Maryland Society of SurveyorsApril 9, 2021

AN ACTION TO OUIET TITLE - WHAT IS IT ANDWHAT IS THE SURVEYOR'S ROLE?

The subject of this Webinar will focus on the legal remedy of "quieting the title" to land when itstrue ownership is in doubt. Often times attorneys, title examiners and surveyors find that the titleto and the ownership ofa parcel of land is not clear and confusing from an examination of thepublic records, and that the ownership may be in dispute. This Webinar will explore the judicialmethod and possible remedy for determining the true owner ofthat land, by reviewing Maryland'sstatutory law on the subject, along with actual case studies, and the surveyor's important role inthis process.

Introduction: "An Action to Quiet Title" is a remedy which is provided by both Maryland'sstatutory and case law, in order for lawyers and their clients to attempt to have determined thetrue ownership of real property, and for the courts to resolve the legal dispute as to suchownership. But the main question which I always ponder is: What does the surveyor need to knowabout this judicial process, and why is it important for the surveyor to know anything about thatprocess?

My focus on this discussion, as both an attorney and a land surveyor, is to attempt to teach thesurveyors the importance of knowing all aspects of those portions of real estate law which thesurveyor is bound to come into contact with in his or her practice; and that any attempt to "quietthe title" to a parcel of land most assuredly must involve the land surveyor.

And, as stated in Clearing Land Titles, by Professor Paul E. Basye: "suits to quiet title are thetraditional remedy to clear titles of their defects. They Isuits/actionsi are likely to becomplicated, time-consuming and expensive, especially when notice by publication isnecessary. They can seldom be conducted to a conclusion in time to satisfy an impatientpurchaser." [Please note that most of the bold type in this paper has been added foremphasis.1

§ 14-108 Quieting Title, Real Property ArticleAnnotated Code of Maryland

(a) Conditions. - Any person in actual peaceful possession of property', or, if theproperty is vacant and unoccupied, in constructive and peaceful possession ofit, either under color of title or claim of right by reason of the person or theperson's predecessor's adverse possession for the statutory period, when theperson's title to the property is denied or disputed, or when any other person

'Equity lacks jurisdiction where there is an adequate remedy at law to oust the possessor, and the remedy in that casewould be an action for possession (ejectment). § 14-108.1, Real Property Article, Annotated Code of Maryland; theground of equity jurisdiction is that, being in possession, the remedy at common law being a bill quia timet, and theowner is denied a remedy at law. Barnes V. Webster, 220 Md. 473, 154 A.2d 918 (1989).

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TI-IE DISP&JTED TITLE

claims, of record or otherwise to own the property, or any part of it, or to holdany lien encumbrance on it, regardless of whether or not the hostileoutstanding claim is being actively asserted, and if an action at law orproceeding in equity is not pending to enforce or test the validity of the title,lien, encumbrance, or other adverse claim, the person may maintain a suit inaccordance with Subtitle 6 of this title in the circuit court for the county wherethe property or any part of the property is located to quiet or remove any cloudfrom the title, or determine any adverse claim.

(b) Proceeding. - The proceeding shall he deemed in rem or quasi in rem so longas the only relief sought is a decree that the plaintiff has absolute ownership andthe right of disposition of the property, and an injunction against the assertionby the person named as the party defendant, of the person's claim by any actionat law or otherwise. Any person who appears of record, or claims to have ahostile outstanding right, shall be made a defendant in the proceedings.

