Gwynn v. Oursler

• Decision Date: 01 September 1997
• Docket Number: No. 1591,1591
• Citation: 122 Md.App. 493,712 A.2d 1072
• Parties: Paul A. GWYNN, et al. v. Dorothy V. OURSLER, et al. ,
• Court: Court of Special Appeals of Maryland

Page 493

122 Md.App. 493

712 A.2d 1072

Paul A. GWYNN, et al. v. Dorothy V. OURSLER, et al.

No. 1591, Sept. Term, 1997.

Court of Special Appeals of Maryland.

July 10, 1998.

Robert L. Gray, Prince Frederick and Frank B. Haskell, Upper Marlboro, for appellants.

Carlton M. Green (Green, Leitch & Steelman, on the brief), College Park, for Oursler.

Richard C. Daniels (Daniels & Daniels, on the brief), College Park, for the Gwynns.

Argued before EYLER and SONNER, JJ., and LOUIS A. BECKER, Judge (specially assigned).

SONNER, Judge.

This is an appeal from the Circuit Court for Calvert County alleging that the court incorrectly denied the existence of a riparian right-of-way claimed by appellants across the land of appellees. Following a bench trial, the court (Rymer, J.) determined that those who deeded the easement in 1957 across two waterfront parcels of land did not intend to convey riparian rights that would entitle appellants to erect a pier at the end of the easement and, further, that a right-of-way to the shore of a navigable river does not, by implication, create riparian rights. We agree with the trial court and, accordingly, affirm.

This dispute involves two parcels of property along the Patuxent River owned by appellants, whom we refer to as the Gwynn family, and appellees, whom we refer to as the Oursler family. The families are related by marriage. In particular, the dispute concerns the access to a pier for the present day owners of several lots created in 1957 by Thomas S. Gwynn, Sr., one of the original family owners. In 1926, he, together with some other close relatives, purchased a parcel of land for the family to use for weekends and vacations. The Oursler family purchased the adjoining property. Over the years, the relatives of both families used the properties for fishing, boating, swimming, and crabbing, in harmony and without difficulties or recorded unpleasantness. In 1957, when the original Gwynn purchasers divided the land among some of the members of the family, they and the Ourslers, by deed, created a perpetual right-of-way along the property line between their lots, stretching away from the Patuxent River to the end of their properties and crossing over Lloyd Bowen Road. The four lots all share a border on the easement. Two of the lots created by the Gwynns are located on the west or "river side" of the road, and two lots are on the east side of the road. The right-of-way, as portrayed on a plat that accompanied the deed, shows a straight 20-foot-wide strip running along either side of the Oursler and Gwynn properties. The description of the right-of-way contained in the deed reads in part as follows:

Said 20 foot right-of-way to lie 10 feet on each side of said divisional line and to run from the easterly outline of said divisional line and to run from the easterly outline of said two I acre tracts, described aforesaid, to the shore of the Patuxent River. Said right-of-way to be for the joint use of the parties in interest hereto, their heirs and assigns, for ingress and egress only, ...

At the time the deed was executed, there was a dock or pier located at the end of the right-of-way that extended for several yards into the Patuxent River. Over the years, hurricanes destroyed the dock and, on each occasion, the families rebuilt it, but not ever again at the original location at the terminus of the easement. Beginning in the 1980's, the families began to quarrel about the use of the dock and, in 1990, when one of the Ourslers threatened to remove the dock, the Gwynn family obtained an injunction to prevent her from doing so. The Gwynn family dismissed the injunction voluntarily when they believed they had reached a settlement over the use of that dock, but Ms. Oursler unilaterally removed it and built another, far removed from the existing right-of-way. When the Gwynn family applied for a permit to construct a new pier where the right-of-way ended at the Oursler property and where one had been located in 1957 when the Gwynn family and the Ourslers had created the easement, the attorney for the Board of County Commissioners for Calvert County required the Gwynn family to obtain a decision from the circuit court before they could receive the permit. All of this led to the filing of the suit and the court decision that is the subject of this appeal.

The contention of appellees is that the deed created only the right of the owners of the subdivided lots to access Lloyd Bowen Road, while appellants maintain that the right-of-way first was intended to give them access to a dock on the Patuxent River and, in any event, all easements to navigable rivers carry with them an implied riparian right to such access. The issues, then, can be stated on appeal as:

I. Does an easement for ingress and egress only to the shore of a navigable river entitle the owner of the dominant estate to construct a pier at the end of the easement?

