The term “abandonment” refers to the surrendering and relinquishing of a right or interest with the intention of never again claiming said right or interest.
Reference Desk
Catonsville Nursing Home, Inc. v. Loveman, 709 A.2d 749 (Md. 1998) (quotations and citations omitted).
Abandonment depends upon concurrence of two factors, (a) an intention to abandon and (b) some overt act, or some failure to act, which carries the implication that the owner does not claim or retain any interest in the subject matter. Time is not an essential element, but may be evidence of intention to abandon and may be considered in connection with acts manifesting such an intention…. The right under Paragraph 11 to “continue” a non-conforming use is not a perpetual easement to make a use of one’s property detrimental to his neighbors and forbidden to them…. It is only “to avoid injustice that zoning ordinances generally except existing non-conforming uses. * * * The public effort is not to extend [non-conforming uses ], but rather to permit to exist as long as necessary, and then to require conformity for the future. * * * The mere cessation of the use for a reasonable period does not of itself work an abandonment, but once the abandonment is clearly indicated by intention and action, or failure of action for a sufficient period of time, then the owner has lost his right to the non-conforming use…. Were the law otherwise an owner could keep his property in a non-conforming class forever, which would be entirely contrary to the policy underlying zoning [ordinances].”
Id. at 684-85, 51 A.2d at 661 (emphasis added)(brackets in original) (citations omitted).There is no hard and fast rule in nonconforming use abandonments that intent to abandon must be actually shown when the zoning ordinance or statute utilizes the word “abandonment.” In Canada’s Tavern, Inc. v. Glen Echo, 260 Md. 206, 271 A.2d 664 (1970), it was alleged that intent was required to abandon a nonconforming use under an ordinance providing that a nonconforming use, “once abandoned,” could not be reestablished. The ordinance defined abandonment as the “cessation” of the use for six months. Canada’s Tavern, the lessee, ceased operations and the lessor could not get the premises back into operation within the six-month period, despite diligent efforts to do so. The trial court held not only was cessation of the use required, but also an “intention to abandon” was required. We disagreed:
We think the Council … intended to align itself with those local governments which have found it desirable to delete the factor of intent in respect of the abandonment, discontinuance or cessation of nonconforming uses rather than continuing to run the gamut of its judicial determination in a successation of infinitely variable factual situations. [Footnote omitted.]
Id. at 211, 271 A.2d at 666. See also Harford County v. McDonough, 74 Md.App. 119, 124-26, 536 A.2d 724, 726-27 (1988).Even if we were to determine that the exemption here was in some way akin to a zoning nonconforming use, the appellate courts of this State have looked favorably to the public purpose served by the discontinuance and abandonment of such uses, even, as in Canada’s Tavern, in the absence of actual intent to abandon. Thus it is clear that nonconforming uses can be lost by abandonment. Other privileges and rights likewise can be lost.
760*760 In Mayor and City Council of Baltimore v. Hettleman, 183 Md. 204, 212, 37 A.2d 335, 338 (1944), the city had set up a special benefit assessment for planned street improvements. The improvements were not constructed until several years later. Describing the law of abandonment, we stated:
“Abandonment in law depends upon the concurrence of two, and only two, factors; one an intention to abandon or relinquish; and two, some overt act, or some failure to act, which carries the implication that the owner neither claims nor retains any interest in the subject-matter of the abandonment. 1 C.J.S., Abandonment, [§ 3, p.] 8. Time is `not an essential element’ of abandonment, although the lapse of time may be evidence of an intention to abandon, Id. [at §§ 3, 7, pp.] 9, 16, and where it is accompanied by acts manifesting such an intention it may be considered in determining whether there has been an abandonment.” Landay v. Board of Zoning Appeals, 173 Md. 460, 469, 196 A. 293, 297, 114 A.L.R. 984; Beyer v. Mayor & City Council of Baltimore City, 182 Md. 444, 34 A.2d 765.
See also the trademark case of Sherwood Co. v. Sherwood Distilling Co., 177 Md. 455, 462, 9 A.2d 842, 844-45 (1939), and Cristofani v. Board of Education, 98 Md.App. 90, 632 A.2d 447 (1993). In Cristofani, the Court of Special Appeals discussed at some length the theory of abandonment relating to easements, adverse possession, and prescription. The court noted the distinction between possessory rights in property, i.e., possession based upon title, which runs with the land and cannot be abandoned, and those rights arising out of the possessory interests in the land, which can be abandoned. The court stated:Black’s Law Dictionary 726 (6th ed.1990), defines corporeal and incorporeal hereditaments:
….Corporeal hereditament. Substantial permanent objects which may be inherited. The term “land” will include all such.
Incorporeal Hereditament. … A right issuing out of a thing corporate (whether real or personal) or concerning or annexed to or exercisable within the same. A right growing out of, or concerning, or annexed to, a corporeal thing, but not the substance of the thing itself.
1 Basil Jones, Tiffany Real Property § 4 at 8-9 (3d ed.1939), defines corporeal and incorporeal:The only corporeal thing of a “real” character is land, or whatever may be considered as a part thereof. Of incorporeal things, Blackstone enumerates, under the name of “incorporeal hereditaments,” ten varieties, to wit, advowsons, titles [tithes], commons, ways, offices, dignities, franchises, corodies, annuities and rents. [Footnotes omitted.]
Cristofani, 98 Md.App. at 98, 632 A.2d at 450-51 (brackets in original).1 AM.JUR.2D Abandonment, Lost, Etc., Property § 14 (1962) provides: “While a corporal hereditament cannot be the subject of abandonment, easements, franchises and other incorporeal hereditaments may be lost by abandonment….”[[6]]
To the extent an exemption from statutory requirements is in any way related to realty, it is at best an incorporeal hereditament.