Windsor Resort Inc. v. Mayor of Ocean City

⁴⁷⁹ BLOOM, Judge. The Mayor and City Council of Ocean City, Maryland, appellee, brought an action, sounding in trespass, ejectment and nuisance, against appellant, Windsor Resort, Inc. The City sought to require the removal of two buildings owned by Windsor from their location just east of the boardwalk, between South Division Street and South First Street in Ocean City. The City contends that the buildings constitute encroachments on and partial obstructions of public property, that is, a strip of land lying between the easternmost (beachfront) lots in Ocean City and the low water mark of the Atlantic Ocean, which is shown and delineated as “Atlantic Avenue” on plats recorded among the land records of Worcester County. The Circuit Court for Worcester County agreed with the City and ordered Windsor to remove the buildings, and Windsor appealed.

The critical issue is whether the City has any interest, superior to that of appellant, in the land upon which the Windsor buildings are erected. In its amended complaint, as well as in its presentation to the circuit court and its brief and argument before this Court, the City asserted that it is the “owner” of the land in question by virtue of “dedications” contained in (1) a deed and plat, dated July 28,1876, from Stephen Tabor to Hillary R. Pitts, et al., Trustees, and (2) a plat created by the Sinepuxent Beach Company, dated 1890, 1 and Chapter 209 of the Laws of Maryland, 1880, the Act incorporating the “Town of Ocean City.” The evidence in this case consisted of various documents, including those referred to above, testimony as to the ⁴⁸⁰ history of the buildings in question and actions of the City relating to them, and stipulations in the form of statements of historical facts by counsel for appellee and acceptance of those statements by counsel for appellant. From these documents and stipulated or otherwise undisputed facts in the record, we are able to construct the following history. The Windsor buildings are located on a small portion of a 280-acre tract conveyed by the State of Maryland to Stephen Tabor and Hepburn Benson in 1869.

Tabor later acquired Benson’s interest and then conveyed 50 acres to three individuals as trustees for the purpose of creating a summer resort town. Attached to that deed was a plat (hereinafter referred to as the “Tabor Plat”), which divided the 50-acre tract into lots and streets. All of the land — fast land, sand, beach, and shore — lying between the easternmost lots and the waters of the Atlantic Ocean was identified on that plat as “Atlantic Avenue.” The Tabor Plat shows Atlantic Avenue ending at the north and south boundaries of the tract conveyed to the trustees. By Chapter 209 of the Laws of 1880, the General Assembly incorporated the Town of Ocean City.

The Act described the boundaries of the town as encompassing the land lying between Sinepuxent Bay on the west and the Atlantic Ocean on the east, as far north as the northern border of the land conveyed by Tabor to the three trustees, and as far south as the southern border of a tract conveyed by Tabor to Granville Stokes in 1879. Although the parties did not introduce evidence that would place the location of the Stokes property, they agree that South Division Street, which is the southernmost line on the Tabor Plat, was the southern boundary of the original Town of Ocean City. The Act of 1880 did not refer directly to the Tabor Plat, but it did mention Atlantic Avenue, which at that time existed only on that plat. Subsequent to the incorporation of Ocean City, Tabor (and later his executors) disposed of the remaining portions of the original 280-acre tract.

Land south of the city limits and immediately west of the southerly extension of Atlantic ⁴⁸¹ Avenue, between South Division Street and what is now South First Street, was conveyed in seven 50-foot lots to six individuals and the Sinepuxent Beach Company. The parties stipulated that the deeds conveying those seven parcels identify the western edge of Atlantic Avenue as being the eastern boundary of the lots. 2 Sinepuxent Beach Company thereafter acquired the balance of Tabor’s remaining property holdings. In 1890, Sinepuxent Beach Company recorded a plat (hereinafter referred to as the “Sinepuxent Plat”) which covered not only its own property but also included all of the lots that Tabor had already conveyed away. It encompassed the entire area shown on the Tabor Plat and large areas of land between Sinepuxent Bay and Atlantic Ocean both north and south of the original boundaries of Ocean City.

The Sinepuxent Plat subdivided the entire area, from what is now Assateague Island 3 north to what is now 33rd Street, into lots, streets and alleys. Atlantic Avenue is shown on the Sinepuxent Plat as extending the entire length of the platted territory. During the period from 1891 to 1907, Margaret Trimper acquired the seven beachfront lots between South Division Street and South First Street. Sometime thereafter, but before 1916, Trimper and the other beachfront owners constructed a boardwalk — a pedestrian walkway — on the westernmost side of Atlantic Avenue, abutting their properties.