II. Was the trial court's evidentiary finding that the deed did not intend that the right-of-way include a pier clearly erroneous?

A riparian owner is one who owns land bordering upon, bounded by, fronting upon, abutting, or adjacent and contiguous to and in contact with a body of water, such as a river, bay, or running stream. Owen v. Hubbard, 260 Md. 146, 271 A.2d 672 (1970). Those who have riparian rights may make such structures as wharves, piers, and landings that are connected to the waterfront and built out into the water. Hess v. Muir, 65 Md. 586, 598 5 A. 540 (1886).

We must first consider whether appellants have riparian rights, that is, whether, in Maryland, a grant of an easement to a navigable river necessarily carries with it riparian rights, which, in the context of this case, would include the right to construct, use, and maintain a wharf or a pier. There appears to be no Maryland case directly on point, and indeed, although appellants have cited several decisions from foreign jurisdictions that bear upon the issue, none appears to have decided the precise issue framed by this case. In case law not cited by appellants, however, we find that other jurisdictions have addressed similar issues.

The Supreme Court of Minnesota, for example, addressed an almost identical issue in Farnes v. Lane, 281 Minn. 222, 161 N.W.2d 297, 299 (1968), when it considered whether "a private easement appurtenant for a right-of-way to a lake include[s] by implication the right to install a dock ..." That court concluded that the grant of the easement does not necessarily "make the grantee of the easement a riparian owner entitled to exercise riparian rights." In Lien v. Loraus, 403 N.W.2d 286, 289 (Minn.Ct.App.1987), the Minnesota Court of Appeals, relying on Farnes, reiterated that a pedestrian walkway to a lake may or may not entitle a grantee the right to install a dock. That right depends on the circumstances of the particular case.

In Hudson v. Lee, 393 P.2d 515 (Okla.1964), relied on by appellants, the Supreme Court of Oklahoma, in deciding that a deed conveying cabin sites and a right of ingress or egress over a narrow strip of land to the waterfront established docking rights on the waterfront, did not find that the easement, alone, established docking rights. Instead, the court examined the deed, found that it was ambiguous as to the intent of the makers, and affirmed the admission of parol evidence by the trial court to determine that the intent of the parties included conveying riparian rights. Id. at 520. The Supreme Judicial Court of Maine also faced the question of whether a deed granting a pedestrian right-of-way to the York River gave the grantee a right to place a dock at the end of the right-of-way in Badger v. Hill, 404 A.2d 222 (Me.1979). That court determined that a right-of-way that runs to the water does not per se establish a right to construct a dock, but a court, after finding that the language of the deed is ambiguous about the full scope of the use to be made of the right-of-way, may resort to extrinsic evidence to determine the purpose for which access to the river was given. Id. at 226. When again faced with a similar issue in Rancourt v. Town of Glenburn, 635 A.2d 964 (Me.1993), the Supreme Judicial Court of Maine relied on Badger and applied the same analysis, again stating that a deed granting a right of ingress and egress, alone, did not indicate if a right to place a dock at the end of the right-of-way existed.

We note that none of the cases cited by appellants expressly states that the mere granting of a right-of-way, allowing the grantee the right of ingress and egress to a body of water, establishes in the grantee the right to construct a pier or dock. Instead, the courts in those cases either examined the deed and found that the deed expressly permitted docking privileges, Boydstun Beach Association v. Allen, 111 Idaho 370, 723 P.2d 914 (Ct.App.1986) and Cabal v. Kent County Road Comm'n, 72 Mich.App. 532, 250 N.W.2d 121 (1977)(docking privileges granted because deed expressly allows boating privileges), Maxwell v. Hahn, 508 N.E.2d 555 (Ind.Ct.App.1987) (deed created easement for use of lake approaches), or found that the parties agreed that the grantees had riparian rights, including the right to construct docks, Lanier v. Jones, 619 So.2d 387 (Fla. 5th DCA 1993). In the remaining cases cited by appellants, the courts found that the deeds were ambiguous about the use of the easement and therefore required trial courts to admit parol or extrinsic evidence to determine the intent of the parties when they created the easement. Briggs v. DiDonna, 176 A.D.2d 1105, 575 N.Y.S.2d 407 (1991); Hutner v. Kellogg, 563 N.E.2d 1338 (Ind.Ct.App.1990); Klotz v. Horn, 558 N.E.2d 1096 (Ind.1990).

We therefore find, as other courts have, that the right-of-way to a body of water, alone, does not entitle the grantee the right to construct a dock or a pier. Instead, once a court is faced with a deed granting a right-of-way to a body of...