Caine v. Cantrell

• Decision Date: 09 February 1977
• Docket Number: No. 94,94
• Citation: 369 A.2d 56,279 Md. 392
• Parties: James B. CAINE et ux. v. Drucilla M. CANTRELL.
• Court: Maryland Court of Appeals

Page 392

279 Md. 392

369 A.2d 56

James B. CAINE et ux. v. Drucilla M. CANTRELL.

No. 94.

Court of Appeals of Maryland.

Feb. 9, 1977.

Raymond S. Smethurst, Jr., Salisbury (Sally D. Adkins and Adkins, Potts & Smethurst, Salisbury, on the brief), for appellants.

Hamilton P. Fox, Jr., Salisbury, for appellee.

Department of Natural Resources, amicus curiae; Francis B. Burch, Atty. Gen., Baltimore, Warren K. Rich, and John B. Griffith, Asst. Attys., Gen., Annapolis, on the brief.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.

SINGLEY, Judge.

On two occasions in the recent past, in Department of Natural Resources v. Ocean City, 274 Md. 1, 332 A.2d 630 (1975) and Department of Natural Resources v. Cropper, 274 Md. 25, 332 A.2d 644 (1975), we have considered the relative rights of the private landowner and the public as regards the beach at Ocean City, Maryland. While this case presents a somewhat different factual pattern which controls the result, it is in the same area of controversy.

The appeal is from an order of the Circuit Court for Worcester County, entered 28 October 1974 (the First Order), which, as amended at the request of the parties, was made interlocutory, and declared that a parking structure erected in the bed of a public street adjacent to an ocean front lot owned at time of trial by the appellants, James B. Caine and Joyce W. Caine, his wife, should be abated as a public nuisance, and from a second order entered by the same court on 14 November 1975 (the Second Order), which declared that a house erected on the lot owned by the Caines should be abated as a public nuisance. An appeal was taken by the Caines to the Court of Special Appeals. We granted certiorari before the matter was considered by that court. We propose to affirm the First Order entered below, but to modify the Second Order and affirm it as modified.

On 7 March 1968, Fountain Corporation and I. W. Long & Son, Inc. by James B. Caine, filed an application with the Mayor and City Council of Ocean City for a permit to build a one-family frame house on lot No. 1, block 102 of the Fenwick, Maryland plat. The lot, which is located at the northeast corner of Wight Street and English Avenue in Ocean City, is approximately 50 feet wide and 140 feet deep and fronts on the Atlantic Ocean. ¹ On 12 March 1968, a building permit was prepared, but withheld until approval of 'engineering decision of utilities are approved.' ² ] The permit was apparently issued on 28 March 1968.

At a date subsequent to the granting of the building permit-apparently in May of 1968-Caine sought and received a permit for the construction of a ramp and parking dock in the bed of English Avenue, a public street which is adjacent to his property on the south. The ramp is some 17 feet wide and 54 feet long. That part of the dock which extends into English Avenue is about 40 feet wide (23 feet wider than the ramp) and 25 feet longer than the ramp, and is built at an elevation of 14 feet. Since English Avenue is only 50 feet wide, it is partially blocked by the ramp and the dock, and access from English Avenue to Wight Street is similarly impaired.

An action which was instituted for declaratory relief in June, 1968, finally came on for trial in April, 1973. By that time, the parties were Mrs. Drucilla M. Cantrell, the former owner of adjacent lot No. 2 in block 102, and the owner of lot No. 11, lying west of lot No. 2, on which is built her residence, ³ as the sole party plaintiff; Mr. and Mrs. Caine and the Mayor and City Council of Ocean City as defendants; and the State of Maryland, Department of Natural Resources, which had entered the fray as amicus curiae.

The trial court, relying on Adams v. Commissioners of Trappe, 204 Md. 165, 102 A.2d 730 (1954); Perellis v. Mayor & City Council of Baltimore, 190 Md. 86, 57 A.2d 341 (1948); Huebschmann v. Grand Company,166 Md. 615, 172 A. 227 (1934); Townsend, Grace & Co. v. Epstein, 93 Md. 537, 49 A. 629 (1901), and Van Witsen v. Gutman, 79 Md. 405, 29 A. 608 (1894), concluded, and we think quite rightly, that the Mayor and City Council of Ocean City were without authority to grant a permit allowing a private individual to obstruct a public street, thus denying the public the full use to which they were entitled, to gain access to the beach.

