Owen v. Hubbard

¹⁴⁸ Digges, J., delivered the opinion of the Court. The Skipjack is a commercial sailing ship indigenous to the tidal waters of the Chesapeake Bay and its tributaries. As an oyster boat it has survived in these days of marine mechanization because of legislation prohibiting power craft from dredging on oyster bars and because of its ability to draw less than six feet of water fully loaded and 3.5 feet unloaded. In spite of this low draft the appellants, William H. Owen and his wife, found it necessary to dredge a five foot channel and build a protective bulkhead in a “finger” or cove off LeCompte Creek in front of their Dorchester County home to provide a safe harbor for their skipjack and other boats.

The nettle of this dispute is that they were only one of three property owners with riparian rights to the cove. In December 1966 the Owens successfully sought a permit from the Army Corps of Engineers to dredge the proposed channel. Upon completion of the dredging they obtained a similar permit to erect a wooden bulkhead approximately 150 feet in length along two sides of the new basin. As a requirement for each permit they obtained the written consent of their two riparian neighbors, including that of the plaintiff and now appellee, the Rev. Richard C. Hubbard, who, with his wife, owned the property on one side of the cove.

The major leg of the bulkhead, about 107 feet long, runs across the Owens’ frontage on the back line of the cove and is not the subject of this controversy. Under Sec. 46 of Art. 54 of the Code (1957, 1968 Repl. Vol., now superseded by Art. 66C, § 720 (1970)) as “[t]he proprietor of land bounding on any of the navigable waters of this State,” Mr. Owens was “entitled to the exclusive right of making improvements into the waters in front of his said land . . . .” The controversy is over the east-west leg of the bulkhead which was placed at a virtual right angle to the north-south leg and extends for 41 feet along the left shore of the cove toward its mouth. The Hubbards own the land facing on most of this 41 ¹⁴⁹ foot section of the bulkhead, but with their consent, the Owens proceeded to fill in the wash area behind the bulkhead, in effect creating a snug harbor, with a two-sided loading wharf, for their skipjack.

At this point the relationship between the two neighbors was amicable, for in terms of relative values the cove meant little to the Hubbards. Their home faced toward the main waters of LeCompte Creek and they freely conceded that they rarely used the cove, whose shore merely ran down the “side” of their property. The Owens’ home, on the other hand, faced the cove at its far upland end, this being their only access to the navigable waters of the creek. Indeed, if this portion of the Hubbards’ property bordered on the cove at all, it had been substantially improved at no expense to them but at a considerable expenditure of time and money by the Owens.

Still, the inevitable boundary dispute arose. The Hubbards’ sixth course was the crucial dividing line between the two tracts. It was located shortly to the rear of the 41 foot section of the bulkhead, starting from a point on the cove and running in a southwesterly direction first across marshy shore land and then across more solid land. The Hubbards’ deed describes their boundaries on the creek and part of the cove as either “along the shore” or “beside a cove,” but the fifth and sixth courses were described as follows: “(5) S. 13 degrees W. 113 feet to a post at the head of a cove; (6) S. 63 degrees W. 94 feet to a cedar tree and stone . . .” (emphasis supplied).

The Owens’ deed provided that the pertinent common boundaries were: “thence (2) running and binding with the home place of the said Agnes Hubbard, in a southward direction, to a cedar tree standing at the corner of the said Hubbard home place; thence (3) still running and binding with the said Hubbard home place, in an eastward direction, to the wa ¹⁵⁰ ters of LeCompte Creek or Cove; thence (4) running and binding with and upon the waters of the said Creek or Cove, in a southward direction to the Thompson lands;” (emphasis supplied). In one respect both of the property owners took cognizance of the location of the sixth course, for on the far end of the 41 foot leg Owen constructed a 13 foot wing extending at a right angle into the shore for lateral support. He admits that 5 to 7 feet of this supporting structure crosses the sixth course and he admits that portions of the fill as well as supporting rods attached to sunken logs or “dead-men” are on the Hubbards’ side of the line. In fact, all of these supporting structures were installed after the Hubbards gave verbal consent.

