White v. Pines Community Improvement Ass'n

CATHELL, J. More than a hundred and thirty years ago we described the common law of riparian rights in B. & O.R.R. Co. v. Chase, 43 Md. 23, 34-36 (1875). There we said: “By the common law it is well settled, that where land lies adjacent or contiguous to a navigable river, in which there is an ebb and flow of the tide, any increase of soil formed by the gradual and imperceptible recession of the waters, or any gain by the gradual and imperceptible formation of what is called alluvion, from the action of the water in washing it against the fast land of the shore, and there becoming fixed as part of the land itself, shall belong to the proprietor of the adjacent or contiguous land.” 2 Bl. Com. 261; Giraud v. Hughes, 1 G. & J. 249 . And the right to accretion, thus formed, is considered as an interest appurtenant to the principal land, and belonging, in the nature of an incident, to the ownership of that, rather than as something acquired by prescription or possession, in the ordinary legal sense of those terms.

And in addition to this right by reliction or accretion, the riparian proprietor, whose land is bounded by a navigable river, whether his title extends beyond the dry land or not,[ 1 ] has the right of access to the ¹⁷ navigable part of the river from the front of his lot, and the right to make a landing, wharf or pier for his own use, or for the use of the public, subject to such general rules and regulations as the Legislature may think proper to prescribe for the protection of the rights of the public, whatever those rights may be. This is well established doctrine by both Federal and State courts. “These riparian rights, founded on the common law, are property, and are valuable, and while they must be enjoyed in due subjection to the rights of the public, they cannot be arbitrarily or capriciously destroyed or impaired. They are rights of which, when once vested, the owner can only be deprived in accordance with the law of the land, and, if necessary that they be taken for public use, upon due compensation.... But these principles of the common law, governing the rights of the riparian owner, however well established, are subject to change and modification by the statute law of the State, and by the nature and circumstances of the grant by which the title may have been acquired to the land bounding on the river.” (Some citations omitted.) (Some emphasis added.) ¹⁸ Almost a hundred years later, in Bd. of Public Works v. Larmar Corp., 262 Md. 24, 37 , 277 A.2d 427 (1971), we restated the common law of riparian rights, adding, in part: “In assessing the changes that have occurred in riparian rights down the corridor of years it is well to keep in mind an appreciation for the basic rationale behind the rule of law which gave to the riparian owner the rights to land surfacing through the process of apcretion or reliction.

In its nascency, the sole purpose of phe rule was to assure to the riparian owner that he would never be cut off from his access to water. If an intervening party were permitted to gain title to accretions or to lánd exposed by the subsidence of water, the riparian landovjner would be deprived of his valuable water-access rights.”! 2 (Emphasis added.) See also, Worton Creek Marina, LLC v. Claggett, 381 Md. 499, 509 , 850 A.2d 1169, 1174-75 (2004). While other doctrines (i.e., “ouster,” “adverse possession,” and “easements”) are presented by the parties in this case, the real fight, as it usually is in riparian rights issues, is over access to water and who has it. ¹⁹ This case requires this Court to consider the various property rights of a waterfront community, as between the individual landowners and the Pines Community Improvement Association, Inc. Two petitions and one cross-petition for writs of certiorari from the Court of Special Appeals’ decision have been granted. White v. The Pines, 399 Md. 595 , 925 A.2d 634 (2007).

