IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

CHARLES F. GREEN and JANE C. GREEN,

Plaintiffs,

v. 

JOEL E. TEMPLIN and HOLLY S. TEMPLIN,

Defendants.

Civil Action No. 5202-VCP

MEMORANDUM OPINION

Submitted: March 22, 2010

Decided: July 2, 2010

Richard L. Abbott, Esquire, ABBOTT LAW FIRM, Hockessin, Delaware; Attorneys forPlaintiffs

William J. Rhodunda, Jr., Esquire, Chandra J. Williams, Esquire, RHODUNDA & WILLIAMS, Wilmington, Delaware; Attorneys for Defendants

PARSONS, Vice Chancellor.

This case involves a dispute over whether a developer can use a 20 foot wide easement as the primary access to a 49 unit townhouse complex. In 2004, Defendants, Joel E. Templin and Holly S. Templin (the “Templins”), purchased a 12 acre parcel of land adjacent to the residence of Plaintiffs, Charles F. Green and Jane C. Green (the “Greens”). The Templins bought this land with the intention of developing it as a multiunit townhouse complex. For over thirty years, the only access to the Templins’ land was over a 10 foot wide driveway that lay partially within a 20 foot wide easement across the Greens’ property. In developing their plan for the townhouse complex, the Templins decided to use the 20 foot wide easement as the primary access to the complex. After the Greens, whose backyard pool and patio are approximately 80 feet from the easement, received notice in 2007 of the plan to expand the use of the easement, they complained to the Templins, imploring them to relocate the main access to the townhouse complex. On January 13, 2010, the day after the Templins’ development plan received final approval, the Greens brought this action. The Templins promptly answered the Greens’ Complaint and asserted several counterclaims.

The parties then filed cross motions for summary judgment. In their motion, the Greens seek a declaratory judgment and a permanent injunction barring the Templins from using the easement as the primary access to the townhouse complex. The Templins’ summary judgment motion seeks a declaratory judgment that their proposed use of the easement is permissible and that they have acquired title to the portion of the driveway that lies outside the boundaries of the easement through adverse possession.

In this Opinion, I deny the Greens’ motion for summary judgment in full and grant in part and deny in part the Templins’ motion. Specifically, I find that the Templins’ proposed use of the easement as the primary access to the townhouse complex is a permissible use of the easement and, thus, deny the Greens’ claims for a declaratory judgment and a permanent injunction and grant the Templins’ counterclaim for a declaratory judgment to that effect. I also find that the Templins have not shown continuous adverse use of the driveway for the twenty-year prescriptive period and, thus, have not demonstrated either adverse possession of or the existence of a prescriptive easement over the portion of the driveway that lies outside the easement. Accordingly, I deny that aspect of the Templins’ motion for summary judgment.

I. BACKGROUND

A. The Parties

Plaintiffs, the Greens, are Delaware residents currently living at 201 Owensby Drive in New Castle County, Delaware.¹

Defendants, the Templins, are residents of the Commonwealth of Pennsylvania and owners of a 12 acre parcel of land in Bethel Township, Pennsylvania that is adjacent to the Greens’ residence (the “PA Lands”).²

B. Facts

1. The Owensby Land, the Greens’ Property, and the Easement

Dating back to 1941, Fulton J. and Evelyn D. Owensby (the “Owensbys”) owned a 24.7 acre tract of land that straddled the border between Bethel Township, Pennsylvania and New Castle County, Delaware.³ In 1974, the Owensbys recorded a record plan for the 10 acres of their land that lay in Delaware (the “DE Lands”) with the Recorder of Deeds in and for New Castle County at Microfilm No. 2710 (the “1974 Plan”). The 1974 Plan divided the DE Lands into 10 lots.⁴ In the 1974 Plan, the Owensbys reserved a 20 foot wide easement across the far northwesterly portion of what was depicted on the Plan as Lot 1 (the “Easement”). The Easement is depicted on the 1974 Plan with dashed lines and the words “Easement – 20’.” The Easement is 102.38 feet long and connects the PA Lands, on which the Owensbys’ house (the “Owensby House”) was located, with Owensby Drive, which provided the Owensbys with access, via State Line Road, to a major highway.5 The Easement is the only access to the PA Lands depicted on the 1974 Plan.⁶ At least half of a 10 foot wide driveway across Lot 1 that leads directly to the Owensby House lies within the boundaries of the Easement.⁷ This driveway has existed since at least 1945.⁸

