December 3, 2015
Certiorari to the Court of Special Appeals (Circuit Court for
Montgomery County). Civil Case No. 8929D. Greg E. Bair,
BY: Robert J. Birenbaum, Associate County Attorney (James C.
Savage, Associate County Attorney, Marc P. Hansen, County
Attorney, Clifford L. Royalty, Chief Division of Zoning, Land
Use and Economic Development of Rockville, MD) on brief FOR
BY: Jeffrey C. Seaman (Whiteford, Taylor & Preston, LLP
of Bethesda, MD) on brief FOR RESPONDENT.
BEFORE: Battaglia, Greene, Adkins, McDonald, Watts, Rodowsky,
Lawrence F., (Retired, Specially Assigned), Harrell, Glenn
T., Jr. (Retired, Specially Assigned), JJ. Opinion by
Md. 81] Harrell, J.
Driving that train, high on cocaine,
Casey Jones you better watch your speed.
Trouble ahead, trouble behind,
And you know that notion just crossed my mind.
-The Grateful Dead, Casey Jones, on Workingman's
Dead (Warner Bros. Records 1970).
Md. 82] Although the record of the present case does not
reflect a comparable level of drama as captured by the
refrain of " Casey Jones," it hints at plenty of
potential trouble, both ahead and behind, for a pair of
public works projects (one in place and the other incipient)
cherished by the government and some citizens of Montgomery
Capital Crescent Trail is a well-known hiker/biker route that
runs between Georgetown in the District of Columbia and
Silver Spring, Maryland. Its path was used formerly as the
Georgetown Branch of the Baltimore & Ohio (B& O)
Railroad. After the trains stopped running in
1985, the property was transferred in 1988 to the government
of Montgomery County, Maryland, via a quit-claim deed for a
consideration of $10 million. It is planned that the Maryland
portion of the former rail line (and current interim
hiker/biker trail) will become the proposed Purple Line, a
commuter light rail project between Bethesda and Silver
Spring. This case raises, among other questions, whether a
private landowner adjacent to the rail line may acquire by
adverse possession a portion of the right-of-way through
erection of a fence and installation of a shed that
encroached for more than twenty years upon the railroad
right-of-way. Under the circumstances present here, we
conclude that the private property owner cannot prevail.
Ajay Bhatt owns 3313 Coquelin Terrace (a subdivided,
single-family residential lot -- " Lot 8" --
improved by a dwelling) in Chevy Chase, Montgomery County,
Maryland. He purchased this property in 2006 from his aunt,
who owned the property since at least the 1970s. The lot
abuts the Georgetown Branch of the B& O Railroad/Capital
Crescent Trail. In 1890, the right-of-way that was the rail
line (and is today the hiker/biker trail) was conveyed in a
fee-simple deed [446 Md. 83] from George Dunlop, grantor, to
the Metropolitan Southern Railroad Company (" the
Railroad" ), grantee. The 1890 Deed conveyed to the
Railroad a " strip, piece or parcel of land. .
.Beginning at Station 59 plus 52, a point on the located
centre line of the Metropolitan Southern Railroad, the same
being in Rock Creek and on the line dividing the lands of
Richard Ray and the said George Dunlop." The Deed
established a right-of-way 45 feet on either side of the
center line of the tracks throughout the rail line. A
freight-hauling operation was maintained thereafter on the
rail line right-of-way until 1985.
right-of-way was obtained by the County via quitclaim deed in
1988 from the Railroad pursuant to the federal
Rails-to-Trails Act. The right-of-way is held and
maintained under a " Certificate of Interim Trail
Use" pursuant to 49 CFR 1152.29.
This " Certificate" allows the County to preserve
the land as a hiker/biker trail until the County chooses
whether [446 Md. 84] and when to restore a form of rail
service within the right-of-way. Thus, the right-of-way is
listed currently by federal regulators in a " rail
bank" under a presumption that the railway may be
restored for rail use in the future. It is the County's
intent to develop within the right-of-way the planned "
Purple Line" commuter rail.
October 2013, Montgomery County issued to Bhatt a civil
citation asserting a violation of § 49-10(b) of the
Montgomery County Code, which prohibits a property owner from
erecting or placing " any structure, fence, post, rock,
or other object in [a public] right-of-way." The factual
predicate of the claimed violation was the placement and
maintenance by Bhatt's predecessors-in-interest of Lot 8
of a fence and shed within the former rail line (and current
hiker/biker trail) right-of-way, without a permit. The civil
citation case was heard originally on 21 January 2014 in the
District Court of Maryland, sitting in Montgomery County. The
District Court found Bhatt guilty of a violation of §
49-10(b) and ordered him to remove the fence and shed
encroaching upon the [446 Md. 85] County's right-of-way.
