .
The testimony of both [Koste’s grandmother and Koste’s father],
concerning the early build out of the Landing road is also corroborated by
the aerial photos of the Koste property submitted by [the Breedings]. . . . Also
of significance to support this Court’s conclusion that the road system was
built as claimed by [Koste] is the testimony of Warren Downes. Shortly after
his family purchased the property when he was a teenager, he recalls [Koste’s
grandfather’s] driving a truck to the Landing and speaking with his father.
This encounter occurred sometime between 1953 and 1958. Similarly[,] in
this same time period, his brother, Charles [Downes], recalled the loop at the
Landing[,] which he used to reach the water in a cart pulled by a donkey.
Regarding the use of the land, [Koste’s father] began to hunt at the
Landing as [young] as [seven] years old. . . . He also recalls that [Koste’s
grandfather] completed construction on a dock at the Landing between 1947
and 1948[,] as well as a duck blind. In that period, [Koste’s grandfather] also
constructed a storage box, [four feet] in height and [two] feet square[,] in the
middle of the loop on the Landing in which he kept an outboard motor. In
-6-
1948 or 1949, [Koste’s grandfather] built a larger lean-to or shed above the
Landing in the area demolished only recently when [Koste] built his house. .
..
The use of the Landing as a recreational area was continuous from the
late 1940s. Duck blinds were erected, succumbed to the elements[,] and were
rebuilt. The dock was repaired similarly. [Koste’s father] remembered [that
Koste’s grandfather] always kept a boat at the Landing[,] and he remembered
building an [eight-]foot boat while a boy[,] which remained at the Landing.
With [Koste’s grandfather], he hunted, fished[,] and swam at the Landing on
a regular basis, driving a ’31 Ford down the road to the loop. . . .
. . . [T]he use of the Landing was continuous and without interruption from
1947 up through the end of 1989. . . . During this approximate[ly] forty[-
]year period, there is no evidence that anyone else used the Landing except
for the Downes[es]. They used the Landing for recreational purposes[,] such
as picnicking, swimming[,] and horseback riding. Other than the testimony
of Warren and Charles [Downes] that their father either built or repaired a
dock, there is no evidence that they maintained the loop or otherwise took
responsibility for the Landing’s upkeep. There is also no evidence that they
asserted ownership of the land such as placing [“]no trespass[”] signs or
notifying [Koste’s grandfather] of his trespass.
***
The evidence is uncontroverted that [Koste’s grandparents] acted in
such a way toward the Landing consistent with the belief that the Landing
was included in the conveyance of property they received by deed in 1944.
Walking through the woods along the eastern edge of the property, from
Pealiquor Road down to [] Watts Creek, [Koste’s grandfather], following the
advice of Wilbert Merriken, an attorney and a land conservationist, erected
metal stakes along the boundary line as he believed it to be, all the way down
to [Watts] Creek. On the posts closest to the water[,] he attached [“]no
trespassing[”] signs facing towards . . . the Breeding property. He not only
cleared the Landing but [also] built a road going straight down to the
Landing. One wonders why he would have gone to the expense and effort to
build a road to the Landing and construct a connecting loop if he did not
believe he had the right to use it.
. . . [Koste’s grandparents’] behavior towards the Landing is consistent with
ownership. In paying the yearly real estate taxes, [Koste’s grandmother]
believed [that] those taxes covered the Landing. [Koste’s grandparents], as
ostensible owners of the Landing, gave permission to others to use the
-7-
Landing throughout [Koste’s grandfather]’s lifetime[,] as did [Koste and his
father]. As late as 1988-89, [Koste’s grandfather] maintained his belief that
he owned the land, expressing his pride in the Landing to Mr. Stuart
McLaughlin[,] who was the State Forrester [when Koste’s grandparents]
entered into [a] conservation agreement.
Except for [an] August 2010 letter[6] . . . , there is no evidence that any
of the previous title owners of the Breeding property gave notice to [Koste’s
grandparents] of their ownership interest, or notified [Koste’s grandparents]
that they were trespassing on the [Breeding] property. Nor was there any
evidence that these owners gave permission to [Koste’s grandparents] for its
use. Finally, save for testimony from Charles and Warren Downes that
[their] family built a dock, there is no evidence at all that anyone other than
[Koste’s grandparents] maintained or improved the road or loop.
(Footnote omitted).
The Breedings appealed, and the Court of Special Appeals affirmed in an unreported
opinion. The Breedings filed a petition for a writ of certiorari, which this Court granted.
See Breeding v. Koste, 440 Md. 114, 99 A.3d 778 (2014).
STANDARD OF REVIEW
Maryland Rule 8-131(c) governs review of a bench trial as follows:
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
witnesses.
In Clickner, 424 Md. at 266-67, 35 A.3d at 472-73, we further explained the standard of
6
In the August 2010 letter to Koste, the Breedings’ counsel alleged that Koste’s
floating dock encroached upon the Breeding property, and that there was a problem
concerning “the ownership of the” Landing because Koste’s “boundary line d[id] not
intersect with the Breeding line as determined by the surveyor.” As to ownership of the
Landing, the Breedings’ counsel suggested that “an agreement should be reached with
respect to ownership of part or all of the” Landing.
-8-
review under Maryland Rule 8-131(c):
[W]e give due regard to the trial court’s role as fact-finder and will not set
aside factual findings unless they are clearly erroneous. The appellate court
must consider evidence produced at the trial in a light most favorable to the
prevailing party and if substantial evidence was presented to support the trial
court’s determination, it is not clearly erroneous and cannot be disturbed.