The Owensbys had created plans to subdivide the DE Lands twice previously, in 1959 and 1965 (the “1959 Plan” and the “1965 Plan”), but did not record either of these Plans.⁹ Both the 1959 and 1965 Plans allowed 50 feet in width for roads created by those Plans, including Owensby Drive.¹⁰ The 1965 Plan, but not the 1959 Plan, depicted a 50 foot wide connector road leading to the PA Lands through what ultimately would be depicted on the 1974 Plan as Lot 3 (“Lot 3”).¹¹ Neither the 1959 Plan nor the 1974 Plan, however, included a connector road through Lot 3.¹²

The Greens purchased Lot 1, as depicted on the 1974 Plan (the “Greens’ Property”), from the Owensbys on February 24, 1977.¹³ The deed to the Greens’ Property describes it as Lot 1 on Microfilm No. 2710 in the Office of the Recorder of Deeds in and for New Castle County, Delaware and notes that the Property is “SUBJECT to all existing covenants, easements, restrictions, reservations and agreements of record.” ¹⁴ Both Charles and Jane Green knew of the Easement when they purchased the Property, though Jane believed it referred to only the driveway. ¹⁵ Indeed, the only use of the Easement that has been made during the thirty-three years the Greens have owned their Property is as a driveway providing ingress and egress to the PA Lands. ¹⁶When the Greens purchased their Property and at all times since then, the PA Lands were zoned R-4 for high-density residential use by Bethel township.¹⁷

The Greens built their house so that it would not face a 2.3 acre industrial property directly across the street from the Easement. ¹⁸ As a result, the house is on the opposite side of the Greens’ Property from the Easement. Directly behind the Greens’ house and between the house and the Easement is a pool and patio area that is enclosed within a fence five or six feet tall. ¹⁹ The Templins submit that the distance between the Greens’ house and the Easement is approximately 120 feet, while the Greens assert that the driveway lies roughly 80 feet from their backyard pool and patio.²⁰

2. Independence Dogs purchases the PA Lands

On February 19, 1986, the Owensbys conveyed the PA Lands to Independence Dogs, Inc. (“Independence Dogs”), which used the property to operate a commercial dog training facility. On September 17, 1998, Independence Dogs received final approval of a Land Development Plan for the PA Lands from the Delaware County Planning Commission (the “Independence Dogs Plan”).²¹ The Independence Dogs Plan utilizes the Easement as the primary entrance to the PA Lands.²² In addition, the Plan also contains an entrance to the PA Lands through an easement across Lot 3, but a note beside this easement states: “40’ wide access easement to be available for emergency vehicles.”²³ The Greens did not object to the Independence Dogs Plan or its implementation, but did reject a proposal to expand the Easement’s width to 25 or 27 feet, instead insisting that the primary access to the PA Lands be limited to the 20 foot wide Easement.²⁴ The Independence Dogs Plan was never implemented, however, and Independence Dogs ceased operations on the PA Lands in 2001.²⁵

3. The Templins acquire the PA Lands and seek approval of the IndependenceTowns Project

On December 1, 2004, the Templins purchased the PA Lands from Independence Dogs.²⁶ In 2005, the Templins acquired Lot 3 from Independence Dogs²⁷ and also began leasing the Owensby House to residential tenants. Between the time Independence Dogs ceased its operations on the PA Lands in 2001 and 2005, little, if any, use was made of the driveway across the Greens’ Property.²⁸

In 2007, the Templins began the process of obtaining approval from Bethel Township to construct a townhouse community on the PA Lands (the “Independence Towns Project”). ²⁹ Originally, the Project contemplated 56 units, but the Templins later reduced that number to 49. ³⁰ Bethel Township preliminarily approved the Templins’ plan for the Independence Towns Project (the “Approved Plan”) in April 2009³¹ and granted final approval of it on January 12, 2010.32 The Approved Plan utilizes the Easement as its primary access point and also provides for emergency access across Lot 3. ³³ Implementation of the Approved Plan would produce traffic in the amount of 370 trips per day over the Easement. ³⁴

