Steuart Transportation Co. v. Ashe

Barnes, J., delivered the opinion of the Court. The principal question in this appeal is whether the Circuit Court for St. Mary’s County, in Equity (Mitchell, J.), was clearly in error for permanently enjoining the appellants, Steuart Transportation Company and Steuart Investment Company, from mooring oil barges against the pier in front of their property in Piney Point, Maryland, and from constructing a pier from any part of their property for commercial or industrial uses. Steuart Investment Company is the owner of Lots Nos. 2, 3 and 4 in “Warren Tolson’s Subdivision No. 2” in Piney Point, Maryland. Steuart ⁷⁶ Transportation Company is in the business of transporting fuel oil and moors its oil barges to the pier in front of the property.

The primary basis for the lower court’s decree of July 11, 1972, was that Lots Nos. 2, 3 and 4 and the riparian rights incident thereto were subject to restrictions resulting from a uniform general plan of development of Piney Point, which limited the use of the pier to crabbing, noncommercial fishing, bathing and the mooring of family boats or launches. The court held that these restrictions prohibited the defendants from using the pier for commercial and industrial purposes and, further, from constructing a pier for such purposes. We have concluded that the chancellor was not clearly in error in his findings and conclusions and we will affirm the decree of July 11,1972. Piney Point, located in St. Mary’s County, is a 151-acre, hook-shaped peninsula which points south and juts out into the Potomac River, approximately midway between Washington, D. C. and Norfolk, Virginia.

The St. Mary’s River empties into the Potomac River on the east side of the point. A lighthouse is maintained by the United States Coast Guard on the point. Back in 1905, Warren J. Tolson and his wife, Annie H. Tolson, bought Piney Point which was improved by a 25-room hotel, 27 cottages, other buildings and a steamboat wharf. Between the hotel and the river, a 100-foot wide beach stretched northward for the entire length of the property.

At that time, the place was primarily a summer resort; the hotel was in operation; the cottages were fully used; and the steamboat brought passengers from all over. Mr. and Mrs. Tolson lived at Piney Point after they acquired the property in 1905 and their heirs still retain title to the hotel site. However, time has left its mark on the property. The hotel had not been in operation since 1943 when it was used as apartments for a naval installation during World War II.

In 1954, shortly after Mr. Tolson died, “Hurricane Hazel” blew off the roof of the hotel. The roof was not replaced and the hotel is in a state of complete disrepair. With this background in mind, we now turn to the ⁷⁷ development activities of Warren Tolson in connection with Piney Point. These activities were first evidenced on August 23, 1909, when he recorded a plat designated as “Tolson’s Subdivision” among the Land Records of St. Mary’s County in Liber EBA No. 8, folio 49.

This original subdivision is located to the northeast of Tolson’s Hotel and consists of 58 lots, each 40 feet wide, fronting on what the plat designates as “Maindrive way,” running parallel to the Potomac River along the beach and covered with sand. The rear of those lots is upon Piney Point Creek, the lots being located upon the relatively narrow portion of the Piney Point Peninsula bounded generally by the Potomac River on the south and by Piney Point Creek to the north. A few months later — on December 17, 1909 — Mr. Tolson recorded among the Land Records in Liber EBA, folio 49 a sealed instrument, executed and acknowledged by him and his wife (Document #1) in regard to the original subdivision. In the grantor index, the following appears: “Dec 13/ 1909/ Tolson / Warren et ux/ Plat & Agreement Piney Point Hotel Prop./ E.B.A./ 8/ 49.” Document #1 is as follows: “With the intent that this instrument may be recorded upon the following referred to plat, “Know all men by these presents, that we, Warren Tolson and Annie H. Tolson, his wife, do hereby dedicate so much of the land on the plat called Warren Tolson’s Subdivision of a part of Piney Point, as recorded Aug. 23 — Í909 in Liber E.B.A. No. 8, folio 49, one of the land records of Saint Mary’s County marked thereon as ‘Beach’ which is bounded on the North by the Main driveway, on the east by a line drawn N. 14°W. from point No. 43 on the outline survey of the whole tract to said Roadway, on the South by low water mark of the Potomac River, and on the west by the extension of the west line of lot number one to said low water mark, to use and enjoyment in common by any of the owners of said lots from 1 to 58 both inclusive, as a common parkage, with the privilege in any lot owner, his heirs or assigns, to erect on ⁷⁸ said parkage within the area thereof ascertained by extending the east and west lines of the lot owned by the person so desiring to build to low water mark on said River, a family bath house, a summer house, not nearer than 20 ft. to said Roadway and with the right to construct a small wharf into the water opposite his, her or their lot or lots for crabbing, bathing and the use of family boats or launches.

