The Maryland Court of Appeals issued an opinion on January 22, 2016 holding in favor of Montgomery County, Maryland that the future Purple Line (the proposed light rail between Bethesda and New Carrollton that includes a stop in Silver Spring) right-of-way is not susceptible to a claim of adverse possession.  In the highly anticipated opinion (Montgomery County, Maryland v. Ajay Bhatt, No. 36, September Term, 2015), Maryland’s highest court held that Ajay Bhatt (“Bhatt”) did not acquire a portion of the Purple Line right-of-way by adverse possession.

This case stems from Montgomery County’s issuance of a Notice of Violation (“NOV”) under Section 49-10(b) of the Montgomery County Code (the “Code”) to Bhatt, a Chevy Chase resident, for the encroachment of his fence and shed into the public right-of-way known as the Georgetown Branch of the B&O Railroad/Capital Crescent Trail (the “Trail”).  Following its issuance, Bhatt appealed the NOV to the District Court for Montgomery County, Maryland, which found that Bhatt was in violation of the Code.   Bhatt timely appealed to the Circuit Court for Montgomery County, Maryland, where in a new trial he argued that he did not violate the Code because the term “right-of-way” as contemplated by the Code applied to easements held by Montgomery County and not property held by Montgomery County in fee simple.  Bhatt argued that, Since Montgomery County held title to the Trail in fee simple by a quit claim deed, no violation under the Code existed.  Bhatt further defended against the NOV by arguing that he had acquired the area of encroachment by adverse possession, negating the alleged violation.  The Circuit Court found in favor of Bhatt, and Montgomery County timely appealed to the Maryland Court of Appeals.

J. Harrell, on behalf of the Maryland Court of Appeals, wrote in an opinion (which amusingly started with a quote from lyrics of The Grateful Dead) that Bhatt had not adversely possessed the area of encroachment[1].  The Court of Appeals reasoned that because railroads are akin to public highways (dedicated to public use), they perform a function of the State, which elevates their status to that of a quasi-public corporation.   See, Olcott V. Fond du Lac Cty., 83 U.S. 678, 695 (1872); Chevy Chase Land Co. v. United States, 355 Md. 110, 149, 733 A.2d 1055, 1076 (1999) (internal citations omitted).  The Court of Appeals continued on to state that “[b]ecause a railroad is a quasi-public corporation under established Maryland law, it follows, to our thinking, that a railroad is counted among these municipal corporations and its real property is not subject to a claim of adverse possession under all but the most narrow circumstances.”  The Court of Appeals then identified those “most narrow circumstances” as an abandonment or shift away from public use, but ultimately found neither had occurred in Bhatt’s case.  In fact, the Court of Appeals noted that, although rail use ceased in 1985, the federal Rails-to-Trails Act under which the right-of-way was conveyed to Montgomery County and was being used as a hiker/biker trail until rail use (or light rail use in this case) is resumed was a public use. Further, the Court of Appeals acknowledged that, since the deed conveying the right-of-way to Montgomery County did not limit its use to rail operations, use as a hiker/biker trail did not signify an intent of abandonment, which is necessary (in addition to nonuse) in order to prove abandonment.  Thus, the Court of Appeals remanded the case to the Circuit Court with specific direction to affirm the decision of the District Court, ordering removal of Bhatt’s fence and shed.

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[1] The Court of Appeals in Footnote 9 did comment on Bhatt’s argument that a “right-of-way” under the Code related only to easements, stating that “…given the clear purpose of Section 49-10 of the Montgomery County Code (see n.4 supra), it is apparent to us that it was not the intent of the County Council to draw a distinction between public rights-of-way held in fee simple and those by easement.”  This aligns with what a wise man always tells me…“all easements are rights-of-way but not all rights-of-way are easements.”

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