Department of Natural Resources v. Welsh, 28

• Decision Date: 01 September 1986
• Docket Number: No. 28,28
• Citation: 521 A.2d 313,308 Md. 54
• Parties: DEPARTMENT OF NATURAL RESOURCES v. W. Mitchell WELSH. ,
• Court: Maryland Court of Appeals

Page 54

308 Md. 54

521 A.2d 313

DEPARTMENT OF NATURAL RESOURCES v. W. Mitchell WELSH.

No. 28, Sept. Term, 1986.

Court of Appeals of Maryland.

Nov. 24, 1986.

Motion for Reconsideration filed Dec. 23, 1986; Opinion

Modified; Motion Denied March 5, 1987. ^*

Pamela D. Andersen, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Thomas A. Deming, Asst. Atty. Gen., on brief), Annapolis, for appellant.

H. Jack Price, Jr. (Wilson & Wilkinson, on brief), Cumberland, for appellee.

Argued before MURPHY, C.J., ELDRIDGE, COLE, RODOWSKY, COUCH, McAULIFFE, JJ., and MARVIN H. SMITH, Associate Judge of the Court of Appeals of Maryland (retired) Specially Assigned.

MARVIN H. SMITH, Judge (retired), Specially Assigned.

We shall here hold that the doctrine of sovereign immunity does not prevent the bringing of a suit to quiet title by appellee W. Mitchell Welsh against the Department of Natural Resources (the Department). We shall further hold that in an earlier eminent domain proceeding the Department did not acquire the title of Welsh's predecessors to the land here in dispute. Accordingly, we shall affirm the judgment of the Court of Special Appeals in Welsh v. Dep't. of Natural Resources, 65 Md.App. 710, 501 A.2d 1351 (1986).

I

The facts here are not in dispute. An agreed statement of facts was filed in the Court of Special Appeals pursuant to Maryland Rule 1026 e.

In 1875 Maza Boor acquired a tract of land in Allegany County known as "Vevay Resurveyed," said to contain 1,228 5/8 acres. On August 20, 1877, Mrs. Boor and her husband conveyed 33 acres from this tract to Grafton Brant. On November 20, 1877, Brant conveyed this 33 acre parcel to William Welsh. The deed to Brant and the deed to Welsh were both recorded on March 5, 1878. Title to the land ultimately devolved upon William R. Welsh and Rosa Welsh by intestate succession. Rosa Welsh devised her interest to William R. Welsh, thereby vesting him with sole title to the land. Her will was probated in Allegany County in 1950. William R. Welsh and his wife conveyed the property in question to W. Mitchell Welsh under date of December 15, 1975.

Maza Boor and her husband conveyed 1,000 acres, described as a part of "Vevay Resurveyed" to Delilah Boor by deed dated February 20, 1878, and recorded on March 12, 1878. It will be noted that this date of recordation is seven days after the recordation of the deed from Maza Boor and her husband to Grafton Brant, Welsh's predecessor in title. Through a series of conveyances this 1,000 acre tract came into the possession of George E. Coffman and Loretta K. Coffman, his wife, by deed dated July 15, 1940. The description of the Coffman land apparently includes within its metes and bounds the land of Welsh.

A condemnation proceeding against the Coffman land was instituted in the Circuit Court for Allegany County by Spencer P. Ellis, Director, Department of Forests and Parks "acting for and on behalf of the State of Maryland." The Coffmans were named defendants. No parties were named as defendants in the proceeding other than the Coffmans. The inquisition was rendered by the jury on September 28, 1966.

The land in question constitutes a part of Rocky Gap State Park in Allegany County. Welsh became aware of the State's claim to the property in 1983 when he was discussing a timber report with an employee of the Department. He brought a suit against the Department in the Circuit Court for Allegany County to quiet title to the land in question. The earlier condemnation proceedings were conducted pursuant to the provisions of Maryland Code (1957, 1966 Cum.Supp.) Art. 33A. Testimony was presented to the effect that for purposes of the condemnation title had been searched back sixty years, that this did not reveal the conveyance of the 33 acre tract, and that sixty years was the standard in the industry for a search. There was also evidence that the Welsh tract did not appear on the tax maps which, of course, are not official as to title. ¹ Testimony was to the effect that there were no buildings on the property or other outward signs of ownership.

In the circuit court the Department interposed the defense of sovereign immunity. The trial court overruled this defense. According to the intermediate appellate court the trial judge made the following findings of fact:

"1. That the 33 acre tract of [Welsh] is part of the 1132.09 acre tract that was the subject of the condemnation proceedings. "2. That the deed of the 33 acre tract to [Welsh's] predecessor in title, by Maza Boor and Jacob Boor, her husband, was recorded among the Land Records of Allegany County prior to the date of the recording of the deed from the same grantors to the predecessor in title of George E. Coffman and Loretta K. Coffman, his wife, the condemnation defendants.

