Department of Natural Resources v. Mayor of Ocean City

OF DEPARTMENT NATURAL RESOURCES et al. AND

MAYOR COUNCIL OF OCEAN CITY et al. 64, September Term, 1974.]

[No. February 21,

Decided argued J., before C. and The cause was Murphy, Singley, JJ. Eldridge and O’Donnell, Smith, Levine, Digges, Fox, Hearne, Hamilton P. with whom were Bailey Fox & on K. brief, Park, Inc., part appellants. Warren for E. T. the General, were Attorney with whom Francis Rich, Assistant Lord, Deputy Attorney General, Henry R. Burch, and B. General, brief, Department for of Natural Attorney appellant. Resources, other Richardson, Rogan, Jr., with whom were Rogan, L.

Patrick Inc., brief, Street, part for 71st &Heland on Anderson City Mayor Cathell, ttomey, A and City appellees. R. Dale appellee. City, other of Ocean Council opinion of the Court. Singley, J., delivered Eldridge, page dissenting opinion at J., filed a dissents and infra. rights of the time the extent for the first This case raises of the neighboring owners and members which — Maryland City, in littoral at Ocean respectively have the Atlantic lies west of which portion of beach opinion as line, this high referred mean tide Ocean’s high water mark.” “mean originally as development known involved is

The area Park, (Park), Inc. 1940. E. T. Oceanbay City, platted in first corporation by Dr. owned is a petitioners, one of block 38 Park lots owns J. Kohlerman. Nicholas Oceanbay City improved by occupied by a residence Dr. Kohlerman. These lots front 100 feet on the south side of locally feet, depth what is known as 71st Street with a of 120 lying generally to the rear of an ocean front tract 100feet in depth, width feet known lots 4 block, Street, (the Developer).1 same owned 71st Inc. Developer When Park learned that had filed an application building permit for a for the construction of a tract, condominium on ocean its front an action was by Park in County instituted the Circuit Court for Worcester against Developer; Developer’s builder; Mayor City (the City), City’s Council of Ocean and the building inspector, sought enjoin the construction building permit condominium and the issuance of a City. complaint grounded it,

Park’s on the was contention that along general public, acquired with the by had an easement implied dedication, prescription, permitting or custom use as a beach of the area between the mean low water vegetation mark on the east west, and the line of particularly dry lying the Developer’s sand area between the vegetation lot the line on east the line of the on west. It was building contended that the to be erected would have its City building eastern front at the Ocean limit line and would entirely be line, almost the east of the dune which is generally vegetation. the same as the line of a result, As the dry sand beach might would narrowed and at times be by action, effectively covered wave denying thus use of the beach. petition

On filed after the instituted, action had been Maryland, Department State of (the Natural Resources State) permitted party was plaintiff. to intervene From denying injunctive an order prayed, relief Park and the appealed State Special Appeals. Court On motion of petitioners, granted we certiorari. platted 1. Lots 4 and were as ocean front lots in In 1940. front by lot lines were moved bach 150 feet to reflect erosion occasioned March, storm, and six lots were from the eliminated block. City system Ocean is located on one of a of barrier islands parallels along the mainland the Atlantic coast from England. Florida to New Because of the low elevation unprotected character islands on the coast, they Maryland-Delaware particularly susceptible are to wave and wind action. testimony

There was below that the beach where the Developer’s process tract is located underwent a of accretion 79-year period ending gained when it width at annually. average an of 1.6 feet From it lost through some 270 feet erosion. After unusual storm of March, 1962, it was 450 feet narrower than it had been in past years, protective

For the measures have been undertaken, supplied at first with funds the State of Maryland. placing fences, These consisted of the of sand asphalt groins, bulldozing construction of and the of sand. storm, designation After the 1962 and the of the Ocean Area, beach as a National Disaster the reconstruction Army Corps of a dune line was commenced the U.S. Engineers. Developer’s predecessors joined in title property granting perpetual other owners a easement to County Worcester for the construction and maintenance of the dune.2 agreement creating grants, pertinent part:

2. The the easement perpetual property "... purpose easement across the aforesaid for the constructing, reconstructing maintaining a sand (to originally dune barrier be constructed or reconstructed Corps Engineers Army) protection of of the U.S. for the of our property, property vicinity the other in this and the generally, grant right but in connection therewith do the further to property construct and maintain across our other and sand fences or such protective necessary, being devices as it understood County agreed County, that the Commissioners of Worcester agents, employees, assigns hereby their successors and are vested rights, powers authority necessary with all for construction, reconstruction, repair and maintenance of said dune barrier, to such action is protective devices, including sand fences or other enlarge subsequently said dune barrier if it is determined that necessary protection property.” for the provision: There is a further any improvements

