Sarah L. Simpson joined waterfrontlaw as an associate in April, 2012.

Ms. Simpson can be reached at sssimpson@waterfrontlaw.com.

On January 20, 2012, Maryland’s highest court, the Court of Appeals issued a 40 page opinion in Clickner v. Magothy River Association. For big readers, the entire case is here.  This commentary is the opinion of Dirk Schwenk, the attorney behind waterfrontlaw.com and who represents many waterfront communities (or individuals in waterfront communities) in Maryland.

When this case was decided at the trial level in 2010, my comment was that “I personally believe that the court reached the correct outcome, but it did so for the wrong reasons, probably as a result of confusing testimony concerning the location of the Mean High Water line.”   This worry came to pass, as the trial court’s imposition of a public easement to parts of the island above the mean high water mark did not hold up, and the high court did not see fit to consider whether the fence was actually below the mean high water mark.
__________________________________
Every case has winners and losers, and in this case the clear loser is the Magothy River Association.  The chief item that that organization succeeded at in trial was the removal of portions of the fence around the island. The Court of Appeals reversed this decision, and the Clickners, should they choose to do so, are empowered to reconstruct the fence.  As a lawyer, however, there is much to learn from the decision beyond who won and who lost. The Court of Appeals goes into great detail on several issues, and must be congratulated for issuing a deeply reasoned decision which considers the larger tensions between public and private rights in the waterfront, as opposed to the more short term issues political issues of Dobbins Island alone.

The primary issue addressed by the Court is this — if the public uses a beach adjacent to wild, undeveloped land, can this use prevent the owner of the land from ever asserting a right to call the land private. This is a real issue for waterfront owners — they may be able to monitor who is using the beach areas near their house — but what if they own undeveloped property in an isolated area? Do they have to fence it off and post no trespassing signs to protect their rights? Or can they allow it to be used by the public on occasion, and assume that in the future if they want to develop the property they will still have private property rights? The Court of Appeals considered this question in depth — noting a California case which required beachfront owners to actively defend their property and caused “the absentee owners of some of the most beautiful parcels put up miles of seven-foot-high fence topped with three strands of barbed wire.”

The Court of Appeals noted that we want the public to be able to use otherwise undeveloped land and correctly concluded that “Owners of open woodlands should not be expected to treat most uses as adverse and it would be unreasonable to require the owner to fence his land or guard against trespassers. Also it would be unfortunate if owners were forced to exclude the public … harmless trespasses should not be discouraged and it would be unfair to penalize the generous owner.” As a result, the Court concluded that “the public’s recreational use of the dry sand portion of the beach on Dobbins Island is presumed to have been a product of the permissive indulgence of its owners. To hold otherwise would galvanize owners into fencing or otherwise obstructing their beaches in order to avoid the assertion of public prescriptive rights, feasibly creating a barricade across Maryland’s shoreline.”

Based on this discussion, the Court of Appeals concluded that for the Magothy River Association to succeed in proving that the public had obtained the right to use private land, it had to show that the owners of Dobbins over the years had not permitted the public to use the island in the same way other owners allow the use of other wild lands. The evidence supported public use, but it did not show that it was use over the objection of the landowners. The MRA lost concerning Dobbins, but the public at large gained with the clarification that all owners of wild lands are not required to fence them off or lose their private rights.

There is, of course, an undeniable irony in the fact that the Clickners put up a fence barring the public, and the Court of Appeals allowed the fence based on the concern that not allowing it would cause all waterfront owners to put up fences.   Nevertheless, the Court of Appeals is right about the law.  The point that it missed (and I daresay has received short shrift at every important moment in this case) is the fact that parts of the Clickner’s fence are actually below the mean high water mark.  (I’ve been there, and there are posts in the water even at a modest summer tide).  In those places, the fence obstructs the public’s right to use the beach below the mean high water mark.  Perhaps the future will hold a point at which the public respects the Clickner’s private land, and the Clickners respect the public’s right to access the beach.  Perhaps.

The Court of Appeals issued its decision in Clickner v. Magothy River Association today. It was adverse to the Magothy River Association, and the case has been remanded to the Circuit Court for Anne Arundel County.   Comments here

David Clickner, et ux. v. Magothy River Association, Inc., et al. No. 13, September Term,
2011, Opinion by Greene, J.

REAL PROPERTY LAW – PRESCRIPTIVE EASEMENTS – Public prescriptive rights may be acquired over privately owned portions of beaches located along inland waterways. It was error, however, for the trial court, under the circumstances of this case, to apply the general presumption of adversity to the public use of a beach that was unimproved and in a general state of nature. Instead, the proper presumption was that public use of the land was by permission of the owners. Therefore, the burden was on the claimants to overcome the presumption of permission by proving that the use was, in fact, adverse.

IN THE COURT OF APPEALS
OF MARYLAND
No. 13
September Term, 2011
DAVID CLICKNER, et ux.
v.
MAGOTHY RIVER ASSOCIATION, INC., et al.
Bell, C.J.
Harrell
Battaglia
Greene
Adkins
Barbera
*Murphy, Joseph F., Jr. (Retired, specially
assigned),
JJ.
Opinion by Greene, J.
Filed: January 20, 2012
*Murphy, J., participated in the hearing and in the
conference of this case in regard to its decision
after being recalled pursuant to the Constitution,
Art. N, Sec. 3A but did not participate in the
adoption of this opinion.

Six individuals and the Magothy River Association, Inc. (collectively, “Association” or “Appellees”) brought suit against the recent purchasers of Dobbins Island, David and Diana Clickner (“Clickners” or “Appellants”), seeking to establish a public right to use a beach located alongside the island’s northern crescent area. Following a bench trial on the merits, the trial judge determined that Appellees had demonstrated the existence of a prescriptive easement on behalf of the public and ordered the removal of portions of a fence erected on the beach by Appellants.

In making this determination the trial judge applied the general presumption of adverse use and accordingly placed the burden on Appellants to prove that the use was, in fact, permissive. Based on the record before us, however, we determine that this application was in error, as the beach at issue was unimproved and otherwise in a general state of nature; therefore, the proper presumption, under the circumstances, was that public use was by permission of the owner. Thus, the trial court’s judgment and its order directing Appellants to remove portions of the fence erected on the beach were in error and we shall reverse.

FACTS AND PROCEDURAL HISTORY
Appellants own Dobbins Island (“the island”), a seven-acre parcel ofland surrounded by the Magothy River. The island has a long, albeit mysterious, presence in Maryland history. According to sales literature, it was fIrst surveyed in 1769 as twelve acres and granted by patent to William Gambrel. In the 1850′s it was conveyed to George Dobbin, and held in a family trust, until it was conveyed to Dutchship Island, LLC. Appellants purchased the island in 2003, with plans to build a home on the property. Prior to the purchase, the Clickners received a marketing brochure from Dutchship Island, LLC entitled “Island Jewel.”

The brochure included several color photographs of the property and described it as “the perfect blend of tranquility and accessibility-an idyllic, unspoiled natural retreat surrounded by deep pristine waters …. ” The island’s north side, according to the brochure, “forms a gentle crescent ideal for a protected boat anchorage.” A photograph of the “idyllic sandy beach” along the crescent was also included, showing only a single boat in the water and no persons or items on the sand.

The brochure also presented a brief history of the island entitled “Dobbins Island-Historic Treasure.” The introductory sentence in this historical narrative reads: “[t]his delightful island-jewel, has been a magnet for picnickers and boaters as they enter the mouth of the Magothy River for more than 250 years, serving as a beacon for pleasure boaters, crabbers, fishermen, and duck hunters alike.” The page included a photograph of two people sitting on the beach, captioned: “A 1963 picnic on Dobbins Island.” The narrative also related legends, which “hover over Dobbin’s [sic] Island like transparent kites. ” A prominent tale in Magothy River lore involves the alleged sinking of a Dutch ship near the island in the 1700′s, an accident which left Dutch coins behind for discovery by local residents and gave the property its local moniker, “Dutchship Island.”

A letter included in the brochure with the greeting, “Dear Prospective Buyer,” invited would-be purchasers to look into the opportunity to build a “dream home … on the last remaining unbuilt private island on the Western shore of the Chesapeake Bay near Annapolis, Maryland.” It characterized the island as a “natural setting” that is “beautifully
2
wooded with mature trees for privacy,” with “4,000 feet of shoreline, 1,000 feet of pristine beach, and a home site already approved for … almost any sized home.” The letter, however, like the introductory sentence of the historical narrative, foreshadowed the conflict which has arisen in this case, when it stated: “[fJor more than 300 years, Dobbins has been a magical place for people to visit and relax. With a large and expansive private white sandy beach, protected deep water access, and incredible 360 degrees vistas, a more beautiful or perfect place to escape to cannot be imagined." (emphasis added).

While the brochure materials certainly suggest a conflict between the island's public visitation and its private ownership, Mr. Clickner testified that he did not discuss any public use of the property with the sellers and was not aware of the use prior to purchase. Also, although he had spent time on the Magothy River in his youth, Mr. Clickner made clear that he had not visited or inspected the island until he toured it with the seller, and that he had submitted his offer to purchase the property during that initial tour.

After the Clickners purchased the island and became aware ofits extensive public use, they posted ''No Trespassing" signs along the perimeter and, in May 2006, were granted a building permit from Anne Arundel County to erect a 1,200 foot fence along the shoreline above mean-high tide.1 The fence included 13 pilings placed along the beach and strung together with cable. There is some discrepancy in the record as to the exact location of the fence, as there was testimony that it was installed at approximately six inches to two-feet

Footnote 1 Just as in Department of Natural Resources v. Ocean City, 274 Md. 1, 332 A.2d 630 (1975), the property at issue in the instant case is the dry sand portion of a beach. Accordingly, James J. Nolan, Jr., Recent Development, Department of Natural Resources v. Mayor and Council of Ocean City, 274 Md. 1,332 A.2d 630 (1975), 5 U. Balt. L. Rev. 349, 349 & n.3 (1976) provides a helpful guide to the terminology used throughout this opinion.
3
(Footnote 1 continued)
The article provides the following definitions: (a) The beach is the area between the ocean and the
upland. A beach consists of two main areas, the foreshore and the dry sand area. (b) The foreshore is the strip of land between the low and high water marks which is alternately covered and uncovered by the flow of the tide. ["Often used synonymously with 'wet sand beach.'" Nat'l Oceanic and Atmospheric
Admin., Coastal Services Ctr., Glossary, Public Trust Doctrine Course, http://www.csc.noaa.gov/ptdiglossary.htm (last visited Jan. 20, 2011).].
(c) The dry sand portion of the beach consists of the area between the mean high tide line and the vegetation line. (d) The vegetation line is the extreme seaward boundary of the natural vegetation that spreads continuously inland. It marks the border between the dry sand beach and the adjoining upland.
***
(f) The upland is the area adjacent to the beach. It extends landward from the vegetation line, dune line, or other natural boundary of the dry sand beach. (g) The mean high tide line represents the average height
of high tidal water on the shore over a considerable period of time. [Borax Consol., Ltd. v. Los Angeles, 296 U.S. 10,26-27, 56 S.Ct. 23, 31, 80 L. Ed. 9, 20 (1935) (noting that according to the United States Coast and Geodetic Survey, mean high tide is calculated by averaging the high tides over an 18.6 year period); Nat'l Oceanic and Atmospheric Admin., Coastal Services Ctr., supra ("The mean average of all the high tides (high high tides and low high tides) occurring over a certain period of time, usually 18.6 years (one lunar epoch).")].
***
(i) Littoral means belonging to the shore, as of seas and great lakes. (Internal citations omitted.) End Footnote 1.
4
above mean high water. On July 10, 2008, in reaction to the fence installation, Appellees filed a two-count complaint in the Circuit Court for Anne Arundel County seeking “to establish their rights to continue to use the island as they have used it in the past,” on behalf of themselves and the general public.2 The second count sought to have the fence removed or relocated ”because the fence does not properly mark the mean high water line.” An amended complaint was filed on November 13, 2008 adding two new parties as well as assertions of an easement by implied dedication and public custom.

During the trial, Appellees put forth the testimony of the six individually named plaintiffs, the president of the Magothy River Association, and an expert in the use of tidal data as it relates to coastal boundary disputes. Appellees also called and questioned Mr. Clickner about the circumstances surrounding his purchase and the decision to erect a fence on the beach. Appellees presented evidence to establish the long, historical use of the island beach. They entered photographs that were apparently taken in the 1920′s or 30′s depicting persons canoeing around the island and also photographs of public use of the shore during the 1970′s and 1980′s. Appellees also presented Chesapeake Bay Magazine’s “Best of the Bay Survey” from 2006 which included Dobbins Island as one of the best anchorage sites in the Chesapeake Bay. Mr. Paul Spadaro, president of the Magothy River Association, testified that this

Footnote 2 The Appellees had filed an earlier, similar action in December of 2006, and dismissed it without prejudice in April of 2007.
5
anchorage spot at Dobbins Island is used as the official site for the Association’s “Magothy River Day.” This event celebrates the history of the river, and includes a “wade-in” on the sandbar in which participants wear white shoes and wade into the water until they can no longer see their feet, in order to test the river’s visibility and water quality. In 2007, approximately 200 boats attended the inaugural event, and in 2008, over 400 boats were present. While Mr. Spadaro testified that his organization stressed that participants respect the island as private property, several photographs introduced by Appellants show several people using the beach area beyond the Clickners’ fence.

Each individually named plaintiff recounted his or her life-long affmity for and interaction with the beach, each using it from long memory for recreational purposes, such as picnicking, mooring, sunbathing, and swimming. While many witnesses explained their historic use of the entire island, counsel clarified that Appellees were asserting a claim only to the dry sand portion of the beach. Several witnesses also described the extensive public use of the area during sununer months, estimating that approximately 75 to 100 persons would be on or around the beach on a given day. The testimony also made clear that the Dobbins Island was, and has always been uninhabited and undeveloped.

There was consistency amongst the witnesses’ answers to questions aimed at eliciting whether use of the island was adverse or by permission of the owner. The testimony revealed that the witnesses were never given individual permission to use Dobbins Island and that they
6
did not necessarily know who owned the island.3 Further, the witnesses did not think of themselves as trespassers but instead assumed the land was open for public use because it was common practice for members of the public to use the island for recreation and they did not see “no trespassing” signs on the property. In other words, they felt privileged to use the beach “because everyone else did.” The following testimony is illustrative of the testimony given by Appellees. Ms. Carol Auer, age 55, explained that she remembered using the beach with her family from the age of seven. She continued to use the island for recreation throughout her lifetime and testified that “it was a very popular place to go if you had a boat.” In response to questions on direct examination, she revealed:
Q. Did anyone ever give you permission to use the island?
A. No.
Q. And what was your understanding about the ownership of
the island, if you had an understanding.
A. I didn’t know who owned the island. Until Mr. Clickner
bought it I didn’t really know who owned the island.
In response to questions on cross-examination, she stated:
Q. So you generally understood that it was private property?
A. I understand it now. When I was a kid, no. I didn’t know
who owned it.
Q. Not as a kid but as an adult. I mean certainly you know it’s
not state park land, right?
A. I didn’t know what it was. I really had no idea. I didn’t

Footnote 3 Several witnesses testified that while they knew the island was private property, they did not know who owned the island, although some suspected it was the Dobbin family. Others, like as Mrs. Carol Auer, whose testimony is recounted herein, did not know whether the island was publicly or privately owned.
7
know if it was state-owned. 1 actually thought at one point it
might be. 1 had no idea.
Q. SO you didn’t bother to look into it.
A. No.
Q. Okay. You just would go out there and use the property?
A. That’s right.
Q. And you felt like your use was generally permitted by the
owner, didn’t you?
A. Yeah, 1 guess so. 1 mean 1 never thought about it. 1 never
thought about who owned it because it was something 1 had
done and had been done and had been publicly used forever.
For as long as I remember.
***
Q. And no one has identified themselves as an owner of the
property and asked you to modify your behavior, right?
A. No. No one ever has.
Q. Okay. But you generally felt that you were invited to the
island by whomever owned it.
A. No. 1 wouldn’t say that. 1 never thought that way. 1 never
felt that 1 had a personal invitation or that it was like–it was like
I didn’t–I never felt that way that I was invited. I thought–
Q. Okay. You felt like you were–
A. –I thought it was a proper thing to do. 1 didn’t think it was
improper to use the island.
Q. Okay. So you are going to stick with the generally accepted
as a permitted thing to do regardless of who owned it?
A. Yeah, I think that that’s fair.
Q. Well, do you see any use, any difference in your use of the
island and a trespasser of the island?
***
A. Let’s see. 1 think when 1 use the word trespasser 1 would
assume that the person who is trespassing is doing it and they
know they are doing something wrong. If that’s the term, if
that’s the way you are defming trespasser, no 1 don’t think 1
thought of myself as a trespasser on the island.

