  IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE


K&G CONCORD, LLC and CSS             )
CONCORD, INC.,                       )
                                     )
                 Plaintiffs,         )
                                     )
           v.                        )       C.A. No. 12563-VCMR
                                     )
CHARCAP, LLC, CHARCOAL PIT,          )
INC. and KITCHEN SINK, INC.,         )
                                     )
                 Defendants.         )

                       MEMORANDUM OPINION
                       Date Submitted: May 26, 2017
                       Date Decided: August 1, 2017


Basil C. Kollias and Douglas J. Cummings, Jr., KOLLIAS LAW, LLC,
Wilmington, Delaware; Attorneys for Plaintiffs.

Kelly E. Farnan and Travis S. Hunter, RICHARDS, LAYTON & FINGER, P.A.,
Wilmington, Delaware; Attorneys for Defendants.



MONTGOMERY-REEVES, Vice Chancellor.
      This case involves two well-known Delaware restaurants located on Concord

Pike in Wilmington, the Charcoal Pit and the Claymont Steak Shop. The Charcoal

Pit is a long-revered Delaware institution, a nostalgic symbol to many native

Delawareans of hamburgers and milkshakes. The Claymont Steak Shop is a relative

newcomer to the sale of cheesesteaks, but the great success of its original location

led the owners to open another Claymont Steak Shop restaurant next door to the

Delaware stalwart. The parties initially entered into a bidding war for the property,

with the owners of the Claymont Steak Shop winning out.

      This dispute arose after the Claymont Steak Shop, following a year-long

extensive construction period, opened its doors and its numerous customers and

large delivery trucks began driving over the neighboring Charcoal Pit property. The

Charcoal Pit’s owners erected a fence to abate the high traffic. The Claymont Steak

Shop’s owners bring this suit claiming there is an implied easement over the

Charcoal Pit property to allow the Claymont Steak Shop’s employees, customers,

and vendors to reach the stoplight and the northbound lanes of Concord Pike. The

plaintiff restauranteurs contend that their competitor has caused significant damage

to their business and their vendor relationships by erecting the fence. For the reasons

discussed below, I find that no easement by estoppel or prescription exists, and the

defendants are within their rights to construct a fence on their private property.




                                          2
I.    BACKGROUND

      These are my findings of fact based on the parties’ stipulations, over 420

documents, and testimony of thirteen witnesses during a three-day trial that occurred

on March 15-17, 2017. I accord the evidence the weight and credibility I find it

deserves.1

      A.     Parties and Relevant Non-Parties
      Plaintiff K&G Concord, LLC (“K&G”) is a Delaware limited liability

company owned by husband-and-wife Basil Kollias and Dimitra Kollias.2 Mr.

Kollias has been a Delaware transactional real estate attorney for over fifteen years.3

Plaintiff CSS Concord, Inc. (“CSS”) is a Delaware corporation also owned by the

Kolliases (CSS, collectively with K&G, “Plaintiffs”).4 K&G currently owns the

property located at 2720 Concord Pike, Wilmington, Delaware (the “2720




1
      Citations to testimony presented at trial are in the form “Tr. # (X)” with “X”
      representing the surname of the speaker, if not clear from the text. After being
      identified initially, individuals are referenced herein by their surnames without
      regard to formal titles such as “Dr.” No disrespect is intended. Exhibits are cited as
      “JX #,” and facts drawn from the parties’ Joint Pre-Trial Stipulation and Order are
      cited as “PTO ¶ #.” Unless otherwise indicated, citations to the parties’ briefs are to
      post-trial briefs.
2
      PTO ¶ 1.
3
      Id.
4
      Id. ¶ 2.

                                             3
Property”).5 CSS is the tenant of K&G on the 2720 Property and operates the

Claymont Steak Shop restaurant.6

      Defendant Charcap, LLC (“Charcap”) is a Delaware limited liability company

owned by Louis Capano, Jr. (“Capano”) and Louis Capano, III, a father-and-son real

estate development team.7 Charcap owns the property located at 2600 and 2706

Concord Pike, Wilmington, Delaware (the “Charcap Property”). The Capanos also

own the property directly to the south of the Charcap Property at 2530 Concord Pike,

Wilmington, Delaware (“2530 Property”).8 The Charcap Property has two tenants,

the Charcoal Pit restaurant (the “Charcoal Pit”) and a Dunkin’ Donuts.9 Defendant

