Gregg Neck v. Kent County

• Decision Date: 03 April 2001
• Docket Number: No. 562,562
• Citation: 137 Md. App. 732,769 A.2d 982
• Parties: GREGG NECK YACHT CLUB, INC., v. COUNTY COMMISSIONERS OF KENT COUNTY, Maryland.
• Court: Court of Special Appeals of Maryland

769 A.2d 982

137 Md. App. 732

GREGG NECK YACHT CLUB, INC., v. COUNTY COMMISSIONERS OF KENT COUNTY, Maryland.

No. 562, Sept. Term, 2000.

Court of Special Appeals of Maryland.

April 3, 2001.

Harris P. Murphy (Allewalt & Murphy, P.A., on the brief), Chestertown, for appellant.

Ernest S. Cookerly (Cookerly & Barroll, LLC, on the brief), Chestertown, for appellees.

Argued before DAVIS, HOLLANDER, and CHARLES E. MOYLAN, Jr. (Retired, Specially Assigned), JJ. HOLLANDER, Judge.

This case involves a dispute concerning ownership of real property, structural improvements, and riparian rights. We must decide, inter alia, whether a deed executed in 1950 conveyed an easement to Kent County or, instead, a fee simple interest that included riparian rights and now encompasses a pier constructed some forty years ago by Gregg Neck Yacht Club, Inc. ("GNYC"), appellant. The pier, situated on the Sassafras River, is at the heart of this dispute.

This litigation was spawned by Kent County's decision on October 12, 1999, to claim ownership of the pier. That action led GNYC to file suit in the Circuit Court for Kent County on October 25, 1999, against the County Commissioners of Kent County (the "County") and the Kent County Department of Public Works (the "Department"), appellees. In its declaratory judgment action, amended on December 1, 1999, GNYC asked the court to determine "the intent of the 1950 grant to the County and the property rights arising therefrom."¹ GNYC also asked the court to declare that appellees were estopped from asserting any rights to the pier or riparian rights. Alternatively, GNYC sought a declaration of ownership by adverse possession.

On April 12, 2000, the circuit court convened an evidentiary hearing, at which numerous witnesses testified and many exhibits were introduced. The hearing proceeded in phases, with the court resolving various issues, seriatim. Ultimately, the court found that the 1950 Deed conveyed a fee simple interest in the disputed land to the County, which necessarily included riparian rights. The court also determined that the County was not estopped from asserting its interests. As a result, the court concluded that the pier built by GNYC belongs to the County. This appeal followed, in which appellant presents two questions for our review:

I. Did the trial court err when it determined that the 1950 deed conveyed to the County a fee simple estate rather than an easement?

II. Did the trial court err in failing to determine that appellees either acquiesced to the ownership of appellant, or should be equitably estopped from asserting an interest in the subject pier as against appellant?

For the reasons that follow, we shall reverse.

FACTUAL SUMMARY

On July 6, 1950, J. Early Wood and his wife, Mary, executed a conveyance to the County of a 40 foot wide "right of way or strip of land," recorded in the land records, "to be used in the extension, construction, improvement and maintenance of [a] County road." The 1950 Deed did not mention riparian rights, nor did it use the words "in fee simple." The Deed stated, in part:

WHEREAS the State Roads Commission of Maryland proposes to extend and improve the County road leading from Route 290 (Galena to Sassafras) into Gregg Neck Subdivision in Kent County, and whereas the extension and improvement of said County road will be a material benefit to the adjoining landowners and useful to the general public.

NOW, THEREFORE, THIS DEED WITNESSETH that in consideration of the premises, we do hereby give and grant unto the County Commissioners of Kent County to be used in the extension, construction, improvement and maintenance of the aforesaid County road, a right of way or strip of land forty (40) feet in width and more particularly described as follows:

BEGINNING at the end of the County Road running from the State Road (leading from Galena to the head of Sassafras and known as Route 290) into Gregg Neck and approximately one-half mile distant from said State Road through the property of J. Early Wood and wife and running from said point, a right of way 40 feet in width the following courses and distances over other lands of the said J. Early Wood and wife into said Gregg Neck ...

* * * AND we further grant to the said County Commissioners of Kent County, or their agents, the right to construct, use and maintain such pipes, culverts and drainage structures as they may desire to construct for the purpose of draining said road, together with the right to create and maintain our land adjacent thereto such slopes as are necessary to support and maintain the aforesaid right of way, and/or adjacent land, at the grades of said road as now proposed.

