MOTION TO ALTER OR AMEND JUDGMENT. Plaintiffs, by their undersigned attorneys, pursuant to Maryland Rule hereby move

Transcription

1 PROPERTY OWNERS ASSOCIATION OF ARUNDEL-ON-THE-BAY, INC. Plaintiff/Counter Defendant v. JOYCE Q MCMANUS Defendant/Counter Plaintiff * IN THE * CIRCUIT COURT * OF MARYLAND * FOR * ANNE ARUNDEL COUNTY * Case No.: C RP * * * * * * * * * * * * MOTION TO ALTER OR AMEND JUDGMENT Plaintiffs, by their undersigned attorneys, pursuant to Maryland Rule hereby move to alter or amend the Opinion and Order entered in the above captioned proceeding on October 3, 2006 ( Opinion ) and in support state as follows: 1. Implied Easement in Saratoga Avenue The trial court states at page 5-6 of its Opinion that the Defendant has title to the portion of Saratoga Avenue abutting her deeded property boundaries by virtue of Md. Real Property Code Ann , that the Association claims an implied and/or prescriptive easement in Saratoga Avenue for the benefit of all property owners to reach adjacent public ways and the waters of Fishing Creek. The Court then states on page 6 that if Defendant establishes adverse possession, the court need not address the title issue. Plaintiffs request clarification on whether the Court thus found that all property owners held an implied easement over the disputed portion of Saratoga Avenue under Koch v. Strathmeyer, 357 Md. 193 (1999), as the Court found that the disputed portion of Saratoga Avenue leads directly to the water and a community waterfront recreational area. This clarification is important because Defendant has consistently argued that unless Plaintiff can establish ownership of the streets in Arundel-on-the-Bay, it has no standing

2 to prevent encroachments on platted streets. A determination that the members of the Association had at least an implied easement to the disputed portion of Saratoga Avenue which could only be lost through a hostile user s actual ouster of all other property owners sufficient to establish adverse possession would serve to clarify the Court s findings. 2. Title Issue Plaintiffs request clarification as to whether the Court s statement at page 5 of the Opinion summarizing Defendant s arguments was meant to be a determination on the merits of the title dispute between the parties pursuant to Md. Real Property given all the facts and circumstances of the case, or whether the finding was meant that Defendant could have title pursuant to Md. Real Property 2-114, but that because the Court ultimately found that Defendant adversely possessed the disputed portion of Saratoga Avenue, the Court did not need to reach the merits of the Md. Real Property 2-114/presumption of a deed title dispute issue. (The Court s finding is unclear because as set forth above, on page 6, the court states that if Defendant proves adverse possession, the Court need not reach the title issue.) If the finding on page 5 was a finding on the merits of the title dispute given all the facts and circumstances of the case, the Plaintiffs respectfully request that this Court reconsider its finding regarding title for the following reasons: First, the Defendant s title claim is clearly barred by laches as it was filed over fifty years after the Town conveyed its interests in the streets to the Association. Hawkins v. Chapman, 36 Md. 83 (1872); Hungerford v. Hungerford, 223 Md. 316 (1960). In Hawkins, the Court of Appeals stated: Courts of Equity have established the doctrine that after a great lapse of time and long peaceable possession, they ought not to interfere to grant relief; for the policy of the law is to give quiet and repose to titles; and Courts of justice ought not to countenance laches or long delays on the part of claimants. Indeed, after a great lapse of time, Courts of Equity will raise a presumption of some legal or 2

3 equitable extinguishment of the adverse title, if the circumstances of the case will enable them to support it. Id., at 94. Second, Defendant s predecessor in title, Gordon Steuart, expressly disclaimed fee simple title in Saratoga Avenue, Exhibits 29 and 30, thereby conveying under Md. Real Property Code Ann to Defendant only his implied easement to Saratoga Avenue, which he would have had along with all other property owners in Arundel-on-the-Bay to use Saratoga Avenue, not fee simple title to Saratoga Avenue. Third, the Court may presume a deed to the Town to supply the missing link from the 1890s in the historical chain of title under Baltimore Chemical Manufacturing Company s Lessee v. Dobbin, 23 Md. 210 (1865). The 1951 deed conveying the streets to the Association from the Town Trustees is an ancient deed which is presumptively valid. When there are breaks in historic chains of title, the Court has the power to presume a deed to protect the integrity of ancient deeds. In order to do so, the Court need not believe that the missing deed was actually executed, it may do so solely to promote the interests of justice and promote equity. Elizabeth Casey s Lessee v. Inloes, 1 Gill 430 (1844). In the case at hand, the Court found that the Defendants themselves acknowledged that the Association was the sole owner of all the rights of way in Arundel-on-the-Bay pursuant to the 1951 deed. (Opinion, page 11.) The undisputed evidence showed that the Association has controlled and regulated the streets for over 50 years, conveying utility easements in the streets, conveying title to certain streets to Anne Arundel County, regulating the use of streets for fire control purposes, controlling use for recreational purposes such as fishing and has constructed community amenities such as the community pier and boat launching ramp from street ends. (Exhibits 15-20; 65, 66). Presuming a deed to the Town from the original grantor in 1898 would serve to preserve the scheme of development in Arundel-on-the-Bay for the last 100 years 3