Additionally, we observe that the obstruction of a public way is a violation of statute, Maryland Code (1957, 1976 Repl.Vol.) Art. 27, § 121, punishable by fine and imprisonment; that Code (1957, 1973 Repl.Vol.) Art. 23 A, § 2(23) empowers municipal corporations to suppress nuisances, and that Code of Ocean City, Maryland (1972) Charter § C-414(42) and (43) empowers the City Council to prevent or abate all nuisances and to remove all obstructions from streets, lanes and alleys. See generally W. Prosser, Torts § 88 (4th ed. 1971); 58 Am.Jur.2d Nuisances §§ 7-8, at 561-64 (1971).

For this reason, we shall affirm the First Order requiring the removal of that part of the ramp and dock which stands in the bed of English Avenue.

We turn now to a consideration of the Second Order, which declared the house erected on lot No. 1, block No. 102 to be a public nuisance and ordered it abated by the Mayor and City Council of Ocean City.

The reasoning adopted by the court to reach this conclusion can be summarized as follows. Relying on our holdings in Department of Natural Resources v. Cropper, supra, 274 Md. 25, 332 A.2d 644; Department of Natural Resources v. Ocean City, supra, 274 Md. 1, 332 A.2d 630, and Board of Public Works v. Larmar Corp., 262 Md. 24, 277 A.2d 427 (1971), and see Van Ruymbeke v. Patapsco Industrial Park, 261 Md. 470, 475, 276 A.2d 61, 64 (1971), the court concluded, and we think quite rightly, that ownership of land lying between mean high water and mean low water is vested in the State of Maryland, and held in trust for public use.

Relying largely on the testimony of George Bert Cropper, a civil engineer with wide experience in the area, the court then found as a fact that there has been no significant change in recent years in the mean high water mark in the part of Ocean City where the Caine house was built, with the result that what became a lot 140 feet in depth from the lot line to the west to mean low water was bisected by the mean high water mark in 1968, leaving a lot extending approximately 70 feet westerly from the mean high water mark to the lot line on Wight Street, which binds the property on the west. After reviewing the evidence in the case we cannot say that this finding of fact was clearly erroneous.

The court then proceeded to a finding of fact, for which we find no support in the record, to resolve an issue not raised by the plaintiff: that the issuance of the building permit was conditioned upon the grant of an easement 15 feet wide lying immediately west of the mean high water mark for use by the public as a means of access to the beach. It was the court's conclusion that the house, as constructed, encroached upon this easement, a nuisance which the court ordered abated.

It is at this point that the view which we take of the case is at variance with the determination reached below. It will be recalled that the building permit was issued to the Fountain Corporation and I. W. Long and Son, Inc., the co-owners of the lot at the time, and not to Mr. Caine. ⁴ Construction was commenced in April, 1968, and the house has virtually completed by late summer or early fall of 1968. Title to the property was taken by Mr. and Mrs. Caine, as tenants by the entirety, in September, 1969. There was introduced in evidence an untitled document:

'October 21, 1968

'TO WHOM THIS MAY CONCERN:

Lot 1 Block 102

The permit is ussed (sic) in accordance with your agreement with the Council when permit was approved to be resolved with the City Solicitor as follows:

'Subjected to the granting of a 15 foot perpetual public easement on the easterly portion of the plotted lot to the Town of Ocean City for a public beach; and subjected also to access being provided at the cost of the property owner and in compliance with other City Ordinances.

Signature: James B. Caine

Date 2/24/69'

The record shows that the only condition to which the building permit was subject was the approval of arrangements for sewer service, a condition which was apparently satisfied when the lot was connected to the public sewer.

There is absolutely no evidence that there was ever a formal grant of the easement. Even assuming that the paper was a formal undertaking to make such a conveyance, it should be noted...