N. Beach v. N. Chesapeake

• Decision Date: 17 March 1937
• Docket Number: No. 28.,28.
• Citation: 191 A. 71
• Parties: NORTH BEACH v. NORTH CHESAPEAKE BEACH LAND & IMPROVEMENT CO. OF CALVERT COUNTY et al.
• Court: Maryland Court of Appeals

191 A. 71

NORTH BEACH

v. NORTH CHESAPEAKEBEACH LAND & IMPROVEMENT CO.OF CALVERT COUNTY et al.

No. 28.

Court of Appeals of Maryland.

March 17, 1937.

COPYRIGHT MATERIAL OMITTED.

Appeal from Circuit Court, Calvert County; Wm. Meverell Loker, Judge.

Suit by North Beach, a municipal corporation, against the North Chesapeake Beach Land & Improvement Company of Calvert County and others. From a decree sustaining demurrer to an amended bill of complaint, the plaintiff appeals.

Affirmed.

Argued before BOND, C. J., and URNER, OFFUTT, PARKE, SLOAN, and SHEHAN, JJ.

John B. Gray, Jr., of Prince Frederick (John B. Gray & Son, of Prince Frederick, on the brief), for appellant. T. Van Clagett, Jr., of Upper Marlboro (Lansdale G. Sasscer, of Upper Marlboro, on the brief), for appellees.

PARKE, Judge.

The appeal is from a decree which sustained the demurrer to an amended bill of complaint filed on the equity side of the circuit court for Calvert county by North Beach, a municipal corporation, against the North Chesapeake Beach Land & Improvement Company of Calvert County, and the North Beach Amusement Company and the County Trust Company of Maryland, all three bodies corporate of the state of Maryland. The amended bill of complaint contains allegations which, if well pleaded, are admitted to be true for the purpose of the demurrer, and which, therefore, must be stated in substance. In this summary, the first-named defendant will be called the "Land Company"; the second, the "Amusement Company," and the third, the "Mortgagee." On the 5th of May, 1900, the Land Company obtained a grant of a large tract of land in Calvert county which bordered on the Chesapeake ? Bay. The purchase was made for the purpose of laying out a part of the land into town blocks and lots which would border upon a system of intersecting avenues or streets. After the development had been laid out on the ground into 69 blocks, which were divided and bounded by streets or avenues, which intersected one another at right angles and ran north and south and east and west, the whole was surveyed and platted and called North Chesapeake Beach. The plat was duly recorded with the grant.

The eastern boundary of the proposed development was the waters of the Chesapeake Bay. The shore line was about 3,800 feet in length. Blocks Nos. 1-6 were numbered consecutively from south to north and were nearest the Bay and fronted on Bay avenue, which ran north and south and whose western boundary line was the front or eastern boundary line of the lots of these six blocks. Its eastern line was not shown. All the 21 avenues were 50 feet in width, except Galveston avenue, which ran east and west on the southern boundary and was 51 1/2 feet in width, and Bay avenue which had no indicated width nor eastern boundary line. The waters of the Bay were about 100 feet away from the western boundary of Bay avenue for about 1,500 feet from the southern end of Bay avenue and from that point to the northern terminus of Bay avenue the shore line receded sharply to the northeast until approximately 700 feet east of the western boundary of Bay avenue, leaving a triangular piece of land, east of Bay avenue, and in the northeast corner of the tract.

This triangular piece was east of blocks Nos. 4, 5, and 6, and between them and the Chesapeake Bay. In 1905 the owner laid off this triangular piece into a new subdivision of five blocks, C, D, E, F, and G. Bay avenue, which bounded the triangle on the west was laid out with a width of 40 feet. Three avenues on the first plat running east and west were extended, with a width of 50 feet, to the east until Chesapeake avenue, a new street, which ran along the eastern boundary of the subdivision, was reached. Chesapeake avenue had its western boundary in the front line of the lots in blocks C, D, and E, and this boundary line. There are no lots laid triangular subdivision. A plat of this subdivision was put upon record on July 7, 1905. The plat is confined to the delineation of the subdivision and its location with reference to the first division. The dimensions of the lots are shown as well as the width of the streets, except Chesapeake avenue, whose width and eastern boundary line are not indicated. This avenue extends on the plat southwestwardly about 1,700 feet with no defined eastern boundary line. There are not lots laid down on this plat between Chesapeake avenue and the Bay, whose water line is east of the western line of Chesapeake avenue from approximately 100 feet at its northern extremity to about 30 feet where Chesapeake avenue unites on the south with Bay avenue where Richmond avenue enters Bay avenue from the west between blocks 3 and 4 of the first plat. Chesapeake avenue was the only right of way for ingress and egress available to a number of the lots in the second or last subdivision.

