Nathans Assocs. v. Mayor & City Council of Ocean City

Berger, J. This case involves the appellant's adverse possession claim of a parcel of property (the "Property") located at 601 S. Atlantic Avenue in Ocean City, Maryland. The Property has been continuously occupied and controlled by Nathan Rapoport and his family for the last one hundred six years. The Property is located on the east side of the Ocean City Boardwalk. The appellant is Nathans Associates ("Nathans"), a partnership comprised of Mr. Rapoport's granddaughter and great-grandchildren.

The Mayor and City Council of Ocean City ("Ocean City"), appellee, conceded that Mr. Rapoport and his successors had been in actual, open, notorious, exclusive, and continuous possession and control of the Property since 1912. Ocean City contested the adverse possession claim on the basis that the Property was located within a dedicated and accepted public easement prior to Mr. Rapoport's acquisition of title to the Property by adverse possession. The circuit court agreed with Ocean City and entered an opinion and order requiring Nathans to vacate the Property and to remove or demolish its building on the Property. Nathans appealed to this Court, presenting four issues for our consideration, which we have rephrased slightly and consolidated as follows: 1.

Whether Ocean City presented sufficient evidence to support the circuit court's finding that the Property was physically located within the area of the dedication and public easement of the Town of Ocean City. 2. Whether Ocean City presented sufficient evidence to support the finding that the dedication of the Property was accepted and, therefore, that a public easement was created on the Property. 3. Whether the circuit court erred in concluding that Ocean City had not abandoned the Property and was not estopped from enforcing its easement as to the Property. 4. Whether the circuit court abused its discretion by denying Nathans' motion for recusal.

We shall answer the first question in the negative and hold that there was insufficient evidence to support the circuit court's conclusion that the Property was physically located within the relevant area. In light of this holding, we shall not address the second and third questions. Because this case will be remanded to the circuit court, we shall address Nathans' motion for recusal and, as we shall explain, find no abuse of discretion by the circuit court in denying the motion. BACKGROUND Details relating to the origins of Ocean City are critically important to our consideration of the issues in this appeal.

On July 28, 1876, Stephen Tabor 1 conveyed a parcel of land to certain trustees for the establishment of a "sea-side summer resort." The deed 2 (the "1876 Deed") described the parcel conveyed as follows: Fifty acres of the said tract have with my acquiescence and approval been laid off into a town, with lots, streets, and avenues, and is called and known as Ocean City, a description of which will appear by reference to the plat filed with and as a part of this deed, the lots being designated by number and the streets and avenues by the names on said plat; which said fifty acres are described as follows, to wit: Beginning at a post set in the surf bank of the Beach opposite Hammock Point six poles from low water mark, said post bearing from the south chimney of said Tabor main dwelling house on Hammock Point South seventy-six and one eighth degrees east (76 1/8) and from the north chimney of said Tabor's Marshall Farm dwelling house South forty seven and three eighths degrees east (47 3/8) and from the South Chimney of Thomas W. Tingle's dwelling house South Eighty-one and seven eighths degrees East (81 7/8), and from said post measuring as the magnetic needle [illegible] in the [illegible] Eighteen hundred and seventy-five, Seventy-six and one eighth degree West (76 1/8), fifty-eight poles to the waters of Sinepuxent Bay; [illegible] and with the waters of said Bay four and one fourth degree East (4 ¼) ninety-six and [illegible] pole; thence across the Beach South seventy six and eighth (76 1/8) [illegible] poles to the surf at low water mark .... A plat was attached to the deed and referenced therein (the "Plat"). The Plat is reproduced infra in the Discussion section of this Opinion. The Town of Ocean City was incorporated in 1880. 1880 Md. Laws ch. 209.