The District Court required Bhatt to pay $5.00 in court
costs, but suspended the $500 fine imposed previously by the
County. Bhatt appealed timely to the Circuit Court for
appeal was heard de novo by the Circuit Court on 28
August 2014. The County presented evidence establishing that
its right-of-way lies immediately adjacent to the rear
property line of Lot 8. Ralph Wolfe, a right-of-way
inspector, and Thomas Yoakum, a certified land surveyor,
relied on aerial photographs, the 1890 Dunlop Deed,
Bhatt's deed and subdivision plat, and geographical
information system (" GIS" ) photographs from which
to conclude that Bhatt's fence and shed were located on
the County's right-of-way. The parties stipulated that:
[T]he fence goes beyond the lot line of the -- what's
called Lot 8[the Bhatt lot], in the plat for the subdivision,
that was created in 1946. We could stipulate to that. We
cannot stipulate that the property
beyond that lot line is owned by the county, or that it was
owned by the railroad. We're not going to do that. But we
can stipulate the fence goes beyond the lot line that was
established in the plat.
regard to the type of real property interest held by the
County in the right-of-way, a Montgomery County real property
attorney and expert accepted by the court in " real
estate law and titles" was called by Bhatt to present
his conclusions regarding the 1890 Deed and the County's
interest. The expert testified that the County received from
the Railroad " a deed of bargain and sale so it was a
transfer of the fee interest in the property and the Railroad
held title to that property until 1988." Because the
County owned the right-of-way in fee simple, he believed it
impossible, as a matter of law, for the County to have
acquired a mere easement interest in the right-of-way.
defense to the charged violation of § 49-10(b) was that
he owned the encroached-upon land by adverse possession
established by his predecessors in interest, who erected the
fence. From memories of his childhood visits to his
aunt's [446 Md. 86] home on Lot 8, Bhatt testified that
the fence had been present, as far back as he could remember.
He recalled specifically seeing the fence in 1977 when he was
eight years old. Additional witnesses presented by Bhatt
testified that the fence had been present since the 1960s. No
evidence was presented as to when the fence was installed
exactly or why it was placed beyond the rear lot line of Lot
8. The Circuit Court concluded that the
fence had been present on Lot 8 since 1960.
argued that, because the fence had been located beyond the
property line of Lot 8 since at least 1963, the Railroad was
obliged to take action to remove it prior to the maturation
of the twenty year period for adverse
possession. Bhatt testified further that he
applied for a permit to (and was granted by) the County in
2013 to repair and replace the fence. Without hiring a
surveyor (and reportedly being himself unaware of the actual
property lines of the subdivided Lot 8), Bhatt based his
application on the belief that the original fence was located
on or within the boundaries of Lot 8. He presented additional
evidence that the County had installed chain link fences on
the hiker/biker trail and performed maintenance on the
property outside his fence, but that the County did not
perform any maintenance within his fence line.
December 2014, the Circuit Court vacated the District
Court's judgment and dismissed the violation citation
issued by the County. Following post-trial motions, an
amended memorandum opinion was filed by the Circuit Court on
2 March 2015. In that opinion, the Circuit Court concluded
penultimately (on the strength largely of Bhatt's real
property attorney's expert opinion testimony) that the
County did not [446 Md. 87] have a " right of way"
easement over the former rail line, but rather had been
conveyed a fee simple interest in 1988. The expert opined
that the term " public right-of-way," as used in
the ordinance, referred solely to one held by easement.
Because the County thus did not have a " right of
way" over the property, Bhatt could not be considered in
violation of § 49-10(b). As this reasoning continued,
because the conveyance to the County did not result in the
acquisition of a " right of way," the Circuit Court
concluded ultimately that Bhatt had a creditable claim for
adverse possession. Moreover, the hearing judge did not feel
obliged to conduct an abandonment analysis: " An
abandonment analysis is unnecessary because the land was
granted in fee simple, and cannot reasonably be defined as a
right-of-way under federal, state, or local laws." The
Circuit Court made no final declaration or determination,
however, as to who held title to the encroachment area
because it was not asked by the parties to decide that point
conclusively in the context of the Code enforcement dispute
that was at the heart of the litigation.
County petitioned this Court for a writ of certiorari. On 17
June 2015, we granted the Petition, Montgomery County v.
Ajay Bhatt, 443 Md. 234, 116 A.3d 474 (2015), to
consider the following questions:
1) Did the lower court err in holding that the 1890 deed from
George Dunlop to the Metropolitan Southern Railroad Company
did not convey a right-of-way?
2) Did the County prove that the Respondent's fence and
shed encroached upon the right-of-way that was originally
purchased by the Metropolitan Southern Railroad Company and
later conveyed to the county ...