White v. Pines Community

939 A.2d 165

403 Md. 13

Stuart P. WHITE, et al. v. The PINES COMMUNITY IMPROVEMENT ASSOCIATION, INC., et al.

No. 29, Sept. Term, 2007.

Court of Appeals of Maryland.

January 10, 2008.

William M. Simmons, Annapolis, Tarrant H. Lomax (Tarrant H. Lomax, Annapolis), on brief, for petitioners/cross-respondents.

Christopher F. Drummond, Centreville, Mary Beth Gleaves (Karl D. Gleaves, Arnold), on brief, for respondents/cross-petitioners.

Argued before BELL, C.J., RAKER, HARRELL, BATTAGLIA, JOHN C. ELDRIDGE, (retired, specially assigned), ALAN M. WILNER, (retired, specially assigned), DALE R. CATHELL, (retired, specially assigned), JJ.

CATHELL, J.

More than a hundred and thirty years ago we described the common law of riparian rights in B. & O.R.R. Co. v. Chase, 43 Md. 23, 34-36 (1875). There we said:

"By the common law it is well settled, that where land lies adjacent or contiguous to a navigable river, in which there is an ebb and flow of the tide, any increase of soil formed by the gradual and imperceptible recession of the waters, or any gain by the gradual and imperceptible formation of what is called alluvion, from the action of the water in washing it against the fast land of the shore, and there becoming fixed as part of the land itself, shall belong to the proprietor of the adjacent or contiguous land." 2 Bl. Com. 261; Giraud v. Hughes, 1 G. & J. 249. And the right to accretion, thus formed, is considered as an interest appurtenant to the principal land, and belonging, in the nature of an incident, to the ownership of that, rather than as something acquired by prescription or possession, in the ordinary legal sense of those terms. And in addition to this right by reliction or accretion, the riparian proprietor, whose land is bounded by a navigable river, whether his title extends beyond the dry land or not,¹ has the right of access to the navigable part of the river from the front of his lot, and the right to make a landing, wharf or pier for his own use, or for the use of the public, subject to such general rules and regulations as the Legislature may think proper to prescribe for the protection of the rights of the public, whatever those rights may be. This is well established doctrine by both Federal and State courts.

"These riparian rights, founded on the common law, are property, and are valuable, and while they must be enjoyed in due subjection to the rights of the public, they cannot be arbitrarily or capriciously destroyed or impaired. They are rights of which, when once vested, the owner can only be deprived in accordance with the law of the land, and, if necessary that they be taken for public use, upon due compensation. . . . But these principles of the common law, governing the rights of the riparian owner, however well established, are subject to change and modification by the statute law of the State, and by the nature and circumstances of the grant by which the title may have been acquired to the land bounding on the river." (Some citations omitted.) (Some emphasis added.)

Almost a hundred years later, in Bd. of Public Works v. Larmar Corp., 262 Md. 24, 37, 277 A.2d 427 (1971), we restated the common law of riparian rights, adding, in part:

"In assessing the changes that have occurred in riparian rights down the corridor of years it is well to keep in mind an appreciation for the basic rationale behind the rule of law which gave to the riparian owner the rights to land surfacing through the process of accretion or reliction. In its nascency, the sole purpose of the rule was to assure to the riparian owner that he would never be cut off from his access to water. If an intervening party were permitted to gain title to accretions or to land exposed by the subsidence of water, the riparian landowner would be deprived of his valuable water-access rights."² (Emphasis added.)

See also, Worton Creek Marina, LLC v. Claggett, 381 Md. 499, 509, 850 A.2d 1169, 1174-75 (2004).

While other doctrines (i.e., "ouster," "adverse possession," and "easements") are presented by the parties in this case, the real fight, as it usually is in riparian rights issues, is over access to water and who has it.

This case requires this Court to consider the various property rights of a waterfront community, as between the individual landowners and the Pines Community Improvement Association, Inc. Two petitions and one cross-petition for writs of certiorari from the Court of Special Appeals' decision have been granted. White v. The Pines, 399 Md. 595, 925 A.2d 634 (2007). The first petition, consisting of petitioners Stuart White, Sondra White, Gayle Clow, Gill & Associates, Allen Carey Garman, Steven G. Garman, Joseph Donahue and Cynthia Donahue³, all of whom were owners of individual lots that, but for a strip of community property separating their lots from the waters of Chase Creek, would have been waterfront properties which would have inherently had riparian rights.⁴ Petitioner A presents the following questions:

"1. When the Court of Special Appeals found that the use of certain piers began under an easement, and thus began as a permissive use, was the Court correct in rejecting the principle that an ouster could change the use from permissive to adverse, thus allowing adverse possession or a prescriptive easement to arise 20 years after the ouster?