In addition to testimony, there was also documentary evidence offered in an attempt to establish whether use of the island’s beach was adverse to or by permission of the owner. Appellees introduced an excerpt from Chesapeake Bay Magazine’s 1997 “Guide to Cruising
8
[the] Chesapeake Bay” that described the island and, like the promotional materials given to Mr. Clickner, foreshadowed the issue that has arisen in this case: The island is very popular on summer weekends and can be a beehive of water-skiing activity. It attracts dozens of boaters, from locals in little runabouts who pull their vessels right up on its sandy beach to large sailboats and cabin cruisers that anchor out. Many times we have visited Dobbins, once climbing the steep trail to the wooded crest of the island and exploring its mysteries. But, aware that this was (and is) private land, we mostly anchored offshore, content to enjoy the beauty of its dark banks which formed a peaceful backdrop for the other boats which swung at anchor there. Boaters have used Dobbins Island for so long they think it falls in the realm of public property. It doesn’t. This uninhabited island is owned by the heirs of George W. Dobbins [sic], a Baltimore judge who bought it around 1840 for duck hunting. Along with nearby Little Island, it became a summer retreat for family and friends. The original family trust, made in 1908, does not permit the island to be sold. “No Trespassing” signs have been posted from time to time, but trespassers defiantly use them for building fires on the beach. Occasionally the caretaker on the mainland will motor over to Dobbins and ask people on the beach to respect the island as private property. (Emphasis added.).

Despite the contents of this excerpt, no witness admitted to seeing either a caretaker approach the beach, or “no trespassing” signs on the island prior to the signage put up by Mr. Clickner. Appellants introduced into evidence a Washington Post article about the controversy, published on July 18, 2006, entitled “Putting the Theory of ‘Good Fences’ to the Beach Test,” in which Mr. Spadaro was quoted as saying “[t]he Dobbins [sic] family was said to have allowed public use of the cove, and subsequent owners upheld that tradition.” Mr. Spadaro emphasized in his testimony that while he made this statement, he had never met the
9
Dobbin family. Appellants also introduced a book entitled “Over the Side,” written by Alan and Jessica Bond, which includes an acknowledgment on the inside cover thanking “Dobbins Island’s owner for generously allowing public use of the island.” At the conclusion of the hearing, the trial judge asked for written closing arguments from each party and held the matter sub curia.

In its closing argument, the Association alleged that an easement existed as a result of implied dedication, custom, prescription, and an expansion of the public trust doctrine. The trial judge issued a Memorandum Opinion and Order dated May 7, 2010. The judge held that the public had not gained an easement through either implied dedication, custom, or public trust, but ultimately that the public had, in fact, met the requirements necessary to establish a prescriptive easement.4

As to the adversity requirement, the court applied the general presumption of adverse use, and held that the Clickners had failed to meet their corresponding burden to prove that public use of the area was by permission. The trial court stated: Adverse use means use without license or penmssion. Additionally, showing a use by the public for twenty years generates a presumption that the use is adverse and of a legal origin. To rebut this presumption, a defendant must prove by affirmative evidence that the claimant’s use was by permission or by license. In the instant case, Plaintiff’s evidence, consisting of witness testimony and the photographs, convinces the Court that the beach on Dobbins Island has been used since 1963 and as early as the 1920′s, well over the statutory twenty years, by the public for the purposes of swimming, sunbathing, walking,

Footnote 4 As discussed, infra, in order to establish a prescriptive easement in Maryland a claimant must show an adverse, exclusive, and uninterrupted use of another’s real property for twenty years. Banks v. Pusey, 393 Md. 688, 699, 904 A.2d 448, 454 (2006).

10
picnicking, kayaking, boating, and as an anchorage. Some of the testimony showed that members of the public believed they could use the island but Defendant did not provide affirmative evidence that prior landowners gave permission or license to the public to use the beach. Defendant did not overcome this presumption by any showing that the prior landowners granted permission to the public to use the beach. (Footnote and internal quotations omitted.).

In order to allow for use of the newly recognized public easement, the trial court also ordered that the cables between the pilings creating the shoreline fence be removed. The Court also held that the location of the fence above mean high water could not be challenged because the location was approved by Anne Arundel County, and this approval was not appealed to the appropriate administrative body. Thus, the trial judge explained that the court would not consider the Association’s assertion that the pilings were incorrectly placed because the Association had failed to exhaust its administrative remedies.5

Accordingly, the Circuit Court issued an order, stating:
ORDERED, that the public has an easement by prescription to use the beach on Dobbins Island, from the mean high watermark to the vegetation line, to swim, sunbathe, walk, picnic, kayak, boat, and anchor; and it is further
ORDERED, that Defendants are to remove the rope, chain, or cable lines on the park style fencing that interferes with the public easement …. ”
The Clickners noted their appeal from this decision to the Court of Special Appeals on June 4, 2010. Prior to any proceedings in the intermediate appellate court, we issued a

Footnote 5 The propriety of this ruling is not before us, and we do not address it.
11
writ of certiorari, on our initiative. Clickner v. Magothy River Ass ‘n, Inc., 419 Md. 646, 20 A.3d 115 (2011). We now address the following questions, restated for clarity:
1. Did the trial court err in declaring that the public has a prescriptive easement to use the beach on Dobbins Island?
2. Did the trial court err in ordering the removal of a portion of the fence placed on the Dobbins Island beach?
We shall answer both questions in the affirmative and therefore reverse the judgment of the trial court.
I.
The case at issue was heard at a bench trial. Pursuant to Maryland Rule 8-131 (c), we shall apply the clearly erroneous standard of review to factual findings and review the decision for legal error.

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 opportwrity of the trial court to judge the credibility of the witnesses. Md. Rule 8-131(c). Accordingly, we give due regard to the trial court’s role as fact-finder and will not set aside factual findings unless they are clearly erroneous. State Security v. American General, 409 Md. 81, 110-111,972 A.2d 882,899 (2009); Banks v. Pusey, 393 Md. 688, 697, 904A.2d448, 453 (2006); $3,417.46 Us. Moneyv. Kinnamon, 326 Md. 141, 149,604 A.2d 64,67-68 (1992). “The appellate court must consider evidence produced at the trial in a light most favorable to the prevailing party and if substantial evidence was
12
presented to support the trial court’s detennination, it is not clearly erroneous and cannot be disturbed.” Ryan v. Thurston, 276 Md. 390, 392, 347 A.2d 834, 835-36 (1975) (citations omitted); $3,417.46 U.S. Money, 326 Md. at 149, 604 A.2d at 67. Questions of law, however, require our non-deferential review. State Security, 409 Md. at 111, 972 A.2d at 899; Banks, 393 Md. at 697,904 A.2d at 453-54. When the trial court’s decision “involves an interpretation and application of Maryland statutory and case law, our Court must detennine whether the lower court’s conclusions are legally correct …. ” White v. Pines Community Improvement Ass’n, Inc., 403 Md. 13,31,939 A.2d 165, 175 (2008) (quoting YIVO Inst.for Jewish Research v. Zaleski, 386 Md. 654, 662, 874A.2d411, 415-16 (2005)).

Where a case involves both issues of fact and questions of law, this Court will apply the appropriate standard to each issue. Dickerson v. Longoria, 414 Md. 419, 432, 995 A.2d 721, 730 (2010); see Diallo v. State, 413 Md. 678, 695, 994 A.2d 820,830 (2010). The issues presented in the instant case are legal questions as they involve the interpretation of Maryland case law regarding prescriptive easements and the application of that law to the facts. Therefore, we review the trial court’s judgment to determine whether there was legal error.

II.

Both parties recognize that the State of Maryland owns in public trust, for the benefit
13
of its citizens, the navigable wate~ of the Magothy River surrounding Dobbins Island and the subject beach up to the mean high water line. See Md. Code (1974, 1984 Rep1. Vol), §16-101(0) of the Environment Article ”’State wetlands’ means any land under the navigable waters of the State below the mean high tide, affected by the regular rise and fall of the tide.”); Anne Arundel County v. City of Annapolis, 352 Md. 117, 132-33,721 A.2d 217, 224 (1998) (“The navigable waterways within Maryland’s boundaries and the lands beneath them generally are ‘held’ by the State for the benefit of the inhabitants of Maryland.” (citations omitted»; Hirsch v. Md. Dep’t. of Nat. Resources, 288 Md. 95, 98-99, 416 A.2d 10,12 (1980); Dep ‘t of Natural Res. v. Ocean City, 274 Md. 1,5,332 A.2d 630,633 (1975); 2 Herbert T. Tiffany, The Law of Real Property § 660 at 698-99 (3d ed. 1939) (“Land bordering on the sea … or on a tidal river, and lying above ordinary low watermark, but below ordinary high watermark, is known as the [fore ]shore, and this, like the land beyond low watermark, belongs prima facie to the state … the theory being that it is land not capable of ordinary cultivation or occupation, and so is in the nature of unappropriated soil.”).

Therefore, the mean high water line marks the division between state and private ownership of the shoreline. Appellants admit that “a significant part of the historic public use of Dobbins Island is protected by the public trust doctrine. The public is guaranteed the right to anchor in the cove, swim in the waters, pull kayaks, canoes and other small boats onto the shore, and sit on the sandy beach that lies below mean high tide.”

Appellants also assert that

Footnote 6 ”Navigable water” has been defined by this Court as “water where the tide ebbs and flows.” Dep’t of Natural Res. v. Ocean City, 274 Md. 1,6,332 A.2d 630, 633 (1975).
14
“[P]hotographs taken after the Clickners installed a fence above mean high tide make abundantly clear that [a] large area of sandy beach remains open to public use.” Appellees disagree, however, and note that by definition, when the tide is high, the water of the Magothy extends to the Clickners’ pilings, leaving little or no visible sand below the fence and thereby precluding public use of the beach on Dobbins Island.
Accordingly, Appellees assert a right to use the area above mean high tide, the dry sand portion of the beach, currently fenced off by the Clickners. This area is not subsumed by the public trust doctrine, and has been privately owned since the original grant of the property. Thus, in order for the public to have a right to use and enjoy this portion of the beach, Appellees must demonstrate a property right in the form of an easement, a nonpossessory interest in the real property of another that can arise either by express grant or implication. Boucher v. Boyer, 301 Md. 679, 688, 484 A.2d 630, 635 (1984) (defining the term “easement”); see Dep ‘f of Natural Res. v. Ocean City, 274 Md. 1,5-6,332 A.2d 630, 633-34 (1975) (stating that the public trust doctrine ”protects the public in the use of the foreshore only … ” and that a public right to use the dry sand portion of the beach, therefore, “must fmd support elsewhere,” before considering various types of easements);9 Richard R. Powell, Powell on Real Property, § 65.11 [3] at 190 (Michael Allan Wolf ed., 2011 )(“The general rule appears to be that the public right of access pertains only to the area below the mean high watermark or seaward of the ‘dry sand,’ unless the public has acquired the right of access across the private land.”).

The Association alleged in the trial court that a public easement was impliedly created under the theories of prescription, dedication, custom, and
15
public trust. From these theories, the trial court held that the Appellees had only established an easement by prescription, a conclusion which Appellants challenge before this Court.

The parties dispute at the outset whether Maryland law allows for a public easement to be established on a beach located along an inland waterway.7 Appellants, relying on Thomas v. Ford, 63 Md. 346 (1885), argue that “[the public] may not acquire prescriptive rights in the land of another located along a navigable river.” This early case involved an action for trespass, wherein the plaintiff alleged that the defendant had deprived him of his right to use and enjoy his property located along the shore of the Patuxent River by encumbering the land with a large quantity of wood. Thomas, 63 Md. at 349. The defendant argued that he had not trespassed because the public had acquired a prescriptive easement over the land, as the property had been used for many years by the general population for shipping wood and other freight, a use that was known, but not objected to by the owner. Thomas, 63 Md. at 351.

The Thomas Court explained:
It is certainly a settled doctrine in this State that public roads or
ways of any kind can only be established by public authority, or
by dedication, or by long user by the public, which, though not
strictly prescription, yet bears so close an analogy to it that it is
not inappropriate to apply to the right thus acquired the term
prescriptive. Hence the existence of a public way may be
established by evidence of an uninterrupted user by the public
for twenty years; the presumption being that such long

Footnote 7 This issue has been the subject of litigation in other jurisdictions, as reflected in Jon W. Bruce and James W. Ely, Jr, The Law of Easements and Licenses in Land § 5:27 at 93 & n.l (2011)(hereinafter Law of Easements) (“A current controversy involves claimed public prescriptive easements to use privately owned beaches or lakefronts for recreational purposes.”).
16
continued use and enjoyment by the public of such way had a legal rather than an illegal origin. Thomas, 63 Md. at 352 (citing Day v. Allender, 22 Md. 511 (1865)). The Court then identified the question presented as: “[W]hether, at the common law, this principle of presumptive dedication, or quasi prescription, [8] does or can properly apply to give rise to a

Footnote 8 The Thomas Court’s use of the term “quasi prescription” reflects its adherence to the “lost grant” theory of prescriptive easements, prominent at the time of the decision, which relied on a legal fiction that an actual grant was conferred on the claimant but was somehow “lost.” Under this theory, the “public” was not able to gain prescriptive rights as it was deemed too amorphous a grantee to feasibly receive a deed. See Law of Easements § 5 :25 at 86 (“It is conceptually difficult to justify the acquisition of prescriptive easements by the general public under … the lost grant theory . . .. The lost grant theory presupposes a definite grantee, and courts have long held that the public is too large and uncertain a group to receive a grant.”). The Thomas Court implicitly recognized the doctrine when it relied upon the New York case of Pearsall v. Post, 20 Wend. 111 (N.Y. Sup. Ct. 1838), ajJ’d, 22 Wend. 425 (N.Y. 1839) and explained that the use presented in that case “could not be urged by the public … as the foundation of a legal presumption of a grant, and thus justify a claim by prescription …. ” Thomas, 63 Md. at 353 (emphasis added). The “lost grant” theory no longer guides our consideration of prescriptive easements, and is therefore no longer a bar to the acquisition of public prescriptive rights, as such. See Dep ‘t of Natural Res. v. Ocean City, 274 Md. 1, 9, 332 A.2d 630, 635 (1975); Garrett v. Gray, 258 Md. 363, 376-77, 266 A.2d 21,27 (1970) (noting with approval, after quoting from Thomas v. Ford, a law review article ”wherein the author notes that the tendency in modem decisions is to disregard the fiction of the lost grant and to develop a more positive, simpler and direct approach by analogizing adverse user with the application of the [s ]tatute of [l]imitations” (citation omitted)); Law of Easements § 5:25 at 87 (“[T]he trend of modem cases is to recognize that the public may acquire prescriptive easements.”); James J. Nolan, Jr., Recent Development, Department of Natural Resources v. Mayor and Council of Ocean City, 274 Md. 1, 332 A.2d 630 (1975), 5 U. BaIt. L. Rev. 349, 368 n.126 (1976) (“Some courts … have doubted that the public can acquire an easement by prescription, because the general public, as such, cannot be the beneficiary of the fictional “lost grant.” But this obsolete theoretical impediment has not prevented a majority of jurisdictions from allowing the public acquisition of easements by prescription. Maryland counts itself among that majority.” (internal citations omitted)).
17
right in the general public to use the land of another on a navigable river as a landing-place and place of deposit of wood and other articles of property for an indefinite time.” Thomas, 63 Md. at 352 (emphasis in original). The Thomas Court provided two rationales for its holding that no prescriptive easement had been established under its facts. Each party in the instant case touts one of the rationales as being the sine qua non of the Thomas Court’s position. The first, relied on by Appellees as a factual distinction, is that this Court in Thomas emphasized that the nature of the use at issue functioned more like an acquisition of title than a public prescriptive right.

