Steuart Transp. Co. v. Ashe

• Decision Date: 17 May 1973
• Docket Number: No. 250,250
• Parties: STEUART TRANSPORTATION COMPANY et al. v. Thomas J. ASHE et al.
• Court: Maryland Court of Appeals

Page 74

269 Md. 74

304 A.2d 788

STEUART TRANSPORTATION COMPANY et al. v. Thomas J. ASHE et al.

No. 250.

Court of Appeals of Maryland.

May 17, 1973.

Joseph W. Kiernan, Washington, D. C. (Robert V. Smith, Smith, Ristig & Smith, Washington, D. C., and Charles A. Norris, Leonardtown, on the brief), for appellants.

Bennett Crain, Jr., Annapolis (Stanley E. Hartman and Hartman & Crain, Annapolis, on the brief), for appellees.

Argued before MURPHY, C. J., and BARNES, McWILLIAMS, SINGLEY, SMITH, DIGGES and LEVINE, JJ.

BARNES, Judge.

The principal question in this appeal is whether the Circuit Court for St. Mary's County, in Equity (Mitchell, J.), was clearly in error for permanently enjoining the appellants, Steuart Transportation Company and Steuart Investment Company, from mooring oil barges against the pier in front of their property in Piney Point, Maryland, and from constructing a pier from any part of their property fro commercial or industrial uses. Steuart Investment Company is the owner of Lots Nos. 2, 3 and 4 in 'Warren Tolson's Subdivision No. 2' in Piney Point, Maryland. Steuart Transportation Company is in the business of transporting fuel oil and moors its oil barges to the pier in front of the property.

The primary basis for the lower court's decree of July 11, 1972, was that Lots Nos. 2, 3 and 4 and the riparian rights incident thereto were subject to restrictions resulting from a uniform general plan of development of Piney Point, which limited the use of the pier to crabbing, noncommercial fishing, bathing and the mooring of family boats or launches. The court held that these restrictions prohibited the defendants from using the pier for commercial and industrial purposes and, further, from constructing a pier for such purposes. We have concluded that the chancellor was not clearly in error in his findings and conclusions and we will affirm the decree of July 11, 1972.

Piney Point, located in St. Mary's County, is a 151-acre, hook-shaped peninsula which points such and juts out into the Potomac River, approximately midway between Washington, D. C. and Norfolk, Virginia. The St. Mary's River empties into the Potomac River on the east side of the point. A lighthouse is maintained by the United States Coast Guard on the point. Back in 1905, Warren J. Tolson and his wife, Annie H. Tolson, bought Piney Point which was improved by a 25-room hotel, 27 cottages, other buildings and a steamboat wharf. Between the hotel and the river, a 100-foot wide beach stretched northward for the entire length of the property. At that time, the place was primarily a summer resort; the hotel was in operation; the cottages were fully used; and the steamboat brought passengers from all over.

Mr. and Mrs. Tolson lived at Piney Point after they acquired the property in 1905 and their heirs still retain title to the hotel site. However, time has left its mark on the property. The hotel had not been in operation since 1943 when it was used as apartments for a naval installation during World War II. In 1954, shortly after Mr. Tolson died, 'Hurricane Hazel' blew off the roof of the hotel. The roof was not replaced and the hotel is in a state of complete disrepair.

With this background in mind, we now turn to the development activities of Warren Tolson in connection with Piney Point. These activities were first evidenced on August 23, 1909, when he recorded a plat designated as 'Tolson's Subdivision' among the Land Records of St. Mary's County in Liber EBA No. 8, folio 49. This original subdivision is located to the northeast of Tolson's Hotel and consists of 58 lots, each 40 feet wide, fronting on what the plat designates as 'Maindrive way,' running parallel to the Potomac River along the beach and covered with sand. The rear of those lots is upon Piney Point Creek, the lots being located upon the relatively narrow portion of the Piney Point Peninsula bounded generally by the Potomac River on the south and by Piney Point Creek to the north. A few months later-on December 17, 1909-Mr. Tolson recorded among the Land Records in Liber EBA, folio 49 a sealed instrument, executed and acknowledged by him and his wife (Document #1) in regard to the original subdivision. In the grantor index, the following appears: 'Dec 13/1909/Tolson/Warren et ux/Plat & Agreement Piney Point Hotel Prop./E.B.A./8/49.'

