Clickner v. Magothy River Ass'n

²⁵⁶ GREENE, J. Six individuals and the Magothy River Association, Inc. (collectively, “Association” or “Appellees”) brought suit against the recent purchasers of Dobbins Island, David and Diana Clickner (“Clickners” or “Appellants”), seeking to establish a public right to use a beach located alongside the island’s northern crescent area. Following a bench trial on the merits, the trial judge determined that Appellees had demonstrated the existence of a prescriptive easement on behalf of the public and ordered the removal of portions of a fence erected on the beach by Appellants. In making this determination the trial judge applied the general presumption of adverse use and accordingly placed the burden on Appellants to prove that the use was, in fact, permissive. Based on the record before us, however, we determine that this application was in error, as the beach at issue was unimproved and otherwise in a general state of nature; therefore, the proper presumption, under the circumstances, was that public use was by permission of the owner.

Thus, the trial court’s judgment and its order directing Appellants to remove portions of the fence erected on the beach were in error and we shall reverse. FACTS AND PROCEDURAL HISTORY Appellants own Dobbins Island (“the island”), a seven-acre parcel of land surrounded by the Magothy River. The island has a long, albeit mysterious, presence in Maryland history. According to sales literature, it was first surveyed in 1769 as twelve acres and granted by patent to William Gambrel.

In the 1850’s it was conveyed to George Dobbin, and held in a family trust, until it was conveyed to Dutchship Island, LLC. Appellants purchased the island in 2008, with plans to build a home on the property. Prior to the purchase, the Clickners received a marketing brochure from Dutchship Island, LLC entitled “Island-Jewel.” The brochure included several color ²⁵⁷ photographs of the property and described it as “the perfect blend of tranquility and accessibility — an idyllic, unspoiled natural retreat surrounded by deep pristine waters.... ” The island’s north side, according to the brochure, “forms a gentle crescent ideal for a protected boat anchorage.” A photograph of the “idyllic sandy beach” along the crescent was also included, showing only a single boat in the water and no persons or items on the sand. The brochure also presented a brief history of the island entitled “Dobbins Island-Historic Treasure.” The introductory sentence in this historical narrative reads: “[t]his delightful island-jewel, has been a magnet for picnickers and boaters as they enter the mouth of the Magothy River for more than 250 years, serving as a beacon for pleasure boaters, crabbers, fishermen, and duck hunters alike.” The page included a photograph of two people sitting on the beach, captioned: “A 1963 picnic on Dobbins Island.” The narrative also related legends, which “hover over Dobbin’s [sic] Island like transparent kites.” A prominent tale in Magothy River lore involves the alleged sinking of a Dutch ship near the island in the 1700’s, an accident which left Dutch coins behind for discovery by local residents and gave the property its local moniker, “Dutchship island.” A letter included in the brochure with the greeting, “Dear Prospective Buyer,” invited would-be purchasers to look into the opportunity to build a “dream home ... on the last remaining unbuilt private island on the Western shore of the Chesapeake Bay near Annapolis, Maryland.” It characterized the island as a “natural setting” that is “beautifully wooded with mature trees for privacy,” with “4,000 feet of shoreline, 1,000 feet of pristine beach, and a home site already approved for ... almost any sized home.” The letter, however, like the introductory sentence of the historical narrative, foreshadowed the conflict which has arisen in this case, when it stated: “[f]or more than 300 years, Dobbins has been a magical place for people to visit and relax.

With a large and expansive private white sandy beach, protected deep water access, and incredi ²⁵⁸ ble 360 degrees vistas, a more beautiful or perfect place to escape to cannot be imagined.” (emphasis added). While the brochure materials certainly suggest a conflict between the island’s public visitation and its private ownership, Mr. Clickner testified that he did not discuss any public use of the property with the sellers and was not aware of the use prior to purchase. Also, although he had spent time on the Magothy River in his youth, Mr. Clickner made clear that he had not visited or inspected the island until he toured it with the seller, and that he had submitted his offer to purchase the property during that initial tour. After the Clickners purchased the island and became aware of its extensive public use, they posted “No Trespassing” signs along the perimeter and, in May 2006, were granted a building permit from Anne Arundel County to erect a 1,200 foot fence along the shoreline above mean-high tide. 1 The fence included ²⁵⁹ 13 pilings placed along the beach and strung together with cable.