By contrast, Appellees argue that the public’s recreational pursuits on Dobbins Island were more transient in nature, and therefore are not uses controlled by the following rationale, as stated by the Thomas Court:
Indeed, the very nature of the user set up in this case as evidence
of the prescriptive right in, or dedication to, the public renders
it quite out of the question that such right could, upon principle,
exist in the public generally. From the very nature of the user
relied on it must be confined to but [a] few individuals, and this
negatives the idea of the existence of the right in the general
public. Instead of the right being of a mere easement or
servitude, without profit in the soil, and open to the enjoyment
of all alike, it would be an exclusive appropriation of the actual
use of the soil to the first occupier or depositor of wood or other
articles, without limit as to the extent or duration of time. The
claim here set up is the right in the general public to deposit and
cord wood upon the plaintiff’s land [ac]quired by user merely.
This, of course, must be confmed to a dermed or limited space.
If the right were established, each individual member of the
public could not enjoy it, for the first occupier would have the
right to appropriate the entire space to himself, and no one could
question his right in so doing. While he remained in possession
all the rest of the public would be excluded; and there would be
18
no mode of determining the question as to the extent of the
ground that might be appropriated, or the duration of time that
it could be occupied. It might, indeed, be so occupied for an
indefinite duration of time. And as was said by the court in the
case of Cortel[you] v. Van Brun[d]t, supra, [2 Johns. 357 (N.Y.
Sup. Ct. 1807)] such user rather denotes title, and the right of
exclusive enjoyment, than the enjoyment of a mere public
easement; and the right to such user by the public cannot be
acquired by prescription.
Thomas, 63 Md. at 353-54 (second emphasis added).9

Indeed, because the Court contrasted exclusive appropriation, which could not give rise to public prescriptive rights, with the “enjoyment of a mere public easement,” it suggested that the latter could exist under appropriate circumstances. The second rationale explained in Thomas, and relied on by the Clickners in the instant case, is the Court’s following admonition:
[C]onsidering the great extent of shore lines within our State,
and the long and uniform indulgence extended by the proprietors
of those shores to those who have had occasion to use them for
purposes connected with water transportation or fishing, a
decision which should admit the possibility of turning such

Footnote 9 The two cases discussed within the Thomas opinion, both support the proposition that the exclusive appropriation of a landing is inconsistent with the existence of a public easement. In Post v. Pearsall, 22 Wend. 425 (N.Y. 1839), New York’s highest court of contemporary record held that the public had no right to use private property adjoining navigable water as a public landing and place of deposit. Also, in Cortelyou v. Van Brundt, 2 Johns. 357 (N.Y. Sup. Ct. 1807), the defendant in a trespass action argued that because he had the right to fish in the navigable waters, he could erect a hut on the shore to
accommodate fishermen during the fishing season. The plaintiff argued that “[t]he right of erecting a hut, being an exclusive appropriation, can only be established by grant,” and the court agreed, ruling: “P]rescription [will not] in any case, give a right to erect a building on another’s land. This is a mark of title and of exclusive enjoyment, and it cannot be acquired by prescription.” Cortelyou, 2 Johns. at 361-62.
19
permissive enjoyment into [a] prescriptive and absolute right on the part of the public would open a field of litigation which no community could endure. And what is still worse in a moral point of view, it would be perverting neighborhood forbearance and kind indulgence to the destruction of important rights. Consequently, if it be once understood that this permissive indulgence of the proprietors of the shores may be construed into irrevocable privileges, restrictions and hindrances will inevitably follow, to avoid the possibility of such permissive use maturing into public adverse rights. The production of any such consequence surely ought not to be desired by anyone. Thomas, 63 Md. at 354-55 (citation omitted).

Appellants assert that this language represents a public policy bar to prescriptive easements along the shores of Maryland’s inland waterways. This admonition in Thomas, however, rather than being a bar to prescription, merely reflects our jurisprudence that mere “permissive indulgences” cannot ripen into adverse rights, Cox v. Forrest, 60 Md. 74, 79-80 (1883), and suggests a rationale behind the presumption of permission that, as discussed infra, often attaches to the use ofland that is unimproved or “in a general state of nature.” Wilson v. Waters, 192 Md. 221, 228, 64 A.2d 135, 138 (1949).

This understanding of Thomas is informed by our decision in Department of Natural Resources v. Ocean City, 274 Md. 1, 332 A.2d 630 (1975), in which we noted that a prescriptive easement could be acquired by the public on privately held littoral property above mean high tide under appropriate circumstances. The opinion began: “This case raises for the first time the extent of the rights which neighboring owners and members of the public may respectively have in the littoral at Ocean City, Maryland – that land portion of the beach which lies west of the Atlantic Ocean’s mean high tide line …. ” As we stated,
20
the issue of public beach access was precipitated in the 1970′s “as a result of an expanding population and a limited amount of shore line.” Ocean City, 274 Md. at 6, 332 A.2d at 634.

The case presented an action to enjoin the construction of a condominium complex on an ocean front tract, with opponents of construction including the Maryland Department of Natural Resources as an intervening plaintiff. The plaintiffs argued that the public had acquired an easement over the dry sand portion of the beach, advancing various theories. In considering their claim of public prescriptive rights to the area, it was clear to the Court that the tract had been in use for less than twenty years following a storm that had changed its topography, and therefore any such use as there may have been after the storm failed to meet the requisite prescriptive period. Ocean City, 274 Md. at 7-9, 332 A.2d at 634-35. The Court stated, however, that “the law would support the petitioners [in gaining a prescriptive easement] if the necessary facts were available.” Ocean City, 274 Md. at 9,332 A.2d at 635 (citation omitted).

For our purposes it is paramount to note that in its discussion of public prescriptive rights, the Court in Ocean City explicitly acknowledged the Thomas decision, quoted its description of the doctrine allowing for public prescriptive rights onroadways, and extended it to dry sand littoral property. Ocean City, 274 Md. at 9,332 A.2d at 635. That case therefore represents Maryland’s common law approach to the controversy presented in several states regarding public prescriptive rights for recreation on privately owned, dry sand portions of beaches.10

Footnote 10 Several other states have held, based on the historical reticence to recognize (continued … )
21
Appellants rely on Judge Eldridge’s dissent in Ocean City to fashion a distinction between inland and ocean beaches. This distinction allows Appellants to argue that Thomas v. Ford is still viable precedent which, under Appellants’ interpretation, forbids public prescriptive rights on inland beaches despite the majority’s holding in Ocean City. Judge Eldridge’s dissent in Ocean City focused, however, not on prescriptive rights, but on the majority’s denial of an easement by implied dedication.

While the majority, in Ocean City, concluded that a clear and unequivocal manifestation of an intent to dedicate was required in order for the Court to fmd an easement by implied dedication, Judge Eldridge suggested that ”there are few hard and fast rules with respect to implied dedication under Maryland law, and each situation must be viewed in light of its own peculiar circumstances.” Ocean City, 274 Md. at 19, 332 A.2d at 641 (Eldridge, J., dissenting). Judge Eldridge urged that “a landowner’s intent to dedicate his land to public use may be presumed from acts or conduct which estop him from denying the public’s right.”

(Footnote 10 continued) prescriptive rights in the public, that the public cannot obtain prescriptive rights for recreation on beaches. Law of Easements § 5:27 at 94; see e.g., State ex reI. Haman v. Fox, 594 P.2d 1093, 1098-99 (Idaho 1979) (referencing lost grant theory and holding that the public could not obtain prescriptive easement on lakefront beach property absent statutory authority); Ivons-Nispel, Inc. v. Lowe, 200 N.E.2d 282, 283 (Mass. 1964) (“We are of [the] opinion that ‘persons of the local community’ and the ‘general public’ are too broad a group to acquire by prescription an easement to use private beaches for bathing and for recreational purposes.”). Maryland, however, following the trend of modem cases, has recognized that the public may acquire such prescriptive rights. Law of Easements § 5 :27 at 94-95 (“Still, some modem courts have either found prescriptive public rights to use beaches or are willing to recognize the possibility that such rights could be established.” (citing inter alia, Ocean City, 274 Md. 1,332 A.2d 630)).
22
Ocean City, 274 Md. at 16, 332 A.2d at 639 (Eldridge, J., dissenting) (citing McCormich v. Baltimore, 45 Md. 512, 523 (1877)).

Further, he expounded:
Because the Atlantic Ocean beach is a unique geographic
phenomenon, because it is such a limited resource of the State
of Maryland, and because the public involvement in it has been
of a different character than that associated with other types of
land, the result I would reach in this case is not at all
inconsistent with prior Maryland law involving the issue of
implied dedication of the shore.

Ocean City, 274 Md. at 22,332 A.2d at 642 (Eldridge, J., dissenting) (emphasis added).

Judge Eldridge then discussed Thomas v. Ford, noting his agreement with the Thomas Court’s holding that “merely permitting the public to use the shore for boating, swimming or fishing should not in itself give rise to an easement.” Ocean City, 274 Md. at 22-23,332 A.2d at 643 (Eldridge, J., dissenting). He then continued to compare inland beaches and ocean beaches saying:
However, as pointed out above, the ocean beach presents an
entirely different matter. While Maryland’s inland tidal
shoreline measures over three thousand miles, its ocean
shoreline is only thirty-five miles long. To recapitulate, from
the time of the Charter of Maryland on, the ocean beach has had
a unique status. Not only have the landowners acquiesced in the
public’s use of the beach, but they have accepted government
services, protections and regulations with respect to the beach
which are of a totally different character than the government
services, protections and regulations provided for other types of
privately owned land. Plats have consistently shown an area to
be dedicated as “beach.” The public and property owners of the
State well understand that use of other types of land for
recreational activities does not effect a dedication to the public.
This is in stark contrast to the common understanding that the
23
beach at Ocean City is a public beach.

Ocean City, 274 Md. at 23-24, 332 A.2d at 643 (Eldridge, J., dissenting) (emphasis added).

Based on the factors emphasized, it is evident that Judge Eldridge was comparing ocean and inland beaches solely in the context of implied dedication, rather than prescription. Indeed, he concluded by stating that the facts presented “compel[ ed] the conclusion that the dry sand beach at the front of respondent landowner’s lots [was] dedicated to recreational use by the general public.” Ocean City, 274 Md. at 24, 332 A.2d at 643 (Eldridge, J., dissenting) (emphasis added). It is clear, therefore, that Judge Eldridge’s dissent makes no reference to, and does not bolster Appellants’ argument that Thomas v. Ford proscribes prescriptive rights along inland shores.

Appellants, in the instant case, assert that the trial court relied almost exclusively on Ocean City, while “giving Thomas short shrift.” It is clear to us, however, that the trial judge thoughtfully considered Thomas v. Ford and dismissed its relevance based both on factual distinctions with the instant case and in light of Ocean City, stating:
[The Clickners] argue that Thomas is controlling in this matter.
This Court does not agree as the facts in Thomas as
distinguishable. Thomas addressed the public right to store
wood and other articles-in-shipment on the shoreline of
another’s property for an indefinite period of time, which
equates to an exclusive appropriation of actual use by the first
occupier. Here, the alleged public use is for swimming,
sunbathing, walking, picnicking, kayaking, boating, and
anchorage. These are more transient uses, different from uses
that equate to the indefinite appropriation of soil by the first
occupier. Additionally, Department of Natural Resources [v.
Ocean City], which the Court of Appeals decided in 1974, held
that the public did not have a prescriptive easement to use the
24
shoreline because the plaintiffs failed to show that the alleged
use existed for longer than a twenty-year period. See Dep ‘t of
Nat. Res. v. Ocean City, 271 Md. 1 (1975). If Thomas barred
the courts from recognizing any public right to the use of a
shoreline on a navigable waterway via prescriptive easement,
there would have been no need to assess the merits of the
prescriptive easement claim.

We agree with this assessment. In sum, rather than being a bar to prescriptive easements along the shores of inland waterways, Thomas reflects this Court’s jurisprudence that, as a general rule, permissive use of another’s land cannot ripen into an adverse right. Kirby v. Hook, 347 Md. 380, 393, 701 A.2d 397, 404 (1997); Cox v. Forrest, 60 Md. 74, 79-80 (1883). Thomas also suggests a rationale underlying the presumption of permissive use that, as discussed infra, often attaches to the use ofland that is unimproved or “in a general state of nature.” Wilson v. Waters, 192 Md. 221, 228, 64 A.2d 135, 138 (1949).

Even assuming, arguendo, that Thomas could be construed to have raised a policy bar to public prescriptive easements along the shoreline, that precedent was modified by this Court’s decision in Department of Natural Resources v. Ocean City. We see no meaningful distinction between ocean and inland beaches sufficient to allow public prescriptive rights to accrue on one type of beach and not the other. To the contrary, just as the ownership of all navigable waterways and their foreshores is governed by the public trust doctrine, the dry sand portions of the attached beaches should be subjectto the same principles of prescription without distinction as to the character of the water hitting the sand.
III.
25
Because we have held, supra, that a prescriptive easement may be acquired by the public along inland shores, we must now analyze whether the elements have been satisfied in the instant case. “In order to establish an easement by prescription a person must make an adverse, exclusive, and uninterrupted use of another’s real property for twenty years.” Banks v. Pusey, 393 Md. 688, 699, 904 A.2d 448,454 (2006); accord, Kirby v. Hook, 347 Md. 380, 392, 701 A.2d 397, 403 (1997); Shuggars v. Brake, 248 Md. 38,45,234 A.2d 752, 757 (1967); Condry v. Laurie, 184 Md. 317, 321,41 A.2d 66,68 (1945); Cox v. Forrest, 60 Md. 74, 79 (1883).

