Andersons v. Great Bay Solar, LLC, et al., No. 2387, September Term, 2018. Opinion by 

Graeff, J. 

PROPERTY — OWNERSHIP — PUBLIC HIGHWAYS

In the case of an ordinary highway, the general rule is that, absent evidence to the contrary, 

the public acquires only an easement of passage, and the adjacent landowner, subject to 

this easement, owns the land below the surface of the road. When a municipality acquires 

an easement of passage on a public street, however, it acquires the right to improve and 

maintain the road. Additionally, when land abutting a road is transferred, there is a 

presumption that title to the center of a binding street passes to the grantee under both 

common law and Md. Code (2015 Repl. Vol.) § 2-114(a) of the Real Property Article 

(“RP”). Absent evidence to the contrary, the Andersons’ evidence of their ownership of 

the farms established they own the land under the roads in fee simple, and the circuit court 

should issue a declaratory judgment in that regard.

PROPERTY — EASEMENT

An easement holder generally cannot use the land for any purpose other than that 

contemplated by the grant, although the scope of the easement may account for evolving 

uses consistent with the easement’s original purpose. Because the circuit court did not 

state the basis for its finding that the County had a “sufficient interest” to grant GBS the 

right to install the collections systems in the roads, and because factual findings are 

required to resolve this issue, the case must be remanded to the circuit court for clarification 

regarding this issue.

EQUITY — LACHES

Laches precludes equitable relief when there is an unreasonable delay in the assertion of 

rights, and that delay results in prejudice to the opposing party. A relatively short period 

of time may be found to constitute an unreasonable delay under the circumstances of the 

case. When a party knows that construction is scheduled to occur, they must diligently 

protest their rights, and waiting until the defendant incurs significant costs before filing 

suit may result in the claim being barred by laches. In this case, the court properly denied 

the Andersons’ request that the court order GBS to remove the cables and restore the roads 

to their previous condition.
Circuit Court for Somerset County

Case No. C-19-CV-17-000128

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 2387

September Term, 2018

______________________________________

WILLIAM H. ANDERSON

and

H. KEVIN ANDERSON

v.

GREAT BAY SOLAR I, LLC

and

BOARD OF COMMISSIONERS OF 

SOMERSET COUNTY

______________________________________

Graeff,

Nazarian,

Arthur,

JJ.

______________________________________

Opinion by Graeff, J.

______________________________________

_________________

Filed: December 18, 2019
Appellant, 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 electric grid.

1

In 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.

On 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 

 

1 GBS states in its brief that its solar facility in Somerset County 

“harvests” solar energy, which then must be converted to markable electricity 

at an offsite substation. The solar energy is conveyed to the substation via 

underground transmission cables (“collection systems”) from five solar 

“farms” in the area near Appellants’ property. Great Bay is engaged in the 

business of producing and selling the electricity generated by the solar 

facilities into the electrical grid.
2

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.

On 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.

On 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.”

On 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?
3

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?

On cross-appeal, GBS and the County raised the following additional question:

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?

For the reasons set forth below, we shall affirm, in part, and reverse, in part, the 

judgment of the circuit court and remand for further proceedings. 

FACTUAL AND PROCEDURAL BACKGROUND

A.

The Solar Project

Appellants, 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.

This 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 
4

border of the Ben Barnes Farm. Dublin Road terminates at Old Princess Anne Road at the 

northwest border of the Ben Barnes Farm.

2

In 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.

3

 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 the Andersons.

Kevin 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-ofway.” 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 

 

2 Arden Station Road initially was included in GBS’s collection system plans, but 

this plan was dropped.

3 The project initially was planned as a wind project, but the plan subsequently 

switched to a solar project.
5

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.” 

In 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.”4

On June 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[.]

“Public 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 

 

4 Mr. Barnes testified that he first learned of Kevin Anderson’s concern in February 

2016, at which time they discussed the County’s intent to enter an agreement with GBS to 

run transmission lines down the roads, including Old Princess Anne Road and Dublin 

Road. Given the timing of the County’s ultimate agreement in June 2015, the meeting 

most likely was in 2015.
6

lesser or conditional estate, grant or leasehold interest by the County in those certain rightsof-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.

The GBS 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 rejected.”

Kevin 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 County.

At a 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 “entirely off-site.”

On 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.”
7

At the 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.”

The 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.

On 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 ditches.”

Also in 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.
8

At the March 3, 2016, meeting, approval of the site plan for GBS’s solar project was 

a central topic of discussion.5 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.

6

Following 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 

 

5 The minutes refer to the project as the “Algonquin Solar Project.” Algonquin 

Power was the parent company of GBS at the time of this meeting, having acquired it from 

Pioneer Green in August 2015.

6 David Philpott, Senior Product Manager with Algonquin Power, testified that it 

was “well known” to members of the Planning Commission since March 2016 that 

collection lines would be installed underneath the roadbeds of Dublin Road and Old 

Princess Anne Road.
9

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.7

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.

Mr. 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 run.

GBS, meanwhile, was working on its plan. It obtained zoning certificates and 

building permits in February 2017.

On 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 

 

7 The Emission Reduction Credit Program is an environmental credit program used 

to as an incentive to reduce air pollutants in accordance with the Clean Air Act. Melissa 

Hearne, Pulling Profit from Air, 35 Md. B. J. 22, 23 (2002). 
10

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, 2017.8 

Kevin 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 attorney?

[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 

 

8 Kevin Anderson testified that the collection system was buried under the 

westbound lane of Dublin Road and the northbound lane of Old Princess Anne Road to 

maintain traffic flow during construction. The northbound lane of Old Princess Anne is 

the side of the road abutting the Ben Barnes Farm.
11

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. 

After 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.

In 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 property.

David 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 
12

for the Andersons.9 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 ensued.10

On July 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.11 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.

 

9 Kevin Anderson testified that he retained counsel in reaction to the public notice 

and form letter on March 29, 2017. The delay in action between the March 29 notice and 

the May 17 letter was due to his dissatisfaction with his previous attorney’s response to the 

matter, which forced him to shop around for a new local attorney, many of whom had 

conflicts with the County.

10 The Andersons’ attorney responded via e-mail on June 5, 2017, re-stating their 

claim that the County did not have the authority to grant the easement. GBS’s attorney 

stated at trial that he never received this e-mail from the Andersons’ attorney because it 

was sent to the wrong address. On June 16, 2017, GBS’s attorney sent a “follow up” letter 

stating that they had not received a response, and please reply.

11 Cable installation on Old Princess Anne Road began in mid-April and was 

completed by mid-May; the cable installation then began on Dublin Road.
13

B. 

Procedural History

In the 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.12 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 

 

12 The complaint stated:

The procedure for the installation of Defendant’s cable consists of 

excavating a trench through the road pavement that is approximately two feet 

wide and four feet deep, selling or otherwise arranging for the removal of the 

excavated dirt to or by third parties, laying the cable on the dirt at the bottom 

of the trench, filling up the trench with concrete so as to be level with the 

road surface, thereby creating an uninterrupted, underground 2’x4’ concrete 

wall under the road surface.
14

“be more complicated, expensive and time consuming than their installation, the cost of 

which is impossible to even estimate.” 

The 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.

The 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.

On 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.” 
15

In this 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.

GBS 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.

The 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 Anne Road.

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 
16

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 courthouse.”

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 cable installation.

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.

After setting forth these factual findings, the court then stated that it had reached the 

following “conclusions of law”:

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;
17

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 method.

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. 

The 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 systems. 

The Andersons’ appeal, and the cross-appeals of GBS and the County, followed.

STANDARD OF REVIEW

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.

The 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 
18

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 court’s conclusions are legally correct. Where a case 

involves both issues of fact and questions of law, this Court will apply the 

appropriate standard to each issue.

Estate of Zimmerman v. Blatter, 458 Md. 698, 717–18 (2018) (quoting Bottini v. Dep’t of 

Fin., 450 Md. 177, 187 (2016)). 

DISCUSSION

I. 

Ownership Interest in the Roadbeds

The Andersons and the County each contend that they have a fee simple interest in 

Old Princess Anne Road and Dublin Road. They each assert that the circuit court’s finding 

that they failed to show fee simple ownership was erroneous.