Kitchen Sink, Inc. (“Kitchen Sink”) operates the Charcoal Pit Restaurant on the

Charcap Property (Kitchen Sink, collectively with Charcap, Charcoal Pit, Inc.,

“Defendants”).10




5
      Id. ¶ 12.
6
      Id. ¶¶ 16-17.
7
      Id. ¶ 3.
8
      Id. ¶ 5.
9
      Id. ¶ 7.
10
      Id. ¶ 8.

                                         4
      Non-party Andrew Fox is a commercial real estate agent who represented

K&G in its purchase of the 2720 Property.11 Non-party Grant H. Gregor is a

professional land surveyor with Merestone Consultants (“Merestone”) and was

engaged by K&G to develop a site and parking plan for the 2720 Property.12 Non-

party Steven Donald Kryak was the construction manager hired by K&G for the

construction of the Claymont Steak Shop on the 2720 Property.13

      Non-party Michael Sciota is the Director of Operations for Kitchen Sink and

general manager of the Charcoal Pit.14     Non-party Stephen Lloyd Johns is a

professional engineer and professional land surveyor employed with Vandemark &

Lynch.15 The Capanos retained Johns to develop the record plan for the 2530

Property.16




11
      Tr. 530 (Fox).
12
      Id. at 552 (Gregor).
13
      Id. at 501 (Kryak).
14
      PTO ¶ 4.
15
      Tr. 288 (Johns).
16
      Id.

                                       5
      Non-party Ronald Lee Eldredge was the owner-operator of the Dunkin’

Donuts on the Charcap Property from 1981 until 1996.17 Non-party Rajesh Patel is

the current owner of the Dunkin’ Donuts, having owned it since 1998.18

      Non-party Stuart Rosen has been a commercial real estate broker for

approximately 35 years.19 In 1993, Rosen was hired by Nationwide Furniture

Rentals & Sales, Inc., a predecessor to the various mattress stores that leased the

2720 Property from 1993 to 2012, to find a location for a store on Concord Pike.20

Rosen handled the preparation of the lease.21 Non-party Garey McDonald is an

employee of Mattressfirm, formerly Sleepy’s and Mattress Giant.22

      Non-party David Cianfaro has been a resident of North Wilmington since

1989 and is a marketing associate for Sysco Foods Philadelphia (“Sysco”), which

involves coordinating operations and instructing truck drivers on their delivery

routes.23



17
      Id. at 235 (Eldredge).
18
      Id. at 621 (Patel).
19
      Id. at 383 (Rosen).
20
      Id.
21
      Id. at 383-85.
22
      Id. at 338-44 (McDonald).
23
      Id. at 677, 682 (Cianfaro).

                                        6
      B.       Facts

               1.      The history of the properties
      Robert Hunt Whitten purchased the 2720 Property in 1961.24 Between 1961

and 1964, Whitten developed the previously vacant land and built a photography

studio.25 In 1973, a traffic light was installed at the intersection of Concord Pike and

Woodrow Avenue with a direct entrance onto the Charcap Property.26 There is no

direct entrance from the Woodrow Avenue light to the 2720 Property.27 There also

is no direct access from the northbound side of Concord Pike.28 The only direct

access point to the 2720 Property is from the southbound side of Concord Pike.29

      Mr. Kollias testified at trial that he visited Whitten’s photography studio twice

as a child in the 1970s.30 Mr. Kollias testified that his family drove from the traffic

light at Woodrow Avenue, across the Charcap Property, to access and park on the




24
      JX 314.
25
      JX 29, at 9, 93, 94; JX 209.
26
      JX 85.
27
      JX 49.
28
      Id.
29
      Id.
30
      Tr. 91-93.

                                           7
2720 Property.31 Mr. Kollias testified that he had never seen Whitten personally use

the Charcap Property to access his own building.32 From 1964 until 1999, Whitten

ran his photography business out of that building.33

       From 1992 until 1993, Tabriz Oriental Rug Store rented the first floor of the

2720 Property from Whitten.34 In 1993, a mattress store began to look for a space

to open a store on Concord Pike.35 Rosen, the real estate agent retained by the

mattress store to scout out an appropriate location, testified that he had personally

accessed the rear of the 2720 Property during his research by way of the traffic light

and the Charcap Property.36 Pursuant to the original lease negotiated and drafted by

Rosen, from September 1, 1993 until November 30, 2012, various mattress stores




31
      Id.
32
      Id. at 139. Plaintiffs also presented testimony from Eldredge and McDonald
      regarding use of the Charcap Property. But McDonald and Eldredge did not have
      personal knowledge of Whitten using the Charcap Property; rather they speculated
      as to whether common sense or ease would have dictated its use. Id. at 241-43, 269
      (Eldredge); 358-62 (McDonald).
33
      JX 29, at 107-14.
34
      JX 357; Tr. 384-88 (Rosen).
35
      Tr. 384-88 (Rosen).
36
      Rosen also testified that “it makes perfect sense” to use the traffic light to get to the
      rear of the 2720 Property. Id. at 414-15.