The Templins originally planned to provide primary access to the Independence Towns Project through Lot 3 and use the Easement only as a one-way secondary point of ingress (the “Alternate Plan”).³⁵ Ultimately, however, the Templins decided not to pursue this plan because they understood that to build a road through Lot 3, they would need to submit a Major Land Development Plan to New Castle County. ³⁶ Specifically, the Templins abandoned the Alternate Plan because they estimated it would take one to two years to obtain approval of a Major Land Development Plan and expected community resistance to the use of Lot 3 as the primary access to the Project. ³⁷ Under the Alternate Plan, all cars entering the Project would drive past the front of the Greens’ house on Owensby Drive before turning onto East Fulton Road and then the Lot 3 access road. ³⁸ The distance between Owensby Drive and the front of the Greens’ house is approximately 60 feet. ³⁹ Implementation of the Alternate Plan also would have required townhouses to be built 80 feet closer to the Greens’ house than under the Approved Plan. ⁴⁰

4. The Greens retain counsel to challenge the Templins’ proposed use of the Easement

In June 2007, after receiving notice of the proposal for the Independence Towns Project, the Greens retained counsel “to protect [their] property and prevent overuse of the Driveway Easement.”⁴¹ From this time until the Templins received final approval for the Independence Towns Project, the Greens objected to the proposed use of the Easement at numerous Bethel Township meetings. ⁴² On October 29, 2007, the Greens’ counsel informed the Templins by letter of the Greens’ objection to the proposed use of the Easement. ⁴³ By letter dated November 16, 2007, counsel for the Greens advised the Templins’ counsel of the Greens’ view that the proposed use of the Easement would overburden the Easement in a legally impermissible manner. ⁴⁴ After neither the Templins nor their counsel responded to these letters, the Greens’ counsel wrote to the Templins’ counsel again on October 14, 2008. This letter stated that the Greens “intend to pursue all available legal avenues of relief if Mr. Templin should ultimately obtain final approval of his Plan” and noted that the Templins were proceeding with their development plans at their own peril. ⁴⁵

46 the Greens deny that the Templins communicated with them after they sent the initial letter voicing their objection to the proposed use of the Easement in October 2007.⁴⁷

C. Procedural History

The Greens filed their Complaint in this action on January 13, 2010.⁴⁸ In the Complaint, the Greens seek: (1) a declaratory judgment quieting title over the portion of the Easement which does not contain the driveway and declaring that the Easement cannot be used to access the Independence Towns Project; and (2) a preliminary and permanent injunction barring the Templins from using the Easement to access the Independence Towns Project.

On January 21, 2010, the Court held a scheduling conference at which the parties agreed to proceed with the case on an expedited basis. The Templins filed their Answer and Counterclaims on January 26. They assert eight counterclaims against the Greens for: (1) a declaratory judgment that the Easement can be used for any purpose; (2) adverse possession of the portion of the driveway that lies outside the boundaries of the Easement; (3) imposition of an easement by implication for use of the Easement to access the Independence Towns Project; (4) removal of a fence on the Greens’ Property that allegedly encroaches onto the PA Lands; (5) tortious interference with the Templins’ contract with a homebuilder; and tortious interference with privileged relations between the Templins and (6) Bethel Township, (7) the Delaware Department of Transportation, and (8) New Castle County. The Greens answered the Templins’ Counterclaims on February 4, 2010.

On February 19, the Greens moved to stay this action pending the decision of the New Castle County Department of Land Use as to whether either or both of the Easement and Lot 3 can be used to access the Independence Towns Project. On February 23, following oral argument, I denied the Greens’ motion to stay, but also declined to expedite the proceedings as to the Templins’ counterclaims that did not relate directly to the Greens’ claims, such as those for tortious interference.

p>On March 3, 2010, the parties filed cross motions for summary judgment. Both the Greens and the Templins moved for summary judgment on all of the Greens’ claims, while the Templins also sought summary judgment on their counterclaims for declaratory judgment and adverse possession. The parties fully briefed both motions. Then, on March 22, I conducted a site visit to the land in dispute and heard oral argument on the parties’ respective cross motions for summary judgment.

