Rayne v. Coulbourne

ALPERT, Judge. It has been said that “time and tide wait for no man.” In this “riparian rights” case, man has awaited the effect of the tide, i.e., man has waited sixteen years for a decision as to the legal effect that tide has on the boundaries of his real property. In October, 1969, Dale and Hilda Rayne, appellants, filed suit in the Circuit Court for Wicomico County against Franklin and Frances Coulbourne, Caroline Blades, H. Gray and Shirley Reeves, Larmar Corporation, John and Althea Willin, and the State of Maryland, seeking an equitable share of an artificially created peninsula that basically cut off their former frontage on the Wicomico River. The matter was eventually heard by Judge Richard M. Pollitt on a Stipulation of Facts which in relevant part stated: Dale Randolph Rayne and Hilda Taylor Rayne, his wife (“Rayne”) and Franklin P. Coulbourne and Frances Anne Coulbourne, his wife (“Coulbourne”) are the owners of adjoining tracts of land on the northerly side of Riverside Drive in Camden Election District of Wicomico County, Maryland____ In the fall of 1951 the Army Corps of Engineers let a contract and did in fact dredge the Wicomico River and by the deposit of spoils from the dredging created a peninsula approximately eight (8) acres in size located between the original fastland (“fastland”) of Coulbourne, Rayne, Caroline Blades and the State of Maryland and the main body of the Wicomico River, separated from the fastland by tidal flats and marsh in which area the tide did then and does now ebb and flow.

The land was ³⁵⁴ created by the erection of a dike (berm) which was attached at one end of the northeasterly portion of the Coulbourne fastland, extending therefrom southwesterly to the rear of the fastland owned by Rayne, Blades and the State of Maryland, then circling and reversing itself and attaching at the other end to land to the east of the Coulbourne fastland then belonging to Dr. John Willin. The following diagram, which was annexed as an exhibit to the Stipulation, better illustrates the location of the properties in question. ³⁵⁵ The land formed by accretion is shown as parcel One (p. 1). The fastland of Coulbourne, Rayne, Caroline Blades and the State of Maryland is shown as parcels Two (p. 2), Three (p. 3), Four (p. 4) and Five (p. 5), respectively. In the Stipulation and at trial, appellants claimed “... that as a riparian owner [they] are entitled to a portion of ³⁵⁶ the land created by dredging ...” and also “the portion should be determined by a court of equity based on the doctrine of equitable apportion____” The trial judge framed the issue as: “whether plaintiffs are entitled to a portion of land created by dredging operations conducted by the Army Corps of Engineers where the land is separated from plaintiffs’ original lot by an area in which the tide ebbs and flows.” He answered “in the negative,” holding on August 27, 1982, “... on the limited facts set forth in the Stipulation that the Raynes have not been deprived of any riparian rights which they previously enjoyed.” In this 1 appeal appellants contend that: I. As riparian owners, the Raynes were entitled to a portion of land created by the U.S. Army Corps of Engineers by depositing spoils between their land and the main body of the Wicomico River.

II

The attachment of the land created by depositing of spoils to Coulbournes’ riparian property and the separation of the land in dispute from Raynes’ ³⁵⁷ riparian property by tidal flats and marsh in which the tide ebbs and flows are immaterial.

III

The Raynes’ claim should not be denied on “equitable principles.” We believe that issues I and II, as framed by appellants, are really nothing more than a bifurcated version of the issue framed by the trial court, i.e., “whether plaintiffs are entitled to a portion of land created by dredging operations conducted by the Army Corps of Engineers when the land is separated from plaintiffs’ original lot by an area in which the tide ebbs and flows.” Our review of the trial court’s opinion indicates that its holding “in the negative” was based on two legal conclusions which were determinative of the outcome of the litigation. They were: (1) The general rule, that a riparian owner is entitled to all natural accretions to his land, does not apply in this case where the peninsula was formed by artificial accretion; and (2) The Raynes’ riparian right of access to water was unaffected by the Coulbournes’ claim of title to the peninsula, because the evidence does not show the Raynes’ ability to reach the Wicomico River was diminished by the Coulbournes’ possession of the peninsula. It is our opinion that both of these conclusions of law were erroneous and materially affected the outcome of the suit. Therefore, we shall reverse and remand this case to the trial court for further proceedings.