There is some discrepancy in the record as to the exact location of the fence, as there was testimony that it was installed at approximately six inches to two-feet above mean high water. On July 10, 2008, in reaction to the fence installation, Appellees filed a two-count complaint in the Circuit Court for Anne Arundel County seeking “to establish their rights to continue to use the island as they have used it in the past,” on behalf of themselves and the general public. 2 The second count sought to have the fence removed or relocated “because the fence does not properly mark the mean high water line.” An amended complaint was filed on November 13, 2008 adding two new parties as well as assertions of an easement by implied dedication and public custom. During the trial, Appellees put forth the testimony of the six individually named plaintiffs, the president of the Magothy River Association, and an expert in the use of tidal data as it relates to coastal boundary disputes. Appellees also called and questioned Mr. Clickner about the circumstances surrounding his purchase and the decision to erect a fence on the beach.

Appellees presented evidence to establish the long, historical use of the island beach. They entered photographs that were apparently taken in the 1920’s or 30’s depicting persons canoeing around the island and also photographs of public use of the shore during the 1970’s and 1980’s. (i) Littoral means belonging to the shore, as of seas and great lakes. (Internal citations omitted.). ²⁶⁰ Appellees also presented Chesapeake Bay Magazine’s “Best of the Bay Survey” from 2006 which included Dobbins Island as one of the best anchorage sites in the Chesapeake Bay.

Mr. Paul Spadaro, president of the Magothy River Association, testified that this anchorage spot at Dobbins Island is used as the official site for the Association’s “Magothy River Day.” This event celebrates the history of the river, and includes a “wade-in” on the sandbar in which participants wear white shoes and wade into the water until they can no longer see their feet, in order to test the river’s visibility and water quality. In 2007, approximately 200 boats attended the inaugural event, and in 2008, over 400 boats were present. While Mr. Spadaro testified- that his organization stressed that participants respect the island as private property, several photographs introduced by Appellants show several people using the beach area beyond the Clickners’ fence. Each individually named plaintiff recounted his or her lifelong affinity for and interaction with the beach, each using it from long memory for recreational purposes, such as picnicking, mooring, sunbathing, and swimming.

While many witnesses explained their historic use of the entire island, counsel clarified that Appellees were asserting a claim only to the dry sand portion of the beach. Several witnesses also described the extensive public use of the area during summer months, estimating that approximately 75 to 100 persons would be on or around the beach on a given day. The testimony also made clear that the Dobbins Island was, and has always been uninhabited and undeveloped. There was consistency amongst the witnesses’ answers to questions aimed at eliciting whether use of the island was adverse or by permission of the owner.

The testimony revealed that the witnesses were never given individual permission to use Dobbins Island and that they did not necessarily know who owned the island. 3 Further, the witnesses did not ²⁶¹ think of themselves as trespassers but instead assumed the land was open for public use because it was common practice for members of the public to use the island for recreation and they did not see “no trespassing” signs on the property. In other words, they felt privileged to use the beach “because everyone else did.” The following testimony is illustrative of the testimony given by Appellees. Ms. Carol Auer, age 55, explained that she remembered using the beach with her family from the age of seven. She continued to use the island for recreation throughout her lifetime and testified that “it was a very popular place to go if you had a boat.” In response to questions on direct examination, she revealed: Q. Did anyone ever give you permission to use the island?

A. No. Q. And what was your understanding about the ownership of the island, if you had an understanding. A. I didn’t know who owned the island. Until Mr. Clickner bought it I didn’t really know who owned the island. In response to questions on cross-examination, she stated: Q. So you generally understood that it was private property?

A. I understand it now. When I was a kid, no. I didn’t know who owned it. Q. Not as a kid but as an adult.

I mean certainly you know it’s not state park land, right? A. I didn’t know what it was. I really had no idea. I didn’t know if it was state-owned.

