WILLIAM H. ANDERSON and H. KEVIN ANDERSON
GREAT BAY SOLAR I, LLC and BOARD OF COMMISSIONERS OF SOMERSET COUNTY
Circuit Court for Somerset County No. C-19-CV-17-000128
Graeff, Nazarian, Arthur, JJ.
William Anderson, is the owner of two agricultural properties
in Somerset County. He is the sole owner of the Ira Barnes
Farm, and he co-owns the Ben Barnes Farm with his son, Kevin
Anderson, also an appellant. The farms abut, or are bisected
by, Dublin Road and Old Princess Anne Road. On June 29, 2015,
Somerset County entered into an Easement Agreement with Great
Bay Solar I, LLC ("GBS"), appellee, to allow GBS to
install collection systems along or below certain county
roads, including Dublin Road and Old Princess Anne Road, to
transport the power from their solar panels to the general
April 2017, GBS began laying cable under these roads in
accordance with the Easement Agreement. The Andersons
objected to the project, and on July 5, 2017, they filed in
the Circuit Court for Somerset County a complaint against
GBS, seeking a temporary restraining order, a preliminary
injunction, and a permanent injunction to halt the project.
The Andersons alleged that they had fee simple ownership of
the roadbeds where GBS was burying the collection systems,
and therefore, GBS was trespassing.
September 8, 2017, the Andersons filed an amended complaint.
They added as a defendant the Board of County Commissioners
of Somerset County (the "County"), appellee, and
added a request for a declaratory judgment that they owned in
fee simple the land beneath Old Princess Anne Road and Dublin
Road where the roads abutted or bisected their property and
that GBS's installation of high voltage electric cable
constituted an unlawful trespass on their property. They also
sought an order directing GBS to remove all electric cable
from beneath the roadbeds.
October 27, 2017, GBS filed a Counterclaim for Declaratory
Judgment. It requested a declaratory judgment that: (1) the
County owned the roadbeds under the roads at issue; (2)
alternatively, that the County possessed a sufficient
interest in the roads to support the grant to GBS of rights
to install the collection systems; or (3) alternatively, that
the Andersons were precluded from equitable relief based on
the doctrines of waiver, estoppel, and laches.
August 30, 2018, after a three-day bench trial, the circuit
court issued a written "Opinion and Declaratory
Judgment." It ruled that neither the Andersons nor the
County met their burden of proof that they had a fee simple
interest in the roads, that the County possessed sufficient
interest in the roads to grant GBS the right to install the
collection systems, that GBS had the legal right to install
them, and that the Andersons were barred "from any
equitable relief they seek based on the doctrines of waiver,
estoppel, and laches."
appeal, the Andersons present the following questions for
this Court's review, which we have consolidated and
rephrased slightly, as follows:
1. Did the circuit court err in finding that the Andersons
did not present sufficient evidence to support their claim
that they have a fee simple interest in the land lying
beneath the portion of Dublin Road running through and
bisecting the Ira Barnes Farm and beneath the portions of
Dublin Road and Old Princess Anne Road bisecting and abutting
the Ben Barnes Farm?
2. Did the circuit court err in concluding that, even though
Somerset County does not have a fee simple interest in the
roads, it nonetheless possesses a "sufficient
interest" to permit it to grant GBS the right to utilize
the land beneath the roadbeds for the installation of its
industrial-scale, electrical cables?
3. Did the circuit court err in concluding that the doctrines
of waiver, estoppel and laches barred the Andersons'
claims for equitable relief, and if not, are their claims for
a legal remedy also barred?
cross-appeal, GBS and the County raised the following
Did the circuit court err in holding that the County failed
to prove that it owned Dublin Road and Old Princess Anne Road
in fee simple?
reasons set forth below, we shall affirm, in part, and
reverse, in part, the judgment of the circuit court and
remand for further proceedings.