The Andersons contend that their expert witness, Christopher Custis, a licensed 

property line surveyor, traced the Andersons’ ownership “back to original land patents 

granted by the State of Maryland or its predecessor, the Lord Proprietor, and through the 

fee simple deeds to them.”13 With respect to Dublin Road, which was established after the 

 

13 “Land patents are the first link in the chain of title of ownership of land in 

Maryland.” Marquardt v. Papenfuse, 92 Md. App. 683, 689, cert. denied, 328 Md. 93 

(1992). In 1632, King Charles I granted Maryland to the Calverts, making Lord Baltimore 

the Lord Proprietor of Maryland, having the right to grant land to others by means of 

patents. Id. at 689–90. Accord Maryland Coal & Realty Co. v. Eckhart, 25 Md. App. 605, 

606–09, cert. denied, 275 Md. 753 (1975). Article 5 of the Maryland Declaration of Rights 

confirmed that the “Inhabitants of Maryland are also entitled to all property derived to them 

from, or under the Charter granted by his majesty Charles the First to Caecilius Calvert, 
19

patents for the land had been granted, they assert that the evidence presented, as well as the 

lack of any “recorded deed or other instrument” conveying fee simple title of the road to 

the County, shows that they own the land on which the road rests, “subject to the County’s 

right-of-way easement.”

With respect to Old Princess Anne Road, abutting the Ben Barnes Farm, the 

Andersons contend that they have fee simple title to the southerly 2,400 feet under which 

GBS has buried its cable. They assert that “[t]he land under the already existing road was 

not reserved when the Lord Proprietor granted the Arracoco Neck/Double Purchase patent 

in 1680 and neither Mr. Custis nor Mr. Simpkins located any subsequently recorded deed 

or other instrument conveying fee simple title to the County or the State.”

The Andersons argue that the roadbeds are included in the property transfers about 

which Mr. Custis testified because, under Md. Code (2015 Repl. Vol.) § 2-114(a) of the 

Real Property Article (“RP”), any deed “that grants land binding on any street or highway 

. . . shall be construed to pass to the devisee, donee, or grantee all the right, title and interest 

of the devisor, donor, or grantor . . . in the street or highway for that portion on which it 

binds.” They assert that, because the deeds for each farm describe the property as binding

to the road, these property transfers include the land under the abutted road. 

Appellees contend that the trial court properly concluded that the Andersons failed 

to meet their burden of proof to establish fee ownership. With respect to the Ben Barnes 

 

Baron of Baltimore.” See also Porter v. Schaffer, 126 Md. App. 237, 245, cert. denied, 

355 Md. 613 (1999), noting that, “[w]hen the Colony of Maryland became the State of 

Maryland, the power of the Lord Proprietor to grant land passed to the judges of the Land 

Office, a position now represented by the Commissioner of Land Patent.”
20

Farm, GBS asserts that there was a 176-year gap in the chain of title. With respect to the 

Ira Barnes Farm, it asserts that the evidence showed that, in 1947, the State exercised a 

purchase option for Dublin Road to widen it to accommodate certain utilities. GBS argues 

that, although no deed was found to give legal title, “the State acquired equitable title to 

Dublin Road in 1947 when the Purchase Option was executed.” With respect to the 

Andersons’ reliance on Md. Code RP § 2-114, GBS contends that the reliance is misguided 

because it simply contains a presumption for a conveyance when the grantor already has 

title to the road, but it does not address the issue of ownership.

The County argues that Mr. Custis admitted that the deeds and patents he reviewed 

did not reference ownership of the roads. It asserts that Mr. Custis’ conclusion that,

“because he did not find deeds to the County for the roads, the Andersons must own them 

[is] a leap of faith truly Olympic in dimension.” The County argues that, to meet their 

burden to prove that they owned the roads, the Andersons “had to do more than simply cast 

doubt upon the County’s ownership.”

Appellees also contend, in their cross-appeal, that the circuit court erred in 

concluding that the County did not have fee simple ownership of the roads because the 

County acquired the roads by adverse possession. They further assert that Mr. Simpkins

explained that the roads were “established hundreds of years ago through a process he 

likened to a ‘judicial taking,’ or eminent domain proceeding.” And, they argue, in 1947, 

the State purchased options in fee simple to expand Dublin Road, and “[s]ince the options 

were to purchase land in fee simple, it stands to reason the road being enlarged was itself 

owned by the State in fee simple.”
21

The circuit court found that neither the Andersons nor the County met their burden 

of proof to show fee simple ownership of the relevant portions of Old Princess Anne Road

and Dublin Road. Before analyzing the court’s conclusion in that regard, we will discuss 

the evidence regarding the two farms and the two roads.

A.

The Ben Barnes Farm

1.

Evidence Regarding the Farm 

The Ben Barnes Farm, totaling approximately 114 acres and depicted on Somerset 

County Tax Map 0024 as Parcel 0004, is owned jointly by William Anderson and Kevin 

Anderson as tenants in common. It is located directly to the west of the Ira Barnes Farm. 

It is the only property owned by Kevin Anderson at issue in this appeal, which involves 

the portion of Dublin Road that bisects the farm and Old Princess Anne Road, which abuts 

the western boundary of the farm, running north-south. A body of water called Kings 

Creek also bisects the wooded area of property, running from the farm’s western border, 

where it crosses under a bridge (“Kings Creek Bridge”) on Old Princess Anne Road, to the 

southeast corner of the farm.

Mr. Custis traced the Ben Barnes Farm back to several different patents. His 

testimony focused on the chain of title for two of these patents, both of which are relevant 
22

to the issues on appeal: the “Chance” patent, involving 90 acres, and the “Arraroco 

Neck/Double Purchase” patent (also referred to as “Beverly”), involving 5,800 acres.

14

The Chance patent, comprising most of the modern-day Ben Barnes Farm, was 

transferred from the Lord Proprietor to Henry and Anne Smith in 1675. In 1681, the Smiths

transferred the property by will to the Whittington family, who eventually transferred it to 

John King in 1734. Neither Mr. Custis nor the appellees’ land records expert, Kirk 

Simpkins, could account for a 176-year gap in the chain of title for Chance, from 1734 until 

1910. Dublin Road, which was established as a public road in 1785, was created during 

this 176-year gap. In 1910, Benjamin Langford transferred the property to Emma F. 

Barnes. 

The Arraroco Neck patent, originally a 5,800 acre tract, comprises about 23 acres 

of the southwestern corner of the Ben Barnes Farm. This patent, which includes the section 

of Old Princess Anne Road claimed by the Andersons, i.e., from the Kings Creek Bridge 

to the southwestern corner of the Ben Barnes Farm, was conveyed in 1680 from the Lord 

Proprietor. Portions of this large tract were sold off throughout the years, and it was 

partitioned in 1849. In 1865, Isaac T. Barnes received multiple partitioned pieces, and in 

1894, he conveyed the relevant 23.75 acres to Francis J. Barnes.15

 

14 The original patents are not included in the record on appeal. 

15 These older deeds are not included in the record. The Andersons argue the 

language of the deed matters because of their interpretation of RP § 2-144(a) (“[A]ny deed, 

will, or other instrument that grants land binding on any street or highway, or that includes 

any street or highway as 1 or more of the lines thereof, shall be construed to pass to the 
23

In 1913, the pertinent areas were transferred to Benjamin J. Barnes, who sold the 

parcel to Kings Creek Canning Company in 1952. Kings Creek Canning Company later 

conveyed some parcels to other individuals, but in 2003, the bulk of the parcel was sold to 

William and Kevin Anderson. The deed describes the property as “bounded” on the north, 

east, and south by the adjoining properties and “bounded on the West by the Old Princess 

Anne Road.”

2.

Old Princess Anne Road

The County introduced into evidence a report dated March 2, 2018, prepared by Mr. 

Simpkins regarding the ownership of the roads. With respect to Old Princess Anne Road, 

the report states that Somerset County was founded in 1666 and “made provisions for a 

highway through Somerset County.” In 1835, the road was “moved or upgraded” in 

response to citizen petitions.16 Mr. Simpkins testified that the procedure involved, from 

approximately 1785 to 1890, was the “precursor to our present day eminent domain or 

condemnation,” explaining that the land was taken and damages paid based on approval 

from the Levy Court. He explained that this judicial taking process did not lead to the 

creation of a deed but was done solely by commissioners approved by the Levy Court. In 

the late 1700s and early 1800s, there was merely an index for roads.

 

devisee, donee, or grantee all the right, title, and interest of the devisor, donor, or grantor . 

. . in the street or highway for that portion on which it binds.”). 

