Community Piers or Private Piers?

by dirk schwenk

In Maryland waterfront and water access communities, there will always be disputes about ownership of community land and riparian rights. Who owns piers?  Who can access them?  What is the law?  These issues create controversy.  Oftentimes, like this case, both sides are partially right and both sides are partially wrong.  This is the Court of Special Appeals (Maryland’s highest court) in a matter that involved waterfront or waterview properties in the Pines on the Severn Community in Arnold, Maryland.   Much important law was discussed or drafted, but at the end of the day, neither the owners or the community had the rights that they claimed in the litigation.

Circuit Court for Anne Arundel County

Civil Case No. C-2003-094007-RP

IN THE COURT OF APPEALS OF

MARYLAND

No. 29

September Term, 2007

Stuart P. White, et al.

v.

The Pines Community Improvement Association, Inc., et al.

Bell, C. J.

Raker

Harrell

Battaglia

Eldridge, John C.

(retired, specially assigned)

Wilner, Alan M.

(retired, specially assigned)

Cathell, Dale R.

(retired, specially assigned),

JJ.

Opinion by Cathell, J.

Filed: January 10, 2008

Footnote 1. In some areas of the state the descriptions of property (metes, bounds, and courses,

etc.) carry the boundaries of the title conveyed out into the beds of watercourses, often when

titles date back to the original patents that frequently contain descriptions carrying to the

middle or the channel of this or that waterway.

Additionally, sometimes as the water levels rise the mean high tide line of navigable

water courses moves landward transforming former fast land into the beds of the waterways.

When that happens, properties that were formerly abutting on the waters become part of

them. As an example, there are numerous platted lots out in the Atlantic Ocean east of

Ocean City resulting from the rise in ocean levels that caused the barrier island, upon which

Ocean City sits, to migrate (move) westward. As a consequence of that movement, land over

the years was re-platted creating new water front lots. But what happened to the platted lots

to the east now out under the ocean?

The intellectual abilities of the Real Property Bar will be taxed to the ultimate if water

levels ever fall and the island moves eastward again and conflicting claims to riparian rights

are made based upon the early plats and the re-plats. If that were to ever happen, the “real”

real property afficionados trying to sort out the mess, will be as happy as a tick that has been

on a dog f or two days. Alas, for the writer, the tides of time will probably cause him to miss

this great event.

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 th e dry land or not,[1] has the right of access to the navigable

part of the river from the front of his lot, and th e 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.

Footnote 2 A question thus exists as to whether riparian rights can even be lost under the theory

of adverse possession or prescription. We note that there are conflicting cases in other

jurisdictions. We have never decided the issue. As the water level rises and the mean high

tide mark advances landward, new waterfront properties come into being to which riparian

rights become appurtenant. If water levels were to fall, the mean high tide mark would move

channelward out into the waters, eventually moving past the area of riparian rights previously

claimed by adverse possession. As only riparian rights would have been claimed by adverse

possession (as in the present case), i.e., the right of access to water, and no fast land is

claimed, how would title to the new land created channelward of the area where riparian

rights have been claimed, be established? Considering the unique nature of riparian rights,

it may be doubtful whether they can be obtained under the theory of adverse possession or

(continued…)

-2-

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, how ever 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 o mitted.) (Some

emphasis added.)

Almost a hundred years later, in Bd. of Public Works v. Lamar Corp., 262 Md. 24, 37

(1971), w e restated the common law of riparian rights, adding, in pa rt:

“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 th at he wou ld

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 ad ded.)

2(…continued)

prescription. How can a property right which by its very nature must be attached to fast land,

be severed from it? How can an unattached riparian right exist – ever? In light of the fact

that the lower court and the Court of Special Appeals have found and affirmed that, in any

event, the requirements of adverse possession have not been met in this case, and we agree,

we need not resolve that issue in this case. We expressly leave it for another time.

3 For the sake of clarity, these petitioners, all of whom are pier builders or whose

predecessors in title built piers, sometimes shall, as a group, be referred to collectively as

petitioner A.

-3-

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,” an d “easements”) are

presented by the parties in this case, the re al fight, as it usu ally is in riparian rights issues, is

over access to water and who has it.

This case require s 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 o f petitioners S tuart White, Sondra White, Gayle

Clow, Gill & Associates, Allen Carey Garman, Stev en 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

4 The “key deeds” in the chains of title from wh ich most, if not all, these petitioners

obtained their property contained language relating to riparian rights similar to: “. . . the use

in common with others . . . of the community lot on said Plat and all water an d riparian rights

incident thereto.” The phrase “key deed” is defined in Bright v. Lake Linganore Ass’n, Inc.,

104 Md. App. 394, 404, 656 A.2d 377, 383 (1995), as “the deeds first subjecting each of the

lots at issue . . . to . . . the . . . Declaration [whatever conditions were imposed in the

Declaration in that case ] . . . .”

5 These three petitioners sometimes shall be referred to collectively as petitioner B.

-4-

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 o uster?

“2. When an easement to the wa ter 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 A rt., Section

16-201?

“3. When a covenant or easement is placed in a c hain of title to c ertain

property by the develo per to protec t uses grante d 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

-5-

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

ADJACENT TO 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 tho ugh the Court of Specia l 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 a mounts equal to the ren tal value of pier slips where

certain property owners exclud ed the PCIA and other lot owne rs from the ‘use

in common’ of these slips?”

We affirm, in part, the judgment of the Court of Spec ial Appeals, and hold tha t the lot owners

in this case hav e only easem ents in common with all other like lot o wners in the community

6 There may be covenants or provisions in the title documents that are n ot readily

discernable from the re cord that w ould authorize PCIA to manage all of the piers. If so, that

is a matter for further negotiation, settlement or litigation. Additionally, management by

PCIA may or may not be prohibited by various sta tutory provisions, one of w hich is

discussed infra.

-6-

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 co nsequently, 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 adjace nt to the Community Lot.6

We further hold th at 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

7 Some early off-conveyances of lots from The Severn River Company included the

language as: “also the use in common with others of the road extending from Chase Creek

to the Baltimo re and Annapolis Boulevard and also the use in common with others entitled

thereto of the lots of ground designated as Community Lot on said Plat and all water and

riparian rights incident th ereto.”

8 Our review of the record does not reveal that the creation of a community

association was provided for by covenants in the relevant instruments in the chain of title.

