PROPERTY OWNERS ASSOCIATION OF ARUNDEL-ON-THE-BAY, INC., et al. v. Plaintiff/Counter Defendants JOYCE Q MCMANUS Defendant/Counter Plaintiff * IN THE * CIRCUIT COURT * OF MARYLAND * FOR * ANNE ARUNDEL COUNTY * Case No.: C-05-105032 RP * * * * * * * * * * * * MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Plaintiff/Counter-Defendant Property Owners Association of Arundel-on-the-Bay, Inc. ( Association ) and Plaintiffs Florentine and Harrod, by their undersigned attorneys, Wayne T. Kosmerl, Susan T. Ford and Council, Baradel, Kosmerl and Nolan, P.A. hereby file the following Memorandum in Support of Its Motion for Summary Judgment and states as follows: A. Introduction Count One of the Amended Complaint Amended Complaint seeks Declaratory and Injunctive Relief. In a nutshell, the Association seeks a declaration that it is the holder of legal and/or equitable title to Saratoga Avenue and that Saratoga cannot be blocked by Defendant. The Association seeks an injunction stating that the fence encroachment must be removed and free and open access to Saratoga Avenue for all members of the Association be restored. The Counter-Plaintiff s Counter Claim alleges ownership of Saratoga Avenue by adverse possession. The fundamental dispute necessitating this litigation is that the Association claims title to and right of control of all the platted streets in Arundel-on-the-Bay for the benefit of all property owners within Arundel-on-the-Bay including Plaintiffs Florentine and Harrod and the Defendant.
The Defendant alleges that she has better title to the paper street known as Saratoga Avenue and that she has the right to block the paper street located adjacent to her deeded property boundary with a fence and claim it for her own private use. The stated basis for this allegation is Md. Real Prop. Code Ann. 2-114. Apparently in the alternative, Defendant alleges she has adversely possessed Saratoga Avenue. Based upon one of these theories, the Defendant has erected a fence across Saratoga Avenue and claims the right to block it off from use by other property owners in Arundel on the Bay in the vicinity of her deeded property. The Association wants the fence to be removed and a declaration from this Honorable Court that the Defendant may not block off or otherwise prevent members of the Association from accessing Saratoga Avenue. The Association is not seeking to prevent the Defendant from making a reasonable use of Saratoga Avenue consistent with neighborhood policies encouraging maintenance and beautification of platted road beds in the community, only from preventing her from blocking other members of the Association from using it. The simple analysis is that regardless of whether the Association or Defendant has superior bare legal title to the paper street known as Saratoga Avenue, all the streets in Arundelon-the-Bay have already been dedicated to the public use and/or have been subjected to an implied easement in favor of all lot owners in Arundel-on-the-Bay. Under such a scenario, no one has the right to block other property owners within Arundel-on- the-bay from using the platted streets in Arundel on the Bay, no matter whether they are paved or not. Summary judgment is thus clearly appropriate in the Association s favor as to Count One of the Amended Complaint and Counter-Claim. A. Dedication to the Public Use 2
A common law dedication requires an offer by the grantor and an acceptance by a competent government authority. Chester v. Gilcrest, 64 Md.App. 541, 545 (1985), partially overruled on other grounds, 307 Md. 422 (1986). When an owner of land conveys lots bounding upon streets and alleys which are laid down on a plat which the owner made of his property, an intention to dedicate the land lying in the bed of the streets and alleys to public use will be presumed, in the absence of language showing that no dedication was intended. Mauck v. Bailey, 247 Md. 434, 443 (1967). Acceptance can be shown in a number of ways including by deeds or other records, acts in pais, continued public use, express statutory provisions or by other official actions. Chester, supra at 545. Further, there is no time limitation on acceptance, because where a new town is laid out it is not expected that all the streets and parks will be needed by the public at once. T. Hackerman v. Mayor and City Council of Baltimore, 212 Md. 618, 626, 130 A.2d 732 (1957). The legislative actions of the General Assembly of 1898 creating the Town