White v. Pines Community Improvement Ass'n

DAVIS, J. The Circuit Court for Anne Arundel County, by memorandum and order, ruled on December 28, 2005 in favor of appellees, the Pines Community Improvement Association, Inc. 1 Trial commenced on April 13 and 15 of 2005 and the trial court determined there were necessary parties unnamed in the action. The trial court, sua sponte, issued a Show Cause Order to all lot owners of The Pines on the Severn (hereinafter “The Pines”) and a subsequent hearing was set to join all additional party defendants. Trial resumed December 21 and ²⁷ 22, 2005, at which time evidence and testimony were taken in regard to the action filed on December 8, 2003 2 and a cross-claim that was filed by appellees on July 8, 2005. Following trial, the court adjudged that the Rices were not damaged by appellees nor did appellees trespass upon their land when the steps to pier one, discussed infra, were removed.

Appellees’ response to the motion of appellants to alter or amend judgment, filed January 19, 2006, concedes in a footnote that the trial court’s Memorandum and Order did not expressly mention the Rice Triangle and offered the trial court its acquiescence for the trial court to amend its order “to reflect the Rices’ adverse possession of the area covered by the studio.’ ” The trial court denied the motion on January 26, 2006. The trial court found that the Pines Community Improvement Association owned, in fee simple, title to the contested property and all of the existing improvements thereon and appellants’ claims of adverse possession and prescriptive easement were denied. Denied also were appellants’ claims that a mortgage and subsequent deed granted them an interest in community land, piers and boathouses that differed from interests enjoyed by all residents. PCIA was granted the right, power and authority to use, control and regulate the community land and any improvement thereon including assignation of boat slips at piers and boathouses.

PCIA was also granted rights power and authority to charge fees for costs associated with such regulation, including storage fees for noncompliance with assignment regulations. Monetary judgments were recorded against the following appellants: Gill & Assocs., the Donnellys, the Garmans, the ²⁸ Whites, Clow, the Lyons, Johnston, and the Donahues. 3 All appellants noted timely appeals to this Court, filed five separate briefs 4 and have presented several questions for our review, which we restate as follows: I. Are appellants entitled to ownership of Community Land and/or piers through adverse possession, an exclusive prescriptive easement, estoppel or alternatively by their predecessors extinguishing rights of common use?

II

Does the trial court’s lack of factual and legal findings concerning the “Rice Triangle” require remand for further proceedings?

III

Did the trial court err in creating a new covenant eighty years after the original plats of the Pines were recorded and by awarding damages against appellants arising out of use of the piers?

IV

Is an association community landowner, which calls itself a Community Improvement Association, but does not qualify as a homeowners’ association under Maryland Code Ann., Real Prop., § 11B-101, et seq., 5 entitled to ignore or overrule covenants and a common development scheme expressly providing that the land it now holds is subject to a right of use by lot owners? V. When a “community lot” is burdened by a covenant and common development scheme providing for the use of the property by all adjacent property owners in a designated plat area, may a volunteer organization which acquires title to the “community lot” control use of the lot to the extent of charging fees to the adjacent property owners for the use of ²⁹ the burdened property, making discretionary assignments of pre-existing piers and boathouses which were built by the adjacent property owners and by requiring that all adjacent lot owners who wish to exercise the right to use such piers and boathouses become members of the voluntary organization?

VI

Did the trial court abuse its discretion by failing to consider Simmons’ testimony and documentary evidence and as to its manner and timing in which it concluded trial and entered its order? FACTUAL BACKGROUND AND PROCEDURAL HISTORY “The Pines on the Severn” (hereinafter “The Pines”) is a residential community of approximately 250 single family lots located in Arnold, Maryland that binds on two branches of Chase Creek, a tributary of the Severn River. The Pines was created by Leonidas G. Turner, principal of The Severn River Company and his wife, Amelia A. Turner, by recordation of two plats in 1922 and 1924, respectively, in the Land Records of Anne Arundel County. The plats depict a ring of Community Land 6 in the proposed development such that no single lot is binding on Chase Creek.

After January 27, 1926, The Pines Company, Inc. owned all of the unsold lots in The Pines. The deed recorded in February 1926 contained the following language in regard to the land conveyed: and all parts thereof marked Community Land or Community Lot, and all the roads, ways, streets, lanes, alleys, and paths, piers, riparian and water rights appurtenant to said Community lands, streets, roads, lanes, ways, alleys, and paths, being subject to such rights therein as granted to the owners of such lots or parts of said tract in the deeds from ³⁰ the said The Severn River Company heretofore executed and recorded. Together with the rights, roads, ways, waters, water and riparian rights, streets, lanes, alleys, and paths, piers and appurtenances and advantages to the same belonging or in anywise appertaining and particularly the roads and ways leading from said property to the Baltimore and Annapolis Boulevard. Early deeds from The Severn River Company conveyed to individual lot holders also the use in common with others of the road extending from Chase Creek to the Baltimore and Annapolis Boulevard and also the use in common with others entitled thereto of the lots of ground designated as Community Lot on said Plat and all water and riparian rights incident thereto.