"2. When an easement to the water grants the easement holder the right to build a pier, and the easement holder does so, is the ownership of the pier vested in the easement holder by severance of the riparian rights under the easement, or in the land owner by Maryland Code, Environment Art., Section 16-201?

"3. When a covenant or easement is placed in a chain of title to certain property by the developer to protect uses granted to others over that land, may a later owner of that land, or a court at that land owner's request, ignore or treat the covenant or easement as meaningless?"

The second petition for certiorari, filed by petitioners Douglas W. Johnston, Jr., William C. Simmons and Mary J. Simmons⁵, presents the following questions for our review:

"I. DID THE COURT OF SPECIAL APPEALS FAIL AS A MATTER OF LAW TO CORRECTLY INTERPRET THE LANGUAGE OF A MORTGAGE, PLAT AND DEED GRANTING TO PETITIONERS RIGHTS TO THEIR RESPECTIVE PIERS FROM THEIR RESPECTIVE LOTS, ACROSS COMMUNITY LAND, AND OVER THE WATERS OF CHASE CREEK AND INSTEAD AWARDING TO THE PINES COMMUNITY IMPROVEMENT ASSOCIATION, INC. A USE IN COMMON TO THOSE PIERS?

"II. DID THE COURT OF SPECIAL APPEALS ERR IN AFFIRMING THE DECISION OF THE CIRCUIT COURT WITH RESPECT TO THE PETITIONERS' CLAIMS OF OUSTER OF THE PINES COMMUNITY IMPROVEMENT ASSOCIATION, INC. FROM THE FEE SIMPLE OWNERSHIP OF THE COMMUNITY LAND ADJACENTTO THEIR RESPECTIVE PROPERTIES AND ADVERSE POSSESSION OF THAT COMMUNITY LAND?

"III. DID THE COURT OF SPECIAL APPEALS ERR IN DETERMINING THAT THE PINES COMMUNITY IMPROVEMENT ASSOCIATION WAS ENTITLED TO JOINT USE OF THE PRIVATE PIERS ADJACENT TO THE PETITIONERS' RESPECTIVE LOTS AS A RIPARIAN OWNER WHEN THE PRIVATE PIERS ORIGINATED ON THE PRIVATE LOTS OF THE PETITIONERS, CROSSED OVER `USE IN COMMON' COMMUNITY LAND, AND EXTENDING OVER THE WATERS OF CHASE CREEK?" (Bolding in original.)

Finally, the Pines Community Improvement Association, Inc., ("respondent/cross-petitioner") presents the following questions for our review:

"1. Did the Court of Special Appeals err in failing to uphold the Trial Court's decision establishing a system that provided for the common use of piers attached to Community Lands even though the Court of Special Appeals recognized that the PCIA and all other property owners in the Pines community have the `right to build and enjoy piers in common with all other lot owners'?

"2. Did the Court of Special Appeals err in reversing the Trial Court's award of damages in amounts equal to the rental value of pier slips where certain property owners excluded the PCIA and other lot owners from the `use in common' of these slips?"

We affirm, in part, the judgment of the Court of Special Appeals, and hold that the lot owners in this case have only easements in common with all other like lot owners in the community to riparian rights, that PCIA is the owner of all portions of the piers adjacent to the Community Lands and Community Lot that are situate over or that abut channelward from Community Lands or the Community Lot, and that consequently, such piers are equally available to all lot owners in common with all other lot owners, including PCIA, with such availability limited to access from Community Land or the Community Lot. For the reasons stated infra, we shall vacate that part of the trial court's order that conferred upon the PCIA express management authority over those piers not situate adjacent to the Community Lot.⁶ We further hold that the Court of Special Appeals was correct in reversing the decision of the trial court awarding damages equal to the amount of the past rental value of the pier slips.

I. Facts

The facts and procedural history, as found by the trial court, indicate that the development process began in 1922. At that time, a Plat was recorded in the Land Records of Anne Arundel County by a Mr. Leonidas Turner, then a principal of The Severn River Company, and his wife, Amelia A. Turner. They evidently intended to create a new residential community to be known as "Pines-on-the-Severn" ("the Pines") wherein some access to the waterfront for all Pines' residents would be an important feature. To that end, they created via that Plat a ring of land between Chase Creek and lots near the water, which was referred to as "Community Land". A second Plat was recorded in 1924. That had the effect of expanding the community property to the entire waterfront of the Pines. In 1926, The Severn River Company was evidently succeeded by The Pines Company. The relevant grant to that entity included:

"[a]ll parts thereof marked Community Land or Community Lot, and all the...