Feudale v. Sarles

Decision Date31 March 1948
Docket Number118.
Citation58 A.2d 248,190 Md. 244
PartiesFEUDALE et al. v. SARLES et al.
CourtMaryland Court of Appeals

Appeals from Circuit Court, Anne Arundel County; James Clark, Judge.

Suit by Peter A. Feudale against Edgar J. Petrini and wife, and against Benjamin E. Sarles and wife and Benjamin R. Sarles and wife, involving erection of wharf or pier into waters of creek. From a decree entitling plaintiff to wharf on his property not in a straight with side lines of property but obliquely, the plaintiff and the first-named defendants appeal.

Reversed and bill dismissed.

John H. Herold, of Baltimore (John H. Hessey, of Baltimore, on the brief), for appellant Peter A. Feudale.

Ward B Coe, of Baltimore (Albert J. Goodman, of Annapolis, and Carman, Anderson & Barnes, of Baltimore, on the brief), for appellant E. J. Petrini.

R. Tilghman Brice, II, of Annapolis, for appellees.



Spa Creek runs, generally, easterly between the City of Annapolis and the village of Eastport. It is a tidal stream and empties into the Severn River, an arm of the Chesapeake Bay.

Feudale (plaintiff below) owns two lots fronting on the south side of this creek, one of which was acquired in 1934, and the other contiguous thereto, was acquired in 1946. The total frontage on said creek, of the two lots, is ninety-eight feet. Immediately east, and adjacent thereto, Petrini and wife (defendants below) own a lot, fronting fifty feet on said creek, which they acquired in 1946. Immediately west of Feudale's lots is Washington Street, which is about twenty feet wide. Immediately west of this street Benjamin R Sarles and wife own a lot, fronting sixty-seven and four-tenths feet on said creek, acquired in 1941. Immediately west of this lot, and adjoining it, is a lot fronting seventy-two and six-tenths feet on Spa Creek, acquired in 1929 by Benjamin E. Sarles and wife. Immediately adjoining this lot, on the west, is a lot with a total irregular frontage on said creek of one hundred and fifty-one and one-tenth feet, which was acquired November 18, 1946, by Benjamin R. Sarles and wife and Benjamin E. Sarles and wife (defendants below). The properties of all of the parties to this suit are located on the south side of Spa Creek.

Benjamin E. Sarles and Benjamin R. Sarles are father and son, and are engaged in the boat repairing and storing business. Petrini is engaged in the same business. The lots of Petrini and Feudale, and the lots acquired by Benjamin R. Sarles in 1941, practically parallel the shore of Spa Creek. The lot acquired by the Sarles on November 18, 1946 (after this case was instituted) extends to the northwest, forming a curve. In 1929 Benjamin E. Sarles erected bulkheads and a pier, extending out from his property into the waters of the creek about one hundred and sixty feet. In 1945 he extended his wharf forty feet and and built an extension westerly, at right angles from the end thereof, thirty-eight feet long, and another extension easterly, at right angles with the old wharf, at a point five feet sough of the end thereof, for a distance of ninety feet, and by the erection of water breaks along the north and east sides of the whole, made what is practically an inclosed basin wherein boats can be moored or stored, or repaired, as circumstances may dictate. In 1946 Petrini built a bulkhead in front of his lot, and erected a wharf or pier out into the waters of the creek for a distance, including the bulkhead, of approximately one hundred and sixty feet, and then turned easterly at right angles for about forty feet. These structures, built by Sarles and Petrini, extended into the creek at practically right angles from the shore.

When Sarles extended his pier easterly, in 1945, Feudale became somewhat concerned. Sarles had procured a permit from the Annapolis authorities and from the federal authorities to make this extension for a distance of one hundred and five feet easterly, but, at Feudale's suggestion, and to prevent objection by him, he only built this addition easterly ninety feet. Feudale then made no objection, and Sarles built his extension easterly for ninety feet.