“... that or other facilities to be constructed or City, lay long outside the limits of the So as the dune building permits County to issue refused Commissioners years the dune line. Some after the 71st construction east of by City County Street area was annexed Ocean longer responsible position it was no for the took the that consequence, the dune. As a maintenance building line of structures proceeded to delineate a limit east existing, dune line. which in this area was east then foreshore, public’s right use the the area regards the As mark, easterly high water there extending from the mean Bowlby, (1894). It doubt, Shively v. 152 U. S. can be little navigable land under long water and the has been held public, Smith v. by State, for the benefit it is held Clark, and Water Maryland, (1855); 1 R. Waters 59 U. S. 192-94, 42.1, (1967); 1 Rights (B)-(C), at at 264-67 36.3 §§ (2d 1957).3 At the Patton, ed. Land Titles at 352-54 § by I to Lord grant of the Charles time of the Charter Baltimore, by and transferred to it was owned the Crown (1821) Kennedy, & 195 proprietor, Browne v. 5 H. J. for the has held the State been after Revolution Declaration virtue of Article 5 of our benefit of the Corp., Works v. Larmar 262 Md. Rights, Board Public Public (1971); Kerpelman v. Board 277 A. 2d denied, 56, cert. S. 858 Works, 436, 276 A. 2d 404 U. 261 Md. Day Day, (1865); Baltimore (1971). also 22 Md. 530 See (1831). Prior enactment McKim, 3 Bland premises will be done accordance erected on the aforesaid permits County will be said Commissioners and to be issued permit will the free and in such manner as constructed or erected sand, avoiding unhampered littoral currents and thus flow of possible said dune or destruction of much as disturbance devices, being protective barrier, sand fences or other County times as said AND AGREED that at such UNDERSTOOD assigns may Commissioners, successors and their determine necessary longer granted rights herein are no the for the and easements intended, purposes and in that event the same shall then cease to exist.” states, notably Massachusetts, Hampshire, In some Maine and New private ownership however, water, subject, of the littoral extends to mean low — public right passage Burnham, see Lakeman v. 73 Mass. (1856); Proprietors Wharf, (1847); 437 Frankel, Gerrish v. of Union 26 Me. 384 M. (1969); Law of Seashore Waters and Water Courses 3 American Property 12.34, (A. 1952). Law of at 273-75 J. Casner ed. § 6 Maryland (1957, 1362, now Code

Chapter 129 of the Acts of Vol.) 54, 48, Repl. there 1972 Art. were instances where § patents navigable water, the State issued for land under flows, defined our cases as water where tide ebbs Ruymbeke Patapsco Park, 470, Van v. Industrial 261 Md. (1971). 475, 61, 276 A. 2d 64 only, protects public in the use of the foreshore

This land, over fast right of access is claimed however. 4Ifa dry sand right of user of such of is an assertion of there littoral line, property the front which lies west of where there has In instances support find elsewhere.5 must of the to the owner prior grant of the foreshore been lim thereof is to make use littoral, public’s Tiffany, fishing, 2 H. Law of Real navigation and ited 1939). The notion that 659, (3d 697 ed. Property at § exercised littoral must be rights owner of the of the rights public is paramount in subordination boating, hunt fishing, rights of longer applicable, since no pass and of taking and seaweed ing, bathing, shellfish pro extinguished tanto ing repassing have been Resnick, Orange v. 94 Conn. Town prior grant, by the L. Rev. Comment, Mich. 31 (1920). See 573, 109 A. 864 (1933). 1134, at 1135-39 expanding population and years, of an as a result

In recent line, confronted courts have been of shore amount a limited Clark, posed this case. problem frequently with more instances, the result In (B), some supra, at 200-02. 36.4 § Gewirtz predicated on dedication. sought by Park has been Beach, 2d N.Y.S.2d 495 Long 69 Misc. 330 City v. (1974); Gion 957 1972), aff'd, N.Y.S.2d 358 (Sup. Ct. Rptr. 50, 84 Cal. 29, 465 P. 2d Cruz, Santa 2 Cal. 3d Borough Neptune City v. Borough (1970); Seaway (1972); A. 2d 47 J. Avon-by-the-Sea, 61 N. regards more restrictive English said to be rule is sometimes 4. The Catterall, foreshore, relying B. & Ald. on Blundell use of the Right Property (1821). Angell, in Tide Eng. Rep. See J. (2d 1847). Waters, ed. at 17-35 Street, respondent Inc. conceded argument, 71st for the At counsel challenge the use of to the foreshore access that there was no dedicated streets at the beach. which ended (Tex. General, App. Attorney 375 S.W.2d 923 Civ. Co. v. supra, (B), Compare, 1964); Clark, at 227-30. United 38.2 § County Worcester, Md., Land in 311 F. States v. Certain 1970). Supp. (D. 1039 Md. may suggested an easement be that