The elements necessary to establish a prescriptive easement in the public are generally the same, however, as explained infra, the element of exclusivity necessarily functions differently in the context of public use. See Mt. Sinai Nursing Home, Inc. v. Pleasant Manor Corp., 254 Md. 1, 5-6, 253 A.2d 915, 917-18 (1969)(noting plaintiffs’ argument that “continuous adverse, hostile travel over private land by the public for more than twenty years brings into being a public easement,” and responding, “although the law [plaintiffs] … cite would support their right to prevail, they lack the facts to do so.”); Ocean City, 274 Md. at 9,332 A.2d at 635 (noting that “[a]s was the case in Mt. Sinai . .. the law would support the [public] if the necessary facts were available”); Garrett v. Gray, 258 Md. 363,375-78,266 A.2d 21,26-28 (1970)(analyzing adversity as an element in a claim for a public easement); Easter v. Overlea Land Co., 129 Md. 627, 632, 99 A. 893, 896 (1917) (“The permissive user of the road by [defendant's] neighbors did not make it a public road, for user by license or permission is not adverse, and in order to establish a public way by prescription the user must be adverse.”); Washington Land Co. v. Potomac Ridge Dev. Corp.,

26

137 Md. App. 33, 55-59, 767 A.2d891, 903-05 (2001)(analyzingthe elements of exclusivity and adversity in considering a claimed public utility easement). In asserting prescriptive rights, “[t]he burden of proof is on the claimant of the use to show that it has had the character and is of the duration required by the law.” Dalton v. Real Estate & Improvement Co. of Baltimore City, 201 Md. 34, 41, 92 A.2d 585, 588 (1952) (citations omitted).

Continuous public use of the beach on Dobbins Island for the statutory period is uncontested in the instant case, however, Appellants contend that the trial judge erred in determining that the use was both adverse and exclusive.11 We

Footnote 11 As to exclusivity, this Court made clear in Cox v. Forrest that, in the context of prescriptive easements:By exclusive, the law does not mean that the right of way must be used by one person only, because two or more persons may be entitled to the use of the same way, but simply that the right should not depend for its enjoyment upon a similar right in others, and that the party claiming it exercises it under some claim existing in his favor, independent of all others. It must be exclusive as against the right of the community at large. Cox, 60 Md. at 80 (emphasis in original); accord Wilson, 192 Md. at 226,64 A.2d at l37; Shuggars v. Brake, 248 Md. 38,45,234 A.2d 752, 757 (1967) (“Even though a claimant may not have been the only user, it is sufficient if he used the way under a claim of right independently of others.” (citation omitted». Therefore, a claimant’s use of the property may exist along with the owner’s and does not negate a prescriptive easement as long as it is not subordinate to or dependent upon the owner’s use. See Lichtenberg v. Sachs, 200 Md. 145, 154-55,88 A.2d 450,454 (1952) (agreeing with the trial court’s assessment that plaintiffs use of a road was exclusive even though the defendant owners also used part of the road).

An individual’s use of property in conjunction with the general public, however, cannot support a private prescriptive right, unless the individual proves that his or her use was under an individual claim of right. Gray v. Shell Realty Corp., 219 Md. 531, 534, 150 A.2d 255, 256 (1959) (“[Plaintiffs'] claim is that it was enjoyed in common with others, and this is not enough to establish their private right thereto, appurtenant to their land.” (emphasis added)).
(continued … )
27
“( … continued)  In the context of a public easement, however, the standard of exclusivity is necessarily different. See Day v. Allender, 22 Md. 511, 529 (1865) (“If the proof is of a use common to all others as well as to the party claiming the way, it does not establish a private way … the facts relied on would have justified the finding of a public way … by prescription … but not a grant to the appellant individually.” (emphasis added) (internal citations omitted». In the instant case, in considering the element of exclusivity, the trial judge stated:

Generally, to establish a personal easement by prescription the
use must have been exclusive …. However, the standard with
respect to a public easement requires that “all persons must have
an equal right to the use and that it must be in common, upon the
same tenns, however few the number who avail themselves to
it.” Garret[t] v. Gray, 258 Md. 363, 378 (1970). Here, there is
ample evidence showing the common use of the beach by the
public at large.

We agree with the trial judge’s analysis. This Court in Garrett v. Gray, 258 Md. 363,266 A.2d 21 (1970) considered the alleged public acquisition of a road, and although we cited case law establishing the “familiar principle” that establishing prescriptive rights requires proof of “an adverse, exclusive and uninterrupted use” for the statutory period, we did not analyze the exclusivity requirement under the facts. Garrett, 258 Md. at 375-78,266 A.2d at 26-28. We noted only that:

Public use requires that all persons must have an equal right to
the use and that it must be in common, upon the same terms,
however few the number who avail themselves of it. The law is
well settled that a public road is a public highway regardless of
the number of people who use it if everyone who desires may
lawfully use it, as it is the right of public travel and not the
exercise of the right which constitutes a road a public highway.

Garrett, 258 Md. at 378, 266 A.2d at 28 (quotation and internal citation omitted).

Notwithstanding, we find this statement to be instructive on the subject, as public rights to a highway or a beach, by defmition, are enjoyed by the public at large. Therefore, the exclusivity requirement discussed by this Court in Cox v. Forrest subsequent case law refer to the personal acquisition of easements, and the requirement must be interpreted differently in the context of public easements. See Easter v. Overlea Land Co., 129 Md. 627, 632, 99 A. 893, 896 (1917) (“The user relied on to establish the way must also be a user by the public
(continued … )

28

agree with Appellants that the use was not adverse, and we reverse on that basis. This Court explained adverse use in the context of prescriptive easements in the early case of Cox v. Forrest, 60 Md. 74 (1883), stating:

By adverse is meant a user, without license or
permission, for an adverse right of an easement cannot grow out
of a mere permissive enjoyment, the real point of distinction
being between a permissive or tolerated user, and one which is
claimed as a matter of right. Where one, however, has used a
right of way for twenty years unexplained, it is but fair to
presume the user is under a claim of right, unless it appears to
have been by permission. In other words, the use of a way over
the lands of another whenever one sees fit, and without asking
leave, is an adverse use, and the burden is upon the owner of the
land, to show that the use of the way was by license or contract
inconsistent with a claim of right.

Cox, 60 Md. at 79-80 (emphasis in original) (citations omitted); Banks v. Pusey, 393 Md. 688,701-02 & n.7, 904A.2d448, 455-56 & n.7 (2006) (“All of Maryland’s cases concerning prescriptive easements … appear to be the progeny of Cox …. ” (internal citations omitted.))

Appellants argue that the public use of the beach on Dobbins Island was permissive and therefore the conclusion that a prescriptive easement existed in this case was in error, as an adverse use cannot develop from a “mere permissive enjoyment.” A use is adverse if it occurs without license or permission. Kirby, 347 Md at 392, 701

Footnote 11 (continued)
generally, that is by all who have occasion to use the road.”).  The use need not be exclusive to the individual, but exclusive to the public as a whole in the sense that the public used the property in common under a claim of right, without seeking permission from the owner or otherwise subordinating its use to the owner’s will. Indeed, in the instant case, each witness testified that they were claiming a right to use the beach for the general public, not solely on behalf of the Association or themselves as individuals.
29
A.2d at 403; Condry, 184 Md. at 321,41 A.2d at 68. “As a genera1 ru1e, permissive use can never ripen into a prescriptive easement.” Kirby, 347 Md. at 393,701 A.2d at 404 (Citation omitted). As explained in Cox, when a person has used a right of way openly, continuously, and without explanation for twenty years, it is presumed that the use has been adverse under a claim of right. Cox, 60 Md. at 79-80; Banks, 393 Md. at 698-99, 904 A.2d at 454; Condry, 184 Md. at 321, 41 A.2d at 68. The burden then shifts to the landowner to prove that the use was, in fact, permissive. Cox, 60 Md. at 80. There are circumstances, however, where the
presumption is reversed, and the burden falls on the claimant to demonstrate that the use was under a claim of right. See Banks, 393 Md. at 712-13, 904 A.2d at 463 (“[W]here an individual resides on his parents’ property from the time he or she is a minor, his or her use of the property shall be deemed permissive absent any amnnative evidence of a change in circumstances to adverse use.”).

In the instant case, as explained infra, the public’s use of the beach on Dobbins Island was presumptively permissive and the trial judge should properly have placed the burden on the Association to demonstrate that such use was, in fact, adverse.

When an easement is claimed on land that is unimproved or in a general state of nature, there is a legal presumption that the use is by permission ofthe owner. This Court first referenced the so-called “woodlands exception” to the general presumption of adverse use in Day v. Allender, 22 Md. 511 (1865). Although the Court’s focus was on the public dedication of a roadway, we also discussed prescriptive rights and noted a case in which the jury was instructed that ”the mere use of a road over unenclosed woodland could not confer
30
a right of way, as a neighborhood road or private path, unless the use was shown to be adverse …. ” Day, 22 Md. at 526 (emphasis in original) (citation omitted). In Day we also stated that:
As the presumption of a right of way arises from the exercise of
a privilege adverse to the right of property [ownership] … a
distinction must therefore be observed between a claim of a way
through enclosed and cultivated land, and of a way over
unenclosed land. In the former case, the mere use is an invasion
of property and a trespass; and acquiescence or submission to
the exercise of a privilege under circumstances which make it
actionable, may justify the inference of a legal right in the
person who exercises the privilege.
Day, 22 Md. at 526-27 (quotation omitted).

This Court further explicated the doctrine in Wilson v. Waters, 192 Md. 221, 64 A.2d 135 (1949). We said:

It is true that some courts have ruled that the fact that land, over
which a right of way is claimed, was “unenclosed” raises a
presumption that the use was permissive. By that ruling,
however, the courts have occasionally been misled to establish
easements over vacant lots in urban districts, although the lots
had been cleared and cared for. Thus it seems that the more
appropriate term in such cases is ”unimproved.”
Wilson, 192 Md. at 228, 64 A.2d at 138 (citation omitted).

We explained in Wilson that because the lot in question was only 150 feet deep that the case was “not exactly like those
cases in which the land over which the right of way is claimed is wild land, woodland, or other land in a general state of nature.” Wilson, 192 Md. at 228, 64 A.2d at 138.  We recognized, however, that “[i]n such cases it may be presumed that use of the land is permissive, because it is the custom of neighboring owners to travel over such land for

31

pleasure or convenience, and the owners usually make no objection to their doing so.”

Wilson, 192 Md. at 228,64 A.2d at 138; see Feldstein v. Segall, 198 Md. 285,295,81 A.2d 610, 615 (1951) (referencing the presumption of permissive use for unenclosed or unimproved land set out in Wilson v. Waters).  In Leekley v. Dewing, 217 Md. 54, 141 A.2d 696 (1958), we recognized the defendant’s argument that in accordance with Wilson and Feldstein, “no presumption that the use was adverse arises when the way is over wild or unoccupied land.” Leekley, 217 Md. at 59, 141 A.2d at 698.

We explained:

This has been said to be because it was the custom of neighbors
to travel over such land for pleasure or convenience and the
owners usually made no objection to their doing so, or because
the use in wild, unoccupied territory would not be apt to be
brought to the actual notice of the owner so that he could object.
Id.

Ultimately, we held, under the facts presented, that the road involved did not fall into the category of “wild or unoccupied territory,” as it “ran from a main public road and was clearly and manifestly a regularly traveled way that ran for much of the time to a clearing on which stood an inhabited dwelling which was visible from the main road.” Leekley, 217 Md. at 59,
141 A.2d at 698-99.

In Forrester v. Kiler, 98 Md. App. 481, 633 A.2d 913 (1993), the intermediate appellate court applied the woodlands exception to the use of a right of way through an area it described as “wooded, unenclosed land,” that connected two parcels of property.   Forrester, 98 Md. App. at 487, 633 A.2d at 916; see Turner v. Bouchard_ Md. App. __ (2011) (No. 1573, September Term, 2010) (filed, Dec. 2, 2011) (noting that “[t]he servient estate in

32

Forrester was nearly a quarter mile from the nearest county road and consisted of eight acres of … dense forest in a general state of nature …. “). In its analysis, the Forrester court aptly noted that:

Many of our sister states have recognized that an exception to the
presumption exists when [the] property in controversy consists
of unenclosed and unimproved wild lands or woodlands. Thus,
when unenclosed and unimproved wildlands or woodlands are
involved., the presumption is that the use was permissive, and the
burden of proving that the use was adverse or under a claim of
right is upon the one asserting these rights.

Forrester, 98 Md. App. at 485, 633 A.2d at 915 (citations omitted); see 4 RichardR. Powell, Powell on Real Property, § 34.10[2][c] at 97-99 & n.23 (Michael Allan Wolf ed., 2011) (citing numerous cases from other jurisdictions that applied a presumption of permissive use to land which was “open, unenclosed, and unimproved”).

The court explained the rationale behind the presumption, stating:

[I]n the case of unenclosed woodlands, permission is presumed
because, otherwise, [a]n owner could not allow his neighbor to
pass and repass over a trail, upon his open, unenclosed land
without danger of having an adverse title successfully set against
him. Moreover, [a ] landowner who quietly acquiesces in the use
of a path, or road, across his uncultivated land, resulting in no
injury to him, but in great convenience to his neighbor, ought not
to have thereby lost his rights.

Forrester, 98 Md. App. at 485, 633 A.2d at 915 (internal quotations omitted).

In reaching its holding, the intermediate appellate court noted that the repeated reference to the so-called woodlands exception by the Court of Appeals, signaled its relevance as this Court “would not have discussed the exception so thoroughly if it were not the law.” Forrester, 98 Md. at 485-33 87, 633 A.2d at 915-16 (noting that” Wilson and Leekley both recognized that, in determining whether a prescriptive easement exists, pennission will be presumed in the case of wooded, unenclosed land.”).

In the instant case, we are presented with the question of whether the beach on Dobbins Island is property subject to the woodlands exception.  Under this exception, the long history of public use of the beach would be considered to have been presumptively permissive under the law. Particularly relevant to our inquiry is this Court’s decision in Department of Natural Resources v. Cropper, 274 Md. 25, 332 A.2d 644 (1975), a companion case to Department of Natural Resources v. Ocean City, 274 Md. 1, 332 A.2d 630.

Like its companion case, Department of Natural Resources v. Cropper also involved a claimed public prescriptive right to the dry sand portion of an Ocean City beach. In that case, we affirmed the trial court’s judgment that the evidence failed to demonstrate “a continuous and uninterrupted adverse use by the general public for a period of20 years,” but that it merely established “a miscellaneous and promiscuous use of land in a general state of nature.” Dep ‘t of Natural Res. v. Cropper, 274 Md. at 28, 332 A.2d at 646 (emphasis added) (noting that the trial court cited Feldstein v. Segall, Wilson v. Waters, and Thomas v. Ford, each of which we discussed supra, in the instant case, to support its decision)).

We consider the Cropper case to be instructive in our determination that the beach on Dobbins Island is properly characterized as being “in a general state of nature.” See Cropper, 274 Md. at 28, 332 A.2d at 646; Wilson, 192 Md. at 228, 64 A.2d at 138. We do not hold that this is the applicable characterization of every beach, but that the consideration of other
34
factors, such as the nature of the surrounding area, should enter into the determination.  See Leekley, 217 Md. at 59, 141 A.2d at 698 (“Some courts have held that the scope of this doctrine does not extend to unenclosed woodland[ s 1 forming part of a plantation or to a road passing near a barn or a residence." (citation omitted)). It is undisputed that the beach at issue is attached to an uninhabited, uncultivated, and undeveloped island.  Indeed, the witnesses described the island they frequented with adjectives such as "overgrown," "uninhabited," and ''unimproved.''

