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Montgomery Cnty. v. Bhatt

Court of Appeals of Maryland

January 22, 2016


          Argued December 3, 2015

          Certiorari to the Court of Special Appeals (Circuit Court for Montgomery County). Civil Case No. 8929D. Greg E. Bair, JUDGE.

         ARGUED 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 PETITIONER.

         ARGUED BY: Jeffrey C. Seaman (Whiteford, Taylor & Preston, LLP of Bethesda, MD) on brief FOR RESPONDENT.

         ARGUED BEFORE: Battaglia, Greene, Adkins, McDonald, Watts, Rodowsky, Lawrence F., (Retired, Specially Assigned), Harrell, Glenn T., Jr. (Retired, Specially Assigned), JJ. Opinion by Harrell, J.


Page 425

          [446 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).

          [446 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 County.

Page 426

          The 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.[1] 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.


         Respondent 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.

         The right-of-way was obtained by the County via quitclaim deed in 1988 from the Railroad pursuant to the federal Rails-to-Trails Act.[2] The right-of-way is held and maintained under a " Certificate of Interim Trail Use" pursuant to 49 CFR 1152.29.[3]

Page 427

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.

         On 18 October 2013, Montgomery County issued to Bhatt a civil citation asserting a violation of § 49-10(b) of the Montgomery County Code[4], 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 Montgomery County.

         The 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

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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.

         With 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.

         Bhatt's 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.[5] The Circuit Court concluded that the fence had been present on Lot 8 since 1960.

         Bhatt 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.[6] 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.

         On 31 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

Page 429

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.

         The 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 ...

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