What the Owens do not admit is that the part of the sixth course which was covered by the backfill was in actuality a riparian course, and that under Art. 54, Sec. 46 the fill and bulkhead accreted to the Hubbards’ rather than to their land. As a dramatic demonstration of his belief that he built all of the 41 foot leg of the bulkhead on his side of the sixth course and in front of his land, Owen planted a flagpole at the intersection of the 41 foot leg and the 13 foot lateral wing. The Hubbards objected to this act of imperium and shortly brought an action seeking declaratory relief against the Owens. The Circuit Court for Dorchester County (Mace, J.) in a thorough and thoughtful opinion ruled that the Hubbards had title to that part of the bulkhead which was in front of their property, but on the basis of their written and verbal consent to the work Judge Mace granted the Owens a permanent easement for the reasonable use and enjoyment of the Hubbard section of the bulkhead.

The Owens have only appealed from the determination that the bulkhead was not theirs. None of the parties has raised any question over the nature and extent of the easement and the Hub-bards have neither cross-appealed nor otherwise appeared in this Court. ¹⁵¹ The Owens have raised numerous questions on appeal and we shall shortly explore these in some detail. For the purpose of clarity, however, we think they can be reduced to two basic contentions: 1) the trial court erred in fact and at law in determining that the Hubbards’ sixth boundary line was a riparian course, and 2) even assuming a riparian course, it was error to permit the Hub-bards’ mere “side” rights to prevail over the appellants’ right to use and possess any improvements they had erected in front of their home, particularly since this frontage was their only access to navigable water. The Existence of the Riparian Course The appellants contend that in view of the language in the Hubbard deed they were entitled to summary judgment.

This argument is grounded on our recent decision in Stottlemyer v. Kline, 255 Md. 635 , 259 A. 2d 52 (1969), where we pointed out at page 648 that: “The deeds and other evidence indicate an intention of the original draftsmen to insure that the owners of the land on the north and east side of Antietam Creek should not have any rights as a riparian owner abutting Antietam Creek as it then flowed, in that the boundary established never did abut the creek.” The deed call in question there used this language: “* * * North thirty-five degrees East nineteen perches to a stone near the Antietam Creek, thence with the meanderings of said creek within four feet of the water the sixteen following courses and distances . . . .” 255 Md. at 645 On the basis of that explicit language and other evidence we affirmed the finding of a non-riparian course. Here, there is no language explicitly excluding such a course, only the omission of the riparian language used in describing some of the other boundaries, such as “along ¹⁵² the shore” or “beside a cove.” While this omission by itself might constitute evidence of a contrary intent, we think that it does not exclude the possibility that this course touched the water, the hallmark of riparian rights. Stottlemyer v. Kline, supra at 646-47. To shore up their argument the appellants point to the language in their own deed which describes a common boundary along the Hubbards’ sixth course.

The necessary implication of having a common boundary, they argue, is that there must be land on both sides of it and that as a consequence they must own something on the other side of the entire sixth course. Again, this in itself suggests such a conclusion, but it does not exclude the factual possibility that when the sixth course is superimposed over the actual property in question part of it touches the water. This factual question alone was a bar to the granting of summary judgment. Fenwick Motor Co. v. Fenwick, 258 Md. 134, 138 , 265 A. 2d 256 (1970).

In this case after weighing all the testimony, Judge Mace found as a fact that the part of the sixth course which was in dispute, i.e., that part of the line which was covered by the fill behind the bulkhead, ran through a shallow, muddy, marshy area which was completely covered by water at high tide. The mean high water line was the proper test to apply, for without re-engaging in the debate over what is the proper definition of “navigable waters,” 1 it is clear that where a body of tidal water happens to be navigable ¹⁵³ “all of the waters between the opposite shores or banks are comprehended within the term ‘navigable water’ as used in Chapter 129 of the Acts of 1862 [Art. 54, §§ 45-48].” Wagner v. City of Baltimore, 210 Md. 615, 626 , 124 A. 2d 815 (1956). Where that shore ends and private ownership normally begins is determined by the mean high water mark, even though the area exposed by low tide might be described as “marshy.” Green, Tr. v. Eldridge, 230 Md. 441, 446-47 , 187 A. 2d 674 (1963) ; Cahill v. Baltimore, 173 Md. 450 , 196 A. 305 (1938). See also United States v. Certain Land in County of Worcester, Md. (Assateague Island Opinion No. 2) 311 F. Supp. 1039, 1051 (1970).