In 1908, the owner made a number of changes in the size and location of the lots, laid out new streets and caused the new division to be platted by a consolidation of the two plats of 1900 and 1905, in a new plat of the entire development with all the changes shown. In the original plats, no alleys were provided; these were supplied. Six new streets were opened which ran east and west. The number of the lots in most of the blocks was increased. The dimensions of these lots were changed and their location was altered to conform to the new streets and alleys. All these modifications are represented in the plat of 1908, which was duly recorded among the land records of Calvert county. In most instances the width of the streets is shown on the plat, but the widths of the alleys and of Bay avenue and Chesapeake avenue (Annapolis avenue) are not marked on the plat, but are furnished by the prominent legend on the map to this effect: "All alleys shown are 15 feet wide. All streets are 50 feet wide, except as otherwise marked." Bay avenue is a water front street from the southern boundary of the whole development 1701.5 feet northward along the eastern front line of blocks 1, 2, and 3 to the north side of Richmond avenue on the southern line of block 4. Chesapeake (Annapolis) avenue is the other water front street. From where it enters Richmond avenue, when prolonged to the waterside, it extends northeastwardly 1,700 feet along the southeastern line of blocks C, D, and E to the south side of Brooklyn avenue at the northeast corner of the whole development. While the eastern line of Bay and Chesapeake avenues along the shore tine of the Chesapeake Bay is not drawn nor indicated on the plat, the distance between the western line of the two streets to the water line is everywhere shown by the plat to have been in excess of the maximum street width of 50 feet.

In a conspicuous place on the plat is the notice in capitals: The Company Reserves All Rights to the Shore Front.

The Land Company sold and conveyed lots fronting on Bay avenue and lying in blocks 1, 2, and 3 by reference to the recorded plat of 1900; and lots in blocks C, D, E, F, and G, including lots fronting on Chesapeake avenue, by reference to plat of 1905 and final plat of 1908.

The plaintiff, North Beach, first became a municipal corporation under and by virtue of chapter 395 of the Acts of 1910, pp. 656-664. By the terms of this statute all that portion of North Chesapeake Beach as shown by the plat of 1900 which was east of the west line of Detroit avenue, and the waters abutting thereon eastward for a distance of 2,000 feet (later increased to 5,000 feet), was brought within the corporate limits and police power of "The Town of North Beach," and the inhabitants of the territory so incorporated. Its name was later changed to North Beach (Acts 1912, c. 557), and its corporate powers defined and enlarged by chapter 480 of Acts of 1933; Code of Local Laws (Flack), art. 5, § 212.

Upon the grant of its charter, North Beach accepted, improved, and maintained Bay avenue and Chesapeake avenue as shown on the plats mentioned. It constructed before 1921 along Bay and Chesapeake avenues concrete sidewalks for the use of pedestrians, and, so far as its available funds would permit, improved the beds of these streets for vehicular traffic. Because of the disappearance of a point of land which extended into the Bay a short distance above the northern boundary of North Beach the frontage of the town on Chesapeake Bay has been exposed to the direct action of wind and water, and the shore line has been eroded. The plaintiff constructed a concrete sea wall about 50 feet east from the west side of Bay avenue, but this sea wall proved inadequate and was gradually demolished by the force of the waves and a short while before the filing of the bill of complaint, the plaintiff had procured of the State Roads Commission the construction of a steel sheet piling bulkhead to protect the public thoroughfare from Galveston street' about 1,200 feet northward along Bay avenue. North of this distance along Bay avenue to Chesapeake avenue, and thence along Chesapeake avenue, where the water front is only a few feet above tide level, the prevention of erosion and encroachment of the water is difficult and only an adequate and comprehensive plan will protect the private property fronting on Chesapeake avenue; prevent the street from being washed away and permit the latter to be improved for public use. Notwithstanding the measures heretofore taken by the plaintiff and property owners to protect Chesapeake avenue, the encroachment of the waters of the Bay has reduced the width of Bay avenue and Chesapeake avenue, at points, to less than 50 feet, and at other points there have been accretions which have made a fine sand beach that affords a popular and desirable place for bathing. At the time of the institution of the proceedings much of Chesapeake or Annapolis avenue has been washed away and access to the properties along the water front and adjacent to Chesapeake avenue is by a series of temporary wooden sidewalks...