text:
    GEORGE ANTHONY HARROD v. STATE OF MARYLAND
    [No. 905,
    September Term, 1977.]

      Decided April 13, 1978.

      The cause was argued before Thompson, Wilner and Couch, JJ.

      Richard M. Karceski, Assigned Public Defender, for appellant.

      Gilbert H. Robinette, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Charles P. Lamasa, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

Lightning may get away with striking twice in the same place. George Anthony Harrod did not. He was caught and thereafter convicted by a jury in the Criminal Court of Baltimore of robbery with a deadly weapon, for which he was sentenced to imprisonment for fifteen years, and of using a handgun in the commission of a felony or crime of violence, for which he was sentenced to a concurrent term of five years. We affirm these convictions.

The State’s case against Harrod came primarily from the testimony of Clara Stump and Helen Stephenson, two former employees in a store known as the Edsel Shop. This was a children’s clothing store located in Baltimore City, near the Johns Hopkins Hospital complex. Essentially, their testimony was that Harrod and another man, thought to be Jeffrey Cassell, entered the store on January 10, 1976, when both women were at work. Harrod pretended to be a customer, and was waited on by Ms. Stump. After examining some items of children’s clothing, he (and Cassell) left the store. They returned about ten minutes later and Harrod stated that he would buy the item he had previously examined. Ms. Stump retrieved the article, accepted $20 from Harrod, and was about to place the money in the cash register when Harrod pulled a gun. He then herded Ms. Stump and Ms. Stephenson into the back of the store and locked them in the bathroom. When they finally got out, they found the cash register open and the money ($140) gone. Eighteen dollars was also taken from Ms. Stump’s purse.

Shortly after this incident, Ms. Stephenson identified Cassell from an array of photographs shown her by the police, and a warrant was promptly issued for his arrest.

Nothing of consequence happened with respect to Harrod until June 22, 1976, some five months later, when he again entered the Edsel Shop — this time alone — and again held it up at gunpoint. Ms. Stump had the misfortune of being present on this occasion as well. About a month later, on July 19,1976, Ms. Stump spotted Harrod on the street outside the shop, and observed him enter a nearby jewelry store. She promptly notified the police; and, as a result, Harrod was identified, tracked down, and arrested.

The case proceeded against Harrod only with respect to the first incident — the one occurring on January 10. Cassell was joined as a co-defendant charged with two counts of armed robbery, both, apparently, in connection with the January 10 incident. During the course of the trial, however, the State nol prossed these charges against Cassell, and the trial thenceforth proceeded against Harrod alone.

Further facts will be set forth in the discussion of the issues raised by Harrod. Those issues are as follows:

1. Was appellant precluded from impeaching the witness, Clai*a Stump, by use of the transcript of her testimony at appellant’s preliminary hearing?

2. Was appellant’s right to cross-examine State’s witnesses on material issues unduly restricted?

3. Was the testimony concerning an alleged admission by appellant to his participation in the instant robbery erroneously admitted in evidence?

4. Was the rebuttal testimony of Officer Timothy Murray improperly admitted in evidence?

5. Did the State fail to meet its burden of proof under the eighth count (use of a handgun in the commission of a felony or crime of violence) and was the trial court’s instruction on that count plain error requiring a reversal of appellant’s convictions?

(1) Use of the Preliminary Hearing Transcript

The complaint here, in appellant’s words, is that he was “precluded from impeaching the witness, Clara Stump, by use of the transcript of her testimony at the appellant’s preliminary hearing.”

During her direct examination, Ms. Stump stated, with respect to the January 10 incident, that two men had entered the store. She repeated that on cross-examination. Defense counsel then desired to impeach the credibility of the witness by showing that, at Harrod’s preliminary hearing in the District Court, she had testified that three men, rather than two, had entered the store. He proposed, ultimately, to do this by referring to a transcript of that proceeding which purports to show her saying that “there was three men came in.” Counsel began to lay the necessary foundation to establish a prior inconsistent statement when an objection was made to the form of his question. At an ensuing bench conference, the State learned that counsel was in possession of the transcript and proposed to use it for impeachment purposes.

There then ensued, at the bench, a wide-ranging discussion about the transcript. The State objected to the admission of the transcript into evidence primarily on the grounds that the transcript was hearsay, it was unreliable, and it was not properly authenticated. Responding to these objections, the court noted that District Court transcripts tended to be unreliable, and it expressed concern that “you [defense counsel] don’t have anybody to vouch for the reliability of this transcript.”

Whatever may have been counsel’s original proposed use of the transcript, after several bench conferences, it became clear that he desired to offer it, or at least the relevant part of it, into evidence. His ultimate motion was not merely to read the question and answer, as shown in the transcript, to the witness and then ask her about them, but rather to place that part of the transcript into evidence as an exhibit. The court, responding to that motion, allowed the transcript to be marked for identification, but declined to permit the transcript, or any part of it, to be admitted into evidence, stating:

“[T]he most untrustworthy document I can think of is a District Court transcript made from a disc which is transcribed by a typist who is not a reporter and doesn’t even hear the testimony. And it may be covered technically by the law... but the byword in the introduction of any evidence is trustworthiness. And transcripts of District Court hearings are notoriously untrustworthy.”

The court did state, however, that it would permit counsel to call as a witness the public defender who was present at the preliminary hearing:

“You could put him on. He could say, ‘Yes, I was there,’ and tell whether or not he remembers what she said in answer to that. But, now, that’s a live witness who was a witness to a prior contradictory statement. But, I’ll not accept... a District Court transcript to support a position of a prior contradictory statement.”

In addressing the issue raised, we start with the proposition that the credibility of a witness may be impeached by showing that he has made statements which contradict his trial testimony in respect to material facts, provided a proper foundation has been laid. See State v. Kidd, 281 Md. 32 (footnote 8 at page 46) (1977) This would, of course, include statements made by a witness at a preliminary hearing. DeToro v. Pepersack, 332 F. 2d 341 (4th Cir., 1964), cert. denied 379 U. S. 909 (1964). Thus, after laying a proper foundation, he was entitled to offer credible evidence that Ms. Stump had stated, at the preliminary hearing, that three people had entered the store.

The question was whether the “transcript” of the hearing was the appropriate vehicle with which to establish that proposition. To address that issue, we first must consider what it is we are dealing with.

In circuit court proceedings, an official court reporter is present in court, and he personally and contemporaneously records his immediate sensory perceptions of what has transpired. When he prepares a transcript, he does so from what he personally has recorded; and his transcript represents the only official record of the proceeding. Thus, a court reporter’s certificate generally attests both to the recordation and the transcription.

By way of contrast, there are no official court reporters in the District Court. Proceedings there are electronically recorded, not always under the best of circumstances. That recording — the tape or disc — is the actual, and only, neutral and official record of what transpired. When a transcriber prepares a transcript from such a recording, he is therefore not relying on his notes or his recollection, but only upon a recording that he is in no better position than anyone else to interpret.

The primary proposition to be proved was that Ms. Stump had testified, in the District Court, that three men had entered the store. When the transcript purporting to show that was offered, and the State objected that the transcript was unreliable, it raised a secondary issue that had to be dealt with before the primary proposition could be resolved; namely, whether the assertion in that document that Ms. Stump had so testified was itself sufficiently trustworthy to be laid before the jury as substantive evidence. In that context, defense counsel was offering a document for its truth; he was proposing to ask the jury to accept as true the written statement of an out-of-court declarant (the transcriber), not even made on personal knowledge, that Ms. Stump had made a particular statement. And he offered this in lieu of the primary evidence of what she had actually said — the recording from which the transcript was made — or the testimony of a witness who was present at the hearing and could state upon personal knowledge what was said.

It is clear that the document was hearsay. The question is whether it is admissible under any of the available exceptions to the hearsay rule. The only exceptions asserted or even suggested at trial were the statutory “business record” and “public record” exceptions embodied in Md. Annot. Code, Courts article, §§ 10-101 and 10-204. Before dealing specifically with these statutes, however, we note that there is a considerable body of law, in Maryland and elsewhere, concerning the proper ways in which to prove the testimony of a witness given at an earlier proceeding. McCormick offers four such methods; namely:

“(1) Any firsthand observer of the giving of the former testimony may testify to its purport from his unaided memory____
“(2) A firsthand observer may testify to the purport of the former testimony by using a memorandum, such as the judge’s, counsel’s, or the stenographer’s notes, or the stenographer’s transcript, to refresh the present memory of the witness.
“(3) In most states the magistrate’s report of the testimony at a preliminary criminal hearing, and the official stenographer’s transcribed notes of the testimony at the trial of a case, civil or criminal, are admitted, when properly authenticated, as evidence of the fact and purport of the former testimony either by statute or under the hearsay exception for official written statements. There is generally no rule of preference for these reports, however, and any observer, including the stenographer himself, may be called to prove the former testimony without producing the official report or transcript.[]
“(4) A witness who has made written notes or memoranda of the testimony at the time of the former trial, or while the facts were fresh in his recollection, and who will testify that he knows that they are correct may use the notes as memoranda of past recollection recorded ” (Emphasis in the original.)

It should be carefully noted that only the notes or transcript prepared by a person actually present and in a position to hear the testimony may be used, and then only when authenticated or verified by a live witness subject to cross-examination. The Maryland Court of Appeals has not stepped beyond this cautious approach, but instead has consistently taken a very restrictive view about the use of stenographic transcripts to prove the testimony of a witness given at an earlier proceeding. The precursor of the issue first arose in Ecker v. McAllister, 54 Md. 362 (1880). There had been a previous trial in that case, but the judgment had been reversed and a new trial ordered by the Court of Appeals. In the second trial, defendant attempted to impeach the testimony of two witnesses for the plaintiff by showing their testimony at the first trial. He proposed to do this by offering into evidence his own bill of exceptions from the first trial, which apparently contained a statement of what the two witnesses had said. The Court of Appeals concluded that the document was inadmissible, stating, at pages 371 and 372, that “the only proper mode of proving what a witness orally testified to on a former trial is to examine witnesses for that purpose who heard his evidence given.”