A Classic Definition of a Quiet Title Action. A quiet title action requests ajudicial determinationof all adverse claims to disputed property. Such an action determines the ownership of realproperty as between the parties, formally resolving the issue of ownership among competingcolorable claims. The purpose of a quiet title action is to protect an owner of legal title frombeing disturbed in his or her possession and from being harassed by suits in regard to that titleby persons setting up unjust and illegal pretensions.2

Subtitle 6. Actions to Quiet Title, § 14-601, et seq., Real Property ArticleAnnotated Code of Maryland(Effective on October 1, 2016)

This section of the Real Property Article is an expansion of § 14-108, with its intent and purposeto make it clearer as to how an action to quiet title is to be plead and how to obtain jurisdiction onthe necessary parties. It gives detailed guidance on how parties are to be name in the complaint,the content of the complaint and answer, how to name unknown defendants and when theirwhereabouts are unknown, the effect of a defendant's death, the power of the court to order forjoinder of other parties and the procurement of a title report, the naming of additional defendants,the appointment of an attorney to protect the interest of a party, the procedure for service bypublication and posting, the recordation of a judgment in the action and its effect, among otheritems to be consider in a process and proceedings of a quiet title action.

The background to the enactment of this section of the Maryland Code is that The Maryland LandTitle Association reported that its members were seeing inconsistent processes used from case tocase and from county to county. In addition, because of the uncertainty concerning the processunder the then existing laws, title insurance underwriters would, in some cases, refuse to insurethe title.

2 Porter v. Schaffer, 126 Md. App. 237,728 A.2d 755 (1999) [See page 4 of 13 below].

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N&H

Maryland Rule 12-801, et seq.

By virtue of Subtitle 6 as cited above, new rules were promulgated by the Court of Appeals,effective April 1, 2017, to govern actions to quiet title, and which applied retroactively to allcases then pending in the courts; and which pertained to the required content of the complaint, thejoinder of additional parties, including deceased parties, and the other matters contained in Subtitle6.

Note: The content of both Subtitle 6 and the Maryland Rule 12-108, unlike most statutesand rules, is akin to a cookbook recipe in giving the plaintiff and his attorney a list to follow as tohow to draft a complaint to quiet title.

Estate of Charles Howard Zimmerman, Robert Clayton Stevens, Personal Representativev. Erich E. Blatter, et ux.

458 Md. 698, 183 A.3d 223 (2018)

The Estate of Zimmerman filed in the Circuit Court for Frederick County, Maryland a complaintagainst the respondents seeking to quiet title to an area of land (the "Disputed Property") by thedoctrine of adverse possession; and the respondents filed a counterclaim against the Estate fortrespass. No record owner of the Disputed Property was not named as a party in the action to quiettitle. The circuit court ruled that, "as between the parties," the Estate had the right to possess anduse the Disputed Property by adverse possession, and denied the counterclaim. The circuit courtnoted, however, that it could not rule that the Estate had "absolute ownership" of the DisputedProperty because no record owner had been made a party to the action - the circuit court did notdetermine ownership of the Disputed Property, and both parties appealed.

In an unreported opinion3 by the Court of Special Appeals, the court's judgment was vacated withinstructions to dismiss the case. The Estate then filed a motion for reconsideration, which wasdenied, and the Court of Appeals then granted the Estate's petition for a writ of certiorari.

While this case had been pending in the Court of Special Appeals, the Maryland General Assemblyadded the above cited § 14-601, et seq., as those sections pertained to actions to quiet title, whichprovides the way in which the deceased record owner is to be named as a party which was notdone in this Zimmerman case. The Court of Appeals ruled that these new requirements appliedretroactively. The proper way to have plead this case would have been to join as a defendant therecord owner's "testate and intestate successors," and all persons who would claim "by, throughor under" that person.

The "bottom line" to this case is that in an action to quiet title under this somewhat new statuteand rules is that the record owner is a necessary party to the action, whether dead or alive.

Note: It is one person's view that too much unnecessary ink was spilled in writing this 29page opinion on a somewhat narrow issue - i.e., the failure to include a necessary party.

An unreported opinion may not be cited in any paper, brief, motion, or other document filed in any Marylandcourt, as either precedent within the rule of stare decisis, or as persuasive authority. Maryland Rule 1-104.

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Particular Claims Clouding4 Title:

A forged deed in the chain of title.

An allegation that in a partition suit there were claims by some of the heirs which may haveadversely affected the purchaser's title.