Other cases have supra; City Cruz, v. Santa by prescription, Gion created 584, Hay, v. 254 Or. 462 P. 2d 671 State ex rel. Thornton (A), Finally, Clark, supra, 225-27. there is (1969); 38.2 at § support custom, possibility could be found some that Dow, Hay, supra; 22 N. State ex rel. Thornton v. Knowles by invoking concept public trust, (1851), H. 387 Borough Neptune City Borough Avon-by-the-Sea, generally supra, 309-10, 2d See 61 N. J. at 294 A. at 54-55. Rights Theory A Degnan, Public in Ocean Beaches: Syracuse (1973);McKeon, Prescription, 24 Public L. Rev. 935 Beaches, (1970); L. Access to 22 Stanford Rev. 564 Public Submerged A Trust in Tidal Areas: Sometime Traditional Doctrine, (1970). 79 Yale L. J. 762 contentions, considering petitioners’

In the chancellor J.) (Prettyman, noted that much of the littoral Ocean plats, in public use recorded which had been dedicated to designated easterly areas east of the lot lines had been way, “beach,” “boardwalk” or as the location of a all accepted by City. of which had been Ocean Even acceptance, however, implied absence of an easement plat despite from a reference the absence of a reference title, Realty Robey, transferring Williams Co. v. the deed 532, 539-40, 683, (1938); Powell, 175 Md. 2 A. 2d 3 R. (1973); Dedication, c, Property at 424-28 C.J.S. ¶ § Lawson, (1956). Compare, at 447-48 Goodsell v. Md. 348 finding (1875). streets There was also a that east-west beach, Street, running north as 94th at least as far had similarly accepted. been dedicated and

However, prior the chancellor also found as a fact that storm, Developer’s high the 1962 ground, lots stood on grass public. were covered with and were not used finding prior There was a further storm, to the 1962 only portion had used that of the littoral east of the dunes on what was then lots 4 and and that no witness other than Park’s sole stockholder testified as to the use of they lots 4 and 5 as existed after a use which did not antedate 1966.6 why assign reasons the decree the State four

Park and reversed, we shall should be entered the chancellor consider.

(i) high the dune line and mean The area between public. has been dedicated to the water mark there findings, the chancellor concluded on his Based any area within the dedication of express no had been was noted line: no such dedication Developer’s lot County Worcester of easement to plat; and the deed recorded dedication, rather was a express but an did not contain He of the dune. and maintenance to the construction consent implied, because could not be that dedication concluded unequivocal manifestation proof clear and no of a there was was We think this conclusion to dedicate. of an intent Berenholtz, 195, Md. by Toney Schloss v. 243 compelled Baltimore, v. 910, (1966); Canton Co. 204-05, 914 220 A. 2d v. 679, (1907); Harbor Co. 69, 83-84, A. 680 106 Md. Harbor Smith, 537, 541-42, Baltimore 85 Md. [South 27, (1897). Smith,] A. v. Improvement Co. & prescription cannot dedication The between distinction solely long public through use Implying a dedication be lost. part any intent to dedicate regard to without such, all of prescription, and as a form of is but landowner Mt. Sinai rights must be met. prescriptive requisites for 1, 5-6, Corp., Md. Manor Nursing Home, Inc. v. Pleasant Conway v. Prince (1969). But see 917-18 253 A. 2d 416, 419, [Conway v. Board George’s County, 248 Md. 9, 11-12(1968). County Comm’rs,] 237 A. 2d Kohlerman, 6. This was Dr. Nicholas J. who had built a house on lots 22 by acquired 1967, respectively. Park in 1966 and (Ü) right public to use the area has attained high between the dune line and the mean water through prescriptive mark use. right quite the chancellor was when he

We believe that rejected acquired the contention that an easement had been Sinai, 5-6, by prescription, relying supra, Mt. at on Md. Judge Alvey 253 A. 2d at 917-18.As Chief said for the Court Ford, (1885): Thomas 63 Md. 351-52 certainly “It is a settled doctrine in this State only ways roads or kind can by public authority, by dedication, established or by long by public, which, though user not strictly yet analogy prescription, bears so close an inappropriate apply it not to that acquired prescriptive. thus the term Hence the public way may existence of a be established uninterrupted user evidence an

twenty years; presumption being long that such enjoyment by continued use and of such way legal illegal origin. Day had a rather than an Allender, 22 Md. 511....” Sinai, supra, support

As was the case Mt. the law would petitioners, necessary if the facts were available. There simply testimony, Kohlerman’s, was no other than Dr.

regards public’s fact, In use of lots 4 and 5. there was a prior clear inference that the lots had been used no one topography. 1962 because of their Such use as there long have been the after storm failed to meet the test of Property (1974), See also user. Code Real Article 13-113. § (iii) public’s Maryland’s interest coastal shores through established grant custom requires and activities proscribed. violative of the trust be This contention seems primarily upon to be based Article Maryland,