16 This section of the road is not included in the Andersons’ appeal.
24

In 1927, there were improvements to the road, and it became U.S. Route 13. Mr. 

Simpkins testified that, with respect to “U.S. 13,” the State took possession of the roads by 

adverse possession or condemnation. He testified that, in 1960, the State transferred 

ownership of the current Old Princess Anne Road to the County’s inventory of public 

roads.

17

 The minutes from a 1960 State Roads Commission meeting provide that the 

Commission approved the transfer of “18.29 miles of State owned highway to the County

for maintenance purposes.” Mr. Simpkins testified that this portion of the road included 

Old Princess Anne Road. Although the experts did not find any deed explicitly transferring 

ownership of the road from a private party to the County or State, Mr. Simpkins stated that

the County has installed and maintained a “fairly substantial drainage system” under the 

road without objection for years.18

3. 

Dublin Road

Dublin Road was established as a public road by order of Governor William 

Smallwood in 1785. The County submitted as an exhibit a copy of the Act by the General 

 

17

 The parties agree that U.S. Route 13 was moved to its present location at some 

point in time.

18 Mr. Simpkins submitted an affidavit stating:

The roads contain tiles, culverts and pipes which traverse the 

subsurface of the roadways between four and six feet in depth in order to 

create proper drainage between the ditches on either side of the road. These 

culverts, tiles and pipes have been maintained and upgraded continuously 

since the roads have been in the possession of the County. At no time have 

the [Andersons] or their predecessors in title ever contested or objected to 

the maintenance of the surface and the subsurface portion of the roads herein.
25

Assembly, in response to a petition by the citizens for a road, authorizing commissioners 

to lay out a new road, which when open would be “deemed, taken and established, to all 

intents and purposes, as a public road.” 

Mr. Simpkins testified that there was no public record suggesting that the 

government would operate the road merely as an easement, and the language stating that it 

was taken to establish a public road was similar to language in the constitution on 

condemnation and eminent domain. The Andersons contend that the establishment of the 

Road, based on the petition of citizens, was an offer of dedication, which resulted in the 

County acquiring only a right-of-way, not a fee simple interest.

Mr. Simpkins testified that, in 1938, when the State owned and maintained the 

roads, it decided to widen and straighten Dublin Road, but the project was not started until 

the late 1940s. Mr. Simpkins’ report stated that, in 1947, the State requested that the 

owners of parcels adjacent to Dublin Road execute deeds and rights-of-way for the 

widening and straightening of the road. Neither party, however, found any recorded deeds 

conveying any title to the road to either the State or the County.

William Anderson testified that Dublin Road was paved sometime in the 1950s. 

Prior to this time, the County installed a large water drainage system under the road, which 

it has maintained in the intervening years without objection. Kevin Anderson testified that 

he also had done significant work to maintain the drainage system for Dublin Road and 

Old Princess Anne Road, at his own expense.

Further facts regarding Dublin Road, as they relate to the Ira Barnes Farm, will be 

discussed, infra.
26

4.

Analysis

With that factual background in mind, we address the parties’ claims regarding fee 

simple ownership of the roads abutting or bisecting the Ben Barnes Farm. Specifically, the 

claimsinvolving the collection systems installed under the west-bound lane of Dublin Road 

and “the southerly 2300 feet of the north bound lane of Old Princess Anne Road.”

19 The

Andersons assert that Mr. Custis was able to trace the initial patents for the property, with 

the help of aerial photographs and deeds, to the Andersons’ acquisition of the land in 2003. 

They argue that this evidence established that they are the fee simple owners of the land 

under the portions of the roads at issue on appeal, subject to the public’s right-of-way 

use/county’s right-of-way easement.

With respect to Dublin Road, the Andersons assert that the evidence showed that it 

was and remains a public road laid out on and running over the middle of a 

historically privately-owned, Chance patented land sometime after its 1785 

authorization. But there is no recorded deed or other instrument conveying 

to the County or the State a fee simple or other property interest in the road 

or the land beneath it.

With respect to Old Princess Anne Road, the analysis is different because the road 

was established before the land was conveyed to private persons. The Andersons assert

that the road “was established as a road by the County Commissioners in 1667 as a result 

of a 1666 proclamation by the Lord Proprietor,” when the land was owned by the Lord 

 

19 The Andersons, for various reasons, do not pursue any claims regarding other 

portions Old Princess Anne Road abutting the Ben Barnes Farm. Accordingly, we will 

limit our analysis to this portion of the road. 
27

Proprietor. There is no record of a deed or anything else conveying title to the road to the 

County at that time or any time thereafter, and therefore, they argue the government merely 

dedicated the land for the road to the County. 

In support, the Andersons note that, in 1667, the County ordered that “every man 

shall [mark] out and [clear] his own Land (excepting where bridges are judged needful) for 

[a] highway by the [direction] of the [s]urveyors.” They assert that, after the road was 

established, fee simple title to the land on which the road was located was conveyed by the 

Lord Proprietor or the State as part of patent grants, which, according to Mr. Custis, did 

not exclude from the grant any land occupied by the road. Accordingly, they argue that 

the patentees acquired fee simple title to the land under Old Princess Anne Road, and Mr. 

Custis testified that the land records did not “contain a deed from either patentee or any 

subsequent owner of the patented land conveying to either the proprietary government 

(before 1776) or to the State or the County (after 1776) fee simple title to the road.”

Here, we do not have the original land patents in the record. We note, however, that 

a common law dedication of property generally conveys to the government and the public 

only an easement. See King v. North Chesapeake Beach Land & Imp. Co. Of Calvert Cty., 

143 Md. 693, 697–98 (1923) (“Common law dedicator ‘has full dominion and control over 

land, subject to an easement in the public[.]’”) (quoting 8 R.C.L. 909–10).20 

 

20 As this Court explained in 100 Harborview Drive Condo. Council of Unit Owners 

v. Clark, 224 Md. App. 13 n.7 (2015), R.C.L., Ruling Case Law, was an American Legal 

Encyclopedia published from 1854 to 1955. 
28

And the general rule regarding the interests involved with respect to a public 

highway is as follows:

Subject to qualification under special conditions, the general rule is that in 

the case of an ordinary highway the public acquires only an easement of 

passage and its incidents, and the owner of the soil, subject to this servitude, 

is entitled, except so far as required for highway purposes, “to the earth, 

timber and grass growing thereon, and to all minerals, quarries and springs 

below the surface.”

Chesapeake & Potomac Telephone Co. of Baltimore City v. Goldsborough, 125 Md. 666 

(1915) (quoting Cheasapeake & Potomac Telephone Co. v. Mackenzie, 74 Md. 36, 47 

(1891)).

That the County has maintained the roads for years does not change this conclusion. 

When a municipality acquires an easement of passage on a public street, it also acquires 

“the right to grade and improve the surface, and to lay drains, sewers and pipes for various 

utilities beneath the surface of the land.” Mayor and Council of City of Baltimore v. U.S., 

147 F.2d 786, 788 (4th Cir. 1945).21 Based on the general rule that the public acquires only 

an easement for a public highway, absent evidence to the contrary, the Andersons would 

own the land under the roads, subject to the County’s easement for the road. 

Moreover, with respect to the portion of Old Princess Anne Road at issue on appeal, 

the Andersons assert that the early deeds conveying the land in fee simple described the 

 

21 The rule at common law was different for roads located in rural areas. See, e.g., 

Baltimore County Water & Elec. Co. v. Dubreuil, 105 Md. 424, 427 (1907) (“But the great 

weight of authority is to the effect that there is a distinction between the use of streets in 

cities and towns for gas and water pipes and the use of country or rural highways. . . . [In] 

‘an ordinary road or highway in the country’ . . . ‘all the public acquires is the easement of 

passage and its incidents[.]’”) (quoting Chesapeake & Potomac Telephone Co. v. 

Mackenzie, 74 Md. 36, 47 (1891)).
29

land as running with the easterly side of the road, and therefore, pursuant to RP § 2-114, 

the property includes title to the center line of the road. RP § 2-114 provides:

(a) Except as otherwise provided, any deed, will, or other instrument that grants land 

binding on any street or highway, or that includes any street or highway as 1 or 

more of the lines thereof, shall be construed to pass to the devisee, donee, or 

grantee all the right, title, and interest of the devisor, donor, or grantor 

(hereinafter referred to as the transferor) in the street or highway for that portion 

on which it binds.

