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 of land 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 2008, 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 *257 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 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: “[f]or 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 incredi *258 ble 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 of its 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 *259 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 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.
(i) Littoral means belonging to the shore, as of seas and great lakes. (Internal citations omitted.).
*260 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 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 lifelong affinity 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 summer 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 did not necessarily know who owned the island. 3 Further, the witnesses did not *261 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 know if it was state-owned. I actually thought at one point it might be. I 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.
*262 Q. And you felt like your use was generally permitted by the owner, didn’t you?
A. Yeah, I guess so. I mean I never thought about it. I never thought about who owned it because it was something I 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. I wouldn’t say that. I never thought that way. I never felt that I 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. I 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. I think when I use the word trespasser I 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 defining trespasser, no I don’t think I 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 [the] Chesapeake Bay” that *263 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 Dobbin family. Appellants also introduced a book entitled “Over the Side,” written by *264 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 permission. 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, 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 but Defendant did not provide affirmative evidence that prior landowners gave permission or license to *265 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 writ of certiorari, on our initiative.
Clickner v. Magothy River Ass’n, Inc.,
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?
*266 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 opportunity 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,
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 of its citizens, the navigable water
6
of the Magothy River surrounding Dobbins Island and the subject beach up to the mean high water line.
See
Md.Code (1974, 1984 Repl. Vol.), § 16-101(o ) 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,
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 non-possessory interest in the real property of another that can arise either by express grant or implication.
Boucher v. Boyer,
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,
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 continued use and enjoyment by *270 the public of such way had a legal rather than an illegal origin.
Thomas,
*271 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 plaintiffs land [acjquired by user merely. This, of course, must be confined to a defined 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 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 indefi *272 nite 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,
The second rationale explained in Thomas, and relied on by the Clickners in the instant case, is the Court’s following admonition:
[Considering 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 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 *273 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,
This understanding of
Thomas
is informed by our decision in
Department of Natural Resources v. Ocean City,
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 *275 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 find 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,
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,
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 *276 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 beach at Ocean City is a public beach.
Ocean City,
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 *277 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 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 [274] Md. 1 [332 A.2d 630 ] (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,
III.
Because we have held,
supra,
that a prescriptive easement may be acquired by the public along inland shores,
*278
we must now analyze whether the elements have been satisfied in the instant ease. “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,
*280
This Court explained adverse use in the context of prescriptive easements in the early case of
Cox v. Forrest,
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 *281 way was by license or contract inconsistent with a claim of right.
Cox,
A use is adverse if it occurs without license or permission.
Kirby,
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 of the owner. This
*282
Court first referenced the so-called “woodlands exception” to the general presumption of adverse use in
Day v. Allender,
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,
This Court further explicated the doctrine in
Wilson v. Waters,
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,
In
Leekley v. Dewing,
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,
In
Forrester v. Kiler,
*284 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 wild-lands 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,
[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,
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
*285
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,
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,
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
*286
locally well-known and unhidden, 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,
The visibility of the use is one rationale which guided the common-law development of the woodlands exception.
Leekley,
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 of its owners.
See Thomas,
*288
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,
As noted,
supra,
“[a]s a general rule, permissive use can never ripen into a prescriptive easement.”
Kirby,
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 of the owner, the possession would not be hostile or adverse and could not evolve into a subsisting title on which recovery could be had, *289 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 it its character as adversary.
Hungerford,
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. rel Shorett,
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.
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED; CASE REMANDED TO THAT COURT WITH DIRECTION TO ENTER JUDGMENT IN FAVOR OF APPELLANTS, CONSISTENT WITH THIS OPINION. APPELLEES TO PAY THE COSTS.
Notes
. Just as in
Department of Natural Resources v. Ocean City,
(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/ptd/ glossary.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 *259 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); Natl 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).”)].
. The Appellees had filed an earlier, similar action in December of 2006, and dismissed it without prejudice in April of 2007.
. 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, *261 whose testimony is recounted herein, did not know whether the island was publicly or privately owned.
. 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,
. The propriety of this ruling is not before us, and we do not address it.
. “Navigable water” has been defined by this Court as “water where the tide ebbs and flows.”
Dep’t of Natural Res. v. Ocean City,
. 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. 1 (2011) (hereinafter Law of Easements) ("A current controversy involves claimed public prescriptive easements to use privately owned beaches or lakefronts for recreational purposes.”).
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,
. 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,
. Several other states have held, based on the historical reticence to recognize 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 rel. Haman v. Fox,
. As lo 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,
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 terms, however few the number who avail themselves to it.” Garret[t] v. Gray, 258 Md. 363, 378 [266 A.2d 21 ] (1970). Here, there is ample evidence showing the common use of the beach by the public at large.
*280
We agree with the trial judge’s analysis. This Court in
Garrett v. Gray,
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,
. By way of illustration, we decline to follow the direction of the Supreme Court of California in
Gion-Deitz v. City of Santa Cruz, 2
Cal.3d 29,