Questions of law, however, require our non-deferential review. When the
trial court’s decision involves an interpretation and application of Maryland
statutory and case law, our Court must determine whether the lower court’s
conclusions are legally correct. . . . Where a case involves both issues of fact
and questions of law, this Court will apply the appropriate standard to each
issue.
(Citations and internal quotation marks omitted) (ellipsis in original).
DISCUSSION
I.
The Breedings contend that the “woodlands exception,” which applies to cases
involving prescriptive easements, can also apply to cases involving adverse possession.
Koste does not disagree, but contends that the “woodlands exception” does not apply here
because the Landing is neither unimproved nor otherwise in a general state of nature. We
agree with the Breedings that the “woodlands exception” applies to adverse possession
where the land at issue is unimproved or otherwise in a general state of nature. We explain.
Both adverse possession and prescriptive easements are based on adverse use of
another’s real property for twenty years; while a prescriptive easement results in a
nonpossessory interest, adverse possession results in the user obtaining title. “To establish
title by adverse possession, the claimant must show possession of the claimed property for
the statutory period of [twenty] years. . . . Such possession must be actual, open, notorious,
exclusive, hostile, under claim of title or ownership, and continuous or uninterrupted” for
-9-
the twenty-year period. White v. Pines Cmty. Improvement Ass’n, Inc., 403 Md. 13, 36,
939 A.2d 165, 178 (2008) (citations omitted) (ellipsis in original); see also Md. Code Ann.,
Cts. & Jud. Proc. (1973, 2013 Repl. Vol.) § 5-103(a)(1) (a twenty-year statute of limitations
for “an action for recovery of possession of . . . land”). “[T]he burden of proving title by
adverse possession is on the claimant. . . . In evaluating a claim, the pertinent inquiry is
whether the claimant has proved the elements based on the claimant’s objective
manifestation of adverse use, rather than on the claimant’s subjective intent.” Senez v.
Collins, 182 Md. App. 300, 324, 957 A.2d 1057, 1070 (2008) (citations and internal
quotation marks omitted). As to the hostility or adverse use element of adverse possession,
in Hungerford v. Hungerford, 234 Md. 338, 340-41, 199 A.2d 209, 211 (1964), we stated:
The ‘hostility’ essential to acquisition of title by adverse possession
does not necessarily import enmity or ill will, but rather that the claimant’s
possession be unaccompanied by any recognition, express or inferable from
the circumstances, of the real owner’s right to the land. . . . [W]here the
original entry and subsequent occupancy of land was under a contract, or
with the consent or permission of the owner, the possession would not be
hostile or adverse and could not evolve into a subsisting title on which
recovery could be had, unless the record owner had notice that the continuing
possession was under a claim of right, since it is the intent with which
possession is continued that gives it its character as adversary. Moreover,
since an original permissive possession is presumed to continue, there can be
no change to an adversary possession in the absence of affirmative evidence
of that fact.
(Citations omitted).
In contrast to adverse possession, a prescriptive easement does not result in a
claimant obtaining title to real property, but rather results in a claimant obtaining a
nonpossessory interest in real property—generally, a right of way over another’s property.
In Banks, 393 Md. at 699, 904 A.2d at 454, we described prescriptive easements as follows:
- 10 -
In order to establish a[ prescriptive] easement[,] a person must make an
adverse, exclusive, and uninterrupted use of another’s real property for
twenty years. When a person has used a right of way openly, continuously,
and without explanation for twenty years[,] it is fair to presume adverse use.
In such a case, the burden then shifts to the landowner to show that the use
was permissive. The burden, however, will not shift if the use appears to
have been by permission[.]
(Citations, brackets, emphasis, and internal quotation marks omitted). As to the element
of adverse use for prescriptive easements, in Banks, id. at 709-10, 904 A.2d at 461, we
found instructive our discussion of adverse use in the context of adverse possession as set
forth in Hungerford, 234 Md. at 341, 199 A.2d at 211.
The “woodlands exception” has been described in the context of rights of way or
prescriptive easements. Generally speaking, the “woodlands exception” provides that,
“[w]hen an easement is claimed on land that is unimproved or in a general state of nature,
there is a legal presumption that the use is by permission of the owner.” Clickner, 424 Md.
at 281, 35 A.3d at 482. This Court first recognized the “woodlands exception” in an 1865
case—Day v. Allender, 22 Md. 511 (1865). In Day, id. at 525-26, a case involving
dedication of a road to public use, we observed that, in one case on which the claimant
relied, the jury had been instructed “that the mere use of a road over unenclosed woodland
could not confer a right of way, as a neighborhood road or private path, unless the use was
shown to be adverse[.]” (Emphasis in original). In Day, id. at 526-27, we stated:
As the presumption of a right of way arises from the exercise of a privilege
adverse to the right of property, and acquiescence in the exercise of that
privilege, a distinction must therefore be observed between a claim of a way
through enclosed and cultivated land, and of a way over unenclosed land. In
the former case, the mere use is an invasion of property and a trespass; and
acquiescence or submission to the exercise of a privilege under
circumstances which make it actionable, may justify the inference of a legal
- 11 -
right in the person who exercises the privilege.
(Internal quotation marks omitted).
In Wilson v. Waters, 192 Md. 221, 227-28, 64 A.2d 135, 137-38 (1949), a case
involving a prescriptive easement, we again recognized the “woodlands exception” and
stated:
It is true that some courts have ruled that the fact that land, over which
a right of way is claimed, was ‘unenclosed’ raises a presumption that the use
was permissive. By that ruling, however, the courts have occasionally been
misled to establish easements over vacant lots in urban districts, although the
lots had been cleared and cared for. Thus[,] it seems that the more
appropriate term in such cases is ‘unimproved.’