(b) If the transferor owns other land on the opposite side of the street or highway, 

the deed, will, or other instrument shall be construed to pass the right, title, and 

interest of the transferor only to the center of that portion of the street or highway 

upon which the 2 or more tracts coextensively bind.

(c) The provisions of subsections (a) and (b) of this section do not apply if the 

transferor in express terms in the writing by which the devise, gift, or grant is 

made, either reserves to the transferor or grants to the transferee all the right, 

title, and interest to the street or highway.

The deed to the Andersons described the Ben Barnes Farm by reference to Old 

Princess Anne Road and the adjacent properties, i.e., that the land was “bounded on the 

West by the Old Princess Anne Road.” The Andersons argue that this deed incorporated 

“all that property conveyed unto Kings Creek Canning Company” by the 1952 deed 

conveying the property to the Kings Creek Canning Company, which described the land as 

“binding on the east side of the old state road leading from Princess Anne to Westover.” 

In Boucher v. Boyer, 301 Md. 679, 687 (1984), the Court of Appeals noted that this 

statute “extends the common law presumption that title to the center of a binding street 

passes to the grantee.” Accord Barchowsky v. Silver Farms, Inc., 105 Md. App. 228, 239 

(1995), cert. denied, 340 Md. 301 (1995). The purpose of the statute “is to assure 

landowners that they will have access to streets bounding on their land by granting to them 
30

title to the center line of the street while recognizing an easement in the other half of the 

street.” Boucher, 301 Md. at 693.

As appellees note, the statute does not apply to a conveyance prior to its passage in 

1892. See Title, Inc. v. Dubel, 177 Md. 387, 389 (1939). The common law presumption 

that title to the center of a binding street passes to the grantee, however, still applies. The

record here reflects that the land at issue was subject to deeds including the road as the line 

of the property.

Accordingly, based on the statute and the common law, the Andersons’ evidence 

would establish that they owned in fee simple the land underneath the roads at issue, absent 

evidence to the contrary. As explained below, appellees failed to submit such evidence. 

Appellees argue that they did produce evidence that the County had fee simple 

ownership of the roadbeds abutting or bisecting the Ben Barnes Farm, and that the circuit 

court erred in failing to issue a declaratory judgment to that effect. They assert that Mr. 

Simpkins testified that the County purchased the roads by “a form of eminent domain, in 

the nature of a condemnation or other judicial taking,” and “it was undisputed the roads 

had passed to County ownership from the State and proprietary governments.” 

Additionally, they assert that the evidence showed that the County maintained the roads 

and the subsurface for more than 20 years, and therefore, it acquired the roads by adverse 

possession.

With respect to the argument that the County obtained the property by eminent 

domain, the Andersons contend that “[t]here is no evidence that the County has acquired 
31

by eminent domain fee simple title to any of the land for roads that are the subject of the 

Andersons’ title claims.” We agree. 

To be sure, Mr. Simpkins testified that a portion of Old Princess Anne Road was 

moved in 1835, and the process at that time was for land to be taken in a process similar to 

a condemnation proceeding. Apart from the fact that the portion of the road involved is 

not at issue in this appeal, there was no evidence to indicate whether the property interest 

acquired was a fee simple interest or an easement. And with respect to Dublin Road, the 

County’s argument is merely that the action taken “presumably followed the process used 

. . . to extend Old Princess Anne Road in 1835.” 

There is authority for the proposition that, where “land is appropriated to the public 

use under the right of eminent domain,” the public authority generally is limited “to their 

precise needs.” Thomas M. Cooley, Constitutional Limitations 557 (Spec. ed. 1987). 

Thus, “[i]n the common highways, the public have a perpetual easement, but the soil is the 

property of the adjacent owner, and he may make any use of it which does not interfere 

with the public right of passage, and the public can use it only for the purposes usual with 

such ways.” Id. at 558.22

Here, Mr. Simpkins’ testimony did not provide any basis, beside speculation, for 

the court to find that this general rule did not apply, and the County instead acquired a fee 

 

22 This rule has been recognized, and applied when appropriate, in several Maryland 

cases. See, e.g., Frederick Gas Co. v. Abrams, 264 Md. 135, 138 (1972); West v. Maryland 

Gas Transmission Corp., 162 Md. 298, 312–13 (1932); Baltimore County Water & Elec. 

Co. v. Dubreuil, 105 Md. at 427; Mackenzie, 74 Md. at 47; Thomas v. Ford, 63 Md. 346, 

355 (1885).
32

simple interest. Accordingly, the circuit court did not err in determining that the County 

did not show a fee simple interest in Old Princess Anne Road or Dublin Road based on 

eminent domain. See Figgins v. Cochrane, 174 Md. App. 1, 14 (2007) (Court’s 

determination that a party failed to meet its burden to persuade the court on a question of 

fact is not clearly erroneous.), aff’d, 403 Md. 392 (2008); Bricker v. Warch, 152 Md. App. 

119, 137 (2003) (“[I]t is almost impossible for a judge to be clearly erroneous when he [or 

she] is simply NOT PERSUADED of something.”).

We next address the claim that the County acquired title to the roadbeds by adverse 

possession. GBS argues that, because the County has owned, operated, and maintained the 

roads and subsurface of the roads for more than 20 years, it owns the roadbeds in fee 

simple. The Andersons contend that this contention fails because the County’s use of the 

areas underneath the road to install the drainage system was not hostile, but rather, it was 

permissive under the implied terms of the easement. 

To prove ownership by adverse possession, “a claimant must show continuous 

possession of the property for 20 years in an actual, open, notorious, exclusive, and hostile 

manner, under claim of title or ownership.” Porter v. Schaffer, 126 Md. App. 237, 276, 

cert. denied, 355 Md. 613 (1999). Hostile use is “a possession that is adverse in the sense 

of it being without license or permission.” Yourik v. Mallonee, 174 Md. App. 415, 429 

(2007) (cleaned up). 

Here, we agree with the Andersons that the County’s use of the roadbeds was not 

hostile because the County clearly had an easement, which permitted it to maintain the road

by installing the drainage systems and perform other road maintenance. See Wagner v. 
33

Doehring, 315 Md. 97, 104 (1989) (“The grant of a right-of-way does, however, entitle the 

holder to use the premises at reasonable times and to maintain, improve, or repair the way 

to serve its purpose.”). The circuit court did not err in concluding that the County did not 

have a fee simple interest in the land under the road based on adverse possession. 

Accordingly, based on the evidence presented in this case, we conclude that, with 

respect to the Ben Barnes Farm, the Andersons showed that they own in fee simple the land 

under the portion of the roads at issue in this appeal. We turn next to the portion of Dublin 

Road that bisects the Ira Barnes Farm. 

B.

Ira Barnes Farm 

The Ira Barnes Farm, a 192-acre-parcel depicted on Somerset County Tax Map 0024 

as Parcels 0005, 0068, and 0069, is owned solely by William Anderson. Parcel 0005 is 

separated from Parcels 0068 and 0069 by Dublin Road, with Parcel 0005 to the south of 

the road and Parcels 0068 and 0069 positioned side by side to the north. The Ira Barnes 

Farm does not border Old Princess Anne Road, and therefore, only Dublin Road is at issue 

for this property.

Mr. Custis traced the history of Parcel 0005, the biggest portion of the Ira Barnes 

Farm, back to the 1785 “Oxhead” patent. He traced the deeds from this initial patent to

present day, and he found that the property essentially remained intact from 1785 until 

1910, when the initial patent was split into two pieces.

In 1936, the larger of these two pieces, i.e., the modern day Ira Barnes Farm, was 

acquired by William Anderson’s father, Howard Anderson, from Ira Barnes. The chain of 
34

title prepared by Mr. Custis shows that William Anderson’s mother, Elsie Anderson, 

acquired an interest in 1951.

William Anderson gained fee simple title to Parcel 0005 of the Ira Barnes Farm

from his parents by inheritance in two parts—the first half interest when his mother died 

in 1981, and the other half interest when his father died in 1984. Parcels 0068 and 0069, 

which were part of the Oxhead patent and conveyed by Howard Anderson prior to his death 

to his daughters (William Anderson’s sisters), were later transferred to William Anderson 

in 1997 and 2005, respectively. Based on these transfers, William Anderson currently has 

fee simple ownership of the Ira Barnes Farm.

