Olde Severna Park Improvement Ass'n v. Gunby

936 A.2d 365, 402 Md. 317, 2007 Md. LEXIS 720
CourtCourt of Appeals of Maryland
DecidedDecember 3, 2007
Docket37, Sept. Term, 2007
StatusPublished
Cited by29 cases

This text of 936 A.2d 365 (Olde Severna Park Improvement Ass'n v. Gunby) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Olde Severna Park Improvement Ass'n v. Gunby, 936 A.2d 365, 402 Md. 317, 2007 Md. LEXIS 720 (Md. 2007).

Opinion

CATHELL, J.

This case requires us to consider whether a deed, which incorporates by reference a Plat recorded in 1931, should be strictly construed against the severance of riparian rights. We shall hold that the 1931 Plat specifically reserved to the Developer riparian rights in order that the notation of certain areas on the plat that appeared to be waterfront property would not be considered an offer to dedicate such areas to the local governing authority, but that when the Developer subsequently conveyed waterfront land recorded on that Plat in fee *321 simple to an individual owner, the riparian rights were conveyed with the waterfront property and consequently were severed from the Developer at the time of that conveyance.

In 1931, the Severna Company subdivided a tract of land owned by it in fee simple, and recorded a Plat displaying the subdivision in the Land of Records in Anne Arundel County. In 1963, the Severna Company conveyed to a Mr. Christian E. Rossee, in fee simple, waterfront property that included the riparian rights at issue in this case. In 1972, Mr. Rossee conveyed .70 acres of waterfront property to Mr. John M. Jones and his wife, Carol R. Jones. The Joneses in turn conveyed that waterfront property, along with a landlocked parcel of land, to Paul Gunby and his wife, Joan Gunby in 1991.

In July 2004, the Maryland Department of the Environment (“MDE”) issued a license to Paul Gunby (“respondents”) 1 to construct a foot bridge and pier across a tidal pond that bisected his property. On September 2, 2004, the Olde Severna Park Improvement Association filed a petition for judicial review and a motion for a temporary restraining order and preliminary injunction, claiming that it owned the riparian rights required for the issuance of that license. Additionally, on February 25, 2005, petitioner filed a complaint for declaratory judgment seeking resolution of the disputed ownership of the riparian rights at issue in the case at bar. On September 13, 2004, a consent order barring construction until the resolution of the petition was granted.

The Circuit Court for Anne Arundel County heard oral arguments on cross-motions for summary judgment on the complaint for declaratory judgment on May 23, 2005, and on June 3, 2005, the Circuit Court held that the deed conveying the land (originally to Mr. Rossee, and through chain of title, *322 to respondents) did not convey the riparian rights to Mr. Rossee. On June 28, 2005, the Circuit Court for Anne Arundel County held that the MDE had improperly issued the original license, based on its determination in the declaratory judgment case that respondents did not possess the requisite riparian rights.

Respondents filed a notice of appeal and subsequent petition for a writ of certiorari in both the declaratory judgment and the petition for judicial review cases. The Court of Special Appeals issued an opinion on April 27, 2007, vacating the petition for judicial review judgment of the Circuit Court, and reversing the declaratory judgment. Gunby v. Olde Severna Park Improvement Ass’n, Inc., 174 Md.App. 189, 921 A.2d 292 (2007). Petitioner 2 then filed a petition for certiorari with this Court, which we granted. Olde Severna Park v. Gunby, 399 Md. 595, 925 A.2d 634 (2007). Petitioner presents two questions for our review:

“1. DO Williams v. Skyline Development Corporation, 265 Md. 130 [288 A.2d 333] (1972), MARYLAND ANN. CODE REAL PROPERTY § 2-101, OR ANY OTHER AUTHORITY REQUIRE THAT A FIFTY-FIVE YEAR OLD DEED INCORPORATING BY REFERENCE A 1931 PLAT BE STRICTLY CONSTRUED AGAINST THE SEVERANCE OF RIPARIAN RIGHTS?
“2. IN DETERMINING THE INTENT AND MEANING OF A 1931 PLAT WITH REGARD TO RIPARIAN RIGHTS, IS IT APPROPRIATE FOR A COURT TO APPLY A LEGAL CONTEXT DEVELOPED BY AN APPELLATE DECISION NEARLY SEVENTY YEARS AFTER 1931?”

We hold that the reservation in the 1931 Plat only had the effect of not dedicating the riparian rights to Anne Arundel County, but instead insured that those rights were retained by the Severna Company. Therefore, in 1963, when the Severna *323 Company conveyed to Mr. Rossee the waterfront land in fee simple, it had the effect of conveying to Mr. Rossee (and consequently to respondents through chain of title 3 ) the riparian rights as well. In light of this holding, it is unnecessary to resolve the second question of the petition.

I. Facts

The facts relevant to our holding 4 begin in 1931, when the Severna Company recorded a Plat in the Land Records of Anne Arundel County. The waterfront property at issue in the case before us 5 is indicated on that Plat. In the upper left hand corner of the Plat appears the following handwritten notation:

“NOTE
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 MAYBE 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 Severna Company conveyed to Christian Rossee (the “Rossee Deed”), in fee simple, several parcels of land, including the waterfront property at issue in the instant case. *324 That property in the Rossee Deed was described as running “with the water[’]s edge ...” and granted to Rossee “all privileges, appurtenances and advantages to the same belonging or anywise appertaining.” Additionally, the habendum clause stated:

“TO HAVE AND TO HOLD the said parcels of ground 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 CHRISTIAN E. ROSSEE, his executor, administrator, heirs and assigns, in fee simple.
“AND the party of the first part [Severna Company] hereby warrants that it has not done or suffered to be done, any act, matter or thing whatsoever to encumber the property hereby conveyed and will warrant specially the property hereby granted and that it will execute such further assurances of the same as may be requisite, but nothing herein granted is to apply to restrictions, dedications, easements or ways.” (Emphasis added.)

According to the testimony of Mr. Rossee’s daughter, Debra Shepley, Mr. Rossee and Ms. Shepley, shortly after the conveyance to Mr.

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Bluebook (online)
936 A.2d 365, 402 Md. 317, 2007 Md. LEXIS 720, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olde-severna-park-improvement-assn-v-gunby-md-2007.