Around 1916, Trimper built two structures on Atlantic Avenue east of the boardwalk and across from her beachfront lots. Those buildings were used as an adjunct to commercial enterprises located on her property to the west of the boardwalk. Although built on pilings, those struc ⁴⁸² tures were periodically exposed to the surf 4 and had to undergo substantial reconstruction on a yearly basis. In 1934 the Army Corps of Engineers erected a jetty which eventually resulted in a gradual buildup of the beach around the Trimper buildings.

In 1936, Trimper’s devisees conveyed the beachfront lots to a family business, appellant, Windsor Resorts, Inc. Windsor continues to maintain the structures on the east side of the boardwalk and collect rent for their use. In 1965, Windsor’s tenant sought and received a building permit from the City of Ocean City to renovate the northern building. The following year, the City granted a permit for Windsor to reconstruct its southern building. Prior to granting that permit, however, the City requested Windsor to relocate the building several feet north and east, in order to accommodate the planned construction of a station for the City’s boardwalk train.

Windsor complied. Approximately $100,000 was spent in renovating and rebuilding the two structures. Beginning in 1966, Windsor began to pay property tax bills related to the two buildings at issue. Around that time, the City offered Windsor a license franchise to maintain its buildings in their present location within Atlantic Avenue.

Windsor declined the offer and continued to utilize the buildings without hindrance or objection for the next 18 years until, in 1984, the City chose to exercise what it claims to be its right to the land upon which the Windsor buildings lie. Windsor refused the City’s demand that it vacate the buildings and this action ensued. Appellant raises several issues of which we need only address two: I. Does the City possess fee title to Atlantic Avenue? ⁴⁸³ II. Did the City produce sufficient evidence to support a finding that it effectively accepted the dedication of the land on which the Windsor buildings stand?

Our answer to both questions is in the negative, thus we shall reverse the judgment of the court below. I Ocean City maintained in its brief and at argument that it is the owner in fee of Atlantic Avenue as a result of the dedication to a public use of that land, the inundation of Atlantic Avenue by the ocean after the storm of 1933, and the reclamation of Atlantic Avenue which allegedly resulted from the erection of a jetty by the U.S. Army Corps of Engineers. The first contention, that the City is the owner of the land in question by virtue of dedication, is patently erroneous. The interest that the public — or a governmental entity on behalf of the public — can acquire through dedication of a street or way (or a park or any other facility for public use) is an easement or right of user, not a fee.

The remaining bases for the City’s claim to ownership of Atlantic Avenue are equally flawed. The City seeks to invoke a modified version of the general principle that land inundated by mean high water reverts to state ownership. See Department of Natural Resources v. Mayor of Ocean City, 274 Md. 1, 14, 332 A.2d 630 (1975). The City maintains that because Tabor’s original grant from the state extended to the low water mark, all land inundated by low water reverts to the state, thus the City.

Consequently, it is argued that the land upon which the Windsor buildings stand became City property when the mean low water mark shifted west of the boardwalk as a result of the storm of 1933. We find it unnecessary to determine whether the rule of submergence should be altered to reflect the extent of Tabor’s original grant. That general rule applies only to instances of gradual erosion of fast land. Id. at 15 , 332 A.2d 630 .

That is not what occurred in this case. The undisputed testimony below was that the shoreline was ⁴⁸⁴ altered by storm. Such a sudden or violent change to the topography of the shoreline is an avulsion and has no effect on boundaries and ownership rights. 1 H. Farnham, Law of Waters and Water Rights, § 74 (1904); 78 Am.Jur.2d Waters, § 411 (1985). We reject for the same reason the contention by Windsor that it became the littoral owner in 1933, when the shoreline encroached upon its property located west of the boardwalk, and thus became entitled to the subsequent accretions.

The rule of submergence is inapplicable to this appeal. As another variation on the general law of water rights, the City asserts it acquired fee over Atlantic Avenue when the jetty erected by the U.S. Army Corps of Engineers caused Atlantic Avenue to be reclaimed from the ocean. In support of that contention, the City relies upon Carolina Beach Fishing Pier, Inc. v. Town of Carolina Beach, 277 N.C. 297 , 177 S.E.2d 513 (1970), in which it was held that land formed as a result of the erection of a seawall by the Corps of Engineers in Carolina Beach belonged