4 followed by everyone including the Defendant and thus clearly serves public policy and promotes justice. 3. Adverse Possession A. Recognition of Right to Land The Opinion contains several key factual findings which Plaintiffs respectfully request that the Court reconsider. The Court correctly stated that the Defendant s possession must be unaccompanied by any recognition, express or inferable from the circumstances, of the real owners right to the land. Blickenstaff v. Bromley 243 Md. 164 (1966). The following documents constitute the McManuses recognition, express and inferable, of the Association s ownership of Saratoga Avenue. i. Wetlands License The Opinion finds at page 11 that the wetlands license 1 mentions Saratoga Avenue only insofar as it was described as being a wet area containing salt meadow cord grass that ran most of its length and encompassed by one half for the right of way. The Plaintiffs respectfully request that the Court re-examine the wetlands license issued by the Maryland Department of Natural Resources at Exhibit 59A, attached hereto for ease of reference. The wetlands license application drawings, filed by Mr. McManus, expressly identify the adjacent property owners. Harry Kelly is listed as owning the adjacent property to the North, and the Property Owners Association is specifically listed, by Mr. McManus, as being the owner of Saratoga Avenue as located between his whole lot and the unnumbered parcel. In paragraph E of the Department of Natural Resource s Wetlands Report and Recommendation, which lists as the 1 The Opinion states the wetlands license is Exhibit 59; it is Exhibit 59A. 4

5 date of the Wetlands License hearing as February 27, 1980, the findings of the Department of Natural Resources state: The applicant proposed to construct a bulkhead in order to save what remains of the partial lot bordering the shoreline. If that property erodes back to the right-ofway [Saratoga Avenue], he would no longer own any water front. Eventually, he plans to raise the level of his property and prevent flooding; however, the filling proposed in this application includes only that area between the bulkhead and the seaward end of the right-of-way [Saratoga Avenue]. Filling of the wet area is not included in this application. Thus Saratoga Avenue was not just physically described as being wet and containing cord grass, but the Association s ownership interest in Saratoga Avenue was expressly acknowledged by Mr. McManus. The entire purpose for the wetlands license application, as described in a hearing before the Department of Natural Resources by Mr. McManus, was to protect the unnumbered lot from erosion because if it eroded back to Saratoga Avenue (which Mr. McManus stated was owned by the Association), Mr. McManus expressly said he would no longer own any water front. If Mr. McManus already owned or claimed an ownership interest in Saratoga Avenue, there would have been no possibility that he could no longer own any waterfront as all of Saratoga Avenue would have constituted his waterfront in case of erosion of the unnumbered parcel. The wetlands license application and hearing before the Department of Natural Resources included public statements 2 by Mr. McManus that the Association, not he, owned Saratoga Avenue between the unnumbered parcel and his main lots. They constitute a recognition, express or inferable from the circumstances, of the real owner s right to the land under Blickenstaff, supra. Such a recognition of the real owners right to the land defeats adverse possession. 2 Federal regulations require that certain water-related permits include the names of adjacent property owners and that they be notified of the pending permit application. 33 CFR 325.1(d) and 33 CFR 325.3(d). The Association has no reason to believe the law was not followed with regard to the subject pier and bulkhead permit application. 5

