United States v. Certain Land in County of Worcester, State of Maryland

• Decision Date: 03 April 1970
• Docket Number: 19884.,Civ. No. 19510
• Citation: 311 F. Supp. 1039
• Parties: ASSATEAGUE ISLAND CONDEMNATION CASES OPINION NO. 2 UNITED STATES of America v. CERTAIN LAND Situate IN the COUNTY OF WORCESTER, STATE OF MARYLAND, and Ocean Beach Inc., a Maryland corporation, et al.
• Court: U.S. District Court — District of Maryland

311 F. Supp. 1039

ASSATEAGUE ISLAND CONDEMNATION CASES OPINION NO. 2 UNITED STATES of America v. CERTAIN LAND Situate IN the COUNTY OF WORCESTER, STATE OF MARYLAND, and Ocean Beach Inc., a Maryland corporation, et al.

Civ. Nos. 19510, 19884.

United States District Court, D. Maryland.

April 3, 1970.

COPYRIGHT MATERIAL OMITTED

Anthony C. Liotta, Philip M. Zeidner, Naneita A. Smith and Stanley J. Fineman, Attys., Lands Division, Department of Justice, Washington, D. C., and Stephen H. Sachs, U. S. Atty., and Jean G. Rogers, Asst. U. S. Atty., Baltimore, Md., for plaintiff.

Franklin Goldstein, Arnold Michael Weiner, and Burke, Gerber & Wilen, Baltimore, Md., and J. Hampton Baumgartner, Jr., Bruce S. Mencher, and Wilkes & Artis, Washington, D. C., for Trustees of Liquidation Trust for former members and stockholders of Ocean Beach Club, Inc., and for Assateague Island Bridge Corporation.

Louis Friedman and Miles & Friedman, and Howard E. Wallin, Baltimore, Md., for Ocean Beach, Inc., and South Ocean Beach, Inc.

Jeremiah D. Griesemer, Temple Hills, Md., for Thomas F. and Helen S. Corcoran.

THOMSEN, Chief Judge.

These consolidated condemnation cases were brought pursuant to an Act of Congress establishing the Assateague Island National Seashore, which embraces the whole of Assateague Island (Assateague) and adjacent small marsh islands and water areas. P.L. 89-195, § 1 et seq., September 21, 1965, 79 Stat. 824, 16 U.S.C.A. §§ 459f to 459f-10.

Assateague is 35 miles long and ranges between one-third of a mile and two miles in width, with 22 shoreline miles in Maryland and 13 in Virginia. The northern part is separated from the mainland by Sinepuxent Bay, the rest by Chincoteague Bay. The northernmost six miles of Assateague consists of two large tracts of land, as to which no condemnation proceedings have yet been filed, and which are not involved in the present controversy. Immediately south of those tracts is a state park, two miles long, established by Maryland in the early 1960s. These condemnation cases deal with the next fourteen miles, from the state park to the Virginia line, consisting almost entirely of two developments known as Ocean Beach and South Ocean Beach (collectively, Ocean Beach).

The present opinion¹ considers (A) the claims of various parties to have some right, title and interest in and to certain areas referred to as the beach, parks, parking areas, streets, pier site, harbor site, fuel dock and town hall site, and (B) whether any or all of those areas have more than a nominal value for condemnation purposes. The term "beach", as used herein, means the land lying between the mean high water mark of the ocean and the platted lots fronting thereon.

A hearing was held to determine those issues. Notice of the hearing was given to all owners of property involved in the condemnation cases and they were invited to participate. Several dozen owners appeared in person, a few by counsel, and various claims and contentions were presented by (1) the Trustees of the Liquidation Trust for the Former Members of Ocean Beach Club, Inc., (2) Thomas F. Corcoran et ux., the owners of several residential lots, and (3) Ocean Beach, Inc., and South Ocean Beach, Inc. (the developers).

All counsel agreed that each owner of a lot purchased from either of the developers (whether such owner purchased the lot directly from the developer or obtained it from a mesne owner) has an implied appurtenant easement to use the beach, the streets and the parks. The Government contends that the value of that implied appurtenant easement was a part of the value of such owner's lot or lots for condemnation purposes, and that because of the easements and for other reasons discussed below, the beach, the parks, the streets and other public or community property have only a nominal value for condemnation purposes. The Trustees, the Corcorans and the developers all contend that these properties have more than nominal value for condemnation purposes, although they disagree as to who is entitled to collect such claimed value.

