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
* * * * * * * * * * * * *
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.
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.”
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. Continue reading