Two appeals in one record from the Circuit Court for Baltimore County; Raine, Jr., J.
Brune, C. J., and Henderson, Hammond, Horney and Marbury, JJ. Horney, J., delivered the opinion of the Court.
This is the third of a series of appeals arising out of the grant of an easement by Mary Ann Burnham to the Baltimore Gas
and Electric Company (the company)*fn1 for the erection, operation and maintenance of a power transmission line across a tract of land in Baltimore County, now owned by the descendents of the grantor (the Burnhams) and the heirs of Priscilla Lee (the Lees) as tenants in common, Priscilla Lee not having joined in the grant.
On the first appeal (Burnham v. Balto. Gas & Electric Co., 217 Md. 507, 144 A.2d 80), an ejectment proceeding, we held that the Burnhams were bound by the easement granted by their ancestor and that the Lees were not bound because one tenant in common could not grant an easement that would bind the cotenants.
On the second appeal (Baltimore G. & E. Co. v. Bowers, 221 Md. 337, 157 A.2d 610), a partition proceeding, we held that the company had a right to require the Burnhams to seek partition in kind and remanded the case for further proceedings.
Upon remand, the lower court, by its commission to make partition, appointed three commissioners and commanded them to "value and divide" the tract in kind "according to the rights and interests" of the parties if it would "admit of being so divided without loss or injury" to any of the parties. Specifically, the commissioners were, among other things, directed (1) to determine the fair market value of the tract as if the transmission line and right of way did not exist; (2) to allot to the Lees, unencumbered by the easement, such portion of the tract as would (when each was allotted his or her aliquot share) aggregate one-half of the value of the entire tract; (3) to assign the remainder of the tract to the Burnhams without regard to depreciation in value by reason of the easement; and (4) if necessary to arrive at an equitable partition, to reserve rights of way across any part of the tract and to award owelty to one or more of the parties in interest.
In returning the commission to partition, the commissioners unanimously reported to the court that the tract could not be divided in kind "without loss or injury to some parties in interest."
The company, alleging error on the part of the commissioners and asserting that partition could have and should have been made in kind, filed exceptions to the return of the commissioners. But the court, by its decree, overruled the exceptions, ratified and confirmed the return, and appointed trustees to sell the tract of land subject to the easement of the company. With respect to the division of the money arising from the sale, the court further decreed that after the payment of costs, commissions and other proper deductions, the Lees should be awarded one-half of the amount the tract would have brought if sold free and clear of the easement; and that the remainder of the money arising from the sale should be awarded to the Burnhams.
All of the defendants (the Burnhams and the Lees) noted an appeal and the plaintiff (the company) entered a cross-appeal. The principal questions raised by these appeals are: (i) whether the lower court erred in ratifying the return and report of the commissioners; and (ii) whether ...