                                              8
leased space from Whitten on the 2720 Property.37 While originally only leasing the

bottom level of Whitten’s building, a 1999 amendment was executed to expand the

lease to the entire second floor after Whitten closed his photography studio.38 That

lease had a parking provision which states:

             PARKING:

             6. During the term of this Lease and any renewals and/or
             extensions thereof, Tenant is granted the right of exclusive
             use of the parking area located directly in front of the
             Building and the Demised Premises and the right of non-
             exclusive use of the side and rear parking areas of the
             Building in conjunction with the occupant of the upper
             floor of the Building.39

Rosen testified at trial that this language does not address how one would enter or

exit the property.40

      McDonald worked for Mattressfirm, Sleepy’s, and Mattress Giant, from

around 2002 until around 2012.41 He personally observed traffic patterns to and

from the mattress stores.42 He testified that the mattress store was one of the slow


37
      JX 358; JX 68. The mattress store changed owners throughout the years, but the
      business remained the same.
38
      JX 69; Tr. 438 (Rosen).
39
      JX 358, at 2.
40
      Tr. 426.
41
      Id. at 342-44.
42
      Id. at 341.

                                          9
stores with an average of five to ten customers per day who typically parked in the

front of the building.43 This was corroborated by Patel who testified the mattress

store was “not busy at all”; and that sometimes he saw customers parked in front of

the store.44 McDonald testified that typically six-wheel delivery trucks delivered

mattresses from the warehouse about once per week, and they would come up the

northbound side of Concord Pike and use the traffic light to access the mattress

store.45

       In 1986, the Capanos bought the Charcoal Pit restaurant, located on the

Charcap Property, from Louis Sloan.46 From 1986 to 1995, Kitchen Sink leased the

land from Sloan and operated the Charcoal Pit Restaurant.47 On November 27, 1995,

the Capanos, through Charcap, bought the Charcap Property from Sloan.48 Sloan

executed an affidavit certifying that he knew of no easements that were not provided

for in the transaction.49 Capano testified that when he purchased the property, he



43
       Id. at 371-73.
44
       Id. at 623.
45
       Id. at 363-65.
46
       Id. at 458 (Capano).
47
       PTO ¶¶ 8-9; Tr. 458-59 (Capano).
48
       JX 74, at 111; Tr. 459 (Capano).
49
       JX 80.

                                          10
was not aware of vehicles using the Charcap Property to access the 2720 Property.50

After the sale, Charcap continued to lease a portion of the property to the Dunkin’

Donuts.51

      GasCap, LLC (“GasCap”), another Capano-related entity, owns the 2530

Property.52 The Bella Coast restaurant operates on the 2530 Property.53 The record

plan for the 2530 Property contains the following note from the Delaware

Department of Transportation:

             The Developer should pursue a cross-access agreement
             with the parcel to the north to establish an interconnection
             with the existing Charcoal Pit restaurant so that site traffic
             may utilize the signal located at the intersection of US
             Route 202, Woodrow Avenue, and The Charcoal Pit
             entrance.54

The cross-access easement between the 2530 Property and the Charcap Property was

executed on June 5, 2012.55




50
      Tr. 460.
51
      JX 74, at 59.
52
      Tr. 289-90 (Johns).
53
      Id.
54
      JX 28, at n.33.A; Tr. 292-95 (Johns).
55
      JX 257.

                                          11
               2.   K&G buys the 2720 Property
      In 2012, the Kolliases, through K&G, submitted a bid for $715,000 to buy the

2720 Property from Whitten’s widow, Ellen Cornish-Whitten.56 The asking price

was $750,000.57     Capano submitted a competing bid for the property.58         The

Kolliases then submitted another bid a few days later raising the offer from $715,000

to $760,000.59 Capano submitted a higher bid.60 Fox told the Kolliases the only way

to win the property was to submit an increased offer of $800,000 with a 5 P.M.

deadline and a better commission split for Mrs. Whitten’s real estate agent.61

      Mrs. Whitten accepted the $800,000 K&G bid, and the parties executed the

sale on November 5, 2012.62 The agreement allowed for a thirty-day due diligence

period.63 As part of its due diligence, K&G hired Merestone and Ten Bears

Environmental, LLC to determine whether future development of the property was



56
      Tr. 536-37 (Fox).
57
      Id. at 532 (Fox).
58
      Id. at 486 (Capano).
59
      Id. at 535 (Fox).
60
      Id. at 487 (Capano).
61
      Id. at 536 (Fox).
62
      JX 30.
63
      Id.