This clear and direct statement was reaffirmed by the Court in Herrick v. Swomley, 56 Md. 439 (1881). The question there was whether notes of evidence given in a case tried in a Pennsylvania court, certified by an “official stenographer” of that court, were admissible. Relying on Ecker v. McAllister; and pointing out that the document was “nothing more than a copy of the notes of evidence taken by a stenographer, appointed for that purpose, for the convenience of the court and members of the bar”, the Court concluded that the stenographer’s notes were inadmissible.

The guarded view of the Court as to the use of stenographer’s notes was expressed again in M. & C.C. of Balto. v. Biggs, 132 Md. 113 (1918). There, counsel had been allowed, at a second trial of the case, to read to the jury a stenographic copy of the testimony of a deceased witness who has testified at the first trial. The Court stated:

“While the testimony of a deceased witness may be proved by the stenographer who took the testimony and who testified from his notes, or by a witness who heard the testimony, it is not proper to allow counsel to read the jury a copy of the evidence reduced to writing from the stenographer’s notes. ” (Emphasis supplied.)

The dicta in Biggs to the effect that prior testimony may be proved by the stenographer, but not, in his absence, from his notes, was made firm in Holler v. Miller, 177 Md. 204 (1939). There, at a second trial, the stenographer who recorded the testimony at the first trial was called as a witness to prove, for purposes of impeaching a witness, the testimony of that witness given at the first trial. The stenographer apparently had no independent recollection of the particular testimony at issue, and his original notes had been destroyed. He did, however, have the transcript which he had made from his notes, and “which he knew to be a true extension of his notes”; and he was permitted to read the particular testimony from that transcript. The Court sustained that approach, commenting (with citations omitted) at pages 207 and 208:

“It is not disputed that relevant admissions of a party made in a former proceeding may be placed in evidence____But on the authority of [M. & C.C. of Balto. v. Biggs] it is denied that they may be introduced directly by a stenographer’s transcript of testimony during the course of which the admissions were made. In that case, however, the court held only that an attorney could not merely read what he offered as a transcript. And in the case of Herrick v. Swomley . . . the notes of a Pennsylvania stenographer, certified under the Act of Congress, were excluded as not a part of the record which could be introduced in this state without supporting testimony. When, as here, the stenographer himself, by his testimony in court, verifies the transcript as an authentic extension of his notes, the case is different. In addition to the assurance of authenticity afforded by his oath, there is official character in the transcript because the stenographer is appointed by the court, under the authority of a statute, for the very purpose of preserving testimony.... It is settled that he may testify from his notes, without reference to independent recollection____And his transcript is only a more convenient form of testimony from his notes____ Therefore the fact that the stenographer in this instance had no independent recollection, and was in reality introducing the transcript in evidence, did not render it inadmissible as supposed.”

Snyder v. Cearfoss, 190 Md. 151, supra, relied on by McCormick, did little more than repeat and reaffirm what the Court had said and done in Holler v. Miller. The stenographer, who was present and recorded the testimony at the earlier proceeding, authenticated, through her testimony, the transcript that had been made from her notes.

Although Wigmore suggests that, “on principle”, a stenographer’s notes should be admissible without the authenticating testimony of the stenographer, he recognizes that courts have “generally declined” to permit that in the absence of statutory authorization. Although a number of States have enacted such statutes, specifically making certified stenographic transcripts admissible as evidence, it does not appear that Maryland has done so.

Courts article, § 10-101, provides that “a writing or record made in the regular course of business as a memorandum or record of an act, transaction, occurrence, or event is admissible to prove the act..and that “the lack of personal knowledge of the maker of the written notice may be shown to affect the weight of the evidence but not its admissibility.” (Emphasis supplied.) Subsection (c) of that section, however, provides that “the practice of the business must be to make such written records of its acts at the time they are done or within a reasonable time afterwards.”

It is not clear, despite Maryland District Rule 1326, that the transcript was made “in the regular course of business”. What is crystal clear, both in fact and from Maryland District Rule 4, is that, with respect to the transcript (as compared with the electronic recording) it was not the practice of the court to make “such written records of its acts at the time they are done or within a reasonable time afterwards.” Indeed, it is not the practice of the court to make these transcripts at all, unless, in the case of a trial (as compared, for example, with a preliminary hearing) there is an appeal from the judgment, or unless a party otherwise asks for a transcription. Accordingly, we conclude that the transcript of the preliminary hearing was not admissible under § 10-101.

Section 10-204 provides that a copy of a “public record, book, paper, or proceeding of any agency of the State” or political subdivision of the State shall be received in evidence in any court “if certified as a true copy by the custodian of the record, book, paper, or proceeding, and if otherwise admissible.” This statute, enacted as part of the code revision process, was intended to be an amalgamation of a series of “public records” statutes, each pertaining to a particular State agency, that were previously codified in Md. Annot. Code art. 35.

Assuming, arguendo, that the transcript in question qualifies as a “copy of a... proceeding” of a State agency, which we need not decide, it is clear that it was not “certified as a true copy” of that proceeding “by the custodian of the ... proceeding”. There was no showing, in the first instance, that the transcriber was the custodian of the “proceeding”, or the original disc. Moreover, as the trial judge pointed out, her certificate did not state that the transcript was a “true copy”, but only that it was the “official transcript” and that she transcribed the disc recording. On its face, therefore, the transcript did not comply with the requirements of the statute.

Accordingly, although counsel could have offered evidence of the alleged prior inconsistent statement in other ways, the transcript itself was inadmissible; and the court therefore committed no error in sustaining the State’s objection to it.

(2) Restriction of Cross-Examination as to Identification of Cassell

As noted, the case initially proceeded against both Harrod and his co-defendant Jeffrey Cassell. Ms. Stump, the State’s first witness, positively identified Harrod as the man who twice robbed her and the store. With respect to the January 10 incident, she stated that she had not paid much attention to the second man, and was unable to identify Cassell. The State’s case against Cassell was based primarily on the expected testimony of Ms. Stump’s co-worker, Helen Stephenson, who had previously made a positive photographic identification of Cassell.

At the conclusion of Ms. Stump’s testimony, but prior to Ms. Stephenson being sworn, the State’s Attorney advised the court (and defense counsel) that, during a break in the trial, Ms. Stephenson had stated that “she got a look at Mr. Cassell at the trial table and she said that she was not sure that he was the one.” With the consent of defense counsel, a “one on one” confrontation was arranged in the courtroom, outside the presence of the jury. Ms. Stephenson reiterated her uncertainty, stating that Cassell had a darker complexion and was a lot thinner than the second participant in the robbery. The State’s Attorney then indicated that he would consider this turn of events overnight.

The next morning, Ms. Stephenson was called to testify. She corroborated Ms. Stump’s explanation of what occurred on January 10, and positively identified Harrod as one of the robbers. She said that she paid particular attention to him “because I thought he was a nice looking man.” She pointed to Cassell as the man who “looks like” the second robber, but admitted that she was not certain of that identification. It was then established that, in July, 1976, Ms. Stephenson was shown a book of photographs by the police from which she had identified Harrod. She was shown the book again in court and was able to pick out the photograph of Harrod that she had identified in July. She noted that the photograph showed Harrod in a neck brace, or orthopedic collar, and that, in making the July identification, she had pointed out to the police that he had not worn such a collar when he was in the store the previous January.

At the conclusion of her direct examination, the State’s Attorney advised that he would “do something” about the Cassell case after the witness completed her testimony.

During cross-examination, defense counsel asked Ms. Stephenson about her photographic identification of Harrod. She admitted that, because of the orthopedic collar, her July identification had not been a positive one. Counsel then attempted to question the witness about her photographic identification of Cassell, but was precluded from doing so on the ground that such inquiry exceeded the scope of direct examination. Indeed, on direct examination, she had not been asked about her photographic identification of Cassell. At the conclusion of Ms. Stephenson’s testimony, the State nol prossed all charges against Cassell on the apparent ground that its only evidence against him was the uncertain identification by Helen Stephenson.

The State next called Officer Hardgrove, who identified a book of photographs he said he had shown to both Ms. Stump and Ms. Stephenson on July 20. This was the same book that Ms. Stephenson had identified and from which she selected Harrod’s photograph. He stated that, from that book, Ms. Stump had positively identified Harrod, but that Ms. Stephenson’s identification had been hesitant:

“... she [Stephenson] picked out the photograph of Mr. Harrod but was hesitant. She continued through the book and came back and said, ‘Yes, I believe this is the man, but I cannot be absolutely certain.’ ”

On cross-examination, counsel attempted to ask the officer whether Ms. Stephenson had identified anyone else, to which the State objected. At an ensuing bench conference, it became clear that counsel desired to show that, in January, 1976 (not in July), Ms. Stephenson had positively identified Cassell from a photograph, and that she was unable to identify him in court with such precision. From this, he proposed to attempt to impeach her positive in-court identification of Harrod. The court sustained the objection on the basis that the identification of Cassell in January had not involved Officer Hardgrove and that it was irrelevant.

Appellant claims that “regardless of the soundness of his trial tactics,” his trial counsel had the right to cross-examine Stephenson and Hardgrove “relative to any out of court identification made by the witness Stephenson.”

At first blush, his argument would appear to be justified under the holding of this Court in DeLilly v. State, 11 Md. App. 676 (1971). In that case, four men entered the home of Mr. and Mrs. Jackson and literally terrorized the family. Mrs. Jackson was raped by two of the men, her aunt was assaulted, the house was ransacked, and some personal property was stolen. From a number of photographs shown to them shortly after the crime, Mr. and Mrs. Jackson identified DeLilly as one of the men who had entered the home and raped Mrs. Jackson.