The PCIA was formed and incorporated in July of 1926 “[t]o control and care for the Community lots and beaches, the water supply, fire protection, sanitation, enforcement of restrictions, roads, police, lighting, legislation, transportation and all other matters in which the community interest as a whole is involved.” Further, the certificate of incorporation allowed that the PCIA “shall have the right to acquire by purchase, lease or otherwise any land, building, property or real estate to be used for any purposes consistent with the powers as expressed in the charter of the said corporation.” The corporation acknowledged that it was subject to the “General Laws of the State of Maryland.” It is a voluntary membership organization that presently has a regular membership of approximately 114 lot owners and several appellants have been members and/or officers in the PCIA. The PCIA has a constitution, Bylaws and Rules and Regulations. The membership roles have included the following appellant members 7 Rice in 2003; Donahue 1986-2003; Simmons from ³¹ 1969 to 1978, 1980, 1993, 1994, 2000-2004; Johnston 2002-03; Lyon 1990-2003; Clow 1996-97, 2000-2003; White 2002; Gar-man 2002; Donnelly 2001-2003; Gill 1967-71, 1973-78 and a resident of Gill & Assocs. Lot 617, Robert R. Nichols (hereinafter Nichols) 1988-89, 1995, 2000-02.

On October 12, 1926, 8 The Pines Company executed a deed granting PCIA lot number 406 as shown on the July 15, 1922 plat. The “BEING” clause included use in common language “with others entitled thereto of the lot of ground designated as ‘Community Lot’ on said Plat, and all water and riparian rights incident thereto.” It continued, “[t]he said lot to be held by [PCIA] for the use of all owners of lots and also those who may acquire lots, as a single unit for the Pines Community purposes.” The land was granted subject to covenants. The covenant language stated: TO HAVE AND TO HOLD the said 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 Pines Community Association Incorporated, and for the title holders from The Pines Company, Incorporated, or Leondidas G. Turner, [sic] their successors or assigns, in fee simple, subject, however, to the following covenants, and agreements which are hereby entered into by the [PCIA], its successors and assigns, with the said The Pines Company, Inc., as part of the consideration of this deed. 8 — That the said grantee doth hereby covenant and agree for itself, its successors and assigns, that the land hereby conveyed, shall be liable annually for the proportionate amount of the cost of maintaining the roads, included in the area of the Pines-on-the-Severn, for the total square feet in said lots said proportionate amount not to exceed, however, ³² the sum of Sixty-dollars ($60.00) to be paid annually on the 15th day of March, in each year, by the grantee, its successors and assigns, to the Pines Company, its successors and assigns, or to such person or body corporate, as it or they may direct. IT IS DISTINCTLY UNDERSTOOD AND AGREED BETWEEN the parties thereto, that all covenants and agreements above expressed, shall be held to run and bind with the land hereby conveyed, the acceptance of this deed, shall have the same effect and binding force upon the grantee, its successors and assigns, as if the same were signed and sealed by the said Pines Company, Inc, [sic] and of the grantee; provided however, that the covenants contained in this deed may be changed with the written consent of the said The Pines Company, Inc. and of the [PCIA], their successors and assigns.

In January 1928, to secure a $35,000 loan from Mary G. Machen, The Pines Company, Inc. executed a mortgage (hereinafter “the Machen Mortgage”) in Machen’s favor. Legal title to remaining lots in The Pines owned by The Severn River Company was conveyed that included the Community Land. The Machen Mortgage described “roads, ways, streets, lanes, alleys and paths, piers, riparian and water rights appurtenant to the land known as Pines On The Severn, subject however, to the use of the adjacent lot holders therein, and also all water works.... ” The mortgagors defaulted on the Machen Mortgage and it was foreclosed upon in the early 1930’s. The lands described by the Machen Mortgage were conveyed to Pines-on-the-Severn, Inc. on July 19, 1932 and Pines-on-the-Severn subsequently sold approximately twenty lots in The Pines between 1932 and 1952.

The deeds in these subsequent sales included the “use in common” language contained in the earlier deed from The Severn River Company and The Pines Company, Inc. ³³ On September 3, 1952, Pines-on-the-Severn, Inc. conveyed all of its remaining lots to the Pumphreys and the Obrechts (hereinafter “the Pumphrey Deed”), including the Community Land and Community Lot. The deed made such conveyance “subject, however, to the rights of owners of property in the development to the areas designated ‘Community Land’ and ‘Community Lot.’ ” The Pumphrey Deed also contained language granting an interest to Pines-on-the-Severn, Inc. in roads, ways, streets, lanes, alleys and paths, piers, riparian rights and other rights appurtenant to the land known as Pines-on-the-Severn; subject, however, to the use of the adjacent lot holders therein, if any SEE the plats of Pines-on-the-Severn [sic] recorded among the PlatRecords [sic] of Anne Arundel County---- On April 23, 1962, Chas. H. Steffey, Inc. (hereinafter Steffey) obtained all remaining lots and on that same day conveyed them to White Acre, Inc. (hereinafter White Acre), who subsequently conveyed the Community Land and Community Lot to the PCIA on April 5, 1966. The conveyance was made “subject to such rights and privileges heretofore granted from time to time by the Grantor to others ... to use said property hereby conveyed for the purpose set forth by such grants.” White Acre also reserved for lot owners in the new and adjacent subdivision, called Hidden Hills, the same rights and enjoyment of the Community Land and Community Lot as enjoyed by Pine-on-the-Severn’s residents.