No structure of any kind shall be built upon said parkage, nor boat wharves for Steamboats into the river. Nor shall any public fishing or oyster shore usage be made of said river front. The said Warren Tolson reserves the right for himself his heirs and assigns to use said parkage as such in common with the owners of said Lots 1 to 58 for the use of sojourners at the Piney Point Hotel property not subdivided. “In witness whereof the said Warren Tolson and Annie H., his wife have hereunto set their hands and seals this 13th day of December, 1909. Warren Tolson [Seal] Annie H. Tolson [Seal] “Test: John L. Fletcher “I hereby certify that on this 13th day of December Nineteen hundred and nine before me, the subscriber, a Notary public in and for the District of Columbia personally appeared Warren Tolson and Annie H. Tolson his wife and acknowledged the aforegoing instrument of writing to be their act and deed. “[N.P. Seal] John L. Fletcher, Notary Public, D. C. “Received this 17th day of December, 1909 at 10 o’clock A.M. for record and examined per me.” ⁷⁹ The second venture into the development of the Piney Point land occurred on November 20, 1923, when Mr. Tolson recorded a plat designated as “Warren Tolson’s Subdivision No. 2 in Piney Point” among the Land Records of St. Mary’s County in Liber J.M.N. No. 2, folios 83 and 84.

Subdivision No. 2 is located to the south of the Tolson Hotel along the shore of the Potomac River and consists of 12 lots. Like the original subdivision to the northeast, 11 of the 12 lots are 40 feet wide. All of the lots are 175 feet deep. Lot No. 1 is trapezoidal in shape and has a larger area than the other lots.

Also these lots front on a 50-foot wide strip running parallel to the Potomac River along the beach and corresponds to “Maindrive way” on Document #1, but is not so designated on the plat to Subdivision No. 2. The Court has adapted this plat by reducing its scale from 1 inch equals 50 feet to 1 inch equals approximately 100 feet and has eliminated the metes and bounds description of the surveyor on the plat as well as the recordation notations of the clerk. This adapted plat is included as an Appendix to this opinion. Simultaneously with the filing of the plat of Subdivision No. 2, Mr. Tolson filed a written instrument (Document #2), the provisions of which are as follows: “With the intent that this instrument may be recorded upon the following reference to the plat. “Know all men by these presents, that we, Warren Tolson and Annie H. Tolson, his wife, of St. Mary’s Counts, State of Maryland, do dedicate so much of the land on the plat called ‘Warren Tolson’s Subdivision No. 2 in Piney Point,’ St. Mary’s County, Maryland, marked thereon as ‘Beach’ which is bounded on the North by the main walkway on the East by a line drawn from the point F. on the plat to low water mark on the Potomac River, on the south by the Potomac River, and on the West by an extension of the West line of lot number one to said low water mark, to the use and enjoyment in common by any of the owners of said lots one to twelve, both inclusive, as a common parkage within the area thereof ascertained by ⁸⁰ extending the east and west lines of the lots owned by the persons so desiring to build to low water mark on the said Potomac River a family bath house or summer house within said area and with the right to construct a small wharf into the water opposite his, her or their lot or lots for crabbing, bathing and the use of family boats or launches.