(Citations omitted). In Wilson, id. at 228, 64 A.2d at 138, we concluded that the
“woodlands exception” did not apply to the property at issue, and explained:
[W]e think that, since the lot in question has a depth of only 150 feet, this
case is not exactly like those cases in which the land over which the right of
way is claimed is wild land, woodland, or other land in a general state of
nature. In such cases[,] it may be presumed that use of the land is permissive,
because it is the custom of neighboring owners to travel over such land for
pleasure or convenience, and the owners usually make no objection to their
doing so.
See also Feldstein v. Segall, 198 Md. 285, 295, 81 A.2d 610, 615 (1951) (In a case
involving a prescriptive easement, we relied on Wilson, and stated: “We need not say, as
has been said of unenclosed woodland or other unenclosed or unimproved land, that use of
the [] land, while unenclosed, is presumed to have been permissive or not adverse.”
(Citations omitted)).
In Leekley v. Dewing, 217 Md. 54, 57, 59, 141 A.2d 696, 697, 698 (1958), a case
involving a prescriptive easement, we addressed a landowner’s argument that “use of the
- 12 -
road was permissive and not hostile,” and that, in accordance with Wilson and Feldstein,
“no presumption that the use was adverse arises when the way is over wild or unoccupied
land.” In response to the landowner’s argument, we stated the following concerning the
“woodlands exception”:
This has been said to be because it was the custom of neighbors to travel over
such land for pleasure or convenience[,] and the owners usually made no
objection to their doing so, or because the use in wild, unoccupied territory
would not be apt to be brought to the actual notice of the owner so that he [or
she] could object.
Id. at 59, 141 A.2d at 698. Ultimately, we concluded that the “woodlands exception” did
not apply to the property at issue because it was not “wild or unoccupied territory[,]”
explaining: “The road here involved ran from a main public road and was clearly and
manifestly a regularly traveled way that ran for much of the time to a clearing[,] on which
stood an inhabited dwelling[,] which was visible from the main road.” Id. at 59, 141 A.2d
at 698-99.
In Forrester v. Kiler, 98 Md. App. 481, 483, 487, 633 A.2d 913, 914, 916 (1993), a
case involving a prescriptive easement, the Court of Special Appeals held that the trial
court was correct in applying the “woodlands exception” to determine that the claimant did
not have a prescriptive easement. In holding that the “woodlands exception” applied, the
Court of Special Appeals explained that the right of way “passed through [] wooded,
unenclosed land” and that the lot was “entirely wooded[.]” Id. at 487, 633 A.2d at 916.7
7
In Turner v. Bouchard, 202 Md. App. 428, 447, 32 A.3d 527, 537-38 (2011), when
discussing Forrester’s facts, the Court of Special Appeals noted that “[t]he servient estate
in Forrester was nearly a quarter mile from the nearest county road and consisted of eight
- 13 -
The Court of Special Appeals also observed:
Many of our sister states have recognized that an exception to the
presumption exists when property in controversy consists of unenclosed and
unimproved wild lands or woodlands. Thus, when unenclosed and
unimproved wildlands or woodlands are involved, the presumption is that the
use was permissive, and the burden of proving that the use was adverse or
under a claim of right is upon the one asserting these rights.
. . . [I]n the case of unenclosed woodlands, permission is presumed because,
otherwise, an owner could not allow his [or her] neighbor to pass and repass
over a trail, upon his [or her] open, unenclosed land without danger of having
an adverse title successfully set against him [or her]. Moreover, a landowner
who quietly acquiesces in the use of a path, or road, across his [or her]
uncultivated land, resulting in no injury to him [or her], but in great
convenience to his [or her] neighbor, ought not to have thereby lost his [or
her] rights.
Id. at 485, 633 A.2d at 915 (citations, brackets, and internal quotation marks omitted).
In Turner v. Bouchard, 202 Md. App. 428, 435, 447-48, 32 A.3d 527, 531, 538
(2011), a case involving a prescriptive easement, the Court of Special Appeals held that
the trial court was not clearly erroneous in concluding that the “woodlands exception” did
not apply. In so holding, the Court of Special Appeals explained:
[The landowner] 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 [trial] 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.
acres of unenclosed wooded land. . . . [T]he purported prescriptive easement crossed a
dense forest in a general state of nature[.]”
- 14 -
Id. at 447, 32 A.3d at 538.
Most recently, in Clickner, 424 Md. at 256, 35 A.3d at 466, a case involving a trial
court’s determination that a prescriptive easement existed on behalf of the public to a beach
on Dobbins Island, we held that the trial court erred because “the beach at issue was
unimproved and otherwise in a general state of nature[,]” and, thus, the proper presumption
“was that public use was by permission of the owner.” We explained:
In the instant case, we are presented with the question of whether the
beach on Dobbins Island is property subject to the woodlands exception.
Under this exception, the long history of public use of the beach would be
considered to have been presumptively permissive under the law. . . .
[T]he beach on Dobbins Island is properly characterized as being “in a
general state of nature.” We do not hold that this is the applicable
characterization of every beach, but that the consideration of other factors,
such as the nature of the surrounding area, should enter into the
determination. It is undisputed that the beach at issue is attached to an
uninhabited, uncultivated, and undeveloped island. Indeed, the witnesses
described the island [that] they frequented with adjectives such as
“overgrown,” “uninhabited,” and “unimproved.”
. . . [T]his Court [] has focused not only on whether the land use was shielded
from view, but [also] whether the land itself was “unimproved,” or “in a
general state of nature.”