White Acre had granted no others any rights or privileges in the Community Land or Community Lot. Some lot owners built piers adjacent to their respective properties that abut the Community Land shown in the 1920’s plats. At trial, appellees labeled piers adjacent to the numbered lots which we recreate as follows: Pier 1 adjacent to the Rices’ lot 305; Pier 2 adjacent to the Donahues’ lot 309; Pier 8 adjacent to the Simmons’ lots 403-05 and part of lot 402; Pier 9 adjacent to Johnston’s lots 401 and part of lot 402; Pier 10 adjacent to the Lyons’ lots 553-56; Pier 11 adjacent to ³⁴ Clow’s lot 552; Pier 12 adjacent to the Whites’ lots 608-09; Pier 13 adjacent to the Garmans’ lots 610-11; Pier 14A adjacent to the Donnellys’ lot 612; Piers 14B, 15 and 16 adjacent to the Gill & Assocs. lots 617, 619, 621-24. 9 After acquiring fee simple title to the community land, the PCIA began conducting “community walks” that were advertised throughout The Pines by way of the PCIA’s newsletter. The walks were held at various times beginning in the mid-1960’s and continue through the present day.

The walks include walking on community lands and have at one time or another included walking on each of the piers extending from the Community Land and Community Lot. PCIA adopted a pier management plan in September 2003 that was approved by forty-five PCIA members after approximately sixty-one members voted. The management plan included a system for distribution of slips on piers located in The Pines. In order to maintain a slip under the new management system, a lot owner is required to join the PCIA and remain in good standing.

After posting a refundable bond and paying a yearly maintenance fee, the lot owner is eligible to apply for a slip. The PCIA assesses a fifteen dollar per day wet storage fee for boats in slips without assignment thereto. At the time of trial and immediately preceding, none of the appellants were members of the PCIA or had assignments for their boats that they docked at piers. Appellants did not join PCIA, apply for slips or remove their boats from the piers.

Appellees assessed wet storage fees against several appellants and filed a counter-claim for the respective sums in answer to appellants’ initial complaint. The trial court found in favor of the PCIA as to wet storage fees and assessed appellants in the following manner: the Donahues $1,080; Johnston $3,150; the Lyons $7,740; Clow $1,150; the Whites $1,725; the Garmans $14,430; the Donnel ³⁵ lys $1,575; and Gill & Assocs. — $19,170. A portion of the house which sits upon the Rice’s lot is located over community land. The trial court was presented with several versions of precisely where the house encroaches.

At trial, the court asked for draft memorandum opinions from all parties. Appellees’ attorney submitted a draft memorandum and opinion at the close of testimony on December 22, 2005 and amended it on December 27, 2005. The trial judge adopted appellees’ draft as the opinion and order of the court in the trial proceedings, including that “[appellants] shall pay costs.” Whether and to what extent PCIA is to manage and maintain piers has been contentious. There have been several other suits as between PCIA and/or members of The Pines, beginning with a suit instituted by a previous PCIA president and then-owner of lot 610.

In Kipp v. Lenzer, in the Circuit Court for Anne Arundel County, in Equity, No. 8401, decided October 22, 1943, the trial court ruled that the defendant and then-owner of lots 551, 607, 608, 609, 611 and 612 remove a fence that was blocking access to Edge Way. Recognizing that The Pines “was laid out as a development, and lots were sold, under a uniform plan and scheme for development of the property as a strictly private residential water front settlement,” the court dismissed plaintiffs bill to enjoin defendants from interfering with plaintiffs use of “the lot designated ‘Community Beach’.... ” The trial court dismissed the bill without prejudice so that at any future date, should interference or attempts to interfere arise, suit could be filed. Wirt Gill, predecessor to Gill & Assocs., filed suit in 1979 after the PCIA dismantled Pier 14B. The suit was dismissed without prejudice and the trial court noted that Gill was claiming adverse possession.

The PCIA brought suit against Allen L. and Virginia E. Garman (hereinafter the Garmans), then-owners of lots 610 and 611 and, on August 5, 1982, the Circuit Court for Anne Arundel County, M Case “NO. D-2186 LAW,” ruled that exclusive rights to the pier and exclusive riparian rights were not granted to the Garmans by deed. ³⁶ The court found the PCIA the owners of the riparian land and, as such, the owner of the pier. The court noted that, as co-tenants, the Garmans “should receive contribution from the other members of the community,” for the improvements. In an opinion filed on October 20, 1987 in “CASE NO. 1107894,” the Circuit Court for Anne Arundel County found that the PCIA had record title to community property to the waterline.