-7-

was referred to as “Community Land”. A second Plat was recorded in 1924. That had the

effect of expan ding the community proper ty to the entire wate rfront o f the Pin es. 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

roads, ways, streets, lanes[,] alleys, and paths , piers, riparian an d water righ ts

appurtena nt to said Community lands, streets, roads, lanes, ways, alleys, and

paths, being subject to such rights therein as granted to the owners o f such lots

or parts of said tract in the deeds from the said The Severn River Company

heretof ore exe cuted and reco rded.”7

Later, in 1926, the Pines Community Improvement Association, Inc. (“PCIA”) was

formed by incorporation , as noted in th e joint stipulation of facts in th e Circuit Court.

According to its Certificate of Incorporation, the PC IA’s function w as: “To control and ca re

for the Community lots and beaches, the water supply, fire protection, sanitation,

enforcement of restrictions, roads, police, lighting, legislation, transportation and all other

matters in which the community interest as a whole is involved.” The joint stipulation of

facts informs us that membership in PCIA is voluntary and at the time of this litigation,

consisted of approximately 114 lot owners, including at least some of the petitioners.8

9 We shall sometimes refer to “Community Land” and “Community Lot” as

community pro perty.

-8-

Also in 1926, The Pines Company (as indicated above, the apparent successor to The

Severn Company) conveyed to PCIA a deed granting it a waterfront lot as shown on the 1922

Plat, which became know n as the “Community Lot.”9 That conveyance also included the

“use in common language,” and was granted subject to covenants contained in the habendum

clause, wh ich stated in re levant part:

“TO HAVE AND TO HOLD the said lot of ground and premises above

described and mentioned, and here by intended to be conve yed, together w ith

the rights, privileges, appurtenances and advantages, thereto belonging or

appertaining, unto and to the proper use and benefit of the said Pines

Community Association Incorporated, and for the title holders from The Pines

Company, Incorporated, or Leon[id]as G. Turner, their successors or assigns,

in fee simple, subject, however, to the following covenants, and agreements

which are hereby entered into by the [PCIA], its successors and assigns, with

the said The Pines Company, Inc., as part of the consideration of this deed.

. . .

“That the said grantee do th hereby covenant and agree for itself, its successors

and assigns, that the land hereby conveyed, shall be liable annually for the

proportion ate amount of the cost of maintaining the roads, included in the area

of the Pines-on-Severn, for the total square feet in said lots said proportionate

amount not to exceed, however, the sum of S ixty-dollars ($60 .00) to be paid

annually on the 15th day of March, in each year, by the grantee, its successors

and assigns, to the Pines Company, its successors and assigns, or to such

person or b ody corporate, as it or they may dire ct.

. . .

“IT IS DISTINCTLY UNDERSTOOD AND AGREED BETWEEN the

parties hereto, that all covenants and agreements above expressed, shall be

held to run and bind with the land hereby conveyed, the accepta nce of this

deed, shall have the same effect and binding force upon the grantee, its

successors and assign s, as if the same were signed and sealed by the said Pines

Company, Inc[.], and of the grantee; provided how ever, that the covenants

10 We have not been directed to any part of the record where there was any such

written consent to any changes by all of the owners of property where title evolved from The

Pines Company, Inc., the PCIA and their successors in title, i.e., apparently all of the owners

in “The Pines.”

-9-

contained in this deed may be changed with the written consent of the said The

Pines Company, Inc. and of the [PCIA ], their successors and a ssigns.” 10

In 1928, what became known as the Machen mortgage was executed between The

Pines Company as mortgagors and Mary G. M achen as m ortgagee. It encumbered the title

to the remaining lots in The Pines, including any Pines Company community property, to

Mary G. Machen, in exchange for $35,000 to the Th e Pines Company. That mortgage

included the following descriptive language: “roads, ways, streets, lanes, alle ys and paths,

piers, riparian and water rights appurtenant to the land known as Pines on the Severn, subject

however, to the use of the adjacent lot holders therein, and also all water works . . . .” Upon

default and foreclosure of the Machen Mortgage in 1932, Pines-on-the-Severn, Inc. acquired

title and assumed the mantle of developer through 1958. During that time period,

conveyances from Pines-on-the-Severn, Inc. included similar “use in common language” as

contained in the prior deed s from the original deve loper.

In 1952, the remaining lots, including community property, were conveyed from

Pines-on-the-Severn to the Pumphreys and the Obrechts. The conveyance was: “subject,

however, to the rights of owners of property in the development to the areas designated as

‘Community Land’ and ‘Community Lot.’” In 1962, Chas H. Steffey, Inc. obtained all

remaining lots and in turn conveyed them to White Acre, Inc. In 1966, White Acre conveyed

11 Beginnin g in the 1960’s and continuing to present day, these “community walks”

were advertised throughout the Pines by way of the PCIA newsletter. They include walking

on community lands and have at one time or another included walking o n each of the piers

extending from the community pro perty.

12 The pier management plan included a system for distribution of slips on piers

located in the Pines, re quiring a lot o wner to join PCIA and rema in in good standing to have

permission to maintain a slip. The plan provides that application for a slip may be made after

the posting of a refundable bond and paying a yearly maintenance fee. A fifteen dollar per

day wet storage fee is assessed for boats in slips without assignment thereto. The plan

apparently contemplated that PCIA would assume control over the piers and slips built by

the individual lot owners with the intention that such piers would be limited to use by lot

owners designated by PCIA a ccording to specific criteria created by it. The actions of PCIA

in asserting ownership o f the piers and attempting to assume control of the piers and the

respective lot owners response is the primary focus of the present dispute.

-10-

its interest in the community property to PCIA in fee simple, and made the conveyance

“subject to such righ ts and privileg es [whatever they might have been] heretofore granted

from time to time b y the Grantor to others . . . to use said property hereby conveyed for the

purpose set fo rth by such grants.”

Over the course of time, several lot owners built piers adjacent to their respective

properties that traverse and/or abut the creek side of the community land as shown on the

1920’s plats. Conversely, during that same period, PCIA undertook particular acts that

asserted its ownership of the property at issue, including community walks11 and it adopted

a pier management plan in September 2003.12

In December 2003, certain of the petitioners filed a complaint in the Circuit Court for

Anne Arundel County seeking declaratory and equitable relief regarding certain piers near

their homes extending across Community Land into the waters of Chase Creek. On

-11-

January 20, 2004, PCIA answered the complaint and filed a motion to dismiss, alleging that

the original petitioners had failed to join the necessary parties, which was denied April 16,

2004. On June 13, 2004, PCIA filed a counterclaim against the original petitioners, seeking

damages for alleged violations of the slip assignment provisions of its bylaws . The original

petitioners answered and denied resp onsibility to PCIA for dama ges. On Ju ly 26, 2004, the

Circuit Court granted a motion to intervene filed by Mary E. Gleaves and Karl Gleaves, who

were also lot owners in Pines-on-the-Severn.