LeCompte Creek is a navigable stretch of tidal water whose shoreline includes the cove, which in point of fact was also navigable before it was dredged. There was, of course, conflicting evidence on the marshy nature of the shore in question, especially in regard to the tidal action over it, but once the mean high water mark was established we perceive no difficulty with the trial judge’s determination that this must have been the point where the Owens’ third course reached “the waters of LeCompte Creek” and the Hubbards’ sixth course became a riparian one. There was also evidence, both pro and con, that a fence post some few feet behind the bulkhead was the terminus of the sixth course, a fact which would have militated against placing the boundary at the mean high water line, but Judge Mace found that this fence post stood six feet within the sixth course. We cannot say that this finding or the finding that the Hubbards’ sixth course behind the bulkhead was riparian were clearly erroneous.

Maryland Rule 886. The appellants argue that we should nevertheless reverse and remand this case because the trial judge improperly viewed the premises. We do not agree. Judge ¹⁵⁴ Mace did view the premises with neither side present, but in a supplementary opinion addressed to this very issue he stated that he obtained the oral consent of counsel for both sides to do so.

Counsel for the appellants did not recall that he gave such consent. The appellants also assert that this was a highly prejudicial view since the trial judge’s own observations as to the location of the markers and the bulkhead played a great part in his decision on the riparian nature of the sixth course. Although we question the possible prejudice to the appellants’ case, especially since the area behind the bulkhead had been completely covered by the backfill and its riparian nature could only have been established by the witnesses’ recollections rather than present observation, we think the appellants have not effectively raised this point for review. Some time after this appeal was noted they filed a petition requesting the trial judge to detail what occurred when he viewed the premises.

Judge Mace immediately responded to this request and nothing more was done. To preserve the point for appeal the appellants should have requested some relief. Since no such request was made and the trial judge did everything the appellant asked him to do, there is nothing before us to consider. Rule 885; Schiller v. Lefkowitz, 242 Md. 461, 476 , 219 A. 2d 378 , cert. denied 385 U. S. 947 (1966) ; Martin v. City of Annapolis, 240 Md. 579, 589-90 , 214 A. 2d 800 (1965).

We note, however, that Judge Mace’s view of the premises does not appear to have been improper. He quite strongly believed he had obtained the consent of both sides, even though the better practice would have been to let the record reflect this understanding. Moreover, the abstruseness of the boundary question involved here would suggest that anyone would need to get his bearings to adequately resolve this case. His actions were imbued with the “common sense” of which Dean Wigmore speaks in his discussion on views of the premises by the trial judge. 4 Wigmore on Evidence, § 1169 (3d ed. 1940 and 1970 Pocket Supp.) ¹⁵⁵ The Riparian Rights on the Cove The now superseded Art. 54, Sec. 46 provided: “Right to make improvements in front of land on navigable river.

The proprietor of land bounding on any of the navigable waters of this State shall be entitled to the exclusive right of making improvements into the waters in front of his said land; such improvements and other accretions as above provided for shall pass to the successive owners of the land to which they are attached, as incident to their respective estates. But no such improvement shall be so made as to interfere with the navigation of the stream of water into which the said improvement is made.” For a history of this act and its predecessors see Mutual Chemical Co. v. Mayor and City Council, 33 F. Supp. 881 (D. Md. 1940). The appellants claim that under the wording of this statute the improvements they have erected are “in front of” their land and hence they are entitled to complete ownership over all of the bulkhead, notwithstanding the fact that the Hubbards had a riparian course on the cove. There is no question that a bulkhead is that type of waterfront structure which constitutes an improvement under Sec. 46.

It is certainly like other structures which are “subservient to the land, and which used in connection with the land, enhance its value or enlarge its commercial or agricultural facilities, or other utility, to an extent the land alone would be incapable of, and in this way ‘improve’ it.” Hess v. Muir, 65 Md. 586 (1886). See also Boston Molasses Co. v. Commissioner of Internal Rev., 155 F. 2d 45 (1946) (describing a particular bulkhead). But see 50 Opinions of the Attorney General