The trial court also concluded that the original use of the property by “Jamie Gill Sutton, et al” [sic], the defendants and then-owners of lots 621 and 623, was permissive. The court read the deeds as permitting “use in common of the community property and the use in common of water and riparian rights,” making the lot owners essentially co-tenants. The court went on to describe adverse possession of property held as a cotenancy and found that none of the actions of the lot owners amounted to disseisin of property rights. Similar to its 1982 findings, the court recognized that improvements into water in front of land belong to the owner of the land.

The burden of proof to show that the severable property interest was adversely possessed was not met in that case. The ability to build the pier arose from a permissive use of riparian rights. Thus, absent ouster, the court found that the PCIA retained ownership of the pier and that defendants and other members of the PCIA could use the pier. None of the cases cited supra were appealed to this Court or to the Court of Appeals.

Additional facts will be provided as necessary. STANDARD OF REVIEW We review the findings of a case tried without a jury “on both the law and the evidence.” Md. Rule 8 — 131(c). We will not overturn the judgment of the trial court on the evidence absent clearly erroneous fact finding and will give due regard to the trial court’s opportunity to “judge the credibility of the witnesses.” Id. In other words, under a clearly erroneous standard, this Court does not sit as a second trial court.

L.W. Wolfe Enters., Inc. v. Md. Nat’l Golf L. P., ³⁷ 165 Md.App. 339, 343 , 885 A.2d 826 (2005) (citing Lemley v. Lemley, 109 Md.App. 620, 628 , 675 A.2d 596 (1996)). We limit our task to a determination of whether substantial evidence exists in the record to support the lower court’s findings. L.W. Wolfe Enters., Inc., 165 Md.App. at 344 , 885 A.2d 826 . We do not substitute our judgment for that of the trier of fact even if we would have come to a different conclusion.

Gwynn v. Oursler, 122 Md.App. 493, 502 , 712 A.2d 1072 (1998). Thus, we “must consider evidence produced at the trial in a light most favorable to the prevailing party and if substantial evidence was presented to support the trial court’s determination, it is not clearly erroneous and cannot be disturbed.” Id. (citations omitted). “Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Snowden v. Mayor of Balt., 224 Md. 443, 448 , 168 A.2d 390 (1961) (quoting Consol. Edison Co. of N.Y. v. Nat’l Labor Relations Bd., 305 U.S. 197, 229 , 59 S.Ct. 206 , 83 L.Ed. 126 .

(1938)). The test is reasonableness, not rightness. Snowden, 224 Md. at 448 , 168 A.2d 390 (citation omitted). The deference shown to the trial court’s findings as to evidentiary rulings does not apply to its conclusions of law.

Nesbit v. GEICO, 382 Md. 65, 72 , 854 A.2d 879 (2004). “[Wjhere the order involves an interpretation and application of Maryland statutory and case law, our Court must determine whether the lower court’s conclusions are ‘legally correct’ under a de novo standard of review.” Id. (quoting Walter v. Gunter, 367 Md. 386, 392 , 788 A.2d 609 (2002)). LEGAL ANALYSIS I. SCHEME OF DEVELOPMENT The intention to adopt a general plan of development with restrictions may be indicated in different ways. When it is intended to adopt such a general plan, the simplest method is to include all of the restrictions in every deed, and to state that they bind not only the property conveyed, but also the property retained, and that they are placed ³⁸ upon the property for the benefit of the owners of all parts of it.

The mere filing of a plat without restrictions on it does not indicate the adoption of any uniform restricted plan of development. Scholtes v. McColgan, 184 Md. 480, 489 , 41 A.2d 479 (1945). Where a general plan or scheme is proved for the improvement of the property, and its consequent benefit, and the covenant has been entered into as part of a general plan to be exacted from all purchasers, and to be for the benefit of each purchaser, and the party has bought with reference to such general plan or scheme, and the covenant has entered into the consideration of his purchase the inference is permitted that the restrictions were for the common advantage and benefit of all who purchased and not the personal benefit of the grantor. Turner v. Brocato, 206 Md. 336, 349 , 111 A.2d 855 (1955) (quotations omitted).

The Turners filed two plats in the land records of Anne Arundel County and included language in the original deed granting use in common of the ring of Community Land stipulated to at trial. Predecessors in the claim of title bought lots under the conditions set forth in the recorded plats and deeds. All parties and the lower courts have referred to the use in common grant as a covenant. Black’s Law Dictionary 391 (8th ed. 2004) defines a covenant as “[a] formal agreement or promise usu. in a contract.” 10 A covenant is an agreement duly made to do or not do a particular act and is a contractual obligation.