6 The wetlands license as issued was subject to the special condition that the work be accomplished in accordance with the plans and drawings prepared by Mr. McManus (page 1 of the Wetland License No ) The license was repeatedly renewed, thus renewing the validity of assertions made in the plans and drawings, in 1983, 1984, 1985 and 1986 by both Mr. and Mrs. McManus. (The renewal letters are contained in Exhibit 59A). ii. Variance Exhibit 59 is the McManus 1984 variance application for their pier. There, the County finds that because Saratoga Avenue would likely not be developed, there was no harm to granting the variance to allow an accessory structure to be built on the McManus unnumbered parcel. Again, Saratoga Avenue is recognized by the McManuses and Anne Arundel County as a platted street which the McManuses did not own. (This is true because if they had owned it, they would not have needed a variance, they would have owned one big waterfront lot from which they could have built their pier.) iii. Letter from Mr. McManus to the Association Plaintiffs respectfully request that this Court examine Exhibit 58, attached hereto for ease of reference, wherein the McManus expressly stated to the Association that they agreed to have the roads adjacent to our properties turned over to the County. Saratoga Avenue was clearly located adjacent to the McManus property and thus the fact that the McManus requested of the Association that roads be turned over to the County again confirms their assertion that the Association owns the roads. Otherwise, the McManus could have turned over roads adjacent to the property to the County themselves. iv. June 1, 1988 Letter to Association from Joyce McManus 6

7 Plaintiffs respectfully request that this Court review Exhibit 46, attached hereto for ease of reference, wherein Mrs. McManus expressly stated to Mrs. Wilma Coble in 1988 as the Chairwoman of the Board of Directors that Mrs. Browne s pier [Mrs. Browne is Mrs. McManus adjacent neighbor to the South on Saratoga Avenue] abuts community property [Saratoga Avenue] and that it was Mrs. McManus s belief that Mrs. Browne needed the agreement from the Property Owner s Association before the County could issue her a permit The pier permitting drawings, attached hereto for ease of reference, Plaintiff s Exhibit 47 and Defendant s Exhibit 4-Z, similar to Mr. McManus pier permit drawings set forth at Exhibit 59A, list the owners of the adjacent properties. The Association is shown as the owner of both Redwood Avenue and Saratoga Avenue (specifically showing Saratoga Avenue being located between the McManus house lot and the unnumbered parcel improved with the McManus pier) and Mrs. McManus is listed as the owner of the property to the North of Mrs. Browne. Mrs. McManus took the trouble to write to the Association, in 1988, about the Browne pier permit application, expressing concern about the length of the Browne pier extension. Mrs. McManus expressly acknowledged that Saratoga Avenue was community property and that the Brownes needed the Association s permission to build the pier attached to community property. She made no objection to the permit drawings that showed the Association as the owner of Saratoga Avenue between her deeded lots, only to the length of the pier Mrs. Browne intended to build and to her purported lack of notice regarding the proposal. If Mrs. McManus was claiming Saratoga Avenue as her own property, she would not have expressly stated that Saratoga Avenue was community property. Again, Mrs. McManus, stating in writing to the Association that Saratoga Avenue is community property is a recognition, express or inferable from the circumstances, of the real owner s right to the land under Blickenstaff, supra. 7

8 B. Association s Acknowledgment of a Possessory Interest in Saratoga Avenue The Opinion at page 15 states, in the context of analyzing hostility that there is no evidence that the Association ever acknowledged in so many words that it had a possessory interest in Saratoga Avenue. Plaintiffs respectfully request that this Court review Exhibits 29, 30, 127, 171 and 172A, attached hereto for ease of reference. i. Browne Suit Exhibits 29 and 30 consist of the suit papers filed by the Association in the 1960s when the McManus s neighbor, Mr. Browne, erected a fence across Saratoga Avenue and when requested, refused to remove it. The suit, filed by the Association and by the Steuarts, the McManus s predecessors in title, Exhibit 13B, stated the Defendant erected a fence across Saratoga Avenue which constitutes an encroachment and continuing trespass on Saratoga Avenue and that the fence was an unlawful infringement upon the rights of the plaintiffs Gordon Steuart and Elizabeth Steuart, his wife, and other property owners in said community who are entitled to free and unobstructed use of said platted streets for ingress, egress and regress from, to and between their respective properties and the various beaches and other community areas in Arundel-on-the-Bay. The corporate plaintiff, on its own behalf and on behalf of the recorded lot owners of the said community, has requested the defendant to remove his said fence from Saratoga Avenue, but the defendant has wrongfully failed, neglected and refused to do so. (Paragraphs 6 and 7, Exhibit 29). The Stipulation granting permission to maintain the fence until the Association needed to make use of Saratoga Avenue is attached as Exhibit 30. Filing suit claiming ownership and right of use constitutes an acknowledgement of a possessory interest in Saratoga Avenue. (ii) 1999 Re-Zoning Vote 8

