Gunby v. Olde Severna Park

Citation174 Md. App. 189,921 A.2d 292
Decision Date27 April 2007
Docket NumberNo. 1248, September Term, 2005.,No. 1180, September Term, 2005.,1180, September Term, 2005.,1248, September Term, 2005.
PartiesPaul GUNBY, Jr., et al. v. OLDE SEVERNA PARK IMPROVEMENT ASSOCIATION, INC., et al.
CourtCourt of Special Appeals of Maryland

Frederick C. Sussman (James P. Nolan, on the brief), Annapolis, MD, for Appellant.

Robert C. Douglas (Brian M. Quinn, Megan H. Baer, on the brief), Baltimore, MD, for Appellee.

Panel: DAVIS, HOLLANDER and MEREDITH, JJ.

HOLLANDER, J.

This consolidated appeal involves a dispute concerning ownership of riparian rights along the Severn River in Anne Arundel County, adjacent to land owned by Paul Gunby, Jr. and Joan Gunby, appellants. They appeal from two orders issued by the Circuit Court for Anne Arundel County in separate but related cases. The appellees are the Olde Severna Park Improvement Association, Inc. (the "Association" or "OSPIA") and six residents of the Olde Severna Park Community.1

First, on September 2, 2004, appellees filed a "Petition for Judicial Review" in the Circuit Court for Anne Arundel County (Case No. C-04-100243), challenging the issuance on July 16, 2004 of Tidal Wetlands License 04-PR-0642 (the "License") to Mr. Gunby by the Maryland Department of the Environment ("MDE"). The License authorized appellants to construct a 410-foot walkway across a tidal pond, as well as a 200 foot pier into the Severn River. Appellees asserted, inter alia, that appellants do not own the riparian rights to the waterfront property adjoining their residence, from which appellants sought to build the pier and walkway. Instead, appellees claimed that the Association possessed the riparian rights, and therefore MDE erred in issuing the License.

Second, on February 25, 2005, appellees filed a "Complaint for Declaratory Judgment" in the circuit court (Case No. C-05-104092).2 There, they sought to obtain a judicial declaration that the Association, not appellants, owned the riparian rights in issue.3

Both sides filed cross motions for summary judgment, supported by numerous affidavits and exhibits. After a hearing on May 23, 2005, the circuit court found that appellees own the riparian rights in dispute. Therefore, the court awarded summary judgment to appellees, as reflected in an "Opinion as to Declaratory Judgment" dated June 3, 2005 (filed June 30, 2005) and an accompanying "Order."

Thereafter, on June 6, 2005, the court held a hearing in the judicial review proceeding. Although MDE was a party to the proceedings involving judicial review of the issuance of the License, it took no position on ownership of the riparian rights. The court took judicial notice of its decision in the declaratory judgment proceeding and, on June 29, 2005 it filed an "Opinion as to Petition for Judicial Review," along with an "Order As to Petition for Judicial Review." Having found that appellants did not own the riparian rights, the court determined that appellants were not entitled to the License.

Appellants timely noted separate appeals. By Order dated November 15, 2005, this Court granted appellants' motion to consolidate the appeals "for purposes of briefing and argument."4

Appellants pose three questions:

I. Did the Circuit Court err when it determined that Rossee did not acquire riparian rights from The Severna Company in 1963, and that the Gunbys subsequently did not acquire those rights through mesne conveyances?

II. If interpretation of the 1963 Deed to Christian Rossee required resolution of conflicting permissible inferences or reasonable interpretations as to whether that Deed was intended to convey riparian rights to Rossee, did the Circuit Court err in deciding the ownership of riparian rights on summary judgment?

III. Should the Circuit Court's decision that reversed the issuance of the Tidal Wetlands License be reversed and remanded for further proceedings?

MDE has submitted an amicus curiae brief, claiming it "wishes to monitor this appeal to ensure that the Court renders its decision cognizant of its potential regulatory ramifications." It asks this Court to resolve the dispute without "inadvertently impair[ing] the Department's ability to issue tidal wetlands licenses, such as the one that triggered the present litigation."

