The conclusion reached by the Court in this case is that the case be remanded for the taking of additional testimony to determine whether the appellees have another outlet from their property to a public highway. I think the case should be reversed without a remand, on the ground that the deed in this case negatives any implication of a way of necessity, even if the necessity be shown.
The general rule was clearly stated by this Court, speaking through Judge Delaplaine, in the recent case of Greenwalt v.McCardell, 178 Md. 132, 139, 12 A.2d 522, 525: "Necessity of itself does not create a right of way; it is merely a fact offered in evidence to show an intention *Page 324 to establish a right of way by raising a presumption of a grant. Whether or not an easement is intended depends upon the provisions of the deed and the facts in each particular case.Doten v. Bartlett, 107 Me. 351, 78 A. 456, 458; 17 Am. Jur.,Easements, Sec. 48."
In Fox v. Paul, 158 Md. 379, 148 A. 809, 812, this Court said: "This right (to a way of necessity) does not arise from an express grant, but from a presumption that it was the intention of the parties that the grantee should have access to his lands over the lands of the grantor."
In Duvall v. Ridout, 124 Md. 193, 198, 92 A. 209, 211, there was testimony as to a verbal agreement that the grantee would be permitted to use the way in question. This the grantee denied. The Court said: "As the appellant (grantee) is insisting upon an absolute right to the continued and perpetual use of the roadway as an incident of the grant and as appurtenant to his property, he is, of course, not claiming and could not be given, the benefit of the alleged agreement, which he disputes and disavows, that he should have a permissive user of the way during his individual possession of the land [conveyed]."
In the early case of McTavish v. Carroll, 7 Md. 352, 361, 61 Am. Dec. 353, this Court distinguished the case of Spencer v.Spencer, 2 Ired. Law 96, 24 N.C. 96. In that case a deed from Spencer to Jones contained the words "a privilege of two leading ditches to Tucker Spencer excepted." A deed of the reserved property from Spencer to Tucker was silent as to the right retained. Ch. J. Ruffin said: "The grant was, therefore, personal to Tucker Spencer, and the right to the easement expired, at all events, with his life, and did not come to his son and heir, the defendant." This Court said: "It is evident the decision in that case rested, exclusively, upon the proper construction of the particular exception referred to. And such an exception being in the deed, the court may have considered it as precluding any further or more extensive right, by implied reservation or exception, because expressio unius est exclusio alterius." *Page 325
In the case of Doten v. Bartlett, supra [107 Me. 351,78 A. 458], cited with approval in Greenwalt v. McCardell, supra, the Maine Court said: "The presumption, however, is one of fact and whether or not the grant is to be implied in a given case depends upon the terms of the deed and the facts in that case. To illustrate * * * we can conceive of a case where the owner of the front lot would be willing to convey the rear lot provided there would be no right of way over the front lot, and the grantee would be willing to take his chances of procuring an outlet over some other adjoining land. Under such circumstances the deed might convey the rear lot and distinctly recite that there was granted no right of way of necessity or otherwise over the front lot. There can be no doubt that in such a deed there would be no implied grant, and the grantee would acquire simply what he had purchased — the lot without the way." The court found from the language of the deed that no easement was reserved.
In Orpin v. Morrison, 230 Mass. 529, 120 N.E. 183, 185, the court cited and relied upon Nicholas v. Luce, 24 Pick., Mass., 102, 35 Am. Dec. 302, a case cited by this Court in the case at bar. Ch. J. Rugg said: "It is not the necessity which creates the right of way, but the fair construction of the act of the parties. Necessity is only a circumstance resorted to for the purpose of showing the intent of the parties. * * * It is a strong thing to raise a presumption of a grant in addition to the premises described in the absence of anything to that effect in the express words of the deed. Such a presumption ought to be and is construed with strictness. There is no reason in law or ethics why parties may not convey land without direct means of access, if they desire to do so." The Court found that a verbal agreement between the parties as to permissive use negatived any implication of the reservation of an easement.
In an article by Simonton entitled "Ways of Necessity" in 33 W.Va. L.Q. 64, the author inquiries: "Is the so-called presumption of intent conclusive, or may it be *Page 326 overcome by showing the real intent of the parties? To put it in terms of public policy, are the interests in favor of allowing the easement strong enough to overcome the contrary expressed intent of the parties? Some presumptions in our law are so strong that they have become conclusive, as, for example, the presumption of a lost grant from adverse user for the requisite period. But it seems the presumption as to an easement by necessity may be overcome by showing the actual contrary intent of the parties. Seemingly the law allows a landowner to cut off all his rights of access to his land if he so desires." See also note 19 Ore. L.R. 362.
The presumption is raised on account of the public policy against the possible loss of utility in the case of landlocked property; but generally the obtention of a right of way is merely a matter of dollars and cents, and where the parties bargain at arms' length, the Court will not deprive the grantor of the benefit of his bargain. There is a contravening public policy in favor of freedom of contract between private parties. Thus, the presumption being merely one of fact, it is rebuttable in each case.
The Maryland authorities, in accord with the authorities elsewhere, seem to hold that any language in a deed that fairly indicates an intention not to create an easement by necessity will prevent its creation. I think there is only one inference than can be drawn from the limited license incorporated in the deed in the case at bar; permission to use a specified way for a limited time negatives any implication of an intention to create an easement. An assignee of the grantee takes with notice of this provision in the deed, and it is difficult to see how he can obtain greater rights in the property than those possessed by his predecessor in title.
For these reasons, I think there can be no implication of a grant in the case at bar, even if necessity be shown, and that the decree of the chancellor should be reversed and the bill dismissed.
GRASON, J., concurs. *Page 327