Appellees argue that the woodlands exception should not apply because it is only relevant to interior rights of way that are not easily observable. By contrast, they contend that because the public's beach activities on Dobbins Island are locally well-known and unhldden, the general presumption of adversity should control. This argument, however, ignores the development of case law in this Court which has focused not only on whether the land use was shielded from view, but whether the land itself was ''unimproved,'' or "in a general state of nature." Cropper, 274 Md. at 28,332 A.2d at 646; Wilson, 192 Md. at 228,64 A.2d at 138.

The visibility of the use is one rationale which guided the common-law development of the woodlands exception. Leekley, 217 Md. at 59,141 A.2d at 698. Anotherrationale, of particular importance in the instant case, is that owners of unimproved lands ordinarily suffer no deprivation of their rights of use and enjoyment by allowing others access to their property. See Leekley, 217 Md. at 59,141 A.2d at 698 (noting that the exception arose "because it was the custom of neighbors to travel over such land for pleasure or convenience and the owners usually made no objection to their doing so .... "); Forrester, 98 Md. App. at 485, 633 A.2d
35
at 915 ("[A] landowner who quietly acquiesces in the use of a path, or road, across his uncultivated land, resulting in no injury to him, but in great convenience to his neighbor, ought not to have thereby lost his rights.” (quotation omitted)); Town of Manchester v. Augusta Country Club, 477 A.2d 1124, 1130 (Me. 1984) (“[The exception] is predicated on the notion that [recreational] use by the general public is consistent with, and in no way diminishes, the rights of the owner in his land”); Spiegle v. Beach Haven, 281 A.2d 377, 382 (N.J. Super. Ct. App. Div. 1971) (holding that use of unimproved land in a general state of nature “is presumably pennissive if there has been no actual deprivation of any beneficial use to the owner”); State ex reI. Shorett v. Blue Ridge Club, 156 P.2d 667,671 (Wash. 1945) (noting that the public use of wild, uncultivated land is presumed to be permissive because “it [does] not in any way interfere with the owner’s use,” and therefore ”the owner has no reason for excluding the public from the land”); Daniel A. Degnan, Public Rights in Ocean Beaches: A Theory of Prescription, 24 Syracuse L. Rev. 935, 962 (1973) (“Owners of open woodland[s] … should not be expected to treat most uses as adverse and it would be unreasonable to require the owner to fence his land or guard against trespassers …. [Also] it would be unfortunate if owners were forced to exclude the public. In the United States with its great land areas … courts affInn that harmless trespasses should not be discouraged and that it would be unfair to penalize the generous owner.” (footnotes omitted)).

As suggested by Thomas v. Ford and subsequent case law, the public’s recreational use of the dry sand portion of the beach on Dobbins Island is presumed to have been a product of the permissive indulgence ofits owners. See Thomas, 63 Md. at 353-54. To hold otherwise
36
would galvanize owners into fencing or otherwise obstructing their beaches in order to avoid the assertion of public prescriptive rights, feasibly creating a barricade across Maryland’s shoreline. In the words of the Thomas Court, “such [a] consequence surely ought not to be desired by anyone.,,12 Thomas, 63 Md. at 355.

This conclusion is consistent with the pronouncements in other states regarding the character of the beaches at issue in those cases. Town of Manchester v. Augusta Country Club, 477 A.2d 1124, 1130 (Me. 1984)( applying a rebuttable presumption of permissive use to a lakefront beach, as ”wild and uncultivated land”); Spiegle v. Beach Haven, 281 A.2d 377, 382 (N.J. Super. Ct. App. Div. 1971) (noting that the ocean front beach at issue was land “in

Footnote 12 By way of illustration, we decline follow the direction of the Supreme Court of California in Gion-Deitz v. City of Santa Cruz, 465 P .2d 50, 57 (1970), where the Court rejected the owner’s argument that because his beach was unimproved land, that the public’s use of it was presumptively permissive. Instead, the court suggested that it would presume adverse use by the public if the use continued for a five-year prescriptive period, resulting in what that Court deemed “dedication by adverse use.” Gion-Deitz, 465 P.2d at 56-57 (“For a fee owner to negate a finding of intent to dedicate based on uninterrupted public use … he must either affirmatively prove that he has granted the public a license to use his property or demonstrate that he has made a bona fide attempt to prevent public use.”). While legislative action quickly limited its holding, see Cal. Civ. Code § 1009, Gion-Deitz spurred land owners throughout California to take affirmative steps to close off their beaches. See County of Orange v. Chandler-Sherman Corp., 126 Cal. Rptr. 765, 767 (Cal. Ct. App. 1976) (“Reaction to Gion-Deitz was prompt. In addition to soaring sales of chain link fences, as owners of shoreline property frantically attempted to bar the public from the use of their property, the case generated a spate oflaw review comment which was generally critical.” (footnote omitted)); Michael A. O’Flaherty, Note, This Land Is My Land: The Doctrine of Implied Dedication and Its Application to California Beaches, 44 S. Cal. L. Rev. 1092, 1096 (1971) (“After Gion-Deitz, the absentee owners of some of the most beautiful parcels put up miles of seven-foot-high fence topped with three strands of barbed wire.”).
37
a general state of nature and left unimproved by its owner”); State ex reI. Shorett v. Blue Ridge Club, 156 P.2d 667,670-71 (Wash. 1945) (holding that a beach bordering on Puget Sound, used extensively for public recreation, was “completely wild, open, vacant, unoccupied, and in its natural state” and therefore public use was “presumed to have originated by permission until some act … of the public or public official asserted the use to be exercised as a matter of right rather than privilege”). As noted, supra, “[a]s a general rule, permissive use can never ripen into a prescriptive easement.” Kirby, 347 Md. at 393,701 A.2d at 404 (citation omitted); Jurgensen v. New Phoenix Atl. Condo. Council of Unit Owners, 380 Md. 106, 123, 843 A.2d 865, 874 (2004).

As such, use that is originally permissive “is presumed to continue, and there must be affirmative evidence of [a] change to adverse use.” Feldstein, 198 Md. at 295, 81 A.2d at 615; accord Banks, 393 Md. at 709,904 A.2d at 460 (noting that “[r]espondent’s use of the farm lane was permissive when he was a minor and there was no affmnative evidence that it ever ceased to be permissive …. “). The case of Hungerford v. Hungerford, 234 Md. 338, 199 A.2d 209 (1964), although addressing adversity in the context of adverse possession, has been considered instructive on the requirement of adverse use in prescriptive easement cases.

See Banks, 393 Md. at 709-10, 904 A.2d at 461. We said in Hungerford:
It has long been held by this Court that where the original entry
and subsequent occupancy of land was under a contract, or with
the consent or permission ofthe owner, the possession would not
be hostile or adverse and could not evolve into a subsisting title
on which recovery could be had, unless the record owner had
notice that the continuing possession was under a claim of right,
since it is the intent with which possession is continued that gives
38
it its character as adversary.

Hungerford, 234 Md. at 341,199 A.2d at211 (citing, inter alia, Feldstein v. Segall, 198 Md. 285,81 A.2d 610 (1951)).

Because the public’s use of the privately owned, dry sand portion of the beach on Dobbins Island was presumptively permissive, Appellees had the burden to show that the use was, in fact, adverse from the outset, or that its character became adverse at a point in time sufficient to meet the twenty-year prescriptive requirement. See State ex. rei Shorett, 156 P.2d at 670-71 (holding that public use of a beach was “presumed to have originated by permission and to have continued as a license until some act … of the public or public official asserted the use to be exercised as a matter of right rather than privilege”); Houghton v. Johnson, 887 N.E.2d 1073, 1085 (Mass. App. Ct. 2008) (holding that various acts on the beachfront were not examples from which it could be presumed that the owner knew that the actors were using the property under a claim of right). It is clear under the facts of this case that Appellees failed to overcome the presumption of permission, as there was insufficient affirmative evidence to demonstrate that use of the beach was ever claimed adversely as a matter of right. Banks, 393 Md. at 709, 904 A.2d at 460; Hungerford, 234 Md. at 341, 199 A.2d at 211; Feldstein, 198 Md. at 295,81 A.2d at 615.

Therefore, the public’s historic use of the beach on Dobbins Island was under a license, now properly subject to revocation by the Clickners. See Mil/son v. Laughlin, 217 Md. 576, 583, 142 A.2d 810, 813 (1958) (noting that if defendant had a mere license to use the property at issue, it was revocable at the pleasure of the grantor); Oliverv. Hook, 47 Md. 301, 311 (1877) (“[A] user [that] has been by sufferance

39

and permission only … [is] but a license, revocable at pleasure, and … confer[ s] no right in the way. It simply relievers] the [party] from being a trespasser …. ” (citation omitted»; Goss v. C.AN Wildlife Trust, Inc., 157 Md. App. 447, 457, 852 A.2d 996, 1002 (2004) (stating that “a license is merely a personal privilege to do some particular act … on [another's] land without possessing any estate or interest therein, while an easement is an interest in land that grants the right to use that land for a specific purpose” (internal quotations omitted»; State ex rei. Shorettv. Blue Ridge Club, 156 P.2d 667,671 (Wash. 1945) (holding that because public use of a beach was permissive, “[t]he public [was] a licensee and as such could be excluded from the whole area at any time by the title owner”).

In conclusion, based on the record before us, we determine that it was error for the trial judge to apply the general presumption of adversity to the public’s use of the beach on Dobbins Island, as the beach was unimproved property in a general state of nature. Therefore, the proper presumption to be applied was that public use was by permission of the owners. Because we hold that there was no public prescriptive easement established, as a matter of law, the trial court’s judgment and its order mandating the removal of portions of Appellants’ fence are reversed.
40
JUDGMENT OF THE CIRCUIT
COURT FOR ANNE ARUNDEL
COUNTY REVERSED; CASE
REMANED TO THAT COURT WITH
DIRECTION TO ENTER JUDGMENT
IN FAVOR OF APPELLANTS,
CONSISTENT WITH THIS OPINION.
APPELLEES TO PAY THE COSTS.
41

The Maryland Court of Appeals recently issued a decision which confirms that an environmental group (or other membership group) can have independent standing to challenge a permit granted by the Department of Environment in Court. The statute reviewed, however, is specific to the Department of the Environment, and the requirement that the group participate at the administrative level remains intact.

Patuxent Riverkeeper v. Maryland Dept. of Env’t, 139 SEPT.TERM 2010, 2011 WL 4502141 (Md. Sept. 30, 2011)

Opinion BATTAGLIA, J. *1 In this case, we are asked to determine whether a nonprofit environmental group, Patuxent Riverkeeper,1 Petitioner, (“Riverkeeper”), has standing2 to initiate a judicial review action of a decision of the Respondent, the Maryland Department of the Environment, (“MDE”), to issue a “non-tidal wetlands permit”3 to Petrie/ELG Inglewood, LLC, now known as Woodmore Towne Centre, LLC, Respondent (“Woodmore Towne Centre”),4 in connection with the development of the Woodmore Towne Centre at Glenarden in Prince George’s County. Specifically, Woodmore Towne Centre had applied for the permit to construct a road extension and stream crossing at Ruby Lockhart Boulevard in order to provide primary access into the development. During the administrative proceeding before MDE, Riverkeeper had submitted written comments against the permit, asserting that Woodmore Towne Centre had not demonstrated that the proposed road extension and stream crossing had “no practicable alternative” that would “avoid or result in less adverse impact on nontidal wetlands.”After MDE approved the permit, Riverkeeper initiated a judicial review action in the Circuit Court, after which both MDE and Woodmore Towne Centre filed motions to dismiss for lack of standing.5 The Circuit Court dismissed the judicial review action, and Riverkeeper petitioned this Court for a writ of certiorari, which, prior to any proceedings in the intermediate appellate court, we granted, Patuxent Riverkeeper v. Department of the Environment, 418 Md. 190, 13 A.3d 798 (2011), to address the following question:Did the circuit court err when it interpreted the federal test for standing and held that the Riverkeeper lacked standing to challenge the issuance of a Maryland nontidal wetlands and waterways permit authorizing permanent and temporary impacts to nontidal wetlands and streams where one of Riverkeeper’s members alleged that the permit would result in future and threatened harm to his recreational, aesthetic, and economic interests in the Western Branch watershed and tributary?

We shall hold that Riverkeeper has standing to initiate a judicial review action, because its member, David Linthicum, had alleged sufficient harm to his aesthetic, recreational, and economic interests in connection with the issuance of the non-tidal wetlands permit in issue.Section 5–204(f) of the Environment Article, enacted by Chapters 650 and 651 of the Maryland Laws of 2009 and effective January 1, 2010, enables a person to seek judicial review of an administrative determination by the Maryland Department of the Environment regarding certain environmental permits, including those affecting non-tidal wetlands, if the person satisfies the federal rubric for standing:(f) Judicial review of final determination by Department.—A final determination by the Department on the issuance, denial, renewal, or revision of any permit issued under Title 5, Subtitle 5 or Subtitle 9, § 14–105, § 14–508, § 15–808, or § 16–307 of this article is subject to judicial review at the request of any person that: *2 (i) Meets the threshold standing requirements under federal law; and(ii) 1. Is the applicant; or 2. Participated in a public participation process through the submission of written or oral comments, unless an opportunity for public participation was not provided.Maryland Code (1982, 2007 Repl.Vol., 2010 Supp.), Section 5–204(f) of the Environment Article.

Prior to this enactment, standing to challenge permitting decisions by MDE was limited to a person who was “aggrieved” by the agency’s action, namely “one whose personal or property rights [were] adversely affected by the decision.” See Bryniarski v. Montgomery County Board of Appeals, 247 Md. 137, 144, 230 A.2d 289, 294 (1967); Sugarloaf Citizens’ Ass’n v. Department of Environment, 344 Md. 271, 288, 686 A.2d 605, 614 (1996) (“[I]n order to be ‘aggrieved’ for purposes of judicial review, a person ordinarily must have an interest ‘such that he is personally and specifically affected in a way different from … the public generally.’ ”) (citations omitted); 120 West Fayette Street, LLLP v. Mayor and City Council of Baltimore, 407 Md. 253, 270–71, 964 A.2d 662, 671–72 (2009). Moreover, a group could not establish standing to initiate judicial review of a permitting decision by an administrative agency, unless the organization had a “property interest of its own—separate and distinct from that of its individual members.” Medical Waste Associates, Inc. v. Maryland Waste Coalition, Inc., 327 Md. 596, 612, 612 A.2d 241, 249 (1992), quoting Citizens Planning & Housing Ass’n v. County Executive of Baltimore County, 273 Md. 333, 345, 329 A.2d 681, 687 (1974).In enacting Chapters 650 and 651 of the Maryland Laws of 2009, which originated as Senate Bill 1065 and House Bill 1569, the General Assembly embraced the “broader” notion of standing applied in federal courts, to enable both individuals and organizations to challenge environmental permits in judicial review actions, were certain conditions to exist:With respect to cases involving challenges to specific types of permits, Maryland courts have defined “aggrievement” to mean the ownership of property either adjacent to, or within “ ‘sight or sound’ range of the property that is the subject of [the plaintiff's] complaint.”The Court of Appeals has held that an association lacks standing to sue where it has no property interest of its own, distinct from that of its individual members. Citizens Planning & Housing Ass’n v. County Executive, 273 Md. 333, 329 A.2d 681 (1974). In Medical Waste Ass’n [Associates ] v. Maryland Waste Coalition, 327 Md. 596, 612 A.2d 241 (1992), the Court of Appeals stated that if an individual or organization is seeking to redress a public wrong, the individual or organization has no standing unless the wrong suffered is different in character and kind from that suffered by the general public.

