Chester v. Gilchrist

• Decision Date: 01 September 1985
• Docket Number: No. 22,22
• Citation: 497 A.2d 820,64 Md.App. 541
• Parties: Beatrice G. CHESTER, et al. v. Charles W. GILCHRIST, et al. ,
• Court: Court of Special Appeals of Maryland

Page 541

64 Md.App. 541

497 A.2d 820

Beatrice G. CHESTER, et al. v. Charles W. GILCHRIST, et al.

No. 22, Sept. Term, 1985.

Court of Special Appeals of Maryland.

Oct. 3, 1985.

Beatrice G. Chester, Rockville (Jack J. Basil, Jr., Robert G.L. Wall and Leroy Hostetter, Rockville, on brief), for appellants.

Kenneth P. Barnhart (Arthur S. Drea, Jr., Silver Spring, on brief), for appellees MNCPPC and Norman L. Christeller.

Joann Robertson, Asst. Co. Atty. (Paul A. McGuckian, Co. Atty., Robert G. Tobin, Jr., Deputy Co. Atty., and Alan M. Wright, Asst. Co. Atty., on brief), for appellees Gilchrist, et al., for appellees.

Argued before MOYLAN and BISHOP, JJ., and JAMES S. GETTY, Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

BISHOP, Judge.

Appellants, four homeowner residents of Old Georgetown Village, a townhouse development, originally filed this action in the Circuit Court for Montgomery County seeking to enjoin the construction of a pool complex to be built by Montgomery County on 3.5 acres of a 12 acre parcel adjacent to Old Georgetown Village and owned by the Maryland-National Capital Park and Planning Commission (MNCPPC). The proposed facility would service approximately 180,000 persons and 25 schools located in a regional area of Montgomery County. The appellees are Charles W. Gilchrist, County Executive, Montgomery County; the Montgomery County Government; Esther P. Gelman, President, Montgomery County Council; Montgomery County Council; Norman L. Christeller, Chairman, The Maryland-National Capital Park and Planning Commission; The Maryland-National Capital Park and Planning Commission. After a court trial, appellants' request for a permanent injunction was denied.

Appellants ask two questions:

I. Did the trial court err in finding that an unrestricted fee simple interest was conveyed to the Maryland-National Capital Park and Planning Commission?

II. If the interest in the 12 acre parcel was not a fee simple conveyance, but rather restricted to a public use dedication, was the trial court clearly erroneous in finding that the proposed use was in compliance?

FACTS

The subject property, originally part of a larger tract owned by the developers of Old Georgetown Village, Old Georgetown Village Associates (OGVA), was conveyed by OGVA to MNCPPC. Appellants assert that the interest granted MNCPPC was a dedication of the parcel as a "local park" which prohibits the regional use intended by the appellees. Appellants contend that they relied on such a restrictive use in purchasing their townhouses. Appellees argue that MNCPPC acquired an unrestricted fee simple interest in the property; however, they continue, even if the parcel were restricted to local park use, that the proposed swim center was in compliance. Judge McAuliffe agreed with the appellees and found that MNCPPC had an unrestricted fee simple interest in the property and therefore the property was not restricted to a "local park" use, and that even if the conveyance were a dedication for use as a park, the swim center was a use consistent with that restriction.

I.

The threshold issue presented is whether OGVA conveyed an unrestricted fee simple interest to MNCPPC, or dedicated the parcel for public use as a local park. The import of this distinction is that a dedication does not pass a fee simple interest, but only an easement consistent with the purpose of the dedication. Maryland National Capital Park & Planning Commission v. McCaw, 246 Md. 662, 675, 229 A.2d 584, 591 (1967); Schloss v. Berenholtz, 243 Md. 195, 205-6, 220 A.2d 910, 915 (1966); North Beach v. Land & Imp. Co., 172 Md. 101, 120, 191 A. 71, 80 (1937). See also 50 A.G.Op. 94, 96 (1965). Conditions of use may be validly imposed on a dedication. Armiger v. Lewin, 216 Md. 470, 477, 141 A.2d 151, 155 (1958).

A common law dedication requires an offer by the grantor and an acceptance by a competent government authority. Town of Glenarden v. Lewis, 261 Md. 1, 3, 273 A.2d 140, 141 (1971); Mauck v. Bailey, 247 Md. 434, 442-44, 231 A.2d 685, 691 (1967); Hillshire Corp. v. Pachuta, 235 Md. 178, 181-82, 201 A.2d 1, 3 (1964); Chapman v. Rogan, 222 Md. 12, 17, 158 A.2d 626, 628-29 (1960); Shapiro v. County Comm., 219 Md. 298, 302, 149 A.2d 396, 398 (1959); Hackerman v. City of Baltimore, 212 Md. 618, 624-25, 130 A.2d 732, 736 (1957). The grantor's intent as reflected by the surrounding facts and circumstances is the key in determining the existence of an offer of dedication. Conway v. Prince George's Co., 248 Md. 416, 419, 237 A.2d 9, 11-12 (1968); Schloss v. Berenholtz, 243 Md. at 204-5, 220 A.2d at 914; Hillshire Corp. v. Pachuta, 235 Md. at 181, 201 A.2d at 3; Hackerman v. City of Baltimore, 212 Md. at 624-25, 130 A.2d at 735-36; State Roads Comm. v. Teets, 210 Md. 213, 223, 123 A.2d 309, 314-15 (1956); Blank v. Parklane Center, 209 Md. 568, 574-75, 121 A.2d 846, 848 (1956). Acceptance of the offer of dedication can be evidenced by deed or other records, by acts in pais, or by continued public use. Glenarden v. Lewis, 261 Md. at 4, 273 A.2d at 142; Chapman v. Rogan, 222 Md. at 17, 158 A.2d at 628-29; Cox v. Anne Arundel Co., 181 Md. 428, 432, 31 A.2d 179, 181-82 (1943). Further, acceptance can be by express statutory provisions or by other official actions. Glenarden v. Lewis, 261 Md. at 4-5, 273 A.2d at 142.