AND PROCEDURAL BACKGROUND
William Anderson and Kevin Anderson, have lived and worked as
farmers in Somerset County all their lives. William Anderson
owns both the Ira Barnes Farm and the Ben Barnes Farm, the
latter of which he co-owns with his son, Kevin Anderson. The
Andersons use these farms to grow barley, wheat, corn, and
soybeans. The farms are located approximately two miles south
of the town of Princess Anne, outside the reach of municipal
utilities such as water, sewer, or cable lines.
appeal relates to the roads that bisect and border these two
farms. Dublin Road runs east-west and bisects both farms
across their northern portions. Old Princess Anne Road is
perpendicular to Dublin Road, running north-south, and it
establishes the western border of the Ben Barnes Farm. Dublin
Road terminates at Old Princess Anne Road at the northwest
border of the Ben Barnes Farm.
2014, before obtaining an easement from the County to install
the collection system under the roads, representatives from
Pioneer Green, the former parent corporation of GBS,
approached the Andersons about leasing or buying a portion of
their farmland as a site for a wind project. The Andersons
refused to sell or lease their farms. The company
subsequently proposed leasing a right-of-way to place a
collection system through the property, and they reached a
verbal agreement to a "40 foot right-of-way adjoining
Dublin Road." When the company drew up the paperwork,
however, the terms of the agreement had been changed, without
notice, to a 50-foot right-of-way for no additional
compensation. The Andersons advised that they were not
interested "in doing business with dishonest
people." That ended GBS's attempt to lease land from
Anderson testified that, in June or July 2015, during a
meeting on another issue, GBS informed him that it did not
need the right-of-way from him anymore because the County had
granted them permission to "run their cables down [the
County's] right-of-way." Kevin Anderson replied:
"I don't believe the [C]ounty can give you the
authority to do what you're trying to do, I think you
need the landowner's permission." Although Kevin
Anderson testified that GBS did not say specifically what the
plans were, he testified that, in February or March of 2015,
he saw GBS surveying roads in the area, particularly Dublin
Road and Arden Station Road. He testified that this was the
first time that he became "aware that they were
contemplating burying cables in these roads."
February 2015, Kevin Anderson met with Woody Barnes, head of
the County Roads Department, regarding the surveying. Kevin
Anderson stated his belief that he owned the section of
Dublin Road that bisected his property, and the County merely
had a right-of-way to maintain a public road. Mr. Barnes said
that he understood Mr. Anderson's concern, but he worked
for the County, and his "job was to facilitate this
venture, not obstruct it."
29, 2015, GBS entered into an agreement (the "Easement
Agreement") with the County that allowed GBS to lay
collection systems under various county roads, including
Dublin Road and Old Princess Anne Road. The Easement
Agreement authorized GBS to
access and utilize County roadways, install facilities in,
through, along, over or under, and make necessary
improvements to, County right-of-way and other real property
in order to transport equipment used in electric generation
facilities and transmit electricity and electrical connection
services through Public Ways of the County[.]
Way" is defined in the agreement as "the surface
of, and the space above and below, any public right-of-way .
. . now or hereafter held in fee simple title or any other
lesser or conditional estate, grant or leasehold interest by
the County in those certain rights-of-way" as identified
on an attached map showing the roads and properties pertinent
to this appeal. The Easement Agreement was recorded in the
land records for Somerset County in Liber 0904, folio 0461.
project was discussed at multiple meetings of the Somerset
County Planning and Zoning Commission (the
"Commission"). The Planning Commission was
responsible for reviewing the solar project and approving the
site plans for each of the sites where solar panels were
proposed. Kevin Anderson, a Commission member since 2013, and
Vice Chairman since 2016, testified that the role of the
Planning Commission is to prepare recommendations for the
County Commissioners' approval, not to "have the
final say on whether [an action] is approved or
Anderson was present for all but one of the meetings during
which the GBS project was discussed. In a meeting in 2014,
Jim Porter, the Commission's attorney, stated that, based
on his research in the context of setbacks for the project in
its early stages, he determined that most county roads in
Maryland were rights-of-way, not property owned by the
meeting held on May 7, 2015, Gary Pusey, the Somerset County
Planning Director, informed the Commission that GBS was
pursuing a solar project, as opposed to the initial wind
turbine project. The power generated would be used
September 3, 2015, Mr. Pusey provided the update that the
project was being reviewed by the Public Service Commission.