Based on the evidence presented, and the common law rule that, absent evidence to 

the contrary, the public generally obtains only an easement on a highway, Mr. Anderson

would own in fee simple the land under Dublin Road, as was the case for the Ben Barnes 

Farm. There is a wrinkle, however, with respect to the County’s claim in this regard. 

As indicated, Mr. Simpkins testified that the State received deeds and rights-of-way 

from abutting property owners to widen and straighten Dublin Road. Appellees assert that 

Mr. Simpkins found documents in the State Roads Commission files, which contained a 

1947 agreement with the County to widen and pave Dublin Road. That same year, William 

Anderson’s parents, Howard and Elsie Anderson, signed a purchase option agreement for 

one dollar. The documents included in the record, however, are difficult to read, and the 

terms of the agreement are unclear.

Mr. Custis stated that he did not know if the agreement gave title, but he believed 

that the intent of the option was to transfer ownership. One of the documents in the 
35

purchase option exhibit contained a line item list with “Howard Anderson” labeled as the 

property owner and various numbers listed for “cultivated land in fee,” “cultivated land 

easement,” “roads in fee,” and “roads in easement,” for a total of one dollar. No testimony 

was provided to clarify these line items. 

The purchase option exhibit also included a letter, which is very difficult to read. It

is dated 1947, from the “Right of Way Engineer,” and states: “The conveyance which you 

signed will be turned over to the County Commissioners for recording.” Mr. Custis stated 

that no deed with respect to this purchase option agreement was filed in the land records. 

The State Highway Administration records included State road plats containing a

handwritten notation, by an unknown author, stating “file . . . indicates options were 

obtained [and] title taken in name of county.” Two versions of the plats, however, were 

found in the State Highway records, one with this notation and one without. No 

explanation was given for this circumstance.

Appellees argue that the County gained fee simple ownership of the portion of 

Dublin Road bisecting the Ira Barnes Farm when William Anderson’s parents signed the 

purchase option agreement with the County in exchange for one dollar. They do not dispute 

Mr. Anderson’s contention, however, that legal title “does not pass, other than by operation 

of law, until a deed is properly executed and recorded.” Kingsley v. Makay, 253 Md. 24, 

27 (1969). 

Appellees assert that the County acquired equitable fee simple title by operation of 

law when it exercised its purchase option. In response, the Andersons argue that the 

County did not exercise the option as written because it did not record in the land records 
36

the deed and the plats, which creates uncertainty regarding the equitable property interest 

to which the County is entitled. They ultimately conclude, however, that,

given the evidence that Howard and Elsie Anderson (and others) wanted 

Dublin Road upgraded and had agreed to donate land for that purpose, and 

that the County proceeded to do it notwithstanding the lack of any recorded 

deeds and plats, a common law dedication of the upgraded road resulted in 

which the County acquired legal title – but only to an easement.

See Smith v. Shiebeck, 180 Md. 412, 418 (1942) (“In Maryland no particular form or 

ceremony is necessary to dedicate land to public use. No deed is necessary to evidence a 

dedication, nor any grantee in esse to take the title.”); King, 143 Md. at 697–98 (Common 

law dedication of property conveys to the government and the public only an easement.).

Given the lack of evidence establishing the nature of the interest conveyed by the 

purchase option, i.e., fee simple interest or an easement, we cannot conclude that the circuit 

court was clearly erroneous in concluding that the County did not meet its burden of 

showing that the purchase option agreement conveyed fee simple interest in the land under 

Dublin Road. See Figgins, 174 Md. App. at 14 (Court’s determination that a party failed 

to meet its burden to persuade the court on a question of fact was not clearly erroneous.), 

aff’d 403 Md. 392 (2008). Bricker, 152 Md. App. at 137 (“[I]t is almost impossible for a 

judge to be clearly erroneous when he [or she] is simply NOT PERSUADED of 

something.”).

C.

Remand

Based on the analysis set forth above, we conclude that the circuit court erred in 

finding that the Andersons did not own in fee simple the land under the roads at issue in 
37

this appeal. Accordingly, we shall reverse that portion of the opinion and remand to the 

circuit court to issue a declaratory judgment that the Andersons are the fee simple owners 

of the roads.

II. 

“Sufficient Interest”

The Andersons also sought a declaration that GBS, by burying its electric cables 

beneath the roads without consent, trespassed on the Andersons’ property. The circuit

court did not issue such a declaration, instead concluding that, although the County failed 

to show that it owns the land under the roads in fee simple, GBS nevertheless had the legal 

right to install the collection systems because the County had a “sufficient interest” in the 

roads to validly grant that right to GBS. The court did not explain the basis for this ruling 

or specify the nature of the County’s interest. See Md. Rule 2-522 (In a contested court 

trial, the judge shall provide “a brief statement of the reasons for the decision.”).

The Andersons argue on appeal that the court’s ruling in this regard was erroneous. 

They assert that the only property interest in the roads that would be sufficient to entitle 

the County to grant GBS an easement “to place industrial-scale, electrical cables beneath 

the roadbeds is a fee simple interest,” which GBS and the County failed to establish. They 

contend that the evidence established a dedication of the roads to the County, but only that

“of an implied, right-of-way or easement interest.” They argue that this right entitles the 

County to use of the roads only for the purpose for which the easement was obtained, i.e., 

as a public way of transportation, and it does not allow the County to use the ground below, 
38

or allow a third party to use the land, for other purposes without the permission of the 

landowner. 

GBS and the County contend that the trial court correctly concluded that the County 

had a sufficient interest to grant GBS the right to install cables under the roads. Initially, 

the County argues that the court’s sufficient interest finding was based on a finding that it

owned the roads in fee by adverse possession based on its maintenance of the roads for 

more than 20 years. This assertion is inconsistent with the trial court’s finding that the 

County did not prove ownership of the roads in fee simple. In any event, as we have 

explained, the circuit court did not err in finding that the County did not establish fee simple 

ownership of the land beneath the roads based on adverse possession.

The County next contends that, even if the County only has a public right-of-way 

easement with respect to the roads, case law indicates that uses permitted within an 

easement or right-of-way can evolve over time. It asserts: 

If Somerset County roads, established in 1666 and 1795, are easements or 

rights of way, it is reasonable to anticipate that those rights of way ‘would 

conform over time to the reasonable demands of the public’ by permitting 

installation of electric transmission or collection lines in the beds of those 

public roads to serve the public.

It argues that, where the County “has maintained pipes under the roads to conduct 

stormwater,” and it could have installed its own cables to conduct electrical current, it had 

a sufficient interest to allow GBS to do what it could do itself.

If the County had a fee simple interest in the land under the roads permitting it to 

install cables to transmit solar power, we would agree that the County could grant GBS an 

easement to do the same. See West v. Maryland Gas Transmission Corp., 162 Md. 298,
39

316 (1932) (holders in fee simple of bed of the road have the right to lay pipes, subject to 

the grant of an easement, and may convey this right to another). Here, however, the County 

failed to prove this, and as indicated, in the absence of evidence to the contrary, the general 

rule is that the public has only an easement interest in a highway. 

The rights of someone with an easement interest are different and more nuanced. 

As this Court has explained: 

An easement is broadly defined as a nonpossessory interest in the real 

property of another. An easement involves primarily the privilege of doing a 

certain class of act on, or to the detriment, of another’s land, or a right against 

another that he refrain from doing a certain class of act on or in connection 

with his own land.

An easement may be created by express grant, by reservation in a 

conveyance of land, or by implication. 

USA Cartage Leasing, LLC v. Baer, 202 Md. App. 138, 174–75 (2011) (cleaned up), aff’d, 

429 Md. 199 (2012)). “Easements by implication may arise ‘by prescription, necessity, 

the filing of plats, estoppel, and implied grant or reservation where a quasi-easement has 

existed while the two tracts are one.’” Lindsay v. Annapolis Roads Property Owners Ass’n, 

431 Md. 274, 291 (2013) (quoting Boucher, 301 Md. at 688).

23 In general, “the terms 

‘right-of-way’ and ‘easement’ are synonymous.” Chevy Chase Land Co. v. United States, 

355 Md. 110, 126 (1999).

 

23 Maryland’s Public Utility Article also contains provisions providing for 

easements for telecommunication companies. Md. Code (2010) § 8–103(a) of the Public 

Utilities Article (“PU”) (A telephone company may construct lines “along and on a road, 

street, or highway[.]”); PU § 8–106(a) (To obtain an easement, telephone company can 

apply to circuit court to obtain appraisal of damages to be paid to property owners). 
40

An easement holder generally “cannot use the land for any purpose other than that 

contemplated by the grant.” Wagner, 315 Md. at 104. A use that is not within the scope of 

the original terms or intent of the easement creates an additional servitude and entitles the 

landowner to compensation. Peck v. Baltimore County, 286 Md. 368, 379 (1979). Whether 

an additional servitude has occurred, however, is a question of fact for the circuit court to 

decide. Id.