To terminate a dormant mineral interest, which is generally described as being an interest in amineral estate, however created and regardless of form, and which is unused for a period of 20 ormore years preceding the commencement of termination of said interest. § 15-1203, Subtitle 12,Maryland Dormant Mineral Interests Act, Environment Article, Annotated Code ofMaryland.

A deed which was about 100 years old, and which conveyed 30 acres or realty, and reservedtherefrom "the graveyard situated on" the realty, the graveyard "to be 50 feet square" and "to beused only as a burial place by the grantor and his or her heirs with free ingress and egress," but thegrantor was not buried on the realty and no graveyard could be found anywhere thereon.McDonough v. Roland Park Co., 189 Md. 659, 57 A.2d 279 (1948).

The alteration of a deed by the grantor after its delivery by the insertion of thename of an additionalgrantee.

An unfounded claim of an easement.

The non-existence of a land patent which had been applied for more than 177 years ago, but neverresulted in the official granting of the patent. Ski Roundtop v. Wagerman, 79 Md.App. 357, 556A.2d 1144 (1989).

An outstanding recorded mortgage, which apparently had been paid and satisfied, but when therewas no one available with the proper authority to sign a release.

A dispute concerning overlapping land patents in Allegany County, dealing with adversepossession, modem day surveys, color of title, adjoining boundary lines, and the concept of "on-the -ground location," among other boundary and title related topics. Porter v. Schaffer, 126Md.App. 237, 728 A.2d 755 (1999).

Quiet title was the appropriate remedy in a dispute between two landowners over the boundaryline between their properties; the title controversy existed because one landowner denied theadjoining landowner's claim that he had title to the land on one side of the boundary fence, andcontested the adjoining landowner's evidence that he had acquired the property through adversepossession. Lollar v. Maness, 765 S.W. 2d 695 (Mo. Ct. App., 1989).

' A "cloud" on title is an outstanding instrument, record, claim, or encumbrance that is actually invalid or inoperative,but may nevertheless impair the title to property. 65 Am Jur 2d, § 13, Quieting Title. A cloud on title is anything whichis calculated to cast doubt or suspicion on the title, or seriously to embarrass the owner, either in maintaining his orher rights or in disposing of the property, Stewart v, May, Ill Md. 162, 73 A. 460 (1909).

This case also emphases the requirement that for a deed to be sufficient it must describe the property with"reasonable certainty." §4-101(a), Real Property Article, Annotated Code of Maryland.

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Three Delaware Quiet Title Cases: The court's denial of a prescriptive easement over an areaused by the general public, because the claimant did not perform some act to the knowledge of theservient owner which would clearly indicate the plaintiff's individual claim to a prescriptive use.Dewey Beach Lions Club, Inc. v. Craig A. Longanecker, et al., 905 A.2d 128 (2006); Where adisgruntled brother of the deceased filed an action claiming that he was a "joint tenant with rightof survivorship" with his brother to a property, and therefore the subject property should not havegone into the estate, but to the surviving brother by operation of law because the language in thedeed did not include the words "and not as tenants in common," the court ruled that the languagewas adequate enough to form a joint tenancy. Banks v. Banks, 135 A.3d 311(2016); A case dealingwith the ownership of a disputed parcel, with many ambiguities in the conveyancing instruments,and claims as to the significance of monuments, which were not included in the relevant deeds.Matter ofTax Parcel 2020 WL 1527079 (2020).

Maryland Rule 2-122. Process - Service - In Rem or Quasi in Rem6

(a) Service by posting or publication. In an in rem or quasi in rem action when the plaintiffhas shown by affidavit that the whereabouts of the defendant are unknown and thatreasonable efforts have been made in good faith to locate the defendant, the court mayorder service by the mailing of a notice to the defendant's last known address and:

(1) By the posting of the notice by the sheriff at the courthouse door or on a bulletin boardwithin its immediate vicinity, or

(2) By publishing the notice7 at least once a week in each of three successive weeks in one ormore newspapers of general circulation published in the county in which the action ispending, or

(3) in an action in which the rights relating to land including leasehold interests are involved,by the posting of the notice by a person authorized to serve process8 in accordance withRule 2-123(a) in a conspicuous place on the land.

