Department of Natural Resources v. Welsh

MARVIN H. SMITH, Judge Retired, Specially Assigned. We shall here hold that the doctrine of sovereign immunity does not prevent the bringing of a suit to quiet title by appellee W. Mitchell Welsh against the Department of ⁵⁶ Natural Resources (the Department). We shall further hold that in an earlier eminent domain proceeding the Department did not acquire the title of Welsh’s predecessors to the land here in dispute. Accordingly, we shall affirm the judgment of the Court of Special Appeals in Welsh v. Dep’t. of Natural Resources, 65 Md.App. 710 , 501 A.2d 1351 (1986).

I The facts here are not in dispute. An agreed statement of facts was filed in the Court of Special Appeals pursuant to Maryland Rule 1026 e. In 1875 Maza Boor acquired a tract of land in Allegany County known as “Vevay Resurveyed,” said to contain 1,228% acres. On August 20, 1877, Mrs. Boor and her husband conveyed 33 acres from this tract to Grafton Brant.

On November 20, 1877, Brant conveyed this 33 acre parcel to William Welsh. The deed to Brant and the deed to Welsh were both recorded on March 5, 1878. Title to the land ultimately devolved upon William R. Welsh and Rosa Welsh by intestate succession. Rosa Welsh devised her interest to William R. Welsh, thereby vesting him with sole title to the land.

Her will was probated in Allegany County in 1950. William R. Welsh and his wife conveyed the property in question to W. Mitchell Welsh under date of December 15, 1975. Maza Boor and her husband conveyed 1,000 acres, described as a part of “Vevay Resurveyed” to Delilah Boor by deed dated February 20, 1878, and recorded on March 12, 1878. It will be noted that this date of recordation is seven days after the recordation of the deed from Maza Boor and her husband to Grafton Brant, Welsh’s predecessor in title.

Through a series of conveyances this 1,000 acre tract came into the possession of George E. Coffman and Loretta K. Coffman, his wife, by deed dated July 15, 1940. The description of the Coffman land apparently includes within its metes and bounds the land of Welsh. ⁵⁷ A condemnation proceeding against the Coffman land was instituted in the Circuit Court for Allegany County by Spencer P. Ellis, Director, Department of Forests and Parks “acting for and on behalf of the State of Maryland.” The Coffmans were named defendants. No parties were named as defendants in the proceeding other than the Coffmans. The inquisition was rendered by the jury on September 28, 1966.

The land in question constitutes a part of Rocky Gap State Park in Allegany County. Welsh became aware of the State’s claim to the property in 1983 when he was discussing a timber report with an employee of the Department. He brought a suit against the Department in the Circuit Court for Allegany County to quiet title to the land in question. The earlier condemnation proceedings were conducted pursuant to the provisions of Maryland Code (1957,1966 Cum.Supp.) Art. 33A.

Testimony was presented to the effect that for purposes of the condemnation title had been searched back sixty years, that this did not reveal the conveyance of the 33 acre tract, and that sixty years was the standard in the industry for a search. There was also evidence that the Welsh tract did not appear on the tax maps which, of course, are not official as to title. 1 Testimony was to the effect that there were no buildings on the property or other outward signs of ownership. In the circuit court the Department interposed the defense of sovereign immunity. The trial court overruled this defense.

According to the intermediate appellate court the trial judge made the following findings of fact: “1. That the 33 acre tract of [Welsh] is part of the 1132.09 acre tract that was the subject of the condemnation proceedings. ⁵⁸ “2. That the deed of the 33 acre tract to [Welsh’s] predecessor in title, by Maza Boor and Jacob Boor, her husband, was recorded among the Land Records of Allegany County prior to the date of the recording of the deed from the same grantors to the predecessor in title of George E. Coffman and Loretta K. Coffman, his wife, the condemnation defendants. “3. That [Welsh’s] predecessor in title was not given notice of the condemnation proceeding, was not named as a party in the case, nor was his interest identified in the inquisition. “4.

That [Welsh] testified that he first became aware that the [Department] claimed title to the 33 acre tract in 1983. “5. That the predecessors in title of [Welsh] paid taxes upon the 33 acre tract for the tax years 1965 through 1975, and that [Welsh] has continued to pay taxes thereon until the time of trial below (1983).” 65 Md.App. at 713 , 501 A.2d at 1353 (footnote omitted). The circuit court determined that the Department had acquired title to the land in question by the condemnation proceeding. The Court of Special Appeals reversed.