Findings of Fact Plats

1. Most of the land involved in these cases had been platted into lots and blocks for subdivision purposes in 1950-1952 by the developers, which were controlled by Leon Ackerman. All of the plats were filed and recorded among the land records in the office of the Clerk of the Circuit Court for Worcester County.² A dozen or so parcels along Sinepuxent and Chincoteague Bays, most of which were owned and used by hunting clubs, were never owned by the developers and were not part of the subdivisions.

2. All contracts of sale entered into by the developers were by lot and block numbers, and all deeds to the purchasers described the property conveyed by lot and block numbers on specific recorded plats. Most of the lots were in areas designated on the plats as "private, one-family houses, restricted residential zone". Interspersed were areas designated on the plats as "business and commercial, multi-family residences" or as "business or commercial and multi-family zoning". Almost all of the lots were 100 feet wide by 200 feet deep.

3. All areas and parcels of land involved in the recent hearing and dealt with in this opinion appeared on the original, revised or amended plats. Those areas and parcels are:

A. The Beach — All of the plats showed a beach area between ocean-front lots and the ocean. Some plats contained the following language: "South Ocean Beach and adjoining subdivision Ocean Beach, Maryland, hereby dedicate and provide over fifteen (15) miles of ocean shore reserved for the future use and benefit of all lot owners". Other plats did not contain explicit language of reservation, but merely showed an "ocean beach". On each plat, two narrow dotted lines labeled "Projected Boardwalk" ran along the length of the commercial lots fronting on the beach.

(B) Parks and Parking — The plats for all sections designated as "Parks" two or three blocks entirely surrounded by commercial areas.³

(C) Boulevards and Streets — All plats showed streets and other highways.

(D) Pier Site — A small area adjacent to residential areas facing the ocean was designated on the 1950 plat of Section A as "Reserved Pier Site", and on the 1957 amended plat as "Community Pier Site".

(E) Harbor Site — An area fronting on Sinepuxent Bay was designated on the 1950 plat as "Harbor Site Reserved". On the 1957 amended plat this area was divided and designated as "Public Harbor" and "Harbor Parking".

(F) Fuel Dock — A small area in Section A projecting into a "Dredged Harbor" on Sinepuxent Bay was designated "Fuel Dock" on the 1957 amended plat.⁴

(G) Town Hall Site — The town hall site was located on the causeway property created in 1956 by the dredging and filling operations of the Bridge Corporation, and first appeared on the 1957 amended plat of Section A.

Promotion, Sales and Deeds

4. The development was promoted by full-page advertisements in Washington and Baltimore newspapers and by brochures distributed from Ackerman's Washington office. The early advertisements referred to "8 miles of beautiful private beach reserved for the use of property owners and their guests". When additional land was offered, the advertisements stated: "Ocean Beach is a community beach, not a public beach. Every property owner will enjoy unlimited use of the entire 15 miles of beach." A typical brochure, containing a platted map of the entire subdivision, states: "All property owners and their guests will enjoy unlimited use of the entire 15 miles of beach. * * * Commercial and business sites have been completely segregated from residentially-zoned areas to the mutual advantage of both."

The developers represented to prospective purchasers that they would be given the use of a private beach available only to lot owners. That was the "keynote of their advertising."⁵

5. Sales were usually made on an installment basis. Many of the installment contracts were assigned by the developers to finance companies; deeds to the lots covered by the assigned contracts were usually given to title holding companies, which gave deeds to the purchasers after the price was paid in full. The deeds to the lots, whether from the developer or the holding companies, contained numerous conditions and restrictions, which varied somewhat from time to time.

6. Some 2586 deeds to lots or groups of lots in the subdivisions were issued by the developers or by the holding companies. The great majority of those deeds, about 2250, were to individual purchasers (including husbands and wives, brothers and sisters, etc.) and contained various covenants and restrictions, including the following or others generally similar thereto.

"9. The provisions herein contained shall run with and bind the land and inure to the benefit of and be enforceable by Ocean Beach, Inc., or the owner of any land included in said tract, and the failure by Ocean Beach, Inc., or any land owner to enforce any restriction, condition, covenant or agreement herein contained shall in no event be deemed a waiver of the right to do so thereafter, as to a default occurring prior or subsequent thereto; and the declared invalidity of any one or more of the provisions herein shall not affect the validity of the others.

"10. Any or all of the rights and powers, titles, easements and estates reserved or given to Ocean Beach, Inc., in this deed may be assigned by it to any one or more individuals, corporations or associations that will agree to assume said rights, powers, duties and obligations and carry out and perform the same. Any such assignment or transfer shall be made by appropriate instrument in writing in which the assignee or transferee shall join for the purpose of evidencing his or its acceptance of such rights and powers; and such assignee or transferee shall thereupon have the same rights and powers and be subject to the same obligations and duties as are herein given to and

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