IV of the Charter of 20 June which granted Calvert, Charles I to Caecilius Lord Baltimore all “. . . islands and islets within the limits aforesaid, singular islets, all and islands the and region, shore from eastern of the aforesaid east, been, towards the shall be have or sea, formed within marine situate ten leagues shore; singular from the said with all and harbours, rivers, ports, bays, straits, and belonging region aforesaid, or and all islands woods, lakes, soil, plains, mountains, marshes, rivers, bays, straits, situate, being and or within metes, aforesaid, bounds and limits fishings every fish, whales, kind as well of royal fish, fish, sturgeons, and other other sea, bays, rivers, premises, or straits within the Maxcy, the fish taken: and there ...” Laws of Maryland 1, 2 (1811). subjected grant

and then the reservation contained Article XVI: ample FURTHERMORE, our more

“AND knowledge, and our special grace, and of certain do, US, motion, our heirs and WE mere successors, grant now baron unto aforesaid Baltimore, assigns, his and full and absolute heirs constitute, authority make, and power erect and Maryland, islands province and the within many such, sea-ports, aforesaid, so and and islets unlading and harbours, creeks, places of and other ships, goods and merchandizes out discharge of same, lading vessels, in the boats, other and of and places, and with such many, such in so and privileges, unto jurisdictions, rights, liberties seem to him or them shall ports respecting, as such ships, every And, that expedient: all most to, whatsoever, coming boats, other vessels aforesaid, province for the sake going from the merchandizing, shall be laden and at such unladen only ports as shall be so erected and constituted Baltimore, the said baron of his heirs and now any thing assigns, any usage, custom, or other notwithstanding. contrary to the whatsoever successors, and always US, heirs and Saving our kingdoms England and subjects of our of to all liberty successors, US, Ireland, our heirs and of bays, sea-fish, sea, in the fishing as well of for harbours, rivers, straits, navigable as and aforesaid; province and bays, and of the creeks salting drying on the shores privilege and of fish of cause, to cut down province; and the same growing, twigs hedging-wood and there take necessary in this cabins, huts and and to build they behalf, same in the manner heretofore might, or Which reasonably have used to do. subjects US, privileges, our liberties and the said of successors, enjoy, notable

heirs and shall without damage injury in or wise be done Baltimore, heirs or now baron his aforesaid assigns, or to the residents and inhabitants of province creeks, ports, same and shores aforesaid, especially in and trees the woods damage do growing. any person if shall there And kind, injury peril incur of this he shall pain heavy displeasure US, heirs and our laws, successors, and of the due chastisement of the Maxcy, making supra, besides satisfaction.” at 7-8.

(Emphasis supplied.)7 scope rights The strikingly reserved is reminiscent Roman surprising, law.8 This is not since Justinian’s original Charter, Latin, appears Mary- Archives of 7. land, Proceedings Maryland, 1636-1667, at Council 3-12 (Browne 1885). ed. (1812): Cooper, Justinian, T. The Institutes Book Title 67-68 1 “§ “Things nature, air, common to mankind the law of are the running sea; water, sea, consequently the shores were century.

Institutes well known Britain the 13th Maitland, History English F. Pollock & The Law See 1 F. (2d 1905). ed. petitioners force, argue, The that fish some cannot be dried, constructed, huts twigs salted or or cabins or or gathered foreshore, subject branches on the which is to action, placing therefore of it under continuous tidal some portion day. reading A water a each fair considerable provisions, they say, contemplates right XVI’s Article carry to on such activities on the littoral owned adjacent foreshore, vegetation of the others to the seaward line, long significant so as there is no interference with an rights. owner’s to there are which

It seems us that obstacles must be right only First, king, was the his considered. reserved Second, subjects? reading his heirs and does a fair of the Third, limit to shore? Charter the reservation the ocean did century apply configuration the 17th the reservation to shoreline, westward, the shore or as receded did formerly lay at from the property which a distance ocean Finally, may subject rights become to the reservation?9 any part approaching prohibited from is therefore man no farms, monuments, sea-shore, edifices, damaging from he abstains whilst the sea is.” & are not common as c. which 3 “§ land, greatest winter flood which the over “All tract of itself, the sea-shore.” extends is 5 “§ sea, sea-shore, well as of the is also use of the as “The law of it, cottage any person may upon nations; erect a and therefore dry nets, them from the his and hawl which he resort to to any property water; man, to be are not understood shores ground itself, compared sand or the sea and to the but are to is under the sea.” is in 5 which translated uses the word casa Latin text of the Institutes § The cabin, shed, cottage. Latin hut. The text are or as the Alternate translations (cabin) Compare “tuguriola.” Maryland casa words Charter uses the (1948). Dictionary tugurium See White Latin (hut). Hay Supp. (D. 1972); Bruno, 9. See State rel. 344 F. Or. ex industry regarded century fishing be 17th oriented about the customarily encompassing the uses to which beach put years later? unnecessary are, find questions we Intriguing as these very simple What reason. in this case for a consider them to here, assertion attempting under an petitioners to do are dune, is to public’s right picnic to and sunbathe he has an deny Developer property to which a use of his City’s right: to Ocean to build otherwise lawful injury damage building limit line. This is the “notable and inhabitants done ... residents wise aforesaid, .” which province in . . . . . shores the same specifically proscribed. XVI of the Charter Article question type Accordingly, we do reach the not by incursion, might permitted any, if which the Charter. be below, rely on the rule As the we decline to did chancellor 595, supra, Hay, ex Thornton v. 254 Or. at of State rel. dry 676, public right the to use a sand