The first stage of the trial was held on April 13 and 15, 2005, whereupon the Circu it

Court concluded that full relief could n ot be afforded without provid ing all lot ow ners in

Pines-On-The Severn an opportu nity to intervene and be heard. On Ju ne 7, 2005, the Co urt

entered a show cause order pursuant to Maryland Rule 2 -211, sua sponte, and directed the

parties to cause th e order to be served up on all lot owners in Pines-on-th e-Seve rn.

On July 8, 2005, PCIA filed a cross-claim against the owners of a number of lots

whom they alleged to be similarly situated to the original petitioners, also seeking damages.

In its cross-claim , PCIA asserted ownership of the community pro perty and the right to

control and regulate the use of the piers. C ross-defen dants Mr. and Mrs. Gleaves answered

and denied responsibility to PCIA for damages.

Trial resumed on December 21, 2005. On December 28, 2005, the Circuit Court for

Anne Arundel County, by memorandum and order, ruled in favor of PCIA, ordering:

“1. The Pines Community Improvement Association, Inc. holds fee

simple title to the Community Land or Community Lot (‘Community Land’)

-12-

shown on the 1922 and 19 24 Plats of Pines-On-The-Severn recorded among

the Land Records of Anne Arundel County.

“2. The Pines Community Improvement Association, Inc. owns all

improvements existing on the Community Land, inc luding all piers, pilings,

boathouses and steps leading to piers.

“3. The claims of the Plaintiffs and Cross-Defendants that they have

acquired title to portions of the Community Land, piers and boathouses

extending from the Community Land, and , steps leading to piers existing on

Community Land by adverse possession are denied.

“4. The claims of the Plaintiffs and Cross-Defendants that they have

acquired a prescriptive easement for the exclusive use of portions of the

Community Land, piers and boathouses extending from the Community Land,

and steps leading to piers existing on Community Land by adverse possession

are denied.

“5. The claims of the Plaintiffs and Cross-Defendants that the Machen

mortgage and subsequent deed grant them an interest in portions of the

Community Land or piers and boathouses extending from the Community

Land different than the interest enjoyed by all property owners in Pines-On-

The-Severn are denied.

“6. The Plaintiffs and Cross-Defendants are enjoined from claiming or

asserting, in an action at law or otherwise, that they have any claim of

ownership of, title to, prescriptive easement ov er, or exclusive right to use or

control any portion of the Community Land and any improvement existing

thereon or extending therefrom.

. . .

“8. The Pines Community Improvement Association, Inc . is declared

to have the right, power and authority to use, control, and regulate the use of

the Community Land and all improvements existing thereon, including the

right (a) to assign boat slips at piers and boathouses extending from the

Community Land (b) to charge fees for costs associated with the piers and

boathouses and (c) to charge wet storage fees to boa t owners th at fail to

comply with slip assignment regulations.

. . .

“10. Final judgments are entered against the Plaintiffs and Cross-

Defendants for wet storage fees due and owing to The Pines Community

Improvement Association, Inc. As follows:

(a) Joseph and Cynthia Donahue, jo intly and se verally, in the amount

of $1,080.00.

(b) Douglas W. Johnston in the amount of $3,150.00.

13 There, the appellants included: Stuart P. and Sondra R. White, Joseph an d Cynthia

Donahue, Michael and Jill Donnelly, G ill & Associates, G ayle Clow, Steven Garman,

Virginia E. Garman, Allen L. Garman, Sr., Allen L. Garman, Jr., Keith and Dee Lyon,

Douglas W. Johnston, Jr. William C. and Mary J. Simmons, Douglas C. and Stephanie S.

Rice.

-13-

(c) Keith and Dee Lyon, jointly and severally, in the amount of

$7,740.00.

(d) Gayle Clow in the amount of $1,150.00

(e) Stuart P. White and Sondra R. White, jointly and severally, in the

amount of $1,725.00.

(f) Allen L. Garman, Sr., Virginia E. Garman, Allen L. Garman, Jr., and

Steven Garman, jointly and severally, in the amount of $14,430.00.

(g) Michael and Jill Don nelly, jointly and severally, in the amount of

$1,575.00.

(h) Gill & Associates in the amount of $19,170 .00.”

A timely appeal13 was note d to the Court of Special Appea ls, which affirmed in p art

and reversed in part. It held, as relevant here:

“The deeds in the instant appeal created a property right for all lot

owners. The express easements are for riparia n rights and riparian rights

include the right to wharf out. The PCIA has not constructed any piers and is

the owner of the piers by virtue of its riparian land ownership. In more typical

waterfront communities, easements created for lo t owners a re likely easeme nts

of use of piers and access to water. That is not the case in the matter under

review because a grant of riparian rights without reservation includes the right

to build piers as appellants did.

“The parties, thus, are equally vested with the legal right to build and

enjoy piers in common with all other lot owners. The PCIA is both a lot owner

in this context a nd the serv ient teneme nt. The inab ility of the parties to come

to agreement on how to implement the shared rights of use and maintenance

creates interference in the use and enjoyment of the easements for all parties.

In the attempt to devise an equitable solution, the trial judge granted

[exclu sive] po wers to the serv ient tene ment.

“The fees that the PCIA established are not appropriate maintenance

fees under easement law, as delineated in Drolsum [v. Luzuriaga, 93 Md.App.

1, 17-18, 611 A.2d 116 (1992)]. Fees based upon commercial usage and

14 Not all of the appellants in the Court of Special Appeals joined in the petitions

for certiorari.

-14-

enforced for punitive purposes do not embody the legal principles of the

easement law.

“The PCIA may not charge fees for usage of an easement granted

expressly to lot owners and neither may lot owners exclude the PCIA or other

lot owners from usage of piers. The issues before the Court allowed for

determination of easement law application to a set of facts that do not lend

themselves to the type of practical solution as decreed by the trial cour t.