Document #1 is as follows:

'With the intent that this instrument may be recorded upon the following referred to plat,

'Know all men by these presents, that we, Warren Tolson and Annie H. Tolson, his wife, do hereby dedicate so much of the land on the plat called Warren Tolson's Subdivision of a part of Piney Point, as recorded Aug. 23-1909 in Liber E.B.A. No. 8, folio 49, one of the land records of Saint Mary's County marked thereon as 'Beach' which is bounded on the North by the Main driveway, on the east by a line drawn N. 14 W. from point No. 43 on the outline survey of the whole tract to said Roadway, on the South by low water mark of the Potomac River, and on the west by the extension of the west line of lot number one to said low water mark, to use and enjoyment in common by any of the owners of said lots from 1 to 58 both inclusive, as a common parkage, with the privilege in any lot owner, his heirs or assigns, to erect on said parkage within the area thereof ascertained by extending the east and west lines of the lot owned by the person so desiring to build to low water mark on said River, a family bath house, a summer house, not nearer than 20 ft. to said Roadway and with the right to construct a small wharf into the water opposite his, her or their lot or lots for crabbing, bathing and the use of family bats or launches. No structure of any kind shall be built upon said parkage, nor boat wharves for Steamboats into the river. Nor shall any public fishing or oyster shore usage be made of said river front. The said Warren Tolson reserves the right for himself his heirs and assigns to use said parkage as such in common with the owners of said Lots 1 to 58 for the use of sojourners at the Piney Point Hotel property not subdivided.

'In witness whereof the said Warren Tolson and Annie H., his wife have hereunto set their hands and seals this 13th day of December, 1909.

Warren Tolson (Seal)

Annie H. Tolson (Seal)

'Test:

John L. Fletcher

'I hereby certify that on this 13th day of December Nineteen hundred and nine before me, the subscriber, a Notary public in and for the District of Columbia personally appeared Warren Tolson and Annie H. Tolson his wife and acknowledged the aforegoing instrument of writing to be their act and deed.

'(N.P.

Seal)

John L. Fletcher,

Notary Public, D. C.

'Received this 17th day of December, 1909 at 10 o'clock A.M. for record and examined per me.'

The second venture into the development of the Piney Point land occurred on November 20, 1923, when Mr. Tolson recorded a plat designated as 'Warren Tolson's Subdivision No. 2 in Piney Point' among the Land Records of St. Mary's County in Liber J.M.M. No. 2, folios 83 and 84. Subdivision No. 2, is located to the south of the Tolson Hotel along the shore of the Potomac River and consists of 12 lots. Like the original subdivision to the northeast, 11 of the 12 lots are 40 feet wide. All of the lots are 175 feet deep. Lot No. 1 is trapezoidal in shape and has a larger area than the other lots. Also these lots front on a 50-foot wide strip running parallel to the Potomac River along the beach and corresponds to 'Maindrive way' on Document #1, but is not so designated on the plat to Subdivision No. 2. The Court has adapted this plat by reducing its scale from 1 inch equals 50 feet to 1 inch equals approximately 100 feet and has eliminated the metes and bounds description of the surveyor on the plat as well as the recordation notations of the clerk. This adapted plat is included as an Appendix to this opinion.

Simultaneously with the filing of the plat of Subdivision No. 2, Mr. Tolson filed a written instrument (Document #2), the provisions of which are as follows:

'With the intent that this instrument may be recorded upon the following reference to the plat.

'Know all men by these presents, that we, Warren Tolson and Annie H. Tolson, his wife, of St. Mary's County, State of Maryland, do dedicate so much of the land on the plat called 'Warren Tolson's Subdivision No. 2 in Piney Point,' St. Mary's County, Maryland, marked thereon as 'Beach' which is bounded on the North by the main walkway on the East by a line drawn from the point F. on the plant to low water mark on the Potomac River, on the south by the Potomac River, and on the West by an extension of the West line of lot number one to said low water mark, to the use and enjoyment in common by any of the owners of said lots one to twelve, both inclusive, as a common parkage within the area thereof ascertained by extending the east and west lines of the lots owned by the persons so desiring to build to low water mark on the said Potomac River a family bath house or summer house within said area and with the right to construct a small wharf into the water opposite his, her or their lot or lots for crabbing, bathing and the use of family boats or launches. No structure of any kind shall be built upon parkage, nor boat wharves for steamboats into the river, nor shall any public fishing or oystering rights for himself, his heirs or assigns obtain said parkage to be used in common with the owners of said lots one to twelve, both inclusive, and for the sojourners at Piney Point Hotel Property, not subdivided.

'In witness whereof said Warren Tolson and Annie H. Tolson, his wife, have set their hands and seals this 10th day of November, 1923.

Warren Tolson (Seal)

Annie H. Tolson (Seal)

'Test

B. Kennedy Abell

'State of Maryland, Saint Mary's County, to wit:

'On the 10th day of November, in the year nineteen hundred and twenty three, personally appeared before me, the subscriber, a Notary Public of the ...