Gwynn v. Oursler

BECKER, Judge,

concurring and dissenting.

I agree with the holding that the trial court was not clearly erroneous in concluding that the intention of the grantor was not to expressly convey the right to construct a pier appurtenant to the right-of-way in the 1957 deed creating the easement as alleged in Count III of the complaint below. I disagree, however, on grounds that the majority opinion does *503not address the failure of the trial court to properly rule on two issues set out below.

Rule 2-522. Court decision — Jury Verdict reads:

(A) Court decision. In a contested court trial, the judge, before or at the time judgment is entered, shall dictate into the record or prepare and file in the action a brief statement of the reasons for the decision and the basis of determining any damages.

Md. Rule 2-602 requires adjudication of all claims against all parties as noted by the Court of Appeals:

If a ruling of the court is to constitute a final judgment, it must have at least three attributes: .... (2) unless the court properly acts pursuant to Md. Rule 2-602(b), it must adjudicate or complete the adjudication of all claims against all parties....

Rohrbeck v. Rohrbeck, 318 Md. 28, 41, 566 A.2d 767 (1989).

Whether a judgment has been rendered is a determination that must be made on a case by case basis and that ‘turns on whether the court indicated clearly that it had fully adjudicated the issue submitted and had reached a final decision on the matter at that time.’

Board of Liquor v. Fells Point Cafe, 344 Md. 120, 128, 685 A.2d 772 (1996) (quoting Davis v. Davis, 335 Md. 699, 646 A.2d 365 (1994)).

Thus, it is required that a trial judge adjudicate all of the issues raised and give an adequate explanation in the record of his determination. I would find that here there was a failure to do so, as required by the authorities just cited. See the Record Extract pp. 421 to 429, particularly pp. 428-429.

The first issue not addressed is that raised initially in Count II of the Complaint below and in their Argument I in their appeal that the appellants have an implied easement to construct and use a pier appurtenant to their easement to use the channel of the Patuxent River/Island Creek.

Easements by implication may be created in a variety of ways, ... and implied grant or reservation where a quasi-*504easement has existed while the two tracts are one ... An implied easement is based on the presumed intention of the parties at the time of the grant or reservation as disclosed from the surrounding circumstances rather than on the language of the deed ... As a result, courts often refer to extraneous factors to ascertain the intention of the parties. (Citations omitted.)

Boucher v. Boyer, 301 Md. 679, 688, 484 A.2d 630 (1984).

The second issue not addressed is that raised initially in Count V and in Argument II that the appellants are the dominant owner of the easement and by virtue of that, should be permitted by Calvert County to construct a pier appurtenant to the right-of-way.

I would find that the trial court did not adequately rule or, at least, make an adequate statement on the record of his decision concerning these two issues, particularly the first which was properly raised in this appeal.

Therefore, I would remand this case back to the Circuit Court for Calvert County for compliance as noted.