According legal effect, as we have accorded in this appeal, to the deeds and the

express easements granted the rein for riparia n rights result in the only legally

sound disposition. Were the PCIA both the owners of the riparian land and

exclusive owners of the riparian rights incident thereto, an equitable solution

similar to that propo sed by the trial co urt could allo w for fe es to mainta in the

easements of usage and access.”

White v. Pines Community Improvement Ass’n, Inc., 173 Md.App. 13, 70-71, 917 A.2d 1129,

1161-62 (2007).

On April 19, 2007, petitioner A filed w ith this Court a petition for a writ of certio rari,

and on April 20, 2007, petitioner B also petitioned this Court for a writ of ce rtiorari.14 On

May 4, 2007, respondents filed a cross-petition, and both petitions and the cross-petition

were granted on June 13, 2007.

II. Standard of Review

Maryland Rule 8-131 governs the scope of appellate review. It states, in relevant pa rt:

“(c) Action tried w ithout a jury. When an action has been tried

without a jury, the appellate court will review the case on both the law and the

evidence. It will not set aside the judgment of the trial court on the evidence

unless clearly erroneous, and will give due regard to the opportunity of the trial

court to judge the credibility of the witnesses.”

-15-

We have held that:

“When a matter is tried before the court without a jury the evidence

must be viewed in the light most favorable to the party prevailing below. . . .

We must also bear in mind . . . that ‘the judgment of the lower court will not

be set aside on the evidence unless clearly erroneous and due regard will be

given to the oppo rtunity of the low er court to judge the credibility of the

witnesses.’ . . . ‘ Since the jury is fre e to believ e only a portion of the evidence

of each side th e synthesis app arently accomplished by the ju ry is sim ply a

manifestation of its obvious function[]’ is no less true when a judge is the trier

of facts.’”

Clemson v. Butler Aviation-Friendship, Inc., 266 Md. 666, 671-72, 296 A.2d 419, 442

(1972) (citations omitted).

We give no deferenc e, however, to conclusio ns of law . “‘The deference sh own to the

trial court’s factual findings under the clearly erroneo us standard does not, of course, ap ply

to legal conclusions. Wh en the trial court’s [decision] “involves an interpretation and

application of Maryland statutory and case law, our Court must determine whether the lower

court’s conclusions are legally correct . . . .”’” YIVO Institute for Jewish Research v. Zaleski,

386 Md. 654, 662-63, 874 A.2d 411, 415-16 (2005) (quoting Nesbit v. Government

Employees Ins. Co., 382 Md. 65, 72, 854 A.2d 879, 883 (2004)). The interpretation of

mortgages, plats, deeds, easements and covenants has been held to be a question of law.

“That, as a general rule, the construction or interpretation of all written instruments is a

question of law for the court is a principle of law that does not admit of doubt.” Gordy v.

Ocean Park, Inc., 218 Md. 52, 60, 145 A.2d 273, 277 (1958) (citing Sperling v. Terry, 214

Md. 367, 370, 135 A.2d 309, 311 (1957); Strickler Eng’g Corp. v. Seminar, 210 Md. 93, 100,

-16-

122 A.2d 563, 568 (1956), Roberts v. Bonaparte, 73 Md. 191, 19 9, 20 A. 918, 919 (1890);

Hartsock v. Mort, 76 Md. 281, 2 91, 25 A . 303, 30 5 (1892)).

III. Discussion

Garfink v. Cloisters at Charles, Inc., 392 Md. 374, 392-93, 897 A.2d 206, 216-17

(2006), offers clear instruction on the interpretation of instruments creating easements:

“‘In construing the language of a deed, the basic

principles of contract interpretation apply. The grant of an

easement by deed is strictly construed. . . . The extent of an

easement created by an express grant depends upon a proper

construction of the conveyance by which the easement was

created. . . . “The primary rule for the construction of contracts

generally–and the rule is applicable to the construction of an

easement–is that a court should ascertain and give effect to the

intention of the parties at the time the contract was made, if that

be possible.” . . .’”

. . .

“‘A court construing an agreement under this test

must first determine from the language of the

agreement itself what a reasonable person in the

position of the parties would have meant at the

time it was effectuated. In addition, when the

language of the con tract is plain and unambiguous

there is no room for construction, and a court

must presume that the parties m eant what they

expressed. In these circumstances, the true test of

what is meant is not what the parties to the

contract intend it to mean, but what a reasonab le

person in the position of the parties would have

thought it meant. Consequently, the clear and

unambiguous language of an agreement will not

give [way] to what the parties thought that the

agreement meant or intended it to mea n.”

Garfink, 392 Md. at 392-93, 897 A.2d at 216-17. E.g.,General Motors Acceptance Corp. v.

-17-

Daniels, 303 Md. 25 4, 261, 492 A.2d 1306, 1310 (19 85); Bd. of Trustees of State Colleges

v. Sherman, 280 Md. 373, 380 , 373 A.2d 626, 629 (1977); Billmyre v. Sacred Heart Hosp.,

273 Md. 638, 642, 331 A.2d 313, 316-17 (19 75).

As Judge D avis in his excellent discussion in the Court of Special Appeal’s opinion

reasoned below:

“In the case sub judice, there is a covena nt in the deed from the Pines

Company, Inc. to the PC IA that w as an express covenant meant to run with the

land. That covenant was in addition to the use in common languag e found in

the “BEING” clause of the PCIA’s deed and appellants’ d eeds. The use in

common language did not p romise to do or refrain fro m doing anything. It

simply granted a use in common of the Community Land and Community Lot.

It is an ex press easement as discu ssed, infra.

. . .

“The original grantors of The Pines were the Turners. The Severn

River Co. was an en tity of which Mr. Turner w as presiden t. The deed created

by the Turners that conveyed The Pines to the company of which Leon[id]as

was the president, and the plats accompanying that conveyance, clearly

establish a waterfront community. Both plats show Community Land and

Community Lot. The deed to the Severn River Co. clearly grants all the

Community Land and Community Lot, together with riparian rights, ‘piers and

appurtenances and advantages to the same belonging or in anywise

appertaining . . . .’ Whereas the deeds to individual lot owners provided them

use in common of roads and the ‘Community Lot on said Plat and all water

and riparian rig hts incid ent there to.’

“Thus, the deeds granted the use in common of riparian rights. We hold

that those terms are clear and unambiguous. The deeds establishing easements

for the lot owners’ use of the Community Land in The Pines and their riparian

rights are in common with others, not separate an d exclusive.”