At trial, Mr. Jackson made an in-court identification of DeLilly. On cross-examination, he also stated that he had identified one Charles Alston as the other man who had raped his wife. He stated that he had identified Alston from a photograph, at a police line-up, and in court at Alston’s earlier trial. He stated that, although his wife had been unable to recognize Alston as one of her assailants, he had no doubt about his identification. At that point, with all of this in evidence, defense counsel undertook to show, through further cross-examination, that, during Alston’s trial, Mr. Jackson had, in fact, asked the prosecutor to drop the charges against Alston because, despite his earlier identification of the man, neither he nor his wife were then positive that Alston had been involved, and that, as a result of this request, the charges against Alston were, in fact, dropped. The purpose of this examination was to impeach the weight and credibility of Jackson’s in-court identification of DeLilly.

Mrs. Jackson also testified and made an in-court identification of DeLilly. She denied ever having identified Alston. Counsel attempted to show, through cross-examination, that Mrs. Jackson had made such an identification, but had repudiated it at Alston’s trial; but he was precluded from doing so. Counsel, in a further attempt to pursue this point, called Alston’s prosecutor as his own witness, and tried, through him, to show the identification and its subsequent repudiation; but the court blocked that avenue as well.

Reversing the resulting conviction, we stated, at page 680, that:

“Appellant was attempting to convince the jury, at the least, that because of the Jacksons’ uncertainty in connection with the Alston identification, their testimony positively identifying him (appellant) should be viewed as equally lacking in certainty, as not being credible, and, therefore, unworthy of belief. We think in the circumstances of this case, the court’s limitations upon appellant’s efforts to so persuade the jury through cross-examination of the Jacksons, and direct examination of [other witnesses], constituted prejudicial error____”

We pointed out that where the limitations imposed by the court upon cross-examination “are such as plainly inhibit the ability of the accused to obtain a fair trial” the discretion in this regard normally accorded to the trial judge is subject to review. Further, we stated that “under the Wade-Gilbert-Stovall-Simmons spate of cases, the full circumstances surrounding the identification of a criminal accused, including other identifications and misidentifications made in the same case which are the product of the same investigation, and made, as here, under similar circumstances, is properly a subject upon which wide latitude should be given the accused in cross-examination.” This area of inquiry, we noted, is not limited to matters brought out in direct examination.

The underpinnings of DeLilly are, of course, applicable to this case as well. The court erred in not permitting counsel to cross-examine Ms. Stephenson about her earlier photographic identification of Cassell. However, our review of the entire record convinces us, unequivocally, that the error here was harmless beyond a reasonable doubt.

The desired inquiry in DeLilly was so germane, and so critical to the defense, and the limitations imposed on that inquiry were so complete and so severe that the defendant’s basic right to a fair trial was affected. The jury was totally precluded from learning about an event that was highly relevant in determining the credibility of the State’s key witnesses. No such consideration is present here.

In his opening statement, the State’s Attorney told the jury that “Helen Stephenson was able to pick out the photograph of Mr. Cassell as the second person----” When the charges against Cassell were nol prossed, the court advised the jury of that fact, and, indeed, said to the jury by way of explanation:

“He is out of this case. And I think the reason is obvious from what you have seen here in that, as the case has developed so far, the only witness who could identify ... the second robber or stickup man was the last witness on the stand... Miss Stephenson. And in court here this morning she could not make a positive identification of Mr. Cassell.”

Thus, the very information sought to be elicited from Ms. Stephenson (as well as from Officer Hardgrove) was, in fact, made known to the jury in perhaps even more graphic form than had it come from counsel’s cross-examination. This jury thus had the information denied to DeLilly’s jury, and appellant suffered no harm or prejudice from the court’s error in not permitting it to be brought out through the two witnesses.

(3) Testimony as to Alleged Admission by Appellant

The complaint here is that “testimony concerning an alleged admission by the appellant to his participation in the instant robbery was erroneously admitted in evidence.” The background is as follows.

Appellant’s wife, Patricia Harrod, testified on behalf of her husband. On direct examination, she admitted going to the Edsel Shop after appellant’s arrest and showing Ms. Stump a picture of her husband. She was then asked, “what happened after you showed her the picture?” Before the witness could answer, the State objected “to what Miss Stump said,” and the court sustained that objection. Counsel then conferred for a moment with his client, and declined to pursue that line of inquiry any further.

On cross-examination, Mrs. Harrod stated, without objection, that her purpose in going to the store and showing Ms. Stump the photograph was “to see if maybe she had made a mistake.” She admitted conversing with Ms. Stump, asking her whether she had been robbed recently, showing her the picture, and asking, “Is this the one that’s supposed to have robbed her?” The State’s Attorney then asked, over objection, whether she recalled being asked by Ms. Stump, “Who told you he robbed the store”, to which the witness replied that she did not remember. The State’s Attorney thereupon asked, without objection, “You remember saying, ‘He told me he robbed the store?’ ”, to which she replied “No.” Twice more, without objection, Mrs. Harrod was asked whether she had told Ms. Stump that appellant had told her (Mrs. Harrod) that he had robbed the store, and both times she denied making such a statement.

The State thereafter recalled Ms. Stump on rebuttal. She was asked about the conversation with Mrs. Harrod, and, over objection, stated that Mrs. Harrod had told her that “her husband had told her” that he had robbed the store. Counsel’s objection to that question was solely on hearsay grounds. The court overruled the objection on the theory that this was merely an attempt to impeach the credibility of Mrs. Harrod by showing that she had made a prior statement that was inconsistent with her trial testimony.

In order to rebut Ms. Stump’s assertion, defense counsel recalled Mrs. Harrod on surrebuttal. She again denied ever telling Ms. Stump that her husband (appellant) had admitted robbing the store, although she conceded that she told Ms. Stump that appellant had been arrested for the crime.

The whole subject matter of appellant’s alleged admission was introduced during the cross-examination of Mrs. Harrod. The inquiry there clearly exceeded the scope of direct examination, particularly in view of the court’s refusal to permit the witness to testify as to any remarks by Ms. Stump. Unfortunately for appellant, however, no objection was made to the' particular questions concerning that admission, and Mrs. Harrod’s persistent denials that she ever made such a statement thus came into evidence without objection. In that circumstance, it was not inappropriate for the State to attempt to impeach the credibility of the witness by offering evidence that she had indeed made such a statement. The rebuttal testimony of Ms. Stump was solely for that purpose — to establish a prior inconsistent statement on the part of Mrs. Harrod.

The rebuttal testimony of Ms. Stump was objected to solely on the ground that it was hearsay, or, as trial counsel characterized it, double hearsay. Counsel, however, misperceived what was being offered and why it was being offered. It was not Mr. Harrod’s alleged admission to his wife that was being offered at that point. Nor were Mrs. Harrod’s alleged statements to Ms. Stump being offered for their truth. All that was being offered on rebuttal was the assertion by Ms. Stump that Mrs. Harrod had made that statement to her, and that it was inconsistent with her trial testimony. Notwithstanding that it was hearsay and would have been inadmissible as substantive evidence, the statement was clearly admissible for the limited purpose of impeachment. See Sun Cab Company v. Cusick, Inc., 209 Md. 354 (1956); Joppy v. Hopkins, 231 Md. 52 (1963); McCormick, supra, § 34.

(4) Rebuttal Testimony of Officer Murray

Appellant complains here about the testimony of a police officer called as a rebuttal witness to show that appellant was not disabled, as, through his witnesses he had claimed to be, at or about the time of the robbery. Suffice it to say that no objection was offered to such testimony, nor was a motion made to strike it. We therefore decline to consider that question. Maryland Rule 1085.

(5) Handgun Conviction

Appellant contends that the evidence was insufficient to sustain his conviction on the eighth count of the Information — use of a handgun in the commission of a felony or crime of violence. The testimony of Ms. Stump was more than .adequate to sustain the conviction. Couplin v. State, 37 Md. App. 567 (1977), cert. denied 281 Md. 735. He claims also that the court’s instruction to the jury was erroneous. However, he failed to except to the instruction, and we will therefore not consider it. Maryland Rules 757h. and 1085.

Judgments affirmed; appellant to pay the costs.

      . He was, in fact, arrested on January 21, 1976.

      . He was charged for his actions in both episodes, but the State seemed to have great difficulty in deciding whether to proceed with the second case. By the time it elected to do so (the morning of trial), defense counsel objected, and the court sustained the objection.

      . In the course of the discussion, trial counsel admitted that he had not listened to the actual recording of Ms. Stump’s testimony. In appellant’s brief, appellate counsel candidly and honorably states that he did listen to the recording and that, “after a review of that recording, counsel is of the opinion that Miss Stump may have said that two men and not three entered the Edsel Shop on January 10, 1976.” (Emphasis supplied.)

      . Cert. denied, 434 U. S. 1002, 98 S. Ct. 646, 54 L.Ed.2d 498 (1977).

      . See Maryland Rules 826 and 1026 making the transcript of testimony part of the record on appeal; cf. Jefferson v. State, 218 Md. 397 (1958).

      . See 82 C.J.S. Stenographers, § 9. Curiously, there appears to be no general requirement in Maryland that a transcript be certified by the reporter. The only requirement for certification appears to be Rule 33(c) of the Supreme Bench of Baltimore City, requiring the court stenographer to “certify to the completeness and accuracy” of the proceedings. The other seven judicial circuits have not adopted a comparable rule. The trial transcript in this case, in compliance with Supreme Bench Rule 33, is certified both as to recording and transcription.

