Are we out of the woods yet?

Kevin L. Shepherd, a partner in the Real Estate Practice Group of Venable LLP, a past president of the American College of Real Estate Lawyers, and a past chair of the ABA Section of Real Property, Trust and Estate Law, contributed the following article.  This article appeared in the electronic edition of The Daily Record on July 2, 2015 at and in the print edition of July 3, 2015.

This year America is commemorating the sesquicentennial of the end of the Civil War and President Abraham Lincoln’s assassination. A little more than a month before those momentous events in 1865, the Maryland Court of Appeals recognized the “woodlands exception” to prescriptive easements in Day v. Allender, 22 Md. 511 (1865). The woodlands exception is a legal presumption that where a prescriptive easement is claimed on land that is unimproved or otherwise in a general state of nature, the claimant’s use is by the owner’s permission.

Although the Day case pales in comparison to events that occurred during that tumultuous spring in American history, the case nonetheless serves as a reminder that the development of real property jurisprudence moves slowly, if not predictably and inexorably. Indeed, on May 22, 2015, 150 years after the Day decision, the Maryland Court of Appeals applied the woodlands exception to the doctrine of adverse possession. Breeding v. Koste, Md. Ct. App. (No. 66, Sept. Term 2014).

Factual background

The land in question is located in Caroline County and comprises about a quarter acre known as the Landing on Watts Creek, which abuts a small body of water known as Watts Creek. The Landing is located between property owned by Koste (which is mainly wooded but has a home overlooking the Landing) and property owned by the Breedings (which is used for surface mining). Evidence at trial established that Koste’s grandparents bought their property in 1944 and thereafter acted as though they owned the Landing, such as clearing the Landing, building a road to access it, erecting duck blinds, and erecting no trespassing signs. With respect to the Breedings’ parcel, evidence at trial showed that the Breedings’ parcel had seven different owners since 1944.

In 2010, Koste filed a complaint in the Circuit Court for Caroline County for title by adverse possession and a bill to quiet title. The Breedings, in turn, filed an answer seeking, among other things, relief from the alleged trespass by Koste. After a five-day bench trial in 2012, the trial court ruled that Koste had established a claim to the Landing by adverse possession. The Breedings appealed, and the Court of Special Appeals affirmed the trial court’s decision in an unreported opinion. The Breedings then filed a petition for a writ of certiorari to the Maryland Court of Appeals, which the court granted in 2014.

In a unanimous decision dated May 22, 2015, the court held that the woodlands exception applies to adverse possession, but on the facts of this matter, the woodlands exception does not apply since the Landing is neither unimproved nor otherwise in a general state of nature.

Evolution of the exception

The 1865 decision in Day recognized the woodlands exception in cases involving prescriptive easements. Since that decision, Maryland’s highest court has continued to recognize the vitality of the woodlands exception, most recently in 2012. Clickner v. Magothy River Ass’n, Inc., 424 Md. 253 (2012). The rationale for the woodlands exception is straightforward. If a person travels over wooded, unenclosed land, an owner of unimproved land likely would not suffer any harm from allowing that access and, in addition, it is possible that the landowner would be unaware of such entry, thereby preventing the landowner from objecting to the entry. For those reasons, a legal presumption arises that the use is permissive, and the claimant has the burden of proving that the use was adverse or under a claim of right.

In light of the policy reasons in favor of the woodlands exception in prescriptive easements and the “markedly similar” nature of prescriptive easements and adverse possession since they “share substantially the same elements,” the Breeding court extended the woodlands exception to adverse possession where the land at issue is unimproved or otherwise in a general state of nature.

Improved vs. unimproved test

The Court’s adoption of the woodlands exception in cases involving adverse possession did not assist the Breedings. The Breedings sought to invoke the woodlands exception on appeal on the basis that the Landing is unimproved, has not been continuously occupied for a lengthy time period, and its use has been for recreational activities for short time periods. Koste, however, had a different view. Koste asserted that the woodlands exception— and the presumption of permissive use — does not apply because his grandfather continually improved and maintained the Landing for over 40 consecutive years. The Court of Appeals agreed with Koste that the woodlands exception did not apply since the Landing was neither unimproved nor otherwise in a general state of nature.

Because Maryland’s appellate courts had not defined the contours of “improved” and “unimproved” land in the context of the woodlands exception, the Breeding court determined that “unimproved land” means land that is undeveloped and lacking additions that increase the land’s value or utility or enhance its appearance. By contrast, “improved” land means land that is developed by human-created additions (e.g., structures and paving) that make the land more useful for humans. The Court did not, however, identify what characteristics of land render it in a “general state of nature.”

The Court adopted an expansive view of what constitutes improved land, especially since Koste had not erected a building on the Landing. Land is considered to be “improved” if man-made additions have been added to the land to increase its value or utility or to enhance its appearance. This appears to be a low hurdle to satisfy. For example, is constructing a hiking trail over another’s land an “improvement.” If not, does it make a difference whether the trail is paved or can accommodate vehicles? Is the construction of a deer stand or a duck blind a sufficient “improvement” for these purposes? The Court brushed aside the last inquiry by stating that it need not decide whether recreational uses can establish a basis for adverse possession.

The Breeding court focused exclusively on Maryland appellate cases in reaching its holding and did not cite non-Maryland authorities. Of course, there is nothing intrinsically troubling with that approach, but one is left wondering whether Maryland’s extension of the woodlands exception to adverse possession cases aligns with a majority of other states that have addressed the issue, or has Maryland staked out a minority view?


The Court’s extension of the wood-lands exception to adverse possession is a logical extension of that exception’s development in prescriptive easements. It remains to be seen, however, whether the broad definition of “improvement” adopted by the Court renders the woodlands exception of limited use. Perhaps another 150 years of case law in this area will shed light on that concern.


One comment

  1. Kebreab Zere · · Reply

    Does the woodland doctrine serve in cities, for example , in Washington D.C.? Is there a statue or case law in D.C. which deals with this doctrine?

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