According to appellant, "[t]he course and distance measurements set forth in the grant are unreliable." Appellant explains: "If the measurements in the [1950] deed are followed, the right-of-way extends into the Sassafras River [Mill Creek]. The actual roadway, known as Mill Road, follows a course that puts its terminus near Mill Creek. This is the location of the pier in question and has served as a County landing." The public has consistently used the landing, which the County maintains. In contrast, GNYC built, used, and maintained the pier.

In 1959, nine years after the conveyance by Wood, GNYC was incorporated by residents of the Gregg Neck Park development. That same year, GNYC applied to the Army Corps of Engineers for permission to construct the pier in issue, located at what is now the end of Mill Road. By permit dated March 29, 1959, the Army Corps of Engineers authorized construction of a pier to extend fifty feet channelward of the mean high water line in the Sassafras River (Mill Creek), at a point on the south shore at Gregg Neck Park. The survey plats of the Gregg Neck Park subdivision show Sassafras Avenue, sometimes referred to as Mill Road, extending to the water's edge. Mill Road and Oxford Road are the only two roads in Gregg Neck Park that run to the water.

The pier was constructed in late 1959 or early 1960. Michael Scott, a registered property line surveyor, performed a survey at the request of the County, and testified that "[t]he pier is located within... the 40 foot right-of-way. At the end of that road." Additionally, Scott prepared a plat that shows a pier extending about 70 feet into the creek, in the shape of an "L"; the "L" measures 69.93 feet. According to appellees, "There was no authority granted for the construction of the `L' and the dock exceeded the authority granted by the Army Corps of Engineers."

Nevertheless, Elizabeth Smith, who was treasurer of GNYC from 1971 to 1988, and a resident of Gregg Neck Park for 31 years, testified that the County knew of the construction of the pier by GNYC. She said: "I don't know if they were asked about it or not, but they certainly knew it was going up because I would call at different times—I asked about it." During her testimony, the parties stipulated that GNYC has consistently paid corporate taxes. It also incurred expenses regularly to maintain the pier, dating to 1971, in the total sum of $10,039.74.

Daniel Fleming, President of GNYC, testified about a letter dated June 29, 1961, from Wood, the grantor, to Clyde Wilgus, the first president of GNYC and founder of the Gregg Neck Park Civic Association, Inc. ("Association"). He stated, in relevant part:

I must call your attention to the fact that your organization is using all the facilities of the beaches and anchorages of Gregg Neck Park without assuming the ownership of the roads leading to them.

I am anxious to divest myself of this responsibility without further delay.

Will you please advise me promptly what the intentions of the Gregg Neck Yacht Club, Inc. are with regard to taking over the roads.

One year later, on July 10, 1962, Wood and his wife conveyed to the Association, in fee simple, some 17.5 acres, which expressly included riparian rights but excluded the conveyance to the County pursuant to the 1950 Deed. The 1962 Deed stated, in part:

All of the right, title, interest and estate of the said Grantors in and to all that right of way 50 feet wide and that easement area throughout the development known as Gregg Neck Park....Containing 17½ acres, more or less.

Being all of the right of way and easement areas as shown on the revised plat of the development known as Gregg Neck Park, recorded among the Land Records for Kent County.

SAVING AND EXCEPTING therefrom the 40-foot wide road within this area which by deed dated the 6th day of July, 1950, and recorded among the Land Records for Kent County ... was granted and conveyed unto the County Commissioners of Kent County.

TOGETHER with the plaza areas, approaches to navigable waters at the road ends, and the beach area and riparian rights connected therewith.

BEING a part of the same real estate which by deed dated the 9th day of November, 1946, and recorded among the Land Records for Kent County aforesaid in Liber R.A.S. No. 41, folio 394, was granted and conveyed unto the said J. Early Wood and Mary E. Wood, his wife, by Sara C. Plummer et al.

(Emphasis added).

At the hearing, the parties introduced minutes of various meetings held over the years by the County Commissioners, at which the pier was discussed. According to the Minutes of March 2, 1971, the County discussed ownership of both the landing and the pier on that date. As a result, the County wrote to Wilgus, as President of GNYC, and requested a copy of GNYC's application to the Army Corps of Engineers and the permit issued to GNYC. The Minutes of the County Commissioners of March 23, 1971, reveal that the Association asked the County to close "about 200' to the end of the road." The County took the matter "under advisement," however, "until the matter could be cleared up concerning permit and ownership of the pier at the end of the [C]ounty road."

The Minutes of the County Commissioners dated September 11, 1973, reflect that the issue of...