White, 173 Md.App. at 39-44, 917 A.2d at 1144-46. We agree with the Court of Special

Appeals’ reasoning , finding that PCIA is the owner of the com munity property, and that the

community property is subject to a common easement that allows PCIA and all of the

-18-

individual lot owners a righ t to use the commu nity property in common with each other.

As the PCIA is the owner of the community property, it follows therefore, that it also

normally would be the o wners of the piers attached to that community property. Maryland

Code (1982, 2007 Repl. Vol.), § 16-201 of the Environment Article states, in relevant pa rt:

“[A] person may make improvements into the water in front of the land to

preserve that person’s access to the na vigable water or protect the shore of that

person against erosion . After an improvement has been constructed, the

improvement is the property of the owner of the land to which the improvement

is attached.” (Emphasis adde d.)

With regard to the case at bar, the Court of Special Appeals went on to hold:

“The grant of riparian rights to appellants in the deeds are express and

interpretation is, thus, controlled by the langua ge of th e deed. . . . No extrin sic

evidence is required to interpret its meaning. The piers built by appellants’

predecessors in interest became the property of the riparian owner. . . . The

grant of ripa rian rights to the lot owners does not equate to the ownership of

riparian land.”

White v. Pines Community Improvement Ass’n, 173 M d.App. at 45, 917 A.2d at 1147 .

As PCIA was the actual owner of the waterfront property, subject to an easement

allowing all individual lot owners to exercise riparian rights in common with each other,

there exists a presu mption that the permissive use of th e real property in common with all

members of the com munity normally cannot ripen into a pres criptive easement. Kirby v.

Hook, 347 Md. 380, 393, 701 A.2d 397, 404 (1997) (citing Phillips v. Phillips, 215 Md. 28,

33, 135 A.2d 8 49, 851 (1957)).

Ouster

The Court of Special A ppeals did not reject the principle that an ouster could change the use

-19-

from permissive to adverse, as implied by petitioner A in their first question. That C ourt

simply did not address the issue of ouster because it found that a co-tenancy had not been

established. We disag ree, in part, with the reasonin g of the C ourt of Sp ecial App eals on this

issue.

Co-tenancy is not required for an ouster to exist. See Potomac Lodge No. 31, I.O.O.F.

v. Miller, 118 Md. 405, 415-16, 84 A. 554, 558 (1912) (citing 1 Am. & Eng. Ency. of Law,

804.) (“‘The ou ster by a tenant in common, of his co-te nant, does not differ in its nature from

any other ouster, nor in any respect except in the degree of evidence required.’”) In cases

where no co-tenancy exists, however, the criterion req uired for the showing of ouster is

unclear. We are offered one definition in the case of James Stewa rt’s Lessee v. Robert Jones,

of George, 8 G. & J. 1, 17 (Md. 1836), where the Court stated, in relevant part: “An ouster,

is some act adverse to the possession of another excluding him . . . .” In delineating the type

of act that would be adverse to the possession of another, we have stated: “[W]here ‘[t]he

real and vital purpose sought to be accomplished by [the ac tion] is the oustin g of the tenant,’

the action is one at law.” Martin v. Howard County, 349 Md. 469, 489, 709 A.2d 125, 135

(1998) (quoting Redwood Hotel, Inc. v. Korbien, 195 Md. 402, 411, 73 A.2d 468, 471

(1950)). Further, ousting must be an overt act that is a hostile invasion of an other’s rights.

Jurgensen v. New Phoenix Atlantic Condominium C ouncil of Unit Owners, 380 Md. 106, 124

n. 8, 843 A .2d 865 , 875 n. 8 (2003). See Beatty v. Mason, 30 Md. 409, 410 (1869) (“A

survey, unaccompanied by any other act of user and occupation, is not such a distinct and

-20-

notorious act of possession as will justify the reasonable p resumption of an o uster, or that the

party went upon the land with a palpable intent to claim the possession as his ow n.”). Accord

Rosencrantz v. Shields, Inc., 28 Md. App. 379, 393 , 346 A.2d 237, 245 (1975). “A nd while

the ouster need not have been accompanied by positive force, it must have been actual, and

be established by acts or declarations brought home to the knowledge of the cotenant.” Ross

v. Phillips, 148 Md. 165, 167, 129 A. 21, 22 (1925). Accord Bratton v. Hitchens, 43 Md.

App. 348, 356 , 405 A.2d 333 , 338 (1979).

In the context of co-tenancy, the Court of Special Appeals has defined ouster as: “a

notorious and unequivocal act by which one cotenant deprives another of the right to the

common and eq ual possession and enjoyment o f the pro perty.” Young v. Young, 37 Md.App.

211, 221, 376 A.2d 1151, 1 158 (1977). And this Court has stated “‘and any act or conduct

signifying his intention to hold, occupy and enjoy the premises exclusively, and of which the

tenant out of possession has knowledge, or of which h e has suff icient inform ation to put him

upon inquiry, amounts to an ouster of such [a co-]tenant.’” Sowers v. Keedy, 135 Md. 448,

451, 109 A. 143, 14 4 (1919) (citing 1st R. C . L., page 742, paragraph 62). Where no cotenancy

exists, however, the burden is less, because there exists no presumption that

possession by on e is poss ession b y all.

“It is not the law that there can be no adverse possession by one tenan t in

common against ano ther, but more evidence is required. ‘The ouster b y a

tenant in common, of his co-tenant, does not differ in its nature from any other

ouster, nor in any resp ect except in the degree of evidence required. The

distinction relates to the character of the evide nce necessary to prove that the

possession was adve rse.’” (Emphasis adde d.)

-21-

Potomac Lodge No. 31, I.O.O.F., 118 M d. at 415 -16, 84 A. at 558 (quoting 1 Am & Eng

Ency of Law, 804).

In the instant cas e, there may w ell be sufficient evidence in the case of one petitioner

to prove that ouster occurred; the Simmons’ had erected a “No Trespassing” sign and had

written to the PCIA stating that the land and pier were their pro perty. We need not, howe ver,

resolve that issue or the other ousting issues because even if o uster could be show n, there

was sufficient factual evidence before the trial court in each relevant case for it to find that

adverse posse ssion af ter ouste r could not be p roved f or vario us reaso ns.