I actually thought at one point it might be. I had no idea. Q. So you didn’t bother to look into it. A. No. Q. Okay.

You just would go out there and use the property? A. That’s right. ²⁶² Q. And you felt like your use was generally permitted by the owner, didn’t you? A. Yeah, I guess so. I mean I never thought about it.

I never thought about who owned it because it was something I had done and had been done and had been publicly used forever. For as long as I remember. Q. And no one has identified themselves as an owner of the property and asked you to modify your behavior, right? A. No. No one ever has.

Q. Okay. But you generally felt that you were invited to the island by whomever owned it. A. No. I wouldn’t say that. I never thought that way.

I never felt that I had a personal invitation or that it was like — it was like I didn’t — I never felt that way that I was invited. I thought— Q. Okay. You felt like you were— A. —I thought it was a proper thing to do. I didn’t think it was improper to use the island.

Q. Okay. So you are going to stick with the generally accepted as a permitted thing to do regardless of who owned it? A. Yeah, I think that that’s fair. Q. Well, do you see any use, any difference in your use of the island and a trespasser of the island?

A. Let’s see. I think when I use the word trespasser I would assume that the person who is trespassing is doing it and they know they are doing something wrong. If that’s the term, if that’s the way you are defining trespasser, no I don’t think I thought of myself as a trespasser on the island. In addition to testimony, there was also documentary evidence offered in an attempt to establish whether use of the island’s beach was adverse to or by permission of the owner.

Appellees introduced an excerpt from Chesapeake Bay Magazine’s 1997 “Guide to Cruising [the] Chesapeake Bay” that ²⁶³ described the island and, like the promotional materials given to Mr. Clickner, foreshadowed the issue that has arisen in this case: The island is very popular on summer weekends and can be a beehive of water-skiing activity. It attracts dozens of boaters, from locals in little runabouts who pull their vessels right up on its sandy beach to large sailboats and cabin cruisers that anchor out. Many times we have visited Dobbins, once climbing the steep trail to the wooded crest of the island and exploring its mysteries. But, aware that this was (and is) private land, we mostly anchored offshore, content to enjoy the beauty of its dark banks which formed a peaceful backdrop for the other boats which swung at anchor there.

Boaters have used Dobbins Island for so long they think it falls in the realm of public property. It doesn’t. This uninhabited island is owned by the heirs of George W. Dobbins [sic], a Baltimore judge who bought it around 1840 for duck hunting. Along with nearby Little Island, it became a summer retreat for family and friends.

The original family trust, made in 1908, does not permit the island to be sold. “No Trespassing” signs have been posted from time to time, but trespassers defiantly use them for building fires on the beach. Occasionally the caretaker on the mainland will motor over to Dobbins and ask people on the beach to respect the island as private property. (Emphasis added.). Despite the contents of this excerpt, no witness admitted to seeing either a caretaker approach the beach, or “no trespassing” signs on the island prior to the signage put up by Mr. Clickner.

Appellants introduced into evidence a Washington Post article about the controversy, published on July 18, 2006, entitled “Putting the Theory of ‘Good Fences’ to the Beach Test,” in which Mr. Spadaro was quoted as saying “[t]he Dobbins [sic] family was said to have allowed public use of the cove, and subsequent owners upheld that tradition.” Mr. Spadaro emphasized in his testimony that while he made this statement, he had never met the Dobbin family. Appellants also introduced a book entitled “Over the Side,” written by ²⁶⁴ Alan and Jessica Bond, which includes an acknowledgment on the inside cover thanking “Dobbins Island’s owner for generously allowing public use of the island.” At the conclusion of the hearing, the trial judge asked for written closing arguments from each party and held the matter sub curia. In its closing argument, the Association alleged that an easement existed as a result of implied dedication, custom, prescription, and an expansion of the public trust doctrine. The trial judge issued a Memorandum Opinion and Order dated May 7, 2010.

