Stansbury v. MDR Development, L.L.C.

KENNEY, Judge. Appellant/cross-appellee, Nancy R. Stansbury, appeals the decision of the Circuit Court for Anne Arundel County permitting appellee/cross-appellant, MDR Development, L.L.C. (“MDR”), to construct a footbridge above a submerged portion of her property, title to which she traces to a land patent. Ms. Stansbury presents three questions, which we have consolidated and rewritten as follows: 1 1.

Did the circuit court err in finding that MDR could construct a footbridge above the submerged portion of property owned by Ms. Stansbury? 2. Did the circuit court err in finding that the construction of the footbridge above Ms. Stansbury’s submerged property did not constitute a trespass? MDR poses one question in the alternative, which we have reworded as follows: 2 ⁵⁹⁹ Did the circuit court err in denying MDR an easement over Ms. Stansbury’s property? For the following reasons, we shall vacate and remand to the circuit court for the entry of a declaratory judgment recognizing MDR’s easement for the construction of a footbridge.

FACTUAL AND PROCEDURAL HISTORY This case concerns property located in the Pleasant Plains subdivision in Anne Arundel County, Maryland and shown below. [[Image here]] Our primary focus is on lots 178, 179, 9A, and 10A, which, along with the other lots shown, were platted prior to the creation of the channel. As platted, lots 179 and 10A shared a common lot line, as do lots 178 and 9A. The common lot lines are below and approximately midway the channel. The depth of the channel varies with the tide, but it is stipulated to be navigable.

The channel provides the eight lots shown above with water access to Pleasant Lake and, through the lake, to the Chesapeake Bay. 3 On April 2, 1936, James Edward Stansbury, Ms. Stans-bury’s father, acquired fee simple title to these four lots, ⁶⁰⁰ subject to a life estate in Mallee B. Moore, Ms. Stansbury’s maternal grandmother. At the time, Mr. Stansbury lived on Lot 7A, and in the mid 1950s he dredged the channel. After the channel was created, a footbridge, approximately 100 to 150 feet in length, was constructed over the channel in lots 9A and 178. Laura Stansbury, Ms. Stansbury’s mother, who resided on Lot 7A, used the footbridge to visit and care for her mother, Mallee B. Moore, who resided on Lot 179.

The middle portion of the footbridge could be removed to allow small boats to traverse the channel and seek safe harbor during storms. According to Ms. Stansbury, the Stansburys had little reason to utilize the footbridge after Mallee B. Moore’s death in 1973, and it fell into a “state of disuse.” The Stansburys, who lived on Lot 7A, and who had access to Lot 10A across lots 8A and 9A, made little use of Lot 10A as the result of extensive erosion. She described Lot 10A as a “rubble filled marshland with an old pier that extends into the Chesapeake Bay.” James Edward Stansbury died testate on March 25, 1977; Ms. Stansbury, Laura Stansbury, and Ms. Stansbury’s brother, James Elijah Stansbury, were the legatees of Mr. Stans-bury’s property. On December 12, 1984, Laura Stansbury, individually and as personal representative of her husband’s estate, entered into an Agreement of Distribution with her children to convey title to lots 178, 179, 9A, and 10A to the children as tenants in common as a part of their inheritance.

The children, in turn, would determine how the lots would be divided between them. For whatever reason, Laura Stans-bury did not abide by the agreement; she never conveyed the lots to her children. On December 30, 1986, Ms. Stansbury, who had resided on Lot 179 since 1983, executed a deed transferring her interest in lots 178 and 10A to her brother, and he executed a deed transferring his interest in lots 179 and 9A to her. Later, because Laura Stansbury had not transferred the lots to the children, Ms. Stansbury filed a complaint to compel her mother to execute the deeds.