Additionally, the court may order any other means of notice that it deems appropriate inthe circumstances.

(b) The mailing and the posting or publication shall be accomplished at least 30 days beforethe date by which a response to the complaint is to be filed.

(c) The notice shall be signed by the clerk and shall include the caption of the case; describethe substance of the complaint and the relief sought; inform the defendant of the latest date

6 Rem" is a proceeding which is taken directly against property; "That no man ought to be taken or imprisoned ordisseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived ofhis life, liberty or property, but by the judgment of his peers, or by the Law of the Land." Article 24. Due process,Maryland Declaration of Rights; and Amendment XIV, Section 1, Constitution of the United States ofAmerica.' The leading case for constitutional challenges to the validity of notice by publication in regard to unknown claimantsappears to have been answered by Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306 (1950), and inparticular with subsequent opinions; and with that decision being backed -up with specific respect to suits to quiet titlein Jacob v. Roberts, 223 U.S. 261 (1912) and America Land Co. v. Zeiss, 219 U.S. 47 (1911). In John T. B. Dorsey v.John T. W. Dorsey, 30 Md. 522 (1869), in a suit to foreclose a mortgage, the court ordered publication was upheld asvalid service of process, notwithstanding that the mortgagee was a non-resident of Maryland, and was in fact residingin the "hostile territory" of Virginia during the Civil War, and could not get back into Maryland to participate in theproceedings.8 Maryland Rule 2-123 allows that service of process may be made by a sheriff or, except as otherwise provide in thisRule, by a competent private person, 18 years of age or older, including an attorney of record [and a land surveyor]but not by a party to the action.

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Note:Nothing is to be relied on!

The Jamaica CemeteryJuly, 2020

by which the response is to be filed; warn the defendant that failure to file the responsewithin the time allowed may result in a judgment by default or the granting of the reliefsought; and contain any other information required by the court.

A Very Abbreviated Case Study:

Gordon Wrightfield approached his attorney in order to help him acquire a "deed" in his own namefor the area of his family cemetery, which he alleged that he and his father before him had beenmaintaining it as their own for more than seventy-eight (78) years:

The cemetery, known as the "Jamaica Cemetery," consisted of two (2) adjacentparcels of land, the total area of which being approximately one (1) acre;

One of the parcels was owned of record by Gordon's grandmother, MollyWrightfield, who had acquired that parcel in 1939, and who died circa 1961; andthe other parcel was owned of record by an Agnes Jones, who had acquired theproperty in 1887, and who died circa 1923. Molly and Agnes were somehowindirectly to one another;

Both Molly and Agnes died intestate - meaning that they had each died withoutleaving a last will and testament to be probated;

Molly's parcel was simply referred to in the neighborhood as "Molly's Parcel," andAgnes' parcel was simply referred to as "The Jones Burying Ground";

All of the available public records were examined, i.e. those records maintained bythe land and wills offices, the law and equity filings, the taxing authorities, the platrecords, and the State Archives; along with interviews of family members, all ofwhom had ancestors buried in the Jamaica Cemetery, going back into the early partof the 19th Century;

After listing to many antidotal stories about family relationships, lore and tales,including stories about unresolved disputes between family members, and evennoting the return addresses on old correspondence between family members, thenames and purported addresses of at least 85 members of the Wrightfield and Jonesfamilies could be determined, however, it was not always and completely certainhow all of these persons were actually related to one another;

It was a given that not all of the members of the Wrightfield and Jones familieswere known, or whether they were even living or dead, and then there is always thepossibility of illegitimate children, which no one wanted to acknowledge9;

At common law, a child born out of wedlock was regarded as fihius nullius, and as consequently bearing norelationship to any persons other than his own off -spring. Bastards are incapable of being heirs. Chapter XV,Blackctone 's Commentaries. This rule has been changed generally in this country by various statutory provisions, andthose persons born out -of -wedlock can therefore now inherit from an ancestor. Outlines of Real Property, § 384,Tiffany, Herbert Thorndike (1929); and § 1-208, Estates and Trust Article, Annotated Code of Maryland.