When there is an express grant, the court will look to the terms of the grant. See 

Chevy Chase Land Co., 355 Md. at 143 (a recreational trail for bikers and hikers was within 

scope of a right-of-way easement originally established for a railroad because this use was 

consistent as a means of transit and the deed establishing the right-of-way contained no 

limiting language). 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,”

and this intention is a factual question. Purnell v. Beard & Bone, LLC, 203 Md. App. 495, 

508 (2012) (quoting Boucher, 301 Md. at 688).

Here, as indicated, the circuit court did not explain the basis for its conclusion that 

the County had a “sufficient interest” in the roadbeds to grant GBS the right to install the 

collection systems. Assuming that the circuit court found that the County had an easement, 

it did not state the type of easement on which it was basing its conclusion or whether the 

use involved was within the scope of the original easement. The court’s sparse discussion 

does not permit this Court to make a determination whether any factual findings in this 

regard were clearly erroneous. 
41

Appellees contend, citing Wagner, 315 Md. at 104, that the grant of a right-of-way

generally entitles “the holder to use the premises at reasonable times and to maintain, 

improve, or repair the way to serve its purpose.” They assert that this scope accounts for 

evolving uses consistent with the easement’s original purpose. See Chevy Chase Land Co., 

355 Md. at 145. 

With respect to the appropriate scope of a public highway easement, “the purpose 

of a highway easement is for ‘passing and repassing’ and only when a use is ‘not incident 

to such right of passage’ does it create an additional servitude.” Chevy Chase Land Co., 

355 Md. at 145 (quoting Poole v. Falls Road Electric Ry. Co., 88 Md. 533, 537 (1898)). 

Rights incidental to a public highway easement include the “right to use the public 

highways for all purposes of travel, including the conveyance of persons, the transfer of 

goods and transmission of intelligence[.]” West, 162 Md. at 311–12 (quoting Crullen v. 

Edison Elec. Illumination Co. of Boston, 254 Mass. 93, 94–95 (1925)). 

The Court of Appeals has recognized, however, a “distinction between the use of 

the streets in cities and towns for gas and water and the use of country or rural highways.” 

Frederick Gas Co. v. Abrams, 264 Md. 135, 138 (1972). Accord Peck, 286 Md. at 380–

81; West, 162 Md. at 312–13. In Abrams, the Court stated that, in suburban and urban 

areas, “the right-of-way for a public highway extends not only horizontally over the surface 

of the land for the purpose of travel but also vertically below the surface of the roadbed” 

to lay utility lines. 264 Md. at 140 (quoting Green v. Washington Suburban Sanitary 

Commission, 259 Md. 206, 219 (1970)). The rationale is that, because utilities providing 

modern comforts are central to life in more urban areas, those purchasing property there 
42

are presumed to have consented “that such uses could be made of a street laid out over 

land[.]” Id. at 138 (quoting Baltimore County Water & Electric Co. v. Dubreuil, 105 Md. 

424, 440 (1907)). 

In contrast, the Court of Appeals has viewed rural areas as lacking the same 

expectations for things such as utility lines. Id. at 140, 146. For this reason, a right-of-way 

easement in a rural area does not extend to the roadbed, i.e., the use of the roadbeds is not 

within the scope of the highway easement. Id. at 139–40.

24 Here, the court did not make a 

factual finding regarding the character of the area at issue in this case.

In sum, because the circuit court’s order does not state the basis for its finding that 

the County had a “sufficient interest” to grant GBS the right to install the collections 

systems in the roads, and because factual findings are required to resolve this issue, we 

remand to the circuit court for clarification regarding this issue.25

 

24 Appellees argue that the precedent in Frederick Gas Co. v. Abrams, 264 Md. 135 

(1972), is outdated and should not be followed. In that case, the Court of Appeals credited 

the utility’s argument that the qualities of rural communities justifying this distinction had 

shifted since the rule was established by the Court in Dubreuil in 1907. Id. at 146–47. The 

Court, however, was reluctant to eliminate the distinction between rural and urban 

communities absent action from the legislature. Id. Because neither the General Assembly 

nor the Court of Appeals have taken such action since Abrams, we are bound by previous 

case law to apply this distinction.

25 We also note that, in Abrams, the Court stated that “[w]hether the utility installed 

in the public way is within the original scope of the easement” depends on a “factual 

determination of whether it is for the benefit of the immediate surrounding community.” 

264 Md. at 145 (quoting 2 American Law of Property, § 9.51 (1952 ed.)) “Where the 

construction is for the benefit of a distant community, such as a natural gas pipeline or 

water main, it has generally been held that such use imposes an additional servitude[.]” Id. 

Given this case law, even if the circuit court finds the area to be urban or suburban, it may 

want to consider whether the solar energy transported by the collection systems was for the 
43

III. 

Delay in filing suit

In GBS’s counterclaim for a declaratory judgment, GBS asserted that the Andersons 

strategically delayed asserting their claims, and therefore, it requested a declaration that 

they had “waived and/or are barred by the doctrines of estoppel and/or laches from 

asserting any right they hold to require Great Bay to remove installed collector lines in 

Dublin Road and Old Princess Anne Road.” It sought a declaration that the Andersons 

were “precluded from the equitable relief they seek based on the doctrines of waiver, 

estoppel and laches.” The circuit court issued such an order, stating that the Andersons 

“are barred from any equitable relief they seek based on the doctrines of waiver, estoppel, 

and laches.” 

The Andersons contend that the court erred in so ruling. They assert that the court 

did not explain the basis for its findings, the evidence does not support the findings, and 

the court’s factual findings were clearly erroneous. 

GBS and the County contend that the court correctly found that all three defenses 

barred relief. GBS asserts that the Andersons believed years before they filed suit that they 

held legal rights to block installation of the cables, but they did nothing to enforce those 

rights. It points specifically to the March 3, 2016, Planning Commission meeting, where 

Kevin Anderson voted to approve the site plan for the project. The County contends that 

the Andersons should have brought suit after receiving notice in March 2017 that the cable 

 

benefit of a distant community, given David Philpott’s testimony that GBS had entered 

into a contract to sell the power to the United States government.
44

installation would begin, but they “sat back and watched while cable was installed,” filing 

suit only after “cable installation was virtually complete,” after GBS “had committed itself 

irretrievably.”

As the Andersons note, the circuit court did not elaborate on the basis of its 

conclusion that they were barred from equitable relief based on the doctrines of waiver, 

estoppel, and laches. The court merely stated that this conclusion was based on 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 Anne Road.

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 courthouse.”
45

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 cable installation.

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, Mr. Smethurst 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.

(Emphasis added.)

We begin by addressing the Andersons’ contention that Paragraph 8 of the court’s 

opinion contains incorrect fact findings. This Court will not disturb a factual finding made 

by the circuit court at a bench trial unless it is clearly erroneous, and we “will give due 

regard to the opportunity of the trial court to judge the credibility of the witnesses.” Md. 

Rule 8-131(c). “If there is any competent evidence to support the factual findings below, 

those findings cannot be held to be clearly erroneous.” Solomon v. Solomon, 383 Md. 176, 

202 (2004) (quoting Fuge v. Fuge, 146 Md. App. 142, 180 (2002)). 

We agree with the Andersons that the trial court’s factual finding, that Kevin 

Anderson voted at the March 3, 2016, meeting of the Planning Commission “to approve 
46

the proposed cable installation,” was clearly erroneous. The minutes from the March 3, 

2016, meeting, and the testimony by Kevin Anderson and Mr. Pusey, make clear that the 

vote taken that day was not on the cable installation, but instead, it was on the site and 

substation locations. And Kevin Anderson gave uncontradicted testimony that the 

Planning Commission was not involved with approval of cable installation under the 

roads.26 Therefore, this was a clearly erroneous factual finding by the circuit court. 