The rights of a riparian owner have long been established in the common law of this State. 2 As early as 1829, the Court of Appeals held that where a tract of land lies adjacent or contiguous to a navigable river or water, any increase of soil formed by ³⁵⁸ the waters gradually or imperceptibly receding, or any gain by alluvion in the same manner, shall, as a compensation for what it may lose in other respects, belong to the proprietor of the adjacent or contiguous land. Giraud v. Hughes, 1 G & J 249, 264 (1829). As aptly delineated by the Supreme Court, there are a number of reasons supporting the doctrine of accretion. First, where lands are bounded by water, it may well be regarded' as the expectancy of the riparian owners that they should continue to be so bounded.

Second, the quality of being riparian, especially to navigable water, may be the land’s ‘most valuable feature’ and is part and parcel of the ownership of the land itself____ Riparianness also encompasses the vested right to future alluvion, which is an ‘essential attribute of the original property.’ County of St. Clair v. Lovingston, 23 Wall. 46, 68 [ 23 L.Ed. 59 ] (1874). By requiring that the upland owner suffer the burden of erosion and by giving him the benefit of accretions, riparianness is maintained. Finally, there is a compensation theory at work. Riparian land is at the mercy of the wanderings of the river.

Since a riparian owner is subject to losing land by erosion beyond his control, he should benefit from any addition to his lands by the accretions thereto which are equally beyond his control. Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 326 , 94 S.Ct. 517, 526 , 38 L.Ed.2d 526 (1973) (overruled on other grounds in Oregon v. Corvali Sand & Gravel Co., 429 U.S. 363 , 97 S.Ct. 582 , 50 L.Ed.2d 550 (1977)) (citations and footnote omitted). Hence, the owner of fast land has a common law right to any accretion adjacent thereto and the right of access to the navigable water bounding his fast land. Causey v. Gray, 250 Md. 380, 387 , 243 A.2d 575 (1968).

The owner also enjoys “the right to make a landing, wharf or pier in front of his fast land, 3 subject, however, to general ³⁵⁹ rules and regulations imposed by the public authorities necessary to protect the rights of the public.” Id. See also Baltimore & Ohio Railroad v. Chase, 43 Md. 23, 35 (1875). While the riparian owner was entitled to accretions to his property, see Linthicum v. Coan, 64 Md. 439 , 2 A. 693 (1886), the State was and is deemed the owner of lands located under navigable waters. Board of Public Works v. Larmar Corp., 262 Md. 24, 35 , 277 A.2d 427 (1971).

Indeed, the State could grant a patent to submerged land to a person other than the riparian owner and, in all practicality, destroy the riparian nature of the property. Linthicum v. Coan, 64 Md. at 453, 2 A. 693 . The Acts of 1862 4 ended this practice by prohibiting “the granting of patents that will impair or affect such rights of the riparian owners; and whether those rights have been impaired or affected by the issuance of a patent is largely to be determined upon the facts and circumstances of each case.” Melvin v. Schlessinger, 138 Md. at 343-44, 113 A. 875 . Hence, the trial court noted that the Act of 1862 materially enlarged the rights 5 of proprietors of land bounding on navigable waters.

Goodsell v. Lawson, 42 Md. 348 [, 371] (1875); Bowie v. Western Maryland Railway Terminal Company, 133 Md. 1 [, 10, 104 A. 461 ] (1918); Melvin v. Schlessinger, 138 Md. 337 [, 340, 113 A. 875 ] (1921); Causey v. Gray, 250 Md. 380 [, 388, 243 A.2d 575 ] (1968). The riparian owner’s rights were secured by that statute to an extent beyond what the common law ³⁶⁰ allowed, even according to the largest definition of those rights under the law. Garitee v. Baltimore, 53 Md. 422 [, 432] (1880). Part of the Act of 1862 was codified as Md.Code Ann. Art. 54 § 45 (1957, 1968 Repl.Vol.), which provided: The proprietor of land bounding on any of the navigable waters of this State shall be entitled to all accretions to said land by the recession of said water, whether heretofore or hereafter formed or made by natural causes or otherwise, in like manner and to like extent as such right may or can be claimed by the proprietor of land bounding on water not navigable.

