Showing posts with label riparian rights. Show all posts
Showing posts with label riparian rights. Show all posts

Wednesday, May 2, 2007

Gunby v. Olde Severna Park Improvements Association, Inc. (Ct. of Special Appeals)

Filed April 27, 2007. Opinion by Judge Ellen Hollander.

Upon consideration of a motion by the "substituted parties as successors in title" to the original plaintiff/appellant ("Gunby") for reconsideration of the opinion earlier filed in this case and discussed here, the Court granted the motion and revised the original opinion to clarify the disposition of the two actions consolidated for hearing, and made some minor corrections to the original opinion, without affecting the outcome of the case.

The revised opinion is available in PDF format.

Thursday, March 1, 2007

Gunby v. Olde Severna Park Improvements Association, Inc. (Ct. of Special Appeals)

Filed March 1, 2007. Opinion by Judge Ellen L. Hollander.

From the opinion's headnote:
HEADNOTE:

Paul Gunby, Jr., et al. v. Olde Severna Park Improvement Association, Inc., et al., No. 1180 and 1248, September Term, 2005

RIPARIAN RIGHTS; DEED; PLAT; SUBDIVISION; REAL PROPERTY § 2-101 --
Lot owner who acquired fee simple ownership of waterfront lot by deed presumptively acquired riparian rights. Note on Subdivision Plat was insufficient to constitute a reservation of all riparian rights in the development; that reservation applied to the roads and streets delineated on the plat leading to the water, and expressed the proposition that a right-of-way to the shore of a river does not create riparian rights.


An Anne Arundel County waterfront landowner ("Gunby") had requested and received a license from the Maryland Department of the Environment ("MDE") to construct a 410 walkway across a tidal pond and a 200 foot pier extending into the Severn River. The local community association ("OSPIA") and six residents of the Olde Severna Park community filed two suits, one seeking a declaration that the Gunby property did not have riparian rights, and the other seeking to invalidate the MDE-issued license. In considering cross motions for summary judgment, the judge below found that OSPIA and not Gunby had riparian rights, and thus MDE erred in issuing the license to Gunby.

The central issue on appeal was whether, by a hand-written note on a 1931 plat of the property which eventually became the Olde Severna Park community, the owner and developer of the property intended to sever the riparian rights from ownership of the land, eventually to be conveyed to OSPIA by quit-claim deed in 1977. That note read as follows (emphasis added):
It is the intention of the Severna Company not to dedicate to the public, the streets, alleys, roads, drives, and other passage ways and parks shown on this plat, except that the same may be used in common by lot owners and residents of Severna Park Plat 2. All riparian rights being retained by the said the Severna Company.

In 1963, the developer transferred all remaining portions of the tract, including the Gunby property, to Rossee, in a deed without any reference to or reservation of riparian rights, but with a reference to the earlier subdivision plat and calling to the waterfront. In 1972, Rossee subsequently conveyed to Jones by deed without reference to or reservation of riparian rights, and in 1991, Jones conveyed to Gunby in like fashion. Meanwhile, the developer conveyed all its remaining property rights to OSPIA, stating in part (emphasis added):
WHEREAS, The Severna Company now desires to convey the hereinafter described property and riparian rights thereto to the Anne Arundel County Planning And Zoning Officer, in trust, to be immediately conveyed to the Olde Severna Park Improvement Association, Inc., the community association representing the lot owners of Severna Park.

In the suits, the judge, faced with duelling opinions by title abstractors, found by a preponderance of evidence that the developer had intended to reserve riparian rights for the reciprocal use of the owners, and granted summary judgment in favor of OSPIA and against Gunby.

In a very lengthy opinion, with extensive quotations from the documents and testimony below, as well as the arguments of the parties and the decision below, Judge Hollander rebuffed Gunby's first challenge to the summary judgment granted below, noting that the parties had agreed that there was no dispute of any material fact below, and that the parties' dispute as to the developer's intent did not create one, so the matter could be resolved on the documents presented below.

The judge then turned to a consideration of whether the trial judge correctly applied the law to the uncontested facts, first noting that the presumption is that a conveyance of land bordering or calling to the waterfront does convey the riparian rights even without explicit grant, unless those rights were clearly reserved in the deed or had earlier been severed from the fee. Moreover, such reservations are narrowly construed.

After lengthy consideration of cases dealing with analogous situations, the judge found that the trial court had erred in interpreting the effect of the last sentence of the note on the 1931 plat, finding rather that the reservation of riparian rights in the note was intended to only apply to such rights appurtenant to the roads, alleys, streets and parks in the subdivision that had been dedicated, in the preceding sentences, to the use of the owners in the subdivision, and not riparian rights generally. Moreover, the simple reference to the plat in the Rossee deed was not sufficient to overcome the presumption in favor of conveyance of riparian rights, since such reservations are to be strictly construed against the grantor.

Since the judge found the trial court had erred in deciding Gunby did not have riparian rights, it found the trial court had also erred in deciding the MDE license was improperly granted. Consequently, the judge vacated the judgments below, and remanded the case for consideration of OSPIA's other statutory and regulatory challenges to the license, which in light of the riparian rights resolution below, had not yet been considered.

The opinion is available in PDF format.