                                         12
feasible and to conduct an environmental survey and title search.64 None of these

processes revealed an easement over the Charcap Property.65 The transaction closed

on December 19, 2012.66 As part of the sale, Mrs. Whitten executed an affidavit

stating there were no easements affecting the 2720 Property that had not been

provided for in the agreement.67

      After the closing, the Kolliases began developing the property. Merestone

created a record plan and parking plan for the site that included a traffic generation

diagram depicting the trips coming in and out of the direct access entrance to

Concord Pike.68 Gregor testified that at the time he prepared the record plan, he

informed Mr. Kollias that there was only one entry and exit path on the property and

that it would be tight for delivery and garbage trucks to travel along the north side

of the building to the Concord Pike entrance.69 Both the record plan and the




64
      Id.; Tr. 150-52 (B. Kollias).
65
      Tr. 153 (B. Kollias).
66
      PTO ¶ 12.
67
      JX 43, at 9.
68
      JX 26; JX 39; JX 40.
69
      Tr. 569-72.

                                         13
application to the New Castle County Department of Land Use are signed and

certified by Mr. Kollias.70

      New Castle County responded to K&G’s application by advising:

               Due to the high turnover rate of a typical restaurant use,
               the access to the property to the south is important to
               maintain safe vehicular circulation. The access aisle on
               the north side of the building is marginally wide enough to
               accommodate two-way travel. Please provide a cross
               access/shared maintenance agreement to this office and
               the Department of Law . . . The 20.8’ wide area in the rear
               of the building, that was left unmarked from parking, may
               be used to improve vehicular circulation. The agreement
               will need to be accepted prior to plan approval.71

The Delaware Department of Transportation also responded to the record plan with

the suggestion that “[a] combined access with the parcel to the north or south should

be considered along Concord Pike.”72

      In Merestone’s response to these comments, Gregor wrote:

               Cross access through the property to the south is not
               viable. It is expected that the owner will resist
               cooperation. . . . We have configured the parking in the
               back to potentially allow physical access between this
               property and the one to the south should the opportunity
               present itself.73


70
      JX 26; JX 82.
71
      JX 19.
72
      JX 20.
73
      JX 22; JX 23.

                                           14
      Gregor testified that he discussed these responses with Mr. Kollias before they

were submitted; the responses were based on discussions he had with Mr. Kollias;

and Mr. Kollias accepted and was aware of the responses.74 Mr. Kollias was sent

copies of the various documents containing the comments.75 Mr. Kollias testified at

trial that he never had any discussions with the owner of the property to the south of

the 2720 Property. He also stated that Merestone’s statements were not accurate

because he believed he already had a right to a cross-access easement.76

      Eventually, the Delaware Department of Transportation and New Castle

County Department of Land Use approved the plans, and the final parking plan and

record plan do not mention an easement.77 Gregor testified that no plan was ever

approved that showed a cross-access easement.78

             3.       K&G constructs the Claymont Steak Shop and Charcap
                      erects barriers
      The construction permit was issued to K&G on September 11, 2014, and the

demolition of the old building and construction of the new structure began around




74
      Tr. 582-86.
75
      JX 417.
76
      Tr. 202-04.
77
      JX 39; JX 40.
78
      Tr. 575-76.

                                         15
that time.79 Kryak, the site construction manager, directed contractors to use the

Woodrow Avenue traffic light and cross over the Charcap Property to access the

2720 Property because in most cases “they were longer vehicles, trailers, backhoes,

that kind of thing, and they could not get in from right in front of Claymont Steak

Shop.”80 During demolition, a construction fence was put up for safety concerns,

and during that time, the only direct access to the property available was to enter at

the Woodrow Avenue traffic light and cross the Charcap Property.81

      Capano testified at trial that he wanted to be neighborly and allowed the

construction vehicles to use the property for access.82 Even though Capano was

concerned about larger trucks or equipment coming across his property, he was

willing to allow it because it was a temporary situation.83 Capano further testified

that he had a conversation with Mrs. Kollias on his property shortly before she

opened the restaurant; they discussed the fact that he had been a good neighbor and




79
      JX 50; Tr. 519-20 (Kryak).
80
      Tr. 510-11 (Kryak).
81
      Id. at 507-10.
82
      Id. at 463-64.
83
      Id.