The first petition, consisting of petitioners Stuart White, Sondra White, Gayle Clow, Gill & Associates, Allen Carey Garman, Steven G. Garman, Joseph Donahue and Cynthia Donahue 3 , all of whom were owners of individual lots that, but for a strip of community property separating their lots from the waters of Chase Creek, would have been waterfront properties which would have inherently had riparian rights. 4 Petitioner A presents the following questions: “1. When the Court of Special Appeals found that the use of certain piers began under an easement, and thus began as a permissive use, was the Court correct in rejecting the principle that an ouster could change the use from permissive to adverse, thus allowing adverse possession or a prescriptive easement to arise 20 years after the ouster? “2. When an easement to the water grants the easement holder the right to build a pier, and the easement holder does so, is the ownership of the pier vested in the easement holder by severance of the riparian rights under the easement, or in the land owner by Maryland Code, Environment Art., Section 16-201? ²⁰ “3. When a covenant or easement is placed in a chain of title to certain property by the developer to protect uses granted to others over that land, may a later owner of that land, or a court at that land owner’s request, ignore or treat the covenant or easement as meaningless?” The second petition for certiorari, filed by petitioners Douglas W. Johnston, Jr., William C. Simmons and Mary J. Simmons 5 , presents the following questions for our review: “I. DID THE COURT OF SPECIAL APPEALS FAIL AS A MATTER OF LAW TO CORRECTLY INTERPRET THE LANGUAGE OF A MORTGAGE, PLAT AND DEED GRANTING TO PETITIONERS RIGHTS TO THEIR RESPECTIVE PIERS FROM THEIR RESPECTIVE LOTS, ACROSS COMMUNITY LAND, AND OVER THE WATERS OF CHASE CREEK AND INSTEAD AWARDING TO THE PINES COMMUNITY IMPROVEMENT ASSOCIATION, INC.

A USE IN COMMON TO THOSE PIERS? “II. DID THE COURT OF SPECIAL APPEALS ERR IN AFFIRMING THE DECISION OF THE CIRCUIT COURT WITH RESPECT TO THE PETITIONERS’ CLAIMS OF OUSTER OF THE PINES COMMUNITY IMPROVEMENT ASSOCIATION, INC. FROM THE FEE SIMPLE OWNERSHIP OF THE COMMUNITY LAND ADJACENTTO THEIR RESPECTIVE PROPERTIES AND ADVERSE POSSESSION OF THAT COMMUNITY LAND? “HI. DID THE COURT OF SPECIAL APPEALS ERR IN DETERMINING THAT THE PINES COMMUNITY IMPROVEMENT ASSOCIATION WAS ENTITLED TO JOINT USE OF THE PRIVATE PIERS ADJACENT TO THE PETITIONERS’ RESPECTIVE LOTS AS A RIPARIAN OWNER WHEN THE PRIVATE PIERS ORIGINATED ON THE PRIVATE LOTS OF THE PETITIONERS, CROSSED OVER ‘USE IN COMMON’ ²¹ COMMUNITY LAND, AND EXTENDING OVER THE WATERS OF CHASE CREEK?” (Bolding in original.) Finally, the Pines Community Improvement Association, Inc., (“respondent/cross-petitioner”) presents the following questions for our review: “1.

Did the Court of Special Appeals err in failing to uphold the Trial Court’s decision establishing a system that provided for the common use of piers attached to Community Lands even though the Court of Special Appeals recognized that the PCIA and all other property owners in the Pines community have the ‘right to build and enjoy piers in common with all other lot owners’? “2. Did the Court of Special Appeals err in reversing the Trial Court’s award of damages in amounts equal to the rental value of pier slips where certain property owners excluded the PCIA and other lot owners from the ‘use in common’ of these slips?” We affirm, in part, the judgment of the Court of Special Appeals, and hold that the lot owners in this case have only easements in common with all other like lot owners in the community to riparian rights, that PCIA is the owner of all portions of the piers adjacent to the Community Lands and Community Lot that are situate over or that abut channelward from Community Lands or the Community Lot, and that consequently, such piers are equally available to all lot owners in common with all other lot owners, including PCIA, with such availability limited to access from Community Land or the Community Lot. For the reasons stated infra, we shall vacate that part of the trial court’s order that conferred upon the PCIA express management authority over those piers not situate adjacent to the Community Lot. 6 We further hold that the Court of Special Appeals was correct in reversing the ²² decision of the trial court awarding damages equal to the amount of the past rental value of the pier slips. I. Facts The facts and procedural history, as found by the trial court, indicate that the development process began in 1922.