Maryland Law Encyclopedia, Cove ³⁹ nants § 1 (2000). “A covenant by all authorities is a contract under seal----” Cooke v. England, 27 Md. 14 (1867). An implied covenant can be inferred from the words used in a contract that the parties intended to form a covenant. Woodland Beach Property Owners’ Ass’n v. Worley, 253 Md. 442, 449 , 252 A.2d 827 (1969) (holding under the circumstances that no covenant would be implied). In the case sub judice, there is a covenant in the deed from the Pines Company, Inc. to the PCIA that was an express covenant meant to run with the land.

That covenant was in addition to the use in common language found in the “BEING” clause of the PCIA’s deed and appellants’ deeds. The use in common language did not promise to do or refrain from doing anything. It simply granted a use in common of the Community Land and Community Lot. It is an express easement as discussed, infra.

Appellants contend that the 1932 Machen Mortgage granted them exclusive right to build and occupy piers because it added to the Severn River Co. deeds the phrase “subject however, to the use of adjacent lot owners therein.” Further, the Martinet Plat was prepared close to 1932 and also states that use of the Community Land is “subject to the use of adjacent lot owners therein.” Adjacent is defined as “[l]ying near or close to, but not necessarily touching. Cf. adjoining.” Black’s Law Dictionary (8th Ed.2004). “The courts draw a distinction between the terms ‘adjoining’ and ‘adjacent to,’ and ... [have] said that ‘[t]here are degrees of nearness, and when you want to express the idea that a thing is immediately adjacent you have to say so.’ ” Mayor & City Council of Baltimore v. Williams, 129 Md. 290, 297 , 99 A. 362 (1916). The trial court found no merit in appellants’ contentions because of anomalies they would produce when applied to roads, lanes, streets, ways and alleys also conveyed with the same language. Though appellants dismiss that interpretation because of a belief that roads, lanes, streets, ways and alleys are generally not used to the exclusivity of others, we cannot ⁴⁰ determine from the record that substantial evidence precluded the trial court from so finding.

We agree that the record is devoid of evidence that the Martinet Plat was recorded or relied upon by any subsequent buyers. Thus, the Machen Mortgage did not alter appellants’ rights. Even if the Machen Mortgage and the subsequent plat were designed to alter appellants’ rights as to the Community Land, the mortgage was recorded after the original plat. Thus, after the delivery of the mortgage, it is beyond the mortgagor to impair or modify the estate.

Sullens v. Finney, 123 Md. 653 , 91 A. 700 (1914) (restrictions could not be applied to a mortgagor who obtained the mortgage before the plats were filed). Reliance on the Pumphrey Deed as acknowledging the changes conferred by the Machen Mortgage is equally flawed because, even considering the addition of the “if any” language, it also refers the grantee to the original Pine-on-the-Severn “plats.” Ordinarily the construction of a deed is a question of law and is, thus, reviewed by us de novo. Gregg Neck Yacht Club, Inc. v. County Com’rs of Kent County, 137 Md.App. 732, 759 , 769 A.2d 982 (2001) (citing, e.g., Chevy Chase Land Co. v. U.S., 355 Md. 110, 123 , 733 A.2d 1055 (1999)). In construing the language of a deed, the basic principles of contract interpretation apply and we look first to the language of the deed.

Id. The Court gives effect to the intention of the parties to the instrument as gleaned from the text of the entire instrument, unless that would violate a principle of law. We do not consider extrinsic evidence where the plain meaning of the language in the instrument is clear and unambiguous. Drolsum v. Horne, 114 Md.App. 704, 709 , 691 A.2d 742 , cert. denied, 346 Md. 239 , 695 A.2d 1227 (1997).

If possible, we determine the meaning of the deed by its four corners. Gregg Neck Yacht Club, Inc., 137 Md.App. at 760 , 769 A.2d 982 . ⁴¹ With respect to common schemes in land development, the Court of Appeals has opined [t]hat one owning a tract of land, in granting a part thereof, may validly impose upon the part granted restrictions upon the use thereof for the benefit of the part retained, and upon the part retained for the benefit of the part granted, or upon both for the benefit of both; that, where the covenants in the conveyance are not expressly for or on behalf of the grantor his heirs and assigns, they are personal and will not run with the land, but that, if in such a case it appears that it was the intention of the grantors that the restrictions were part of a uniform general scheme or plan of development and use which should affect the land granted and the land retained alike, they may be enforced in equity; that covenants creating restrictions are to be construed strictly in favor of the freedom of the land, and against the person in whose favor they are made; and that the burden is upon one seeking to enforce such restrictions where they are not specifically expressed in a deed to show by clear and satisfactory proof that the common grantor intended that they should affect the land retained as a part of a uniform general scheme of development. Steuart Transp. Co. v. Ashe, 269 Md. 74, 88 , 304 A.2d 788 (1973) (citing “Judge Offutt, for the Court, in McKenrick v. Savings Bank of Balt., 174 Md. 118 , 197 A. 580 (1938), [who] comprehensively reviewed the prior Maryland cases on this subject, beginning with Thruston v. Minke, 32 Md. 487 (1870)”); Turner, 206 Md. at 345-46 , 111 A.2d 855 .