9 Exhibit 127, attached hereto for ease of reference, contains the minutes of the Association meeting in 1999 wherein the Association discussed and voted upon, in a community meeting attended by more than 70 property owners in Arundel-on-the-Bay, rezoning the portion of Saratoga Avenue between Redwood and Walnut Avenue (which includes the disputed portion of Saratoga Avenue) to MA1, community marina zone. The fact that Mrs. McManus attended this meeting is shown by the sign-in sheet on Exhibit 127. If she believed or was asserting that she had an ownership interest in the disputed portion of Saratoga Avenue, the same land for which the Association was seeking a re-zoning change to make the disputed property a community marina zone, she should have made it known to the Association at that time. The motion to re-zone the property was not carried by a majority vote at the meeting. The Association s assertion of title, ownership and right to control the disputed portion of Saratoga Avenue through its seeking to re-zone the disputed parcel, however, was made perfectly clear to everyone attending the Association meeting, including Mrs. McManus. The Association s right to attempt to re-zone the property was not challenged and constituted the Association s unequivocal statement to the community, including actual notice to Mrs. McManus, of its title and possessory interest in the disputed portion of Saratoga Avenue in iii. Saratoga Pier Agreement Exhibits 171 and 172A, attached hereto for ease of reference, contain a Construction Crossing Agreement dated April 2000 and associated Board Minutes regulating construction of a walkway over an undeveloped portion of Saratoga Avenue to the North of the disputed area. The Association expressly stated that it owns Saratoga Avenue and granted permission for a property owner to construct a crossing to connect to a pier across Saratoga Avenue. The permission notes that free and open access must be provided and permitted along 9

10 Saratoga Avenue, and along the waterfront below Mean High Water (page 2 of the Construction Crossing Agreement). (As stated above, Plaintiff s Exhibit 47 and Defendant s Exhibit 4-Z are pier agreements for other piers touching Saratoga Avenue.) Exhibit 172A contains Board of Directors Minutes wherein the Association stated the request was initially denied because the design could hinder movement along Saratoga Avenue. These documents also constitute express statements by the Association of its possessory interest in Saratoga Avenue. C. Ouster of Co-Tenants Maryland law is clear, as the Opinion stated, that the required hostility in cases involving ouster of a co-tenant wherein each party has a right of use of the property, must include notorious and unequivocal acts of hostility. Young v. Young, 37 Md. App. 211 (1977). As this Court recognized, Defendant has to prove actual ouster. Ouster may not be proved by exclusive possession by one co-tenant, there is no constructive ouster. Hogan v. McMahon, 115 Md. 195, 200 (1911). Because it appears that this Court analyzed the adverse possession claim in the context of extinguishment of an easement right, rather than with respect to title, then it follows that Defendant has to show actual ouster against all holders of an implied easement. (Under Koch, supra; Klein v. Dove, 205 Md. 285, 107 A.2d 82 (1954) and Simon Distributing Corporation v. Bay Ridge Civic Association, 207 Md. 472, 480, 114 A.2d 829 (1955) all property owners in Arundel on the Bay have an implied easement over Saratoga Avenue as it ends at the waters of the Chesapeake and leads directly to waterfront community recreational areas.) There was no evidence that the McManuses made any effort to make the individual property owners in Arundel on the Bay aware that they were being ousted from Saratoga Avenue. Indeed as this Court recognized, Mr. Stasio, Mr. Florentine and Ms. Cook used Saratoga Avenue openly in the 1990s and did not observe a fence. It was the Defendant s 10