"3. That [Welsh's] predecessor in title was not given notice of the condemnation proceeding, was not named as a party in the case, nor was his interest identified in the inquisition.

"4. That [Welsh] testified that he first became aware that the [Department] claimed title to the 33 acre tract in 1983.

"5. That the predecessors in title of [Welsh] paid taxes upon the 33 acre tract for the tax years 1965 through 1975, and that [Welsh] has continued to pay taxes thereon until the time of trial below (1983)." 65 Md.App. at 713, 501 A.2d at 1353 (footnote omitted).

The circuit court determined that the Department had acquired title to the land in question by the condemnation proceeding. The Court of Special Appeals reversed. It held that the doctrine of sovereign immunity did not prevent the bringing of the action and that "[a]s applied to the 33 acre tract of [Welsh], the condemnation proceedings were void to the extent that they purport to affect the land of [Welsh], his title or possessory rights." 65 Md.App. at 722, 501 A.2d at 1357.

We granted the Department's petition for a writ of certiorari in order that we might address the important public questions here presented.

II

Under the doctrine of sovereign immunity, neither a contract nor a tort action may be maintained against the State unless specific legislative consent has been given and funds (or the means to raise them) are available to satisfy the judgment. Austin v. City of Baltimore, 286 Md. 51, 56 n. 3, 405 A.2d 255, 258 n. 3 (1979); Board v. John K. Ruff, Inc., 278 Md. 580, 590-91, 366 A.2d 360, 366 (1976); University of Maryland v. Maas, 173 Md. 554, 558-59, 197 A. 123, 125 (1938). The General Assembly must waive immunity "either directly or by necessary implication." Katz v. Washington Sub. San. Comm'n, 284 Md. 503, 507-08, 397 A.2d 1027, 1030 (1979). The parties are in agreement that there is no "direct" legislative consent to suits such as the one in the case at bar. We have consistently declined to abrogate sovereign immunity by judicial fiat. ² See, e.g., Austin, 286 Md. at 54-58, 405 A.2d at 257-59 (and cases there cited); Katz, 284 Md. at 512-13, 397 A.2d at 1032; Ruff, 278 Md. at 584, 366 A.2d at 362-63; Jekofsky v. State Roads Comm'n, 264 Md. 471, 287 A.2d 40 (1972); Dunne v. State, 162 Md. 274, 159 A. 751, appeal dismissed and cert. denied, 287 U.S. 564, 53 S.Ct. 23, 77 L.Ed. 497 (1932). Judge Orth explained for the Court in Ruff:

"The frequent and increasingly vigorous attacks upon the doctrine have been no more persistent than our refusal to abrogate or modify it by judicial fiat. We have consistently adhered to the view that '... it is desirable and in the public interest that any change in the doctrine of sovereign immunity should come from the legislative branch of the State Government rather than from the judicial branch inasmuch as there are fiscal considerations, administrative difficulties and other problems in balancing the rights of the State and its agencies with new possible rights of the individual citizens, which can far better be considered and resolved by the legislative branch than by the judiciary of the State.' Jekofsky v. State Roads Comm'n, 264 Md. 471, 474, 287 A.2d 40, 42 (1972)." 278 Md. at 584, 366 A.2d at 362-63.

Indeed, the State's agencies may not waive sovereign immunity, either affirmatively or by failure to plead it. Id. at 583, 366 A.2d at 362; Bd. of Education v. Alcrymat Corp., 258 Md. 508, 516, 266 A.2d 349, 353 (1970).

Notwithstanding strict adherence to the doctrine, this Court long ago recognized that agents of the State do not enjoy immunity with respect to a wrongful taking of property without just compensation. Weyler v. Gibson, 110 Md. 636, 73 A. 261 (1909). In that case the directors of the Maryland Penitentiary had taken possession of a street, along with abutting properties, and erected a new wing of the Penitentiary thereon. The street bed and abutting properties were privately owned. Although the directors lawfully acquired title to the abutting properties, they made no effort to condemn or otherwise acquire the underlying title to the street bed. The owners of the street brought an ejectment action against the directors and the warden. Judgment was entered for the owners against the warden. ³ The warden asserted on appeal with respect to immunity that the suit was not maintainable because it was "in effect a suit against the State to recover the possession of property in the actual use by the State for police and State purposes...." Id. at 653, 73 A. at 263.

The Court responded to this latter assertion with a discussion of the Maryland and Federal constitutional provisions prohibiting the taking of private property for public use without just compensation. Judge Burke then said for the Court:

"It is conceded that no suit can be brought against the State, without its consent. This immunity of the State from suit rests upon grounds of public policy, and is too firmly fixed in our law to be questioned. But it would be strange indeed, in the face of the solemn constitutional guarantees, which place private property among the fundamental and indestructible rights of the...