Wicks v. Howard

Lowe, J., delivered the opinion of the Court. In Maryland, by common law rule, title to all navigable waters and to the soil below the mean high-water mark of those waters is vested in the State as successor to the Lord Proprietary who had received it by grant from the Crown; “and so it remains, unless it be included in some grant by the State, made prior to [March 3,] 1862”. Sollers v. Sollers, 77 Md. 148, 152 . See Hawkins Point Light-House Case, 39 F. 77 , 79-80 and Gould on Waters, §§ 32, 42 (3d ed. 1900).

Waters are deemed navigable for these purposes if, and only if, they are subject to the ebb and flow of tides. Browne v. Kennedy, 5 H. & J. 195 . This is still the law of Maryland, to the extent that it has not been modified or abrogated by statute. Van Ruymbeke v. Patapsco Ind.

Park, 261 Md. 470 ; cf. Wagner v. City of Baltimore, 210 Md. 615, 622, 624 . In the absence of specific statutory authority to the contrary, therefore, the right to extend permanent improvements into the waters in front of one’s land is not an inherent or common law riparian right. The inherent common law right is to the water’s use, and that, of course, presupposes the concomitant right of access. The right to extend improvements such as wharves and piers into the water is a statutory one, granted by the State as successor to the Lord Proprietary to enhance the right of riparian access to the waters.

The original grant of the right to make and hold title to improvements in the waters in front ¹³⁷ of one’s land gave title of such improvements, not necessarily to the adjacent landowner by virtue of his ownership, but rather to the “improvers, their heirs and assigns forever”, as “an encouragement for such improvers”. Ch. 9, Acts of 1745 (repealed 1860). Balt. & Ohio R. R. Co. v. Chase, 43 Md. 23, 32-33 . In 1862 the General Assembly enacted Ch. 129, because of the “Doubts entertained in regard to the extent of the rights of proprietors bounding on navigable waters____” The act subsequently codified as Md. Code, Art. 54, § 46 gave the “exclusive right” to make improvements into the waters in front of riparian land bounding on navigable waters to the “proprietor” of the land, and vested title to the improvements in the successive owners of the land as an incident of their ownership.

No vested title either to the improvement or to the use of the submerged land upon which it was erected — or might rest — accrued to the riparian owner until the improvements had actually been completed. Bd. of Pub. Works v. Larmar Corp., 262 Md. 24, 46 . Similar principles of right to improve and ownership were carried over in the Wetlands Act of 1970.

Md. Code, Nat. Res. Art., § 9-201 states in pertinent part that the owner of land bounding on navigable water "... may make improvements into the water in front of his land to preserve his access to the navigable water or protect his shore against erosion. After an improvement has been constructed, it is the property of the owner of the land to which it is attached.” There is no reason to believe that this restatement of the 1862 law carries with it any implication of such an interest vesting before an improvement is completed.

In the case at bar, the appellants prepared to assert their statutory right to erect a wharf or pier in front of their relatively recently purchased riparian property. They did not seek to construct a wharf perpendicular to their shoreline, nor ¹³⁸ even within the framework of an imaginary extension of their property lines into the water. They contend that their (statutory) right to extend improvements into the water so as to enhance their common law right of access carries with it an implied right to have the wharf extend in a straight line to the nearest point where it would meet the channel perpendicularly, notwithstanding that the wharf would not be perpendicular to their shoreline, but would create an angle nearer 45°. Appellants complain that since .1959 (16 years before appellants took title to their lot in May, 1975) appellee has “encroached” upon the waters appurtenant to their lot, derogating their recently acquired riparian right to make improvements, by virtue of a dog-leg shaped wharf jutting out from the shoreline.