D. Parties’ Contentions

p>The Greens contend that the Templins’ proposed use of the Easement as the primary access to the Independence Towns Project would overburden the Easement, thus entitling them to a declaratory judgment quieting title to the Easement and barring its use to access the Independence Towns Project. The Greens also contend that the Easement should be deemed extinguished by abandonment or termination of purpose or, alternatively, that the use of the Easement should be limited to a small number of motor vehicle trips per day under the doctrine of acquiescence. The Greens further urge the Court to grant a permanent injunction barring the Templins’ proposed use of the Easement.

The Templins contend that the Greens’ claims are barred under the doctrine of laches. Additionally, they argue that the unrestricted nature of the Easement and the reasonableness of the Easement’s proposed use mandate that the Court enter a declaratory judgment that the Easement can be used for any purpose, or at least as the primary access to the Independence Towns Project. Finally, the Templins contend that they have met all requirements necessary to acquire title to the portion of the driveway that lies outside the Easement through adverse possession.

II. ANALYSIS

A. Legal Standard for Cross Motions for Summary Judgment

Under Court of Chancery Rule 56, summary judgment will be granted where the record shows that (1) there is no genuine issue as to any material fact and (2) the moving party is entitled to judgment as a matter of law.⁴⁹ In determining whether this burden is met, the court views the facts in the light most favorable to the nonmoving party.⁵⁰ In cases where, as here, the parties file cross motions for summary judgment and agree that there is not “any issue of fact material to the disposition of either motion,” the court “shall deem the motions to be the equivalent of a stipulation for decision on the merits based on the record submitted with the motions.”⁵¹ Even though the Greens and the Templins dispute a few issues of fact, they have agreed that the Court, in effect, should render a final decision on the merits of their claims and that none of the factual disputes need to be resolved to render such a decision. Thus, I will treat the parties’ cross motions for summary judgment as a stipulation for decision on the merits based on the record they have submitted.⁵²

B. Laches

Among other things, the Templins seek dismissal of the Greens’ claims under the doctrine of laches. Laches is an equitable defense that stems from the maxim “equity aids the vigilant, not those who slumber on their rights.”⁵³ A party seeking to invoke laches generally must prove that the claimant (1) knew of his claim, (2) unreasonably delayed in bringing his claim, and (3) injured or prejudiced the other party by his unreasonable delay.⁵⁴

The parties agree that the Greens learned about the Templins’ proposed use of the Easement for primary access to the Independence Towns Project sometime in 2007. The parties dispute, however, when the Greens’ claims to enjoin the proposed use of the Easement and for a declaration that this use is impermissible became ripe. Relying on the Calagione case,⁵⁵ the Greens contend that their claims did not ripen until the Approved Plan received final approval from Bethel Township on January 12, 2010. In Calagione, the court dismissed as unripe a claim to enjoin implementation of two subdivision plans. Those plans had been approved by the City, but the owners of the lands to be subdivided had not yet proposed construction of anything on those lands. The court, therefore, found the plaintiffs’ claim that they would be harmed by implementation of the subdivision plans to be speculative. The court also noted that, if the landowners ever decided to build anything on the lands, they would be subject to an administrative process that would allow the plaintiffs to challenge the proposed construction.⁵⁶ According to the Greens, Calagione demonstrates that a claim challenging the implementation of a subdivision plan such as the Approved Plan does not become ripe until the plan receives final approval and construction is imminent.

The Templins, on the other hand, contend that the Greens could have filed their Complaint in 2007 or 2008 when they first became aware of the Templins’ plan to use the Easement as the primary access to the Independence Towns Project. The Templins rely on the Heathergreen Commons case to support this contention.⁵⁷ In Heathergreen Commons, the court held that the defendants’ declaratory judgment claim seeking to determine the extent of restrictions on a parcel of land they owned was ripe even though he defendants had yet to obtain the approvals necessary to build on the land.⁵⁸ Critical to the court’s decision was how the controversy between the parties was defined. The plaintiffs framed the issue as whether the defendants could build a motel-restaurant on their land. The court, however, concluded that the parties’ real dispute actually involved whether the defendants owned the land “free and clear of the restrictions and negative easements under which the plaintiffs claim[ed] enforceable rights.”⁵⁹ Having so framed the dispute, the court held that the defendants’ claim was ripe for adjudication because they had a legitimate need to determine their rights in their property in the face of a bona fide legal challenge to these rights.⁶⁰ Although the Templins claim that Heathergreen Commons shows that the Greens’ claims became ripe before final approval of the Approved Plan, I consider that debatable. What the case demonstrates more clearly is that the Templins could have brought a justiciable declaratory judgment claim as early as 2008, well before final approval was obtained, when they became aware of the Greens’ position.