                                         16
allowed her to use his property for the construction.84 He testified that no one had

ever approached him regarding cross access over the property.85

       Mrs. Kollias testified that the conversation with Capano occurred after Patel

informed her that Capano was going to put up a fence to block her use of the Charcap

Property.86 Mrs. Kollias testified that on the same day, Capano told her that Patel

wanted him to put a fence up because her restaurant was going to create a lot of

traffic.87

       Shortly before the opening of the restaurant in October 2015 and towards the

end of construction, parking block strips were placed on the Charcap Property.88

Vehicles continued to drive over the parking blocks, and the Defendants placed a

second layer of parking block strips across their property.89 Both Patel and Sciota,

the general manager of the Charcoal Pit, testified that after the opening of the

Claymont Steak Shop, the frequency of traffic over the Charcap Property increased




84
       Id. at 465-66.
85
       Id.
86
       Id. at 27-28.
87
       Id. at 31.
88
       Id. at 68 (D. Kollias); id. at 513 (Kryak).
89
       Id. at 513 (Kryak); PTO ¶ 26.

                                             17
significantly, and safety concerns arose.90 The type of vehicle also became a

concern; 18-wheel trucks were crossing the property, obstructing parking for long

periods of time, and leaving the property in an unsafe manner.91 Sciota became

concerned about liability and voiced this to Capano.92 In response, on July 7, 2016,

Sciota had a fence erected on the Charcap Property.93        After delivery trucks

continued parking and obstructing the Charcap Property’s parking lot to deliver to

Claymont Steak Shop, Sciota instructed that the fence be extended in September

2016.94

      C.     Parties’ Contentions
      Plaintiffs seek a declaratory judgment that they have acquired an easement by

prescription and by estoppel over Defendants’ Charcap Property. Plaintiffs also seek

an injunction preventing Defendants from obstructing access across the Charcap

Property to the 2720 Property. Defendants answer that no easement over the

Charcap Property exists; thus, there is no right to a permanent injunction.




90
      Tr. 624-30 (Patel); id. at 649-53 (Sciota).
91
      Id. at 650 (Sciota); id. at 625 (Patel).
92
      Id. at 656 (Sciota); id. at 466-68 (Capano).
93
      PTO ¶ 28; Tr. 655 (Sciota).
94
      Tr. 655-56, 667 (Sciota); JX 83; PTO ¶ 30.

                                                 18
Defendants also argue that Plaintiffs’ claims are barred by laches, unclean hands,

and waiver/abandonment.95

II.   ANALYSIS

      Plaintiffs assert that they have an implied easement under two exceptions to

the statute of frauds—easement by prescription and easement by estoppel. Because

easements by prescription evade the requirements of the statute of frauds and “work

a forfeiture of title,” they are disfavored.96       Therefore, the Court employs a

heightened evidentiary standard, and the claimant “must establish each element by

evidence that is clear and convincing.”97 Similarly, because estoppel is an equitable

doctrine that creates an exception to the statute of frauds, “a party seeking to enforce

a parol contract faces an enhanced evidentiary burden, and must demonstrate by

clear and convincing evidence that such an exception is applicable.”98                This


95
      Defendants also argue that certain of Mrs. Kollias’s testimony at trial regarding the
      purported easement should be excluded and certain of Mr. Kollias’s testimony
      regarding the easement by prescription should be excluded. Defendants also argue
      that certain exhibits should be excluded as hearsay. Because I do not rely on any of
      the enumerated exhibits or testimony, and because I ultimately rule that Plaintiffs
      have not established the right to an easement, I need not decide these matters.
96
      Dewey Beach Lions Club, 2006 WL 701980, at *3 (Del. Ch. Feb. 24, 2006) (citing
      Anolick v. Holy Trinity Greek Orthodox Church, Inc., 787 A.2d 732, 740 (Del. Ch.
      2001); Berger v. Colonial Parking, Inc., C.A. No. 1415-VCH (May 20, 1993)
      (OPINION)).
97
      Id.
98
      Hionis v. Shipp, 2005 WL 1490455, at *4 (Del. Ch. June 16, 2005), aff’d, 903 A.2d
      323 (Del. 2006).