At that time, a Plat was recorded in the Land Records of Anne Arundel County by a Mr. Leonidas Turner, then a principal of The Severn River Company, and his wife, Amelia A. Turner. They evidently intended to create a new residential community to be known as “Pines-on-the-Severn” (“the Pines”) wherein some access to the waterfront for all Pines’ residents would be an important feature. To that end, they created via that Plat a ring of land between Chase Creek and lots near the water, which was referred to as “Community Land”. A second Plat was recorded in 1924.

That had the effect of expanding the community property to the entire waterfront of the Pines. In 1926, The Severn River Company was evidently succeeded by The Pines Company. The relevant grant to that entity included: “[a]ll 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 the said The Severn River Company heretofore executed and recorded.” 7 Later, in 1926, the Pines Community Improvement Association, Inc. (“PCIA”) was formed by incorporation, as noted in the joint stipulation of facts in the Circuit Court. According to its Certificate of Incorporation, the PCIA’s function was: ²³ “To 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.” The joint stipulation of facts informs us that membership in PCIA is voluntary and at the time of this litigation, consisted of approximately 114 lot owners, including at least some of the petitioners. 8 Also in 1926, The Pines Company (as indicated above, the apparent successor to The Severn Company) conveyed to PCIA a deed granting it a waterfront lot as shown on the 1922 Plat, which became known as the “Community Lot.” 9 That conveyance also included the “use in common language,” and was granted subject to covenants contained in the habendum clause, which stated in relevant part: “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 Leon[id]as G. Turner, 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. “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 ²⁴ amount of the cost of maintaining the roads, included in the area of the Pines-on-Severn, for the total square feet in said lots said proportionate amount not to exceed, however, 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 hereto, 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[J, 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.” 10 In 1928, what became known as the Machen mortgage was executed between The Pines Company as mortgagors and Mary G. Machen as mortgagee.

It encumbered the title to the remaining lots in The Pines, including any Pines Company community property, to Mary G. Machen, in exchange for $35,000 to the The Pines Company. That mortgage included the following descriptive language: “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----” Upon default and foreclosure of the Machen Mortgage in 1932, Pines-on-the-Severn, Inc. ac ²⁵ quired title and assumed the mantle of developer through 1958. During that time period, conveyances from Pines-on-the-Severn, Inc. included similar “use in common language” as contained in the prior deeds from the original developer. In 1952, the remaining lots, including community property, were conveyed from Pines-on-the-Severn to the Pumphreys and the Obrechts.

The conveyance was: “subject, however, to the rights of owners of property in the development to the areas designated as ‘Community Land’ and ‘Community Lot.’ ” In 1962, Chas H. Steffey, Inc. obtained all remaining lots and in turn conveyed them to White Acre, Inc. In 1966, White Acre conveyed its interest in the community property to PCIA in fee simple, and made the conveyance “subject to such rights and privileges [whatever they might have been] 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.” Over the course of time, several lot owners built piers adjacent to their respective properties that traverse and/or abut the creek side of the community land as shown on the 1920’s plats. Conversely, during that same period, PCIA undertook particular acts that asserted its ownership of the property at issue, including community walks 11 and it adopted a pier management plan in September 2003. 12 ²⁶ In December 2003, certain of the petitioners filed a complaint in the Circuit Court for Anne Arundel County seeking declaratory and equitable relief regarding certain piers near their homes extending across Community Land into the waters of Chase Creek. On January 20, 2004, PCIA answered the complaint and filed a motion to dismiss, alleging that the original petitioners had failed to join the necessary parties, which was denied April 16, 2004. On June 13, 2004, PCIA filed a counterclaim against the original petitioners, seeking damages for alleged violations of the slip assignment provisions of its bylaws.

The original petitioners answered and denied responsibility to PCIA for damages. On July 26, 2004, the Circuit Court granted a motion to intervene filed by Mary E. Gleaves and Karl Gleaves, who were also lot owners in Pines-on-the-Severn. The first stage of the trial was held on April 13 and 15, 2005, whereupon the Circuit Court concluded that full relief could not be afforded without providing all lot owners in Pines-On-The Severn an opportunity to intervene and be heard. On June 7, 2005, the Court entered a show cause order pursuant to Maryland Rule 2-211, sua sponte, and directed the parties to cause the order to be served upon all lot owners in Pines-on-the-Severn.