The visibility of the use is one rationale [that] guided the common-
law development of the woodlands exception. Another rationale, of
particular importance in the instant case, is that owners of unimproved lands
ordinarily suffer no deprivation of their rights of use and enjoyment by
allowing others access to their property.
. . . [T]he public’s recreational use of the dry sand portion of the beach on
Dobbins Island is presumed to have been a product of the permissive
indulgence of its owners. To hold otherwise would galvanize owners into
fencing or otherwise obstructing their beaches in order to avoid the assertion
of public prescriptive rights, feasibly creating a barricade across Maryland’s
shoreline.
- 15 -
Id. at 284-87, 35 A.3d at 483-85 (citations omitted) (emphasis in original). We further
explained that, where the “woodlands exception” applies, thereby giving rise to the
presumption that use was permissive, “as a general rule, permissive use can never ripen
into a prescriptive easement. As such, use that is originally permissive is presumed to
continue, and there must be affirmative evidence of a change to adverse use.” Id. at 288,
35 A.3d at 486 (citations, brackets, and internal quotation marks omitted). Thus, we
determined that, “[b]ecause the public’s use of the privately owned, dry sand portion of the
beach on Dobbins Island was presumptively permissive, [the plaintiffs] had the burden to
show that the use was, in fact, adverse from the outset, or that its character became adverse
at a point in time sufficient to meet the twenty-year prescriptive requirement.” Id. at 289,
35 A.3d at 486 (citations omitted). Because the plaintiffs had not met that burden, the trial
court erred in determining that a public prescriptive easement existed. Id. at 289-90, 35
A.3d at 486-87.
After a thorough review of case law involving adverse possession and prescriptive
easements, we hold that the “woodlands exception,” previously applied only to prescriptive
easements, also applies to adverse possession where the land at issue is unimproved or
otherwise in a general state of nature.8 We reach this conclusion based on the various
8
To be sure, at oral argument, the Breedings’ counsel conceded that the Breedings
did not raise an argument concerning the “woodlands exception” in or before the circuit
court. As such, the issue is technically not preserved for appellate review. See Md. R. 8-
131(a) (“Ordinarily, the appellate court will not decide any other issue unless it plainly
appears by the record to have been raised in or decided by the trial court, but the Court may
decide such an issue if necessary or desirable to guide the trial court or to avoid the expense
and delay of another appeal.”). Nevertheless, we agree with the Breedings’ counsel that
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similarities between adverse possession and prescriptive easements, and the rationale
underlying the application of the “woodlands exception” in cases involving prescriptive
easements. “To establish title by adverse possession, the claimant must show possession
of the claimed property for the statutory period of [twenty] years. . . . Such possession must
be actual, open, notorious, exclusive, hostile, under claim of title or ownership, and
continuous or uninterrupted.” White, 403 Md. at 36, 939 A.2d at 178 (citations omitted)
(ellipsis in original). Similarly, to establish a prescriptive easement, a claimant must show
“adverse, exclusive, and uninterrupted use of another’s real property for twenty years. . . .
[W]hen a person has used a right of way openly, continuously, and without explanation for
twenty years it is fair to presume adverse use.” Banks, 393 Md. at 698-99, 904 A.2d at 454(citations and internal quotation marks omitted). Thus, both adverse possession and
prescriptive easements: (1) concern interests in another’s real property; (2) have a twenty-
year period before ripening into a claim; and (3) require possession or use that is adverse,
the “woodlands exception” is substantially tied to notice to the title owner and that the
Breedings have consistently argued—beginning in the circuit court—that there was no
notice based on the Landing’s nature and characteristics. Thus, as the Honorable Sally D.
Adkins observed at oral argument—and the Breedings’ counsel agreed—the Breedings
argued the “woodlands exception” without referring to it as such. Given the relatedness of
the argument made before the circuit court and the novelty of the issue presented, in the
absence of unfair prejudice to either party, and to promote the orderly administration of
justice, we shall address the merits of the issues. See Jones v. State, 379 Md. 704, 713,
714, 715, 843 A.2d 778, 783, 784 (2004) (Pursuant to Maryland Rule 8-131(a), “an
appellate court has discretion to excuse a waiver or procedural default and to consider an
issue even though it was not properly raised or preserved by a party. . . . [When doing so],
appellate courts should make two determinations . . . . First, the appellate court should
consider whether the exercise of its discretion will work unfair prejudice to either of the
parties. . . . Second, the appellate court should consider whether the exercise of its
discretion will promote the orderly administration of justice.” (Citations omitted)).
- 17 -
exclusive, and uninterrupted. That adverse possession and prescriptive easements are
markedly similar has led this Court to rely on, as instructive, law concerning adverse
possession in a case involving a prescriptive easement. See Banks, 393 Md. at 709-10, 904
A.2d at 461 (In a case involving a prescriptive easement, this Court relied on the discussion
of adverse use and hostility in the context of adverse possession as addressed in
Hungerford, 234 Md. at 341, 199 A.2d at 211.). In short, adverse possession and
prescriptive easements share substantially the same elements, and the case law between the
two is consistent to the point at which we are satisfied that extending the “woodlands
exception” to adverse possession cases is the logical, common sense course of action.
The rationale behind the “woodlands exception” equally applies to adverse
possession. In Wilson, 192 Md. at 228, 64 A.2d at 138, we discussed the rationale behind
the “woodlands exception” as follows: “In such cases [involving wild land, woodland, or
other land in a general state of nature,] it may be presumed that use of the land is
permissive, because it is the custom of neighboring owners to travel over such land for
pleasure or convenience, and the owners usually make no objection to their doing so.”
