• Yes, Woodlands Exception Applies to Adverse Possession; No, Woodlands Exception Does Not Apply to This Case
  • August 4, 2015 | Author: Edward J. Levin
  • Law Firm: Gordon Feinblatt LLC - Baltimore Office
  • The Court of Appeals held as a matter of first impression that the “woodlands exception,” which has applied to prescriptive easement cases in Maryland for 150 years, also applies to adverse possession cases. But the Court ruled that the “woodlands exception” does not apply to a matter involving a claim of adverse possession to a quarter-acre parcel of land in Caroline County (the “Landing”) because it was not unimproved or otherwise in a general state of nature. Breeding v. Koste, No.66, Sept. Term, 2014, filed May 22, 2015.

    The “woodlands exception” is a presumption that makes it very difficult for claimants to establish a prescriptive easement under certain circumstances. As a general matter, in order to prevail on a claim for a prescriptive easement, a claimant must show adverse, exclusive, and uninterrupted use of someone else’s property for 20 years. A landowner may defeat a claim for a prescriptive easement if it is established that the claimant’s use of the property was with the consent of the landowner - hence, it would not be “adverse.” It is often difficult to determine whether or not the landowner granted permission for the claimant to use the land. Over time, the courts have created a presumption - the “woodlands exception” - that if the property is “unenclosed,” “unimproved,” or “in a general state of nature” the landowner does not need to object to others passing through the property. In those situations, a prescriptive easement cannot be established.

    This concept reaches all of the way back to Day v. Allender, 22 Md. 511 (1865). See also the much more recent case of Clickner v. Magothy River Ass’n, Inc., 424 Md. 253, 281 (2012), in which the Court stated that 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.”

    The Court in Breeding explained the purpose of this presumption by citing Forrester v. Kiler, 98 Md.App. 481 (1993), in which the Court of Special Appeals stated that if the presumption did not exist an owner would not allow others to pass over a trail without opening up the possibility of claims of adverse use, and a person who benefits others by allowing them to pass through open land should not be penalized by possibly losing rights to the property. The Clickner court added that an owner of woodlands or unimproved land may not see the activities of others on the land in order to object to them.

    Like a prescriptive easement, in order to establish a claim by adverse possession, the user must show the use of another person’s land for 20 years, and “[s]uch possession must be actual, open, notorious, exclusive, hostile, under claim of title or ownership, and continuous or uninterrupted for the 20 year period.”

    After reviewing the prior case law and considering the purpose of the rule, Judge Shirley Watts wrote for a unanimous Court in Breeding that the “woodlands exception” applies to adverse possession cases as well as to prescriptive easement claims.

    Unfortunately for the Breedings, who had record title to the Landing, even though they won their legal argument, they lost on the facts. Their neighbor Koste asserted that his grandfather had done a number of things at the Landing over a 40-year period: he built an access road, cleared vegetation, created a loop that connected to the road so that vehicles could turn around, built a storage box in the middle of the loop, repaired a dock extending into Watts Creek, erected duck blinds and no trespassing signs facing the Breedings’ parcel, and erected metal stakes along the perceived boundary lines between the Koste and Breedings parcels. As a result, the Landing was not “unimproved,” as defined by Black’s Law Dictionary and the Court. (The Court considered property to be “improved” if man-made additions have been added to increase its value or utility or to enhance its appearance.) Therefore, the “woodlands exception” did not apply to this case.

    Koste established that he or his grandfather had made open and continuous use of the Landing for the statutory period. Then, the burden shifted to the Breedings, the landowners, to show that the use was permissive. The Breedings wanted to meet this burden by getting under the umbrella of the “woodlands exception.” However, the “woodlands exception” did not apply to the Landing because it was improved, and the Breedings therefore failed to meet their burden. Accordingly, the Court of Appeals affirmed the decision of the Court of Special Appeals which held that Koste established a claim to the Landing by adverse possession.