Michael R. Robyler was appointed as ⁶⁰¹ a trustee to complete the transfer, and in March 1987, Ms. Stansbury and her brother were deeded fee simple title to their respective lots, as contemplated by the December 80, 1986 conveyances. On February 22, 1988, James Elijah Stansbury mortgaged his two lots, 178 and 10A, to secure a $200,000 note to Francis C. and Shirley C. Cole. He defaulted on the note, and, in 1995, the property was acquired at a foreclosure sale by David L. and Charlotte Caldwell and James L. and Margaret F. Thrift (hereinafter collectively “Caldwell”). When David Caldwell visited the property prior to the foreclosure sale, he observed an uninhabitable house on Lot 178, the pier located on Lot 10A, and the footbridge.

He testified that the footbridge was in “passable” condition at that time, and that Ms. Stansbury had escorted him across the footbridge during his visit. Later, when he requested her permission to repair the footbridge to facilitate travel to Lot 10A, Ms. Stansbury would not agree. She expressed interest in purchasing lots 178 and 10A from Caldwell, but no agreement was reached. Sometime in 1997, an “eight to twelve” foot long portion from the center of the footbridge was removed and a “no trespassing” sign was posted on the portion of the footbridge located on Lot 9A.

In 1997, Caldwell obtained a variance from Anne Arundel County to construct a residence on Lot 178. On April 20, 1998, Caldwell entered into an agreement with the County to treat lots 178 and 10A as one lot. The agreement, which was recorded among the land records of Anne Arundel County, provided that all interior lot lines connecting [lots 178 and 10A] shall no longer be considered lot lines for any purposes, including those set forth in the Anne Arundel County Code; it being the intent of both parties that the aforementioned lot shall be considered now and forevermore as one single lot or parcel of ground and that all other requirements of law now in full force and effect or hereinafter effective shall be applicable as if such property is one parcel of ground. ⁶⁰² On October 13, 1998, in a document entitled Declaration of Easement Conditions and Restrictions, which was recorded in the land records of Anne Arundel County, Caldwell agreed not to construct any structure on Lot 10A, with the exception of a footbridge after obtaining all necessary Federal, State, and local permits for its construction. As proposed, the footbridge would extend across the channel from Lot 178 directly to Lot 10A.

The right to construct the footbridge is at the heart of this controversy. In 1999, Caldwell initiated a two-count complaint against Ms. Stansbury, asserting entitlement to an easement across a portion of lot 9A in order to gain access to 10A. The complaint sought declaratory relief in addition to monetary damages in the amount of $100,000. Michael D. Reisinger, sole owner of MDR, had first visited lots 178 and 10A in 1996 or 1997.

MDR purchased the lots from Caldwell on October 15, 2001. On October 25, 2001, MDR was substituted as the party plaintiff. Trial was held on September 27, 2002, and November 1, 2002. In addition to the evidence summarized above, Ms. Stansbury offered evidence as to how her property, lots 179 and 9A, would be adversely affected by the construction of the footbridge.

She also testified that a footbridge would obstruct navigation in the channel and lower the property values of the riparian owners. John Dowling, admitted as an expert witness “in the fields of title searching, real property issues, and surveying,” testified that in 1807 a land patent was issued to the land known as Grammer’s Pleasant Plains. According to Dowling, as a result of that land patent, Ms. Stansbury is the “supreme” title holder of those portions of lots 179 and 9A beneath the channel over which the footbridge would cross. On August 19, 2003, in a memorandum opinion and order, the circuit court determined that [MDR] is not entitled to the declaration of an easement over [Ms. Stansbury’s] property to facilitate pedestrian travel between Lots 178 and 10A. [MDR] is entitled to construct a ⁶⁰³ footbridge — subject to all Federal, State and local regual-tions [sic] — between Lots 178 and 10A free from any unsubstantiated claim by [Ms. Stansbury] that said footbridge will interfere with her property rights to a portion of land submerged beneath the water in the channel.

Ms. Stansbury noted this timely appeal and MDR cross-appealed. STANDARD OF REVIEW Maryland Rule 8-131(c) provides: Action tried without a jury. When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It 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 court to judge the credibility of the witnesses.

As to the circuit court’s factual findings, we look to whether those findings were supported by “substantial evidence” in the record. Liberty Mut. Ins. Co. v. Maryland Auto.