P.2d at that the legal description within of a water front area contained the grounded solely public may on custom of use. tract be a custom, sought as to its claim on we are Insofar Park rest quite adopt explicated to satisfied the rationale the one, alleged Kohlerman, a other than Dr. chancellor. No right upon lots, Developer’s he could to venture the even —years go certainly no further than a half back dozen not memory long, to “so that the of man runneth not the contrary,” Blackstone, Moreover, 1 W. Commentaries *76.11 way challenge just Developer can as there is no that the the high mean of others to use the beach between the line, way, water mark and its lot is no under the facts there case, public of this that the use the of the beach east of (1969) Hay, 584, recognized Or. 462 P. 2d 671 which that the Thornton v. single year. dry might as in move as much 200 feet a sand area City Borough Avon-by-the-Sea, Borough Neptune 10. See 61 N. J. 309-10, (1972); Degnan, Rights Public in 294 A. 2d 54-55 Ocean 935, 955-59 Theory (1973). Prescription, Syracuse L. A Rev. Beaches: enforceable, Additionally, notes that to be a Blackstone order continued, reasonable, certain, compulsory, peaceable, custom must be: consistent Blackstone, customs, with other 1 W. *77-78. Commentaries easterly lot line can be extended to the itself in lot a deny which permitted by manner would to the owner a use regulation. law and local petitioners attempt argument to their buttress

The mark contending high between the mean water the area trust, impressed public with line has become the dune expended restoring sums either because of the substantial storm, after or because recreational the dune line thereby be served. would considerations and environmental rejected argument, this do we. There lower court as public acquired interest in was that the had no evidence any authority support lots nor cited 4 and is being simply into as a notion that such an interest come Moreover, expenditure consequence of funds. army engineers regarded from the record that the clear necessary expense which was done at as a work bring area, in order back emergency measure in a disaster storm, prior so that the the situation existed dunes, kept open highway, far could ocean west of Property positive owners an evacuation route. received unequivocal on the dune line assurance that work would use, way ownership, improvement, affect no — disposition property of their an assurance inconsistent idea the work was undertaken to insure that portion general be able to use a of the ocean would front lots.

(iv) high water reverts to mean Land inundated by governmental ownership: reclaimed areas State property. efforts remain State a statement phrase proposition is correct first of this The when, as applicable a submergence, is of law of and submerged. erosion, We gradual fast land becomes result of pass upon the correctness are called here to on not Beach on Carolina phrase, for made second which reliance is 297, Beach, Pier, 277 N. C. Fishing Inc. Town Carolina Hecker, 179 Cal. (1970) People v. 177 App. on S.E.2d 513 and 823, 2d Rptr. (1960). 4 Cal. 334

15 applicable gradual not applicable The to erosion is rule a change, which avulsion, or violent an as a sudden to defined Farnham, boundaries, H. generally land does not affect (1904); 74, Rights at 331-32 Law of and Water Waters § (1938); Am. Jur. Waters 34, C.J.S. Boundaries at 579-80 § 477, (1945). City March, at 1962storm Ocean at 892-95 The § clearly as an It was short would be classified avulsion. height, duration, flooding City at its much of Ocean extensively damaging destroying houses and other or receded, leaving over, it was the waters structures. When unchanged, except disappearance for most the land lined the The idea that title the dunes which had beach. temporarily once the land was flooded reverted to the State simply not tenable contention. paid affirmed, to be Decree costs petitioners. J., ridge, dissenting: Eld out, time that the points is the first majority this

As the public in rights private and the landowners issue of has been Ocean dry sand of the Atlantic beach the littoral upholding however, in majority, presented this Court. expense the beach at to build on the landowner’s weight beach, give sufficient public’s use fails to beach, the various exceptional nature of the ocean use, the historic and surrounding its circumstances in the beach. compelling public interest ocean recognizing country, parts of the in other Courts beaches, the traditional unique of the ocean resource right of them, recently upholding the been public use of have beaches to use the ocean public to continue reaching sunbathing. fishing, strolling In swimming, several different result, have based on the cases been this (Gewirtz Long grounds express dedication such as (Sup. Ct. Beach, 504-505 2d 330 N.Y.S.2d Misc. (1974));implied 1972),aff’d, 45 A.D.2d 358 N.Y.S.2d General, (Seaway Attorney Company v. dedication customary 1964)); rights (Tex.Civ.App. 923, 935-937 S.W.2d 16