Consistent with the Greens’ argument, the procedural posture of this case more closely resembles Calagione than Heathergreen Commons. Calagione addressed when a claim to enjoin implementation of a subdivision plan becomes ripe. In Heathergreen Commons, the issue was the ripeness of a declaratory judgment claim brought by a group of landowners seeking a determination of what they lawfully could do with their land. Accordingly, Calagione is more relevant to when the Greens’ claims in this action ripened, while Heathergreen Commons pertains more to the ripeness of a claim by landowners such as the Templins for a determination of their rights. Thus, the Greens have at least a colorable argument that their claims were not ripe until the Templins’ plan received final approval from Bethel Township on January 12, 2010.

In any event, I need not decide the exact date when the Greens’ claims ripened because, even if their claims became ripe at the earliest time alleged by the Templins, June 2007, the Greens did not delay unreasonably in bringing them. The Templins essentially argue that because the Greens knew of the proposed use of the Easement in mid-2007 or 2008, they delayed unreasonably by waiting until January 13, 2010 to file suit. The Templins, however, do not explain why waiting until this date, one day after Bethel Township gave the Independence Towns Project final approval, was unreasonable. To the contrary, it is understandable that the Greens would want to make certain the Easement would be expanded before they expended resources seeking a judicial resolution of their opposition to its use. Any number of events could have derailed the Templins’ proposed use of the Easement. The Greens consistently and repeatedly objected to the Easement’s proposed use and threatened litigation if the Plan received final approval. Thus, the Greens reasonably could have hoped that the Templins would decide to relocate the primary entrance to the Independence Towns Project to Lot 3, as they originally had proposed, or even abandon the Project entirely.⁶¹ The Greens also pressed their objections before Bethel Township throughout the approval process, so it was possible that the Township might not approve the Templins’ Plan. Had any of these events occurred, the Greens would have been spared the necessity of incurring the expense and disruption of litigation to achieve their objective. The Greens, therefore, reasonably decided to defer filing suit until they were more certain the Easement would be used as the primary access to the Independence Towns Project, especially since there is no question the Greens promptly notified the Templins of their vigorous opposition to the proposed use of the Easement. In an October 14, 2008 letter, for example, the Greens’ counsel informed the Templins that the Greens “intend to pursue all available legal avenues of relief if Mr. Templin should ultimately obtain final approval of his Plan . . . .”⁶² That letter also warns that the Templins “proceed[] with [their] proposed development project at [their] own peril.”⁶³

By October 2008, therefore, the Templins knew of the Greens’ threat to bring suit if the Plan ever received final approval. From at least that point on, the Templins had a sufficiently concrete dispute with the Greens over the scope of the Easement in relation to the proposed Independence Towns Project that they could have filed their own action for a declaratory judgment to vindicate their position.⁶⁴ They reasonably could infer from the October 14, 2008 letter that the Greens probably would not sue until after the proposed Plan obtained final approval. Nevertheless, the Templins opted not to file suit themselves because they were confident in the opinions of their title company and legal counsel that the proposed use of the Easement was permissible. Presumably, they, too, wished to avoid the potentially unnecessary expense of litigation, just as the Greens did. By proceeding ahead with their Plan and not seeking a declaratory judgment, however, the Templins incurred more risk than the Greens.