The Steuart Court further quoted Judge Offutt that “ ‘The important point decided in Lowes v. Carter, 124 Md. 678 , 93 A. 216 [1915], was that recordation of a deed subjecting land to restrictions afforded constructive notice thereof to all persons dealing with the property, and that such notice was sufficient to charge such persons with liability in respect to the restrictive covenants.’ ” Steuart Transp. Co., 269 Md. at 88-89 , 304 A.2d 788 (emphasis added). ⁴² Whether a uniform scheme was intended to be established is a matter of the parties’ intentions. Id. at 89 , 304 A.2d 788 . “This intention may be ‘indicated in many ways’ and the “whole question becomes a question of fact to be determined from all the circumstances in the case.’ ” Id. (citation omitted).

The grants in the deeds of appellants did not restrict the Community Land or Community Lot; they granted access to the realty and to riparian rights. Thus, they are easements appurtenant and run with the land. Greenwalt v. McCardell, 178 Md. 132, 136 , 12 A.2d 522 (1940). It is well established that whenever it appears from a fair construction of a deed that it was the purpose of the parties to create or reserve an easement in the property conveyed for the benefit of other land owned by the grantor, regardless of the form in which the purpose may have been expressed, such a right is deemed to be appurtenant to the land of the grantor and binding on that conveyed to the grantee; and the right thus created or reserved will pass to all subsequent owners of the land to which it is appurtenant.

Id. at 136-37 , 12 A.2d 522 (holding that “[e]ven though a tract of land may be described by metes and bounds, easements appurtenant thereto nevertheless pass with the conveyance in favor of the dominant estate”). An easement within the chain of title of the dominant estate is enforceable against the servient estate even though it was not recorded within the chain of title of the servient estate. Beins v. Oden, 155 Md.App. 237, 243 , 843 A.2d 147 (2004) (stating that, although harsh, a person is bound by whatever express encumbrance could be found in the grantor-grantee index). The original grantors of The Pines were the Turners.

The Severn River Co. was an entity of which Mr. Turner was president. The deed created by the Turners that conveyed The Pines to the company of which Leonidas was the president, and the plats accompanying that conveyance, clearly establish a waterfront community. Both plats show Community Land and Community Lot. The deed to the Severn River Co. clearly grants all the Community Land and Community Lot, together with riparian rights, “piers and appurtenances ⁴³ and advantages to the same belonging or in anywise appertaining. ...” Whereas the deeds to individual lot owners provided them use in common of roads and the “Community Lot on said Plat and all water and riparian rights incident thereto.” Thus, the deeds granted the use in common of riparian rights.

We hold that those terms are clear and unambiguous. The deeds establishing easements for the lot owners’ use of Community Land in The Pines and their riparian rights are in common with others, not separate and exclusive. The term riparian landowners has been defined “as one who owns land bordering upon, bounded by, fronting upon, abutting or adjacent and contiguous to and in contact with a body of water, such as a river, bay, or running stream.” See, e.g. Conrad/Dommel, LLC v. West Dev.

Co., 149 Md.App. 239, 268 , 815 A.2d 828 (2003) (citations and quotations omitted); Kirby v. Hook, 347 Md. 380, 389 , 701 A.2d 397 (1997); Gregg Neck Yacht Club, Inc., 137 Md.App. at 764 , 769 A.2d 982 ; Gwynn, 122 Md.App. at 497 , 712 A.2d 1072 . Those who have riparian rights can build piers, wharves, and like structures that connect to the waterfront land and extend out into the water. Gwynn , 122 Md App. at 497-98, 712 A.2d 1072 . Maryland Code Annotated, Environment Article § 16-201 11 provides: A person who is the owner of land bounding on navigable water is entitled to any natural accretion to the person’s land, to reclaim fast land lost by erosion or avulsion during the person’s 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 person against erosion. After an improvement has been constructed, the improvement is the property of the owner of the land to which the improvement is attached. A right ⁴⁴ covered in this subtitle does not preclude the owner from developing any other use approved by the Board. The right to reclaim lost fast land relates only to fast land lost after January 1, 1972, and the burden of proof that the loss occurred after this date is on the owner of the land.

(b) The rights of any person, as defined in this subtitle, which existed prior to July 1, 1973 in relation to natural accretion of land are deemed to have continued to be in existence subsequent to July 1,1973 to July 1,1978. (Emphasis added.) In City of Balt. v. St. Agnes Hosp. of City of Balt., 48 Md. 419, 422 (1878), the Court of Appeals held that when the City of Baltimore entered upon the land of St. Agnes Hospital and built a pier without consent or permission, that “such improvements must be declared to belong to the riparian owner, in front of whose lot they are made.” In Gwynn , we addressed for the first time in Maryland whether the grant of an easement for ingress and egress established the right to construct a pier or dock and held that it did not. Gwynn, 122 Md.App. at 500 , 712 A.2d 1072 . In considering a deed granting right-of-way to a body of water, the court must undertake a two-part analysis to determine whether the grantor intended to allow the grantee the right to construct a pier or dock.