(State ex rel. Hay, Thornton v. 584, 254 Or. 671, 462 P. 2d (1969); County 676-678 Sotomura, Hawaii v. 517 P. 2d (Haw. 1973); 61-62 Daytona see Beach v. Tonar-Rama, Inc., (Fla. 1974)); So. 2d prescriptive (Gion City use Cruz, Santa 2 Cal. 3d 50, 55-56, 59, P. Rptr. 2d (1970); Seaway 84 Cal. Company Attorney General, supra, 937-938). 375 S.W.2d at agree parts (ii)

I (iv) majority opinion, of the public rights no subject in the beach area exist because of prescriptive use or temporarily because the land became in However, disagree flooded I with the in conclusion part (i) majority opinion public rights that the has no dry in the sand ocean implied beach dedication. Furthermore, customary use beach, ocean contemplated Maryland’s Charter, from the time of part (iii) in majority discussed opinion important is an which, together factor considered circumstances, with other leads me public to the conclusion that the has dedication dry to use the swimming, sand beach for fishing, sunbathing, and other normal beach activities.. majority opinion, recognizing not easement

by implied subject dedication in ocean beach above the high mark, mean tide unique fails to deal with the factors involved this An prior Maryland case. examination of cases convinces me that the implied doctrine of dedication is fully applicable here. years ago, Judge Alvey

Almost one hundred (later Chief Judge) speaking for the Baltimore, Court McCormick v. (1877), Md. 512 it made clear that dedication of land to any use particular need not take form and that landowner’s intent to dedicate his land to use presumed from acts or estop conduct which him from denying public’s right. (45 523): It was thus stated Md. at

“It is now settled that is not essential to a complete legal dedication that pass title should owner, from nor that there should be grantee of the fee; easement esse to take the nor necessary is it there should be a deed or dedication; writing in but if order to evidence pais in has done such acts the owner of the land thereby dedication, estopped from to a he is amount enjoy denying public have a to what that the use, revoking dedicated to its or from what is thus he his acts.” has declared (id. 524): at

And later “The evidence of such intention is dedicate] [to ways; . . . dedication will furnished various but presumed be where the facts and circumstances of clearly it....” the case warrant Frick, Mayor

In Council Baltimore v. 82 Md. (1895), emphasized there are no 33 A. 435 the Court that applicable implied dedication, general rules to all cases of depends and that each case on its own facts circumstances, saying: very to

“Indeed it has been found that it is difficult lay any general applicable down rule to all cases [of implied It has been said ‘that each dedication]. by itself, taking

individual case must be decided circumstances, into consideration all the attendant respective parties acts, the condition of the and the declarations and intentions of the landowner as largely manifested his conduct. For it is ground pais estoppel principle that ” dedication rests.’ Lonaconing Ry. Co., The Court Co. v. Consol. Coal 630, 634, (1902), particular Md. A. reiterated that no formality act or is needed for dedication of land to use, expressed the intent to do so need not be particular manner, may implied and that dedication be from the landowner’s conduct:

“ particular ceremony ‘There is no form necessary in the dedication of land All use. required is the assent of the owner of the being purposes

land and the fact of its used for the White, appropriation.’ Cincinnati v. intended Chicago Alton 431, 440; Morgan Pet. & R. Co., This not 96 U. S. 723. assent need be R. manner, any particular expressed in but implied of the owner of the land. from conduct 133; Streets, Kolb, on Carr Elliott Roads and sec. 53; Ward, 520; Noyes v. Abcott v. Ind. 19 Conn. Mills, conveyance of the land is 3 Vt. No necessary any grantee in esse nor need there be title, ‘but of the land has take the if the owner done pais acts in as amount to a dedication he is such thereby estopped denying public that from have enjoy right to what is thus dedicated to their use a revoking from what he has declared his acts.’ or 523; Mayor, v. Md. Hiss v. B. & H. P. McCormick 45 Co., purely R. 52 Md. 250. Dedication is a R. any act or acts of question of intention manifesting clearly owner of the land such intention is sufficient.” 419-420, Shiebeck, recently, in Smith v. 180 Md.

More (1942), Delaplaine pointed for Judge the Court 795 A. 2d an public is a manifestation of acquiescence in use out that use, facility public need that such use dedicate a intent to any length of prescriptive period definite not be for hostile, time, and that each public use need not be that involved in that depends upon all of the circumstances case case: intention, any purely question of a

“As dedication clearly manifesting such a an landowner act . . . The intention to dedicate intention is sufficient. implied of the landowner. be from the conduct open passage example, person a a If, for throws prohibit land, through makes no effort to his it, through not passing and does show persons from sign preserve to by any he his visible that wishes it, his is manifestation an right over action public highway use intention to dedicate Thus, presumed so it. he is have dedicated question largely upon of dedication rests ground estoppel. to a . . . depend upon

road does not its continuous use for a period twenty years or for other definite length time, upon its use with the but assent period the owner for such a that private rights might accommodation and materially interruption an affected of such enjoyment. particular . . . Each case must be by considering decided the declarations of the landowner, acts, his intentions as manifested his and all the other In circumstances of the case. our opinion, complaint case, alleging the bill of in this question public road, road is a is not merely expressly defective because it does not allege use of the road has been notorious and hostile.” Conway principles setting are forth these same cases