This Court has held that: “To establish title by adverse possession, the claimant must

show possession of the claim ed property for the statutory period of 20 years. . . . Such

possession must be actual, open, n otoriou s, exclusive, hostile, under claim of title or

ownership, and continuous or uninterrupte d. Costello v. S taubitz, 300 Md. 60, 67, 475 A.2d

1185, 1188 (1984) (citing East Washington Railway Co. v. Brooke, 244 Md. 287, 294, 223

A.2d 599, 603-04 (1966). Maryland Code (1973, 2002 Repl. Vol.), § 5-103 of the Courts and

Judicial Proceedings A rticle states, in relev ant part:

Ҥ 5-103. Adverse possessions; common-law doctrine of prescription and

other limitations unaffected.

(a) In gene ral. – Within 20 years from the date the cause of action accrues,

a person sh all:

(1) File an action for recovery of possession of a corporeal freehold or

leasehold estate in land; or

(2) Enter on the land.

(b) Exceptions. – (1) This section does not affect the common-law doctrine

of prescription as it applies to the creation of incorporea l interests in land by

adverse use.” (Emphasis add ed.)

-22-

We restate the fac ts as articulated by Judge D avis for the Court of Sp ecial App eals

that support the decision by the trial court in respect to adverse possession demonstrating

how a claim of adverse possession would fail as to the respective petitioners:

“Pier 2–Donahue

“Because Pier 2 has existed since the 1930’s and has been maintained

by the owners of lot 309 as exclusive users of the pier, save for neighbors who

have used it with permission, the Donahues posit that they should be granted

adverse possession.

“To establish a claim for adverse possession, the statutory time period

cannot be interrup ted. See Hungerford [v. Hungerford, 234 Md. 338, 340, 199

A.2d 209, 210-211 (1964)], supra. The Court of Appeals, holding that the

statutory time had not been interrupted, opined that

‘[a]ll the authorities agree that an entry, to have such effect,

must be an actual entry upon some part of the land within the

period of limitations, and must evince that it is made with the

clear and unequivocal intent to invade and challenge the right of

the hold er of the advers e posse ssion an d to retak e posse ssion.’

Rosencrantz v. Shields, Inc., 28 Md.App. 379, 388-89, 346 A.2d 237 [242]

(1975) (quoting Wickes v. Wickes, 98 Md. 307, 328, 56 A. 1017, [1026]

(1904)).

“Substantial evidence presented by both parties at trial exists in the

record to support the trial court’s finding that adverse possession could not

have ripened. Appellants presented a letter from Chet Harriman, a president

of the PCIA acknowledging Pier 2 as ‘your pier’ and appellees presented

evidence of a letter from its lawyer from 1983 claim ing ownership of piers in

The Pines. The trial judge found that the Donahues had applied for boating

permits from 1993 to 2003, boats were assign ed to Pier 2 and in the years

subsequent to 1966 [] community walks have entered upon Pier 2. Substantial

evidence as to adverse possession exists in the record [supporting the trial

court’s decision] for the court to decide the issue and we find no error of fact

or law as to adverse possession.

-23-

“Piers 8 and 9–Simmons and Johnston

“Pier 8 and Pier 9 are claimed by appellants through color of title and

appellants contend that the PCIA , moreover, has acknowledged their

ownership as late as 1998 when, in its newsletter, it stated that ‘the shoreline

from the west en d of the community beach to the south end of The T erraces is

privately owned. Access to the water and private piers in this area is by

invitation only.’ Further, the property in front of Pier 9 was backfilled and a

1974 confirmatory deed was filed putting on public record the claim that all

the property in front of lot 401 and part of lot 402 belong ed to the lot owner.

The property was advertised for sale as riparian property. Johnston claims no

PCIA member ever tried to come onto the contended property when he was

there, no Pines logos were painted on Pier 9 and no one from the PCIA ever

tried to evict him.

“The Simmons’ bought their lot from Frederick Green (hereinafter

Green). The deeds conveyed the lots that the Simmons’ bought to the water’s

edge. Green established a bulkhead, backfilled washed out land, maintained

Pier 8, erected a fence and, as early as 1975, Simmons erected a ‘No

Trespassing’ sign and wrote to the PCIA stating that the la nd and p ier were his

property. The Simmons personally insure P ier 8 as part of their homeowner’s

policy and, like Johnston, the Simmons’ property is taxed as waterfront.

Payment of taxes is a s alient fact in su pport of, bu t alone not su fficient to

prove, adverse posse ssion. Bratton v. Hitchens, 43 Md.App. 348, 358, 405

A.2d 333[, 33 9] (1979).

“The court had substantial evidence from which to make its decision.

The record is replete w ith testimony and evidence in support of both parties’

contentions. We do not find that the trial court abused its discretion by not

considering Simmons’ testimony because there is no evidence to that effect

and we presume the trial judge care fully considere d all of the argumen ts before

making a decisio n. Thomas [v. City of Annapolis] , 113 Md.App. [440,] 450,

688 A.2d 448 [, 453 (1997)]. Likewise, appellant cites no law to support the

contention that building a bulkhead and backfilling the land amounts to erasing

the Community Land and, further, one cannot adversely possess one’s own

land as the Simmons’ assert the land between their lots and Chase Creek

became. Alternatively, the record refle cts that some Community Land

remained after the bulkhead was erected and backfilled. The PCIA conducted

community walks on the Community Land in front of the Simmons’ lot. The

trial judge’s ruling was no t clearly erroneou s that the re-en try was enou gh to

assert ownership by the PCIA.

“The trial court found that [Johnston’s predecessor in title] failed to

15 We neither agree, nor necessarily disagree, with the Court of Special Appeals’

statement that a predecessor in proper possession must mak e some ac tive declaratio n that his

possession of property is adverse in order for “tacking” to apply in an adverse possession

context. In the context of this case , we need not ad dress this issue further.

-24-

respond to the 1983 letter from the PCIA that it owned Pier 9 and, in 1985,

wrote the PCIA in regard to Pier 9 following a community walk. They

acknowledged a dispute as to ownership of Pier 9, but that was less than

twenty years ago and hardly hostile possession as they asked to discuss a

resolution of vario us claim s to the p roperty an d settlem ent. See Hungerford,

supra. Thus, as Johnston’s predecessor did not claim adverse possession or

prescriptive easement, title cannot be tacked which Johnston must do in order

to reach the statutory period.[15] The PCIA continued to enter the property and

painted a logo on Pier 9 in 1990.