He gave Commission members a map showing "what sites
were possibly being considered."
January 7, 2016, meeting, Mr. Pusey informed members that the
project had received approval by the Public Service
Commission, with the condition that the Planning Commission
give site plan approval. He advised that there had been a
roads agreement with the County. Mr. Pusey stated that the
Planning Commission would review the plans "for zoning
issues, setbacks, buffering issues, and so on."
minutes reflect that Kevin Anderson was not present for this
meeting. He testified, however, that he talked to Mr. Pusey
at the January meeting about his concern regarding "the
roads issue" and the site plans. He stated that Mr.
Pusey responded that the Planning Commission was responsible
only for the site plans, which "would not contain
anything to do with the roads," which would be handled
by the Roads Board.
February 4, 2016, Mr. Pusey informed the Commission that
plans for the five solar sites and a substation were under
review by planning staff and would be presented to the
Planning Commission at the next meeting. Kevin Anderson
wanted to ensure that the County addressed drainage. The
minutes reflect that "Mr. Anderson stated concerns of
setbacks from roads and ensuring proper maintenance of the
February 2016, Kevin Anderson met again with Woody Barnes,
who told him that GBS would be laying the collection system
"down the center of the road[s]" pursuant to the
Easement Agreement. Mr. Anderson testified, however, that Mr.
Barnes did not specify the roads to which he was referring.
March 3, 2016, meeting, approval of the site plan for
GBS's solar project was a central topic of
discussion. Mr. Anderson understood that GBS was
waiting for the County's permission "to go ahead
with the site plans." The locations for the solar farms
were discussed, but Mr. Anderson testified that the site
plans introduced at the meeting did not include any reference
or depiction of the collection systems that were going to
transfer the electricity generated on the sites to the
substation. Mr. Pusey testified that, prior to the approval
of the site plans, there was a statement that the
transmission lines would be located in the roads, including
Old Princess Anne Road and Dublin Road. Mr. Anderson
testified that, in response to this comment, he stated that
he wanted to hear more about this, but he was advised that it
did not impact the site plan, and the Commission had no
"say over it." The minutes reflect that Mr.
Anderson made several comments, but he ultimately voted to
approve the proposed site plans.
this meeting, Mr. Anderson began having conversations with
County officials more involved with the Roads Department. He
met with Charles Fisher, a County Commissioner, and explained
his view that he held title to the property, the County had
only a right-of-way through the roads for a public way, and
he did not "think the [C]ounty had the ability to
transfer their right-of-way to another private entity."
Mr. Fisher told Mr. Anderson that, although the County owned
the roads and could do anything they wanted with them, Mr.
Anderson should not worry about the solar project because
there were problems with concrete under the road, and the
project was a "dying issue" that "wasn't
coming." Moreover, Mr. Fisher informed Mr. Anderson that
the economic viability of the project was being reviewed
because the value of Emission Reduction Credits had
dropped.After Mr. Anderson was told that the
project probably would not go forward, and he witnessed no
further activity on the roads in the ensuing months, Mr.
Anderson "dropped [his] guard down" and ceased to
be actively concerned.
Anderson also met with Rex Simpkins, another County
Commissioner. Mr. Simpkins stated that the County was
confident that it owned the roads and that the Andersons'
claims had no merit. Mr. Anderson testified that, during
these discussions, he never saw any documentation regarding
exactly how or where the collection systems were going to
meanwhile, was working on its plan. It obtained zoning
certificates and building permits in February 2017.