No structure of any kind shall be built upon parkage, nor boat wharves for steamboats into the river, nor shall any public fishing or oystering rights for himself, his heirs or assigns obtain said parkage to be used in common with the owners of said lots one to twelve, both inclusive, and for the sojourners at Piney Point Hotel Property, not subdivided. “In witness whereof said Warren Tolson and Annie H. Tolson, his wife, have set their hands and seals this 10th day of November, 1923. Warren Tolson [Seal] Annie H. Tolson [Seal] “Test B. Kennedy Abell “State of Maryland, Saint Mary’s County, to wit: “On the 10th day of November, in the year nineteen hundred and twenty three, personally appeared before me, the subscriber, a Notary Public of the State of Maryland, in and for St. Mary’s County, Warren Tolson and Annie H. Tolson and acknowledged the aforegoing deed to be their act. “Witness my hand and Notarial Seal this 10th day of November, 1923. “[N.P. Seal] B. Kennedy Abell, Notary Public” The grantor index shows the following: ⁸¹ " Nov10/ 1923/Tolson/ Warren et ux/to/I)edieate Roadway /I)eed/J M M /2/83 ” ”/ " / do / do / ” /Subdi\ isiori No 2 Piney Point/Plat/ " /"/84 On the same day the plat for Subdivision No. 2 and Document #2 were recorded, Mr. and Mrs. Tolson executed the first deed out of Subdivision No. 2 for Lot No. 12 to Helen J. and Gertrude E. Bury as joint tenants. This deed was recorded among the Land Records of St. Mary’s County on January 5, 1924, in Liber J.M.M. No. 2, folio 212. In the grantor index, the recordation of this deed is separated from the recordation of the plat for Subdivision No. 2 by one deed from Warren S. Thompson, dated December 3, 1923, and recorded in Liber J.M.M. No. 2, folio 99.

The deed to the Burys of Lot 12 provided in relevant part: The Tolsons granted to the Burys: — “their heirs and assigns the right to use in common with the owners of lots 1 to 12, both inclusive in said subdivision the strip lying between said main walkway and low water mark on the Potomac River for a beach, or parkage, and with the right to erect and maintain a bath house for themselves and families and a summer house, also a wharf into the river for fishing, crabbing, bathing and the use of family launches. “And the parties of the first part do further grant and convey, unto the parties of the second part, their heirs a,nd assigns all the rights and privileges set forth in a paper writing known as a Dedicatory Supplement to a plat recorded in Liber J.M.M. No. 2, folio — one of the Land Records of St. Mary’s County, Maryland. “And the parties of the first part do further grant unto the parties of the second part, their heirs and assigns the privilege of using the steamboat wharf at Piney Point so long as said wharf is controlled by the parties of the first part, their heirs for the purpose of travelling or steamboat stopping at said wharf and with the right to land freight and baggage thereon.” (Emphasis supplied) ⁸² After the habendum clause, there follow the usual covenants of special warranty and further assurance, 1 the signatures and seals of the Tolsons and a proper acknowledgement of the deed by them. The second conveyance out from the Tolsons was for Lot No. 1 to Myrtle J. Tolson, by a deed dated January 5, 1925, and recorded among the Land Records of St. Mary’s County in Liber J.M.M. No. 3, folio 128. It is virtually identical with the Bury deed. The third conveyance out from the Tolsons in Subdivision No. 2 was by a deed dated April 11, 1925, to Lots 9 and 10 to William Boyd, and recorded among the Land Records of St. Mary’s County on April 30, 1925, in Liber J.M.M. No. 3, folio 95.

The Boyd deed, in relevant part, after granting the land to Boyd, “his heirs and assigns, in fee simple,” provides: “Lots Nine (9) and Ten (10) in Warren Tolson’s subdivision Number Two (2), Piney Point, St. Mary’s County, State of Maryland, as per plat recorded in Book J.M.M. #1 [sic #2?] at folio 84, one of the land records of said county, together with a right of way over the property of the grantor East of said subdivision for access to said lots by suitable roadway to the rear thereof; also a right of way over said property of the grantor to and over a strip of land fifty feet (50') in width, paralleling the front line of said lot lines, which said fifty foot strip shown on said plat, shall be reserved for the perpetual use of all the owners of lots in said subdivision No. 2; also the parties of the first part further grant and convey to the party of the second part, in fee simple, all the land lying between said fifty foot strip and the low ⁸³ water mark on the Potomac River between a prolongation of the East line of said lot ten (10) and the west line of said lot Nine (9). ” (Emphasis supplied.) Then follow the “together” clause, the habendum clause, and covenants of special warranty, seisin, right to convey, quiet enjoyment, against encumbrances and further assurances. The Tolsons duly signed, sealed and acknowledged this deed. On March 30, 1926, Lot No. 4 was conveyed by the Tolsons to George L. Edmunds by a deed identical — except for the number of the lot and its description — to the Boyd deed. In all other conveyances of lots in Subdivision No. 2, there was a conveyance of the fee simple estate with no reference to the plat, the supplement or to the restrictions.

