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.
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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.