March 29, 2017, and April 5, 2017, the local newspaper posted
a temporary road closure notice, stating that
"construction and feeder routes to the solar farms of
[GBS]" would begin on April 17, 2017, and it named Old
Princess Anne Road and Dublin Road as affected areas. Kevin
Anderson testified that he saw this notice in the paper. Also
on March 29, 2017, the Andersons received a form letter from
Algonquin Power advising them that the company had been
authorized "to begin work within the County Right of Way
for the completion of the Great Bay Solar I Project[, ]"
and that work would begin the week of April 3, 2017.
Construction began on the project on April 19,
Anderson testified that he was "aware that they were
contemplating burying cables in the roads" when he saw
GBS surveying Dublin Road and Arden Station Road in Spring
2015. He first learned that the cables were going to be
buried in Dublin Road and Old Princess Anne Road from the
public notice. The following colloquy then ensued about his
knowledge of the plan:
[Mr. Anderson]: The public notice that was in the paper
didn't tell us where and how, it just told us that these
roads would be closed for installation of cable. I mean I
never knew that they were going - I never knew that they were
going down the road excavating out a trench and backfilling
it with concrete until they started the work.
[Counsel for the Andersons]: Well, you must have had some
awareness or some idea that they were going to be doing this
on Dublin Road and Old Princess Anne Road bordering your
farms when you went to see the commissioners and county
[Mr. Anderson]: I knew that it was proposed and it was a
possibility but, for instance, Arden Station Road had been in
the project, had been surveyed and been a part of all of this
investigation but Arden Station Road was never used. And the
description from what they had signed with the county, they
had multiple roads listed. I mean they had more roads listed
than they used. So it was very vague, you know, and nobody
ever came - nobody ever came to us offering to give us
information, even though I was certainly asking for it. I did
not actually know the plan for Dublin Road until the
construction people got there and started putting up the
signs and I asked them. I didn't know if they were going
to trench it down the side of the road like they bury
existing electrical cable. Delmarva Power usually doesn't
dig up the road or excavate material out, they use something
called a plow and plow it in. And I didn't know what
technique they were going to use.
receiving the notice, Mr. Anderson went to the GBS work site
construction trailer to advise that he had a problem with the
project, and they were trespassing on his property.
April 2017, the Andersons retained legal counsel, who drafted
a letter to GBS stating the Andersons' objections.
Lacking the requisite contact information for the contractors
working on the project to copy them on the letter, counsel
asked Mr. Anderson to return to the work site trailer to
inquire about this information. On this second visit to the
trailer on May 11, 2017, Mr. Anderson spoke with a handful of
contractors, and for the first time, he saw the official
plans for the installation of the cable under Dublin Road.
Mr. Anderson reiterated his position that his property rights
were being infringed upon, and he requested that the
contractors stop immediately. One of the contractors
testified that Mr. Anderson stated during this visit that he
had no legal right to Old Princess Anne Road because it used
to be a state highway, but he argued that Dublin Road was his
Philpott, Senior Project Manager for Algonquin Power, and
GBS's expert witness, testified that they began
installing cables on Old Princess Anne on approximately April
19, 2017. On May 17, 2017, GBS received a cease and desist
letter from an attorney for the Andersons. On May 24, 2017,
GBS's attorneys replied, stating that GBS had been
granted easement rights from the County, the owner of the
public road. The letter asserted many of the claims raised
here, and it requested copies of any documents showing that
the Andersons owned the property. Additional correspondence
5, 2017, failing to resolve the issue out of court, the
Andersons filed a complaint. Kevin Anderson testified that
the reason for the delay between the final letter on June 16
and the initial complaint on July 5 was because they were
waiting on a search of the deeds and tracking down proper
titles. GBS asserts that, by the time the complaint was
filed, it had completed 90-95% of the work installing
collection systems along Dublin Road and Old Princess Anne
Road. Mr. Philpott testified that the cost of
installation under these roads was nine to ten million
dollars, and it would cost approximately two million dollars
to remove the cables.
