PROPERTY OWNERS ASSOCIATION OF ARUNDEL-ON-THE-BAY, INC., et al. Plaintiffs/Counter Defendant v. JOYCE Q MCMANUS Defendant/Counter Plaintiff * IN THE * CIRCUIT COURT * OF MARYLAND * FOR * ANNE ARUNDEL COUNTY * Case No.: C-05-105032 RP * * * * * * * * * * * * RESPONSE TO MOTION FOR SUMMARY JUDGMENT Plaintiff/Counter-Defendant Property Owners Association of Arundel-on-the-Bay, Inc. ( Association ), and Plaintiffs Frank A. Florentine and Milton Harrod, by their undersigned attorneys, Wayne T. Kosmerl, Susan T. Ford and Council, Baradel, Kosmerl and Nolan, P.A. hereby withdraw the Motion to Extend Time to Respond to Motion for Summary Judgment and hereby respond to the Motion for Summary Judgment filed by Defendant/Counter Plaintiff Joyce Q McManus ( Defendant ) and state as follows: Summary judgment should be denied Defendant as material facts are disputed and Defendant is not entitled to judgment as a matter of law. Kessling v. State, 288 Md. 579, 420 A.2d 261 (1980). A material fact is one which somehow affect the outcome of the case. Stewart Title Guar. Co. v. West, 110 Md. App. 114, 133, 676 A.2d 953 (1996). 1. Material Facts Are Disputed Defendant has moved for summary judgment stating that she is the fee simple title owner of the road bed of Saratoga Avenue by virtue of Md. Real Prop. Code Ann. 2-114 and that she is thus entitled to block off Saratoga Avenue and claim it as her own. The Association asserts that whatever legal interest Defendant has in the roadbed, if any, that interest does not give
Defendant the right to block a platted street in the community and prevent others from using it. The Affidavit of John Dowling, Defendant s title expert, states that he found no evidence in the Land Records or Court Records of the County which supports any claim of ownership in the Trustees of streets, alleys or avenues within the Arundel-on-the-Bay subdivision. Exhibit B to the Complaint contains a deed dated 1949 which expressly conveys title to the streets in Arundel-on-the-Bay from the Town Commissioners to the Town Trustees. The deed expressly stated that the Trustees were to hold the streets: for the proper use, benefit and behoof of the property owners of Arundel-on-the- Bay, Md. as the property owners may be recorded in the Land Records of Anne Arundel County as such owners, and to hold the same IN TRUST, but with the power and authority vested in them to convey all or any part of the said real property to any properly organized corporation which may be organized by the aforesaid property owners of Arundel on the Bay and as directed by the aforesaid property owners, or by the County Commissioners of Anne Arundel County, or other proper constituted authority, for the use and benefit of such property owners; and to receive and disburse such funds as may come into their hands as Trustees, by levy of assessment, or voluntary contributions, for the care and use of said streets or avenues, as the majority of the property owners may direct. (emphasis added.) The Town Commissioners and Town Trustees, acting at the direction and for the benefit of all property owners in Arundel on the Bay, including Defendant s predecessors in interest, asserted title and control of the streets in Arundel-on-the-Bay. This title and control was passed to the Association in 1951 at the direction of the property owners in Arundel on the Bay, which group included Defendant s predecessor in title. The Association, governed by and at the direction of the property owners in Arundel on the Bay, later conveyed title to certain streets to the County Commissioners of Anne Arundel County. No objection to this assertion of transfer of title and control of the streets by the Town Commissioners, Trustees or Association was made by 2
Defendant s predecessors in interest nor Defendant, from 1898 at the time the Town was chartered, until 2005, when Defendant claimed the right to block Saratoga Avenue. There is thus a dispute of material fact as to the whether the Town Trustees had a claim of ownership to the streets in Arundel-on-the-Bay which they could convey to the Association and summary judgment should be denied. The Affidavit of John Dowling also states that he found no documents or other evidence in the County Land or Court Records showing that the private owner of the Arundel-on-the-Bay subdivision, Chesapeake and Columbia Investment Company, relinquished ownership or control of the streets, alleys or avenues to the politically created municipality called Arundel-on-the- Bay. Mr. Dowling apparently neglected to read paragraph 32 of the Acts of 1898 wherein the General Assembly expressly subjected the streets in Arundel-on-the-Bay to the control of the Town Commissioners. See, Exhibit H to Complaint, Chapter 349 Acts of the General Assembly of 1898, Section 32 (the same Exhibit was also attached to Mr. Dowling s Affidavit). Further, Section 17 of the Acts of 1898 expressly gave the Commissioners the power to establish the limits and widths of the streets of said town, and to improve the same, and remove obstructions therefrom Thus, it is abundantly clear from Defendant s own exhibit that the streets in Arundel-on-the-Bay were expressly subject to the control of the Town Commissioners and that the Commissioners had authority to remove obstructions from the platted streets. See, Affidavit of Edward J. Albert, Esq, Exhibit A hereto. Based upon that express grant of control of the streets to the Town Commissioners which acted as an acceptance of the offer of dedication of the streets, as is discussed above, the Town Commissioners later granted title and control of the streets to the Town Trustees when the Town dissolved in 1949. The Town Trustees, acting at the explicit direction of the property owners of Arundel on the Bay according to the terms of the 3