Later, in Leekley, 217 Md. at 59, 141 A.2d at 698, we explained that the “woodlands
exception” existed not only “because it was the custom of neighbors to travel over such
land for pleasure or convenience[,] and the owners usually made no objection to their doing
so,” but also “because the use in wild, unoccupied territory would not be apt to be brought
to the actual notice of the owner so that he [or she] could object.” And, in Forrester, 98
Md. App. at 485, 633 A.2d at 915, the Court of Special Appeals stated that, pursuant to
application of the “woodlands exception,” permission is presumed “because, otherwise, an
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owner could not allow his [or her] neighbor to pass and repass over a trail, upon his [or
her] open, unenclosed land without danger of having an adverse title successfully set
against him [or her].” (Citations, brackets, and internal quotation marks omitted).
The rationale behind the “woodlands exception” and its presumption of permission,
as it has evolved in cases involving prescriptive easements, is two-fold: (1) owners of land
that is unimproved or otherwise in a general state of nature usually do not object to their
neighbors traveling over such land, for either the neighbor’s convenience or his or her
pleasure, because the owners “ordinarily suffer no deprivation of their rights of use and
enjoyment by allowing others access to their property[,]” Clickner, 424 Md. at 286, 35
A.3d at 484 (citations omitted); and (2) given the nature of woodlands, activities on land
that is unimproved or otherwise in a general state of nature generally are not visible to the
owner such that he or she has notice and can object, see id. at 286, 35 A.3d at 484 (“The
visibility of the use is one rationale which guided the common-law development of the
woodlands exception.” (Citation omitted)); Leekley, 217 Md. at 59, 141 A.2d at 698(“[U]se in wild, unoccupied territory would not be apt to be brought to the actual notice of
the owner so that he [or she] could object.”). This rationale applies with equal force to
adverse possession cases—indeed, owners of land in a general state of nature may very
well permit their neighbors not only to travel over the land by use of a right of way, but
also to use the land for convenience or pleasure, perhaps for swimming, fishing, or any
other recreational activity; and, given that general state of nature, the owners may not have
notice of others’ adverse use such that the owners can object within the twenty-year period.
Given the substantial similarities between adverse possession and prescriptive
- 19 -
easements, as well as the circumstance that the rationale underlying the application of the
“woodlands exception” in prescriptive easement cases applies with equal force in adverse
possession cases, we hold that the “woodlands exception” applies to adverse possession
cases where the land is unimproved or otherwise in a general state of nature.
II.
Having held that the “woodlands exception” applies to adverse possession, we now
explain why the “woodlands exception” does not apply under the circumstances of this
adverse possession case.
The Breedings contend that the “woodlands exception” applies here because the
Landing is unimproved, has never been continuously occupied for any length of time, and
has been used only for a short duration for recreational activities, of which no notice was
given. Koste responds that the “woodlands exception” does not apply because his
grandfather continuously improved and maintained the Landing during a forty-plus-year
period.
The “woodlands exception” applies to land that is unimproved or otherwise in a
general state of nature. See, e.g., Clickner, 424 Md. at 285, 35 A.3d at 484 (We held that
the “woodlands exception” applied because the property at issue was “‘in a general state
of nature[,]’ . . . attached to an uninhabited, uncultivated, and undeveloped island. Indeed,
the witnesses described the island [that] they frequented with adjectives such as
‘overgrown,’ ‘uninhabited,’ and ‘unimproved.’”); Leekley, 217 Md. at 59, 141 A.2d at
698-99 (We held that the “woodlands exception” did not apply because the property at
issue was not “wild or unoccupied territory[,]” but rather was “a regularly traveled way
- 20 -
that ran for much of the time to a clearing[,] on which stood an inhabited dwelling[,] which
was visible from the main road.”); Feldstein, 198 Md. at 295, 81 A.2d at 615 (“We need
not say, as has been said of unenclosed woodland or other unenclosed or unimproved land,
that use of the [] land, while unenclosed, is presumed to have been permissive or not
adverse.” (Citations omitted)); Wilson, 192 Md. at 228, 64 A.2d at 138 (We held that the
“woodlands exception” did not apply because the property at issue was not “wild land,
woodland, or other land in a general state of nature.”); Day, 22 Md. at 526 (“[A] distinction
must therefore be observed between a claim of a way through enclosed and cultivated land,
and of a way over unenclosed land.”); Turner, 202 Md. App. at 447-48, 32 A.3d at 538
(The Court of Special Appeals held that the “woodlands exception” did not apply because
the two lots were “located in a subdivision with hundreds of other similar[-]sized parcels[,]
improved with houses and driveways, as well as less formal clearings . . . used as paths to
access the lake[,]” and although “some portions of [one] lot [] ha[d] a steep terrain and
contain[ed] un-trimmed vegetation, the disputed area itself [wa]s bounded by a retaining
wall and ha[d] been cleared and maintained.”); Forrester, 98 Md. App. at 487, 633 A.2d at
916 (The Court of Special Appeals held that the “woodlands exception” applied because
the right of way “passed through [] wooded, unenclosed land” and the lot was “entirely
wooded[.]”).
In cases involving the “woodlands exception,” the terms “improved” and
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“unimproved” have not been defined except through description of the properties at issue.9
Thus, for guidance, we turn to the dictionary definitions of those terms. Black’s Law
Dictionary defines “unimproved land” as “[l]and that has never been improved” and as
“[l]and that was once improved but has now been cleared of all buildings and structures.”