The judge held that the public had not gained an easement through either implied dedication, custom, or public trust, but ultimately that the public had, in fact, met the requirements necessary to establish a prescriptive easement. 4 As to the adversity requirement, the court applied the general presumption of adverse use, and held that the Clickners had failed to meet their corresponding burden to prove that public use of the area was by permission. The trial court stated: Adverse use means use without license or permission. Additionally, showing a use by the public for twenty years generates a presumption that the use is adverse and of a legal origin. To rebut this presumption, a defendant must prove by affirmative evidence that the claimant’s use was by permission or by license.

In the instant case, Plaintiffs evidence, consisting of witness testimony and the photographs, convinces the Court that the beach on Dobbins Island has been used since 1963 and as early as the 1920’s, well over the statutory twenty years, by the public for the purposes of swimming, sunbathing, walking, picnicking, kayaking, boating, and as an anchorage. Some of the testimony showed that members of the public believed they could use the island but Defendant did not provide affirmative evidence that prior landowners gave permission or license to ²⁶⁵ the public to use the beach. Defendant did not overcome this presumption by any showing that the prior landowners granted permission to the public to use the beach. (Footnote and internal quotations omitted.).

In order to allow for use of the newly recognized public easement, the trial court also ordered that the cables between the pilings creating the shoreline fence be removed. The Court also held that the location of the fence above mean high water could not be challenged because the location was approved by Anne Arundel County, and this approval was not appealed to the appropriate administrative body. Thus, the trial judge explained that the court would not consider the Association’s assertion that the pilings were incorrectly placed because the Association had failed to exhaust its administrative remedies. 5 Accordingly, the Circuit Court issued an order, stating: ORDERED, that the public has an easement by prescription to use the beach on Dobbins Island, from the mean high watermark to the vegetation line, to swim, sunbathe, walk, picnic, kayak, boat, and anchor; and it is further ORDERED, that Defendants are to remove the rope, chain, or cable lines on the park style fencing that interferes with the public easement....” The Clickners noted their appeal from this decision to the Court of Special Appeals on June 4, 2010. Prior to any proceedings in the intermediate appellate court, we issued a writ of certiorari, on our initiative.

Clickner v. Magothy River Ass’n, Inc., 419 Md. 646 , 20 A.3d 115 (2011). We now address the following questions, restated for clarity: 1. Did the trial court err in declaring that the public has a prescriptive easement to use the beach on Dobbins Island? 2. Did the trial court err in ordering the removal of a portion of the fence placed on the Dobbins Island beach? ²⁶⁶ We shall answer both questions in the affirmative and therefore reverse the judgment of the trial court.

I. The case at issue was heard at a bench trial. Pursuant to Maryland Rule 8-131(c), we shall apply the clearly erroneous standard of review to factual findings and review the decision for legal error. When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.

Md. Rule 8-131(c). Accordingly, we give due regard to the trial court’s role as fact-finder and will not set aside factual findings unless they are clearly erroneous. State Security v. American General, 409 Md. 81, 110-111 , 972 A.2d 882, 899 (2009); Banks v. Pusey, 393 Md. 688, 697 , 904 A.2d 448, 453 (2006); $3,417.46 U.S. Money v. Kinnamon, 326 Md. 141, 149 , 604 A.2d 64, 67-68 (1992). “The appellate court must consider evidence produced at the trial in a light most favorable to the prevailing party and if substantial evidence was presented to support the trial court’s determination, it is not clearly erroneous and cannot be disturbed.” Ryan v. Thurston, 276 Md. 390, 392 , 347 A.2d 834, 835-36 (1975) (citations omitted); $3,417.46 U.S. Money, 326 Md. at 149 , 604 A.2d at 67 . Questions of law, however, require our non-deferential review.

State Security, 409 Md. at 111 , 972 A.2d at 899 ; Banks, 393 Md. at 697 , 904 A.2d at 453-54 . When the trial court’s decision “involves an interpretation and application of Maryland statutory and case law, our Court must determine whether the lower court’s conclusions are legally correct....” White v. Pines Community Improvement Ass’n, Inc., 403 Md. 13, 31 , 939 A.2d 165, 175 (2008) (quoting YIVO Inst. for Jewish Research v. Zaleski, 386 Md. 654, 662 , 874 A.2d 411, 415-16 (2005)). Where a case involves both issues of fact and ques ²⁶⁷ tions of law, this Court will apply the appropriate standard to each issue. Dickerson v. Longoria, 414 Md. 419, 432 , 995 A.2d 721, 730 (2010); see Diallo v. State, 413 Md. 678, 695 , 994 A.2d 820, 830 (2010).