Although constructed entirely in front of appellee’s own property (and within an imaginary extension of his boundary lines), it lay between appellants’ lot and the point on the river channel toward which they sought to aim their pier. Appellants would be unable to construct their wharf in a straight line for a sufficient distance to reach the channel without ramming appellee’s existing pier, because to reach the channel perpendicularly with a straight wharf from appellants’ lot, it must extend at an oblique angle with the shoreline, cross the imaginary extension of the boundary between the parties’ lands, and terminate at the channel directly in front of appellee’s land. As shown in the record with plats and other exhibits, the situation is something like this: [[Image here]] ¹³⁹ Claiming a right to so construct a wharf, they asked the Circuit Court for Cecil County to compel the removal of appellee’s pier or grant them money damages for having encroached upon their riparian “right”. The trial judge carefully set forth the evidence, his findings of fact and some of the guiding equitable principles persuasive to him in arriving at his conclusion.

Appellants pose four questions, three of which attack the sufficiency of the evidence, and another contending that the trial court erred “as a matter of law”. “I. Whether the judgment of the trial court is erroneous as a matter of law because the Court failed to apportion riparian rights in the river in proportion to the shorefront dimensions of the riparian tracts.

II

Whether the Trial Court’s judgment is clearly erroneous, unsupported by the evidence and arbitrary and capricious because: A. In determining Appellants’ riparian rights boundaries it unfairly took into consideration riparian rights areas properly appurtenant to other riparian tracts. B. It is based upon an erroneous and inequitable formula for apportioning riparian rights in the circumstances of this case.

III

Whether the findings of the Trial Court as to estoppel and implied consent are unsupported by the evidence, clearly erroneous and arbitrary and capricious.

IV

Whether the Trial Court’s findings as to comparative hardship are unsupported by the evidence, clearly erroneous and arbitrary and capricious.” Only if appellants could provide law holding that they have a right to construct a wharf in a direction from their land in ¹⁴⁰ such a way as to maximize their convenience in striking the channel perpendicularly, could we find error in the decision as a matter of law. But there is no such authority. That the trial judge was not persuaded by some evidence of appellants that such directions had been taken by others in the geographical vicinity does not constitute error as a matter of law. As noted, the applicable statute (which establishes the construction rights of appellants) is in fact simply a legislative attempt to guarantee each riparian owner his well established common law right of access to navigable waters by granting to him the exclusive privilege of making improvements in State-owned waters abutting his property.

It need hardly be noted that geographic variables preclude complete equality of access on a formula basis. The nature of the right is such that the landowner is protected against encroachments on this right of some access; but until the right is exercised, and the improvements actually completed, he has no vested interest in any particular imagined, proposed, or even partially finished construction project. Williams v. Skyline Dev. Corp., 265 Md. 130, 155 ; Bd. of Pub.

Works v. Larmar Corp., supra, at 44-50. There is no rigid method of apportioning the statutory riparian rights to construct improvements, the governing principle being merely that the division must be equitable, not necessarily equal. See Anno., Riparian Owners — Boundaries, 65 A.L.R.2d 143 , 153, et seq., and cases cited therein. While it may be true that some courts in some cases have fashioned the remedy urged upon us by appellants (which cases, we note, have been few and far between), no court has ever held that such a method should always be applied as a matter of law.

We unhesitatingly decline to be the first. In response to questions II, III and IV, we find sufficient evidence in the record, or inferences legitimately drawable therefrom, to have permitted the chancellor to reach the conclusions he set forth. It is his judgment from which this appeal was taken (not his opinion) and we are convinced that his judgment was correct. We are additionally convinced that the factors he considered were proper under the circumstances, and that the result reached was eminently ¹⁴¹ fair.

As we are in accord with all of the reasons he ascribed, in affirming his judgments, we adopt his opinion as our own. A copy is appended herewith. Judgment affirmed. Costs to be paid by appellants.

APPENDIX “MEMORANDUM OPINION AND ORDER This is a suit instituted by Complainants for injunctive relief or, in the alternative, damages, involving the erection and use of a dock or pier by Respondent, which facility is claimed to cross Complainants’ lot, thus blocking, obstructing and denying them of their riparian rights to the Sassafras River. The bill seeks: (1) An injunction against Respondent requiring him to remove the docks which are allegedly obstructing and denying Complainants of their riparian rights; or (2) damages to Complainants for wrongful acts committed by Respondent; and (3) for such other and further relief as the case may require. The following material facts have been established by a preponderance of the evidence, in the opinion of this Court: That the parties hereto are abutting property owners. Respondent is the owner of the marina and restaurant known as The Granary.

