Owen v. Hubbard

271 A.2d 672, 260 Md. 146, 1970 Md. LEXIS 751
CourtCourt of Appeals of Maryland
DecidedDecember 15, 1970
Docket[No. 137, September Term, 1970.]
StatusPublished
Cited by21 cases

This text of 271 A.2d 672 (Owen v. Hubbard) 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
Owen v. Hubbard, 271 A.2d 672, 260 Md. 146, 1970 Md. LEXIS 751 (Md. 1970).

Opinion

*148 Digges, J.,

delivered the opinion of the Court.

The Skipjack is a commercial sailing ship indigenous to the tidal waters of the Chesapeake Bay and its tributaries. As an oyster boat it has survived in these days of marine mechanization because of legislation prohibiting power craft from dredging on oyster bars and because of its ability to draw less than six feet of water fully loaded and 3.5 feet unloaded. In spite of this low draft the appellants, William H. Owen and his wife, found it necessary to dredge a five foot channel and build a protective bulkhead in a “finger” or cove off LeCompte Creek in front of their Dorchester County home to provide a safe harbor for their skipjack and other boats. The nettle of this dispute is that they were only one of three property owners with riparian rights to the cove.

In December 1966 the Owens successfully sought a permit from the Army Corps of Engineers to dredge the proposed channel. Upon completion of the dredging they obtained a similar permit to erect a wooden bulkhead approximately 150 feet in length along two sides of the new basin. As a requirement for each permit they obtained the written consent of their two riparian neighbors, including that of the plaintiff and now appellee, the Rev. Richard C. Hubbard, who, with his wife, owned the property on one side of the cove.

The major leg of the bulkhead, about 107 feet long, runs across the Owens’ frontage on the back line of the cove and is not the subject of this controversy. Under Sec. 46 of Art. 54 of the Code (1957, 1968 Repl. Vol., now superseded by Art. 66C, § 720 (1970)) as “[t]he proprietor of land bounding on any of the navigable waters of this State,” Mr. Owens was “entitled to the exclusive right of making improvements into the waters in front of his said land . . . .” The controversy is over the east-west leg of the bulkhead which was placed at a virtual right angle to the north-south leg and extends for 41 feet along the left shore of the cove toward its mouth. The Hubbards own the land facing on most of this 41 *149 foot section of the bulkhead, but with their consent, the Owens proceeded to fill in the wash area behind the bulkhead, in effect creating a snug harbor, with a two-sided loading wharf, for their skipjack. At this point the relationship between the two neighbors was amicable, for in terms of relative values the cove meant little to the Hubbards. Their home faced toward the main waters of LeCompte Creek and they freely conceded that they rarely used the cove, whose shore merely ran down the “side” of their property. The Owens’ home, on the other hand, faced the cove at its far upland end, this being their only access to the navigable waters of the creek. Indeed, if this portion of the Hubbards’ property bordered on the cove at all, it had been substantially improved at no expense to them but at a considerable expenditure of time and money by the Owens. Still, the inevitable boundary dispute arose.

The Hubbards’ sixth course was the crucial dividing line between the two tracts. It was located shortly to the rear of the 41 foot section of the bulkhead, starting from a point on the cove and running in a southwesterly direction first across marshy shore land and then across more solid land. The Hubbards’ deed describes their boundaries on the creek and part of the cove as either “along the shore” or “beside a cove,” but the fifth and sixth courses were described as follows:

“(5) S. 13 degrees W. 113 feet to a post at the head of a cove; (6) S. 63 degrees W. 94 feet to a cedar tree and stone . . .” (emphasis supplied).

The Owens’ deed provided that the pertinent common boundaries were:

“thence (2) running and binding with the home place of the said Agnes Hubbard, in a southward direction, to a cedar tree standing at the corner of the said Hubbard home place; thence (3) still running and binding with the said Hubbard home place, in an eastward direction, to the wa *150 ters of LeCompte Creek or Cove; thence (4) running and binding with and upon the waters of the said Creek or Cove, in a southward direction to the Thompson lands;” (emphasis supplied).

In one respect both of the property owners took cognizance of the location of the sixth course, for on the far end of the 41 foot leg Owen constructed a 13 foot wing extending at a right angle into the shore for lateral support. He admits that 5 to 7 feet of this supporting structure crosses the sixth course and he admits that portions of the fill as well as supporting rods attached to sunken logs or “dead-men” are on the Hubbards’ side of the line. In fact, all of these supporting structures were installed after the Hubbards gave verbal consent. What the Owens do not admit is that the part of the sixth course which was covered by the backfill was in actuality a riparian course, and that under Art. 54, Sec. 46 the fill and bulkhead accreted to the Hubbards’ rather than to their land. As a dramatic demonstration of his belief that he built all of the 41 foot leg of the bulkhead on his side of the sixth course and in front of his land, Owen planted a flagpole at the intersection of the 41 foot leg and the 13 foot lateral wing. The Hubbards objected to this act of imperium and shortly brought an action seeking declaratory relief against the Owens. The Circuit Court for Dorchester County (Mace, J.) in a thorough and thoughtful opinion ruled that the Hubbards had title to that part of the bulkhead which was in front of their property, but on the basis of their written and verbal consent to the work Judge Mace granted the Owens a permanent easement for the reasonable use and enjoyment of the Hubbard section of the bulkhead. The Owens have only appealed from the determination that the bulkhead was not theirs. None of the parties has raised any question over the nature and extent of the easement and the Hub-bards have neither cross-appealed nor otherwise appeared in this Court.

*151 The Owens have raised numerous questions on appeal and we shall shortly explore these in some detail. For the purpose of clarity, however, we think they can be reduced to two basic contentions: 1) the trial court erred in fact and at law in determining that the Hubbards’ sixth boundary line was a riparian course, and 2) even assuming a riparian course, it was error to permit the Hub-bards’ mere “side” rights to prevail over the appellants’ right to use and possess any improvements they had erected in front of their home, particularly since this frontage was their only access to navigable water.

The Existence of the Riparian Course

The appellants contend that in view of the language in the Hubbard deed they were entitled to summary judgment. This argument is grounded on our recent decision in Stottlemyer v. Kline, 255 Md. 635, 259 A. 2d 52 (1969), where we pointed out at page 648 that:

“The deeds and other evidence indicate an intention of the original draftsmen to insure that the owners of the land on the north and east side of Antietam Creek should not have any rights as a riparian owner

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Bluebook (online)
271 A.2d 672, 260 Md. 146, 1970 Md. LEXIS 751, Counsel Stack Legal Research, https://law.counselstack.com/opinion/owen-v-hubbard-md-1970.