The issues presented in the instant case are legal questions as they involve the interpretation of Maryland case law regarding prescriptive easements and the application of that law to the facts. Therefore, we review the trial court’s judgment to determine whether there was legal error.

II

Both parties recognize that the State of Maryland owns in public trust, for the benefit of its citizens, the navigable water 6 of the Magothy River surrounding Dobbins Island and the subject beach up to the mean high water line. See Md.Code (1974, 1984 Repl. Vol.), § 16-101(o ) of the Environment Article (“ ‘State wetlands’ means any land under the navigable waters of the State below the mean high tide, affected by the regular rise and fall of the tide.”); Anne Arundel County v. City of Annapolis, 352 Md. 117, 132-33 , 721 A.2d 217, 224 (1998) (“The navigable waterways within Maryland’s boundaries and the lands beneath them generally are ‘held’ by the State for the benefit of the inhabitants of Maryland.” (citations omitted)); Hirsch v. Md. Dep’t. of Nat. Resources, 288 Md. 95, 98-99 , 416 A.2d 10, 12 (1980); Dep’t of Natural Res. v. Ocean City, 274 Md. 1, 5 , 332 A.2d 630, 633 (1975); 2 Herbert T. Tiffany, The Law of Real Property § 660 at 698-99 (3d ed. 1939) (“Land bordering on the sea ... or on a tidal river, and lying above ordinary low watermark, but below ordinary high watermark, is known as the [forejshore, and this, like the land beyond low watermark, belongs prima facie to the state ... the theory being that it is land not capable of ordinary cultivation or occupation, and so is in the nature of unappropriated soil.”).

Therefore, the mean high ²⁶⁸ water line marks the division between state and private ownership of the shoreline. Appellants admit that “a significant part of the historic public use of Dobbins Island is protected by the public trust doctrine. The public is guaranteed the right to anchor in the cove, swim in the waters, pull kayaks, canoes and other small boats onto the shore, and sit on the sandy beach that lies below mean high tide.” Appellants also assert that “[pjhotographs taken after the Clickners installed a fence above mean high tide make abundantly clear that [a] large area of sandy beach remains open to public use.” Appellees disagree, however, and note that by definition, when the tide is high, the water of the Magothy extends to the Clickners’ pilings, leaving little or no visible sand below the fence and thereby precluding public use of the beach on Dobbins Island. Accordingly, Appellees assert a right to use the area above mean high tide, the dry sand portion of the beach, currently fenced off by the Clickners.

This area is not subsumed by the public trust doctrine, and has been privately owned since the original grant of the property. Thus, in order for the public to have a right to use and enjoy this portion of the beach, Appellees must demonstrate a property right in the form of an easement, a non-possessory interest in the real property of another that can arise either by express grant or implication. Boucher v. Boyer, 301 Md. 679, 688 , 484 A.2d 630, 635 (1984) (defining the term “easement”); see Dep’t of Natural Res. v. Ocean City, 274 Md. 1, 5-6 , 332 A.2d 630, 633-34 (1975) (stating that the public trust doctrine “protects the public in the use of the foreshore only ...” and that a public right to use the dry sand portion of the beach, therefore, “must find support elsewhere,” before considering various types of easements); 9 Richard R. Powell, Powell on Real Property, § 65.11[3] at 190 (Michael Allan Wolf ed., 2011) (“The general rule appears to be that the public right of access pertains only to the area below the mean high watermark or seaward of the ‘dry sand,’ unless the public has acquired the right of access across the private land.”). The Association alleged in the trial court that a public easement was impliedly ²⁶⁹ created under the theories of prescription, dedication, custom, and public trust.