The Act incorporating the Town of Ocean City described the boundaries of the town as follows: That the bounds and limits of the said town are as follows, to wit: Beginning at a point in Synepuxent Bay at or near the easternmost end of the Ocean City Bridge Company's bridge, and from thence by and with the waters of said bay in a southerly direction to the south side of the lands conveyed by "Stephen Faber" [ 3 ] to Granville Stokes, in a deed dated August the twenty-eight, eighteen hundred and seventy-nine, thence by and with said south side line in an easterly direction, and a continuation of the same across Atlantic avenue to the Atlantic Ocean, thence by and with the waters of the same in a northerly direction to the north side line of the lands conveyed by said Faber to Hillary R. Pitts, Benjamin Jones Taylor, and George W. Purnell, trustees, by deed dated July twenty-eight, eighteen hundred and seventy-six, thence by and with said north side line north seventy-six and one-eight degrees west, across the beach to Synepuxent Bay, then down by and with the waters of said bay in a southerly direction to the first beginning, at the easternmost end of the Ocean City Bridge Company's bridge; and the commissioners of said town, as hereinafter provided for, shall have a survey made by a competent surveyor of all the streets and avenues of said town, and shall have a stone placed at the north and south sides of the streets, bearing westerly from Atlantic avenue in said town, and at the east end thereof, at the intersection of said streets bearing westerly with Atlantic avenue. On June 11, 1891, following Mr. Tabor's death, the executors of Mr. Tabor's estate conveyed additional property to the Sinepuxent Beach Company of Baltimore City. 4 In 1911, Mr. Rapoport arrived in Ocean City. He built his first building on the Property in 1912. From 1912 until 1968, Mr. Rapoport personally operated various businesses on the Property.

During 1969 and 1970, Mr. Rapoport leased the Property to Candy Kitchen. Since 1971, Mr. Rapoport and his successors have leased the Property to Dumser's Dairyland. Mr. Rapoport died in 1973. Over the years, Mr. Rapoport and his successors made various modifications to their building on the Property.

In 1954, Ocean City requested that Mr. Rapoport move his building east on the Property to allow for the widening of the Ocean City Boardwalk. Mr. Rapoport acquiesced. When he relocated the building, Mr. Rapoport constructed a full basement under the building. Mr. Rapoport sought and obtained a permit for the construction of the basement.

In 1966, Mr. Rapoport wished to add living quarters to his building by constructing a second floor, a project for which a permit was required. At that time, Mr. Rapoport and Ocean City entered into an agreement to permit the construction of the second floor. The agreement further required Mr. Rapoport to pay property taxes. 5 The agreement provided that it would "be completely void fifty (50) years from the date hereof." 6 Since the signing of the 1966 Agreement, Mr. Rapoport and his successors have paid city, county, and state real property taxes for the Property. Mr. Rapoport's only daughter died in 1999, after which the Property was conveyed by deed to Mr. Rapoport's granddaughters and great-grandchildren.

In 2001, the Rapoport family began operating the Property under the name of Nathans, and in 2016 the Property was formally retitled in the name of Nathans. On May 17, 2016, Ocean City, by letter, demanded that Nathans vacate the Property. In response, Nathans filed a complaint to quiet title and for declaratory judgment. Nathans' complaint contained two counts.

The first count sought to quiet title to the Property based upon a claim for adverse possession and was filed against the Sinepuxent Beach Company of Baltimore City, Inc., and any and all unknown persons having any legal or equitable right or claim of ownership to the Property. The second count sought a declaratory judgment that Ocean City had no rights or interest in the Property. The circuit court entered an order for service by publication and posting. Service by publication was effectuated through notices in The Daily Times on September 20, 2016, October 3, 2016, and October 10, 2016.

The only response filed was by Ocean City. Ocean City filed both an answer and counter-complaint. The counter-complaint sought declaratory relief, injunctive relief, and accounting and disgorgement of profits. The case was tried before the circuit court on April 18, 2017.

Ocean City conceded that Nathans and its predecessors had been in actual, open, notorious, exclusive, and continuous possession of the Property since 1912. Ocean City contested Nathans' adverse possession claim on the sole basis that the Property was located within a dedicated and accepted public easement prior to Mr. Rapoport's acquisition of title via adverse possession in 1932. On July 18, 2017, the circuit court ruled in favor of Ocean City and ordered Nathans to vacate the Property. 7 This timely appeal followed. Additional facts shall be discussed as necessitated by our discussion of the issues on appeal.

DISCUSSION I. The critical issue for our determination in this case is whether sufficient evidence exists in the record to support the circuit court's conclusion that the Property is located within a dedicated and accepted public easement. "When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence." Md. Rule 8-131(c). This Court 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 judge to judge the credibility of the witnesses." Id. "Findings are not clearly erroneous if 'any competent material evidence exists in support of the trial court's factual findings[.]' " Bontempo v. Lare , 444 Md. 344 , 363, 119 A.3d 791 (2015) (quoting Webb v. Nowak , 433 Md. 666 , 678, 72 A.3d 587 (2013) ).