      . Maryland District Rule 4a requires that “all civil, criminal and traffic trials, preliminary hearings and other oral proceedings before a judge shall be recorded verbatim by a sound recording device provided by the court, and such recording shall he part of the official record of each proceeding. ” (Emphasis supplied.) Maryland District Rule 4c provides that a party shall have access to the sound recording “for the purpose of having such recording replayed or transcribed,” under such rules as the Chief Judge of the District Court prescribes. There is, of course, no comparable rule in the Maryland Rules applicable to the circuit courts or the courts of the Supreme Bench of Baltimore. But see Maryland District Rule 1326, a rule comparable to Maryland Rules 826 and 1026, requiring, as part of the record in an appeal from the District Court to be heard on tne record, a transcript of the testimony in the District Court. Unlike Maryland Rule 1026, Maryland District Rule 1326 does not indicate who is to prepare the transcript.

      . McCormick on Evidence, 2nd Ed., § 260.

      . McCormick relies, in part, on Snyder v. Cearfoss, 190 Md. 151 (1948), in support of this statement. See McCormick, p. 625, footnote 83.

      . 5 Wigmore on Evidence, § 1669 (Chadbourn Revision); see also 4 Wigmore, § 1330. This suggestion would not apply, in any case, to the notes of a transcriber who was not himself present in court.

        . See 5 Wigmore, § 1669, supra, footnote 2, for a summary of such statutes.

      . For essentially similar reasons, we do not believe the transcript would be admissible under § 19-102 — the Uniform Photographic Copies of Business and Public Records as Evidence Act.

      . The Revisor’s Note states, in relevant part: “This section is new language derived from Article 35, §§ 67 through 82. All of these sections deal with the same subject matter, and the agencies and departments are added from time to time. The proposed revision would bring all governmental agencies under this one section.”

      . At best, the transcript would be a copy of a copy of a proceeding; and we fail to see how the transcriber could accurately certify the transcript to be an actual “true copy” of the proceeding itself. We note further that the predecessor statutes, from which § 10-204 was derived, were in existence when Holler v. Miller and Snyder v. Cearfoss, both supra, were decided.

      . Cf. Crawford v. State, 282 Md. 210 (1978) affirming 37 Md. App. 1 (1977), in which the transcript of testimony given by a witness at a District Court preliminary hearing was held admissible, where the witness was unavailable at trial. The sole issue addressed by the Court was whether the admission of the testimony violated appellant’s right of confrontation. It does not appear that the evidentiary question relevant here was raised or considered.

      . Harrod introduced, as part of his defense, evidence tending to show that he had been injured in June, 1976, and had worn a neck collar in June and July, 1976.

      . Counsel asked if he would be allowed to call as a witness the officer involved in the January identification and the court said no. That ruling has not been argued, and is therefore not before us.

      . In light of this conclusion, we need not consider the additional question of whether a proper foundation had been laid for asking Officer Hardgrove, who had testified only as to the photographic identifications in July, 1976, about the circumstances of Ms. Stephenson’s photographic identification of Cassell in January, 1976. There was nothing in evidence, at that point, to show that Officer Hardgrove was present at the January identification or was competent to testify about it.

      . The Court of Appeals denied certiorari January 4, 1978.


source: Caselaw Access Project

author: Liss, J.,

license: Public Domain

text:
    HARRY PAUL BRYAN, JR. v. STATE OF MARYLAND
    [No. 920,
    September Term, 1977.]

      Decided April 14, 1978.

      The cause was submitted on briefs to Gilbert, C. J., and Liss and Couch, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Geraldine Kenney Sweeney, Assistant Public Defender, for appellant.
    Submitted by Francis B. Burch, Attorney General, Ray E. Stokes, Assistant Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, and James W Dryden, Assistant State’s Attorney for Anne Arundel County, for appellee.
   Liss, J.,

delivered the opinion of the Court.

On August 25,1976, appellant, Harry Paul Bryan, entered a plea of guilty in the Circuit Court for Anne Arundel County to a charge of robbery with a deadly weapon. On October 14, 1976, the appellant was committed to the custody of the Division of Correction for a period of two years with credit for the time he spent in jail awaiting trial. The trial judge suspended the sentence and the appellant was placed on two years’ probation subject to the standard conditions of probation. Appellant was also required to take counseling as directed by his probation agent and to continue his residence with a Mr. William Drury.

On May 2, 1977 a report charging the following violations of probation was filed in the Circuit Court:

1. Not working or going to school;

2. moving from the residence of William Drury without the permission or knowledge of his probation agent;

3. being arrested for breaking and entering in Caroline County;

4. being convicted in Baltimore City of armed robbery.

A probation revocation hearing was scheduled on August 8, 1977, and on that date the appellant appeared before the trial judge without counsel. The following colloquy then ensued between the appellant and the court:

“THE COURT: Do you have an attorney, Mr. Bryan? APPELLANT: No, sir.
THE COURT: Do you want one?
APPELLANT: No, sir.
THE COURT: You do not?
APPELLANT: No, sir.”

The trial thereupon proceeded, and after hearing testimony from the agent, the court struck out the probation previously granted the appellant and reimposed the original two year sentence consecutive to the seven year sentence which the appellant was serving for the subsequent armed robbery conviction in Baltimore City.

Appellant contends that his right to due process was violated because he was not advised of his right to request appointment of counsel on his behalf and that counsel was not appointed. We agree and for the reasons we shall hereafter state we shall reverse and remand for a new trial.

The guidelines for appointing counsel for probation revocation hearings were stated by the United States Supreme Court in Gagnon v. Scarpelli, 411 U. S. 778, 790-91, 93 S. Ct. 1756, 1764, 36 L.Ed.2d 656, 666-67 (1973). The Court there stated:

“It is neither possible nor prudent to attempt to formulate a precise and detailed set of guidelines to be followed in determining when the providing of counsel is necessary to meet the applicable due process requirements. The facts and circumstances in preliminary and final hearings are susceptible of almost infinite variation, and a considerable discretion must be allowed the responsible agency in making the decision. Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present. In passing on a request for the appointment of counsel, the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself. In every case in which a request for counsel at a preliminary or final hearing is refused, the grounds for refusal should be stated succinctly in the record.” (emphasis added).

See also: Cason v. State, 31 Md. App. 121, 354 A. 2d 840 (1976); Lau v. State, 29 Md. App. 615, 350 A. 2d 142 (1976); McRoy v. State, 24 Md. App. 321, 330 A. 2d 693 (1975).

Under Gagnon, supra, it would appear that the starting point for deciding whether or not counsel should be appointed in a probation revocation hearing is for the court to advise the defendant that he has the right to request appointed counsel.

It is, of course, clear from the record that the appellant not only did not request counsel but that he affirmatively indicated he did not want counsel. If this was, under the circumstances, an effective waiver of his right to counsel, that fact would be dispositive of the appellant’s contention. There is, however, another factor which must be assessed in determining whether the right to counsel was properly waived.

■ Neither the trial court nor counsel on appeal considered the possible effect of Maryland Rule 723, which became effective on July 1, 1977, on the propriety of the waiver of counsel in this case. That Rule requires a specific procedure which includes a waiver hearing whenever a defendant appears in court without counsel. Subsection c of that Rule provides as follows:

“c. Waiver Inquiry.
When a defendant indicates a desire or inclination to waive counsel, the court may not accept the waiver until it determines, after appropriate questioning on the record in open court, that the defendant possesses the intelligence and capacity to appreciate the consequences of his decision, and fully comprehends:
1. The nature of the charges against him, any lesser included offenses, and the range of allowable penalties, including mandatory and minimum penalties, if any;
2. That counsel can render important assistance to him in determining whether there may be defenses to the charges or circumstances in mitigation thereof, and in preparing for and representing him at trial;
3. That even if the defendant intends to plead guilty, counsel may be of substantial assistance in developing and presenting information which could affect the sentence or other disposition;
4. That if the defendant is found to be financially unable to retain private counsel, the Public Defender or the court would, if the defendant wishes, provide counsel to represent him.”

That this requirement applies in cases of probation revocation seems to us to be evident from the language of subsection d (2) and subsection e of the Rule, which state:

“d. Procedure After Waiver Inquiry.
2. If the defendant appears in court without counsel, at any proceeding after his appearance pursuant to section a of this Rule,] ] the court may not proceed before determining whether the defendant at that time desires to waive counsel, or has waived counsel, either affirmatively or by neglecting or refusing to obtain counsel, (emphasis supplied).
e. Record of Compliance.
The advice of the court given pursuant to section b and c of this Rule and the finding that the defendant waived counsel pursuant to sections c and d of this Rule shall be made on the record in open court. The docket entries shall affirmatively show compliance with this Rule.”

The record in the instant case does not show compliance with the applicable provisions of Rule 723. We conclude that there was no effective waiver of the right to counsel and must therefore remand the case for further proceedings. We express no opinion as to whether, after informing the appellant of his right to counsel, the court, in applying the standards set forth in Gagnon v. Scarpelli, supra; State v. Renshaw, 276 Md. 259, 347 A. 2d 219 (1975), and Cason r. State, supra, should appoint counsel for the appellant.

Judgment reversed; case remanded for further proceedings in conformity with this opinion.

Costs to be paid by Anne Arundel County.

      . This Court has recognized this principle. In the pre-Gagnon case of Knight v. State, 7 Md. App. 313, we adopted guidelines for probation revocation hearings which included the statement that the trial court was not in all cases obliged to advise the accused of his right to counsel. In postGagnon summaries of the guidelines that statement has been excised. See: Lau v. State, 29 Md. App. 615, 350 A. 2d 142; McRoy v. State, 24 Md. App. 321, 330 A. 2d 693 (1975).

      . Subsection a of Rule 723 provides:
      “a. Appearance of Defendant.

