Opinion
C.A. No. 03C-02-018.
Submitted: September 30, 2003.
November 24, 2003.
Mary Robin Schrider, Esquire Georgetown, Delaware.
Cindy Ingram Bice Seaford, DE.
Dear Counsel:
This case comes before the Court for consideration of Plaintiff's Motion for Summary Judgment. The motion is granted for the reasons stated herein.
I. Facts
Plaintiff, Elizabeth Jean O'Shaughnessy (Plaintiff), is the fee simple owner of improved real property located at 409 Washington Street, Seaford, Delaware 19973. Defendant, Cindy Ingram Bice (Defendant), is the fee simple owner of improved real property located at 405 Washington Street, Seaford, Delaware 19973. On March 31, 1969, Plaintiff and her husband, now deceased, purchased a plot of land from Mr. and Mrs. Roy C. Ingram, the Defendant's parents and prior owners of 405 Washington Street. This plot of land, the subject of the action before the court, contains approximately 527 square feet and was purchased for the purpose of constructing a garage on Plaintiff's property. The sale of the land was accompanied by an agreement regarding an existing chain link fence on a portion of the property. The agreement, filed together with the Deed to the land, states that the fence remained the property of Mr. Ingram and could remain in position or moved at Mr. Ingram's discretion. Additionally, it provides that if there is a sale of the O'Shaughnessys' property, the purchaser must honor the agreement.
On August 21, 2000, Mr. Ingram and his wife sold their property to the Defendant. Defendant continues to possess the property, maintain the fence, and store personal items on the subject property. Defendant has also placed signs and other objects, such as flower pots, on the subject property.
Plaintiff contends that Defendant possesses no rights to use the subject property or to maintain the fence on the subject property. Plaintiff wishes to remove the fence and refuse Defendant access to the subject property. Defendant asserts ownership of the subject property and her right to possess and use the subject property.
Specifically, Plaintiff presents two issues for judgment by the Court:
1. Has the agreement between Plaintiff and Defendant's predecessor in title in interest been terminated and all rights thereunder been extinguished?
2. Does Defendant have any right, title or interest in the subject property, either pursuant to the agreement or otherwise?
II. Discussion
A. Standard of Review
This Court will grant summary judgment only when no material issues of fact exist, and the moving party bears the burden of establishing the non-existence of material issues of fact. Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979). Once the moving party meets its burden, then the burden shifts to the non-moving party to establish the existence of material issues of fact. Id. at 681. Where the moving party produces an affidavit or other evidence sufficient under Superior Court Civil Rule 56 in support of its motion and the burden shifts, then the non-moving party may not rest on its own pleadings, but must provide evidence showing a genuine issue of material fact for trial. SUPER. CT. CIV. R. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If, after discovery, the non-moving party cannot make a sufficient showing of the existence of an essential element of his or her case, then summary judgment must be granted. Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991), cert. denied, 504 U.S. 912 (1992); Celotex Corp. v. Catrett, supra. If however, material issues of fact exist or if the Court determines that it does not have sufficient facts to enable it to apply the law to the facts before it, then summary judgment is inappropriate. Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
B. The Agreement Has Been Terminated and All Rights Thereunder Extinguished
Neither party disputes that there was an agreement between Plaintiff and Defendant's predecessor in interest, Mr. Ingram, which was duly recorded at the office of the Recorder of Deeds in and for Sussex County. It is further undisputed that this agreement was complied with until Mr. Ingram's transfer of title to the Defendant and that since that time Defendant continues to possess and use the subject property.
The dispute before the Court centers on the nature, extent and duration of the rights reserved by Mr. Ingram pursuant to the agreement and whether those rights extend to the Defendant. Plaintiff contends that the right to use the land, granted by the agreement between the O'Shaughnessys and Mr. Ingram, was an easement. "An easement . . . is a liberty, privilege, or advantage in land without profit existing distinct from the ownership of land, and generally constitutes an interest in the land itself. . . ." 28 A.C.J.S. Easements § 7 (2003).