We consider questions of law de novo . Id. We "consider without deference ... the lower court's decision regarding the legal interpretation of a deed only after the proper location of the disputed boundary line has been established by an adequate factual record." Webb , supra , 433 Md. at 677 , 72 A.3d 587 . In an adverse possession case, "a claimant must show continuous possession of the property for 20 years in an actual, open, notorious, exclusive, and hostile manner, under claim of title or ownership." Porter v. Schaffer , 126 Md. App. 237 , 276, 728 A.2d 755 (1999) (quotation omitted).

Ocean City conceded at trial and in this appeal that Nathans had established continuous possession of the Property for over twenty years in an actual, open, notorious, exclusive, and hostile manner, under claim of title or ownership. In addition, Nathans put forth evidence of the location of the Property as well as evidence of the record title holder. George Young testified on behalf of Nathans as an expert in the field of professional land surveying. He performed a boundary line survey of the Property and identified the physical location of the building.

Mr. Young testified as follows: [COUNSEL FOR NATHANS]: Mr. Young, do you have an opinion within a reasonable degree of certainty and probability in the field of professional land surveying as to the physical location of the Nathans Associates property located at [ ]601 South Atlantic Avenue in Ocean City? [MR. YOUNG]: Yes, I do. [COUNSEL FOR NATHANS]: And what is that opinion, sir? [MR. YOUNG]: Located as shown on our plat. * * * [COUNSEL FOR NATHANS]: Mr. Young, I'm just handing you the blowup of the plat which has been mounted on the board. And it's your opinion that the location of the Nathans Associates property is as indicated by the boundary description, with the metes and bounds descriptions and calls indicating the four property lines of the property? [MR.

YOUNG]: Yes, that's my professional opinion. The plat was introduced into evidence. On cross-examination, Mr. Young explained that his task was to establish the "physical location of the building." Nathans also presented expert testimony from title abstractor Cynthia Todd. After describing the process she undertook to research the title of the Property, Ms. Todd testified as follows: [COUNSEL FOR NATHANS]: Based on your title abstract of this property, do you have an opinion within a reasonable degree of certainty and probability within the field of title abstracting as to who owns record title to the property titled in the name of Nathans Associates and located at 601 South Atlantic Avenue? [MS.

TODD]: Correct. Yes, I do. [COUNSEL FOR NATHANS]: And what is that opinion? [MS. TODD]: The owner, fee simple owner, is Sinepuxent Beach Company of Baltimore City. 8 Ocean City's sole defense to Nathans' adverse possession claim was that Property could not be adversely possessed because it was within a public easement. In order for the Property to be within a public easement, it must be located within the area of the parcel designated as Atlantic Avenue that was conveyed by the 1876 Deed discussed supra .

If the Property is located north of the original southern boundary of the Town of Ocean City (and south of the original northern boundary), title cannot be obtained via adverse possession because the Property would be located within the Atlantic Avenue public easement. 9 If the Property is located outside of the original boundaries of Ocean City, title to the Property can be obtained via adverse possession because it is not within the Atlantic Avenue public easement. The burden is upon Ocean City to establish the location of the Property within the parcel conveyed by the 1876 Deed. Porter , supra , 126 Md. App. at 261 -62 , 728 A.2d 755 ("Where a defendant, in an action to quiet title, substantially asserts and relies upon a fact as an affirmative issue, he must establish such fact."). 10 The circuit court determined that Ocean City presented sufficient evidence to establish that the Property was part of the parcel conveyed in 1876, and, therefore, that title to the Property could not be obtained via adverse possession because the Property is located within a dedicated and accepted public easement. The parties do not dispute that a dedicated and accepted public easement was created on Atlantic Avenue when the parcel was conveyed in 1876 and the Town of Ocean City was subsequently created in 1880.

See Windsor Resort Inc. v. Mayor & City Council of Ocean City , 71 Md. App. 476 , 487, 526 A.2d 102 (1987) ("There can be no serious dispute that that portion of Atlantic Avenue which lies within the original boundaries of the Town of Ocean City was accepted by the General Assembly on behalf of Ocean City as a public roadway."). The parties dispute whether the evidence sufficiently establishes that the Property was located within the relevant area. We must, therefore, carefully examine the evidence presented before the trial court in order to determine whether sufficient evidence supports the trial court's conclusion. The 1876 Deed and accompanying Plat is the only evidence that was introduced at trial to show the location of the dedication of Atlantic Avenue.

The Plat is reproduced below: 11 An aerial photograph of the Property and the surrounding area 12 was introduced into evidence at trial and is reproduced below: The Property is located adjacent to the parking lot at the end of a diagonal street and is circled in the aerial photograph. 13 We have added an arrow to the aerial photograph for the purposes of identifying the Property's location. The southernmost street appearing on the Plat is labeled "Division Street." The diagonal street in the aerial photograph is today known as "South Division Street." The circuit court described its conclusions as to the Plat and aerial photo as follows: The plat attached to the Tabor deed at issue here clearly shows Atlantic Avenue extending to the Atlantic Ocean. It also clearly shows South Division Street extended to the Atlantic Ocean and indicates, clearly, that the middle of South Division Street is the southern boundary of the property contained within the deed's description. Therefore, the practical location of the easement is established by the plat -- from the westerly line of Atlantic Avenue as shown on the plat to the easterly line of Atlantic Avenue (the Atlantic Ocean) and on the south by the middle of South [Division] Street. [ 14 ] Plaintiff's Exhibit 2 [the aerial photo] indicates the Rapoport property (encircled in red by Nathans' attorneys) as being within that boundary of Atlantic Avenue as it then existed and now exists ...

Thus the location of Nathans' structure is established within Atlantic Avenue by the Plaintiff/Counter-Defendant's own exhibit No. 2. (Original footnote omitted.) We agree with the circuit court that the aerial photograph establishes that the Property is located north of the center of South Division Street as the street is located today . As we shall explain, however, the evidence is, in our view, insufficient to establish that the Property is located north of Division Street as indicated on the 1876 Plat . Simply put, this case is not about the location of Atlantic Avenue and South Division Street as they exist today.

As we shall explain, there is no evidentiary support in the record for the key analytical step: connecting the plat depicting streets in 1876 and the on-the-ground location of streets in the City of Ocean City today. The only basis for the circuit court's conclusion as to the location of the Property in connection to the 1876 Deed was the Deed itself. Indeed, it very well may be that the "Division Street" marked on the Plat is in an identical location to the "South Division Street" in Ocean City today. In that event, the Property would, at least in part, be located within the dedicated and accepted public easement.

The question for our consideration, however, is not whether it appears likely from a common sense perspective that modern day South Division Street is identical to 1876 Division Street. Our question is whether sufficient evidence was produced by Ocean City to establish this fact. At trial, counsel for Ocean City proffered that it would "introduce evidence ... through Terry McGean -- that the building -- or the land under the building that Mr. Rapoport constructed lies totally within the boundaries of the original Town of Ocean City plat." When Mr. McGean was called as a witness, however, he was precluded from testifying about the location of the original southern boundary of Ocean City as compared to the actual streets on the ground today. Mr. McGean, a civil engineer by training, was called by Ocean City as a witness in his professional capacity as city engineer for the City of Ocean City.

Counsel for Nathans specifically asked the court to preclude Mr. McGean from testifying to the actual location of points on the ground, arguing that "[t]o testify to points on the ground in the State of Maryland, you, by statute, by law, have to be a professional land surveyor or a professional property line surveyor." The circuit court agreed with Nathans, explaining that Mr. McGean, as the city engineer, was qualified not to testify as to where on a particular plat some property is, but where, as an engineer, he considers the street to be and the structures at issue here to be. I'm going to allow him to testify in that limited purpose, but not to testify as to any legal aspect of where Atlantic Avenue may be or where that building may be. So he may testify, but he's limited. I'm not going to permit him to get into surveying questions ....

During Mr. McGean's testimony, counsel for Ocean City inquired about a survey plat that had been prepared at some point prior. 15 For reference, the survey plat is reproduced below: Mr. McGean testified that the plat had been prepared by a surveyor named Norman R. Jones. Mr. McGean further testified that this survey plat was part of the records and documents that he keeps as city engineer. The court, however, refused to allow Mr. McGean to testify as to the meaning or accuracy of the line: [COUNSEL FOR OCEAN CITY]: Okay. In looking at this survey plat, there appears to be a line that runs in a west-to-east direction down