Department of Natural Resources v. Mayor and Council of Ocean City, 64

• Decision Date: 21 February 1975
• Docket Number: No. 64,64
• Citation: 332 A.2d 630,274 Md. 1
• Parties: DEPARTMENT OF NATURAL RESOURCES et al. v. MAYOR AND COUNCIL OF OCEAN CITY et al.
• Court: Maryland Court of Appeals

Page 1

274 Md. 1

332 A.2d 630

DEPARTMENT OF NATURAL RESOURCES et al. v. MAYOR AND COUNCIL OF OCEAN CITY et al.

No. 64.

Court of Appeals of Maryland.

Feb. 21, 1975.

Hamilton P. Fox, Jr., Salisbury (Hearne, Fox & Bailey, Salisbury, on the brief), for E. T. Parks, Inc.

Warren K. Rich, Asst. Atty. Gen., Annapolis (Francis B. Burch, Atty. Gen. and Henry R. Lord, Deputy Atty. Gen., Baltimore, on the brief), for Department of Natural Resources.

Patrick L. Rogan, Jr., Salisbury (Richardson, Rogan, Anderson & Heland, Salisbury, on the brief), for Seventy-First Street, Inc.

Dale R. Cathell, City Atty., Ocean City, for Mayor and City Council of Ocean City.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

SINGLEY, Judge.

This case raises for the first time the extent of the rights which neighboring owners and members of the public may respectively have in the littoral at Ocean City, Maryland-that portion of the beach which lies west of the Atlantic Ocean's mean high tide line, referred to in this opinion as 'mean high water mark.'

The area involved is a development originally known as Oceanbay City, first platted in 1940. E. T. Park, Inc. (Park), one of the petitioners, is a corporation owned by Dr. Nicholas J. Kohlerman. Park owns lots 22 and 23 in block 38 of Oceanbay City improved by a residence occupied by Dr. Kohlerman. These lots front 100 feet on the south side of what is known locally as 71st Street with a depth of 120 feet, lying generally to the rear of an ocean front tract 100 feet in width and 120 feet in depth, known as lots 4 and 5 in the same block, owned by 71st Street, Inc. (the Developer). ¹ When Park learned that the Developer had filed an application for a building permit for the construction of a condominium on its ocean front tract, an action was instituted by Park in the Circuit Court for Worcester County against the Developer; the Developer's builder; the Mayor and City Council of Ocean City (the City), and the City's building inspector, which sought to enjoin the construction of the condominium and the issuance of a building permit by the City.

Park's complaint was grounded on the contention that it, along with the general public, had acquired an easement by implied dedication, prescription, or custom permitting use as a public beach of the area between the mean low water mark on the east and the line of vegetation on the west, and particularly the dry sand area lying between the Developer's lot line on the east and the line of vegetation on the west. It was contended that the building to be erected would have its eastern front at the Ocean City building limit line and would be almost entirely to the east of the dune line, which is generally the same as the line of vegetation. As a result, the dry sand beach would be narrowed and might at times be covered by wave action, thus effectively denying the public use of the beach.

On petition filed after the action had been instituted, State of Maryland, Department of Natural Resources (the State) was permitted to intervene as party plaintiff. From an order denying the injunctive relief prayed, Park and the State appealed to the Court of Special Appeals. On motion of the petitioners, we granted certiorari.

Ocean City is located on one of a system of barrier islands which parallels the mainland along the Atlantic coast from Florida to New England. Because of the low elevation and unprotected character of the islands on the Maryland-Delaware coast, they are particularly susceptible to wave and wind action.

There was testimony below that the beach where the Developer's tract is located underwent a process of accretion in the 79-year period ending in 1929, when it gained width at an average of 1.6 feet annually. From 1929 to 1947, it lost some 270 feet through erosion. After the unusual storm of March, 1962, it was 450 feet narrower than it had been in 1922.

For the past 35 years, protective measures have been undertaken, at first with funds supplied by the State of Maryland. These consisted of the placing of sand fences, the construction of asphalt groins, and the bulldozing of sand.

After the 1962 storm, and the designation of the Ocean City beach as a National Disaster Area, the reconstruction of a dune line was commenced by the U.S. Army Corps of Engineers. The Developer's predecessors in title joined with other property owners in granting a perpetual easement to Worcester County for the construction and maintenance of the dune. ²

So long as the dune lay outside the limits of the City, the County Commissioners refused to issue building permits for construction east of the dune line. Some years after the 71st Street area was annexed by Ocean City in 1965, the County took the position that it was no longer responsible for the maintenance of the dune. As a consequence, the City proceeded to delineate a building limit line east of structures then existing, which in this area was east of the dune line.

