Becker v. Litty

• Decision Date: 20 December 1989
• Citation: 566 A.2d 1101,318 Md. 76
• Parties: William B. BECKER et al. v. Ernest J. LITTY, Jr. et ux. 139 Sept. Term 1988.
• Court: Maryland Court of Appeals

Page 76

318 Md. 76

566 A.2d 1101

William B. BECKER et al. v. Ernest J. LITTY, Jr. et ux.

139 Sept. Term 1988.

Court of Appeals of Maryland.

Dec. 20, 1989.

Opinion Modified upon Motion for Reconsideration Feb. 7, 1990.

Michael J. Jacobs (Miles & Stockbridge, both on brief), Easton, for petitioners.

Eileen E. Powers (Brassel & Baldwin, P.A., both on brief), Annapolis, for respondents.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.

ADKINS, Judge.

Boone Creek is a tidal estuary located near Oxford, Talbot County, Maryland. ¹ A somewhat tortuous channel at its mouth leads to the Choptank River. The Creek is divided into what are known as the North and Southeast Branches. At the confluence of these branches is Sol's Island, containing perhaps as much as five acres of land. A bridge spanning the roughly 240 feet from Sol's Island to the mainland is the focus of controversy in this case, which raises, among other issues, important questions of riparian rights, the preemptive effect of a United States Coast Guard bridge permit, and standing. We shall resolve these issues, but, because the record before us clearly does not reflect a number of matters that bear on the ultimate disposition of the case, we shall remand under Maryland Rule 8-604(d), for further proceedings.

I. Facts

In May 1986, appellee Suzanne Hanks Litty acquired title to Sol's Island, then an essentially uninhabited tract of land accessible only by air or via the waters of Boone Creek. She and her husband, appellee Ernest Litty (the Littys), decided to build a residence on the island. They also decided, it seems, that an aerial or aquatic commute would have its drawbacks. In October 1986, the Littys obtained a United States Coast Guard permit to build a private, one-lane, fixed bridge across the aforesaid 240 feet between Sol's Island and the mainland. The permit specified that the bridge should have three feet of vertical clearance over Boone Creek at mean high water.

Although the Coast Guard had given public notice of the application for the bridge permit, and also had notified certain federal and State agencies, some of the Littys' Boone Creek neighbors did not become aware of the situation until after the permit had issued. When they learned of the permit, those neighbors lost no time in protesting to the Littys, the Coast Guard, and others. Despite these objections, the Littys actively prepared for erection of the bridge.

On 11 January 1988, appellants William B. Becker and his wife Jean, along with 12 others who owned property, or in most cases both owned property and resided on the shores of Boone Creek, filed a complaint against the Littys seeking to enjoin construction of the bridge. Because the individual appellants assert essentially identical interests, we shall refer to them, collectively, as "the Beckers." On 2 February 1988, the Circuit Court for Talbot County (Wise, J.) issued an interlocutory injunction barring construction of the bridge. On 25 August it dissolved that injunction and granted summary judgment in favor of the Littys and against the Beckers. We frame the issues in this appeal by explaining the Beckers' theories below, and the trial court's reasons for rejecting them.

II. Issues and Rulings in the Circuit Court

The Beckers' and their co-parties' properties are located at various spots on the North and Southeast Branches of Boone Creek. In the circuit court they asserted that they owned various vessels by which they navigated between the branches of the Creek and from the Creek to the Choptank River. They alleged that Boone Creek to the south and southeast of Sol's Island was too shallow to permit navigation as a practical matter. Thus, the only way they could move between the branches, and for those whose properties lay on the Southeast Branch, into the Choptank, was through the narrow channel between Sol's Island and the mainland. A bridge with only three feet of vertical clearance would effectively block this navigation. This, averred the Beckers, would deprive them of their riparian rights and cause substantial depreciation in the values of their properties. They claimed, moreover, that the Littys should have obtained certain Talbot County permits for the bridge. And in their amended complaint, the Beckers insisted that a State Highway Administration (SHA) permit the Littys had somewhat belatedly acquired invalidated the Coast Guard permit because the SHA document called for five feet of vertical clearance rather than three. ²

Judge Wise did not accept any of these arguments. He held that the Beckers were complaining about interference with a right of navigation, which is a public right, as opposed to one of the bundle of rights possessed by riparian owners. In view of the Coast Guard's jurisdiction over navigable waters, he opined that any injunction he might issue would not prevail over the Coast Guard permit. As to any conflict between the Coast Guard permit and the SHA permit, he saw that as a problem for the Littys and the agencies to resolve. He thought that Talbot County has no jurisdiction over navigable waters. In any event, he was of the view that the Beckers had shown no harm different from that suffered by the public in general, and so had no standing to raise possible violations of County law or, for that matter, of the SHA permit. Convinced that the Beckers "have had full opportunity to air their complaints and objections before the agencies empowered to consider them," Judge Wise concluded:

The continuation of this proceeding represents an unjustified usurpation of jurisdiction vested by law with the U.S. Coast Guard and the State Highway Administration. This Court cannot, by way of injunction, subvert that jurisdiction or permit [the Beckers] to do [ ]an ["]end[ ] run["] around the process for appealing decisions of administrative agencies.