(Emphasis added). In addition, Section 46 provided: 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 made as to interfere with the navigation of the stream of water into which the said improvement is made. These two sections were repealed in 1970 by the Wetlands Act 6 and the comparable section now appears at Md.Nat.

Res.Code Ann. § 9-201(a) (1983 Repl.Vol.) and provides, in pertinent part: A person who is the owner of land bounding on navigable water is entitled to any natural accretion to his land, to reclaim fast land lost by erosion or avulsion during his ownership of the land to the extent of provable existing boundaries. The person may make improvements into the water in front of the land to preserve that person’s access to the navigable water or protect the shore of that ³⁶¹ person against erosion. After an improvement has been constructed, it is the property of the owner of the land to which it is attached. 7 (Emphasis added). (1) Artificial vs. Natural Accretion The italicized language in the Act of 1862 and the Wetlands Act presents a crucial distinction we must address before deciding whether artificial accretions should be afforded the same legal effect as natural accretions.

In its opinion, the trial court noted: [n]either counsel has addressed the question of what, if any, effect the repeal of § 45 and the enactment of § 9-201 has on the issue in this case. Certainly the peninsula is an ‘artificial’, not natural, accretion. Neither party exercised any rights of ownership, either riparian or otherwise, prior to the enactment of 9-201. We recognize that an additional issue might exist in this regard, but we are not called upon to, and therefore will not, consider it.

There is no dispute that the land in question was formed by the process of accretion, and that the accretion was effected, or at least assisted, by artificial means. This “Wetlands Act issue” is therefore one which must be addressed, as it is dispositive of the case before us. If the Wetlands Act was the applicable law below, the appellant’s argument would fail solely because they have no claim to accretion that is not “natural.” We need look no further than the Wetlands Act, which in pertinent part provides that: riparian owner may not be deprived of any right, privilege, or enjoyment of riparian ownership that he had prior to July 1, 1970. ³⁶² Md.Nat.Res.Code Ann. § 9-103 (1983 Repl.Vol.). Because there is no dispute that the land in question formed prior to July 1, 1970, 8 then the Act of 1862 is the controlling law in the present case.

The next step is necessarily to ascertain whether the Act of 1862 contemplated any distinction between natural and artificial accretion. The italicized language from the Act of 1862, supra, refers to accretion “formed or made by natural causes or otherwise.” Recognizing that the words “or otherwise” cause the reach of the statute to be patently ambiguous, 9 construction is required. State v. Intercontinental, Ltd., 302 Md. 132 , 486 A.2d 174 (1985). In Board of Public Works v. Larmar Corp., 262 Md. 24 , 277 A.2d 427 (1971), the Court of Appeals addressed this ambiguity in the Act of 1862.

There, the court was faced with, inter alia, the issue of whether a riparian owner was entitled, under the Act of 1862, to accreted lands which had been artificially created by him. 10 The court acknowledged that artificial fill “was not within the established meaning of accretion, as it was known at common law.” Id. at 40 , 277 A.2d 427 (citations omitted). It then proceeded to examine the intents and purposes behind the Act of 1862, ³⁶³ quoting extensively from Professor Power’s Chesapeake Bay in Legal Perspective, U.S. Dept, of Interior (1970), which in pertinent part states: The language used in Section 45 and 46 [Act of 1862] would seem to be broad enough to embrace artificial landfill projects. Section 45 provides that owners of land bounding on navigable waters shall have the same rights to accretions by virtue of recession of waters from either natural causes or ‘otherwise,’ as do owners of land bounding on non-navigable streams. Since it had been resolved prior to 1862 that owners of land bounding on non-navigable waters were entitled to accretions, the apparent intent of the statute was to give navigable riparian owners on navigable waters the same rights.