Federal law is broader than State law in its determination of standing. Under federal law, a party has standing if its use and enjoyment of the area is affected by the challenged action/decision or if the party has a particular interest in the property affected. Federal law also makes little distinction between individual and group standing. *3 Environmental Matters Committee Floor Report on House Bill 1569, at 4 (2009).6The touchstone Supreme Court case involving environmental standing, Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000), drew the federal landscape in environmental actions. In that case, a judicial review action to enforce a permit authorizing the limited discharge of pollutants, pursuant to the Clean Water Act, 33 U.S.C. § 1342, the Court determined that to satisfy standing in an environmental action, a plaintiff must show that “(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. at 180–81, 120 S.Ct. at 704, 145 L.Ed.2d at 627, quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351, 364 (1992). An environmental group can satisfy standing federally if “its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Friends of the Earth, 528 U.S. at 181, 120 S.Ct. at 704, 145 L.Ed.2d at 627.

In Friends of the Earth, the Court emphasized that injury in fact has included a negative impact on the organizational representatives’ recreational or aesthetic appreciation of the affected area, in that case the demonstrably diminished ability or desire to hike, camp, picnic, swim, canoe, boat or fish in a river contaminated by pollutants. 528 U.S. at 181–82, 120 S.Ct. at 704–705, 145 L.Ed.2d at 627–28. In addition, the Supreme Court determined that a person may suffer an injury in fact when his economic interests are negatively impacted, for instance, lower home prices due to proximity to a hazardous waste incinerator. Id. at 182–83, 120 S.Ct. at 705, 145 L.Ed.2d at 628. The Court noted that an injury to aesthetic, recreational, or economic interests need not be consummated, so long as an individual can demonstrate reasonable concerns about the effects of the challenged activity. Id. at 183–84, 120 S.Ct. at 705–706, 145 L.Ed.2d at 628–29.Such aesthetic, recreational, or economic interests or values, however, must be based upon a demonstrable record of regularly utilizing the affected area, as well as a desire to do so in the future. In Summers v. Earth Island Institute, 555 U.S. 488, ––––, 129 S.Ct. 1142, 1150, 173 L.Ed.2d 1, 10 (2009), the Supreme Court reasoned that an organizational representative’s affidavit indicating a desire to “visit several unnamed National Forests in the future” was not sufficiently particularized to establish a cognizable aesthetic or recreational interest. Moreover, asserting a past injury to aesthetic or recreational interests, arising for example, from “past … development on Forest Service land,” without demonstrating a continuing or future harm, further does not suffice. Id. at ––––, 129 S.Ct. at 1150, 173 L.Ed.2d at 9–10. The Court also has opined that a genuine nexus must exist between the alleged injury and the challenged conduct, Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351, 364 (1992), and that the remedy requested must “effectively abate[ ] [illegal] conduct and prevent [ ] its recurrence.” Friends of the Earth, 528 U.S. at 185–86, 120 S.Ct. at 706, 145 L.Ed.2d at 630.7 *4 At the time the new standing test was embraced by the Maryland Legislature, not only had the Supreme Court spoken, but other federal appellate courts already had an opportunity to interpret the tenets of the Supreme Court cases.

The application of these precepts prior to the enactment of Section 5–204(f) of the Environment Article in 2009 illustrates the boundaries of standing in environmental cases to which the General Assembly had referred when it enacted the statute.8 In Sierra Club v. Franklin County Power of Illinois, LLC, 546 F.3d 918, 925 (7th Cir.2008), the Court of Appeals for the Seventh Circuit determined that a Sierra Club member adequately alleged an injury by asserting that she and her family had taken trips to “fish, kayak, camp, and enjoy the natural beauty and clean environment” of a lake, located three miles from the site of a proposed power plant, and that if the plant were built, she would cease her recreational trips. Similarly, in American Canoe Ass’n, v. City of Louisa Water & Sewer Comm’n, 389 F.3d 536, 542 (6th Cir.2004), the Court of Appeals for the Sixth Circuit reasoned that an environmental group representative had demonstrated a sufficient injury when he alleged that he previously recreated in a river near a water treatment plant, but that he presently refused to do so, because of pollution caused by discharges from the plant. In so doing, federal appellate courts have noted that a plaintiff may express reasonable concerns about the future impacts of the challenged activity. See Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 160 (4th Cir.2000) (reasoning an environmental group member “need not wait until his lake becomes barren and sterile or assumes an unpleasant color and smell before he can invoke the protections of the Clean Water Act”).The injury alleged must share a specific nexus with the harm asserted. In Natural Resources Defense Council v. Southwest Marine, Inc., 236 F.3d 985, 995 (9th Cir.2000), the Court of Appeals for the Ninth Circuit determined that the plaintiff had adequately demonstrated such a nexus by indicating that sediments in defendant’s marine leasehold contained elevated concentrations of pollutants, that defendant had discharged such pollutants, and that defendant’s marine leasehold was “devoid of life.” In contrast, in Center for Biological Diversity v. Lueckel, 417 F.3d 532, 540 (6th Cir.2005), the Sixth Circuit reasoned that although the environmental group representatives had shown that they had suffered concrete injuries to their aesthetic, recreational, and scientific interests in the scenic rivers in question due to commercial logging, the plaintiffs had failed to demonstrate the requisite connection because they had not referred to specific evidence that the United States Forest Service’s failure to enact a “comprehensive resource management plan” had caused the approval of the environmentally harmful projects. *5 According to the federal appellate court, an aggrieved party also must show that a favorable decision will likely, not merely speculatively, relieve the injury alleged. Alleging a previous injury, for instance, without referencing a continuing or future harm, will not suffice. Lueckel, 417 F.3d at 537 (reasoning that “plaintiffs … must show that actual, site-specific activities are diminishing or threaten to diminish their members’ enjoyment of the designated river segments”).9

The parties in the present case differ, though, not regarding the test for standing, but in its application to the factual circumstances presented. Riverkeeper asserts that its member, Mr. Linthicum, suffered an injury in fact, because his aesthetic, recreational, and economic interests in the Patuxent River, particularly the Western Branch watershed,10 have been jeopardized by the road extension and stream crossing allowed by the permit. In particular, Mr. Linthicum asserts that the upstream impacts caused by the crossing will cause “nitrogen and other pollutants” to leach into waters downstream. Woodmore Towne Centre counters that Mr. Linthicum failed to satisfy the standing inquiry, because he failed to demonstrate that the issuance of the permit has negatively impacted his paddling and cartography activities on the Western Branch watershed.11In his affidavit, Mr. Linthicum described the aesthetic and recreational interests he has in paddling, wading, and clearing branches in the Western Branch of the Patuxent River:5. I visit the Patuxent River almost every other day. I have visited and will continue to visit the Western Branch every few months. When visiting the Western Branch, I paddle along the tributary, and also wade in the water to clear out branches for the purpose of waterway maintenance and navigation. I have been paddling, wading, and clearing branches and other blockages in the Western Branch for nearly ten years. Beyond my recreational interests in the Western Branch tributary and watershed, I also have aesthetic and environmental interests in the Western Branch, as the river and watershed is much healthier and cleaner than surrounding watersheds such as the Anacostia watershed.6. The area of the Western Branch tributary and watershed that I most often visit is downstream from the location of the Woodmore Towne Center Project. I sometimes paddle in the Western Branch as far north as Upper Marlboro, which is approximately 8.5 miles downstream from the areas of wetlands and streams that are impacted by the Woodmore Towne Center.He further described the negative impact of the issuance of the MDE permit on the wetlands and streams in the Western Branch, where he most often paddles and clears blockages in the waterway, jeopardizing his aesthetic and recreational interests:7. The wetlands permit pertaining to the Woodmore Towne Center will cause impacts to wetlands and streams in the Western Branch watershed. These impacts will ultimately have a direct effect on the watershed and the river downstream, where I most often paddle and clear blockages in the waterway. Specifically, the stream impacted by the Ruby Lockhart Boulevard extension on the Subject Property is the north fork of the Southwest Branch of the Patuxent River (this stream is marked “S” on a map that I prepared for the Subject Property, attached as Exhibit C). This stream runs southward from the Subject Property through developed and undeveloped land before ultimately joining the Western Branch tributary approximately five miles downstream. Smaller drainages on the north end of the Subject Property (marked as “W” on Exhibit C) also connect directly with the Western Branch and the Patuxent River itself. These smaller drainages flow into Bald Hill Branch approximately 3/4 mile from the Subject Property. Bald Hill Branch then joins the Western Branch just over a mile further downstream. *6 8. The health of the Western Branch, including the area where I most often paddle, wade, and clear trees and other blockages, will suffer as a direct result of the impacts to the connected streams and tributaries just a few miles upstream at the Woodmore Towne Center site.9. Diverting and/or compromising the streams on the Subject Property can affect the flow rate and the ecology of the tributaries of the Patuxent River. Moreover, drainage of stormwater from the impervious surfaces of the Woodmore development into the surrounding streams and watershed will further degrade the water quality of the Western Branch. Western Branch is a system already in decline due to the vast amount of paving, construction, channelization and other human intervention in its natural functions.

Like many tributaries, streams, and creeks elsewhere in Prince George’s County, Western Branch fails to meet Federal water quality standards, and appears to be approaching the tipping point of no return.10. The impacts to wetlands on the Subject Property will also have a negative effect on my activities downstream in the Western Branch. Wetlands provide recharge and storage of surplus water during storm events, which can lessen the impacts of flooding and property damage to downstream neighbors. Wetlands serve as natural “sponges” to absorb manmade toxins and poisons that leach from surrounding contaminated runoff caused by paved surfaces, trash, and chemicals applied to urbanized lands. The loss of the natural wetlands in a river system eventually leads to the death and desertification of a river’s tributaries and takes an equivalent toll on the waters of the main channel.11. I have reviewed recent scientific and academic literature that has discussed the connection, both in Maryland and in general, between urbanization, impacts to streams and headwaters, and the deleterious effects on watersheds and rivers downstream. One of these articles discussing this connection states: “Headwater systems are important sources of sediments, water, nutrients, and organic matter for downstream reaches. Despite the significant roles of headwater systems within the channel network, the ecological values of headwater systems are underestimated, and their processes have been extensively modified by land use.”See Takashi Gomi, Roy C. Sidle & John S. Richardson, Understanding Processes and Downstream Linkages of Headwater Systems, BioScience, Vol. 52, No. 10, Oct. 2002, at 914. I have also read that “[the] natural dendritic properties of stream networks play an intrinsic role in the delivery of nitrogen and other pollutants to downstream receiving waters from headwater locations throughout watersheds.” See Richard B. Alexander, Elizabeth W. Boyer, Richard A. Smith, Gregory E. Schwarz & Richard B. Moore, The Role of Headwater Streams in Downstream Water Quality, Journal of the American Water Resources Association, Vol. 43, No. 1, Feb. 2007, at 57. In the context of streams and wetlands, the term “dendritic” refers to the branch-like characteristics of upstream headwaters, which then funnel into a single stream or river downstream, as is the case with the Western Branch watershed and tributary. *7 (internal footnote omitted).On the basis of Mr. Linthicum’s affidavit, as well as the testimony he presented at a hearing on the motions to dismiss,12 the Circuit Court found that Mr. Linthicum is “a frequent recreational paddler” on the Western Branch of the Patuxent River and also has an “aesthetic interest in the beauty of the river and the cleanliness of its water.”

The court further found that Mr. Linthicum has “an economic interest in navigating the river, [because] he charts its tributaries to produce maps and guides that he sells to the Riverkeeper and others.”Despite these findings, the judge dismissed the judicial review action for lack of standing, determining that the injury Mr. Linthicum alleged on behalf of Riverkeeper was merely “conjectural or hypothetical”:On the other hand, Mr. Linthicum has never visited the actual site of the permit at issue and has never paddled on the tributary that has been altered by development of the Towne Center, nor has he testified to an intention or desire to do so. He has not seen any effects, other than seasonal ones, on the parts of the river he does travel since the completion of the work at the Towne Center. Indeed, he did not even realize there had been work impacting a wetland until a few weeks before offering his testimony to the Court, long after that work had been completed.[13]In other words, completion of the work authorized by the wetlands permit issued by MDE has not affected Mr. Linthicum’s day to day life on the river in any manner whatever. Instead, Mr. Linthicum claims that the Towne Center development will “ultimately” impact the watershed downriver where he carries on his business. Affidavit of David Linthicum ¶ 7. This is precisely the conjectural or hypothetical injury forbidden by Summers, supra. Mr.

Linthicum has a good-faith belief that continued urbanization of Prince George’s County will one day result in the erosion of the wetlands and waterways that he loves. As he testified, he fears the “death by a thousand cuts.” This is not a sufficient injury in fact to establish standing under federal law and Md.Code, Enviro. § 5–204(f).We disagree with the Circuit Court’s legal assessment.14 Mr. Linthicum alleged, and the Circuit Court found, that he had adequately asserted demonstrable aesthetic, recreational, and economic interests in the Western Branch as an avid paddler and mapmaker. The Circuit Court determined that the harm alleged, however, was not sufficiently concrete nor imminent, because Mr. Linthicum claimed that the permit allowing the road expansion and stream crossing would “ultimately” impact the Western Branch watershed downriver “where he carries on his business.” In so doing, the judge failed to credit the reasonable concern that Mr. Linthicum manifested about the future harm to the ecology of the Western Branch that would result from “diverting and/or compromising” upriver streams. *8 The injury suffered by Mr. Linthicum, moreover, shares a sufficient nexus to the issuance of the non-tidal wetlands permit, because Mr. Linthicum alleged, referring to scientific articles as well as his own experiences, that stream crossings at headwaters and wetlands, such as that constructed at Ruby Lockhart Boulevard, can cause negative affects downstream on the Western Branch watershed. Finally, at a hearing before the Circuit Court regarding the motions to dismiss, Frederick Tutman, Chief Executive Officer of Riverkeeper, described methods to abate the harm caused by the issuance of the permit, including rescission of the permit, as well as more intensive mitigation efforts:I would say in addition to the rescission of the permit, I think look at broader or more specific mitigation in line with the scope of the impacts [,] [b]ut, also, I think something of great value is being taken away from citizens adjacent to this site and the county and I don’t think it’s being put back. I think the quality of the mitigation that’s been approved by the State [,] I don’t think begins to really get to the heart of what’s being taken away.

As a result, the motions to dismiss for lack of standing on the part of Riverkeeper should not have been granted, and the judicial review action should be permitted to proceed.JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY REVERSED; CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; COSTS TO BE PAID BY RESPONDENT, PETRIE/ELG INGLEWOOD, LLC, ALSO KNOWN AS WOODMORE TOWNE CENTRE, LLC.