As we have recounted, he granted summary judgment in favor of the Littys. The Beckers appealed to the Court of Special Appeals; we granted the writ of certiorari before any proceedings were had in that court. 315 Md. 140, 553 A.2d 706 (1989).

III. Riparian Rights

Before us the Beckers restate their riparian rights argument. In essence, they assert that there can be no interference with what they claim is their right, as the owners of riparian property, to navigate on the waters of Boone Creek and the Choptank River. We assume, arguendo, that the bridge, if constructed pursuant to the Coast Guard permit, will have that effect. But we hold that Judge Wise did not err in rejecting this argument.

A riparian owner is "one who owns land bordering upon, bounded by, fronting upon, abutting or adjacent and contiguous to and in contact with a body of water, such as a river, bay, or running stream." People's Counsel v. Maryland Marine, 316 Md. 491, 493 n. 1, 560 A.2d 32, 33 n. 1 (1989). The Beckers fall within this definition. Riparian owners acquire various rights, both common law and statutory, by virtue of that status. See, e.g., Maryland Marine, 316 Md. at 501-506, 560 A.2d at 37-39; Harbor Island Marina v. Calvert Co., 286 Md. 303, 315-322, 407 A.2d 738, 745-748 (1979); Bd. of Pub. Works v. Larmar Corp., 262 Md. 24, 35-57, 277 A.2d 427, 431-443 (1971); Md.Code (1983 Repl.Vol., 1989 Cum.Supp.), Natural Resources Art., §§ 9-103 and 9-201 (part of Title 9, "Wetlands and Riparian Rights"). The " 'fundamental riparian right--on which all others depend, and which often constitutes the principal value of land--[is] access to water.' " Maryland Marine, 316 Md. at 502, 560 A.2d at 37 (quoting Steinem v. Romney, 233 Md. 16, 23, 194 A.2d 774, 777 (1963)).

Moreover, Boone Creek is navigable water. It matters not whether we apply the "ebb-and-flow-of-the-tide" test, Hirsch v. Md. Dep't of Nat. Resources, 288 Md. 95, 99, 416 A.2d 10, 12 (1980), Harbor Island, 286 Md. at 315, 407 A.2d at 745, or the "navigable-in-fact" test, see Owen v. Hubbard, 260 Md. 146, 152 n. 1, 271 A.2d 672, 676 n. 1 (1970), Wagner v. City of Baltimore, 210 Md. 615, 625, 124 A.2d 815, 820 (1956). Boone Creek meets both tests, as does the Choptank River. But the riparian owner's right of access to water does not carry with it a concomitant private property right to navigate.

The riparian owner has just what we have stated--a right of access to water. That is, a right of access "to the water in front of his fast land." United States v. 222.0 Acres of Land, 306 F.Supp. 138, 151 (D.Md.1969). The owner has the right, under proper circumstances, to reach that water for purposes such as fishing, bathing, and making certain improvements into the water. Id. See also Rayne v. Coulbourne, 65 Md.App. 351, 367, 500 A.2d 665, 673 (1985). That is why, for example, the riparian owner is entitled to reliction and accretion. Harbor Island, 286 Md. at 314, 407 A.2d at 745; Steinem, 233 Md. at 23, 194 A.2d at 777-778. See also Natural Resources Art. § 9-201(a). But once the right of access is gratified, this particular right of a riparian owner goes no further. It does not encompass a right of free navigation.

The right to navigate on navigable waters is a public right, not one that attaches only to the owner of riparian property. "The public [has] a right, at common law, to navigate over every part of a common navigable river...." Garitee v. M. & C.C. of Balto., 53 Md. 422, 436 (1880). As the Supreme Court of Ohio has put it:

Every riparian owner has the right of ingress and egress between his land and the water. In addition, as a member of the public, he has the right to travel on navigable streams. It is important to distinguish these rights. The right to go from his land to the river and from the river to his land is a private property right of the riparian owner. Navigation on public waters is exclusively a public right. Everyone has an equal right to the use of the water for travel and transportation.

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