Subdivision No. 2 was a successful development. All of the lots were sold. Houses were built on all but one lot and a number of pavilions and small piers were built. A family atmosphere still exists, modified only by the appellants’ commercial activities.

Steuart Investment Company acquired Lots 3 and 4 and the fee simple estate in the beach in front of those lots by a special warranty, fee simple deed, dated February 23, 1961, and duly recorded from Cornice O. Tinsley and wife. The title examination, preparation of the deed, the settlement and delivery of the deed and certificate of title were handled by William Aleck Loker of the law firm of Loker, Wigginton and Loker of Leonardtown. Mr. Loker — called by the plaintiffs below — testified that he had represented Steuart Investment Company for a number of years “ever since” the Steuart interests “first started in business in St. Mary’s.” He estimated that either he or members of his law firm had worked upon 25 matters for the Steuart interests. Counsel for the plaintiffs and appellees exhibited to Mr. Loker Document #2 and he was asked: “Q. . . .

Have you seen the original of that document when you examined the land records of — in the Tinsly [sic] transaction for Steuart Investment?” ⁸⁴ “THE WITNESS: I have not seen the original. . . but I have seen this, a copy of this, written in hand in the land records of St. Mary’s County.” “Q. When did you first see it? To your recollection? A. I couldn’t state but I am sure that I saw it. . .” “THE WITNESS: I know that I saw it prior to the conveyance from Tinsly [sic] to Steuart but when I first saw it I wouldn’t be able to tell you. It might have been many years prior to that.

But I did see it recorded the recorded instrument and I had a reference here somewhere, I think it is in JMM 2 at either page 83 or 84. “It is one page ahead of the plat of the subdivision in the same book.” There was no other testimony in regard to Mr. Loker’s knowledge of Document #2. The Certificate of Title for Lot No. 2 does not mention the plat to Subdivision No. 2 nor Document #2. William E. Saul, President of the Steuart Transportation Company, testified that neither Mr. Loker nor Mr. Wigginton had ever told him that there were any covenants or restrictions on any of the properties. He stated: “We had absolutely no knowledge of any restrictions.

My first knowledge, I believe, was when [counsel for the appellees] told me in Annapolis.” Steuart Transportation Company acquired Lot No. 2 on March 30, 1964, from Lloyd Prather and wife (original grantees from the Tolsons). This lot was improved by a cottage and small pier. The Steuart Transportation Company transferred this lot to the Steuart Investment Company by a deed dated March 10, 1969. Both deeds were ⁸⁵ duly recorded and neither refers to Document #2 nor to any restrictions applicable to Lot No. 2.

The plaintiffs below and appellees here all acquired their respective lots in Subdivision No. 2 in the period between 1946 and 1966 from the original grantees of the Tolsons. None of these subsequent deeds contained any restrictions, reference to restrictions, or references to Document #2. None of the parties had knowledge of the restrictions or Document #2 at the time of the purchase. However, in all of the deeds by which the plaintiffs acquired their respective properties the number of the lots in the plat of Subdivision No. 2 was given and a reference to the plat among the land records was given.

In 1926, Mr. Tolson recorded two plats of additional subdivisions of Piney Point. “Tolson’s Subdivision No. 3 of Piney Point” contained 12 lots each with a 40-foot frontage, except Lot No. 1 (with a frontage on Lighthouse Road of 20 feet), and a lot 20 feet by 175 feet called “Laf-a-Lot” across Lighthouse Road immediately east of, and paralleled to, Lot No. 12 in Subdivision No. 2. Subdivision No. 3 is directly northeast of Subdivision No. 2, being separated from it by Lighthouse Road, State Route 498. Eleven of the 12 lots run to the south side of Piney Point Creek. Subdivision No. 3 (except the Laf-a-Lot property) was purchased by the United States Government in 1940 and sold to Steuart Investment Company in 1970.