It held that the doctrine of sovereign immunity did not prevent the bringing of the action and that “[a]s applied to the 33 acre tract of [Welsh], the condemnation proceedings were void to the extent that they purport to affect the land of [Welsh], his title or possessory rights.” 65 Md.App. at 722 , 501 A.2d at 1357 . We granted the Department’s petition for a writ of certiorari in order that we might address the important public questions here presented. II Under the doctrine of sovereign immunity, neither a contract nor a tort action may be maintained against the ⁵⁹ State unless specific legislative consent has been given and funds (or the means to raise them) are available to satisfy the judgment. Austin v. City of Baltimore, 286 Md. 51 , 56 n. 3, 405 A.2d 255 , 258 n. 3 (1979); Board v. John K. Ruff, Inc., 278 Md. 580, 590-91 , 366 A.2d 360, 366 (1976); University of Maryland v. Maas, 173 Md. 554, 558-59 , 197 A. 123, 125 (1938).

The General Assembly must waive immunity “either directly or by necessary implication.” Katz v. Washington Sub. San. Comm’n, 284 Md. 503, 507-08 , 397 A.2d 1027, 1030 (1979). The parties are in agreement that there is no “direct” legislative consent to suits such as the one in the case at bar.

We have consistently declined to abrogate sovereign immunity by judicial fiat. 2 See, e.g., Austin, 286 Md. at 54-58 , 405 A.2d at 257-59 (and cases there cited); Katz, 284 Md. at 512-13 , 397 A.2d at 1032 ; Ruff, 278 Md. at 584 , 366 A.2d at 362-63 ; Jekofsky v. State Roads Comm’n, 264 Md. 471 , 287 A.2d 40 (1972); Dunne v. State, 162 Md. 274 , 159 A. 751 , appeal dismissed and cert. denied, 287 U.S. 564 , 53 S.Ct. 23 , 77 L.Ed. 497 (1932). Judge Orth explained for the Court in Ruff: “The frequent and increasingly vigorous attacks upon the doctrine have been no more persistent than our refusal to abrogate or modify it by judicial fiat. We have consistently adhered to the view that ‘... it is desirable and in the public interest that any change in the doctrine of sovereign immunity should come from the legislative branch of the State Government rather than from the judicial branch inasmuch as there are fiscal considerations, administrative difficulties and other problems in ⁶⁰ balancing the rights of the State and its agencies with new possible rights of the individual citizens, which can far better be considered and resolved by the legislative branch than by the judiciary of the State.’ Jekofsky v. State Roads Comm’n, 264 Md. 471, 474 , 287 A.2d 40, 42 (1972).” 278 Md. at 584 , 366 A.2d at 362-63 . Indeed, the State’s agencies may not waive sovereign immunity, either affirmatively or by failure to plead it.

Id. at 583 , 366 A.2d at 362 ; Bd. of Education v. Alcrymat Corp., 258 Md. 508, 516 , 266 A.2d 349, 353 (1970). Notwithstanding strict adherence to the doctrine, this Court long ago recognized that agents of the State do not enjoy immunity with respect to a wrongful taking of property without just compensation. Weyler v. Gibson, 110 Md. 636 , 73 A. 261 (1909). In that case the directors of the Maryland Penitentiary had taken possession of a street, along with abutting properties, and erected a new wing of the Penitentiary thereon.

The street bed and abutting properties were privately owned. Although the directors lawfully acquired title to the abutting properties, they made no effort to condemn or otherwise acquire the underlying title to the street bed. The owners of the street brought an ejectment action against the directors and the warden. Judgment was entered for the owners against the warden. 3 The warden asserted on appeal with respect to immunity that the suit was not maintainable because it was “in effect a suit against the State to recover the possession of property in the actual use by the State for police and State purposes____” Id. at 653 , 73 A. at 263 .

The Court responded to this latter assertion with a discussion of the Maryland and Federal constitutional provisions prohibiting the taking of private property for public use without just compensation. Judge Burke then said for the Court: ⁶¹ “It is conceded that no suit can be brought against the State, without its consent. This immunity of the State from suit rests upon grounds of public policy, and is too firmly fixed in our law to be questioned. But it would be strange indeed, in the face of the solemn constitutional guarantees, which place private property among the fundamental and indestructible rights of the citizen, if this principle could be extended and applied so as to preclude him from prosecuting an action of ejectment against a State Official unjustly and wrongfully withholding property, by the mere fact that he was holding it for the State and for State uses. “It is easy to see the abuses to which a doctrine like that would lead.