      A defendant shall appear in person at the time and place specified in the summons or other writ issued pursuant to Rule 720 (Original Summons, Warrant and Notice to Appear), unless his counsel enters an appearance for him in writing on or before the time. If the defendant fails to appear personally or by counsel, the court may direct the clerk to issue a warrant for his arrest or to reissue the summons for personal service on the defendant.”


author: Wilner, J.,

text:
    LEON McKEMY et al. v. BALTIMORE COUNTY, MARYLAND
    [No. 948,
    September Term, 1977.]

      Decided April 14, 1978.

      The cause was argued before Morton, Melvin and Wilner, JJ.

      Walter I. Seif, Jr., for appellants.

      Peter Max Zimmerman, Assistant County Solicitor for Baltimore County, with whom were J. CarrollHolzer, County Solicitor, and Julius W. Litchter, Assistant County Solicitor, on the brief, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

Gertrude Stein once said that a rose is a rose is a rose, and no one appealed. Here, the Circuit Court for Baltimore County has held that a parking lot is a parking lot is a parking lot, and both sides have appealed. As a result, we are asked to determine whether Leon McKemy (t/a M & M Fuel Co., Inc.) may continue to use certain lots in the Sparrows Point area of Baltimore County in the way he heretofore has used them. The Zoning Commissioner said that some of the lots could not be used at all for such purposes and set certain conditions and limitations on the continued use of others. The county Board of Appeals affirmed those determinations, as did the Circuit Court.

The lots in question are identified as Lots 378 through 387 and Lot 442, as shown on the Plat of Sparrows Point Manor. They are located on the south side of Snyder Avenue between Marine Avenue and Sparrows Point Road, and are (and since 1945 have been) zoned for residential use. It is undisputed that the operations being conducted on those lots are not permitted under the zoning regulations applicable to residential zones. Thus, if McKemy is to be allowed to continue using the lots for such purposes, it must be by virtue either of a valid pre-existing non-conforming use or because of a 1976 county ordinance (Bill 18-76) regulating truck terminals. These, then, are the central issues before us:

(1) Are the current uses made of the lots by McKemy within the scope and protective ambit of a valid non-conforming use; and

(2) What, if any, effect does Bill 18-76 have? Complicating the first issue somewhat is the fact that the Board of Appeals considered that issue once before, in 1969, and made a determination then that was not appealed. In addressing the first issue, therefore, we are asked to consider whether, and to what extent, the principle of res judicata operates with respect to the 1969 Board decision.

I. Non-Conforming Use

Zoning came officially to Baltimore County on January 2, 1945, when, pursuant to previous authorization by the General Assembly, the County Commissioners adopted a comprehensive set of zoning regulations. Section II of those regulations created seven zones — four being residential, one commercial, and two industrial. The lots in question here were zoned for residential use.

Section XI of these original regulations provided for non-conforming uses. It stated:

“A lawful non-conforming use existing on the effective date of the adoption of these regulations may continue, provided, however, upon any change from such non-conforming use to a conforming use, or any attempt to change from such non-conforming use to a different non-conforming use or any discontinuance of such non-conforming use for a period of one year... the right to continue to resume such non-conforming use shall terminate, provided, however, that any such lawful non-conforming use may be extended or enlarged to an extent not more than once again the area of the land used in the original non-conforming use.”

On March 30, 1955, the County Commissioners adopted a new set of comprehensive zoning regulations. Non-conforming uses are dealt with in Section 104, which provides in relevant part:

“A lawful nonconforming use existing on the effective date of the adoption of these regulations may continue; provided that upon any change from such nonconforming use to any other use whatsoever... the right to continue or resume such nonconforming use shall terminate. No nonconforming building or structure and no nonconforming use of a building, structure, or parcel of land shall hereafter be extended more than 25% of the ground floor area of buildings so used.” (Emphasis supplied.)

It was within this legal framework that the activities of Mr. McKemy first came to the attention of the county zoning authorities. In February, 1969, apparently upon a complaint filed by one or more residents in the area, the Zoning Commissioner conducted a hearing to determine whether the property located at the “northwest corner of Sparrows Point boulevard and Snyder Avenue” and Lots “Nos. 378, 381 and 384” were being used in a manner violative of the existing zoning regulations. The Commissioner concluded that the first of these properties — that on the north side of Snyder Avenue — enjoyed a non-conforming use as a service garage, and could continue to be used for that purpose. The three lots across the street, however (Nos. 378, 381, and 384), he concluded were not part of that garage business and therefore had no non-conforming use status for the parking of vehicles in conjunction with the garage business. On that premise, he ordered that all vehicles connected with McKemy’s fuel service use of the garage property be removed from those lots.

On appeal, the Board of Appeals reversed the latter determination in an opinion that is hardly a model of clarity. The Board first stated that the case came before it on appeal from a finding by the Zoning Commissioner “that the property situated at the northwest corner of Sparrows Point Boulevard and Snyder Avenue is being used in violation of the Zoning Regulations of Baltimore County in that the respondent ... is using the property in question for the parking of automobiles.” This is manifestly not what the Zoning Commissioner held. As noted, he concluded that the property at the “northwest corner” of those two streets was not in violation of the regulations because it enjoyed a non-conforming use. It was the property across the street (which would have been the southwest corner) where the violation existed, and the violation did not consist of the “parking of automobiles”, but rather the parking of fuel oil trucks.

These apparent misperceptions were perhaps cured by stipulation. First, the county and McKemy stipulated that the property at the northwest corner was being used as a garage for the repair of automobiles and trucks, and that it enjoyed a valid non-conforming use for that purpose. In effect, the Zoning Commissioner’s determination as to that property was stipulated to be correct. It was further stipulated that Lot No. 442 and “Lots Nos. 378 through 384” were zoned residential and “are being used for the parking of trucks and other vehicles in conjunction with a fuel oil business operated by” McKemy.

The Board summarized the testimony of two witnesses that appeared before it, upon which it evidently relied in making its decision. The first was Michael Narutowitz, who, through a corporation, “owns the property in question.” Narutowitz stated that he purchased the property in 1936 to be used “as a parking lot in conjunction with a restaurant and bar business” owned by him on the north side of Snyder Avenue. He testified that such use continued until 1951, when he closed the restaurant and leased the property to a tenant who rented rooms to truckers, “and the lots in question were used for the parking of cars and trucks belonging to her roomers and others continuously until 1961.” Since 1961, according to Narutowitz, “the property has been used continuously as a parking lot for vehicles and trucks used by Mr. McKenny in conjunction with his fuel oil business.”

The second witness was J. Fred Welsh, Sr., who testified that “the lots in question have been used continuously as a parking lot for trucks and cars since about 1936.” After reciting this summary, and noting that no one appeared before the Board to contradict that testimony, the Board concluded, and ordered, that “[f]or the reasons set forth in the aforegoing Opinion ... by virtue of the legal non-conforming use existing on the property no violation of the Zoning Regulations of Baltimore County exists on the subject property____” Thus, the order of the Zoning Commissioner was reversed. Nowhere in its opinion or Order did the Board define the non-conforming use, or even suggest what its parameters were.

The Zoning Commissioner inquired again into Mr. McKemy’s activities in 1974, as the result of a complaint that Lot 442 and Lots 378 through 387 were being used “for a truck terminal, the storage of miscellaneous junk, debris, and disabled vehicles”. The Zoning Commissioner noted that Lots Nos. 378 through 384 “enjoy a legal nonconforming use for the storage of trucks” but stated the issue to be whether the non-conforming use was “for the storage of trucks in general or, more specifically, the storage of trucks in conjunction with the Defendant’s fuel oil business.”

The Commissioner pointed out, from the evidence before him, that McKemy had “expanded his nonconforming use by storing fuel oil trucks and freight haulers on Lots Nos. 385 through 387” — lots that were not included within the non-conforming use determined by the Board in 1969. Residents testified that “the storage of trucks, other than fuel oil trucks, has come about recently and has been expanded continuously, not only in volume, but in area.” McKemy testified that he began leasing Lots Nos. 378 through 387 from Mr. Narutowitz in 1960; that in addition to hauling and delivering fuel oil, he operates a freight hauling business; and that he began the freight hauling business in 1965.

The Commissioner construed the 1969 Board opinion as granting a non-conforming use as to Lots 378 through 384 “for the storage of fuel trucks only.” Thus, he concluded that the storage or parking of “all other type trucks” was a violation of the zoning regulations, as was the expansion of the parking of fuel oil trucks or freight haulers onto Lots Nos. 385 through 387. Finally, he found that “these lots” have also been used “for the operation of a service garage in that vehicles have been repaired on said Lots.” As to this, he ordered that no disabled vehicles be stored on Lots Nos. 378-384, under any circumstances, that they not be stored on Lot No. 442 unless it was properly screened, and no repairs take place on “that portion of the subject property in front of the service garage, facing Sparrows Point Road and/or Snyder Avenue.”

Once again, McKemy appealed to the Board of Appeals which, in October, 1976, affirmed the Zoning Commissioner. The Board concluded that the Zoning Commissioner “fairly and correctly interpreted the 1969 ruling of this Board, and furthermore correctly decided the issues concerning the alleged zoning violations.” With respect to the earlier opinion, the Board explained:

“This Board now states that its decision of April 30, 1969 is meant to find a nonconforming use for the parking of fuel trucks only on lots 378 through 384, and. that the storage and/or parking of all other type trucks is not permitted. The distinction that the Board wishes to explain is that it is our judgment that the nonconforming use for the above described lots, and only said lots, stems from the use of these lots from 1936 through to the present day only in direct connection with the business function admittedly taking place on the lot on the north side of Snyder Avenue.
“The Board will not distinguish between the parking for the restaurant and bar business, the parking for the rooming house and the parking for the fuel oil business, considering the same to be nonconforming parking in direct relationship to the business function of the above described lot on the north side of Snyder Avenue. However, the Board will distinguish and shall not permit any extension of this existing nonconforming use in area, or in use for functions which involved businesses outside and beyond the direct business use of the lot on the north side of Snyder Avenue.”