First, the court must examine the deed alone to determine whether, on its face, it grants or denies the riparian rights. If the deed itself contains an express grant or denial of that intent, the language of the deed controls. Buckler v. Davis Sand and Gravel Corp., 221 Md. 532 , 158 A.2d 319 (1960) (when a deed is clear upon its face, construction of the deed must come from the four corners of the instrument alone). If, however, the deed is ambiguous as to the intent of the grantor, the court must undertake the second part of the analysis and may consider parol or other extrinsic evidence to discover the grantor’s intent.

See Watson v. Raley, 250 Md. 266, 268-69 , 242 A.2d 488, 489-90 (1968). ⁴⁵ Id. at 500 , 712 A.2d 1072 . Thus, if the deed itself contains an express grant or denial of riparian rights, the deed’s language controls. Gregg Neck Yacht Club, Inc., 137 Md.App. at 765 , 769 A.2d 982 . The grant of riparian rights to appellants in the deeds are express and interpretation is, thus, controlled by the language of the deed.

See Gwynn citing Buckler, supra. No extrinsic evidence is required to interpret its meaning. The piers built by appellants’ predecessors in interest became the property of the riparian owner. St. Agnes, 48 Md. at 422 .

The grant of riparian rights to the lot owners does not equate to the ownership of riparian land. Gwynn, 122 Md.App. at 498 , 712 A.2d 1072 (granting of an easement does not necessarily make the grantee of the easement a riparian owner) (citation omitted). Appellants emphasize that neither they nor their predecessors ever asked the PCIA for support or permission in their building and maintenance of piers. Appellants did not need permission as they were expressly granted an easement that included riparian rights in common with other lot owners in the deeds to their lots.

The deed between the Turners and the Severn River Co. was unambiguous in its grant of the Community Land and Community Lot. Thus, ownership of the piers was vested in the riparian owner at the time of each pier’s construction and passed through title. The PCIA became owner of the riparian lands and, thus, the piers in 1966. No appellants own piers through conveyance of deeds or by the scheme originally filed by the Turners.

II

EASEMENT / ADVERSE POSSESSION / ESTOPPEL A. Easement Claims Appellants claim an easement to use Community ⁴⁶ Land and the piers 12 and, as discussed swpra, we agree. “An easement is ‘a nonpossessory interest in the real property of another.’ ” Jurgensen v. New Phoenix Atlantic Condominium Council of Unit Owners, 380 Md. 106, 122-23 , 843 A.2d 865 (2004) (citing, e.g., Boucher v. Boyer, 301 Md. 679, 688 , 484 A.2d 630 (1984)). Easements are created expressly or arise by implication. Jurgensen, 380 Md. at 123 , 843 A.2d 865 . An implied easement can be created by reference to a plat.

Boucher, 301 Md. at 688-89 , 484 A.2d 630 . Prescriptive easements mirror adverse possession, discussed infra, and arise by implication when one party makes adverse, exclusive and uninterrupted use of the real property of another for twenty years. Id. See, e.g., Kirby, supra.

Exclusivity in a claim for prescriptive easement differs from that in adverse possession in that the exclusivity need not be absolute in use. Rather, it need only be a claim of right independent of all other users and not dependent upon a similar use in others. Zimmerman v. Summers, 24 Md.App. 100, 107 , 330 A.2d 722 (1975). Adverse use means that the party uses the real property without permission or license.

Jurgensen, 380 Md. at 123 , 843 A.2d 865 (emphasis added). As a general rule, permissive use of real property cannot ripen into a prescriptive easement. Id. (quoting Kirby, 347 Md. at 393 , 701 A.2d 397 ).

The riparian rights of lot owners which include the right to build piers, was an express permissive grant in their respective deeds. We disagree with the rulings of the trial courts below that a cotenancy was established because “[a] tenancy in common is a relationship among owners of property. It is created where several persons concurrently hold an estate in land by several and distinct titles with only a unity of possession.” Beesley v. Hanish, 70 Md.App. 482, 490 , 521 A.2d 1235 (1987). Further, “[t]enants in common are equally ⁴⁷ entitled to the use, benefit and possession of the whole common property, provided they do not interfere with the rights of their co-tenants to do the same.” Id. at 492 , 521 A.2d 1235 (citations omitted).

In the case sub judice, there is no co-ownership of the Community Land or Community Lot. The PCIA owns the Community Land and Community Lot it obtained by deeds in 1928 and 1966. The PCIA owns lot 406 and title to the Community Land and Community Lot by virtue of these deeds. Appellants own their respective lots and have an express easement both over the Community Land and to riparian rights.