of Arundel on the Bay expressly subjected all streets, alleys, lanes, parks and public grounds in Arundel-onthe-Bay to the control of the Town Commissioners. This constituted acceptance of the offer of dedication. Windsor Resort v. Mayor of Ocean City, 71 Md. App. 476, 487 cert den. 311 Md. 145, 532 A.2d 1371 (1987). ( There can be no serious dispute that the portion of Atlantic Avenue which lies within the original boundaries of the Town of Ocean City was accepted by the General Assembly on behalf of Ocean City as a public roadway. ) In accord, Mayor of Baltimore v. Chesapeake Marine Railway Co., 233 Md. 559, 197 A.2d 821 (1964). See also as persuasive authority, Memorandum Opinion of the Honorable Michael E. Loney in Property Owners Association of Arundel on the Bay, Inc. et al. v. Durant et al., Cir. Ct. for Anne Arundel County, Case No. C-95-24605 (March 19, 1998), Exhibit A to Motion to Extend Time To 3
Respond To Motion For Summary Judgment ( Durant litigation ). There, Judge Loney stated at pages 4-5, In 1898, the Town of Arundel on the Bay was created by Act of the General Assembly as specified in Chapter 349, Laws of Maryland. The Act was later codified as Section 129 of the Anne Arundel County Code. The actions taken by the General Assembly are considered express statutory provisions and are considered an acceptance for purposes of dedication. Chester v. Gilcrest, 64 Md. App. 541 (1985).[T]he Court finds that all streets and road beds within the Arundel on the Bay subdivision were dedicated for use as public streets and were accepted first by the Commissioners and then by the Trustees and the Property Association... Acceptance of the offer of dedication was further manifested by the Town s subsequent grant of a deed for the streets in Arundel-on-the-Bay including Saratoga Avenue from the Town Commissioners for Arundel on the Bay to the Town Trustees in 1949 at the time the Town of Arundel-on-the-Bay s charter was repealed. See, Exhibit B to the Complaint. The property owners in Arundel on the Bay were the eligible voters who elected the Town Commissioners. Exhibit H to Complaint. The Town Trustees were permitted to convey the streets to the Association, at the direction of the property owners in Arundel on the Bay. Exhibit B to Complaint. Once there has been a dedication to the public use of a platted street, Maryland law is clear that the dedicated land may not be adversely possessed. Mauck v. Bailey, supra, at 443. The facts of the original developer s filing of the record plat for Arundel on the Bay in 1890, incorporation of the Town in 1898 by Acts of the General Assembly is not in dispute. See, paragraphs 16 and 29 of the Affidavit of John Dowling attached to Defendant s Motion for Summary Judgment. The Acts of 1898 expressly gave control of the streets in Arundel-on-the- Bay to the Town Commissioners in Chapter 32, a fact which Mr. Dowling disputes in paragraph 30 of his Affidavit. Such a generalized statement that there is a dispute of material fact does not 4
rise to a genuine dispute of material fact sufficient to defeat summary judgment. Maryland law is clear that formal denials or general allegations are insufficient to prevent the award of summary judgment.the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Seaboard Surety Co. v. Richard F. Kline, Inc. 91 Md.App. 236, 603 A.2d 1357 (1992). The fact that the Town Commissioners believed they had not only control but actual title to all the streets in Arundel-on-the-Bay, and thus accepted the offer of dedication, is not in dispute as the Town Commissioners granted a deed to the streets which deed included Saratoga Avenue to their Trustee successors when the Town was dissolved in 1949. Exhibit B to the Complaint. These facts clearly show an offer to dedicate the streets to public use and acceptance of the offer. Mauck, Chester, Windsor Resort, supra. This Court in a strikingly similar case in this same neighborhood found that all streets in Arundel-on-the- Bay were dedicated to public use and that a fence erected across another paper street had to be removed. See, Judge Loney s Memorandum Opinion, Durant litigation, supra. If this court finds as a matter of fact and law as Judge Loney did that there has been a dedication to the public, then the fence must come down. Further, Counter-Plaintiff s Counter Claim alleging adverse possession of Saratoga Avenue must fail and summary judgment should be entered in the Association s favor as to the Counter-Claim. If this Court finds there has been a dedication of Saratoga Avenue, then summary judgment as to Count One of the Complaint is also appropriate. To be clear, the Association is not seeking to prevent the Defendant from using, beautifying and improving Saratoga Avenue in the vicinity of her deeded property boundaries. These types of uses have typically been deemed acceptable by the Association in Arundel-on- the-bay on the dedicated streets. Affidavit of 5