On appeal by both McKemy and the county, the Circuit Court concluded that, “[wjhat started out as an off-street parking lot prior to 1969, which was legalized as a non-conforming use by the Board’s decision of 1969, remains as an off-street parking lot today.” Although the “additional uses” as a truck terminal and a junkyard were illegal, the court noted that the Board’s order “will result in the termination of the illegal uses, without impairment of the legal non-conforming use of the property, as an off-street parking lot...”. In effect, the court considered the non-conforming use to permit any kind of parking on the lots included within the 1969 decision, but deemed the “truck terminal operations and junkyard purposes” to be something other than parking, and, for that reason, not permitted.

At the same time, the court ruled against the county in its cross-appeal by concluding that there was no legal error in the Board’s 1969 determination of a valid non-conforming use.

The only thing that can be said with any appreciable degree of certainty from the record before us is that it is terribly confusing.

At the outset, we may dispose of the questions concerning Lots 385-387. There was sufficient evidence before the Zoning Commissioner, the board, and the court to justify their respective conclusions (expressed or implied) that a valid non-conforming use did not exist with respect to those lots, that they are therefore subject to the county zoning regulations, that the parking or storing of trucks or other motor vehicles on those lots is not permitted under the applicable zoning regulations, and that such unlawful uses must stop. Thus, paragraph number 6 of the 1974 order of the Zoning Commissioner, affirmed by the Board of Appeals in 1976 and subsequently by the Circuit Court, will be affirmed by us.

With respect to Lots 378-384, we believe that there was sufficient evidence before the Zoning Commissioner, the board, and the court to justify their respective conclusions that, whatever non-conforming use existed as to those lots, it did not include the dismantling of motor vehicles, the storage of disabled vehicles, junk, or debris, or any operations accessory to a garage. Those uses are therefore subject to control by the county; and, accordingly, paragraphs numbers 3, 4, 5, and 7 of the 1974 order of the Zoning Commissioner, affirmed by the Board of Appeals in 1976, and subsequently by the Circuit Court, will also be affirmed by us.

We turn now to what the parties are really fighting about — whether the trucking operations on Lots 378-384 and 442 are protected by a valid existing non-conforming use — and direct our attention initially to the 1969 proceeding.

The first principle to have been applied by the Board in 1969 was the introductory clause to Article XI of the 1945 zoning regulations: “A lawful non-conforming use existing on the effective date of the adoption of these regulations may continue----” (Emphasis supplied.) Its first task, therefore, was to determine what lawful non-conforming use existed with respect to these lots on January 2, 1945. As to this, the evidence established that, since 1936, some part of those lots had been used for the temporary parking of cars and trucks by the transient patrons of a restaurant and bar located across the street. There being nothing to suggest that this was an unlawful use, we have no difficulty in accepting the Board’s conclusion that a lawful non-conforming use was in existence on January 2, 1945, with respect to at least some part of those lots.

The second principle to be applied was stated in § 104.1 of the then-applicable zoning regulations: “provided that upon any change from such nonconforming use to any other use whatsoever ... the right to continue or resume such nonconforming use shall terminate.” Thus, the second task was to determine what uses had been made of the lots since January 2, 1945, and whether any of them constituted a “change... to any other use” from that existing prior to such date.

As to the post-1945 uses, the evidence showed that, in 1951, with the closing of the restaurant, some part of the lots began to be used for the parking of vehicles in connection with the rooming house. There was no evidence to suggest that this use was an intensified one, or a different one; and the Board could properly have inferred that it did not constitute a “change” from the 1945 use. It was still transient parking as an accessory to an unrelated small retail business across the street.

With respect to McKemy’s operations, the 1969 opinion of the Board shows only that the parties stipulated that the lots “are being used for the parking of trucks and other vehicles in conjunction with a fuel oil business” operated by McKemy. This stipulation was also supported by Mr. Narutowitz and never contradicted. There was no evidence before the Board at that time to show whether, or to what extent, McKemy’s use was any different from those that preceded it. Based upon that record, its conclusion that there was no existing violation of the zoning regulations was not inappropriate. We therefore find against the county in its cross-appeal.

The basis of the non-conforming use declared at that time was the parking of trucks and vehicles generally, not just fuel trucks. Indeed, there was nothing in the record to show that fuel trucks, in particular, had ever been parked on those lots prior to 1945. Thus, upon that record, there would have been no justification for the 1969 Board to restrict the non-conforming use to the parking of fuel trucks; and had it imposed such a limitation, its action in doing so would have been unsupported by substantial evidence and therefore arbitrary and capricious. That being so, there is little, if anything, that can be said in defense of the attempt by a substantially reconstituted Board seven years later to superimpose such a limitation through the guise of explaining what it presumed the earlier Board to have intended. That is arbitrariness multiplied by itself; and thus, the decision in 1976 to declare the non-conforming use to be limited to the parking of fuel trucks was clearly erroneous, as a matter of law.

Lest Mr. McKemy become prematurely jubilant, however, we hasten to add that the 1976 Board made an even more fundamental error, requiring that the case be remanded to it for reconsideration.

The heart of the Board’s 1976 decision was its statement, previously quoted, that the non-conforming use stems from the use of the lots “only in direct connection with the business function admittedly taking place” across the street; that, with respect to such use, the Board “will not distinguish between the parking for the restaurant and bar business, the parking for the rooming house and the parking for the fuel oil business, considering the same to be nonconforming parking in direct relationship to the business function” carried on across the street; but that it would not permit any “extension of this existing nonconforming use” either in area or for “functions which involved businesses outside and beyond the direct business use” across the street.

This declaration appears to rest upon an admixture of two dubious concepts. The first is that a parking lot is a parking lot is a parking lot, which is simply not so. The second, for want of a better description, appears to be a doctrine of “extended accessoryship” — i.e., that if, prior to zoning, these lots were used for parking as an accessory to activities conducted on a lot across the street, they may, within the protective ambit of “nonconforming use”, continue to be used for parking as an accessory to the activities conducted on that other lot no matter how the actual use of either parcel has changed since the advent of zoning. That too is inappropriate.

From their inception in 1945, the county zoning regulations have rejected the notion that all parking lots are the same, and have instead drawn careful distinctions between types of parking uses. To do otherwise would blur obvious and important distinctions, given clear recognition by the courts, between the “parking” and the “storage” of vehicles, between the parking or storage of commercial vehicles and the parking or storage of non-commercial vehicles, between the business of renting parking spaces and parking as an accessory use, and between parking qua parking and parking as part of a commercial enterprise. All parking lots are not the same, and one type of parking use does not necessarily beget or permit another.

The Board had established, in 1969, that the non-conforming use was for the transient parking of trucks and other vehicles as an adjunct to a restaurant business, and that the 1969 use was for the parking of trucks and other vehicles in conjunction with a fuel oil business. Both findings, we have stated, were supported by the record, at that time, and therefore should not be questioned now. By affirming the Zoning Commissioner in 1976, the Board concluded that, as of 1974, Mr. McKemy had expanded his use of the lots to include the “storage” of trucks (fuel oil and other), that the adjunctive or accessory use was not only in connection with a fuel oil business but general freight hauling as well, and that the trucking operations had expanded not only in intensity and volume, but also in area.

Upon those findings, it was incumbent upon the Board to determine, factually, whether those expanded uses represented a permissible intensification of the original use or an actual change from what the 1969 Board found existed in 1945 “to any other use whatsoever.” In making that determination, the Board was not required to assume, and should not have assumed, that the lowest common denominator was “parking”, or even “parking” in conjunction with a business across the street. In deciding whether the current activity is within the scope of the non-conforming use, the Board should have considered the following factors:

(1) to what extent does the current use of these lots reflect the nature and purpose of the original non-conforming use;

(2) is the current use merely a different manner of utilizing the original non-conforming use or does it constitute a use different in character, nature, and kind;

(3) does the current use have a substantially different effect upon the neighborhood;

(4) is the current use a “drastic enlargement or extension” of the original non-conforming use.

The Board undoubtedly had some of these factors in mind, but its consideration of them was obviously flawed when it viewed the issue simply as “nonconforming parking in direct relationship to the business function” across the street. Because of its inappropriate reliance on that test, the Board failed to come clearly and completely to grips with these more relevant criteria. For that reason, and not because of any inherent unsoundness in the findings themselves, the conclusions of the Board as to whether the 1974 activities of Mr. McKemy with respect to Lot 442 and Lots 378-384, violate the county zoning regulations cannot stand. Instead, we shall remand that part of the case embodied in paragraphs numbers 1 and 2 of the 1974 order of the Zoning Commissioner to the Circuit Court with instructions that it, in turn, remand the case to the Board for reconsideration. The Board should consider not only whether, and to what extent, any such current uses exceed the permissible limits of the original non-conforming use, but, if it finds such excess, whether, by virtue of § 104.1 of the county zoning regulations, the entire non-conforming use has been lost.

II. BiJJ No. 18-76

Bill No. 18-76 was a comprehensive ordinance “to amend the Baltimore County Zoning Regulations to regulate truck oriented uses of property in Baltimore County” that was adopted by the County Council in March, 1976. Among other things, the ordinance defines and regulates “trucking facilities”.

McKemy contends that, if his use of the lots in question qualifies, under Bill No. 18-76, as a “trucking facility”, the county “must follow the restrictions set forth therein.” There is nothing in the record, however, to indicate whether his operations do or do not qualify as a “trucking facility”, and we are therefore unable to determine whether or not the ordinance applies. On remand, the Board of Appeals can consider the applicability of the ordinance and its effect, if applicable, upon any non-conforming use it may find to continue in existence.

Judgment of the Circuit Court for Baltimore County affirmed in part and reversed in part; case remanded to that court for remand to the County Board of Appeals of Baltimore County for reconsideration in conformance with this opinion; costs to be divided equally between the parties.

