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Court of Special Appeals Disfavors Declaring Hostile use of Land

Rupli v. South Mountain Heritage Society, Inc.
No. 2555 (Md. Ct. Spec. App. December 22, 2011)

by Gregory L. Arbogast, Associate
Semmes, Bowen & Semmes (

This is a property law case in which the owners of a home attempted to continue use of a well on their neighbor’s property. The home owners attempted to argue that they enjoyed a prescriptive easement, due to their open and hostile use of the well for almost three (3) decades. The Maryland Court of Special Appeals, however, found that the owner of the dominant estate enjoyed a presumption that the servient estate was operating under a mere license and the dominant estate could revoke that license at any time.

Rupli v. South Mountain Heritage Society, Inc. arose out of a dispute between neighbors over the use of a well, the use of which started sometime before 1973. In 1965, Moran Enterprises, Inc. (“Moran”) purchased a property at 1 E. Main Street, Burkittsville, Maryland (the “Moran Property”). The property next door (the “RRCB Property”) was owned by Resurrection Reformed Church of Burkittsville (“RRCB”). It turned out that the well on the Moran Property was contaminated, so sometime before 1973, RRCB permitted Moran to use the well on the RRCB Property. With RRCB’s permission, Moran ran piping from the RRCB Property’s well onto the Moran Property.

This case was complicated by the eventual sale of both the RRCB Property and the Moran Property. In 1973, the Rupli family (“Rupli”) purchased the Moran Property from Moran. Moran advised Rupli that the Moran Property used water from the well on the RRCB Property, with RRCB’s permission, and Rupli continued use of that well after the sale. In 1970, South Mountain Heritage Society, Inc. (“SMHS”) purchased the RRCB Property. SMHS knew of Rupli’s use of the well, but did not take any action to prevent Rupli from using the well until November 16, 2005, when SMHS directed Rupli to disconnect from the well because it had decided to hold events at the church, which would required indoor plumbing. Rupli refused.

SMHS filed this action to quiet title and declare that Rupli did not have an easement on the RRCB property. The parties filed cross motions for summary judgment and the Court granted judgment in favor of SMHS. The intermediate appellate court reasoned that Rupli’s use of the well was presumptively permissive, which created a mere revocable license. The Court held that Rupli did not set forth sufficient facts to rebut the presumption that its use of the well was permissive.

Rupli noted this appeal, claiming that the trial court erred by failing to construe all facts and inferences in its favor. Specifically, Rupli argued that a jury could find Rupli’s use of the well hostile, thus creating an easement by prescription. The Court of Special Appeals noted that the entire appeal hinged on which party held the benefit of a presumption and which party bore the burden of production. The Court of Special Appeals ultimately found that the law disfavors easements by prescription. Therefore, the Court held that, irrespective of the sale of both properties, when use of a property starts as permissive, the presumption will lie that the use continues as permissive- not hostile. As such, the Court of Special Appeals affirmed the Circuit Court.