We next consider the effect that this erroneous finding of fact had on the circuit 

court’s ultimate conclusion regarding waiver, estoppel, and laches. We will address each 

defense, in turn.

A. 

Waiver

Waiver is the “intentional relinquishment of a known right, or such conduct as 

warrants an inference of the relinquishment of such right, and may result from an express 

agreement or be inferred from circumstances.” Creveling v. Gov’t Employees Ins. Co., 376 

Md. 72, 96 (2003) (quoting Food Fair v. Blumberg, 234 Md. 521, 531 (1964)). Waiver, 

therefore, hinges on the intent of the party and requires an unequivocal demonstration that 

waiver was intended. Taylor v. Mandel, 402 Md. 109, 135–36 (2007). Accord Kiley v. 

First Nat’l Bank of Maryland, 102 Md. App. 317, 338 (1994) (waiver argument rejected 

where no clear intention to relinquish forever a right), cert. denied, 338 Md. 116 (1995). 

 

26 At oral argument, appellees agreed that the March vote by the Planning 

Commission was not to approve the cable installation in the roads, although they argued 

that this was the practical effect of the vote.
47

Whether a party has waived its right to assert a claim is a question of fact, which this Court 

will not disturb unless clearly erroneous. Hoskins v. Warden of Md. House of Correction, 

235 Md. 613, 615 (1964) (“[T]he sufficiency of the waiver is a question of fact.”).

Here, although the court did not specify the basis of its waiver finding, the factual 

findings referred to by appellees involve: (1) Kevin Anderson’s March 3, 2016, vote as a 

member of the Planning Commission; and (2) the notice given to the Andersons on March 

29 and April 5, 2017, that the roads would be closed for cable installation.

27 With respect 

to the first factual finding, we have already stated that this was clearly erroneous, and 

therefore, it would not support a finding of waiver. With respect to the notices received in 

the spring of 2017, there was a delay of approximately three months after receiving these 

notices before the Andersons filed suit. This delay does not, by itself, support a finding of 

an intentional relinquishment of the right to contest the installation of the cables.28

Accordingly, the circuit court’s finding that the Andersons’ claim for injunctive relief was 

barred based on waiver was clearly erroneous.

 

27 We note that, although Kevin Anderson stated that he knew the project was a 

possibility before this, he was told in 2016 that the project was not going to move forward, 

so he should not worry about it. He testified that it was not until the notices in the spring 

of 2017 that he knew that the project actually would proceed. 

28 GBS asserts on appeal that the Andersons intentionally delayed their filing until 

construction was nearly complete in retaliation for their inability to close the initial 

easement deal for compensation back in 2014 and to force GBS back to the table for 

payment. Even if there was evidence of such an intent, and the court made a factual finding 

to that effect, which it did not, it is not clear that this would satisfy the requirements 

necessary to find a waiver. 
48

B.

Estoppel 

“[E]stoppel rests upon a detrimental change of position induced by the acts or 

conduct of the party estopped.” Gould v. Transamerican Assocs., 224 Md. 285, 295 (1961). 

This Court has described estoppel as follows:

Equitable estoppel is the effect of the voluntary conduct of a party whereby 

he is absolutely precluded both at law and in equity, from asserting rights 

which might perhaps have otherwise existed . . . as against another person, 

who has in good faith relied upon such conduct, and has been led thereby to 

change his position for the worse and who on his part acquires some 

corresponding right, either of property, of contract, or of remedy.

Olde Severna Park Improvement Ass’n, Inc. v. Barry, 188 Md. App. 582, 595 (2009) 

(quoting Knill v. Knill, 306 Md. 527, 534 (1986)), cert. denied, 412 Md. 496 (2010). 

The doctrine of estoppel applies where there is (1) voluntary conduct or 

representation; (2) reliance; and (3) detriment. Id. The Court of Appeals explained in Knill 

that these elements are inherently interrelated. 306 Md. at 535. “The voluntary conduct or 

representation of the party to be estopped must give rise to the estopping party’s reliance 

and, in turn, result in detriment to the estopping party.” Id. Although wrongful conduct is 

often found where estoppel is present, the Court of Appeals has held that “estoppel may 

arise even where there is no intent to mislead, if the actions of one party cause a prejudicial 

change in the conduct of the other.” Id. at 534. 

“The party asserting estoppel ‘bears the burden of proving the facts that create it.’”

Nationwide Mut. Ins. Co. v. Regency Furniture, Inc., 183 Md. App. 710, 732 (2009) 

(quoting Creveling, 376 Md. at 102). Whether estoppel applies to bar a claim “is a question 
49

of fact to be determined in each case,” and therefore, we will not disturb the circuit court’s 

judgment unless it was clearly erroneous. Barry, 188 Md. App. at 595. Accord Heartwood 

88, Inc. v. Montgomery County, 156 Md. App. 333, 370 (2004) (“[T]he question of estoppel 

is a question of fact because it involves ‘the assessment of conduct by one party and 

reliance by another.’”) (quoting Allstate Ins. Co. v. Reliance Ins. Co., 141 Md. App. 506, 

515 (2002)).

Here, to the extent that the circuit court’s conclusion regarding estoppel was based 

on its erroneous fact finding that Kevin Anderson voted to approve the cable installation, 

this conclusion was clearly erroneous. And to the extent it was based on the Andersons’

delay in filing suit after they received the notices in the spring of 2017 that the installation 

was going to happen, the record does not reflect, and the circuit court did not find, that 

GBS changed its position on the project, i.e., decided to go forward with the installation 

because the Andersons did not file suit as soon as they received the notices. See Savonis 

v. Burke, 241 Md. 316, 319 (1966) (“It is essential for the application of the doctrine of 

equitable estoppel that the party claiming the benefit . . . changed his position for the worse, 

having believed and relied on the representations of the party sought to be estopped.”); 

Lusby v. First Nat’l Bank of Md., 263 Md. 492, 506 (1971) (Lusby was not entitled to 

invoke doctrine of equitable estoppel where there was no evidence that she had “changed 

her position for the worse because of her reliance on the representation.”); Old Republic 

Ins. Co. v. Gordon, 228 Md. App. 1, 12 (2016) (Where party did not allege that her position 

changed based on other party’s actions, equitable estoppel was inapplicable). Indeed, 

David Philpott testified that GBS proceeded with the installation, despite receiving a letter 
50

from the Andersons’ attorney, because they had to maintain their construction schedule or 

be subject to substantial penalties. 

Accordingly, the circuit court’s finding that estoppel barred the Andersons’ request 

for injunctive relief, based on the factual findings set forth in its opinion, was clearly 

erroneous. 

C.

Laches

Laches precludes equitable relief when “a plaintiff has exhibited negligence or lack 

of due diligence in asserting a right to the detriment of the defendant.” Jahnigen v. Smith, 

143 Md. App. 547, 555, cert denied, 369 Md. 660 (2002). Laches “applies when there is 

an unreasonable delay in the assertion of one’s rights and that delay results in prejudice to 

the opposing party.” State Center, LLC v. Lexington Charles Ltd. Partnership, 438 Md. 

451, 586 (2014) (quoting Liddy v. Lamone, 398 Md. 233, 244 (2007)). Accord Murray v. 

Midland Funding, LLC, 233 Md. App. 254, 260 (2017) (In assessing a claim for laches, a 

judge “considers plaintiff’s delay in asserting the claim and its causes and weighs that 

against the prejudice to the defendant caused by the late assertion of the equitable claim.”). 

Whether prejudice to the defendant has been established is dependent “upon the facts and 

circumstances of each case, but it is generally held to be anything that places [an opposing 

party] in a less favorable position.” Ademiluyi v. Egbuonu, 466 Md. 80, 124 (2019) (quoting 

Parker v. Bd. of Election Sup’rs, 230 Md. 126, 130 (1962)). 

In contrast to estoppel and waiver, the question of whether laches has been 

established is a mixed question of fact and law. Liddy, 398 Md. at 245. Whether the 
51

elements of laches have been established is a question of fact to be reviewed under a clearly 

erroneous standard, but whether, “in view of the established facts, laches should be 

invoked, is a question of law.” Id. at 246. “Accordingly, where the issue is whether a party 

is precluded by laches from challenging an action of another party, we shall review the trial 

court’s ultimate determination of the issue de novo.” Id. at 248–49. 