That such is not the law has been conclusively settled by United States v. Lee, 106 U.S. [196] [ 1 S.Ct. 240 , 27 L.Ed. 171 ]; Tindel [Tindal] v. Wesley, 167 U.S. 204 [ 17 S.Ct. 770 , 42 L.Ed. 137 (1897) ]; Smith v. Reeves, 178 U.S. 438 [436] [ 20 S.Ct. 919 , 44 L.Ed. 1140 (1900)]; 10 Am. and Eng. Ency. of law, 528.” 110 Md. at 654 , 73 A. at 263-64 . We referred to Weyler in Walker v. Acting Director, 284 Md. 357, 364 , 396 A.2d 262, 265-66 (1979), and Calvert Associates v. Department, 277 Md. 372, 378 , 357 A.2d 839, 842 (1976). Dunne, 162 Md. 274 , 159 A. 751 , involved a claim that the State had taken private property for the purpose of widening a road without condemnation and payment of compensation.

The owner sued the State directly, arguing that sovereign immunity had been waived by statute in that case. Our predecessors disagreed with the owner’s interpretation of the statute and affirmed the trial court’s sustaining a demurrer by the State. The Court reviewed several cases from other jurisdictions involving the principle that sovereign immunity does not shield government agents from unlawful or unconstitutional actions. Judge W. Mitchell Digges said for the Court: “[I]f the State Roads Commission were acting under and by virtue of the State’s right of eminent domain, it, of ⁶² necessity, must follow one of the modes prescribed which meets the requirements of section 40 of article 3 of the State Constitution; and a taking or appropriation by the State Roads Commission in any other manner is not the exercise, as agents for the State, of its power of eminent domain.

The State, in the exercise of that power, can only act lawfully; and any taking of property alleged to have been made by an agency of the State, not done in the mode prescribed by law, is not the act of the State, but the unlawful usurpation by the individual taking or appropriating the property____ Neither the individuals who appropriated the property nor those constituting the State Roads Commission are immune from suit unless they can show that the act was that of the State, acting through them; and in order to do this, they must show that they proceeded in the manner prescribed by law, because it cannot be the act of the State unless it be in accordance with law.” 162 Md. at 287-88 , 159 A. at 756 . It will be noted that in Weyler the Court relied upon United States v. Lee, 106 U.S. 196 , 1 S.Ct. 240 , 27 L.Ed. 171 (1882). Lee was succinctly summarized for the Court by Justice Stewart in Malone v. Bowdoin, 369 U.S. 643 , 82 S.Ct. 980 , 8 L.Ed.2d 168 (1962): “In that case the Virginia estate of General Robert E. Lee had been acquired by the United States for nonpayment of taxes, although the taxes had in fact been tendered by a third party. An ejectment action was brought against the governmental custodians of the land, upon which a federal military installation and a cemetery had been established.

The trial court found that the tax sale had been invalid, and that title to the land was in the plaintiff. This Court upheld a judgment in favor of the plaintiff upon the trial court’s finding that the defendants’ possession of the land was illegal, holding that a suit against them under such circumstances was not a suit against the sovereign.” 369 U.S. at 645-46 , 82 S.Ct. at 982 , 8 L.Ed.2d at 170 . ⁶³ The Department contends that Lee was substantially narrowed, if not overruled by subsequent decisions. See Malone, 369 U.S. 643 , 82 S.Ct. 980 , 8 L.Ed.2d 168 (1962); Larson v. Domestic & Foreign Corp., 337 U.S. 682 , 69 S.Ct. 1457 , 93 L.Ed. 1628 (1949). Both of the cases cited by the Department dealt with federal officers’ immunity and federal statutes.

In Larson, the plaintiff sought to enjoin the head of the War Assets Administration from selling certain coal to anyone other than the plaintiff. According to the plaintiff, it had a valid contract to purchase the coal, yet the Administration refused to deliver it. Larson, supra, 337 U.S. at 684 , 69 S.Ct. at 1458-59 , 93 L.Ed. at 1633. Malone , on the other hand, was an ejectment suit