On July 8, 2005, PCIA filed a cross-claim against the owners of a number of lots whom they alleged to be similarly situated to the original petitioners, also seeking damages. In its cross-claim, PCIA asserted ownership of the community property and the right to control and regulate the use of the piers. Cross-defendants Mr. and Mrs. Gleaves answered and denied responsibility to PCIA for damages. Trial resumed on December 21, 2005.

On December 28, 2005, the Circuit Court for Anne Arundel County, by memorandum and order, ruled in favor of PCIA, ordering: ²⁷ “1. The Pines Community Improvement Association, Inc. holds fee simple title to the Community Land or Community Lot (‘Community Land’) shown on the 1922 and 1924 Plats of Pines-On-The-Severn recorded among the Land Records of Anne Arundel County. “2. The Pines Community Improvement Association, Inc. owns all improvements existing on the Community Land, including all piers, pilings, boathouses and steps leading to piers. “3. The claims of the Plaintiffs and Cross-Defendants that they have acquired title to portions of the Community Land, piers and boathouses extending from the Community Land, and, steps leading to piers existing on Community Land by adverse possession are denied. “4.

The claims of the Plaintiffs and Cross-Defendants that they have acquired a prescriptive easement for the exclusive use of portions of the Community Land, piers and boathouses extending from the Community Land, and steps leading to piers existing on Community Land by adverse possession are denied. “5. The claims of the Plaintiffs and Cross-Defendants that the Machen mortgage and subsequent deed grant them an interest in portions of the Community Land or piers and boathouses extending from the Community Land different than the interest enjoyed by all property owners in Pines-On-The-Severn are denied. “6. The Plaintiffs and Cross-Defendants are enjoined from claiming or asserting, in an action at law or otherwise, that they have any claim of ownership of, title to, prescriptive easement over, or exclusive right to use or control any portion of the Community Land and any improvement existing thereon or extending therefrom. “8. The Pines Community Improvement Association, Inc. is declared to have the right, power and authority to use, control, and regulate the use of the Community Land ²⁸ and all improvements.existing thereon, including the right (a) to assign boat slips at piers and boathouses extending from the Community Land (b) to charge fees for costs associated with the piers and boathouses and (c) to charge wet storage fees to boat owners that fail to comply with slip assignment regulations. “10.

Final judgments are entered against the Plaintiffs and Cross-Defendants for wet storage fees due and owing to The Pines Community Improvement Association, Inc. As follows: (a) Joseph and Cynthia Donahue, jointly and severally, in the amount of $1,080.00. (b) Douglas W. Johnston in the amount of $3,150.00. (c) Keith and Dee Lyon, jointly and severally, in the amount of $7,740.00. (d) Gayle Clow in the amount of $1,150.00 (e) Stuart P. White and Sondra R. White, jointly and severally, in the amount of $1,725.00.

(f) Allen L. Garman, Sr., Virginia E. Garman, Allen L. Garman, Jr., and Steven Garman, jointly and severally, in the amount of $14,430.00. (g) Michael and Jill Donnelly, jointly and severally, in the amount of $1,575.00. (h) Gill & Associates in the amount of $19,170.00.” A timely appeal 13 was noted to the Court of Special Appeals, which affirmed in part and reversed in part. It held, as relevant here: ²⁹ “The deeds in the instant appeal created a property right for all lot owners.

The express easements are for riparian rights and riparian rights include the right to wharf out. The PCIA has not constructed any piers and is the owner of the piers by virtue of its riparian land ownership. In more typical waterfront communities, easements created for lot owners are likely easements of use of piers and access to water. That is not the case in the matter under review because a grant of riparian rights without reservation includes the right to build piers as appellants did. “The parties, thus, are equally vested with the legal right to build and enjoy piers in common with all other lot owners.