. . .

“Pier 11–Clow

“Predecessor owners, th e Elgerts, did not respond to the assertation of

ownership contained in the 1983 letter from the PCIA. The trial court found

that the PCIA routinely assigns slips on Pier 11. Clow argues that she

approached the PCIA about extending Pier 11 because without PC IA’s

consent, as deeded owner of the land, she thought a permit would not be

issued. We find no error of fact or law as it relates to the trial court’s ruling

in regard to Pier 11. There was no mistake on Clow’s part as to ownership of

the riparian land and no exercise of actual, open, notorious, exclusive, hostile,

under claim of title or ownership for the statutory period. Costello [v.

Staubitz], 300 Md. [60 ,] [] 67, 475 A.2d 11 85[, 1188 (198 4)].

“Pier 12-White

“The Whites’ lots 608 and 609 were part of the original 1922 plat and

the 1943 litigation between Kipp and Lenzer. Notwithstanding that Lenzer’s

1941 letter provided, in notorious and hostile f ashion, his cla im to pier 12, it

was not directed at the title owners of the Community Land and Community

Lot to which the pier attached as discussed supra. Further, the litigation

addressed the fenc e constructed by Lenzer a nd not the pier.

16 That case was heard in October 1943, in the Circuit Court for Anne Arundel

County, In Equity, Case N o. 8401 Equity, fo und in the reco rd extract at E. 1500.

-25-

“The court in Kipp v. Lenzer[16] ruled that it was

‘not asked to require the defendants to remove so much of the

pier as extends out over the water. In an y event, it is difficult to

understand how the Court, on the present state of the record,

could do anything about that. The Plaintiffs do not own the

Beach but have only an easement therein in virtue of their

ownership of lots in the development. They have no more right

to the use of the water in front of the beach than any other

member of the gen eral public h as; and, in the absence of a

showing that they have s uffered a special dam age, that is to say,

a damage different from that suffered by the general public, by

reason of the maintenance of so much of the pier as extends out

over the water, they are certainly not entitled to injunctive relief

as to that part of the pier which extends out over the water.

* * *

‘The Court will, accordingly, confine its discussion to the

steps leading down the bluff and the boardwalk leading from the

foot of the steps out to the water’s edge.’

(Emphasis ad ded.)

“The Kipp Court further found that it could not ‘see any possible

objection to the maintenance of the steps’ because the bluff could be used for

no other purpose than access from lot 609 to the beach. No other lot holder or

Kipp could ‘be hurt by the maintenance of those steps’ and although it was

possible, though the court did not find an invasion of technical rights; it was

not an invasion of practicable rights such that an equity court would interfere.

The topography of the land w as the issue a s to access to the beach , not the

steps. The lot owners were precluded from obstructing passage along the

community beach.

“Notwithstanding that ruling, appellants contend that Lenzer’s

successor Price held Pier 12 exclusively and even told the PCIA to ‘go fly a

kite’ when the PCIA demanded dock rental fees for use of Pier 12. The police

were called to evic t trespassers and the Whites believed Pier 12 cam e with

their house.

-26-

“To support the ir claim of tacking, the Whites’ rely on the dee ds in their

chain of title as having conveyed Pier 12 to them. A review of the deed

reveals that the deed from the W hites’ immediate predecessor states a

conveyance of lots 608 and 609 ‘TOGETHER with all improvements thereon

and the rights, alleys, ways, waters, privileges, appurtenances and advantages

thereto belonging or in anywise appertaining.’ The immediately subsequent

paragraph states that the g rant is ‘SUBJECT to the covenants, conditions,

easements and restrictions of record and amendments thereto,’ making the

appurtenance of the pier that the Whites and their predecessors claim subject

to the common scheme p rovided fo r in the plats and the permissive easements

granted in the deeds.

“Testimony at trial indicated that the ‘No Trespassing’ signs posted by

the Whites an d their predecessors we re taken down by the PCIA and that the

PCIA’s signs were replaced with private signs. The Whites argue that no

Community Lot or Community Land exists, the PCIA has never moored nor

assigned a boat at Pier 12, executed any leases with respect to Pier 12 and the

Whites have paid the taxes assessed for the p ier.

“Contrary testimony indicated an absence of no trespassing signs on

Pier 12 and that the advertised community walks that occurred with regularity

beginning in the mid-1960’s and extending to the present time, constituted a

reentry on the land for purposes of indicating that appellants’ possession was

invalid. Rosencrantz, 28 Md.App. at 389, 346 A.2d [at] 237. The variance

applied for by the Whites in 2001 indicates that there is indeed a strip of

community land that appellants acknowledged.

“Substantial and conf licting evidence in the reco rd presented by both

parties was found by the trial court to militate in favor of the PCIA and we find

no clear erro r of law o r fact in wh ich to groun d a reversal.

“Pier 13–Garman

“In previous litigation, the court ruled that, ‘even though the Garmans

may have rebuilt the pier as a result of its destruction by ice during the winter

of 1976-1977, it shall remain the property of the riparian owner.’ The court

named the PCIA as riparian owner and, thus, appellees claim that that ruling

precludes appellants’ claim as to ownership under res judicata. We disagree.

A ruling as to ownership of the pier does not preclude the beginning of a new

statutory period if the elements of adverse possession are met. The moment

adverse possession is interrupted another period may begin de novo. Hughes

v. Insley, 155 Md.App. 608, 622, 845 A .2d 1[, 9] (2003).

“Appellants aver that notwithstanding the ruling of the Circuit Court for

17 Nichols was an appellant in the case befo re the Court of Special Appeals, but is not

a party to this app eal.

-27-

Anne Arundel County in favor of the PCIA in 1982, the Garmans nevertheless

continued to possess Pier 13 to the exclusion of all others and, thus, meet the

statutory requirements for adverse possession. PCIA letters requesting

compliance with the court order were ignored and assigned boats’ owners w ere

told by Mr. Garman that he was the ‘dock master.’ Substantial evidence exists

in the record that Mr. Garman was not claiming exclusive use of Pier 13 and,

in any event, the PCIA exerted control over the pier by assigning boats,

sending correspondence and conducting community walks thereby interrupting

any twenty year period begun after the 1982 decision and we do not find clear

error on the part of the trial c ourt.

. . .

“14B, 15 and 16-Gill & Assocs.