Black’s Law Dictionary 1568 (8th ed. 2004).10 “Improve” is defined as “[t]o increase the
value or enhance the appearance of something” and “[t]o develop (land), whether or not
the development results in an increase or a decrease in value.” Black’s Law Dictionary
773 (8th ed. 2004).11 “Improvement” is defined as “[a]n addition to real property, whether
permanent or not; esp[ecially], one that increases its value or utility or that enhances its
appearance.” Black’s Law Dictionary 773 (8th ed. 2004). And, “improved land” is
defined as “[r]eal property that has been developed.” Black’s Law Dictionary 773 (8th ed.
2004). “Development,” in turn, is defined as “[a] human-created change to improved or
unimproved real estate, including buildings or other structures, mining, dredging, filing,
grading, paving, excavating, and drilling” and as “[a]n activity, action, or alteration that
9
At oral argument, Koste’s counsel stated that the case law discussing the
“woodlands exception” does not provide a definition of the term “improvement,” and
argued that “improvement” of a property is dependent on the condition and nature of the
property at issue, i.e., it is a case-by-case determination. At oral argument, the Breedings’
counsel posited that an “improvement” “means something [that] you add to the property.”
10
Merriam-Webster similarly defines “unimproved” as “not tilled, built on, or
otherwise improved for use [.]” Unimproved, Merriam-Webster,
http://www.merriam-webster.com/dictionary/unimproved.
11
Merriam-Webster similarly defines “improved” as “to enhance in value or quality:
make better” and “to increase the value of (land or property) by making it more useful for
humans (as by cultivation or the erection of buildings)[.]” Improved, Merriam-Webster,
http://www.merriam-webster.com/dictionary/improved.
- 22 -
changes undeveloped property into developed property.” Black’s Law Dictionary 482 (8th
ed. 2004). What can be gleaned from these definitions is that unimproved land is
undeveloped land that lacks additions that increase the land’s value or utility or enhance
the land’s appearance. Improved land does not necessarily have a building or a structure
on it; rather, improved land is simply developed land, which is land with human-created
additions, such as structures and paving, that make the land more useful for humans.12
Applying these principles, we hold that the “woodlands exception” does not apply
here because the Landing is not unimproved or otherwise in a general state of nature. The
Landing is improved property; i.e., it is land that has been enhanced during the forty-year
period of adverse possession by human-created additions that increased the land’s utility
and made it more useful for humans. As the circuit court observed in its Memorandum
Opinion and Order, when Koste’s grandparents purchased the Koste property in the 1940s,
Koste’s grandfather took steps to make the Landing accessible, including constructing a
road to the Landing, clearing vegetation, and creating a loop that connected to the road so
that vehicles could turn around. Koste’s grandfather constructed a storage box in the
middle of the loop, erected duck blinds, and repaired the dock. Koste’s grandfather also
erected metal stakes along what he believed to be his boundary line, all the way to Watts
Creek; on posts closest to the water, he attached “no trespassing” signs that faced the
Breeding property. When the circuit court viewed the Landing, the old roadway connecting
12
The phrase “general state of nature” also is not explicitly defined in the case law
or in a dictionary; in our view, however, the phrase is understandable in context more
readily than the distinctions between the terms “improved” and “unimproved.”
- 23 -
to the loop was still “somewhat visible[,] although nature ha[d] clearly reclaimed the area.”
The circuit court found that a boat was chained to a tree, a floating dock jutted out from
the Landing, and the old stakes and “no trespassing” signs that faced the Breeding property
were still visible. Given these findings of fact, it is evident that the Landing is neither
unimproved nor otherwise in a general state of nature.13
To be sure, the Landing is not improved by a building, but it has been improved by
the additions described above. The terms “improve” and “improvement” are not limited
to the construction of a building; and, significantly, as the Breedings’ counsel posited at
oral argument, an “improvement” simply “means something [that] you add to the
property.” In other words, property need not include a building to be considered
“improved” if man-made additions have been added to the property to increase its value or
utility or to enhance its appearance.14
13
Koste’s grandfather improved the Landing by building a road on the Koste
property to the Landing, as well as a loop on the Landing itself so that vehicles could turn
around; by making the Landing readily accessible from the Koste property; by constructing
a storage box and duck blinds for recreational use; and by clearing vegetation. All of these
improvements increased the utility of the Landing and made it more useful for Koste’s
grandparents and others.
14
At oral argument, the Breedings’ counsel argued that only the “no trespassing”
sign and metal stakes ending at the top of the hill leading down to the Landing were visible,
and that the sign and stake nearest to Watts Creek were not visible, and that it was disputed
how long the sign and stake nearest to Watts Creek had been there. It is undisputed,
however, that, to reach the Landing, one must walk down a hill or incline, and that, at the
top of the incline approaching from the Breeding property, a metal stake with an aging “no
trespassing” sign that faces the Breeding property is visible. From our perspective, the sign
and stake at the top of the incline facing the Breeding property served as notice to
individuals approaching from that direction that Koste’s grandparents considered the
Landing to be part of the Koste property; in other words, although additional signs and
stakes near the water would reinforce that assertion of ownership, whether or not the sign
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We briefly address the issue of notice. One of the key principles underlying the
“woodlands exception” is the concern that, given the nature of woodlands, a claimant’s
activity on land that is unimproved or otherwise in a general state of nature is generally not
visible to an owner such that he or she has notice and the opportunity to object. The
Breedings contend that a claimant’s recreational activity cannot, in and of itself, serve as
the basis for adverse possession claims because such activity does not provide requisite
notice of a claim. We need not decide this question; we are satisfied that, where
recreational activities are coupled with improvements that are visible, long-standing, and
indicative of a claimant’s ownership, there is sufficient notice of adverse use to the owner.15
Here, Koste’s grandparents engaged in more than mere recreational activities on the
Landing—Koste’s grandparents made improvements in the form of visible and long-
standing structures. In addition to using the Landing for recreational purposes—such as
hunting, fishing, and boating—Koste’s grandfather made improvements to the Landing
that were visible, present for long periods of time, and indicative of his belief that he owned
the Landing. Specifically, Koste’s grandfather added the road and the connecting loop,
duck blinds, and a storage box in the middle of the loop.16 The loop was evident when the
and stake nearest to the water were present for years or for a short time is ultimately of no
consequence.