The PCIA is both a lot owner in this context and the servient tenement. The inability of the parties to come to agreement on how to implement the shared rights of use and maintenance creates interference in the use and enjoyment of the easements for all parties. In the attempt to devise an equitable solution, the trial judge granted [exclusive] powers to the servient tenement. “The fees that the PCIA established are not appropriate maintenance fees under easement law, as delineated in Drolsum [v. Luzuriaga, 93 Md.App. 1, 17-18 , 611 A.2d 116 (1992)]. Fees based upon commercial usage and enforced for punitive purposes do not embody the legal principles of the easement law. “The PCIA may not charge fees for usage of an easement granted expressly to lot owners and neither may lot owners exclude the PCIA or other lot owners from usage of piers.

The issues before the Court allowed for determination of easement law application to a set of facts that do not lend themselves to the type of practical solution as decreed by the trial court. According legal effect, as we have accorded in this appeal, to the deeds and the express easements granted therein for riparian rights result in the only legally sound disposition. Were the PCIA both the owners of the riparian land and exclusive owners of the riparian rights incident thereto, an equitable solution similar to that pro ³⁰ posed by the trial court could allow for fees to maintain the easements of usage and access.” White v. Pines Community Improvement Ass’n, Inc., 173 Md.App. 13, 70-71 , 917 A.2d 1129, 1161-62 (2007). On April 19, 2007, petitioner A filed with this Court a petition for a writ of certiorari, and on April 20, 2007, petitioner B also petitioned this Court for a writ of certiorari. 14 On May 4, 2007, respondents filed a cross-petition, and both petitions and the cross-petition were granted on June 13, 2007.

II

Standard of Review Maryland Rule 8-131 governs the scope of appellate review. It states, in relevant part: “(c) 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.” We have held that: “When a matter is tried before the court without a jury the evidence must be viewed in the light most favorable to the party prevailing below....

We must also bear in mind ... that ‘the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.’ ... ‘Since the jury is free to believe only a portion of the evidence of each side the synthesis apparently accomplished by the jury is simply a manifestation of its obvious function[ ]’ is no less true when a judge is the trier of facts.” Clemson v. Butler Aviation-Friendship, Inc., 266 Md. 666, 671-72 , 296 A.2d 419, 422 (1972) (citations omitted). ³¹ We give no deference, however, to conclusions of law. “ ‘The deference shown to the trial court’s factual findings under the clearly erroneous standard does not, of course, apply to legal conclusions. When the trial court’s [decision] “involves an interpretation and application of Maryland statutory and case law, our Court must determine whether the lower court’s conclusions are legally correct----”’” YIVO Institute for Jewish Research v. Zaleski, 386 Md. 654, 662-63 , 874 A.2d 411, 415-16 (2005) (quoting Nesbit v. Government Employees Ins. Co., 382 Md. 65, 72 , 854 A.2d 879, 883 (2004)). The interpretation of mortgages, plats, deeds, easements and covenants has been held to be a question of law. “That, as a general rule, the construction or interpretation of all written instruments is a question of law for the court is a principle of law that does not admit of doubt.” Gordy v. Ocean Park, Inc., 218 Md. 52, 60 , 145 A.2d 273, 277 (1958) (citing Sperling v. Terry, 214 Md. 367, 370 , 135 A.2d 309, 311 (1957); Strickler Eng’g Corp. v. Seminar, 210 Md. 93, 100 , 122 A.2d 563, 568 (1956), Roberts v. Bonaparte, 73 Md. 191, 199 , 20 A. 918, 919 (1890); Hartsock v. Mort, 76 Md. 281, 291 , 25 A. 303, 305 (1892)).

