Clickner v. Magothy River Ass'n, Inc.

Decision Date20 January 2012
Docket NumberSept. Term,2011.,No. 13,13
Citation35 A.3d 464,424 Md. 253
PartiesDavid CLICKNER, et ux. v. MAGOTHY RIVER ASSOCIATION, INC., et al.
CourtMaryland Court of Appeals


Barbara J. Palmer and Eileen E. Powers (Blumenthal, Delavan & Williams, P.A., Annapolis, MD), on brief, for appellants.

Ann M. Fligsten, Arnold, MD, for appellees.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA, JOSEPH F. MURPHY, JR.* (Retired, specially assigned), JJ.GREENE, J.

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.


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 2003, 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 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 incredible 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 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.

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 life-long 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 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.

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