                                           19
heightened standard “recognizes that non-compliance with the regular formalities

required of real estate transactions should not be lightly tolerated,” and a plaintiff

must provide “very strong evidence, which leaves the court with the same degree of

certainty that a formal written contract ordinarily provides.”99

      A.     Plaintiffs Have Not Established an Easement by Prescription
      In order to obtain an easement by prescription, the claimant “must

demonstrate that he, or a person in privity with him,” used the burdened estate “(1)

openly, (2) notoriously, (3) exclusively, and (4) adversely to the rights of others for

an uninterrupted period of 20 years.”100 Defendants do not dispute that Whitten,

who owned the 2720 Property from 1961 to 2012, was in privity with Plaintiffs;

therefore, I turn to whether Plaintiffs have shown by clear and convincing evidence

that the use of Defendants’ property satisfied the elements necessary to create an

easement by prescription.101




99
      Id.
100
      Dewey Beach, 2006 WL 701980, at *3 (citing Anolick, 787 A.2d at 740).
101
      JX 416, Ex. B; JX 314, at 12. Plaintiffs and Defendants dispute when the
      prescriptive period should begin, but I need not decide this issue because Plaintiffs
      have not proven the elements necessary for an easement by prescription. Pls.’
      Opening Br. 26; Defs.’ Answering Br. 31.

                                           20
      Plaintiffs claim Whitten operated a photography studio on the second floor of

the property from 1964 until 1999.102 Although Plaintiffs presented evidence that

Whitten maintained a storage space in the back of the property and would himself

visit the property from time to time for maintenance, Plaintiffs did not present any

credible evidence to show that Whitten, his customers, or his service agents used the

Charcap Property after 1999.

      Instead, Plaintiffs focused on Whitten’s tenants’ usage of the land during the

relevant time period. From September 1, 1993, until November 30, 2012, various

mattress stores leased part of the 2720 Property from Whitten.103 Under Delaware

law “use by a tenant can be employed in finding the requisite prescriptive period

only when such use can be said to have been expressly or impliedly (from the

circumstances) embraced within the terms of the tenancy itself.”104 “Otherwise, it




102
      Pl.’s Opening Br. 36.
103
      PTO ¶ 14. Because this period satisfies the requisite amount of time, I need not
      look to prior tenants’ use.
104
      Toto v. Gravino, 144 A.2d 237, 239 (Del. Ch. 1958); see also BRUCE & ELY, THE
      LAW OF EASEMENTS & LICENSES IN LAND § 5:19 (Thomson Reuters 2017) (“Some
      jurisdictions, however, adhere to the view that adverse use by a tenant inures to the
      benefit of the landlord only when the asserted easement is within the express or
      implied terms of the lease.”) (citing Toto, 144 A.2d 237).

                                           21
would merely be a continuing trespass by the tenant, the benefit of which the

landlord could not claim.”105

      The easement is not expressly contained in the lease between Whitten and the

mattress stores.106 The question, therefore, is whether any easement over the

Charcap Property is implied in Whitten’s lease with the mattress stores. In Toto v.

Gravino, the Court found an implied easement in the lease where evidence at trial

revealed that the original landlords believed they had the right to and did use the

alley at issue. The Court found, post-trial, that the subsequent tenants and ultimate

successors-in-interest believed the leases “covered the right of such tenants to use

the alley; the tenants also so believed and acted upon that belief; when the plaintiffs

purchased the property in 1943, they believed they had the right to use the alley.”107

The Court in that case stressed that “the physical appearance of the particular alley

in relation to plaintiffs’ property and the established ‘use’ pattern were of additional




105
      Toto, 144 A.2d at 239.
106
      JX 358. The lease mentions the tenant’s “right of non-exclusive use of the side and
      rear parking areas of the Building in conjunction with the occupant of the upper
      floor of the Building.” Id. at 2. This language does not speak to the purported
      easement over the Charcap Property. This analysis is consistent with Rosen’s
      testimony at trial confirming that this language does not address how one enters or
      leaves the property. Tr. 426.
107
      Toto, 144 A.2d at 239.

                                          22
compulsive importance” in finding the implied easement.108 “[T]he alley [was] the

only means to obtain access from the front of the property to the alley side and the

rear of plaintiffs’ premises” and had for more than twenty years been used by the

previous landlords, tenants, and “persons servicing the property.”109 Notably in

Toto, the Court found that the evidence showed the plaintiffs had occupied the land

themselves as owners for over fifteen years and the previous landlords themselves

had occupied the property and used the easement.110

      In Berger v. Colonial Parking, Inc., this Court distinguished Toto and refused

to impute the tenant’s use of the easement to the prior landlords because there was

no evidence of the prior landlords’ own use of the easement.111 “[T]here can be no

privity of estate between the owner-landlord and its tenant as to the easement and

the tenant’s use cannot be imputed to the owner-landlord even if the tenant believed

that the easement was covered by the lease” unless the owner-landlord used or had

a claim to the easement himself.112



108
      Id.
109
      Id.
110
      Id.; cf. Berger v. Colonial Parking, Inc., 1993 WL 2087061, at *5-6 (Del. Ch. June
      9, 1993).
111
      Berger, 1993 WL 2087061, at *6.
112
      Id. (citing 4 TIFFANY, THE LAW OF REAL PROPERTY § 1146, at 778 (3d ed. 1975)).