From these theories, the trial court held that the Appellees had only established an easement by prescription, a conclusion which Appellants challenge before this Court. The parties dispute at the outset whether Maryland law allows for a public easement to be established on a beach located along an inland waterway. 7 Appellants, relying on Thomas v. Ford, 63 Md. 346 (1885), argue that “[the public] may not acquire prescriptive rights in the land of another located along a navigable river.” This early case involved an action for trespass, wherein the plaintiff alleged that the defendant had deprived him of his right to use and enjoy his property located along the shore of the Patuxent River by encumbering the land with a large quantity of wood. Thomas, 63 Md. at 349 . The defendant argued that he had not trespassed because the public had acquired a prescriptive easement over the land, as the property had been used for many years by the general population for shipping wood and other freight, a use that was known, but not objected to by the owner.

Thomas, 63 Md. at 351 . The Thomas Court explained: It is certainly a settled doctrine in this State that public roads or ways of any kind can only be established by public authority, or by dedication, or by long user by the public, which, though not strictly prescription, yet bears so close an analogy to it that it is not inappropriate to apply to the right thus acquired the term prescriptive. Hence the existence of a public way may be established by evidence of an uninterrupted user by the public for twenty years; the presumption being that such long continued use and enjoyment by ²⁷⁰ the public of such way had a legal rather than an illegal origin. Thomas, 63 Md. at 352 (citing Day v. Allender, 22 Md. 511 (1865)).

The Court then identified the question presented as: “[W]hether, at the common law, this principle of presumptive dedication, or quasi prescription [8] does or can properly apply to give rise to a right in the general public to use the land of another on a navigable river as a landing-place and place of deposit of wood and other articles of property for an indefinite time.” Thomas, 63 Md. at 352 (emphasis in original). ²⁷¹ The Thomas Court provided two rationales for its holding that no prescriptive easement had been established under its facts. Each party in the instant case touts one of the rationales as being the sine qua non of the Thomas Court’s position. The first, relied on by Appellees as a factual distinction, is that this Court in Thomas emphasized that the nature of the use at issue functioned more like an acquisition of title than a public prescriptive right. By contrast, Appellees argue that the public’s recreational pursuits on Dobbins Island were more transient in nature, and therefore are not uses controlled by the following rationale, as stated by the Thomas Court: Indeed, the very nature of the user set up in this case as evidence of the prescriptive right in, or dedication to, the public renders it quite out of the question that such right could, upon principle, exist in the public generally.

From the very nature of the user relied on it must be confined to but [a] few individuals, and this negatives the idea of the existence of the right in the general public. Instead of the right being of a mere easement or servitude, without profit in the soil, and open to the enjoyment of all alike, it would be an exclusive appropriation of the actual use of the soil to the first occupier or depositor of wood or other articles, without limit as to the extent or duration of time. The claim here set up is the right in the general public to deposit and cord wood upon the plaintiffs land [acjquired by user merely. This, of course, must be confined to a defined or limited space.

If the right were established, each individual member of the public could not enjoy it, for the first occupier would have the right to appropriate the entire space to himself, and no one could question his right in so doing. While he remained in possession all the rest of the public would be excluded; and there would be no mode of determining the question as to the extent of the ground that might be appropriated, or the duration of time that it could be occupied. It might, indeed, be so occupied for an indefi ²⁷² nite duration of time. And as was said by the court in the case of Cortel[you] v. Van Brun[d]t, supra, [ 2 Johns. 357 (N.Y.Sup.Ct.1807) ] such user rather denotes title, and the right of exclusive enjoyment, than the enjoyment of a mere public easement; and the right to such user by the public cannot be acquired by prescription.

Thomas, 63 Md. at 353-54 (second emphasis added). 9 Indeed, because the Court contrasted exclusive appropriation, which could not give rise to public prescriptive rights, with the “enjoyment of a mere public easement,” it suggested that the latter could exist under appropriate circumstances. The second rationale explained in Thomas , and relied on by the Clickners in the instant case, is the Court’s following admonition: [Considering the great extent of shore lines within our State, and the long and uniform indulgence extended by the proprietors of those shores to those who have had occasion to use them for purposes connected with water transportation or fishing, a decision which should admit the possibility of turning such permissive enjoyment into [a] prescriptive and absolute right on the part of the public would open a field of litigation which no community could endure. And what is still worse in a moral point of view, it would be perverting neighborhood forbearance and kind indulgence to the destruction of important rights. Consequently, if it ²⁷³ be once understood that this permissive indulgence of the proprietors of the shores may be construed into irrevocable privileges, restrictions and hindrances will inevitably follow, to avoid the possibility of such permissive use maturing into public adverse rights.

