Slear v. Jankiewicz , 189 Md. 18 ( 1947 )

I am unable to agree with the holding of the majority of the court in this case that the use of the land occupied by the garage wall was "strictly necessary" for the enjoyment of the corner property. "Necessity" is a word of much greater implication than "convenience," and it has generally been so construed. Ways of necessity over lands of others have been denied many times, because other means of ingress or egress are available. It is just as desirable to be able to get out of property by the most convenient method as it is to be able to house a car in the most convenient place. Yet in rights of way cases "convenient" has not been construed as meaning "necessary." I am at loss to understand why it should be so construed here.

The construction of the garage where it was placed was clearly a mistake. No one thought it was over the line. If a boundary between two properties is erroneously conceived to be at a certain place, the owner who thereby gets additional ground does not get title to it, even if he thus retains it for more than twenty years. It is held that his possession is not adverse because he did not intend to take a part of his neighbor's land. See Cresap's Lessee v. Hutson, 9 Gill at p. 27; 269; Davis v.Furlow's Lessee, 27 Md. 536; and Hiss v. McCabe, 45 Md. 77, in which the body of the opinion is just the opposite of the syllabus. We are now giving the appellant land, which does not belong to him, which he did not know he was occupying, which he had never consciously claimed, and of which he has had possession for only seven years. This is done on the theory of an implied grant or reservation, which, under our decision, quoted in the majority opinion, arises "only in cases of the strictest necessity, and where it would not be reasonable to suppose that the parties intended the contrary." How can it be held here, either that there is strict necessity, or that the parties intended to place the garage partly on the wrong lot? This extension of the doctrine of implied grant or reservation has so many possible implications that it should not be adopted by this Court.

I think the judgment should be affirmed.