15
Actual notice to the owner is not required. Rather, “possessory acts of dominion
on the land” may be “sufficiently pronounced and continuous in nature to charge the
owners . . . with notice that an adverse claim to the property was being asserted.”
Blickenstaff v. Bromley, 243 Md. 164, 171-72, 220 A.2d 558, 562 (1966).
16
It is not dispositive that the Downeses, former owners of the Breeding property,
may have used the Landing for recreational purposes during the prescriptive period.
Indeed, as the circuit court noted, “[o]ther than the testimony of [the Downeses’ sons] that
- 25 -
circuit court viewed the Landing in 2012.17 These improvements existed even when
Koste’s grandparents were not using the Landing for recreational activities; i.e., the loop
did not suddenly disappear when Koste’s grandparents were not on the Landing. In other
words, in addition to the Kostes’ recreational activities, these improvements were visible
and constituted notice of adverse use to the owner and a claim of ownership by the
claimant.18
their father either built or repaired a dock, there is no evidence that they maintained the
loop or otherwise took responsibility for the Landing’s upkeep. There is also no evidence
that they asserted ownership of the land[.]” In other words, it was Koste’s grandfather who
continuously improved and maintained the Landing under a claim of ownership, thereby
giving notice to the owners of the Breeding property, including the Downeses, of his
assertion of an adverse claim to the Landing.
17
At oral argument, the Breedings’ counsel asserted that an unpaved driveway is
merely an indicia of use and not an indicia of exclusive ownership. We disagree that the
road on the Koste property and the loop on the Landing were simply indicia of use and not
also indicia of ownership. As the circuit court pointed out: “One wonders why [Koste’s
grandfather] would have gone to the expense and effort to build a road to the Landing and
construct a connecting loop if he did not believe he had the right to use it.” Similarly, one
wonders why Koste’s grandfather would have thought constructing the loop was
appropriate if someone else owned the Landing; presumably, most landowners would not
believe that they had the right to build roads or loops on another’s property. Thus, in our
view, the loop on the Landing was an indicia of both use and perceived ownership.
18
In a sentence in the last paragraph of the Memorandum Opinion and Order, the
circuit court remarked that “there [was] no evidence that any of the previous title owners
of the Breeding property gave notice to [Koste’s grandparents] of their ownership interest,
or notified [Koste’s grandparents] that they were trespassing on the” Landing. To the
extent that this comment implies that there is an affirmative burden for the owner to give
notice of his or her ownership to the claimant or to tell the claimant to get off of his or her
property, it is an incorrect statement of the law. See, e.g., White, 403 Md. at 36, 939 A.2d
at 178 (“To establish title by adverse possession, the claimant must show possession of the
claimed property for the statutory period of [twenty] years. . . . Such possession must be
actual, open, notorious, exclusive, hostile, under claim of title or ownership, and
continuous or uninterrupted” for the twenty-year period. (Citations omitted) (ellipsis in
original)); Senez, 182 Md. App. at 324, 957 A.2d at 1070 (“[T]he burden of proving title
by adverse possession is on the claimant.” (Citation and internal quotation marks
- 26 -
The circumstance that the Landing is wooded is not dispositive as to the
applicability of the “woodlands exception.” The Koste and Breeding properties are also
wooded; alone, a land’s state of being wooded does not result in automatic application of
the “woodlands exception,” particularly where the surrounding property—even property
that is improved by houses—is also wooded. And, as explained above, although wooded,
the Landing has been improved since the 1940s. That the Kostes may have lapsed in
clearing brush and vegetation over the years is of no moment; the Landing remained
improved despite these lapses, and did not return to a general state of nature. Additionally,
the Landing is attached to the Koste property, which has been improved by houses, first
the house into which Koste’s grandparents moved by 1950, and then the house that Koste
built in 2008. Cf. Clickner, 424 Md. at 285, 35 A.3d at 484 (We held that the “woodlands
exception” applied because the property at issue was “‘in a general state of nature[,]’ . . .
attached to an uninhabited, uncultivated, and undeveloped island. Indeed, the witnesses
described the island [that] they frequented with adjectives such as ‘overgrown,’
‘uninhabited,’ and ‘unimproved.’”); Forrester, 98 Md. App. at 487, 633 A.2d at 916 (The
Court of Special Appeals held that the “woodlands exception” applied because the right of
omitted)). Nonetheless, the circuit court correctly stated the law concerning the burden of
proof elsewhere in the Memorandum Opinion and Order, and the circuit court applied the
correct standard in concluding that Koste “established his claim to the Landing by adverse
possession.” The statement immediately following the remark at issue—“Nor was there
any evidence that these owners gave permission to [Koste’s grandparents] for its use.”—is
a correct statement of the law as applied to this case’s facts. See, e.g., Senez, 182 Md. App.
at 340, 957 A.2d at 1079-80 (“[A] claimant has the burden to prove title by adverse
possession. But, once a claimant has made a satisfactory showing as to open, continuous
use for the statutory period, the burden then shifts to the landowner to show that the use
was permissive.” (Citations, brackets, and internal quotation marks omitted)).