Ins. Fund, 154 Md.App. 604, 609 , 841 A.2d 46 (2004). When “ ‘there is any competent, material evidence to support the factual findings below, we cannot hold those findings to be clearly erroneous.’ ” Cannon v. Cannon, 156 Md.App. 387, 404 , 846 A.2d 1127 (2004) (citing Shallow Run Ltd. Partnership v. State Highway Admin., 113 Md.App. 156, 174 , 686 A.2d 1113 (1996)), aff'd 384 Md. 537 , 865 A.2d 563 , 2005 WL 48605 (2005). “Although the factual determinations of the circuit court are afforded significant deference on review, its legal determinations are not.” Liberty Mut. Ins.

Co., 154 Md.App. at 609 , 841 A.2d 46 . “Indeed, the appropriate inquiry for such determinations is whether the circuit court was ‘legally correct.’ ” Id. (citing Maryland Envtl. Trust v. Gaynar, 140 Md.App. 433, 440 , 780 A.2d 1193 (2001)). DISCUSSION I. Declaratory Judgment The Maryland Uniform Declaratory Judgments Act (“the Act”), Maryland Code (1974, 2002 Repl.

Vol.), § 3-401 et seq. ⁶⁰⁴ of the Courts & Judicial Proceedings Article (“CJ”), is “remedial” and its purpose is “to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.” CJ § 3-402. CJ § 3-409(a) provides: (a) In general. — Except as provided in subsection (d), [4] a court may grant a declaratory judgment or decree in a civil case, if it will serve to terminate the uncertainty or controversy giving rise to the proceeding, and if: (1) An actual controversy exists between contending parties; (2) Antagonistic claims are present between the parties involved which indicate imminent and inevitable. litigation; or (3) A party asserts a legal relation, status, right, or privilege and this is challenged or denied by an adversary party, who also has or asserts a concrete interest in it. “The declaration may be affirmative or negative in form and effect and has the force and effect of a final judgment or decree.” CJ § 3-411; see Universal Underwriters Ins. Co. v. Lowe, 135 Md.App. 122 , 130-31 n. 6, 761 A.2d 997 (2000) (“ ‘While a declaratory decree need not be in any particular form, it must pass upon and adjudicate the issues raised in the proceeding, to the end that the rights of the parties are clearly delineated and the controversy terminated.’ ”) (emphasis supplied in Universal Underwriters Ins. Co.) (quoting Dart Drug Corp. v. Hechinger Co., 272 Md. 15, 29 , 320 A.2d 266 (1974)).

Declaratory proceedings, however, are “ ‘not intended to and should not serve as a substitute for appellate review or as a belated appeal.’ ” Wolfe v. Anne Arundel County, 135 Md.App. 1, 25 , 761 A.2d 935 (2000) (emphasis supplied in Wolfe) (quoting Fertitta v. Brown, 252 ⁶⁰⁵ Md. 594, 599-600, 251 A.2d 212 (1969)), aff'd, 374 Md. 20 , 821 A.2d 52 (2003). In Harford Mut. Ins. Co. v. Woodfin Equities Corp., 344 Md. 399, 414 , 687 A.2d 652 (1997) (internal citations omitted), the Court of Appeals stated: This Court has reiterated time after time that, when a declaratory judgment action is brought, and the controversy is appropriate for resolution by declaratory judgment, “the trial court must render a declaratory judgment.” “[Wjhere a party requests a declaratory judgment, it is error for a trial court to dispose of the case simply with oral rulings and a grant of ... judgment in favor of the prevailing party.” The fact that the side which requested the declaratory judgment did not prevail in the circuit court does not render a written declaration of the parties’ rights unnecessary.

As this Court stated many years ago, “whether a declaratory judgment action is decided for or against the plaintiff, there should be a declaration in the judgment or decree defining the rights of the parties under the issues made.” Because the circuit court did not enter a judgment declaring the rights of the parties as requested, the case will be remanded to the circuit court for that purpose. That omission, however, is not jurisdictional, and we will address the merits of the controversy. See Bushey v. Northern Assur. Co. of Am., 362 Md. 626, 651 , 766 A.2d 598 (2001) (finding that the Court of Appeals “may, in its discretion, review the merits of the controversy and remand for the entry of an appropriate declaratory judgment by the circuit court”); Maryland Ass’n of HMO v. Health Servs.

