Newport Realty, Inc. v. Lynch

CourtUnited States State Supreme Court of Rhode Island
Citation878 A.2d 1021
Docket NumberNo. 2003-363-Appeal.,2003-363-Appeal.
PartiesNEWPORT REALTY, INC. v. Patrick LYNCH, in his capacity as Attorney General of the State of Rhode Island.
Decision Date20 July 2005

878 A.2d 1021

Patrick LYNCH, in his capacity as Attorney General of the State of Rhode Island

No. 2003-363-Appeal.

Supreme Court of Rhode Island.

July 20, 2005.

878 A.2d 1024
G. Quentin Anthony, for Plaintiff

Michael L. Rubin, Providence, for Defendant.



GOLDBERG, Justice.

This case takes us to the historic Newport harborfront. Long before the "City-by-the-Sea" became famous as a tourist destination, Newport's harbor was the focal point of the community and largely responsible for its rich merchant history. Because of its deep and well-protected harbor, Newport was a thriving commercial port, one of the busiest in the Colonial era. Wharves stretched for up to a mile, where hundreds of merchant ships, including vessels employed in foreign and domestic trade, were moored to land and load goods and supplies. Colonial Rhode Island's thriving economy depended on Newport harbor:

"The ports of Boston and New York were far behind Newport, in the State of Rhode Island, in the value of their imports; and that small State was paying all the expenses of her government by the duties levied on the goods landed at her principal port. And so reluctant was she to give up this advantage, that she refused for nearly three years after the other twelve original States had ratified the Constitution, to give it her assent." Cook v. Pennsylvania, 97 U.S. 566, 574, 24 L.Ed. 1015 (1878).

This appeal concerns a wharf in Newport harbor (Wharf) and the streets or ways on the structure, currently identified as Commercial Wharf, North Commercial Wharf, and Scott's Wharf.

Of ancient origin, this Wharf runs perpendicular to America's Cup Avenue, near

878 A.2d 1025
the Memorial Boulevard Extension; it is the site of the Harbourview Condominiums (formerly the General Electric Building) and the "Newport Yachting Center," where the annual Newport Boat Show is held. Located on the Wharf is a grid of streets and roadways, irregular in length, running along the length of the Wharf; at one point, two roadways ran to the westernmost terminus, the harbor itself. The chain of title to the property on the Wharf dates back to the eighteenth century

The term "wharf" connotes the actual physical structure jutting out into the harbor, to the harbor line, and also refers to the ways or streets situated on the Wharf. These roadways were known as South Commercial Wharf,1 North Commercial Wharf, and Scott's Wharf. An unnamed way, connecting North Commercial Wharf to Scott's Wharf, characterized as a "dog leg" or the "north-south connector" (connector), also is part of this dispute. The legal status of the streets and ways is at the center of this controversy.

Wharves were constructed by littoral landowners by filling out to the harbor line. This Court long has recognized that the common law right of wharfing out — by filling and then improving upon the filled land — is sufficient to establish title to that land, such that the littoral owner may convey out the land he or she has so acquired. Greater Providence Chamber of Commerce v. State, 657 A.2d 1038, 1044 (R.I.1995). Wharfing out or the right to fill and occupy land to the harbor line remains a common law right of riparian ownership.2 Engs v. Peckham, 11 R.I. 210, 223-24 (1875). "The establishment of a harbor line permits the riparian owner to carry the upland or high water mark out a certain distance from the natural shore." Allen v. Allen, 19 R.I. 114, 116, 32 A. 166, 167 (1895). "The land which was formerly shore becomes upland and while the rights to shore and upland are not changed, they are carried further out into the tidal stream, or sea." Id. (citing Engs, 11 R.I. at 224).

Facts and Travel

This is an action to quiet title. The plaintiff, Newport Realty, Inc. (Realty or plaintiff), is a real estate holding company, located in Newport, and is the record owner of the fee in the property that abuts the streets on the Wharf. The City of Newport and Harbourview Condominium Association (Harbourview) were named defendants, but they are not before this Court on appeal.3 The plaintiff filed an action to quiet title to the streets and ways on the Wharf. By virtue of its ownership of the land that borders North Commercial Wharf, Scott's Wharf, and the connector, Realty claims ownership of the streets and ways on the Wharf. Realty argued that the roads were private rights of way intended for the benefit of the lot owners, and as the sole owner of all the previously platted parcels, Realty owned the fee in the roads.