Beginning with the 1982 decision of the Circuit Court for Anne Arundel County, cotenancy has been addressed in the Circuit Court’s description of the grant of use in common and riparian rights to lot owners. We disagree that the express easements of appellants’ deeds granted an ownership interest in the riparian lands. “[A] mere easement is not a possessory interest.” Windsor Resort, Inc. v. Ocean City, 71 Md.App. 476, 485 , 526 A.2d 102 (1987). Moreover, the permissive grant of riparian rights did not grant an ownership interest in subsequently constructed piers. The circuit court in PCIA v. Garman opined “that while there is no proof regarding the value of Defendants’ efforts in repairing the pier, they are entitled to some compensation.

Generally, one cotenant is entitled to contribution from other cotenants for repairs and improvements to property held jointly.” (Citations omitted). Thus, the court and subsequent parties have addressed ouster of one cotenant and based claims of adverse possession and prescriptive easement on that legal theory. As we hold that there has been no cotenancy established, we do not address ouster, and turn our attention instead to the easements granted to lot owners. Unexplained exclusive use for the statutory period shifts the burden to the landowner to prove that the use was permissive.

Zimmerman, 24 Md.App. at 111 , 330 A.2d 722 . Access to and riparian rights incident to the Community Land and Community Lot were granted permissively in the deeds ⁴⁸ and plats filed in the 1920’s. Thus, there can be no ripening of a prescriptive easement where permission to access the Community Land and Community Lot was granted along with permission to build piers as part of the sharing of riparian rights with other title owners to the land. See Zimmerman, supra.

Substantial evidence before the trial court supported such a finding and we do not disturb it. B. Adverse Possession Claims Regardless of ownership of the Community Land and the interpretation of the deeds, the parties contest control and ownership of piers and riparian land in the community development. Several appellants claim either adverse possession of the Community Land and/or the piers that abut the Community Land immediately adjacent to lots purchased within The Pines. To prove a claim for adverse possession in Maryland, a claimant must establish that he or she was in possession of the claimed property for the statutory period of twenty years.

Md.Code Ann., Cts. & Jud. Proc. § 5-103(a); 13 Costello v. Staubitz, 300 Md. 60, 67 , 475 A.2d 1185 (1984), on remand, Peters v. Staubitz, 64 Md.App. 639 , 498 A.2d 661 (1985). Such “possession must be actual, open, notorious, exclusive, hostile, under claim of title or ownership, and continuous or uninterrupted.” Id. (citations omitted).

The claimant bears the burden of proof as to adverse possession. Porter v. Schaffer, 126 Md.App. 237, 276 , 728 A.2d 755 (1999). If the statutory time is not met by one adverse possessor successor, possessions under color of title can tack the statutory time as between adverse possessors. Kirby, 347 Md. at 395 , 701 A.2d 397 ; see also Clayton v. Jensen, 240 Md. 337, 345 , 214 A.2d 154 (1965).

Generally, the rule is “that possession cannot be tacked to make out title by prescription where the deed by which the last occupant claims title does ⁴⁹ not include the land in dispute.” Sacks & Sons v. Ward, 182 Md. 385, 394-95 , 35 A.2d 161 (1943). An exception to this general rule has been recognized in that “two possessions will be tacked if it appears that the adverse possessor actually turned over possession of that part as well as of that portion of the land expressly included in his deed.” Freed v. Cloverlea Citizens Ass’n, Inc., 246 Md. 288, 304 , 228 A.2d 421 (1967). All of the elements for adverse possession must be met for the statutory period and the defeat of any one element will defeat any subsequent claim of adverse possession. Hungerford v. Hungerford, 234 Md. 338, 340 , 199 A.2d 209 (1964); see also Gee v. Ghee, 194 Md. 328, 332 , 70 A.2d 810 (1950) (The original possession was permissive and, thus, was not adverse).

The burden shifts to a landowner to show that open, continuous, uninterrupted use for the statutory period that is unexplained was permissive. Wash. Land Co. v. Potomac Ridge Dev. Corp., 137 Md.App. 33, 58 , 767 A.2d 891 (2001) (adverse use is use without license or permission).

One who continuously asserts ownership for the statutory period would not be required to surrender the title by adverse possession merely because his possession was by mistake. Costello, 300 Md. at 71 , 475 A.2d 1185 (discussing the modern view that adverse possession can be by mistake). The hostility that is essential does not rely on ill will or enmity, “but rather that the claimant’s possession be unaccompanied by any recognition, express or inferable from the circumstances, of the real owner’s right to the land.” Hungerford, 234 Md. at 340 , 199 A.2d 209 (emphasis added). The use of the piers in the instant case is permissive as granted to all lot holders in their express easements, discussed supra.

Pier 1 — Rice Though the Rices do not claim adverse possession of the pier adjacent to their lot, they do claim adverse possession to Community Land and a structure that was built upon it. All ⁵⁰ of the diagrams presented at trial show some intrusion onto the Community Land and appellants contend that the trial court did not consider or address issues related to what was termed the “Rice Triangle,” only Pier 1. Thus, the trial court’s failure to make any findings of fact or conclusion of law regarding Counts III and IV of their complaint requires a remand to determine the ownership of the area bounded by the retaining wall, including the septic system. The presumption that trial judges know