The production of any such consequence surely ought not to be desired by anyone. Thomas, 63 Md. at 354-55 (citation omitted). Appellants assert that this language represents a public policy bar to prescriptive easements along the shores of Maryland’s inland waterways. This admonition in Thomas , however, rather than being a bar to prescription, merely reflects our jurisprudence that mere “permissive indulgences” cannot ripen into adverse rights, Cox v. Forrest, 60 Md. 74, 79-80 (1883), and suggests a rationale behind the presumption of permission that, as discussed infra, often attaches to the use of land that is unimproved or “in a general state of nature.” Wilson v. Waters, 192 Md. 221, 228 , 64 A.2d 135, 138 (1949).

This understanding of Thomas is informed by our decision in Department of Natural Resources v. Ocean City, 274 Md. 1 , 332 A.2d 630 (1975), in which we noted that a prescriptive easement could be acquired by the public on privately held littoral property above mean high tide under appropriate circumstances. The opinion began: “This case raises for the first time the extent of the rights which neighboring owners and members of the public may respectively have in the littoral at Ocean City, Maryland — that land portion of the beach which lies west of the Atlantic Ocean’s mean high tide line....” As we stated, the issue of public beach access was precipitated in the 1970’s “as a result of an expanding population and a limited amount of shore line.” Ocean City, 274 Md. at 6 , 332 A.2d at 634 . The case presented an action to enjoin the construction of a condominium complex on an ocean front tract, with opponents of construction including the Maryland Department of Natural Resources as an intervening plaintiff. The plaintiffs argued that the public had acquired an easement over the dry sand portion of the beach, advancing various theories.

In considering their claim of public prescriptive rights to the area, it was clear to the Court that the tract had ²⁷⁴ been in use for less than twenty years following a storm that had changed its topography, and therefore any such use as there may have been after the storm failed to meet the requisite prescriptive period. Ocean City, 274 Md. at 7-9 , 332 A.2d at 634-35 . The Court stated, however, that “the law would support the petitioners [in gaining a prescriptive easement] if the necessary facts were available.” Ocean City, 274 Md. at 9 , 332 A.2d at 635 (citation omitted). For our purposes it is paramount to note that in its discussion of public prescriptive rights, the Court in Ocean City explicitly acknowledged the Thomas decision, quoted its description of the doctrine allowing for public prescriptive rights on roadways, and extended it to dry sand littoral property.

Ocean City, 274 Md. at 9 , 332 A.2d at 635 . That case therefore represents Maryland’s common law approach to the controversy presented in several states regarding public prescriptive rights for recreation on privately owned, dry sand portions of beaches. 10 Appellants rely on Judge Eldridge’s dissent in Ocean City to fashion a distinction between inland and ocean beaches. This distinction allows Appellants to argue that Thomas v. Ford is still viable precedent which, under Appellants’ interpretation, forbids public prescriptive rights on inland beaches despite the majority’s holding in Ocean City . Judge Eldridge’s dissent in Ocean City focused, however, not on prescriptive ²⁷⁵ rights, but on the majority’s denial of an easement by implied dedication.

While the majority, in Ocean City , concluded that a clear and unequivocal manifestation of an intent to dedicate was required in order for the Court to find an easement by implied dedication, Judge Eldridge suggested that “there are few hard and fast rules with respect to implied dedication under Maryland law, and each situation must be viewed in light of its own peculiar circumstances.” Ocean City, 274 Md. at 19 , 332 A.2d at 641 (Eldridge, J., dissenting). Judge Eldridge urged that “a landowner’s intent to dedicate his land to public use may be presumed from acts or conduct which estop him from denying the public’s right.” Ocean City, 274 Md. at 16 , 332 A.2d at 639 (Eldridge, J., dissenting) (citing McCormick v. Baltimore, 45 Md. 512, 523 (1877)). Further, he expounded: Because the Atlantic Ocean beach is a unique geographic phenomenon, because it is such a limited resource of the State of Maryland, and because the public involvement in it has been of a different character than that associated with other types of land, the result I would reach in this case is not at all inconsistent with prior Maryland law involving the issue of implied dedication of the shore. Ocean City, 274 Md. at 22 , 332 A.2d at 642 (Eldridge, J., dissenting) (emphasis added).