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Many known family members were scattered around the country, and found to belocated in Rockville, Frederick and Baltimore, Maryland, and in the District ofColumbia, Florida, Michigan, Nevada and Texas.

Except for a couple of small estates having been opened for a few deceased familymembers, solely for the purpose of transferring automobile titles as required by theMVA, no regular estates had been opened, thus making it next to impossible tocompletely and officially determine the genealogy of the respective families;

By inheritance law, each one of the 85 known members of the Wrightfield andJones families, and all those unknown who could possibly trace their respectiveancestry to either Molly or Agnes, would own a small real property interest in theWrightfield Cemetery were named as defendants - that would, of course, includegrandchildren, great-grandchildren, "long -lost" nephews, nieces, and cousins, etc.;

It was a certainty that there were many unknown descendants of Molly and Agneswho could not be identified, and therefore the number of persons who may havehad some remote real property interest in the Wrightfield Cemetery was certainlymany more than the 85;

As a result of a COMAR boundary survey of the Wrightfield Cemetery, 40 gravesites were identified, with not all of them being marked by monuments, and withmany of the inscriptions being worn out by age and were incapable of being read;and by observable ground depressions, it was obvious that there were other gravesites which were unmarked;

After the collection of the available evidence, a complaint to quiet the title to theWrightfield Cemetery was filed in the Circuit Court, requesting that the fee simpletitle be ordered and decreed to be vested in Gordon Wrightfield, by the commonlaw doctrine of adverse possession10;

Included as attachments to the complaint were verified releases which wereobtained from those members of the Wrightfield and Jones families who werewilling to release to Gordon any and all of their interest in the Wrightfield Cemeterywhich they may have had by inheritance;

As required by the Maryland Rules and statutes, service of process was achievedon all of the known defendants by personally serving upon them a copy of thecomplaint, along with a summons, or by certified mail, when an address wasknown, return receipt requested; and on the unknown defendants by posting a courtordered notice on the courthouse bulletin board, and by published the notice for

'° To establish title by adverse possession, the claimant must show possession of the claimed property for the statutoryperiod of 20 years. The "classic" definition of this doctrine is that such possession must be actual, open, notorious,exclusive, hostile, under a claim of title or ownership, and continuous or uninterrupted. East Washington Railway Co.v. Brooke, 244 Md. 287, 223 A.2d 599 (1966).

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three (3) consecutive weeks in a newspaper of general circulation, and by postingthe notice on both "Molly's Parcel" and "The Jones Burying Ground";The named defendants in the Complaint included all of the known persons who hadbeen identified by research in the public records, and their known addresses derivedfrom the families' oral histories, as outlined above; and included all of the unknownheirs, legatee, devisees, spouses, estates, personal representatives, testate andintestate successors of Molly and Agnes, and which also included all otherpersons claiming any interest in the subject properties;

Gordon died in 2019 and his widow was then appointed as the personalrepresentative of his estate, and thereafter she was substituted as the plaintiff in thiscase11;

Default judgments were entered by the court against all of those persons who hadnot responded to the complaint which had been served upon them in the maimersas described above, and judgments were also entered against those defendants whohad been personally served and had responded, but who did not appear in court onthe day of the trial;

For all of the many persons who had been identified in the complaint, and who mayhave had some real interest in the subject properties, only two (2) defendantsappeared on the day of trial!;

Much of the evidence concerned the manner in which Gordon and his father hadtaken care of the properties as if it were their own, by paying all the expendituresfor the upkeep of the Wrightfield Cemetery, shoving snow, cutting the grass,racking leaves, removing fallen tree branches, cutting back the shrubby, getting ridof nesting bees, chasing off trespassers, picking up beer cans and condoms left afterlate night partying in the cemetery, paying the real estate taxes each year, cleaningup the grave sites and the funerary objects, setting a fire to burn down a dilapidatedstructure on the property, repairing the boundary fences, and giving permission tocertain family member who wanted to have their deceased relatives buried in theJamaica Cemetery, inter a/ia;