Patuxent Riverkeeper v. Maryland Dept. of Env’t, 139 SEPT.TERM 2010, 2011 WL 4502141 (Md. Sept. 30, 2011)

by Dirk Schwenk – dschwenk@waterfrontlaw.com and Mike Piasecki III – mike@marylandwaterfrontproperty.com

There is nothing that can compare to the peace, tranquility and sense of well-being that accompanies ownership of a piece of waterfront property. That feeling should not be disturbed by legal problems that can be prevented or at least managed. In waterfront property there are a few issues that arise with such regularity that they should be considered prior to any purchase. Mike Piasecki, III, Associate Broker, Prudential Carruthers Realtors in Elkton and Ocean Pines (www.marylandwaterfrontproperty.com) and J. Dirk Schwenk, attorney at Baylaw, LLC (www.waterfrontlaw.com) got together to come up with a “top five” list of things that should be thought through. These issues are focused on Maryland waterfront property, but they apply everywhere where piers, views and access to the water are of top concern. Here they are:

1. Community Waterfront versus Private Waterfront.

Many waterfront, waterview and water access properties are located in developments where the original developer subdivided a large tract and reserved the waterfront for the use of all of the houses in the neighborhood. Interior houses may be listed as “water access” properties and have affirmative rights to community beaches, boat ramps and other facilities. In many of these developments, there is also a strip of land that lies along the water and surrounds the entire community and was intended to allow for members of the community to walk and have access to the entire waterfront. The ownership structure of these walks can vary widely, but if they are present, there are special concerns for the homes nearest the water. Those homes may have the right to build and maintain a pier — but the pier may actually be owned by the community and be available for all of the members to use. Or there may be no right to a pier at all. The possible variations are too numerous to list, but an owner purchasing “waterfront” in such a community should be sure to understand exactly what the obligations and benefits are in the particular community.

2. Waterfront versus Waterview.

A true “waterfront” property is one that has riparian rights associated with it. In Maryland and most of the states on the East Coast of the United States, the owner of a property that has riparian rights has the right to apply to construct a pier or other waterfront improvement, has the first right to apply for permits for waterfowl hunting, and has the right to prevent others from impeding access to the water or the view of the water. In contrast, a “waterview” property is generally one that is close to the water, but has land owned by someone else between the land and the shoreline. A waterview may have a limited (or no) right to build a pier and may not have any guarantee that another owner will not build a fence, structure or put in plantings that obstruct the waterview. Careful consideration should be paid to what might be placed between the waterview property and the water — if it is community land on which nothing can be built that is very different than private land on which someone in the future may build a multi-story home.

3. Pier Locations, Boundary Lines and Permits.

Having (or keeping) a pier is a first priority consideration for many waterfront lots. It is not relaxing and fun to have a dispute with a neighbor about whether a pier is on his property, your property, on the line, should be shared, or whether a pier that you were counting on using is even legal in the first place. If you are considering a home where there is currently a pier or where you would like to put in a pier, its continued viability should be examined. First, consult with planning and zoning — was the existing pier built with a permit (or grandfathered?), or if you would like to put in a new pier, can an adequate pier be placed on the site given environmental limitations and the location of neighboring piers? Second, is there any dispute with a neighbor about the location of any of the piers (does a pier encroach the property line extended into the water?) or is there an expectation that a pier will be shared? If you are purchasing a property that is one of several that were previously owned by a single family, it is very common that multiple homes shared a single pier. This sort of agreement should be spelled out — or it can quickly lead to a disagreement.

4. The Obligation and Ability to Maintain the Waterfront.

For any property that faces significant wave action or is on a bluff, there will be erosion concerns. For all waterfront properties, there are significant legal restrictions on the owners’ ability to clear growth and trees, to fill eroded areas, and to construct shoreline protection. The cost and ability to obtain permits for waterfront repairs and maintenance should be considered. For example, in many waterfront communities, there are existing bulkheads or revetments. Depending on the particular community, the cost to maintain these structures may lie with the nearest individual landowner or with the community. In Ocean Pines, Maryland, for example, all properties in the community must pay an annual HOA assessment toward the upkeep of common area facilities, but in the instance of waterfront properties, the assessment may also cover the cost of maintenance to the property’s bulkhead. We say “MAY” because this is true in some sections of Ocean Pines, whereas in other sections, waterfront property owners, although they still pay an annual assessment that is higher than a land locked property, have the cost and burden of bulkhead maintenance placed squarely upon the homeowner. Sounds confusing doesn’t it? This example is exactly why you should consult a waterfront law specialist, and/or waterfront specialist real estate broker before entering into a contract to sell or purchase waterfront property anywhere, but especially in the state of Maryland. Another instance? In Anne Arundel County, Maryland, there have been news reports of criminal charges being filed because a waterfront property owner hired a landscaper to clear trees and bushes along the waterfront. Just like piers, it is wise to consult with knowledgeable professionals and zoning departments before becoming set on plans for improvements.

5. Choose the right professionals.

Purchasing and owning waterfront is meant to improve ones quality of life, and usually it does. There will always be an unfortunate few that end up purchasing a large, unexpected and expensive dispute, and their quality of life is most often not improved. Without question, the best means of avoiding unexpected difficulties is to associate with professionals with experience and interest in waterfront and riparian properties. A good realtor will know the particular area where a property is located, or will know the questions (like the ones above) that must be analyzed in order to know if a property is right for you. A good lawyer will know whether a deed is to transfer all of the rights you expect, (or maybe just some), will be able to spot misunderstandings in pier sharing agreements, and will know how to resolve a dispute that does arise. We hope these pointers help to make your next waterfront property purchase or sale, an enjoyable one!

Dirk Schwenk – dschwenk@waterfrontlaw.com
and Mike Piasecki III – mike@marylandwaterfrontproperty.com

Eds. Note: Below is final Opinion from the Anne Arundel Circuit Court in Annapolis, Maryland concerning riparian rights and public access in the case brought by the Magothy River Association against the owner of Dobbins Island, David Clickner.  The MRA sought to have the entire island declared open to the public based largely on a theory of prescriptive easement.  Although they did not achieve that goal, they were successful in requiring Mr. Clickner to open up the beach and remove the fence that was placed so as to restrict access to the beach.  Prior to its removal in 2010, parts of the fence were actually in the water.   Mr. Clickner has appealed this decision (after telling the press that he probably would not) and it was scheduled for mediation in the Court of Special Appeals on August 31, 2010.

For me, this decision is interesting on a number of levels.  It affirms the public right to access the beach, but it also affirms the crucial private right to exclude others from ones land.  Particularly in cases of vacant land, it is not possible to police the borders 24 hours a day, and the failure to do so should not be read as creating a public park of private waterfront.  I personally believe that the court reached the correct outcome, but it did so for the wrong reasons, probably as a result of confusing testimony concerning the location of the Mean High Water line.

When one talks of waterfront land and beaches, the Public Trust Doctrine is the doctrine by which it is understood that lands below the high water line are owned by the State (in this case Maryland), and the State is obligated to hold those lands in trust for the use and benefit of all citizens.   It is this doctrine that allows us to go to ocean beaches, even if the upland adjacent to the beach is privately owned.   Irrespective of anything else, the public has the right to access the beach on Dobbins Island (and everywhere) below the high water mark for bathing, swimming, fishing, etc.   This raises the question of where is the high water mark?  For purposes of Critical Area law (which sets out how close to the shoreline one can develop), there is a Mean High Water line that is fixed based on maps created (I believe) in the 1970s.  But one of the confounding features of waterfront property is that the actual location of the shoreline (and thus the High Water line) is constantly changing.  I am not aware of any case in Maryland that addresses the tension between the actual shoreline and the mapped shoreline, but in my view at least, if it is beach, it is almost certainly below the line, irrespective of what is on a map from thirty years ago.   Perhaps this issue will get a test in the near future — given the rise in sea level and continuing erosion, it could be an interesting point of debate.

MAGOTHY RIVER ASSOCIATION, inc., et al. * IN THE

Plaintiff                                                                             *CIRCUIT COURT

v.                                                                                         * FOR

DAVID CLICKNER, et al.                                           * ANNE ARUNDEL COUNTY

Defendants                                                                      * CASE NO.: 02-C-08-132884

* * * * * * * * * * * * *

MEMORANDUM OPINION

This matter came before the Court on September 9, 10, 11, and 24, 2009, for a bench trial as to whether there is a public right to use the beach on Dobbins Island. The Court held the matter sub curia. Upon consideration of the arguments of the parties, both written and oral, and the evidence and testimony presented, the Court presents its conclusions below.

BACKGROUND

Dobbins Island is an approximately seven acre island located near the mouth of the Magothy River. The portion of the property in dispute is the sandy beach located at the northwest corner of the island, from the mean high watermark to the vegetation line (“the beach on Dobbins Island”). For the past forty-five to fifty years, hundreds of members of the public have frequented the beach on Dobbins Island to swim, sunbath, walk, picnic, kayak, boat, and anchor. Prior to 1988, Dobbins Island was part of a larger parcel that included two other islands, Wee Island and Little Island, and mainland. In the 1950s, members of the Dobbins family built upon and occupied both Wee Island and Little Island. There was no attempt to develop Dobbins Island until October 2003, when it came under the ownership of David and Diana Clickner (“Defendants”) who purchased the island from Dutchship, LLC.  The Clickners made plans to erect a house upon part of Dobbins Island and in July 2006 obtained a permit for, and erected, a “fence” to limit access to the beach. In December of 2006, the Magothy River Association, Inc., along with five individuals filed suit against the Clickners in the Circuit Court of Anne Arundel Court, asserting a right to access the land. In April of 2007, the Court granted Plaintiffs Motion to Dismiss without prejudice. The present case was filed in July of 2008 by the Magothy River Association, Inc. and six individuals (“Plaintiffs”), again asserting a right to access the land and requesting the removal of the “fence.”

DISCUSSION

It is undisputed that land below the mean high water mark is free for public use. Dep’t of Nat. Res. v. Ocean City, 274 Md. 1,5 (1974) (citing Smith v. Maryland, 59 U.S. 71 (1855). However, the instant case raises the question of to what extent may the public have a right to use dry littoral land above the mean high water mark. The Court of Appeals addressed this issue in Department of Natural Resources, et al. v. Mayor and Council of Ocean City, 271 Md. 1 (1975), and analyzed the different legal principles that could create a public right to use privately owned shoreline.

In Department of Natural Resources, the plaintiffs argued that the public acquired an easement by implied dedication, prescription, public trust, or custom, thereby permitting public use of the beach between the mean high water mark on the east and the line of vegetation on the west. Dep’t of Nat. Res. v. Ocean City, 271 Md. 1 (I975). Prior to 1929, the beach went through a period of accretion, gaining an average width of l.6 feet annually. Id. at 2. From 1929 through 1962, the beach lost 450 feet annually to erosion. Id. After an unusual storm in 1962, the beach was declared a natural disaster area. Id. From that point forth, protective measures were taken to restore the beach, including the installation of sand fences, construction of asphalt groins, and bulldozing of sand. Id.

The subject properties, owned by Plaintiff E. T. Park, Inc., in Department of Natural Resources, were first platted in 1940. Id. Much of the littoral land had been dedicated to public use by the recorded plats, designating areas as beach or boardwalk. Id. at 7. Park learned that a developer filed an application for a building permit to construct a condominium on an ocean front tract. Id. at 2. This land stood on high ground, covered by grass and unused by the public. Id. at 7. Plaintiff instituted an action against the developer, the builder, the building inspector, and the Mayor and City Council of Ocean City. Id. at 2. Later, the State Department of Natural Resources intervened as a plaintiff. Id.

The Court analyzed whether a public right to use the littoral land existed by dedication, prescription, custom, or public trust. Ultimately, the Court ruled in favor of the defendants. It found that an easement by dedication did not exist because there was no  roof of a clear and unequivocal manifestation of intent to dedicate. Id. at 8. An easement  by prescription did not exist because there was no factual support showing uninterrupted use by the public for twenty years. Id. at 9. An easement by custom did not exist because the evidence did not support that the public use existed for “so long, that the memory of man runneth not to the contrary.” Id. at 13. Finally, the Court found that the land was not held in public trust as a consequence of the expenditure of public funds. Id. at 14.

These are factually specific determinations. In the instant case, Plaintiffs set forth several arguments as to why the public has a right to use the beach on Dobbins Island: 1) easement by public trust; 2) easement by custom; 3) easement by dedication; and 4) easement by prescription.

I. IMPRESSION IN PUBLIC TRUST

For property to become impressed in a public trust, the public must have gained an interest in the disputed property. Dep’t of Nat. Res. at 14. In Department of Natural Resources, the Court of Appeals declined to extend the doctrine of public trust to the portion of land from the mean high water mark to the dune land, finding that neither the expense of public funds to restore the property nor prior public use of the property justified the impression of the property into a public trust. Id. Here, Plaintiffs provided no evidence that the government provided any services or protections with respect to the beach on Dobbins Island so as to create an interest in the property for the general public. While the use of the beach by the public has been for a period of time longer than in Department of Natural Resources, this does not create a basis for expanding the general rights of the public beyond the historically recognized right to use the beach below the high mean water line under the doctrine of public trust. As such, this Court finds that the public does not have a right to use the beach on Dobbins Island through an impression of the property in a public trust.

II. EASEMENT BY CUSTOM

To show a custom of public use, the use must be continued, peaceable, reasonable, certain, compulsory, and consistent with other customs for “so long, that the memory of man runneth not to the contrary.” Dep’t of Nat. Res. at 14 n. 1 (citing William Blackstone, Commentaries *76). An easement by custom cannot be extended in a manner that “would deny the owner a use permitted by law and local regulation.” Id. at 14. The evidence supports that the use of the beach on Dobbins Island by the public has been continuous, peaceable, and reasonable. Though there is some evidence that the use by the public went beyond the line of vegetation, as visitors walked and hiked on the entire island, the evidence shows that the use of the beach on Dobbins Island was certain.  In defining compulsory as it relates to customs, Sir William Blackstone wrote:

Customs, though established by consent, must be (when established)

compulsory and not 1eft to the option of every man, whether he will use

them or no. Therefore a custom, that all the inhabitants shall be rated

toward the maintenance of a bridge, will be good; but a custom, that every

man is to contribute thereto at his own pleasure, is idle and absurd, and

indeed no custom at all.

1 William Blackstone, Commentaries *78. Here, the “custom” of using the beach on Dobbins Island is not compulsory, as each member of the public has frequented the beach at his or her own pleasure. Therefore, this Court finds that the public does not have a right to use the beach on Dobbins Island through an easement by custom.

It is also worth noting that this doctrine confers rights on large regions of land, based on the principle that similar lands should be treated uniformly. See State ex rel. Thornton v. Hay, 254 Or. 584, 595 (1969) (holding that “ocean-front lands from the northern to the southern border of the state ought to be treated uniformly”). Thus, a finding of easement by custom in this case, even if narrowly construed, would confer  rights from the high mean water line to the vegetation line for all islands on the Magothy River. Such a finding cannot be made based on the use established for only one island on the Magothy River.