For the reasons set forth below, we shall vacate and remand.5

FACTUAL SUMMARY6

Appellants are owners in fee simple of property in Severna Park. It is formed by two parcels. One is a waterfront parcel of about .70 acres, adjacent to the Severn River, a navigable waterway. The second parcel is adjoining and land-locked. Collectively, the two parcels are referred to as 216 Old County Road (the "Property").7

Appellants reside in the Olde Severna Park subdivision, which borders the Severn River. The individual appellees are also property owners in the subdivision. Alison Burbage, President of OSPIA, averred in an affidavit submitted below that the community consists of approximately 270 acres, with about 400 homes. She explained: "The largest part of the community wraps along an area of the river known as Sullivan's Cove." Further, she averred that "[t]he tidal area in front of 216 Old County Road [i.e., appellants' Property] is known as Sullivan's Cove Marsh."8

According to Burbage, the Association is a community group of about 270 members who pay dues. It was formed in 1918 to "enhance and preserve the . . . natural characteristics of the community." OSPIA maintains a small marina at the mouth of Sullivan's Cove for the benefit of the community. The marina houses a pier, which residents are able to access. Beyond this is a community mooring, used by residents to tie up their boats to individual moorings. Smaller craft are used to reach the pier area.

On November 3, 2003, Mr. Gunby filed with MDE a "Joint Federal/State Application for the Alteration of any Tidal Wetland in Maryland," dated October 27, 2003. He sought permission to construct a 410 foot walkway "overtop [a] non-navigable tidal pond and uplands area [and] a 6' × 200' pier which includes a 10' × 20' platform, a 3' × 20' finger pier, a boatlift and 2 mooring piles."9 While MDE was processing appellants' application, the Association informed MDE that it claimed ownership of the riparian rights to the Severn River shoreline adjacent to appellants' land.

Thereafter, MDE notified appellants of the Association's objection and advised that it was placing the matter on hold, pending resolution of the dispute concerning riparian rights. About three months later, appellants' attorney submitted to MDE an opinion letter authored by James Nolan, Esquire, analyzing the riparian rights issue, and concluding that appellants owned the riparian rights. The letter stated, in part:

1. In the early 1900's the developer of Severna Park, the Severna Company, purchased the land including the waterfront parcel in front of the Gunbys' property.

2. The Severna Company reserved the riparian rights of the waterfront until 1963 at which time a 20-acre parcel (+/-) was sold to Christian Rossee, which included the riparian rights to the Gunby parcel. There was no reservation of those riparian rights by the Severna Company in that sale[.]

3. In 1972 Mr. Rossee sold to John Jones the specific parcel in front of the Gunby home. There was no reservation of the riparian rights in that sale.

4. In 1991 the Gunbys purchased the property from the Joneses. Again, there was no reservation of riparian rights.

As indicated, MDE issued the License to Mr. Gunby on July 16, 2004. The License authorized him "[t]o construct a 410-foot long by 3-foot wide walkway over marsh and shallow water, and a 200-foot long by 6-foot wide pier with a 20-foot long by 10-foot wide platform, and a 20-foot long by 3-foot wide catwalk over open water as depicted on modified plans dated July 15, 2004." (Italics in original).

Because we must determine whether riparian rights were severed from appellants' Property, the history of the ownership of the Gunby Property and the surrounding properties is central here. Therefore, we pause to review the evidence as to these matters, focusing primarily on the chain of title for the waterfront area of the Gunby Property, identified on a 1931 Plat as Block J. That parcel, along with the adjoining parcel, were, at one time, part of a larger tract surrounding Sullivan's Cove, known as the Jacob Mittnacht tract.

By deed dated April 25, 1912, Jacob Mittnacht conveyed approximately 97 acres in Severna Park to Oscar Hatton, President of the Severna Company. Two days later, Hatton deeded the land to the Severn Realty Company of Baltimore City, which mortgaged the property. Through foreclosure, the Severn River Land Company acquired title to the 97 acres, by deed dated March 15, 1916. Then, by Deed dated May 1, 1916, the Severna Company acquired the 97 acres, including the Property in issue, from the Severn River Land Company. Thus, at that point the Severna Company owned all of the land surrounding Sullivan's Cove, known as the "Jacob Mittnacht Tract" (the "Mittnacht Tract"), including Block J.

By deed dated February 24, 1917, the Severna Company conveyed a landlocked parcel of the Mittnacht Tract to Henry D. Koethe and his wife, Emma. Then, on December 20, 1929, the Company conveyed to Mr. Koethe's widow, Emma, by deed (the "2nd Koethe Deed"), the rights and use of the streets, roads, and land designated as "Public Park" on the Severna Park Plat of 1910. The 2nd Koethe Deed provides, in part:

[I]t being the purpose and intention of the said The Severna Company to give to the owners and occupants of lots in Severna [P]ark reciprocal rights in the streets, roads, and waterfront hereafter to be laid out on and through a plat or subdivision of the said "Mitnacht" [sic] tract.

(Emphasis added.)

The Severna Company subdivided the Mittnacht Tract in 1931. The 1931 Plat, which was recorded, is labeled "Plat No. 2 (Jacob Mittnacht Tract)" (hereinafter, the "1931 Plat"), and shows...

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