      . The Commissioners were first authorized to adopt comprehensive planning and zoning regulations in 1939 (Laws of Md., 1939, ch. 715). At the next biennial session of the General Assembly, this authorization was repealed, and a new authorization was enacted (Laws of Md., 1941, ch. 247). Before any such regulations were issued, the Legislature authorized the Commissioners to make special exceptions to the regulations (Laws of Md., 1943, ch. 877). The first regulations were adopted and took effect on January 2, 1945. See Kahl v. Cons. Gas El. Lt. & Pwr. Co., 191 Md. 249, 254 (1948); Calhoun v. County Bd. of Appeals, 262 Md. 265 (1971).

      . In the 1969 proceeding, McKemy was referred to as “Leon McKenney”. They appear to be the same person. There is no explanation of the fact that the Zoning Commissioner seemed to be dealing with Lots Nos. “378, 381, and 384”, whereas the Board was dealing with Lots. Nos. “378 through 384”. The disparity, of course, involves the status of Lots Nos. 379, 380, 382, and 383, which are separately identified on the Plat of Sparrows Point Manor. The Circuit Court, without explanation, stated that the “subject property” in the 1969 decision involved the property at the northwest corner and Lots 442, 378, 379, 380, 381, 382, 383, and 384. Neither party has raised an issue as to this, so neither will we.

      . The Board did not indicate specifically what “the property in question” was. It appears from the ensuing paragraphs of the Board’s opinion that it was referring to the lots in question here — those on the south side of Snyder Avenue.

      . The exact location of this business in relation to the garage or the lots in question here was never made clear.

      . No reasons of the Board were stated in the “aforegoing Opinion”, which was merely a summary of the stipulations and testimony.

      . The record does not disclose any explanation for the lapse of more than two years between the order of the Zoning Commissioner and its affirmance by the Board of Appeals.

      . In particular, we note that there was no evidence before the Board in 1969 (or at least none that the record reflects) with respect to any freight hauling activity on those lots, notwithstanding Mr. McKemy’s later assertion that such operations commenced in 1965.

      . See, for example, the original 1945 regulations: Section 1 — Definitions, 1111 15, 16, and 17, distinguishing different types of garages; Section XIII-C, requiring a special exception for the use of land in a residential zone for the parking of automobiles and prohibiting thereon the parking of vehicles other than passenger cars. See also § 409 of the current county zoning regulations.

      . Monument Garage Corporation v. Levy, 194 N.E. 848 (N.Y., 1935): “There is a substantial distinction, clearly cognizable, between the meaning of ‘storage’ and ‘parking’. One has a certain degree of permanency, while the other connotes transience.” See also Service Realty Corp. v. Planning and Zoning Bd. of Ap., 109 A. 2d 256 (Conn., 1954); State v. Breidenbach, 213 N.E.2d 745 (Ohio, 1964).

      . Charles Land Co. v. Zoning Bd. of Review of Providence, 206 A. 2d 453 (R.I., 1965): variance for off-street parking of commercial vehicles in a residential zone denied where ordinance permitted variance only for parking of non-commercial vehicles. See also Dumais v. Somersworth, 134 A. 2d 700 (N.H., 1957); People v. Scrafano, 12 N.W.2d 325 (Mich., 1943).

      . State v. Gruber, 10 So. 2d 899 (La., 1942).

      . City of Omaha v. Cutchall, 114 N.W.2d 6 (Neb., 1962).

      . See, for example, Cleland v. City of Baltimore, 198 Md. 440 (1951); Appeal of Yocom, 15 A. 2d 687 (Pa. Super., 1940); but cf. Kramer v. Town of Montclair, 109 A. 2d 292 (N.J. Super., 1954).

      . See New London v. Leskiewiez, 272 A. 2d 856 (N.H., 1970); Powers v. Building Inspector of Barnstable, 296 N.E.2d 491 (Mass., 1973); Board of Selectmen of Blackstone v. Tellestone, 348 N.E.2d 110 (Mass. App., 1976).

      . Jahnigen v. Staley, 245 Md. 130 (1967); Phillips v. Zoning Commissioner, 225 Md. 102 (1961).


text:
    NELLIE M. MICHAEL v. LAURIE E. NEEDHAM et al.
    [No. 956,
    September Term, 1977.]

      Decided April 14, 1978.

      The cause was argued before Gilbert, C. J., and Mason and Liss, JJ.

      Elwood E. Hauver for appellant.

      George E. Snyder, Jr., with whom were Kenneth J. Mackley and Mackley & Gilbert on the brief, for appellees.
   Liss, J.,

delivered the opinion of the Court.

This appeal arises out of a dispute between owners of adjoining tracts of land over the alleged existence of a right of way of necessity claimed by the owner of a “landlocked” property, Nellie M. Michael, appellant, over the tract of land owned by the appellee, Laurie E. Needham.

The dispute had its origin in the fact that prior to September 22,1931 one Raleigh Sherman was the owner of two separate tracts of land which he treated as a unitary tract. He died in 1931 owning both tracts. One of the parcels was a 61.5 acre wooded tract and it adjoined a 238 acre parcel known as the “Lower Farm.” The 61.5 acre tract was to the east of and uphill from the Lower Farm. The closest county road was Mill’s Road, and it traversed the Lower Farm across the center of the tract in a north-south direction dividing the farm into its eastern and western portions. The eastern portion of the Lower Farm separated the 61.5 acre wooded area from access to Mill’s Road. On September 22,1931 the executor of Sherman’s estate sold the 61.5 acre tract at public sale and a deed dated January 12,1932 was delivered to the purchaser, Charles Hartle and his wife. That deed, for reasons not disclosed to the trial court, was not recorded until December 26, 1939. Subsequently, the tract was conveyed on June 11, 1946 to Boyd J. Michael, Sr. and Nellie M. Michael, his wife — Boyd J. Michael having since died and his wife being the sole appellant in this proceeding.

The 238-acre parcel, the contract for sale of which was also entered into on September 22, 1931, was conveyed by deed dated December 23, 1934 from the executor to Victor Smith and his wife. They, by deed dated December 31, 1954, conveyed the Lower Farm to Lester Shimp and Clara Shimp, his wife. The Shimps, in turn, by deed dated June 29, 1973, conveyed the tract to Harry Wolfe and Mary Wolfe, his wife. The Wolfes decided to subdivide and develop the Lower Farm and had the land surveyed and laid out into individual lots. The eastern portion of the Lower Farm was divided into five lots, designated as lots four, five, six, seven, and the 15.79 acre tract. By deed dated February 5, 1975 the Wolfes conveyed the 15.79 acre lot to the appellee, Laurie E. Needham. That deed represented the second conveyance out of the Lower Farm property. Each of the five lots laid out by Wolfe on the eastern portion of the Lower Farm was bounded by the 61.5-acre wooded tract on the east and by Mills Road on the west.

The lot owned by the appellee is improved by fences and numerous outbuildings, including an old stone house and an area designated, when Sherman owned the property, as the hogpen. The 61.5 acre tract was at that time used by Sherman for the purpose of raising timber, and testimony was adduced at the trial of this case that Sherman used a right of way passing between the stone house and the hogpen for access to the timber located up the hill from the Lower Farm. It is conceded that unless the appellant does in fact have a right of way over some part of the eastern portion to Lower Farm, she has. no access to the wooded tract from Mills Road, and the tract is effectively “landlocked.”

The dispute between the parties evidenced itself in an incident which occurred in April of 1975. At that time, Boyd Michael, Jr., the son of the appellant and her deceased husband, had crossed the appellee’s land on foot to go to the 61.5 acre tract and was returning when he was accosted by the appellee, who called to him to get off the property. He stated that he had a right of way and she replied that if he continued to enter the property he would be arrested for trespassing.

The appellant thereupon filed suit in the Circuit Court for Washington County, praying that an injunction issue against the appellee’s further interference with the appellant’s continued use of the alleged right of way. A hearing was held at which numerous witnesses were produced by both sides to the controversy and exhibits were placed into evidence. At the conclusion of the case, the chancellor signed an order dismissing the appellant’s bill of complaint but concluding that “the Michaels [(appellants)] had a way of necessity over the land of Harry Wolfe [(appellee’s predecessor in title)] when Wolfe acquired the land in 1973”; however, “[w]here the right of way of necessity should now go is not before the court; but the court does decide the issue that under all circumstances, the plaintiff has no right of way over the land of the Defendant.” It is from that order that the instant appeal was taken.

There are two questions presented in this appeal. The first is whether the appellant has established the existence of a way of necessity over the Lower Farm for access to the wooded 61.5 acre lot owned by her. The second question is whether the location of the right of way of necessity can be changed by the subsequent sale and division of the servient land. We shall answer the first question in the affirmative and, in view of the factual circumstances in this case, the second in the negative.

I.

In order to establish a right of way of necessity, it must be shown that sometime in the past the land for the benefit of which the easement is claimed and that over which it is claimed belonged to the same person. Johnson v. Robinson, 26 Md. App. 568, 338 A. 2d 88, cert. denied, 276 Md. 748 (1975). “[A] right of way of necessity can only be raised out of the land granted or reserved by the grantor, and never out of the land of a stranger.” Oliver v. Hook, 47 Md. 301, 310 (1877); 2 G. Thompson, Commentaries on the Modern Law of Real Property Section 362 (J. Grimes ed. 1961). An easement by implication must arise at a time when there is unity of title. Hancock v. Henderson, 236 Md. 98, 202 A. 2d 599 (1964); Hansel v. Collins, 180 Md. 209, 23 A. 2d 686 (1942).