“The trial court was not clearly erroneous in finding that appellants did

not acquire title to the above referenced piers by adverse possession because

substantial evidence exists in the record for the trial court to have so found

from the following evidence in the record.

“14B

“Pier 14B was constructed some time before 1943 . The trial court

found that Pier 14B can hardly qualify as a pier becau se it was dism antled in

the late 1970’s. That action by the PCIA was the impetus for the suit filed by

Wirt Gill and later dismissed without prejudice. Testimony exists in the record

from Nichols[17] that the pier is in use.

“15

“The finding of the Anne Arundel Circuit Court, which was not

appealed, granted ownership of Pier 15 to the PCIA in 1987. A claim of

adverse possession would have had to begin again and, thus, we perceive no

clear error of the trial court’s factual finding that adverse possession did not

accrue and Pier 15 belongs to the PCIA.

-28-

“16

“Appellants contend th at, because th e pier was constructed and solely

maintained by the [] previous owner and the general reputation was that the

pier belonged to the owners of lot 624, that they have acquired title to Pier 16

by adverse possession. The PCIA added additional pilings an d the record

indicates that Nichols was u nable to get a permit to repair it because of the

PCIA’s ownership o f the pie r.”

White, 173 Md.App. at 49-59, 917 A .2d at 1150-1155 (2007).

While the findings of fact of the trial court are somewhat confusing, and, to some

extent, unusual, we see no sufficient error of fact or law in the relating of those findings by

the Court of Special Appeals. In other words, while there is evidence to the contrary, there

is sufficient evidence (albeit barely in some cases) in the record to support the trial court’s

findings on the issues next above discussed. “The weighing of the evidence and the

assessment of witness credibility is for the finder o f fact, not the reviewing court. Terranova

v. Board of Trustees, 81 Md.App. 1, 13, 56 6 A.2d 497, 50 3 (1989).

The Court of Special Appeals, after further describing the trial court’s findings,

correctly went on to hold that where there is an agreement that violates the law, that

agreement is unenforceable in Maryland. See e.g., State Farm Mut. Ins. Co. v. Nationwide

Mut. Ins. Co., 307 Md. 631 , 643, 516 A.2d 5 86, 592 (1986). With respect to the instant case,

the Court o f Special appeals stated : “[T]he [trial] judge note d that attempts by the PCIA to

control piers violates the R-2 zoning of the area because community piers and marinas are

not permitted uses except in the area adjacent to the Community Beach [i.e. the Community

Land].” White, 173 Md.App. at 6 2, 917 A .2d at 1157 . By its own admission, the trial court

-29-

then established a system that would be unenforceable in Maryland if its finding that such

action would violate zoning provisions is correct.

Enforceability of this agreement, however, may be a moot issue, as we are unable to

find in the record where PCIA was ever granted the authority to manage the piers. As a lot

owner itself, PCIA is both a servient tenement and a dom inant tenem ent. In other w ords, it

has both the right to use, in common with other lot owners, the community property as a lot

owner, and as the own er of the community property, it is subject to the other lot owners’

rights to use the community property. We have been unable to find, however, any

conveyance that grants PCIA the authority to exclude any lot owner or to charge any fee for

the use of the piers. Further, we find no error of law in the Court of Special Appeals’

analysis of this issu e. That Co urt stated, in relev ant part:

“A servient tenement cannot close or obstruct an easement so as to prevent the

reasonable enjoyment of those entitled to use it. Maddran v. Mullendore, 206

Md. 291, 297, 111 A .2d 608 [, 610] (1955). Similarly, the PCIA may not

control the piers to exclude those who have an express grant of riparian rights

nor can appellants prevent the PCIA’s use in common in its role as lot owner

and servient tenement.

“Appellants argue that if not created by an express provision, the

PCIA’s only basis for collecting fees then, can be that there is ‘an implied

obligation to contribute to the maintenance of commonly held property

without regard to usage.’ Restatement (Third) of Property, Servitudes, § 6.2

(2000) (emphasis added by appellant). We agree. The fact that those sharing

a common easement may be responsible for its maintenance does not make the

several landowners a common-interest community because their duty is

determined by the extent of their use. Id.

. . .

“The PICA’s right to require reasonable maintenance fees comes from

a shared right of use in the easement and not from its status as a community

18 We do not agree necessarily with that final statement. As we noted earlier, the

record reflects that membership in PCIA is voluntary. Where PCIA is not permitted by

statute to operate a marina outside of the Community Lot, and where membership in PCIA

is voluntary, it may be difficult to set up a system for contribution for the maintenance of the

piers or even a system for use of the piers. We note that just because an owner may have

riparian rights does not mean that he must exercise them just because someone else who

shares riparian rights is using them and that in such a circumstance he must pay to maintain

a pier over which he does not exercise the rights he may have unless the covenants affecting

the land generally, or the instruments in his chain of title so provide.

-30-

associa tion or by a covenant in lot owners’ deed s.”18

White, 173 Md.App. at 67-68, 917 A.2d at 1160. We further agree with the Court of Special

Appeals that the past wet storage fees assessed against all the petitioners appear to be

inappropriate, even if a statute or the common law permits. The record, however, does not

reflect that such issue has been addressed sufficiently below, and as stated above, we have

found no conveyance that expressly grants PCIA such power. Accordingly, we leave the

possibility of proportionately distributing the future wet storage fees to further negotiation,

settlement or litigation.

IV. Conclusion

For the foregoing reasons, we affirm , generally, the Court of Special Appeals, with

the reservation next above stated, which presumably may be subject to further negotiation,

settlement or litigation, and hold that the PCIA is the owner of the community property, i.e.,

Community Land and Community Lot, and as a result of that ownership, is also the owner

of the facilities, i.e., the piers at issue in this appeal, extending channelward from the

Community Land and Community Lot. That ownership is subject to an express common

-31-

easement to all property owners in the community (unless other title instruments provide

otherwise) as to riparian rights, which would include PCIA. Finally, the wet storage fees

assessed by the trial court were inappropriate, as was the maintenance system established by

the trial court.

THE JUDGMENT OF THE COURT OF

SPECIAL APPEALS IS AFFIRMED

IN PART AND VACATED IN PART;

COSTS IN THIS COURT AND THE

COURT OF SPECIAL APPEALS TO

B E P A I D E Q UA L L Y B Y

PETITIONERS

Leave a Comment

Previous post:

Next post: