Olde Severna Park Improvement Ass'n v. Gunby

CATHELL, J. This case requires us to consider whether a deed, which incorporates by reference a Plat recorded in 1931, should be strictly construed against the severance of riparian rights. We shall hold that the 1931 Plat specifically reserved to the Developer riparian rights in order that the notation of certain areas on the plat that appeared to be waterfront property would not be considered an offer to dedicate such areas to the local governing authority, but that when the Developer subsequently conveyed waterfront land recorded on that Plat in fee ³²¹ simple to an individual owner, the riparian rights were conveyed with the waterfront property and consequently were severed from the Developer at the time of that conveyance. In 1931, the Severna Company subdivided a tract of land owned by it in fee simple, and recorded a Plat displaying the subdivision in the Land of Records in Anne Arundel County. In 1963, the Severna Company conveyed to a Mr. Christian E. Rossee, in fee simple, waterfront property that included the riparian rights at issue in this case.

In 1972, Mr. Rossee conveyed .70 acres of waterfront property to Mr. John M. Jones and his wife, Carol R. Jones. The Joneses in turn conveyed that waterfront property, along with a landlocked parcel of land, to Paul Gunby and his wife, Joan Gunby in 1991. In July 2004, the Maryland Department of the Environment (“MDE”) issued a license to Paul Gunby (“respondents”) 1 to construct a foot bridge and pier across a tidal pond that bisected his property. On September 2, 2004, the Olde Severna Park Improvement Association filed a petition for judicial review and a motion for a temporary restraining order and preliminary injunction, claiming that it owned the riparian rights required for the issuance of that license.

Additionally, on February 25, 2005, petitioner filed a complaint for declaratory judgment seeking resolution of the disputed ownership of the riparian rights at issue in the case at bar. On September 13, 2004, a consent order barring construction until the resolution of the petition was granted. The Circuit Court for Anne Arundel County heard oral arguments on cross-motions for summary judgment on the complaint for declaratory judgment on May 23, 2005, and on June 3, 2005, the Circuit Court held that the deed conveying the land (originally to Mr. Rossee, and through chain of title, ³²² to respondents) did not convey the riparian rights to Mr. Rossee. On June 28, 2005, the Circuit Court for Anne Arundel County held that the MDE had improperly issued the original license, based on its determination in the declaratory judgment case that respondents did not possess the requisite riparian rights.

Respondents filed a notice of appeal and subsequent petition for a writ of certiorari in both the declaratory judgment and the petition for judicial review cases. The Court of Special Appeals issued an opinion on April 27, 2007, vacating the petition for judicial review judgment of the Circuit Court, and reversing the declaratory judgment. Gunby v. Olde Severna Park Improvement Ass’n, Inc., 174 Md.App. 189 , 921 A.2d 292 (2007). Petitioner 2 then filed a petition for certiorari with this Court, which we granted.

Olde Severna Park v. Gunby, 399 Md. 595 , 925 A.2d 634 (2007). Petitioner presents two questions for our review: “1. DO Williams v. Skyline Development Corporation, 265 Md. 130 [ 288 A.2d 333 ] (1972), MARYLAND ANN. CODE REAL PROPERTY § 2-101, OR ANY OTHER AUTHORITY REQUIRE THAT A FIFTY-FIVE YEAR OLD DEED INCORPORATING BY REFERENCE A 1931 PLAT BE STRICTLY CONSTRUED AGAINST THE SEVERANCE OF RIPARIAN RIGHTS? “2.

IN DETERMINING THE INTENT AND MEANING OF A 1931 PLAT WITH REGARD TO RIPARIAN RIGHTS, IS IT APPROPRIATE FOR A COURT TO APPLY A LEGAL CONTEXT DEVELOPED BY AN APPELLATE DECISION NEARLY SEVENTY YEARS AFTER 1931?” We hold that the reservation in the 1931 Plat only had the effect of not dedicating the riparian rights to Anne Arundel County, but instead insured that those rights were retained by the Severna Company. Therefore, in 1963, when the Severna ³²³ Company conveyed to Mr. Rossee the waterfront land in fee simple, it had the effect of conveying to Mr. Rossee (and consequently to respondents through chain of title 3 ) the riparian rights as well. In light of this holding, it is unnecessary to resolve the second question of the petition. I. Facts The facts relevant to our holding 4 begin in 1931, when the Severna Company recorded a Plat in the Land Records of Anne Arundel County.

The waterfront property at issue in the case before us 5 is indicated on that Plat. In the upper left hand corner of the Plat appears the following handwritten notation: “NOTE It IS THE INTENTION OF THE SEVERNA COMPANY NOT TO DEDICATE TO THE PUBLIC, THE STREETS, ALLEYS, ROADS, DRIVES, AND OTHER PASSAGE WAYS AND PARKS SHOWN ON THIS PLAT, EXCEPT THAT THE SAME MAYBE USED IN COMMON BY LOT OWNERS AND RESIDENTS OF Severna Park Plat 2. All riparian rights being retained by THE SAID THE SEVERNA COMPANY.” In 1963, the Severna Company conveyed to Christian Rossee (the “Rossee Deed”), in fee simple, several parcels of land, including the waterfront property at issue in the instant case. ³²⁴ That property in the Rossee Deed was described as running “with the water[’]s edge ...” and granted to Rossee “all privileges, appurtenances and advantages to the same belonging or anywise appertaining.” Additionally, the habendum clause stated: “TO HAVE AND TO HOLD the said parcels of ground above described and mentioned and hereby intended to be conveyed together with the rights, privileges, appurtenances and advantages thereto belonging or appertaining unto and to the proper use and benefit of the said CHRISTIAN E. ROSSEE, his executor, administrator, heirs and assigns, in fee simple. “AND the party of the first part [Severna Company] hereby warrants that it has not done or suffered to be done, any act, matter or thing whatsoever to encumber the property hereby conveyed and will warrant specially the property hereby granted and that it will execute such further assurances of the same as may be requisite, but nothing herein granted is to apply to restrictions, dedications, easements or ways.” (Emphasis added.) According to the testimony of Mr. Rossee’s daughter, Debra Shepley, Mr. Rossee and Ms. Shepley, shortly after the conveyance to Mr. Rossee, constructed approximately four jetties from the shoreline into the water to prevent erosion. Those jetties were built and maintained by Mr. Rossee until the early 1970’s without any objection.

In 1972, Mr. Rossee conveyed in fee simple approximately .70 acres of waterfront property—the waterfront property at issue in the instant case—to Mr. and Mrs. Jones (the “Jones Deed”). That deed described the property as: “part of ... the ... conveyance from the Severna Company to Christian E. Rossee ...” and described the property as extending to a point “located on the shoreline of the Severn River.... ” The habendum clause in the deed to Jones stated in relevant part: “To Have And To Hold the said lot of ground and premises, described and mentioned, and hereby intended to be conveyed; together with the rights, privileges, appurte ³²⁵ nances and advantages thereto belonging or appertaining unto and to the proper use and benefit of the said JOHN M. JONES, JR. and CAROL R. JONES, his wife, as tenants by the entireties, their assigns, the survivor of them, the survivor’s heirs and assigns, in fee simple.” (Emphasis added.) In 1977, the Severna Company transferred all of its remaining property rights, to the Olde Severna Park Improvement Association in a quit claim deed that states, in relevant part: “WHEREAS, The Severna Company now desires to convey the hereinafter described property and riparian rights thereto to The Anne Arundel County Planning and Zoning Officer, in trust, to be immediately conveyed to the Olde Severna Park Improvement Association, Inc.[,] the community association representing the lot owners of Severna Park. “NOW, THEREFORE, THIS DEED WITNESSETH: “That for and in consideration of the premises and the sum of One Dollar, receipt of which is hereby acknowledged, the Party of the First Part [the Severna Company] does hereby grant, convey, and assign, release, and quit claim unto the said Party of the Second Part [the Anne Arundel County Planning and Zoning Officer], in trust, nevertheless, to be immediately reconveyed to the Olde Severna Park Improvement Association, Inc., all its right, title, interest and estate whatsoever in law or in equity in, to, or over the property.... ” Then in October 1991, the Severna Company conveyed to Olde Severna Park Improvement Association via quit claim deed “any property interest remaining in the Severna Company, Inc.[,] on the herein described four plats that was not previously conveyed to the Grantee or to any third party.” In sum, the two deeds conveyed any interests, including whatever riparian rights, that the Severna Company may have had in 1977 and 1991 to petitioner. ³²⁶ Following her father’s death in July 1980, Ms. Shepley obtained title to the remaining Rossee property. 6 In 1989, she constructed, with the Joneses permission, several more jetties into the water from both her property and that of the Joneses, which did include the property at issue in the instant case. This was done, again, without objection. With regard to the ownership of riparian rights, her testimony states, in relevant part: “My father and I both installed and maintained our jetties ... because we believed, and I continue to believe, that we owned the riparian rights associated with our ownership [of the property]____” Finally, by deed dated February 27, 1991, the Joneses conveyed in fee simple to respondents, two contiguous and adjoining parcels of land, which included the waterfront property at issue in this case.

There, the parcel of land that included the waterfront property was described as being “located on the shoreline of the Severn River” and as being “the same parcel of land which by Deed dated January 17, 1972 ... was granted and conveyed from Christian E. Rossee unto John M. Jones and Carol R. Jones, his wife.” The habendum clause states: “TO HAVE AND TO HOLD the said described lot of ground and premises, above described and mentioned, and hereby intended to be conveyed; together with the rights, privileges, appurtenances and advantages thereto belonging or appertaining unto and to the proper use and benefit of the said parties of the second part [John M. Jones and Carol R. Jones], as Tenants by the Entireties and not as Tenants in Common[,] personal representatives and assigns, in fee simple.” (Emphasis added.) In November 2003, respondents filed a “JOINT FEDERAL/STATE APPLICATION FOR THE ALTERATION OF ANY TIDAL WETLAND IN MARYLAND” with MDE for a license to construct a 410 foot walkway over a tidal pond that ³²⁷ bisected their property, and a 200 foot pier. Petitioner noted its objection in a letter dated February 26, 2007, where it claimed to MDE that riparian rights had never been conveyed to Mr. Rossee, and consequently, respondents could not have obtained those riparian rights through chain of title. Petitioner claimed that those riparian rights belonged to it. MDE, nevertheless, issued the license in July 2004.

As stated above, in September 2004, petitioner filed a petition for judicial review regarding the issuance of the license by MDE, and complaint for declaratory judgment as to the ownership of the riparian rights. While the petition was pending, the Circuit Court for Anne Arundel County heard cross-motions for summary judgment in June 2005, and ultimately issued a written opinion and separate order granting petitioner’s motion. There, the Circuit Court found that the Severna Company had expressly reserved to itself the riparian rights via the notation on the 1931 Plat, and determined that the Rossee Deed did not convey riparian rights. In support of this conclusion, the Circuit Court reasoned that Maryland law under Williams v. Skyline, 265 Md. 130 , 288 A.2d 333 (1972), provided that a plat is incorporated into a deed if the deed contains a reference to the plat, which the Rossee deed did. 7 Additionally, it observed that when interpreting deeds, the entire deed must be interpreted as a contract, no part of which may be disregarded unless violative of some principle of law.

Finally, the Circuit Court found the 1931 Plat to be ambiguous, based on the different conclusions of two different attorneys. It therefore looked to the language of other deeds from the Severna Company to determine the intent of the grantor, which the Circuit Court ultimately determined to be an intention to reserve riparian rights free from the claims of subsequent individual property owners. ³²⁸ In June 2005, the Circuit Court also heard arguments on the petition