Cost Review Comm’n, 356 Md. 581, 604 , 741 A.2d 483 (1999) (requiring on remand that the circuit court enter a judgment which included a declaration of the rights of the parties). See also Messing v. Bank of America, N.A., 143 Md.App. 1, 23 , 792 A.2d 312 (2002), aff'd, 373 Md. 672 , 821 A.2d 22 (2003); Eller Media Co. v. Montgomery County, 143 Md.App. 562, 603-04 , 795 A.2d 728 , cert. denied, 369 Md. 573 , 801 A.2d 1033 (2002). ⁶⁰⁶ II. The Land Patent of 1807 A. Land Patents Generally Ms. Stansbury contends that the circuit court erred in determining that MDR could construct a footbridge across her property. Because she relies, in part, on the 1807 land patent, we begin with a brief discussion of land patents.

A land patent is “an instrument by which the government conveys a grant of public land to a private person” Black’s Law Dictionary (8th ed. 2004). In Marquardt v. Papenfuse, 92 Md.App. 683 , 610 A.2d 325 (1992), Judge Cathell provided the following history of land patents in Maryland: Maryland began in 1632 as the private and exclusive property of the head of one family, the Calverts, Irish Barons of Baltimore. When the King granted Maryland to Lord Baltimore on June 20, 1632, making him the Lord Proprietor of Maryland, he did so absolutely and without qualification with regard to the right to grant and, as in this case, regrant land. That power has passed undisturbed to the Commissioner acting on behalf of the State.

The language of the Charter of Maryland is archaic but clear with regard to Lord Baltimore’s right to grant and regrant land as he saw fit[.] * * * # * * Prior to 1776, the only serious challenge to Lord Baltimore’s rights with regard to the issuance of land patents came in 1689 in the aftermath of the Glorious Revolution when Maryland became a Royal Colony. At that time Lord Baltimore’s political power, such as the right to appoint the Governor of Maryland, was taken away, but not his power to grant Land Patents. In 1692, after one Royal Governor attempted to usurp Lord Baltimore’s right to grant lands by forcefully removing all of his records, the Solicitor General of England, Thomas Trevor, argued persuasively that the governor had no right to do so: I think it may be just & reasonable that [the records] should be restored to his Lofrdship] again, and I do ⁶⁰⁷ not see any prejudice can thereby happen to the parties by whom such Bills or Bonds [for land] were given, though they have not Executed their Warrants, nor had Certificates [of survey] return’d, for ye bonds can[n]ot be put in Suit till the L[ord] hath p[er]formed the Condition on his p[art] [to grant the lands for which the bonds had been given and the warrants issued]. Between 1776 and 1781, the political powers of Lord Baltimore, which had been restored in 1715, and all of his rights relating to land in Maryland, were taken over by the State.

The heirs of the last Lord Baltimore (among whom was the wife of the last Proprietary governor, Sir Robert Eden) attempted to wrest compensation for their losses from the State after the American Revolution, but without success. From 1781 onward the powers over land matters that were once held by Lord Baltimore were vested in the judges of the Land Office, a position that today is titled Commissioner of Land Patents. Id. at 689-91 , 610 A.2d 325 . Land patents are “the first link in the chain of title of ownership of land in Maryland.” Id. at 689 , 610 A.2d 325 .

As the Court of Appeals explained in Bowie v. Western Maryland Railroad Terminal Co., 133 Md. 1, 7 , 104 A. 461 (1918) (referring to Browne v. Kennedy, 5 Har. and J. 195 (1821)): Whatever the law was elsewhere, that case settled it for this state, and has never been overruled or qualified. It was there held that Lord Baltimore, a proprietor of Maryland, acquired the same right to dispose of land covered by navigable waters within the province, under the charter granted to him by the king, as the king had prior to granting the charter-subject to the right of the public to use it for fishing and navigation. The right to grant land covered by navigable waters afterwards became vested in the state-subject to the same restrictions. Thus, “ ‘[f]or over 200 years, until 1862, the State (and the proprietor of the colony) patented to individuals, subject to the public rights of navigation and fishery, fee-simple title to land ⁶⁰⁸ under water.’ ” Wagner v. City of Baltimore, 210 Md. 615, 622 , 124 A.2d 815 (1956) (quoting Mayor & City Council of Baltimore v. Canton Co., 186 Md. 618, 630-631 , 47 A.2d 775 (1946)).