As regards the public's right to use the foreshore, the area extending easterly from the mean high water mark, there can be little doubt, Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331 (1894). It has long been held that navigable water and the land under it is held by the State, for the benefit of the public, Smith v. Maryland, 59 U.S. 71, 18 How. 71, 15 L.Ed. 269 (1855); 1 R. Clark, Waters and Water Rights §§ 36.3(B)-(C), at 192-94, 42.1, at 264-67 (1967); 1 Patton, Land Titles § 135, at 352-54 (2d ed.1957). ³ At the time of the grant of the Charter by Charles I to Lord Baltimore, it was owned by the Crown and transferred to the proprietor, Browne v. Kennedy, 5 H. & J. 195 (1821) and after the Revolution has been held by the State for the benefit of the public by virtue of Article 5 of our Declaration of Rights, Board of Public Works v. Larmer Corp., 262 Md. 24, 277 A.2d 427 (1971); Kerpelman v. Board of Public Works, 261 Md. 436, 276 A.2d 56, cert. denied, 404 U.S. 858, 92 S.Ct. 109, 30 L.Ed.2d 100 (1971). See also Day v. Day, 22 Md. 530 (1865); Baltimore v. McKim, 3 Bland 453 (1831). Prior to the enactment of Chapter 129 of the Acts of 1862, now Maryland Code (1957), 1972 Repl.Vol.) Art. 54, § 48, there were instances where the State issued patents for land under navigable water, defined by our cases as water where the tide ebbs and flows, Van Ruymbeke v. Patapsco Industrial Park,261 Md. 470, 475, 276 A.2d 61, 64 (1971).

This protects the public in the use of the foreshore only, however. ⁴ If a right of access is claimed over fast land, or there is an assertion of right of user of such of the dry sand littoral which lies west of the front property line, it must find support elsewhere. ⁵ In instances where there has been a prior grant of the foreshore to the owner of the littoral, the public's right to make use thereof is limited to navigation and fishing, 2 H. Tiffany, Law of Real Property § 659, at 697 (3d ed. 1939). The notion that the rights of the owner of the littoral must be exercised in subordination to the paramount rights of the public is no longer applicable, since rights of fishing, boating, hunting, bathing, taking shellfish and seaweed and of passing and repassing have been pro tanto extinguished by the prior grant, Town of Orange v. Resnick, 94 Conn. 573, 109 A. 864 (1920). See Comment, 31 Mich.L.Rev. 1134, at 1135-39 (1933).

In recent years, as a result of an expanding population and a limited amount of shore line, courts have been confronted more frequently with the problem posed by this case, Clark, supra, § 36.4(B), at 200-02. In some instances, the result sought by Park has been predicated on dedication, Gewirtz v. City of Long Beach, 69 Misc.2d 763, 330 N.Y.S.2d 495 (Sup.Ct.1972), aff'd, 45 A.D.2d 841, 358 N.Y.S.2d 957 (1974); Gion v. City of Santa Cruz, 2 Cal.3d 29, 84 Cal.Rptr. 162, 465 P.2d 50 (1970); Borough of Neptune City v. Borough of Avon-by-the-Sea, 61 N.J. 296, 294 A.2d 47 (1972); Seaway Co. v. Attorney General, 375 S.W.2d 923 (Tex.Civ.App.1964); Clark, supra, § 38.2(B), at 227-30. Compare, United States v. Certain Land in County of Worcester, Md., 131 F.Supp. 1039 (D.Md.1970).

Other cases have suggested that an easement may be created by prescription, Gion v. City of Santa Cruz, supra; State ex rel. Thornton v. Hay, 254 Or. 584, 462 P.2d 671 (1969); Clark, supra, § 38.2(A), at 225-27. Finally, there is some possibility that support could be found in custom, State ex rel. Thornton v. Hay, supra; Knowles v. Dow, 22 N.H. 387 (1851), or by invoking a concept of public trust, Borough of Neptune City v. Borough of Avon-by-the-Sea, supra, 61 N.J. at 309-10, 294 A.2d at 54-55. See generally Degnan, Public Rights in Ocean Beaches: A Theory of Prescription, 24 Syracuse L.Rev. 935 (1973); McKeon, Public Access to Beaches, 22 Stanford L.Rev. 564 (1970); The Public Trust in Tidal Areas: A Sometime Submerged Traditional Doctrine, 79 Yale L.J. 762 (1970).

In considering the petitioners' contentions, the chancellor (Prettyman, J.) noted that much of the littoral in Ocean City had been dedicated to public use by recorded plats, in which areas east of the easterly lot lines had been designated 'beach,' 'boardwalk' or as the location of a public way, all of which had been accepted by Ocean City. Even in the absence of acceptance, however, an easement may be implied from a plat reference despite the absence of a reference in the deed transferring title, Williams Realty Co. v. Robey, 175 Md. 532, 539-40, 2 A.2d 683, 686 (1938); 3 R. Powell, Property 409, at 424-28 (1973); 26 C.J.S. Dedication § 23c, at 447-48 (1956). Compare, Goodsell v. Lawson, 42 Md. 348 (1875). There was also a finding that east-west streets running to the beach, at least as for north as 94th Street, had been similarly dedicated and accepted.

However, the chancellor also found as a fact that prior to the 1962 storm, the Developer's lots stood on high ground, were covered with grass and were...