                                          23
      Here, Whitten died in 2012 and, thus, was unable to testify at this trial. Not a

single witness of the thirteen witnesses at trial credibly testified to having personal

knowledge of Whitten’s use of the Charcap Property during his ownership of the

2720 Property. Similarly, none of the 421 exhibits presented evidence of Whitten’s

actual use of the Charcap Property during that time.113 Thus, Plaintiffs did not

present clear and convincing evidence that Whitten believed he had a claim to or

used the easement.114 As such, Plaintiffs have not met the requisite prescriptive

period necessary to establish an easement by prescription, and this claim is denied.115

      B.     Plaintiffs Have Not Established an Easement by Estoppel
      “[A]n easement by estoppel is created when 1) a promisor’s representation

that an easement exists has been communicated to a promissee; 2) the promisee

believes the promisor’s representation; and 3) the promisee acts in reliance upon the


113
      Dewey Beach Lions Club, Inc. v. Longanecker, 2006 WL 701980, at *5 (Del. Ch.
      Feb. 24, 2006).
114
      Additionally, even if Plaintiffs had made the requisite showing as to Whitten’s use,
      there are significant time gaps, specifically from 1996-2002, for which they
      presented no evidence regarding the use of the purported easement.
115
      Also, even if I were to tack the prior tenants’ use of the property to the current
      owners, the Plaintiffs have not established by clear and convincing evidence that the
      mattress stores’ use of the Charcap Property was of the same scope the Plaintiffs
      now claim. At trial, McDonald testified that the mattress stores received deliveries
      once a week and that perhaps a handful of customers visited the store a day.
      Plaintiffs on the other hand, run a restaurant that serves several dozen customers a
      day and requires weekly large shipments from multiple 18-wheel trucks. See JX 40
      (traffic generation diagram). “The scope of a prescriptive easement is defined by the
      character and nature of the use that created it.” 28A C.J.S. Easements § 193.

                                           24
promisor’s representation.”116 At trial, Plaintiffs admitted that no one ever expressly

told them that an easement existed over the Charcap Property.117 Instead, Plaintiffs

argue that Defendants’ (1) allowance of access over the Charcap Property to remain

open during the competitive bidding process for the 2720 Property, (2) permission

for Plaintiffs’ construction vehicles to use the Charcap Property, and (3) failure to

discuss the purported easement with the Kolliases despite a duty to disclose satisfies

the first prong of the test necessary to prove an easement by estoppel.

      In support of their first argument, Plaintiffs point to the use of the Charcap

Property while Plaintiffs and Defendants were engaged in a bidding war over the

2720 Property. Plaintiffs argue that they believed that the path over the Charcap

Property was “an easement and would remain open” because use of the Charcap

Property “remained open” despite “increased bidding by Defendants.”118 Plaintiffs

do not explain how a competitive bidding process creates a representation or

impression that an easement exists. Moreover, “[a]n easement by estoppel claimant

cannot rely on an assertion that may be checked easily in the public records or that




116
      Hionis v. Shipp, 2005 WL 1490455, at *4 (Del. Ch. June 16, 2005), aff’d, 903 A.2d
      323 (Del. 2006) (citing Hammond v. Dutton, 1978 WL 22451, at *3 (Del. Ch. Dec.
      20, 1978)).
117
      Tr. 64 (D. Kollias), 158 (B. Kollias).
118
      Pls.’ Opening Br. 48.

                                           25
is contrary to information in the claimant’s possession.”119 Mr. Kollias testified at

trial that there was no recorded easement.120 In fact, representations that there were

no easements across the property appeared in a title search and Mrs. Whitten’s title

affidavit.121 All relevant information pointed to the fact that no easement existed.

      The permission for the construction vehicles to use the Charcap Property

temporarily does not create a representation that a permanent easement for large

delivery vehicles and dozens of customers exists.122            Moreover, “[c]ourts are

reluctant to find an easement by estoppel on the basis of ‘mere passive

acquiescence.’”123 While there may be a duty to disclose the existence of an

easement (or lack thereof) where “the servient estate owner observes the claimant

improving the servient estate,” this duty usually does not attach where “the servient


119
      BRUCE & ELY, THE LAW OF EASEMENTS AND LICENSES IN LAND § 6:1 (Thomson
      Reuters 2017).
120
      Tr. 153, 155, 216-222.
121
      Tr. 150-53 (B. Kollias); JX 30; JX 43, at 9.
122
      Even if it could be said that Plaintiffs somehow relied on this permission to their
      detriment, the allowance of construction vehicles on a necessarily temporary basis
      is an easement of a different scope than the permanent allowance of frequent large
      delivery trucks and dozens of customers a day. See JX 40 (traffic generation
      diagram).
123
      BRUCE & ELY, supra note 119, § 6:1. “[O]ne’s mere acquiescence in the making of
      improvements by another for the purpose of making a use of the latter’s land, which
      involves a violation of a natural right appertaining to the former’s land, involves no
      estoppel to deny the existence of an easement in diminution of such natural right.”
      3 TIFFANY, THE LAW OF REAL PROPERTY § 801 (3rd ed. Thomson Reuters 2016).