III

Discussion Garfink v. Cloisters at Charles, Inc., 392 Md. 374, 392-93 , 897 A.2d 206, 216-17 (2006), offers clear instruction on the interpretation of instruments creating easements: “ ‘In construing the language of a deed, the basic principles of contract interpretation apply. The grant of an easement by deed is strictly construed.... The extent of an easement created by an express grant depends upon a proper construction of the conveyance by which the easement was created.... “The primary rule for the construction of contracts generally—and the rule is applicable to the construction of an easement—is that a court should ascertain and give effect to the intention of the parties at the time the contract was made, if that be possible.” ...’” ³² “A court construing an agreement under this test must first determine from the language of the agreement itself what a reasonable person in the position of the parties would have meant at the time it was effectuated. In addition, when the language of the contract is plain and unambiguous there is no room for construction, and a court must presume that the parties meant what they expressed.

In these circumstances, the true test of what is meant is not what the parties to the contract intend it to mean, but what a reasonable person in the position of the parties would have thought it meant. Consequently, the clear and unambiguous language of an agreement "will not give [way] to what the parties thought that the agreement meant or intended it to mean.” Garfink, 392 Md. at 392-93 , 897 A.2d at 216-17 . E.g., General Motors Acceptance Corp. v. Daniels, 303 Md. 254, 261 , 492 A.2d 1306, 1310 (1985); Bd. of Trustees of State Colleges v. Sherman, 280 Md. 373, 380 , 373 A.2d 626, 629 (1977); Billmyre v. Sacred Heart Hosp., 273 Md. 638, 642 , 331 A.2d 313, 316-17 (1975). As Judge Davis in his excellent discussion in the Court of Special Appeal’s opinion reasoned below: “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. “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 ³³ conveyed The Pines to the company of which Leon[id]as 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 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 the Community Land in The Pines and their riparian rights are in common with others, not separate and exclusive.” White, 173 Md.App. at 39-44 , 917 A.2d at 1144-46 . We agree with the Court of Special Appeals’ reasoning, finding that PCIA is the owner of the community property, and that the community property is subject to a common easement that allows PCIA and all of the individual lot owners a right to use the community property in common with each other. As the PCIA is the owner of the community property, it follows therefore, that it also normally would be the owners of the piers attached to that community property.

Maryland Code (1982, 2007 Repl.Vol.), § 16-201 of the Environment Article states, in relevant part: “[A] 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.” (Emphasis added.) With regard to the case at bar, the Court of Special Appeals went on to hold: ³⁴ “The grant of riparian rights to appellants in the deeds are express and interpretation is, thus, controlled by the language of'the deed____No extrinsic evidence is required to interpret its meaning. The piers built by appellants’ predecessors in interest became the property of the riparian owner.... The grant of riparian rights to the lot owners does not equate to the ownership of riparian land.” White v. Pines Community Improvement Ass’n, 173 Md.App. at 45 , 917 A.2d at 1147 .

As PCIA was the actual owner of the waterfront property, subject to an easement allowing all individual lot owners to exercise riparian rights in common with each other, there exists a presumption that the permissive use of the real property in common with all members of the community normally cannot ripen into a prescriptive easement. Kirby v. Hook, 347 Md. 380, 393 , 701 A.2d 397, 404 (1997) (citing Phillips v. Phillips, 215 Md. 28, 33 , 135 A.2d 849, 851 (1957)). Ouster The Court of Special Appeals did not reject the principle that an ouster could change the use from permissive to adverse, as implied by petitioner A in their first question. That Court simply did not address the issue of ouster because it found that a co-tenancy had not been established.

We disagree, in part, with the reasoning of the Court of Special Appeals on this issue. Co-tenancy is not required for an ouster to exist. See Potomac Lodge No. 31, I.O.O.F. v. Miller, 118 Md. 405, 415-16 , 84 A. 554, 558 (1912) (citing 1 Am. & Eng. Ency. of Law, 804.) (“ ‘The ouster by a tenant in common, of his co-tenant, does not differ in its nature from any other ouster, nor in any respect except in the degree of evidence required.’ ”) In cases where no co-tenancy exists, however, the criterion required for the showing of ouster is unclear.

We are offered one definition in the case of James Stewart’s Lessee v. Robert Jones, of George, 8 G. & J. 1, 17