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
[1] Plaintiffs argue that an easement exists by implied dedication. Implying a dedication solely through long public use, absent intent to dedicate is a form of easement by prescription. Dept. of Nat. Res., 271 Md. At 8.
[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.