In 1946 Petrini, after having procured a permit so to do from the federal and City authorities, proceeded to build a bulkhead and pier running from the northwest corner of his lot out into the waters of the creek at practically right angles from the shore line of his lot, one hundred and sixty feet. Petrini, after some work was done on this project, became apprehensive lest the extension out into the creek would extend over a line drawn straight out into the creek from the northwest corner of his lot, and the northeast corner of Feudale's lot. A survey was made and as a result thereof he removed the pier for two or three feet easterly and built it straight out from that point, so as to be sure that a line extending out into the stream from the corner of his property and Feudale's property would not be crossed by his improvement.

Feudale saw all of this work done, and was concerned about it, but made no direct protest to Petrini. Later he became very much concerned lest further extensions into the creek by Petrini and Sarles would converge and he would be shut off from access to navigable water. He went to see the Annapolis authorities, and the federal authorities, and the State's Attorney for Anne Arundel County with reference to his rights, but received no definite information. He then instituted this suit. A demurrer to his original bill was sustained because there was no evidence that Feudale had made any improvement in the water in front of his lot. He told the court that he intended to wharf out, but he did not want to start work on the same until he knew exactly what his rights were and what he could legally do. The court sustained the demurrer, but permitted him to file an amended bill and set out the reason he had not made improvements in the waters of the creek in front of his land. This was done, answers were filed by the defendants, the case heard, and from the decree passed by the chancellor the case comes here on appeals by the defendants, Petrini and wife, and plaintiff below.

Under the decree Feudale is entitled to wharf out into the waters of the creek 'in the space between a line drawn north 20 degrees 5 minutes east from the northwest corner of his said property, and a line drawn north 18 degrees 45 minutes east from the northeast corner thereof, as shown on the map hereto attached and made a part hereof.' It enjoins Petrini and wife to 'forthwith remove all that part of the bulkhead, wharf and pier recently erected by them in the waters of said Spa Creek, * * * which lies on the west, or northwest, side of a line drawn north 18 degrees 45 minutes east from the northwest corner of their said property.' The decree dismissed the amended bill as to the defendants, Sarles, and decreed that costs be paid equally by Feudale and Petrini and wife.

The result of this decree is to establish the right in Feudale to wharf out from his property, not in a straight line parallel with the side lines of his property, but obliquely to the northeast. This results in requiring Petrini to remove a part of his bulkhead and practically all of his pier.

The locus in quo is within the territorial jurisdiction of the City of Annapolis. Section 1, McWilliams' Charter and Code of Annapolis, 1935, as amended. Section 29 thereof provides for appointment of wardens of the port, and sections 31 and 32 of the charter define the powers and duties of the port wardens. Section 31 provides:

'The wardens, or a majority of them, shall have power to determine upon and regulate all matters relating to the erection or building of wharves in the said port, so far as respects the distance said wharves may be extended into the water, * * * always keeping in view the preservation of the navigation of said port by nor permitting any wharf to be carried out in such manner as to render the navigation of the same too close and confined, * * *.'

Section 32 provides:

'No person holding lands on the waters of said port, nor any person whatever, shall build any wharf, or carry out any earth or other material for that purpose without license from said wardens, or a majority of them, to do the same; * * *.'

Violation of this section 'shall be subject to such fine as the Mayor, Counselor and Aldermen may ordain.'

Section 33 provides:

'In all differences that shall arise between any citizen of Annapolis and the said wardens touching the discharge of their duty, an appeal shall lie to the Mayor, Counselor and Aldermen.'

Article I, Section 6(8) of the Baltimore City Charter, 1938, provides that the Mayor and City Council of Baltimore shall have full power and authority: 'To provide for the preservation of the navigation of the Patapsco River and tributaries, including the establishment of lines throughout the entire length of said Patapsco River and tributaries, beyond which lines no piers, * * * or extensions of any character may be built, erected, constructed, made or extended; * * * to erect and maintain and to authorize the erection and maintenance of, and to make such regulations as it may deem proper, respecting wharves, bulkheads, piers, and piling, and the keeping of the same in repair, so as to prevent injury to navigation or health; * * * to provide for the appointment of such officers and employees as may be necessary to execute the aforegoing powers and to impose fines or penalties for a breach of any ordinance passed in conformity herewith.'

Article II, Sec. 558 of said Baltimore City Charter provides:

'No alteration, extension or removal of wharves, piers, bulkheads...

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