Respondent described his shoreline property as being 455 feet in length. Complainants’ abutting property is on the down-river or westerly side of the Granary property and measures 158 feet, more or less, along the river. Respondent Howard had obtained permission in 1959 from the Corps of Engineers to build the now-disputed pier. Limitations were placed on Respondent’s right to construct the pier in such manner as not to injure any private property or invade any private rights, or to infringe on any Federal, State or local laws or regulations.

Complainants acquired their property in October 1974 from Karl and Olga Savard. The Savards were abroad when the pier permit was granted ¹⁴² and did not return until November, when the construction of the pier was under way. It is also found as a fact that Complainants own the adjoining marina known as Duffy Creek Marina; that they purchased it in 1974; that this marina now has some 132-133 rental slips (according to the testimony of Mrs. Wicks on cross-examination at the trial); that one lot owned by the parents of Mrs. Wicks separates their residential property from their marina property; that they rent this property from her parents, the Eldridges; that the Eldridges built the marina in 1956 or 1957; that Duffy Creek where the marina is now located was not navigable in 1952; that it has been made navigable by the former owners of the marina, the Eldridges, and now the Complainants, the Wicks; that there has also been considerable bulkheading to prevent erosion and to provide more slips and space for rent for boats in that area; that there had been a bar on the mouth of Duffy Creek which had been dredged to the east so boats could come in and out without the problem of striking bottom; that the Duffy Creek channel does fill in in winter and has to be dredged out from time to time; that the traffic has increased in the Granary area of Respondent due to activity at Duffy Creek Marina. Mr. C. R. Webb, a land surveyor and graduate civil engineer, was called as Complainants’ first witness.

He testified as an expert. That his plat was introduced in evidence as Complainants’ Exhibit #7; that this plat clearly shows the location of the properties involved as well as the approximate channel in the Sassafras River and the depth of waters off the respective properties; that the channel is wide and follows an irregular course; that this Court finds as a fact that there is navigable water in front of Complainants’ property. Mary Ross Eldridge was called upon to testify for Complainants. She is the mother of Complainant Carol E. Wicks.

She stated that she developed the marina and dredged out the channel; that at one point a storm wiped out their slips in one area; that the sandspit on the property accreted toward the Granary dock. Complainants also called as witnesses Mrs. Wicks’ father, Capt. Edward F. Eldridge, and Capt. Lewis G. Salomon.

Capt. ¹⁴³ Eldridge testified on cross-examination that he started Duffy Creek Marina and that the marina has slips all up past his property next to his daughter’s property; that when he took over where the marina is now located in 1958 it was marsh and he dredged out the creek, an area 300 by 30 feet, with a dragline; that Capt. Eldridge had been a licensed pilot on local waters since 1957 for 40-ton vessels; that there used to be an old derelict schooner back of a sand bar on Duffy Creek property; that Duffy Creek is navigable because it is dredged to six (6) feet; that one has to go 125 feet off the Wicks property before reaching twelve (12) feet of water. Capt. Salomon testified as an expert, captain of boats, navigator and compass adjuster; that he was to locate the Sassafras River channel and locate from the channel area to the dividing line of Wicks and Howard properties and the riparian rights of Complainants; and that he proceeded to do so in the manner testified to and found the Howard pier trespassing over the riparian rights of the Wicks property.

Carol E. Wicks, one of the Complainants, testified that she and her husband own the Duffy Creek Marina. They purchased it in September 1974 from the Eldridges; that two or three months after purchasing the property they decided they wanted a private dock for their boat, a workboat type which they now keep in the marina; that they sought the help and advice of a surveyor as to the