Indeed, any injury or prejudice the Templins suffered as a result of the Greens not filing suit until January 13, 2010 was largely self-inflicted. The Templins claim to have suffered a number of injuries as a result of the Greens’ lethargy, including: (1) the expenditure of $144,089 in engineering fees from November 2008 to January 2010; (2) a $25,000 penalty under a forbearance agreement with the bank who loaned them the money to purchase the PA Lands; and (3) a risk that the homebuilder will void the contract to purchase the PA Lands, which would have closed immediately after final approval was obtained in January 2010, but for this litigation. Most of these “injuries” could have been avoided, however, had the Templins filed a declaratory judgment suit in 2008 or 2009, after the Greens indicated their intention to sue them if the Independence Towns Project obtained final approval. Therefore, I find that the Templins’ alleged injuries are too tenuous to support a finding of laches. Because the Greens did not unreasonably delay in bringing their claims and did not injure or prejudice the Templins by waiting until January 13, 2010 to file suit, I find that the Greens’ claims for a declaratory judgment and permanent injunction are not barred by laches.

1. Is the Templins’ proposed use of the Easement reasonably necessary for the convenient enjoyment of the PA Lands?

In Delaware, whether the use of an easement is reasonably necessary for the convenient enjoyment of the dominant estate is determined according to a four-factor test that considers: (1) the terms of the easement; (2) the purposes for which the easement was created; (3) the nature and situation of the property subject to the easement; and (4) the manner in which the easement has been used.⁷⁰

a. The terms of the Easement

The terms of an easement are often critical in determining its permissible scope, as “the language of the easement is the primary guide for the courts.”⁷¹ Here, the terms of the Easement are sparse and of limited help in determining what uses of the Easement are reasonable. If anything, this factor favors the Templins because the Easement contains no express restrictions on its use and there is no reason to doubt that the Owensbys could have placed restrictions on the Easement when they created it if they so desired. Also, the fact that the document that created the Easement, the 1974 Plan, was subject to several years of litigation, but was not amended to place restrictions on the use of the Easement, provides additional support for the view that the Easement’s sparse language was intended to give rise to an unrestricted Easement.72

b. The purposes for which the Easement was created

This is the most important of the four factors, as the “paramount rule” of easement construction is that “the intention of the parties is to be given effect if it can be ascertained.”⁷³ The Greens contend that the Easement “was created to formally establish the Owensbys’ right to have a driveway from Owensby Drive to the Owensby home.”⁷⁴ The Templins, on the other hand, aver that the Easement was created for the purpose of providing general access to the 12.3 acre PA Lands when those lands inevitably were subdivided.

To support their contention that the Easement was to be used only as a driveway, and not as an access road to a subdivision, the Greens note that the Owensbys never created a plan to subdivide the PA Lands. The Greens also argue that the Owensbys evidenced their intent not to subdivide these lands by excluding from the 1974 Plan a 50 foot wide road into the PA Lands that was depicted in the 1965 Plan and specifying an Easement only 20 feet in width, rather than the 50 feet they generally left for access roads on lands they proposed to subdivide.⁷⁵

A number of facts, however, convince me that the Owensbys did not intend the Easement to serve exclusively as a driveway to their House. First, only half of the driveway lies within the boundaries of the Easement, which indicates that the Easement was intended to do more than simply formalize the Owensbys’ right to use the driveway. In addition, the driveway predates the creation of the Easement by at least twenty-five years, so if the Owensbys wanted to limit the use of the Easement to driveway purposes, they could have drawn the 1974 Plan so that the Easement coincided with the driveway. In any event, there would be no need for a 20 foot wide easement if its only intended use was as a 10 foot wide driveway.

Moreover, one reasonably would anticipate that a 12 acre parcel of land eventually would be subdivided, and the fact that the Easement constitutes the only access to the PA Lands depicted on the 1974 Plan suggests that the Easement was intended to provide access to the PA lands once they were subdivided. This conclusion is reinforced by the fact that most of the lands surrounding the PA Lands have been developed with medium to high-density residential projects similar to the Independence Towns Project.⁷⁶ I also note that the Easement’s 20 foot width allows sufficient space for two cars driving in opposite directions to pass each other comfortably, as evidenced by the fact that State Line Road is only approximately 16.5 feet wide.⁷⁷ Finally, as previously noted, if the Owensbys had intended the Easement to be used only as a driveway, they easily could have indicated this intention explicitly when they created the Easement, but did not do so. All of this leads to the conclusion that the Easement was created for the purpose of providing access to the PA Lands, including as they might be subdivided, rather than merely formalizing the Owensbys’ right to use the driveway leading to their House. Thus, the purpose factor favors the Templins.

CONTINUED