Other 418-419, 237 A. 2d 9 George’s County, 248 Md. Prince 195, 204-205, Berenholtz, Toney 243 Md. (1968); Schloss 260, 265, Air, Bel 178 Md. (1966);Harlan v. A. 2d 910 City, Md. Co. v. Baltimore (1940); Canton A. 2d 370 Mayor City Council (1907);Pitts v. 83-84, 66 679A. Baltimore, 326, 332, (1891). 21 A. 73 Md. hold, fast rules with there are few hard and

As these cases law, Maryland and each respect implied dedication under to light peculiar in of its own situation must be viewed warranting the The circumstances circumstances. right to general public of this State has a that the conclusion high mean tide are as at Ocean above use the beach follows: in Maryland (1632), set forth the of as

The Charter have majority opinion, that the ocean beach was to indicated certainly contemplated public unique status. The Charter a subjects beach, it reserved to the use of the ocean “successors,” “privilege Ireland, the England and their and province; salting drying of the same and fish shores hedging-wood cause, for that to cut down and take 20 necessary cabins, growing, and build huts and

twigs to there they behalf, as in the same manner heretofore this in by pointed reasonably might, used do.” As out or have to privileges majority opinion, in the these petitioners and also use public required that the be able to reserved dry high tide. the line of mean beach above the sand clearly area Moreover, showed that the beach the evidence by general the this had in fact been used in case involved witness, many prior litigation. One years to this public for City. captain Ocean George Schoepf, assistant of the the per 1,000 people Patrol, that an estimated Beach testified Streets, 71st day 70th and the beach between used part, a on summer weekends. was some disputed area give the number of users Although he could not a count of part of were a portions respondent’s lots and which testify dry beach, the use of lots he did to sand Street portion crowds which used 70th-71st a of the witness, Kohlerman, the sole stockholder Dr. beach. Another directly Park, Inc., land petitioner E. the owner of the in T. bathing, “swimming, testified as west of lots picnicking” public on lots sunbathing, ball-playing, presented respondent no evidence and 5. There was predecessor in action or its title took landowner I prevent public. discourage use of the beach While by the suggest acquiescence in the use do not that mere more, property, without constitutes a landowner’s dedication, important is an implied an nevertheless indicating land as an intent to dedicate such circumstance Shiebeck, supra. Smith v. this to use. plat, original is made factor in this case

Another litigation, designated involved this area bordering on portion that area the ocean as “beach.” Oceanbay plat (the City plat) an also contained 1940 revised designated running along area shore which was plat area, The most recent submitted “boardwalk.” designated adjacent an to the Atlantic Ocean also area Although dispute within as “beach.” sand beach not designated plats, the area “beach” on the because the beach erosion, plats has result show moved westward these recognition immediately adjacent a consistent that the area kept to the ocean was to be as beach. prior

The evidence also showed that to the 1938 completion paved line, of a road to the Delaware the beach in dispute the area of public had been used as a road. See Seaway Attorney General, Co. v. supra, 375 S.W.2d at 935. expenditure government

The provision funds for the services on the beach area at issue in this case is a indicating public, circumstance the that as well as the property owners, understood that the beach was dedicated to Testimony use. demonstrated beach, the entire including issue, the kept area at has been clean government Lifeguard authorities. services have been provided by city point disputed at a near the area which protected using part swimmers the beach. Regulations governing the behavior of members of the public on the beach promulgated have been enforced the beach area county here involved. city and later the provided patrolling of the See City beach. Gion v. Santa Cruz, supra, 465 P. 2d at expenditures

Government preserve were also made to disputed beach area. In State and in 1953 the county along length erected sand fences of the island to up protect build dunes to In 1954, asphalt beach. jetty an was constructed at protect 70th Street to the beach near that point. Following the damage extensive to the 70th-71st Streets area caused Army storm of Corps Engineers along rebuilt the dune length line the entire beach, including property question. 1,050,000 cubic yards pumped of sand bay were from the to the beach for rebuilding use in operation dunes. This cost over one and a half million dollars of funds. Easements were obtained property from all owners to allow construction maintenance of the dunes. See United States v. Harrison County, Mississippi, (5th 399 F. 2d 1968). Cir.