The company’s office building is now located on this property. In 1926, Mr. Tolson also filed for record a plat of “Tolson’s Subdivision No. 4 of Piney Point,” surveyed on February 3, 1926, and recorded among the Land Records of St. Mary’s County in Liber J.M.M. No. 3, folio 503. It consisted of 38 lots on the Potomac River, 50 feet wide “around the horn” from Subdivision No. 2 immediately northwest from the Coast Guard lighthouse property. It was stipulated in the lower court by the parties that there were no instruments filed at or about the time of the filing of the plats for either Subdivision No. 3 or Subdivision No. 4 comparable to Documents #1 and #2.

On December 9, 1948, Mr. Tolson leased to Steuart ⁸⁶ Brothers, Inc. (the predecessor corporation to Steuart Investment Company) a tract of land which encompassed the Subdivision No. 4 lots. This lease contained an option to purchase, which the lessee exercised, receiving title from the heirs of Warren To Ison on December 30, 1958. The Steuart main pier was constructed into the Potomac River from the first three or four lots in Subdivision No. 4 in 1950. This main pier accommodates seagoing tankers, principally from Venezuela, which unload fuel oil into the pipelines on the pier which carry the fuel oil to a tank farm at Piney Point, operated by Steuart Petroleum Company, an affiliate of Steuart Investment Company.

It is also from this main pier that the oil barges of Steuart Transportation Company are loaded for transport to Washington, D. C., Richmond and Norfolk, Virginia, and other ports of call. During the course of construction of the main pier, vessels frequently tied up in front of Lot No. 2 in accordance with an agreement between Mr. Prather and Steuart Petroleum Company, negotiated by Mr. Saul, prior to the acquisition of the Prather property (Lot No. 2) in 1964 by the Steuart Investment Company. From 1956 until 1964, the barges only made periodic movements from Piney Point, coming in and loading only under normal conditions; but in heavy wind and ice, the barges were anchored in the harbor in front of Subdivision No. 2. Although the company started in 1956 with only two barges, it has since grown and at the time of trial owned 10 or 11 barges operating on a regular basis.

In 1964, Steuart Investment Company applied for and obtained from the United States Army Corps of Engineers a permit to construct (and in 1964 did construct) two mooring dolphins, one at the Prather pier itself and the other approximately 150 feet out in the Potomac River directly in line with the Prather pier. The Prather pier has been used for the “parking” of empty barges when not in use, when awaiting space at the main pier for loading or when seeking protection from a northwest gtorm. This mooring of empty barges along side the Prather pier has been open and notorious. Mr. Saul, President of Steuart Transportation Company, testified that the operations in front of Sub ⁸⁷ division No. 2 were a 24-hour operation and one of the reasons for the purchase of Lot No. 2 (the Prather property) was to allow the barges to be tied up at any hour.

He stated that other barge operators would sometimes pull their barges onto the beach in front of Subdivision No. 2 and “tie the bow of the barge up to a pine tree * * * — that would be their berth.” Mr. Ashe, one of the appellees, became aware in 1964 that barges were being moored to the Prather pier. He promptly objected to this to Hebb Pembroke, the operations manager, who, in turn, referred him to Mr. Saul. At a conference between Mr. Ashe and Mr. Saul, the latter told Mr. Ashe that the Steuart Transportation Company had a permit to put the barges there, that it was the company’s property, and that was the reason for the purchase of the property. Mr. Ashe testified that he continued to call Steuart employees to “ask them for God sake to get those things out in front of my house and quit shining lights in the bedroom windows and ringing bells and spilling oil in front of me.” Receiving no satisfaction, Mr. Ashe consulted counsel and authorized the filing of the bill of complaint in the present case.

As we have indicated, the chancellor filed a written opinion finding certain facts and concluding that the Tolsons had intended to create and establish a general plan of development of which the appellants as defendants below had notice. In his carefully considered opinion, the chancellor found that the general plan of development had not been abandoned and further that the applicable restrictions or equitable