July 5, 2017, complaint against GBS, the Andersons sought a
temporary restraining order and a preliminary and permanent
injunction enjoining GBS from trespassing on their land to
bury the collection systems beneath the roadbeds and a
permanent injunction requiring GBS to remove the collection
systems already laid and restore the roadbeds to their
preexisting condition. The Andersons stated that, unless GBS
was restrained from continuing to place "encased high
voltage electric cables" beneath the roads, they would
suffer "irreparable injury" because the concrete
wall would "severely limit and may even preclude
Plaintiffs from being able to run irrigation pipes and public
utility companies from being able to run ordinary utility
lines under and across the roads to provide needed
service," due to "the depth that would be required
for such crossings to maintain adequate separation from the
high voltage cables." They alleged that granting
injunctive relief was in the public interest because it would
reduce the amount of work needed to remove the concrete walls
and cables, which the Andersons noted would "be more
complicated, expensive and time consuming than their
installation, the cost of which is impossible to even
court held a hearing on August 8, 2017. On September 7, 2017,
the court issued an order granting a preliminary injunction.
The court noted that, at the time of the hearing, GBS had
completed the installation of cable in the portion of the
roads at issue on appeal, and the request for an injunction
prohibiting further cable installation was moot. The court
issued a preliminary injunction restraining GBS from placing
new asphalt on the road or installing cable under other
portions of Old Princess Anne Road.
next day, September 8, 2017, the Andersons filed an Amended
Complaint for Declaratory Judgment, Injunctive and Other
Relief. The amended complaint added the County as a
defendant, and it requested a declaratory judgment that the
Andersons owned in fee simple the land beneath Old Princess
Anne Road and Dublin Road where the roads abut the
Andersons' farms and that GBS's cable installation
constituted an unlawful trespass on their property. It also
sought an order directing GBS to remove the collection
systems, refill the trenches, and repave the road surfaces,
as well as an order granting the Andersons a permanent
injunction restraining GBS from burying electrical cable
under the roads.
October 27, 2017, GBS filed a Counterclaim for Declaratory
Judgment, requesting that the court declare that the County
either owned the roadbeds or had an interest sufficient to
grant GBS the right to install the collection systems.
Alternatively, it requested a declaration that the Andersons
were "precluded from the equitable relief they seek
based on the doctrines of waiver, estoppel and laches."
regard, GBS alleged that, after providing notice on March 29,
and April 5, 2017, the installation of the collector lines
would begin, GBS began installing the cables in the roadbed
of Old Princess Anne Road "in plain view of" the
Andersons, and they completed the work on approximately May
19, 2017. They began installation under Dublin Road on
approximately June 19, 2017, and at the time of the filing of
the counterclaim, it had completed the installation of 9, 750
feet of collector lines.
also alleged that roads have a nominal value of one dollar in
the context of condemnation proceedings. As another
alternative, GBS requested that the Andersons were entitled
to payment of one dollar for GBS's use of the roadbeds.
circuit court held a three-day bench trial on June 20-22,
2018. On August 30, 2018, the court issued an Opinion and
Declaratory Judgment. It included, among other things, the
following factual findings:
4. Somerset County has maintained Dublin Road and Old
Princess Anne Road for decades. In addition to maintaining
the surface of the roads, the County has maintained the
subsurface of said roads, including the maintenance of
drainage pipes and culverts underneath the roadbeds. These
pipes and culverts benefit the farms that Plaintiffs own.
5. In March and April of 2015, Plaintiffs negotiated with
Great Bay to lay cable under Plaintiffs' farms, the
negotiations failed and, on or about 29 June 2015, Great Bay
entered into an Easement Agreement with Somerset County to
lay cables under certain County roads.
6. In January 2016, Plaintiffs began surveying Old Princess
7. In February 2016, Plaintiffs learned the County and Great
Bay had entered into an Easement Agreement to install the
cables under County roads.