Indeed, the validity of land patents issued prior to 1862 “has been repeatedly recognized or reaffirmed.” Wagner, 210 Md. at 622 , 124 A.2d 815 . Section 48 of the Act of 1862 prohibited “the issuance of patents to submerged lands covered by navigable waters.” Board of Public Works v. Larmar Corp., 262 Md. 24, 39 , 277 A.2d 427 (1971). In fact, “[t]he Act was passed with the intention and for the purpose of enlarging the rights of riparian owners upon navigable waters of this State by giving to them accretions to their lands ... and also by giving to them the exclusive right to make improvements in the waters in front of their lands....” Van Ruymbeke v. Patapsco Indus. Park, 261 Md. 470, 479 , 276 A.2d 61 (1971) (quoting Melvin v. Schlessinger, 138 Md. 337 , 113 A. 875 (1921)).

B. Ownership of the Land Beneath the Channel A fee simple estate “is the highest form of ownership a person can have in real property because it has no restrictions on its use or enjoyment except those restrictions imposed by public policy for the common good.” David A. Thomas, Thompson on Real Property § 17.01 at 599 (2 ed. 2000). At trial, Ms. Stansbury produced a copy of the land patent, which undisputedly encompassed all of the property at issue in this case. Title to lots 179 and 9A, now owned by Ms. Stansbury, and for that matter, all the lots at issue, can be traced to the land patent issued in 1807. It is stipulated that the channel, subject to the ebb and flow of the tide, is navigable.

Therefore, the respective owners of lots 178, 179, 9A, and 10A, subject to public rights of navigation and fishing, own the portions of those lots beneath the channel. As Dowling opined, the land patent establishes “the best title possible,” and, the owners hold “supreme” title to ⁶⁰⁹ this property. In Maryland, “the owner of land in fee holds all of the complex elements of a single right, a bundle of sticks, if you will, which include not only the right to use the surface, but so much of the superjacent airspace as he can use, as well as the subajacent reaches below.” Macht v. Department of Assessments of Baltimore City, 266 Md. 602, 605 , 296 A.2d 162 (1972). Ms. Stansbury has a property interest in the air space above the subaqueous land of which she is the fee simple owner.

While there may be some limitations on the use of airspace, it is obvious that “if a landowner is to have full enjoyment of his land, he must have exclusive control of the immediate reaches of the enveloping atmosphere.” Id. Accordingly, Ms. Stansbury is entitled to full enjoyment of her subaqueous land, which includes the superadjacent airspace so long as she does not impede the public’s right to “fishing and navigation.” Bowie, 133 Md. at 7 , 104 A. 461 (referring Browne v. Kennedy, 5 Har. and J. 195 (1821)). Absent an agreement or a legally recognized nonpossessory interest in Ms. Stansbury’s property, MDR has only the rights of a member of the general public. C. The Right to Construct a Footbridge over the Channel Ms. Stansbury challenges the circuit court’s decision to permit MDR to construct a footbridge across her property without her consent.

In its decision, the circuit court, without citation, reasoned: [Ms. Stansbury’s] underwater land patent requires this Court to balance three competing interests: (1) [MDR’s] right to construct a footbridge between his two lots; (2) [Ms. Stansbury’s] right to prevent any interference with her interest in a portion of the land submerged beneath the waters in the channel over which a new footbridge must necessarily be constructed and; (3) the public interest in navigation and fishing in the channel. It then concluded that MDR’s interest prevailed and permitted the construction of a footbridge. Neither party has sup ⁶¹⁰ ported or provided authority in support of this balancing analysis, and we are persuaded that it was in error. Any right that MDR might have to construct the footbridge over Ms. Stansbury’s