Judge Eldridge then discussed Thomas v. Ford, noting his agreement with the Thomas Court’s holding that “merely permitting the public to use the shore for boating, swimming or fishing should not in itself give rise to an easement.” Ocean City, 274 Md. at 22-23 , 332 A.2d at 643 (Eldridge, J., dissenting). He then continued to compare inland beaches and ocean beaches saying: However, as pointed out above, the ocean beach presents an entirely different matter. While Maryland’s inland tidal shoreline measures over three thousand miles, its ocean shoreline is only thirty-five miles long. To recapitulate, from the time of the Charter of Maryland on, the ocean beach has had a unique status.

Not only have the landowners acquiesced in the public’s use of the beach, but they ²⁷⁶ have accepted government services, protections and regulations with respect to the beach which are of a totally different character than the government services, protections and regulations provided for other types of privately owned land. Plats have consistently shown an area to be dedicated as “beach.” The public and property owners of the State well understand that use of other types of land for recreational activities does not effect a dedication to the public. This is in stark contrast to the common understanding that the beach at Ocean City is a public beach. Ocean City, 274 Md. at 23-24 , 332 A.2d at 643 (Eldridge, J., dissenting) (emphasis added).

Based on the factors emphasized, it is evident that Judge Eldridge was comparing ocean and inland beaches solely in the context of implied dedication, rather than prescription. Indeed, he concluded by stating that the facts presented “compelled] the conclusion that the dry sand beach at the front of respondent landowner’s lots [was] dedicated to recreational use by the general public.” Ocean City, 274 Md. at 24 , 332 A.2d at 643 (Eldridge, J., dissenting) (emphasis added). It is clear, therefore, that Judge Eldridge’s dissent makes no reference to, and does not bolster Appellants’ argument that Thomas v. Ford proscribes prescriptive rights along inland shores. Appellants, in the instant case, assert that the trial court relied almost exclusively on Ocean City , while “giving Thomas short shrift.” It is clear to us, however, that the trial judge thoughtfully considered Thomas v. Ford and dismissed its relevance based both on factual distinctions with the instant case and in light of Ocean City , stating: [The Clickners] argue that Thomas is controlling in this matter.

This Court does not agree as the facts in Thomas as distinguishable. Thomas addressed the public right to store wood and other articles-in-shipment on the shoreline of another’s property for an indefinite period of time, which equates to an exclusive appropriation of actual use by the first occupier. Here, the alleged public use is for swimming, sunbathing, walking, picnicking, kayaking, boating, and anchorage. These are more transient uses, different ²⁷⁷ from uses that equate to the indefinite appropriation of soil by the first occupier.

Additionally, Department of Natural Resources [v. Ocean City], which the Court of Appeals decided in 1974, held that the public did not have a prescriptive easement to use the shoreline because the plaintiffs failed to show that the alleged use existed for longer than a twenty-year period. See Dep’t of Nat. Res. v. Ocean City, 271 [274] Md. 1 [ 332 A.2d 630 ] (1975). If Thomas barred the courts from recognizing any public right to the use of a shoreline on a navigable waterway via prescriptive easement, there would have been no need to assess the merits of the prescriptive easement claim.

We agree with this assessment. In sum, rather than being a bar to prescriptive easements along the shores of inland waterways, Thomas reflects this Court’s jurisprudence that, as a general rule, permissive use of another’s land cannot ripen into an adverse right. Kirby v. Hook, 347 Md. 380, 393 , 701 A.2d 397, 404 (1997); Cox v. Forrest, 60 Md. 74, 79-80 (1883). Thomas also suggests a rationale underlying the