8. On 3 March 2016, Plaintiff Kevin Anderson participated in
a Planning and Zoning Commission meeting in which cable
installation under Old Princess Anne Road, Dublin Road, and
Arden Station Road was discussed; he also voted to approve
the proposed cable installation.
9. In late 2016, both Plaintiffs informed County
Commissioners Charles Fisher and Rex Simpkins that they
objected to cable installation under Old Princess Anne Road,
Dublin Road, and Arden Station Road, on the theory that they
actually own the roads; Mr. Fisher and Mr. Simpkins responded
that the County owns the roads, and Mr. Simpkins said,
"If you disagree, that's why we have a
10. On or about 29 March 2017, Plaintiffs received a form
letter from the County informing them that portions of Old
Princess Anne Road, Dublin Road, and Arden Station Road would
soon be closed to accommodate cable installation; and, at
about the same time, Plaintiffs saw a notice to that effect
in a local paper.
11. On or about 5 April 2017, Plaintiffs again saw a notice
in the local paper warning that the three roads which are the
subject of this suit would soon be closed to accommodate
12. Shortly thereafter, cable installation began on Old
Princess Anne Road, and was completed by early May, when
cable installation began on Dublin Road.
13. On or about 16 May 2017, Plaintiff Kevin Anderson entered
a trailer serving as a field headquarters for Great Bay work
crews installing the cable, informed the workers that he and
his father were asserting ownership to Dublin Road, and asked
for contact information so he or his attorney could write
Great Bay demanding installation stop.
14. On 17 May 2017, [counsel for the Andersons] wrote on
behalf of Plaintiffs to Great Bay, asserting that Plaintiffs
own Old Princess Anne Road and Dublin Road, or portions of
them, and demanding installation stop.
setting forth these factual findings, the court then stated
that it had reached the following "conclusions of
a. Neither Plaintiff has met his burden of proof that he has
a fee simple ownership interest in either Dublin Road or Old
Princess Anne Road;
b. Somerset County has failed to prove that it owns a fee
simple interest in said roadbeds whether by patent, deed,
adverse possession, eminent domain, dedication, or any other
c. Somerset County is lawfully maintaining the surface of
both Dublin Road and Old Princess Anne Road, as well the
subsurface culverts, drains, pipes, and gutters used for
water run-off; and
d. By virtue of the finding of fact in paragraphs 4-14 above,
Plaintiffs are barred from any equitable relief they seek
based on the doctrines of waiver, estoppel, and laches.
court ultimately ruled that the County "possesses
sufficient interest in Dublin Road, and Old Princess Anne
Road to grant to Great Bay Solar I, LLC the right to install
the collection system in such roadbeds in accordance with the
terms of the Easement Agreement," and therefore, GBS had
"the legal right to install its collection systems in
the roadbeds." Accordingly, the court denied the request
for permanent injunction requiring GBS to remove the
collection systems and prevent additional installation of the
Andersons' appeal, and the cross-appeals of GBS and the
Md. Rule 8-131(c) provides:
When an action has been tried without a jury, the appellate
court will review the case on both the law and the evidence.
It will not set aside the judgment of the trial court on the
evidence unless clearly erroneous, and will give due regard
to the opportunity of the trial court to judge the
credibility of the witnesses.
Court of Appeals has further described the standard of review
under Md. Rule 8-131(c), as follows:
We give due regard to the trial court's role as
fact-finder[, ] and will not set aside factual findings
unless they are clearly erroneous. The appellate court must
consider evidence [that is] produced at the trial in a light
most favorable to the prevailing party[, ] and[, ] if
substantial evidence was presented to support the trial
court's determination, it is not clearly erroneous[, ]
and cannot be disturbed. Questions of law, however, require
our non-deferential review. When the trial court's
decision involves an interpretation and application of
Maryland statutory and case law, [this] Court must determine
whether the trial ...