Although the syntax of Section 45 leaves something to be desired, that natural increases in the shoreline (accretions) be treated interchangeably with man-made increases appears to have been intended. This construction is buttressed by the language of Section 46, which lumps together ‘improvements’ with ‘other accretions’ and provides that they shall all belong to the abutting riparian land owners. Id. at 100-101 , quoted in Larmar, 262 Md. at 43 , 277 A.2d 427 . In addition, the court cited several cases 11 which construed the Act as vesting exclusive rights in the riparian owner to make improvements on all the soil of the water in front of his land.

In light of this precedent, the Larmar court concluded “that the riparian owner under the Act of 1862 had the right to make artificial landfill in navigable waters in front of his shore, limited only to the extent that he could not obstruct navigation.” The Larmar holding, however, is not singularly conclu ³⁶⁴ sive on the question of whether lands, 12 which have accreted through artificial means without the control of the upland owner, are within the scope of the Act. This being an issue of first impression in this State, we must look elsewhere to determine how courts have handled this natural-artificial distinction. In the majority of jurisdictions that have been faced with this issue, it has generally been held that it is immaterial whether the deposits causing the new land derived from natural causes or had an artificial impetus so long as the deposits were gradual. Bonelli Cattle Co. v. Arizona, 414 U.S. 313 , 94 S.Ct. 517 , 38 L.Ed.2d 526 (1973); see, e.g., Schafer v. Schnabel, 494 P.2d 802 (Alaska 1972) (deposits formed upstream of clay that had been dumped on seaward border of plaintiff’s land by defendants); Sieck v. Godsey, 254 Iowa 624 , 118 N.W.2d 555 (1962) (project by Army Corps of Engineers caused accretion on plaintiff’s land adjacent to Missouri River); Adams v. Robertson, 97 Kan. 198 , 155 P. 22 (1916) (accretion influenced by a bridge and protective embankment which had altered current of river); Adams v. Frothingham, 3 Mass. 352 (1807) (accretion partially the result of the erection of wharves).

See generally Annotation, 63 A.L.R.3d 249 (1975). The oft-cited Supreme Court case, County of St. Clair v. Lovingston, 90 U.S. (23 Wall) 46, 23 L.Ed. 59 (1874) is especially helpful here. There, as in the case sub judice, the issue concerned accreted land attributable to the erection by third persons of upstream dikes, which changed the current and accelerated deposits. Rejecting the argument that artificially effected accretions were not within the common law rule, the Court said: ³⁶⁵ The proximate cause was the deposits made by the water.

The law looks no further. Whether the flow of the water was natural or affected by artificial means is immaterial. Id. at 66 . Considering those authorities, and Maryland case law holding that the Act of 1862 does not abridge, but only enlarges the riparian owner’s common law rights, Linthicum v. Coan, 64 Md. 439, 453 , 2 A.693; Garitee v. Mayor and City Council of Baltimore, 53 Md. 422, 437 , we believe that the Act of 1862 contemplated no distinction between accretions formed naturally and those formed by artificial means.

The facts of the instant case demonstrate further the unjust result of such a distinction. Here, the appellants had no more control over the erection of the dike and subsequent accretion than they would have had if the accretion had occurred naturally. To interpret the Act as to penalize them simply because the cause of the accretion, which was beyond their control, was an artificial rather than a natural one would produce a result that is unfair and unreasonable. We choose to avoid such an untenable result, 13 see State v. Intercontinental, Ltd., 302 Md. 132 , 486 A.2d 174 (1985); Bailey v. Woel, 302 Md. 38 , 485 A.2d 265 (1984), and therefore hold that it is immaterial whether the land in question resulted from artificial or natural accretion.

(2) The Riparian “Right of Access” One of the greatest assets of being riparian is the right of access to navigable water. See Bonelli Cattle Co. v. Arizona, supra, 414 U.S. at 326 , 94 S.Ct. at 526 (“the quality of ³⁶⁶ being