There are two types of easements, appurtenant and in gross. 25 Am.Jur.2d Easements and Licenses in Real Property § 7 (2003). "An easement appurtenant is one that inures to the benefit of a dominant tenement and becomes, in effect, a part of the dominant tenement that runs with the land" Francis v. Macklin, 1990 Del. Ch. LEXIS 97, at *12 (Del.Ch.), citing 28 C.J.S. Easements § 4 (1941). An appurtent easement "must bear some relation to the use of the dominant estate . . . exist[ing] for the benefit of the dominant estate as an entirety." 25 Am. Jur.2d Easements in Real Property § 10 (2003). On the other hand, "an easement in gross . . . is personal to the grantee [and] does not run with the land" Wieczorek v. Simmons, Del. Ch., C.A. No. 8375, Hartnett, V.C. Let. Op. at 4 (Jan. 29, 1987), citing 28 C.J.S. Easements § 4(b) (1941). "An easement in gross does not extend beyond the life of the grantee, and cannot be made inheritable by the grant creating it . . ." Macklin, 1990 Del. Ch. LEXIS 97, at *13, citing 28 C.J.S. Easements § 4(b) (1966). Neither can an easement in gross be assigned or transmitted to others. 25 Am. Jur.2d Easements and Licenses in Real Property § 102 (2003).
The Court finds that the agreement granted to Mr. Ingram was an easement in gross. The use granted was a personal one, shown by both the intentions of the parties and the language in the documents. The parties agree that the land was transferred from the Ingrams to the O'Shaughnessys in order to facilitate the construction of a garage on the O'Shaughnessys' property. Mr. Ingram was allowed to have the fence remain his personal property and remain on the land after the subject property was sold to the O'Shaughnessys. This was, according to the Plaintiff, an acknowledgment of his kindness and so as not to disturb or inconvenience him. Mr. Ingram was given the ability to enter onto the land to make repairs as necessary to the fence, in addition to being given the power to remove it at his discretion. That the fence could be removed from the land, at Mr. Ingram's discretion, leads to the conclusion that it did not become a part of the land nor was it necessary for the use of Mr. Ingram's property. Further, while the agreement provides for what should happen if the O'Shaughnessys sold the land, it makes no mention of rights owing to future owners of Mr. Ingram's property. It is apparent from the documents that the fence was on the land for Mr. Ingram's personal benefit (i.e. convenience) and not for the benefit of Mr. Ingram's property. In the instant case, the intention of the parties was to avoid inconveniencing Mr. Ingram in light of his decision to sell to the O'Shaughnessys the land they required for the garage. As shown above, the language of the deed and the circumstances surrounding the transfer support this finding.
As Mr. Ingram no longer owns the land, the purpose behind the easement no longer exists, and as such, the easement should be considered to have terminated.
C. Defendant Has No Right, Title or Interest in the Subject Property
Defendant did not contest plaintiff's easement in gross argument, but rather contends she has acquired ownership to the property through adverse possession. Defendant supports this contention by stating that the subject property and fence were maintained by Mr. Ingram for over 30 years. Since acquiring her property, the Defendant has continued to maintain the subject property and the fence.
"To obtain legal title to land by adverse possession, one must occupy or possess the land in a manner that is open, notorious and hostile, for a continuous period of not less than twenty years." Miller v. Steele, 2002 WL 31716366, at *3 (Del.Ch.), citing Marvel v. Barley Mill Road Homes, Inc., 104 A.2d 908 (Del.Ch. 1954); Dukes v. Williams, Del.Ch., 1978, Steele, V.C. (Mar. 6, 2000) (Mem.Op.) at 2, citing Delaware Land Dev. Co. v. First and Central Presbyterian Church of Wilmington, Del., 147 A. 165, 178-79 (Del. 1929); see 10 Del. C. § 7901. "`Hostile' means against the claim of ownership of all others, including the record owner." Steller v. David, 257 A.2d 391, 394 (Del.Super.Ct. 1969), reversed on other grounds 269 A.2d 203 (Del. 1970).
Here, the Plaintiff consented to the use of the land by Mr. Ingram for his fence and the maintenance thereof. According to Defendant's own admission, the agreement gave Mr. Ingram permission to use the subject property. That Mr. Ingram's use of the property was permitted by the property owners negates the element of hostility.
Alternatively, Defendant argues that her use of the fence and the land should suffice for adverse possession. While Defendant's use of the subject property has been hostile to the Plaintiff's interests, adverse possession will not stand The Defendant has only been using the subject property for the last few years, much less time than is required by law. Therefore, the Defendant has not fulfilled the required elements for adverse possession.
IV. Conclusion
In conclusion, the Court holds that the agreement between Mr. Ingram and the Plaintiff created an easement in gross. Further, this easement terminated when its purpose ceased, i.e. Mr. Ingram transferred his property. As Defendant's adverse possession claim has no merit, the Court holds that the subject property is owned in fee simple by the Plaintiff and the Defendant has no right, title or interest therein.
Accordingly, the Plaintiff's Motion for Summary Judgment is granted.