III. EASEMENT BY DEDICATION

An easement by dedication requires that the land owner manifested  the intent to dedicate the land to public use, proven by clear, satisfactory, and unequivocal testimony. Toney Schloss Prop. Corp. v. Berenholtz, 243 Md. 195,204-05 (1966). It is the intention of the owner that governs this test. Wash. Land Co. v. Potomac Ridge Dev. Corp., 137 Md. App. 33, 41 (2001) (citing Blank v. Park Lone Ctr., Inc., 209 Md, 568, 574 (1956). Here, there is no evidence that any Owner of Dobbins Island ever manifested intent to dedicate the beach for public use and while some of the Plaintiffs’ witnesses testified that they believed they were allowed to use the beach, none of them received express permission from the owners nor could they testify to any owner’s intent to dedicate the beach to the public. Absent evidence of a clear intent to dedicate, an easement by dedication may not exist. Therefore, the public does not have a right to use the beach on Dobbins Island through an easement by dedication. [1]

IV. EASEMENT BY PRESCRIPTION

A. Pre-DNR Prescriptive Easement Case Law

Defendants argue that Thomas v. Frank, 63 Md. 346 (1885), and its progeny prohibit the recognition of a prescriptive easement held by the general public to use the shore of a navigable waterway.  In Thomas, the plaintiff sued the defendant for trespass after the defendant stored firewood on the landowner’s shoreline beside his wharf.  Thomas v. Frank, 63 Md. 346 (1885). The defendant argued that there was a public right, in the form of a presumptive dedication or quasi prescription, to deposit freight on the shoreline. Id. The jury found for the defendant and the plaintiff appealed. Id.  The issue on appeal was whether the “principle of presumptive dedication, or quasi prescription, does or can properly apply to give rise to a right in the general public to use the land of another on a navigable river as a landing place and place of deposit of wood and other articles of property for an indefinite time.” Id. at 352. In reversing the lower court, the Court of Appeals noted that the alleged public right to use the shoreline was not an enjoyment for all but was “an exclusive appropriation of the actual use of soil to the first occupier or depositor of wood or other articles, without limit as to extent or duration of time.” Id. at 353. Using a landing place on a navigable waterway for a place to indefinitely deposit goods contravenes public policy. Id. at 354.

Defendants argue that Thomas is controlling in this matter. This Court does not agree as the facts in Thomas are distinguishable. Thomas addressed the public right to store wood and other articles-in-shipment on the shoreline of another’s property for an indefinite period of time, which equates to an exclusive appropriation of actual use by the first occupier. Here, the alleged public use is for swimming, sunbathing, walking, picnicking, kayaking, boating, and anchorage. These are more transient uses, different from uses that equate to the indefinite appropriation of soil by the first occupier. Additionally, Department of Natural Resources, which the Court of Appeals decided in 1974, held that the public did not have a prescriptive easement to use the shoreline because the plaintiffs failed to show that the alleged use existed for longer than a twenty ear period. See Dep ‘t of Nat. Res. v. Ocean City, 271 Md. 1 (1975). If Thomas barred the courts from recognizing any public right to the use of a shoreline on a navigable waterway via prescriptive easement, there would have been no need to assess the merits of the prescriptive easement claim.

B. Post-DNR Prescriptive Easement Case Law

Traditionally, “aside from proof of long use – twenty years in this State – a finding of prescription also requires proof that use has been exclusive, uninterrupted, and adverse.” Wash. Land Co., 137 Md. App. at 56. “Adverse use means use without license or permission.” Condry v. Laurie, 184 Md. 317 (1954). Additionally, showing a use by the public for twenty years generates a presumption that the use is adverse and of a legal origin. Dep’t of Nat. Res. at 9. To rebut this presumption, a defendant must prove by affirmative evidence that the claimant’s use was by permission or by license. Zimmerman v. Summers, 24 Md. App. 100, 111 (1975). In the instant case, Plaintiffs evidence, consisting of witness testimony and the photographs, convinces the Court that the beach on Dobbins Island has been used since 1963 and as early as the 1920′ s, well over the statutory twenty years, by the public for the purposes of swimming, sunbathing, walking, picnicking, kayaking, boating, and as an anchorage. Some of the testimony showed that members of the public believed they could use the island[2] but Defendant did not provide affirmative evidence that prior landowners gave permission or license to the public to use the beach. Defendant did not overcome this presumption by any showing that the prior landowners granted permission to the public to use the beach.

The use by the public must also be uninterrupted. Wash. Land Co., 137 Md. App. at 58. While some of the Plaintiffs witnesses indicated that they did not individually frequent the beach at Dobbins Island consistently over the past twenty years, the evidence reflects that the public at large did continuously use the beach. Additionally, prior to the Defendant’s ownership of Dobbins Island, there was never any attempt to interrupt the public use of the beach through the use of guards, signs, or otherwise, throughout the twenty year period. See id. Thus, the use of the beach at Dobbins Island has been both adverse and uninterrupted for the requisite statutory period.

Generally, to establish a personal easement by prescription the use must have been exclusive. Zimmerman, 24 Md. App. 100. In defining exclusivity of use the Courts have stated:

By exclusive, the law does not mean that the right of way must be used by one person only, because two or more persons may be entitled to the use of the same way, but simply that the right should not depend for its enjoyment upon a similar right in others, and that the party claiming it exercises it under some claim existing in his favor, independent of all others. It must be exclusive as against the right of the community at large.

Id. at 106. However, the standard with respect to a public easement requires that “all persons must have an equal right to the use and that it must be in common, upon the same terms, however few the number who avail themselves to it.” Garret v. Gray, 258 Md. 363,378 (1970). Here, there is ample evidence showing the common use of the beach by the public at large.  Having found that the public used the beach at Dobbins Island for an uninterrupted period of more than twenty years, for the purposes of swimming, sunbathing, walking, picnicking, kayaking, boating, and as an anchorage, and that the Defendant had not overcome the presumption that such use was adverse, this Court finds that the public has a right to the beach on Dobbins Island through an easement by prescription for those uses.

V. FENCE’S INTERFERENCE WITH USE

If the Court recognizes the existence of an easement, it may, if needed, protect the easement. Stansbury v. MDR Dev., 390 Md. 476,486 (2006). The public has a right to use the beach on Dobbins Island for swimming, sunbathing, walking, picnicking, kayaking, boating, and anchorage. Given the public’s easement to use the beach, Defendants’ fencing may not interfere with that right. The fence located on the beach is comprised of eight-inch diameter pilings bored four-feet into the ground on straight lengths of the fence and of twelve-inch diameter pilings bored eight-feet into the ground where the fence bends. This is a park-style water fencing to have two heavy duty ropes, chains, or steal cables strung between pilings. This Court finds that the park style fence, as shown in the site plan, interferes with this right.

While Defendant may cure this interference by removing the fence or by relocating it to the vegetative line, Defendants’ duty is to not interfere with the recognized interest in the land. The pilings themselves do not interfere with this use. The Court finds that the current configuration for the fence, with ropes, chains, or cables, strung between the pilings, interferes with the public’s right and that Defendants are to remove the ropes, chains, or cables, strung between the pilings, thereby providing the public with access to the beach.

VI. FENCE’S LOCATION ACCORDING TO SITE PLAN & VARlANCE

Plaintiffs allege that Defendants improperly placed the fence and its pilings below the mean-high-water line and that Defendants needed a variance to install the fence. The propriety of a site plan, permit, or variance is a matter for the appropriate administrative agency and properly reviewed by the Board of Appeals. See Anne Arundel Co. Code §§ 3-1- 04, 18-6-301 et seq., 18-16-401 et seq. Enforcement matters are appropriately instituted before the Department of Inspections and Permits and aggrieved parties may seek review by the Board of Appeals. Anne Anmdel Co. Code §§ 18-17-201 et seq. The Court may not address the merits of a plaintiff’s claim unless the plaintiff exhausted all administrative remedies before filing a petition for judicial review of the agency decision. See e.g., Furnitureland S, Inc. v. Comptroller of Treasury, 364 Md. 126 (2001).

CONCLUSION

For the reasons set forth in this memorandum opinion, the Court shall enter the order attached hereto

MAGOTHY RIVER ASSOCIATION, inc., et al. * IN THE

Plaintiff                                                                               *CIRCUIT COURT

v.                                                                                           * FOR

DAVID CLICKNER, et al.                                            * ANNE ARUNDEL COUNTY

Defendants                                                                      * CASE NO.: 02-C-08-132884

* * * * * * * * * * * * *

ORDER

This matter came before the Court on September 9, 10, 11, and 24, 2009, for a bench trial. Upon consideration of the parties written and oral arguments and responses, it is this 7th day of May 2010, by the Circuit Court for Anne Arundel County, hereby

ORDERED, that the public has an easement by prescription to use the beach on Dobbins Island, from the mean high watermark to the vegetation line, to swim, sunbathe, walk,  picnic, kayak, boat, and anchor; and it is further

ORDERED, that Defendants are to remove the rope, chain, or cable lines on the

park style fencing that interferes with the public easement; and it is further

ORDERED, that all open court costs are to be equally shared by the parties.

SILKWORTH, Judge

[2] Case law with regard to prescriptive easements is silent with respect to the intent of the adverse user. However, case law related to adverse possession is somewhat instructive, where possession due to inadvertence, ignorance, or mistake, is immaterial. See Miklasz v. G.W. Stone, Inc., 60 Md. App. 438 (1984). Therefore, it is reasonable to conclude that after the burden shifts to the non-claimant, the affirmative evidence rebutting the presumption must be supported by an owner’s grant of permission or license to use the land for the claimed purpose.

Piers, Waterfront and Riparian Rights

To hear Mr. Schwenk discussing riparian rights on Real Estate Today Radio – click here.

When you own waterfront, you get more than just property.   You get a view, you get certain risks (like flooding and erosion) and you get what are known as riparian rights.   A waterfront owner does not own the water, and does not own the land under the water, or even the land below the tide-line, but does own access to the water.   Such a right, however, can be encroached upon by a neighbor’s pier, or transferred to a community association for the rights of the community, or otherwise impeded. These situations can create great conflict within a community, and have grave and permanent implications to the economic and personal interests of property owners. The text below provides a general overview of riparian rights, based on Maryland law.  Riparian rights in the Eastern United States are very different from those in the West, and this article focuses on the East  For specific questions, please contact us directly.

Maryland’s Court of Appeals has described riparian rights as follows:

“It is well established that the title to land under navigable water is in the State of Maryland, subject to the paramount right of the United States to protect navigation in the navigable waters.

The owner of the fast land, however, has a common law right to land formed by accretion adjacent to the fast land and has the right of access to the navigable part of the river in front of his fast land, with the right to make a landing, wharf or pier in front of his fast land, subject, however, to general rules and regulations imposed by the public authorities necessary to protect the rights of the public.

When the statutory law grants the right to a riparian owner to extend his lot or to improve out to the limits prescribed by the public authorities, the riparian owner receives a ‘franchise-a vested right, peculiar in its nature but a quasi property of which the lot owner cannot not be lawfully deprived without his consent.’

When the lot owner makes improvements in front of his lot, complete title then vests in him in the improvements provided it is in front of his lot and does not appropriate the riparian rights of his neighbors.”

Parsing the language, one finds the following principles.

1. The State owns the land under the water, and the United States has an overriding interest in preserving public navigation.

2. The waterfront property owner has the right to accretion (such as a beach deposited by currents) and access, but a government may regulate access such as piers and wharves to assure that public rights are protected.

3. The right to extend and improve, where granted, transfers with the property.

4. The right to extend and improve does not allow a landowner to intrude on his neighbor’s rights.

5. The riparian owner has the “right of access” to and from the waters.

Since everyone has neighbors, the relative rights of one’s neighbors can become an issue, as can the extent of the government’s right to regulate. And such issues can and do evolve into open disputes. If you find yourself in conflict, there are some immediate steps that must be taken. First, be aware that your rights could be foreclosed by the statute of limitations. In Maryland, the general statute of limitations is 3 years. In some cases, however, a contract may extend or shorten the period in which action must be taken. It is even possible (through a doctrine known as adverse possession) for title to pass after 20 years of possession. Second, document the facts: take pictures; obtain copies of and permit applications; find public records. Many cases are determined by who marshals the facts first – the head start can be crucial. Also – and this may need to be your first step – consult a lawyer. A lawyer’s time can be expensive – but not when compared to the cost of losing forever the rights attendant to waterfront property.

The purchase of any Maryland business can be a complicated process.  The purchase of a marina on the Chesapeake or the Coastal Bays, however, adds a number of issues that are specific to the marina’s position on the waterfront.  There are few other businesses where access must be considered from both the land and the water; where environmental regulations and controls are of such immediate consequence; and where a love for the water can be as much of a driving force as business considerations.  The list below is a truncated version of the checklist that we use at Waterfrontlaw to assist purchasers and sellers in organizing for a purchase or sale.

If you are considering a purchase or sale of a marina, we urge you to review the list below, formulate a plan of attack, and then to bring the transaction to our attention.  We can help with identifying the areas of risk that require additional research.  We can help with identifying poor transaction partners or troublesome real property before too many resources are expended.  And, of course, we can assist with preparing the papers that will form the core of the transaction.  In many cases, we may already have first hand knowledge of the property in question.

Due Diligence Documentation

This article is reprinted from the February, 2005 issue of Soundings-Trade Only, and reflects the author’s recollection of a panel discussion at the International Marina Conference in San Diego, California.  Mr. Schwenk was one of the panelists asked to address liability issues in the marina industry.  The suggestions given were necessarily of a general nature, since there were attendees from all over the world. In brief, those suggestions were: 1. Maintain best professional practices, as those reflect the best thinking in the industry; 2. Add language to one’s principal contracts to insulate your business from claims (these are “exculpatory clauses”); and 3. Make a timely, appropriate response to any problem that arises, or a small problem may spin out of control.

Liability Issues:  Fix the Problems, Avoid Lawsuits

Maintaining the “best professional practices” is called the surest way of staying out of court

By Lindsey Savin/Staff Writer

Soundings Trade Only, February, 2005

Liability issues are among a marina operator’s greatest concerns, and a panel of experts at January’s International Marina Conference in San Diego offers up some advice on how to cope with them.

The panel, moderated by Mick Bettesworth of Marina Developments Ltd. in the United Kingdom, included Mark Yearn of Universal Insurance Services; Dirk Schwenk of the maritime law firm Baylaw, LLC; and Jopie Helsen, owner of Sailor’s Wharf Yacht Yard in St. Petersburg, Fla.

Schwenk said prevention is the best approach.  Maintain the “best professional practices” possible, he said, and, “Fix the problems.”

Being certain you understand your insurance policies – what is covered and what is not – is also critical, Schwenk said.  “You need to have a good idea what’s in your contract.”

“Each facility has its own characteristics and can’t be put in a magic insurance or liability box,” Yearn said.  Still, he suggested, owners and operators can seek out specialists who can customize a facility-specific insurance program.

Because a customer can reverse charges on a credit card for up to 18 months after a transaction is made, Helsen suggested marina owners consider not accepting credit cards as a method of payment, or at the very least encouraging customers to use some other form to square up their bills.

“Taking almost anything other than a credit card is preferable,” Schwenk agreed.

Another suggestion raised by panelists was marina owners should always make sure the “added insured” box is always checked on a marina patron’s or independent contractor’s proof of insurance when presented to the facility owner.  “No good landlord would lease property to someone without proof of insurance, and [the renter should] add the landlord as an added insured,” said Schwenk.

Schwenk also suggested marina owners consider including exculpatory clauses in both their customer and supplier contracts.  These clauses, he said, “can have a chilling effect” on prospective lawsuits.  “They can stop some claims before they even start,” he said.

“Your contracts are the strength of your business,” echoed Yearn.  “The stronger your contracts are, the better off you’re going to be.”

In the end, probably the best preventative measure a marine owner can take to ensure limited liability is to fix problems at the facility as they occur and not wait for them to snowball.

Timely, appropriate response to those things is 99 percent of the battle,” Schwenk concluded.