During the one (1) day trial, nine (9) witnesses testified as to their personalknowledge of the Jamaica Cemetery, including how and by whom it was beingmaintained; and as to their knowledge of the relationships between the members ofboth the Wrightfield and Jones families; and

' All property of a decedent shall be subject to the estates of decedents law, and upon the person's death shall passdirectly to the personal representative [executor], who shall hold the legal title for administration and distribution,without any distinction, preference, or priority as between real and personal property. § 1-301(a), Estates and TrustsArticle, Annotated Code of Maryland. Prior to January 1, 1970, title to a decedent's real property passed directly tothe heirs or devisees upon death, and the personal representative of the estate, without express provision in the will,had no interest in the realty. Golden v. Walker, 260 Md. 222,271 A2d 639 (1970).

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The Opinion and Order entered four (4) months later by the Circuit Court, declaredthat Gordon's widow, as his personal representative, possessed the absolute titleand ownership, in fee simple, to the Wrightfield Cemetety, which included bothMolly's Parcel and the Jones Burying Ground.

What follows is an edited article which was published in The American Surveyor magazine in2014, which has a strong bearing on any discussion concerning quiet title actions, and which Ihope will not confuse the issue of determining land ownership any more than it is already.

"The Owner of the Property Is?"

One aspect of my law practice has always fascinated me, and that is: the process which one mustgo through in order to determine the true owner of a parcel of land. It may sound easy - but oftenit is not. What has brought me to write this particular article is an inquiry from one of my favoriteclients who raised a concern with me as to whether it is proper for her, or her "guys" in the field,to tell someone who may or may not have an ownership interest in a certain parcel of land.

Often times one sees surveyor's certifications on plats and surveys with language that purports toidentify the owner of the land which has been surveyed, without any credible qualifying languagewith respect to the source of that information. Telling or writing that someone owns a parcel ofland, when in fact he does not, can have severe consequences.

Over time there has developed in the law the action of "slander of title," which is defined as a falseand malicious statement, oral or written, made in disparagement of a person's title to real property,causing pecuniary loss. The purpose of this article is not to get into the minutia of how one wouldneed to prove a slander of title case, but only to make the reader aware of the potential liability ofgiving an opinion on the ownership of a certain tract of land, without knowing all of the facts andlaw which would actually determine the true owner.

It has been written many times that the surveyor must be careful to avoid offering a legal opinion'2;the surveyor is a collector of fact, not a judge or jury, and his duty is only to apprise his client ofthe presence of such facts as may be revealed by his survey; and based upon these said principals,the surveyor should never render an opinion as to who may own a certain parcel of land, either asit is shown by the latest recorded deed, or by alleged adverse possession.

It is a given that the average person (including many land surveyors) believe that in order todetermine the person, or legal entity, who may "own" a parcel of land, all that needs to be done isto look at the name of the grantee as written in the current deed, or review the tax information onthe State's website. If that were true there would be little reason to examine the public records foran established period of time in order to determine the true owner of the parcel, and to learn what

12 The Minimum Standard Detail Requirements for ALTA/NSPA Land Title Surveys (Effective February 23, 2021)make it clear that a surveyor should not express a legal opinion as to ownership or the nature of potentiallyencroaching items such as driveways, alleys and other ways of access.

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encumbrances may affect the parcel. The length of time for that examination is set by statute insome jurisdictions, and in others there is an established "rule of thumb" by custom, with a sixty(60) year period being commonplace.'3

Therefore, to give any opinion on the ownership of a parcel of land, within some reasonable degreeof certainty, each document pertaining to the parcel of land in the chain of title, during theprescribed period of time must be examined - ignoring for the moment what "unwritten rights"may exist, with those documents being found not only in the land records (the easiest source tofirst review), but in the equity (including domestic/family relations), law, judgment, wills, plat,patent, criminal, trust, miscellaneous petitions, and tax records, among others, all of which make-up the vast body of documents which are collectively referred to as the "public records." It maybe fair to state that most land surveyors have not been adequately trained, or have been given thetime, to examine all of those "public records," and then conclude who may actually "own" a certaintract of land.

In an Indiana case, the court award damages to a landowner for slander of title for comments madeby his neighbor, who admitted to making statements that he, rather than the landowner, owned adisputed area of land. In a Maryland case a landowner filed a claim seeking compensatory andpunitive damages for malicious interference with contracts and damages for slander of title becausehis neighbor claimed ownership of a parcel of land in dispute by virtue of the title deeds, and alsoby virtue of adverse possession for the statutory period. In an Illinois case it was decided that thewrongful filing of a document which casted a cloud upon another's title was held to be such an actof publication as to give rise to an action for slander of title; and in another similar case thedefendant was sued for slander of title when he had recorded a quitclaim deed, knowing it tobe frivolous, in order to cast a cloud on the title.

In Rounds v. M-NCPPC, 441 Md. 621, 109 A.3d 639 (2015), the plaintiffs alleged the tort of"slander of title" against the developer's surveying company, and the surveyor individually whohad certified to certain drawings, which the plaintiffs alleged that the defendants had ignoredcertain public records that had referred to a roadway, and had intentionally omitted references tothat roadway, and therefore falsely stated in development documents the title history of the land atissue. This Rounds case is unique in that the defendants were being sued not for what they wrote,but what they did not write!

In the trial court, the surveyors succeeded in getting the slander of title count dismissed, relyingon Carlotta v. T.R. Stark & Associates, Inc., 57 Md.App. 467, 470 A.2d 838 (1984), in which theplaintiffs brought suit against adjacent landowners for a continuing trespass, and against theadjacent landowners' surveyor for aiding and abetting the landowners "by negligently preparingan erroneous survey plat of the disputed property boundary." The trial court sustained thesurveyor's demurrer for failure to state a cause of action; and the Court of Special Appeals

E Not being able to cite any written authorities for this "rule of thumb," it may be logical, and it has been concludedby others, that this "rule" is a combination of three (3) common law statutes/rules affecting real property: (I) the 20year statute of limitations for adverse possession, Stat, of 21 James 1 (1621) [now §5-103(a), Courts and JudicialProceedings Article]; (2) The Rule Against Perpetuities of 21 years, after the death of a life in being, The Duke ofNorfolk Case (1682) [now § § 11-102, 11.102. 1 and 11-103, Estates and Trusts Article, inter a/ia]; and (3) the age ofmajority, which at one time was 21 years [now 18 years, § 1-401, General Provisions Article].

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affirmed, holding that "a surveyor of a disputed boundary line does not owe a duty of care to anon -reliant third party adjacent landowner."

To support a claim for slander of title, a plaintiff must plead facts sufficient to show: (1) a falsestatement, (2) that the false statement was communicated to someone else (publication), (3) malice,and (4) special damages. The Maryland Court of Appeals ruled in the Rounds case that thepublication of the alleged false surveys and other development documents could have affected themarketability of the plaintiffs' titles, such that they have been unable to list their properties forsale; and that therefore these allegations were sufficient to survive the defendants' motion todismiss, and ordered the parties to go to trial.

As stated often in many well -respected treatises on land title boundaries, a land surveyor cannotrender an opinion as to who owns a tract of land - the surveyor's responsibility is only to locatethe land in accordance with written descriptions, and to delineate such apparent unwritten andpossible rights which someone other than the record owner have in the land.

A recorded deed may be "good evidence" of the ownership of a parcel of land, but the truetest of "ownership" is determined by who has the better "title" to the land, which is not alwaysthat easy to determine, and certainly it cannot be decided by an attorney or a land surveyor, butonly by a court decision. Just because some deed or tax record may list a certain person as the"owner" of a parcel of land, that alone does not necessarily mean that that person has the "title" tothe parcel, and thus may not be the "true owner"!

Surveyors can never think that "title" is synonymous with a particular deed, or some otherform of a written instrument. By common definition of the term, when referring to real estate,"title" generally means that a person has the right to the ownership, or the right to the possessionof the land - as often written it is "the union of all the elements which constitute ownership."

Often times surveyors are lead astray by making the assumption, in drafting a "surveyor'scertification" or an "owner's dedication," that the only manner in which the legal title, and thusownership, passes to a person is by the execution and recordation ofa deed. Today, with the magicof the internet and its many websites, anyone with a keyboard can be led to believe that he candetermine who "owns" a parcel of land - ignoring, of course, the many errors that often times canexist on these websites, and in flawed documents that are found in the public records. But suchinternet research does not necessarily give one the correct answer.

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Title can often pass by the concept known as "operation of law," without the requirement for arecorded deed. Some examples of title passing, or the title being altered, without the benefit of aconfirming recorded deed are: (1) joint tenancy - upon the death of a joint tenant'4, the survivingjoint tenants become the full owners; (ii) tenants by the entirety - upon the death of one spouse'or once an absolute divorce is decreed between parties owning real estate as such tenants, theparties thereafter own the real estate as tenants in common; (iii) life estates - when the life tenantdies, the title is vested in the remaindermen - whoever they may be; (iv) estates - depending onstate law, title to a decedent's real property may have passed directly to the heirs - whoever theymay be, or the devisees upon decedent's death, without going through probate, and with thepersonal representative (the executor) never having an interest in the reality; (v) adversepossession -an adverse possessor acquires the fee simple title to a property at the moment of timewhen all of the elements of this common law action have been met, without any court action everhaving taken place; (vi) easement - the title to the area of an easement which has been abandonedmay have vested in the owner of the servient estate, free of the easement; (vii) possibility ofreverter or the termination of a determinable fee simple estate - the failure of a speciallimitation in a deed which results automatically in the reversion of an estate to the original grantorin fee simple absolute, without the need for an entry upon the land by the grantor; (viii) failure ofa condition subsequent - when an event gives rises to a right of entry, and in that case the grantordoes not obtain a fee simple absolute until he actually enters and retakes the land, as for example,when property is described in an ancient deed with a provision that simply states that the propertycan "only be used for school house purposes"; and (ix) escheat - upon the intestate death of theowner of land, and without any legal heirs, the land directly passes to the state.

Land surveyors should never give an opinion (written or oral) as to who "owns" a tract of land, asthat is beyond the scope of the surveyor's licensing laws.'6 Any statement made by a surveyorgiving the name of the "owner" of such land must always be done with great caution, and thatstatement must be clearly shown with a caveat that it is completely dependent upon informationas expressed in a creditable source, like a court order, a title insurance policy based upon a reliableand full title examination, or such other similar document; or even just a simple statement like:"according to the tax and assessment records," and not be just the surveyor's opinion.

" If the death of a person or the date of his death is at issue, he is not presumed dead in any proceedings... merelybecause he has been absent from his place of residence and not heard about for any stated period of time. The issueshall go to the court as one of the facts to be determined upon the evidence. §3-lOim, Courts and JudicialProceedings, Annotated Code of Maryland.' A final conviction of felonious, and intentional killing, conspiring to kill, or procuring the killing of a decedent isadmissible in a civil proceeding in which a person is allege to be a disqualified person and is conclusive for [notprofiting from the property or an interest in the property of the decedent's death - the "Slayer's Rule"] §11-112,Estates and Trusts Article, Annotated Code of Maryland.16 "It's not what you don't know that gets you into trouble, but what you are sure of that ain't true." Mark Twain.

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Never hesitate to contact me if you have any questions on any subject which you feel that I maybe competent to answer and discuss with you.

James J. Demma, EsquireMiles & Stockbridge P.C.11 North Washington Street - Suite 700Rockville, Maryland 20850Phone: (301) 517-4809Email: jdemma@milesstockbridge.com

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