OGVA conveyed MNCPPC some interest in the parcel, and MNCPPC accepted that interest. The first issue centers on whether OGVA intended to dedicate the parcel as a local park or to grant a fee simple interest to MNCPPC. We look first to the deed itself. The granting clause reads:

In consideration of the sum of Ten Dollars ($10.00) in hand paid by the Party of the Second Part, receipt of which is hereby acknowledged, the said Party of the First Part does hereby grant, confirm and convey unto the Party of the Second Part, its successors and assigns, in fee simple, all that parcel of land, situate, lying and being in Rockville District No. 4 of Montgomery County, Maryland, as more particularly described in the legal description and plat attached hereto and made part hereof as Exhibit "A."

Md. Real Prop. Code Ann. § 2-101 (1981 Repl.Vol.) provides:

The word "grant," the phrase "bargain and sell," in a deed, or any other words purporting to transfer the whole estate of the grantor, passes to the grantee the whole interest and estate of the grantor in the land mentioned in the deed unless a limitation or reservation shows, by implication or otherwise, a different intent. (Emphasis added).

The only specific reservation OGVA made in the deed was a water and sewer easement for repairs, maintenance, and installation of lines to service the adjacent parcels. The description contained in the deed, however, refers to a separate three page document Exhibit "A", attached to the deed and incorporated therein. Pages 1 and 2 of Exhibit "A" contains a verbal description of the property with the following heading:

DESCRIPTION OF

12.0 ACRE SCHOOL/PARK PARCEL

THE MARYLAND NATIONAL CAPITAL PARK AND PLANNING COMMISSION

PART OF THE PROPERTY OF

OLD GEORGETOWN ASSOCIATES

ROCKVILLE DISTRICT NO. 4

MONTGOMERY COUNTY, MARYLAND

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Page 3 is a plat which contains the following legend:

12,000 ACRE SCHOOL/PARK PARCEL

Part of the property of

Old Georgetown Associates

Parcel Two The trial court concluded that no dedication was intended, finding it persuasive that the deed purported to convey an interest in "fee simple" and that although a water and sewer easement was expressly reserved, no restriction on future use was expressly included in the deed. We do not agree.

Although the granting clause purported to convey an unrestricted fee simple interest, the plat and the description which became a part of the deed by reference, Williams v. Skyline Dev. Corp., 265 Md. 130, 161, 288 A.2d 333, 351 (1972); Whittington v. Mann, 211 Md. 199, 205, 126 A.2d 617, 619 (1956); 4 Tiffany, The Law of Real Property 3d Ed. § 981 at 112 (1975, 1985 Cum.Supp.), referred to the property as a "school/park parcel" and thereby created an ambiguity within the granting clause itself. Where an ambiguity appears in a clause of a deed, the intent of the parties must be determined by the underlying facts and circumstances. Watson v. Raley, 250 Md. 266, 268-69, 242 A.2d 488, 489-90 (1968). See Dept. of Forests & Parks v. George's Creek Coal & Land Co., 250 Md. 125, 132-33, 242 A.2d 165, 169, cert. denied, 393 U.S. 935, 89 S.Ct. 295, 21 L.Ed.2d 271 (1968); 4 Tiffany, supra, § 977 at 89, § 981 at 111-12 (where language of deed is unclear, consider facts and circumstances of the case to determine intent). See also Creamer v. Helferstay, 47 Md.App. 243, 422 A.2d 395 (1980) (parol evidence admissible to determine intent where contract ambiguous); King v. City of Dallas, 374 S.W.2d 707, 712 (Tex.App.1964) (parol evidence admissible to determine intent to dedicate even where language in deed unambiguous); 26 C.J.S. Dedication § 46 (1956, 1984 Supp.) (parol evidence admissible to establish intent to dedicate). Tiffany sums up this point nicely:

Thus, the intention of a grantor is to be determined from the four corners of his deed, if possible, and if from an attempt to make such determination an irreconcilable conflict arises because of contradictions within the deed other means must be employed to ascertain the correct interpretation to be placed upon it. Words used in a deed should be construed in pari materia and a construction should be adopted which will give effect to all words. Each word and provision of the instrument should be given that significance which is consistent with, and will effectuate, the intention of the parties.

4 Tiffany, supra, § 981 at 111-12 (footnotes omitted).

In Watson v. Raley, 250 Md. at 266, 242 A.2d 488, a prior deed and a plat incorporated by reference into the deed description were inconsistent with each other, and the court looked to the facts and...