11 burden to show actual, not constructive, ouster, Hogan, supra, though notorious and unequivocal acts, brought home to the knowledge of the property owner whose rights were being ousted. Bratton v. Hitchens, 43 Md. App. 348, 405 A.2d 333 (1979), Ross v. Phillips, 148 Md. 165 (1925). As each property owner in Arundel on the Bay is essentially a co-tenant of the Defendant under the implied easement as each have an equal right of use of the platted streets, the Defendant had to prove that her acts of ouster were brought home to the knowledge of each property owner in Arundel on the Bay. As she never notified the Association or anyone else of her claim of exclusive right to the land, particularly, as is set forth in detail above, when the Association sought to re-zone the disputed portion of Saratoga Avenue at a community meeting which she attended, she failed to meet her burden to show ouster against all property owners in Arundel on the Bay. This Court has found that it was a well known policy in Arundel-on-the-Bay that property owners could maintain and beautify undeveloped streets with the express understanding that the streets were community property. (Opinion, page 9.) Thus, the McManus s acts of planting, clearing and generally maintaining and using the property for parties and the like was permissive. Permissive use is presumed to continue. Hungerford v. Hungerford, 234 Md. 338, 341 (1964). The Association was not put on notice until August, 2004 that Mrs. McManus claimed the disputed portion of Saratoga Avenue as her private property. Exhibit 170. Under Pearson v. Virginia City Ranches Association, 298 Mont. 52, 63 (2000), a fence does not constitute use adverse to an easement until the servient estate holder is requested to remove it and refuses to do so. There, the court stated: Moreover, the owner of the dominant tenement is not required to make use of the easement as a condition to retaining his interest in the easement. Thus, where an easement has been created but no occasion has arisen for its use, the owner of the 11

12 servient tenement may fence the land and this will not be deemed adverse until such time as the need for the right-of-way arises and the owner of the dominant tenement demands that the easement be opened and the servient tenement owner refuses to do so. (Similarly, in Spessard v. Spessard, 64 Md. App. 83, 88 (1985) quoting from Newman v. Chase, 70 N.J. 254 (1976) the Court of Special Appeals stated where one cotenant remains in possession and refuse to accede to plaintiff s demands for access to the property, such conduct clearly constitutes an ouster. ) Further, in the Durant case involving another fence in Arundel-on-the-Bay, Exhibit 71, attached hereto for ease of reference, this Court analyzed whether another fence which had been up since the 1940s met the requirements for adverse possession in Arundel-on-the-Bay. There, the Defendants testified that the fence was intended to prevent trespassers of any kind from entering the disputed property directly in front of their lots, that they regularly maintained and paid taxes on the land. The Court examined extensive testimony about the purpose for the fence and found that the Defendants failed to meet their burden to show adverse possession. In the case at hand, there was no testimony about the purpose for the fence, only about the McManuses acts of possession of the property. Because exclusive possession alone is not sufficient to show ouster and because the McManuses possession was permissive and they presented no facts about the purpose of the fence, Plaintiffs respectfully request that this Court find that there was no actual ouster until the McManuses put the Association on notice, in writing, of their claim of ownership in 2004 under Pearson, supra. CONCLUSION WHEREFORE, for the reasons stated above, Plaintiffs respectfully request that this Court clarify its implied easement and title findings. Plaintiffs also request that this Court state its rulings as to Counts I IV of the Complaint. 12

13 Plaintiffs further request that this Court re-consider the Exhibits described above. Each of the documents described above referring to Saratoga Avenue spanning a time frame from 1968 to 2000, written by the McManuses or the Association, state unequivocally that the Association is the owner of Saratoga Avenue. The Association attempted as late as 1999 in a community meeting attended by over 70 people, including Mrs. McManus, to re-zone the disputed portion of Saratoga Avenue to community marina zoning without any assertion by Mrs. McManus that she, not the Association, owned the disputed portion of Saratoga Avenue. In Arundel-on-the-Bay, the Durant case shows that the mere fact of a long-standing fence has been held not to indicate adverse possession of the blocked off property, even in the face of testimony that the fence was intended to block off a platted street. There was no such testimony in this case. It was the Defendant s burden to be clear to the Association and all property owners in Arundel on the Bay for 20 years and to this Court at trial about the purpose of the fence. In the absence of Defendant doing so, her claim must fail. Plaintiffs thus respectfully request that this Court find that Defendant has failed to meet her burden and grant the relief requested in the Complaint allowing free access to all members of the Association to the disputed portion of Saratoga Avenue. COUNCIL, BARADEL, KOSMERL & NOLAN, P.A. By: Wayne T. Kosmerl Susan T. Ford 125 West Street, 4 th Floor P. O. Box 2289 Annapolis, MD (410)

14 Attorneys for Plaintiff, Property Owners Association of Arundel-on-the-Bay, Inc. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the day of October, 2006, a copy of the foregoing Motion to Alter or Amend Judgment was mailed first class, postage prepaid, to Merle F. Maffei, P.A., 113 Cathedral Street, Annapolis, Maryland Susan T. Ford 14