Frank Florentine, Exhibit B. The Association is simply seeking to prevent the Defendant from blocking others from walking upon Saratoga Avenue. B. Implied Easement For Use By Members of Association Assuming, for the sake of argument, that this Court was incorrect in its 1998 finding in the Durant litigation there was a public dedication of the streets and road beds within Arundelon-the-Bay, then the fence must still come down as an implied easement in favor of all property owners within the Association exists over all streets and road beds and in Saratoga Avenue in particular because it ends at the navigable waterway known as Fishing Creek. When a common grantor sells land designated as lots and streets within a municipality, there is a rebuttable presumption that grantor intended two results: (1) to offer to dedicate the streets to public use; (2) regardless of whether or not the offer of dedication was accepted by the municipality, to grant the purchasers an implied right of way over the streets contiguous to the lots to the next closest street or public way. Koch v. Strathmeyer, 357 Md. 193, 742 A.2d 946, 949 (1999). The general rule is that the scope of the implied easement is to the next street or public way. Id. at 950. When the right of way intersects a public waterway, the nearest public way is the waterway. Id. In waterfront developments, all interior lot owners have a right of way over platted streets to reach community waterfront areas. Such rights of way may not be blocked. Klein v. Dove, 205 Md. 285, 107 A.2d 82 (1954). In Klein, a lot owner in the waterfront community of Wild Rose Shores in Anne Arundel County abutting a platted right of way leading to a lake area attempted to block access to the right of way such that interior lot owners could not access the lake area. There, the Court of Appeals quoted with approval from the trial court s opinion which stated: 6
That the purchasers of the lots in this subdivision thought they were buying not only the right to use the roads and paths laid down on said plat, but, as well, the right to use the piers on the east and west sides thereof, and the Lake area, is, I think, certain. Everyone connected with the development contemplated them having those rights. If a purchaser of a lot in a waterfront development did not expect to get the right to use the water, few would purchase lots therein. After all is said and done, a waterfront development cannot be a waterfront development without a waterfront. It is true that the areas in question are not marked community property or anything like that, but I do not understand that to be absolutely necessary Id. at 292. Similarly, in a case involving the attempted blocking of platted paths and streets in the waterfront community of Bay Ridge in Anne Arundel County, waterfront property owners erected a chain to block access to a platted street and a platted, but unpaved and overgrown path which was seldom used, could only be traversed on foot and ended at a marsh without any boating or bathing facilities. The Court of Appeals stated In this State the importance of access to the water in a waterfront development has been clearly recognized. Simon Distributing Corporation v. Bay Ridge Civic Association, 207 Md. 472, 480, 114 A.2d 829 (1955). There, the party attempting to chain off the road and path had fee simple title to the path and roadbed. The court enjoined the property owner from blocking the path and roadbed, however, finding that: The main purposes of the rights of way in this waterfront were evidently to enable lot owners and their families to get about in the development and get to the water. Gates, chains or like obstructions across any roads or paths could only defeat this purpose or make its attainment more difficult. The fair inference from the showing of these ways on the plats was, we think, that they should be unobstructed, and we do not see how the defendant s acquisition of title to the beds of Worden Path and a portion of Lake Drive could alter the representations made to other purchasers of lots by the plats upon the faith of which lots in the development were sold. Id. In the case at hand, the Defendant s fence blocks access via Saratoga Avenue to the community boat launching ramp and other community waterfront areas which are located one house further down Saratoga Avenue from her property. Arundel-on-the-Bay is a waterfront 7