Lastly, understanding of the citizens of this State that open the entire beach at Ocean should be Anyone City, who considered. has visited Ocean and this Marylanders, most that no one has would include knows questioned any his the ever to stroll beach and swim at length assumption point on island. This is an on the the profitable development rapid Ocean which the assumption an have has been It is which must been based. respondents. respondent known to When the landowner the dry beach, public accepted sand allowed the use the protections respect government the services and with to the beach, endorsing widely public he held belief. was this above, together, taken me

The various factors listed lead predecessors in that the landowner and his conclusion public’s right to the recognized public’s title have the use and extent, implied dry beach an that an use of the sand to such public purposes has easement the for recreational been factors, alone, in the taken result this created. None of above compel conclusion, the this nor do two of factors result. together But all the circumstances evaluated create a implied by picture the landowner and total of an dedication acceptance by public. general an See unmistakable General, Seaway Company Attorney supra, 375 S.W.2d at 935-937, essentially similar circumstances led the where Appeals to hold the Texas Court of Texas that Civil by implied dedication to use beach had an easement along Mexico. Gulf geographic unique Atlantic beach is a

Because the Ocean phenomenon, because is such a limited resource of the Maryland, in it involvement State because than has been a different character that associated with land, I types would reach in this other result case Maryland prior involving law not at all inconsistent with Thus in implied issue of dedication of the shore. Thomas in Ford, (1885), held that the defendant this Court 63 Md. 346 easement, prescription acquired that case no either implied dedication, plaintiff’s on to store wood shore public’s upon general use along the River based Patuxent shore, acquiesced of that which use had been plaintiff. denying for an of the chief reasons that case One storage was the defendant for the of wood easement to such amount to an exclusive an easement would general with appropriation land, inconsistent public’s However, shore. the Court use of the 63 Md. at merely permitting that, policy, also held for reasons of give rise to an easement. to use the shore should not (id. Alvey at Judge stated the Court Thomas Chief 354-355): case, repeat appropriate to we here

“As this said, great force of reason what was COWEN, J., Post, considering vs. Pearsall State, great our and extent of lines within shore by the indulgence extended long uniform and who have had to those proprietors of those shores with purposes connected use them for to occasion transportation fishing, water a decision which or turning possibility of such should admit permissive enjoyment prescriptive and into public, open part would absolute of the community litigation a could field of which no point is in a endure. And what still worse moral neighborhood view, perverting it would be indulgence kind to the destruction forbearance and rights. important Consequently, if it once be permissive indulgence that understood this may proprietors be the shores construed privileges, into irrevocable restrictions and follow, inevitably to hinderances will avoid the possibility permissive maturing such use into public rights. production any adverse The such surely consequence ought to be not desired anyone.” merely

I fully agree passage, above-quoted with the that permitting boating, use shore for fishing give swimming or in itself rise to an should not respect The same farmer easement. could be said with to a land, permitting public to hunt on his landowner However, permitting picnicking, hiking, pointed out etc.

above, entirely presents matter. the ocean beach an different over three Maryland’s tidal shoreline measures inland

While only thirty-five miles miles, its ocean shoreline thousand of the Charter long. recapitulate, from the time To Not unique status. Maryland on, beach has had the ocean public’s in the use of acquiesced only have the landowners services, government beach, they accepted but have respect to the beach regulations with protections and government totally than the character of a different are provided for other regulations services, protections consistently shown Plats have types privately owned land. property as “beach.” to be dedicated an area types that use of other well understand of the State owners effect a dedication activities does not recreational of land for common is in stark contrast public. This is a understanding the beach at Ocean that beach. holdings of this Court consistent light

In any particular take public use need not land to dedication of rules, that a depend hard and fast form, not on that it does presumed from acts intent to dedicate landowner’s upon facts depends its own conduct, each case and that below on circumstances, I reverse the decision would associated and circumstances peculiar facts ground that the use, compel the conclusion and its the ocean beach respondent landowner’s dry the front of beach at the sand by general use the to recreational dedicated lots has been public. respondent argue that the case in this

Petitioners beach to the to have dedicated the be held landowner should I would decide 1962 storm. Since after the line of dunes built part property constituted a only part the dedicated, by public was the dry used the sand beach of the Other courts by petitioners be too inclusive. urged line constitutes the question of what faced with the when pursuits have settled public recreational “beach” for vegetation. growth by beginning marked line 63; Sotomura, supra, 517 P. 2d at v. County Hawaii at Attorney General, supra, S.W.2d Seaway Co. Hay, supra, 462 P. 2d at 939; Thornton v. State ex rel. logical delineating This would method 672-673. line the level reached vegetation sinee the marks

“beach” enough growth prevent of the ocean often waters hand, if showed that in a plants. On the the evidence other traditionally area, used particular portion of the beach acquiescence adjoining authorities, landowners, was and maintained line, use vegetation then that line of of the east line the limit of the vegetation should be eastward I public’s reverse decree easement «ueh area. would proceedings consistent with remand for further below and expressed. herein views NATURAL RESOURCES DEPARTMENT OF CROPPER et al. 172, September Term, 1974.]

[No. February

Decided

Case Details

Case Name: Department of Natural Resources v. Mayor of Ocean City

Court Name: Court of Appeals of Maryland

Date Published: Feb 21, 1975

Citation: 332 A.2d 630

Docket Number: [No. 64, September Term, 1974.]

Court Abbreviation: Md.