Appended to the complaint and discussed at great length at trial is a report of Donato Andre D'Andrea (D'Andrea), an attorney and title examiner who testified as an expert witness during plaintiff's case

878 A.2d 1026
in chief. D'Andrea's report and testimony present a comprehensive history of the many conveyances of the Wharf and the parcels to the east that terminated at Thames Street, but now end at America's Cup Avenue, and at the western terminus of the Wharf, Newport Harbor. According to the report, "the way that became North Commercial Wharf first appears in 1832 and extends from Thames Street to a distance no further west than 258 feet west of Thames Street."

A series of conveyances, beginning in 1898, by John N.A. Griswold of "all his wharf property to Mary Byrd Derby" are relevant to the issues before this Court. According to D'Andrea, with the exception of the property that fronted onto Thames Street, this series of transactions assembled the Wharf property into common ownership. D'Andrea testified that the lots on Thames Street had gaps between the buildings that provided access to the Wharf properties westerly to the harbor. In such a case, a buyer of Wharf land would be deeded a right of way to Thames Street. Beginning in 1898, Mary Byrd Derby and her husband, Richard C. Derby (the Derbys), began to acquire properties on Commercial Wharf, ultimately assembling the Wharf into a single, large lot. Critical to the Derby acquisitions was that Mary Byrd Derby also owned an interest in property that fronted on Thames Street.

According to D'Andrea's report, Mary Byrd Derby conveyed her interest in her Thames Street property to the Newport Trust Company. On the same day, she was deeded, in fee, a ten-foot strip of land on South Commercial Wharf, extending from her "Commercial Wharf estate, so[-]called," to Thames Street "for purposes of a way to be used by all persons having occasion to go from Thames Street to the Commercial Wharf estate." Although the deed restricted the use of this parcel to ingress and egress from Thames Street to the Wharf, the record discloses that Mary Byrd Derby owned the entire Wharf and a ten-foot strip of land to Thames Street. When she conveyed her property, the conveyance included this ten-foot strip of land.

In 1912, the Derbys conveyed all their Wharf property to the Providence, Fall River and Newport Steamboat Co. (steamboat company). According to D'Andrea, the grantor treated the property as a single parcel and filed a plat plan with the deed. The property is depicted on the plat as a single parcel, bounded on three sides by the harbor; included in the deed description was a reference to Scott's Wharf "being a way running westerly from Thames Street." The ten-foot strip of land out to Thames Street was included in the conveyance; the deed recited the restriction limiting the use to access to the Wharf:

"Together with all the rights of way in and to ways leading to or from said premises and subject to whatever rights of way the said Newport Trust Company may have in and to the way leading westerly from Thames [S]treet on the southerly side of the land of the said Newport Trust Company shown on the annexed plat. The ten-foot strip of land at the westerly end of the land of the Newport Trust Company and shown on the annexed plat is subject to the uses and purposes as described in the deed of the Newport Trust Company to Mary Byrd Derby, dated August 12, 1902[,] and recorded in volume 79 of the land evidence of Newport, at pages 341 to 345." (Emphasis added.)

The accompanying plat depicts unobstructed, open roadways running westward from Thames Street to North Commercial Wharf and Scott's Wharf.

878 A.2d 1027
The First Ebbs Plat

In 1919, the steamboat company conveyed the entire parcel to Narragansett Bay Realty Company (Narragansett). On April 30, 1921, apparently encountering financial difficulties, Narragansett conveyed its property to a group of trustees (trustees) who were charged with selling the property for the benefit of Narragansett's creditors. The parcel at the end of the Wharf, abutting the harbor, was under lease to the steamboat company. The trustees recorded a plat plan, identified as the First Ebbs Plat, which subdivided the Wharf, with the exception of the lot leased to the steamboat company. Significantly, on this plat, South Commercial Wharf and North Commercial Wharf were depicted as running, unobstructed in any way, from Thames Street to the harbor. Scott's Wharf was set out as running from Thames Street to the connector. As depicted on the plat, these roads connect with a public thoroughfare, are not closed off by solid lines, nor is there any indication on the plat itself that these roadways are private roads. The First Ebbs Plat, filed on November 15, 1921, is the central document in this case and is appended as exhibit No. 1.

Thereafter, six deeds from the trustees to various buyers were recorded that deeded-out most of the lots on the Wharf, but not the portion leased to the steamboat company. Each deed included a description of the lot conveyed by metes and bounds and by reference to a way or street on the First Ebbs Plat. For example, lots 6 and 9 were transferred to Fischel David and were described by metes and bounds as situated "on a way called North Commercial Wharf laid out on [the First Ebbs...

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