development. All members of the Association purchased their property in Arundel-on-the-Bay with the expectation that they would have the right to use all platted streets and roadbeds within Arundel-on-the-Bay to get about in the development and to reach community water-oriented recreational areas and other water access areas. Affidavit of Frank Florentine, Exhibit B. Even if this court finds that there was no public dedication of Saratoga Avenue and that the Defendant is the fee simple title holder to the roadbed of Saratoga Avenue, the Defendant still does not have the right, as a matter of law, to block the rights of way (implied easement) over any roadbeds in the community which rights of way were created by the developer s filing of the record plat and subsequent conveyance of lots pursuant to the record plat. Klein, Simon Distributing Company, supra. C. Conclusion Summary judgment is thus appropriate requiring removal of the fence blocking Saratoga Avenue because there is no dispute of material fact and the Association is entitled to judgment as a matter of law. There is no dispute as to the following facts: The original record plat for Arundel-on-the-Bay was filed in 1890 and amended in 1925. The General Assembly by Acts of 1898 subjected the streets in Arundel-on-the-Bay to the control of the Town Commissioners. The original developer, after filing the record plat, conveyed out parcels by reference to the record plat. The Town Commissioners conveyed the streets in Arundel-on-the-Bay, including Saratoga Avenue, to the Town Trustees who then conveyed them to the Association for the benefit of all property owners in Arundel-on-the-Bay. Arundel-on-the-Bay is a waterfront community. The record plat shows numerous platted streets in Arundel-on-the-Bay, including Saratoga Avenue, which lead to waterfront areas. The property owners in Arundel-on-the-Bay purchased their properties in reliance on the record plat presuming that they could use the platted streets in the 8
community to get about in the neighborhood and access the waters of the Chesapeake Bay and Fishing Creek. Saratoga Avenue leads to the community boat ramp in the vicinity of the Defendant s property. Defendant has erected a fence across Saratoga Avenue which blocks the free use of Saratoga Avenue for all lot owners within Arundel-on-the-Bay and claims a portion of Saratoga Avenue is her private property by virtue of Md. Real Prop Code Ann. 2-114. These facts can only lead to the conclusion as a matter of law, as Judge Loney found in the Durant litigation, that there has been a dedication of the streets in Arundel- on-the-bay to the public and/or that the property owners in Arundel-on-the-Bay have an easement over all platted streets to reach water access areas. Thus, regardless of whether the Association or Defendant has fee simple title to the road bed, it can not be blocked preventing interior lot owners from accessing waterfront areas within the subdivision. This is so whether there was a valid dedication, or whether there was simply an implied easement in favor of all interior lot owners. Koch v. Strathmeyer, supra. It also of no import that the subject portion of Saratoga Avenue has never been opened as a street and is only used for foot access to waterfront areas. Simon Distributing, supra. Wherefore, the Association and Plaintiffs Florentine and Harrod respectfully requests that this Honorable Court grant summary judgment in their favor as to Count One of the Amended Complaint and as to the Counter-Claim filed in the above-captioned matter. 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 21404-2289 9
(410) 268-6600 Attorneys for Plaintiffs/Counter-Defendants, Property Owners Association of Arundelon-the-Bay, Inc., and Plaintiffs Frank A. Florentine and Milton Harrod CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the day of October, 2005, a copy of the aforementioned Memorandum in Support of Motion for Summary Judgment was hand-delivered to: Merle F. Maffei, P.A. 113 Cathedral Street Annapolis, Maryland 21401. Susan T. Ford 10