There are two types of ways of necessity, those created by implied reservation and those created by implied grant. Dalton v. Real Estate and Improvement Co., 201 Md. 34, 92 A. 2d 585 (1952); Slear v. Jankiewicz, 189 Md. 18, 54 A. 2d 137 (1947); Jay v. Michael, 92 Md. 198, 48 A. 61 (1900). A “quasi-easement” is a legal fiction developed to overcome the legal premise that an easement cannot exist over one’s own land. It arises where, prior to division of the unitary tract without express reservation or grant of an easement, a part of the land is used by the owner for the benefit of another part. Johnson v. Robinson, supra; Tiffany, Real Property, Section 781 (3d ed.). “It is also well settled that such quasi easements as pass by implication and ripen into easements for the benefit of the dominant estate, must have been, and must be at the time of the conveyance, apparent and continuous.” Kelly v. Nagle, 150 Md. 125, 132, 132 A. 587 (1926).

Judge Smith, speaking for the Court of Appeals in Shpak v. Oletsky, 280 Md. 355, 373 A. 2d 1234 (1977), discussed the presumption of intent to create an easement which arises from a finding of necessity. Quoting Jones, Easements, Section 304 (1898), he stated:

“ ‘It is not the necessity which creates the right of way, but the fair construction of the acts of the parties.’ The necessity merely furnishes evidence as to the real intention of the parties. ‘For the law will not presume that it was the intention of the parties that one should convey land to the other in such manner that the grantee could derive no benefit from the conveyance; nor that he should so convey a portion as to deprive himself of the enjoyment of the remainder. The law under such circumstances will give effect to the grant according to the presumed intent of the parties.’ ” (Footnotes omitted). Id. 280 Md. at 361-62.

The degree of necessity which must be shown in order to give rise to this presumption of intent to create an easement differs between implied grants and implied reservations. In Dalton v. Real Estate and Improvement Co., supra, 201 Md. at 47, the Court stated:

“A distinction has been maintained in the law between implied grants and implied reservations. If an easement is continuous and apparent and necessary to the reasonable enjoyment of the premises granted, it will be implied that the grant included the easement. However, if a grantor intends to reserve any rights or uses in or over the tenement granted, he must reserve them expressly, and the only exception is of easements, including ways, of actual, strict necessity. The reason for the last rule is said to be that a grantor cannot derogate from his grant. There is a discussion of the two rules and examples of their application in Slear v. Jankiewicz [supra]. See also Mitchell v. Seipel [53 Md. 251 (1880)].”

Though the present dispute is over the burdens and benefits to the land of distant successors in interest to Raleigh Sherman, resolution of this case must depend upon the presumed intention of the parties to the two original deeds executed by Sherman’s executor.

In Hancock v. Henderson, supra, the Court of Appeals noted that in order for there to be a way of necessity it must have been created by implication in the original division of the unitary tract into its dominant and servient tenements. The remote grantees cannot create the way of necessity nor can it be established by a subsequent necessity. The Court stated:

“The theory is that such an easement, being appurtenant, passes with each conveyance to subsequent grantees. Douglass v. Riggin, 123 Md. 18, 23, 90 Atl. 1000. Hence a remote grantee of land not being used at the time of severance may nevertheless, when the use becomes necessary to the enjoyment of his property, claim the easement under his remote deed. See Finn v. Williams, 33 N.E.2d 226 (Ill.) which is the subject of an annotation in 133 A.L.R. 1393 on the effect of non-use of a way of necessity. This rule is consonant with the generally held view that non-use alone is not sufficient to extinguish a way by necessity. Knotts v. Summit Park Co., 146 Md. 234, 126 Atl. 280.” Id. 236 Md. at 105.

It becomes necessary then that we determine when the way of necessity arose in this case. The three time periods when this arguably could have occurred would be the date of the contract, the date of the deed or the date of recordation. Appellee urges that we determine the date of recordation to be controlling. If we accepted this proposition then we would be required to determine that the right of way arose, if at all, by reason of an implied reservation of the easement rather than by an implied grant, and we would be required to test the creation of the right of way by the stricter standard of necessity. We cannot, however, accept this contention because of the holding of the Court of Appeals in Shpak v. Oletsky, supra, 280 Md. at 356, “that the date for determining whether a way of necessity was created by an implied reservation was that of the contract between the original parties and not that of the ultimate deed____” Although in Shpak the Court was concerned with an implied reservation of an easement, it would seem to follow that the same time period would be controlling in the creation of a way of necessity by implied grant.

In this case the contracts of sale for the dominant and servient tenements were executed simultaneously on September 22, 1931. In Dalton, supra, 201 Md. at 47, in considering a similar transaction, the Court said:

“If, however, there is a simultaneous conveyance by the common owner of both the serviently and dominantly used parts of land, the more liberal implied grant rule applies and not the more strict implied reservation test. A partition is held to be a simultaneous conveyance.
“Jones on Easements, [supra], puts it in this fashion at page 115:
‘Sec. 139 * * * The legal effect, however, of simultaneous conveyances of parts of an estate is to pass to each grantee all those apparent and continuous easements which are necessary to the enjoyment of the granted premises. There is a grant and no implied reservation, so that all such cases are brought within the rule considered in the first division of this chapter.’ ”

Applying this more relaxed standard, we conclude that the chancellor was correct in finding that an easement of necessity did exist over the eastern portion of the Lower Farm from Mill’s Road to the 61.5 acres of the wooded tract. The testimony of Webster Jamison, a 73-year old gentleman who resided in the area all his life, established that when Sherman owned both tracts he used a road between the stone house and the hogpen to reach the upper 61.5 acres. He also stated that Mr. Hartle and the older Mr. Michael used the same road for access to the wooded tract during their respective ownerships of the 61.5 acres. Jamison testified that he himself utilized the identical route in hauling wood from the tract to the sawmill established by Mr. Michael on the wooded tract. Other witnesses called by the appellant confirmed that the particular dirt road was the only roadway leading to the wooded tract and that it had been so used since Raleigh Sherman’s tenure of the unitary tract.

Boyd Michael, Jr. stated that from the time his father bought the wooded tract in 1946, he and his father used the dirt road in the operation of a sawmill business. The son continued the operation of the sawmill for five years after his father died in 1962, using the dirt road during that entire period. He described the road as being “[d]itched out or hollowed out” from extensive use which included the hauling of trees in a 12-ton truck. He stated that access to the sawmill was gained by turning left off of Mill’s Road onto the eastern portion of the Lower Farm and continuing on the dirt road which passed between an old stone house he referred to as the Jamison place, and the hogpen. He further stated that since 1967 he had continued to use the right of way to haul dirt, to hunt game and mushrooms and to check the property.

The appellee, testifying in her own behalf, stated that before she purchased her 15.79 acre tract from the Wolfes, she inspected the premises. She found no visible tire marks and noticed a large pile of brush toward that part of her lot closest to the appellant’s property. She stated that she saw a dirt area coming off of Mill’s Road on a level plane for about 25 feet; then sinking into a 25-foot depression, five or six feet wide, filled with jagged rocks; then rising into a sharp incline covered by dense brush which in her opinion would be hardly passable by jeep. She also stated that neither Mr. Wolfe nor the realtor informed her of the existence of a right of way over her property and that she recalled specifically asking about such a right of way at the time of settlement. The other witnesses produced by the appellee were somewhat equivocal in their testimony concerning the disputed right of way.

In the light of this factual testimony we cannot find that the chancellor was clearly erroneous in his conclusion that a right of way by necessity was established somewhere along the eastern portion of the Lower Farm. Maryland Rule 1086.

II.

We reach a different conclusion concerning the chancellor’s determination that the appellant had no right of way over the land of the appellee. The chancellor gave no reason for this finding and we are unable to discover a reason from our reading of the record. The testimony of the various witnesses clearly established not only the existence of the right of way by necessity but its general location as well. There was absolutely no evidence that the right of way proceeded in any direction other than over the tract now owned by the appellee. At the time of the original conveyance the right of way existed between the stone house and the hogpen. Beyond there the continued location of the right of way up the hill is less definite but ascertainable.

In Sibbel v. Fitch, 182 Md. 323, 326-28, 34 A. 2d 773 (1943), the Court of Appeals had before it the location of a right of way expressly granted but not by a specific description. In discussing the location of a right of way under these circumstances, the Court said:

“ ‘Where a way is granted without fixing its location, but there is a way already located at the time of the grant, such way will be held to be the location of the way granted unless a contrary intention appears.’ 28 C.J.S., Easements, Sec. 80, Subsec. 5.
“This principle of law is well settled, and after the location of the right of way which has been granted in general terms has been defined and fixed by the owners of the dominant and servient tenements by user in a particular location over a long period of time, it becomes as definitely established as if the grant or reservation had so located it by metes and bounds and the location of the right of way as thus defined can only be changed by agreement of the owners of the dominant and servient tenements.
“See also Kessler v. Bowditch, 223 Mass. 265, 111 N. E. 887, and Jones, Easements, Pars. 330 and 333. The last two references deal with the location of a way of necessity, and while we are not dealing with a way of necessity, the right of way having been expressly reserved by deed of 1866, the same principles with reference to the location of a way of necessity and the location of a way reserved in general terms are applicable.”

See Taylor v. Solter, 247 Md. 446, 231 A. 2d 697 (1967); Allori v. Dinenna, 188 Md. 1, 51 A. 2d 819 (1947).

We recognize that the appellee has made extensive improvements to her property in the area where the right of way of necessity is alleged to have traversed. We also recognize that the right of way by reason of its disuse would require substantial expenditures to permit its use for access to the wooded lot. Under the circumstances we will remand this case to the trial court. We would anticipate that the parties with the assistance of the chancellor should be able to agree on the location of a right of way which would be least onerous to the appellee and passable with reasonable convenience by the appellant. In the absence of such an agreement, it will be the responsibility of the chancellor to take such testimony as might be required and to locate the right of way after due consideration of the equities of the matter.

Order vacated; remanded for further proceedings not inconsistent with this opinion; costs to be paid by appellees.