Here, GBS argues that the Andersons are barred by the doctrine of laches from 

asserting any right to require it to remove the installed collector lines. It can hardly be 

disputed that the delay in filing suit until after the cables were almost completely installed 

put GBS in a detrimental position. Mr. Philpott testified that it cost ten million dollars to 

install the collection systems, and it would cost an additional two million dollars to remove 

the cables at this point. Thus, the prejudice component of a laches defense has been 

satisfied. 

The more difficult question is the reasonableness of the Andersons’ delay in filing 

suit. In that regard, we must ascertain the length of the delay, and then decide whether that 

delay was unreasonable. Jones v. State, 445 Md. 324, 343–44 (2015). Accord State Center, 

LLC, 438 Md. at 590 (To assess whether the delay is unreasonable, “we must analyze (i) 

when, if ever, the claim became ripe (i.e., the earliest time at which [the Andersons] were 

able to bring their claims); and (ii) whether the passage of time between then and when 

[the Andersons] filed the complaint was unreasonable.”). 

Here, as indicated, it is unclear from the circuit court’s opinion when the court 

considered the clock to started running on laches. In order for a claim to ripen, however, 

“a justiciable controversy must exist.” State Center, LLC, 438 Md. at 590. “Generally, an 
52

action for declaratory relief lacks ripeness if it involves a request that the court ‘declare the 

rights of parties upon a state of facts which has not yet arisen, [or] upon a matter which is 

future, contingent and uncertain.’” Id. at 591 (quoting Boyds Civics Ass’n v. Montgomery 

Cty. Counsel, 309 Md. 683, 690 (1987)). Based on Kevin Anderson’s testimony that he 

was told in 2016 that the project was not going forward, we conclude that there was no 

evidence that a claim was ripe at that point. Accordingly, we will confine our analysis to 

the time beginning on March 29, 2017, when the Andersons received notice that the project 

was going forward and installation of the cables in the roads was going to begin soon. 

In assessing the reasonableness of the delay, therefore, we are looking at the delay 

between March 29, 2017, and the filing of the complaint on July 5, 2017, a gap of 

approximately three months. Although this is a short time period, “laches is not merely a 

question of time, but principally the question of the inequity in permitting the claim to be 

enforced.” Waller v. Golden, 706 S.E.2d 403, 406 (Ga. 2011) (quoting Hall v. Trubey, 498 

S.E.2d 258, 261 (Ga. 1998)). Thus, even a relatively short period of time may be found to 

constitute an unreasonable delay resulting in laches under the circumstances of the case. 

In Parker v. Board of Election Supervisors, 230 Md. 126, 128 (1962), Parker filed 

a complaint on September 25, 1962, alleging that “nominating petitions filed with the 

Board of Supervisors of Elections were defective due to [among other things] the lack of a 

sufficient number of legitimate signatures.” The Court of Appeals noted that Parker had 

knowledge of the petitions when they were published on May 30, 1962, and his delay of 

approximately four months before filing suit was unreasonable and unjustified given the 

prejudice to appellees. Id. at 131–32. Similarly, in Liddy v. Lamone, 398 Md. at 236–38, 
53

253, the Court held that a claim asserting that a political candidate was ineligible to hold 

office was barred by laches because the lawsuit was filed four months after the candidate 

filed his certificate of candidacy, one month after the candidate won the primary election, 

and 18 days before the general election, and the unreasonable delay prejudiced the State 

Board of Elections, which had insufficient time to change voting machines and reprint 

ballots. Thus, the approximately three-month delay here, although not a lengthy delay, 

could be deemed unreasonable, depending on the circumstances. 

In assessing whether the delay here was unreasonable, we look to analogous 

decisions in other jurisdictions, where suit was filed after construction was in progress. In 

Waller, 706 S.E.2d at 404, the Goldens received approval from their Homeowner’s 

Association to build a swimming pool in their yard. When construction began on the pool 

on August 11, the neighbors complained. Id. at 405. The Association held a hearing on 

August 21, and although the pool did not comply with the community’s restrictions, it 

allowed construction to continue. Id. The Wallers sent a letter demanding that construction 

stop on August 31, and they filed a lawsuit on September 3, when the pool was nearly 

halfway complete, and the Goldens already had invested over $20,000 in the project. Id.

at 405, 407. The Supreme Court of Georgia held that the Wallers’ claims were barred by 

laches because, even though the plaintiffs had previously lodged verbal objections, they 

waited 24 days after receiving notice of the construction to file suit, and therefore, they 

failed to act diligently to assert their interests. Id. at 407. Accord Osage Nation v. Bd. of 

Comm’rs of Osage Cty., 394 P.3d 1224, 1237 (Okla. 2017) (“Laches requires reasonable 

conduct on the part of a plaintiff in taking legal efforts to stop or prevent alleged wrongful 
54

construction prior to an injury arising from economic damage occasioned by the project, 

thus minimizing economic damage flowing from alleged wrongful construction.”); Carson 

City v. Price, 934 P.2d 1042, 1043–44 (Nev. 1997) (Laches barred request to tear down 

affordable housing units because plaintiffs waited eight months to file and costly 

construction was already underway.); Bailey v. Chernoff, 45 A.D.3d 1113, 1115 (N.Y. 

2007) (Laches barred request for injunctive relief to remove boathouse because 

development homeowners were on notice of the intent to build the boathouse following an 

open meeting in July 2004, and once construction began in May 2005, they “did not seek 

a preliminary injunction and, instead, waited until after construction was completed” to file 

suit in November 2005.). 

This reasoning is helpful in determining whether the Andersons’ delay was 

unreasonable given all the circumstances. We agree with these cases that, when a party 

knows that construction is scheduled to occur, they must diligently protect their rights, and 

waiting until the defendant incurs significant construction costs before filing suit may result 

in the claim being barred by laches. 

Here, the Andersons were on notice that the installation of the cables under the roads 

was a possibility more than a year prior to the filing of their complaint. They were on 

notice on March 29, 2017, that the collection systems were going to be installed under the 

roadbeds, and they watched construction begin on the roads adjacent to their property,

starting in April 2017. Despite this, they waited to file suit until July 5, 2017, when the 

multi-million-dollar project was 90–95% completed. Under these circumstances, the 
55

circuit court was not clearly erroneous in concluding that the Andersons’ delay in filing 

suit was unreasonable.

Given the Andersons’ unreasonable delay and the prejudice to GBS, the circuit court 

did not err in concluding that the Andersons’ equitable claims were barred by laches. 

Accordingly, it properly denied the Andersons’ request that the court order GBS to remove 

the cables and restore the roads to their previous condition.29

IV. 

Conclusion

In sum, we conclude that circuit court erred in finding that the Andersons did not 

own in fee simple the land under the roads at issue in this appeal. Accordingly, we shall 

remand to the circuit court to issue a declaratory judgment that the Andersons are the fee 

simple owners of Dublin Road running from Old Princess Anne Road easterly through the 

Ben Barnes Farm (Parcel 0004) and the Ira Barnes Farm (Parcels 0005, 0068, 0069) to its 

intersection with Arden Station Road, except for the portion of the road lying directly in 

front of Parcels 0076 and 0079, and the easterly half of Old Princess Anne Road extending 

from the new Kings Creek bridge southerly approximately 2,400 feet to the southwest 

corner of the Ben Barnes Farm (Parcel 0004). 

With respect to the circuit court’s conclusion that the County had “sufficient 

interest” in the roads to give GBS the “legal right to install the collection systems,” we 

 

29 A request for a declaratory judgment generally is not subject to the defense of 

laches. See Murray v. Midland Funding, LLC, 233 Md. App. 254, 261 (2017). Accordingly, 

our holding that the Andersons own the roadbeds in fee simple is not altered by this laches 

analysis. 
56

remand to the circuit court, without reversal or affirmance, to make further findings on this 

issue, consistent with this opinion. If the court finds that GBS did not have the right to 

install the collection systems pursuant to the Easement granted by the County, it shall 

determine what remedy, if any, is available to the Andersons. With respect to the equitable 

relief of an injunction to require GBS to remove the cables, however, we affirm the circuit 

court’s finding that this claim is barred by laches. 

JUDGMENT OF THE CIRCUIT COURT 

FOR SOMERSET COUNTY AFFIRMED, 

IN PART, REVERSED, IN PART, AND 

REMANDED FOR FURTHER 

PROCEEDINGS CONSISTENT WITH 

THIS OPINION. COSTS TO BE PAID 50% 

BY APPELLANTS AND 50% BY 

APPELLEES.