- 27 -
way “passed through [] wooded, unenclosed land” and the lot was “entirely wooded[.]”).
Because the “woodlands exception” does not apply, no presumption of permissive
use arose; instead, the burden was on the Breedings to demonstrate that the Kostes’ use of
the Landing was permissive. See, e.g., Clickner, 424 Md. at 281, 35 A.3d at 482 (“When
an easement is claimed on land that is unimproved or in a general state of nature, there is a
legal presumption that the use is by permission of the owner.”); Banks, 393 Md. at 699,
904 A.2d at 454 (“When a person has used a right of way openly, continuously, and without
explanation for twenty years it is fair to presume adverse use. In such a case, the burden
then shifts to the landowner to show that the use was permissive.” (Citations, brackets,
and internal quotation marks omitted)); Senez, 182 Md. App. at 340, 957 A.2d at 1079-80(“[O]nce a claimant has made a satisfactory showing as to open, continuous use for the
statutory period [to prove title by adverse possession], the burden then shifts to the
landowner to show that the use was permissive.” (Citations, brackets, and internal
quotation marks omitted)).
The Breedings failed to meet the burden of demonstrating permissive use.19 As the
19
In Senez, 182 Md. App. at 325-26, 957 A.2d at 1071, the Court of Special Appeals
aptly noted that, in the “fact-intensive inquiry” of determining whether a claimant is in
actual possession of land, “the court must consider the character and location of the land
and the uses and purposes for which the land is naturally adapted.” (Citations and internal
quotation marks omitted). And, in Porter v. Schaffer, 126 Md. App. 237, 277, 728 A.2d
755, 775 (1999), after noting that sufficient possessory acts of ownership for uncultivated
land may differ from sufficient possessory acts of ownership for cultivated, enclosed land,
the Court of Special Appeals stated: “[A]cts sufficient to demonstrate possession of wild,
undeveloped forest may fall short of the activity needed to establish possession of
developed property.” In the Memorandum Opinion and Order, the circuit court quoted
this language from Porter. In our view, this is an accurate statement of the law. The
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circuit court determined, there was no “evidence that the[] owners [of the Breeding
property] gave permission to [Koste’s grandparents] for [] use” of the Landing; rather,
Koste’s grandparents “acted in such a way toward the Landing consistent with the belief
that the Landing was included in the conveyance of property they received by deed in
1944[,]” i.e., their actions were not those of individuals who were using the Landing with
the owner’s permission. The circuit court considered numerous witnesses’ testimony over
the course of a five-day bench trial, visited the Landing in person, and reviewed numerous
photographs and other exhibits. As the parties acknowledge, the circuit court’s findings of
fact are not clearly erroneous. See Clickner, 424 Md. at 266, 35 A.3d at 472 (“[W]e give
due regard to the trial court’s role as fact-finder and will not set aside factual findings unless
they are clearly erroneous.” (Citations omitted); Forrester, 98 Md. App. at 489, 633 A.2d
at 917 (“Based on our review of the record, and on our understanding that in a bench trial
it is the function of the trial judge to weigh[] conflicting evidence, we hold that his
conclusion was not clearly erroneous.”). We conclude that both the Court of Special
Appeals and the circuit court were correct in holding that Koste obtained title to the
“woodlands exception” does not alter what acts may be sufficient to demonstrate
possession of land—as an inquiry into the sufficiency of possessory acts involves a fact-
intensive, case-by-case analysis—but instead shifts the burden in the first instance to the
claimant to demonstrate that use of land to which the “woodlands exception” applies was
not permissive. In other words, rather than shifting the burden to the owner to demonstrate
that use was permissive, as is the case in adverse possession claims in which the
“woodlands exception” does not apply, the “woodlands exception” shifts that burden to the
claimant in the first instance. Stated differently, the “woodlands exception” goes to the
elements of adverse or hostile use and notice, not the element of actual possession.
- 29 -
Landing by adverse possession.20
JUDGMENT OF THE COURT OF SPECIAL
APPEALS AFFIRMED. PETITIONERS TO PAY
COSTS.
20
Because we conclude that the “woodlands exception” does not apply here, we do
not address the third issue that the Breedings raise—whether Koste overcame the
presumption of permissive use attendant to application of the “woodlands exception.”
However, even if we were to conclude that the “woodlands exception” applied, the
Breedings would not prevail. The record demonstrates that, even if initial use of the
Landing were permissive use, Koste met the burden of showing that use of the Landing
was “adverse from the outset, or that its character became adverse at a point in time
sufficient to meet the twenty-year prescriptive requirement.” Clickner, 424 Md. at 289, 35
A.3d at 486 (citations omitted). As the circuit court found, Koste’s grandfather constructed
the road to the Landing as well as the attached loop in the 1940s; he constructed a storage
box in the middle of the loop; he erected duck blinds on the Landing; he repaired the dock
on the Landing; he erected metal stakes along what he believed to be his property boundary
line leading all the way to Watts Creek; he posted “no trespassing” signs on posts that faced
the Breeding property; and he generally “acted in such a way toward the Landing consistent
with the belief that the Landing was included in the conveyance of” the Koste property.
Plainly put, Koste’s grandfather’s actions demonstrate that his use of the Landing was,
indeed, hostile from the beginning, or became hostile at a point in time sufficient to satisfy
the twenty-year prescriptive requirement.
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