                                            26
estate owner stands by while the claimant improves the claimant’s own property, the

alleged dominant estate.”124 Here, Defendants did not observe Plaintiffs somehow

improving the Charcap Property, the alleged servient estate, in anticipation of its

use; rather, they allowed Plaintiffs’ construction vehicles to improve Plaintiff’s own

2720 Property, the alleged dominant estate. “Furthermore, there is authority that an

obligation to speak does not arise when a claimant is already in possession of the

relevant information.”125 Here, the Kolliases were aware that no easement existed

over the property from various sources.126 Thus, no omission by Defendants created

an easement by estoppel.

      Finally, Plaintiffs argue that based on the 2530 Property record plan,

Defendants had a duty to discuss the cross-access between the properties. The 2530

Property record plan refers to the parcel directly to the south of the Charcap Property,




124
      BRUCE & ELY, supra note 119, § 6:1.
125
      Id.
126
      For example, the title search showed no easement existed over the Charcap
      Property; an appraisal report listed the entrance to the 2720 Property directly from
      Concord Pike; the parking plan prepared by the Kolliases’ land surveyor and signed
      and certified by Mr. Kollias himself contained no representation of an easement;
      Mrs. Whitten certified that she never had an easement over the Charcap Property;
      and DelDOT and the Department of Land Use’s communications discussed no cross
      access over the Charcap Property and suggested an attempt to obtain such cross
      access. Tr. 153, 155, 216-222 (Kollias), 575 (Gregor); JX 15; JX 19; JX 20; JX 26;
      JX 31; JX 43.

                                           27
where the Bella Coast restaurant currently operates.127 The relevant portion of the

2530 Property record plan states:

             The Developer should pursue a cross-access agreement
             with the parcel to the north to establish an interconnection
             with the existing Charcoal Pit restaurant so that traffic may
             utilize the signal located at the intersection of US Route
             202, Woodrow Avenue, and the Charcoal Pit entrance.128

Plaintiffs argue that this record plan shows an “assemblage of parcels” that includes

the 2530 Property and the Charcap Property.129 Thus, Plaintiffs argue, the reference

in the record plan to the “parcel to the north” or the “adjacent property to the north”

is a reference to the 2720 Property. This interpretation, however, is contradicted by

the document itself.130 The document defines the site solely as the 2530 Property;

therefore, any discussion of the parcel to the north is in fact the Charcap Property.

There is no discussion of an easement with the 2720 Property.131




127
      JX 28; JX 280; Tr. 289-93 (Johns).
128
      JX 28; JX 280, n.33A.
129
      Pl.’s Opening Br. 51.
130
      Plaintiffs attempt to discredit the testimony of Johns, the preparer of the document,
      because he was compensated for his testimony and has done many projects for the
      Defendants. Plaintiffs offer no credible evidence as to why Johns was an unreliable
      witness or why the plain wording of the document should be ignored. Pl.’s Opening
      Br. 51 n.40.
131
      In addition, Plaintiffs actually point to the analogous record plan for the 2720
      Property, which contains no mention of easements or the pursuit of easements for
      the 2720 Property and is signed and certified by Mr. Kollias. Pl.’s Opening Br. 51
                                           28
       Plaintiffs have not met the heightened evidentiary burden to prove that

Defendants made a representation that an easement existed over the Charcap

Property. Because Plaintiffs have not satisfied the first element, I need not discuss

the other two elements for the creation of an easement by estoppel. Additionally,

because I do not find that Plaintiffs are entitled to an easement over Defendants’

property, I need not discuss Defendants’ affirmative defenses.

III.   CONCLUSION
       For the foregoing reasons, I find that Plaintiffs do not have an easement over

Defendants’ property either by prescription or by estoppel, and Plaintiffs’ claims are

denied.

       IT IS SO ORDERED.




       n.40; JX 26. This actually provides even more evidence for the fact that no easement
       was being discussed, contemplated, or pursued; see supra note 126.

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