aforementioned deed from the Town Commissioners to the Town Trustees, which property owners would have included Defendant s predecessors in title, conveyed title and control to the streets to the Association. Mr. Dowling s affidavit does not show any objection to this transfer of record by the Defendant nor by her predecessor in title until more than 50 years after the transfer occurred. There is thus a dispute of material fact about whether the Town Commissioners, acting on behalf of the property owners in Arundel on the Bay, had control of and a right to convey title to the streets to the Town Trustees upon dissolution of the Town. Defendant now objects to the transfer, more than 50 years after the fact. There is also a dispute of material fact as to whether the Town Trustees, acting at the direction of the property owners in Arundel on the Bay, could convey title and control of the streets to the Association. Defendant s motion for summary judgment should be denied. Nowhere does Mr. Dowling state that Defendant has the right to block a platted street, Saratoga Avenue, with a fence and prevent others from using it. This is because even if Defendant has bare legal title to the platted roadbed, a fact which the Association does not concede, she has no right to block the road to prevent other property owners in Arundel-on-the- Bay from using it. See, Affidavit of Edward J. Albert, Esq., Exhibit A. Thus Defendant is not entitled to summary judgment. 2. Defendant Is Not Entitled To Judgment As A Matter Of Law The Association filed an Amended Complaint on September 6, 2005, for the purpose of clarifying that the Association s suit to remove the fence from blocking Saratoga Avenue was and is based upon not only ownership of Saratoga Avenue, but also non-exclusive right of use of Saratoga Avenue via dedication to public use, prescriptive and/or implied easement, scheme of development and/or color of title. 4
Defendant s claim that only bare legal title to the roadbed of Saratoga Avenue is relevant to the determination of whether the road can be blocked is not supported by Maryland law. Even if Defendant has bare legal title to the roadbed of Saratoga Avenue by virtue of Md. Real Property Code Ann. 2-114, a fact which the Association does not concede, all lot owners in Arundel-on-the-Bay have a right of use of Saratoga Avenue by dedication to public use or at least an implied easement over the platted streets in the community. Koch v. Strathmeyer, 357 Md. 193, 742 A.2d 946, 949 (1999) (and see, Plaintiff s Motion for Summary Judgment and supporting Memorandum filed contemporaneously herewith and incorporated by reference herein.) The stated purpose of Real Prop. 2-114 has been described by the Court of Appeals as one of assuring open streets for lot owners, not for blocking streets. The purpose of former 5-114 is to assure landowners that they will have access to streets bounding on their land by granting to them title to the center line of the street while recognizing an easement in the other half of the street. The implied easement by plat reference rule has an identical purpose, although it accomplishes its objective by creating an easement to the whole of the street rather than by granting fee simple title to part. The purpose of each rule is to assure access to a right of way contiguous with the land so as to afford each owner full use and enjoyment of his property. In our view, the two rules are not inconsistent.therefore, absent an express provision to the contrary in the deed, those who purchase a lot with reference to a plat depicting an abutting street acquire a private easement in that street regardless of whether it has been dedicated to the public and accepted by the local government. By virtue of this easement, the purchaser has the right to keep the street open and make reasonable use thereof. 1 Boucher v. Boyer, 301 Md. 679, 694, 484 A.2d 630 (1984) (emphasis supplied). Defendant cites no authority for the proposition that Md. Real Property 2-114 is intended to be used to allow abutting property owners to block off streets adjacent to their lot lines. To the contrary, Maryland law is clear that the intent of the statute is to provide street access to nearby property owners. 1 In condemnation, the naked fee in half the bed of the street was described as having no substantial value. King v. Mayor and Council of Rockville, 249 Md. 243, 238 A.2d 898 (1968). 5
The main case cited by Defendant for the proposition that she is entitled to judgment as a matter of law, Maryland Department v. Hirsch, 42 Md. App. 457 (1979) was reversed decades ago by the Maryland Court of Appeals in Hirsch v. Maryland Department of Natural Resources, Water Resources Administration, 288 Md. 95 (1980). Defendant cites the Court of Special Appeal s decision in Hirsch for the proposition that title to real property can not be transferred by legislative fiat quoting the Court s statement that a deed must be recorded, not a statute, in order to affect private property rights. (Interestingly, Defendant is claiming title to Saratoga Avenue by legislative fiat, Real Property 2-114, not by deed. She has no deed to Saratoga Avenue. Under Defendant s argument, she has no title.) First, the Court of Special Appeal s opinion was reversed by the Court of Appeals on the very ground cited by Defendant. The Court of Appeals found that the private wetland maps and State orders affecting property rights by designating lands as private wetlands, and thus subjecting the affected lands to wetlands regulations, were required to be filed among the land records. Hirsch, 288 Md. at 112-114. Second, Hirsch is inapposite. The instant matter does not pertain to the impact of wetlands regulations to private property, but rather, the ownership and right of use via dedication and/or easement of a platted road in a subdivision which was formerly its own town, which road has been shown on a plat which has been recorded in Anne Arundel County s land records since 1890. In the instant matter, as previously discussed, the Association holds a deed to the roads in Arundel-on-the-Bay from 1951, Exhibit A to the Complaint. The Association s title devolves from the Town Commissioners for Arundel-on-the-Bay, Exhibit B to the Complaint who assumed control of the streets in Arundel on the Bay in 1898 Exhibit H to the Complaint.. Defendant argues that it was unable to locate any historical deed from the time of the origin of Arundel on the Bay in the 1890s to the Town Commissioners and thus suggests that the 1949 6
deed to the Town Trustees and 1951 deed to the Association from the Trustees is ineffective. Maryland law is not in accord, however. In instances where remote links in a chain of title may be missing, the court may presume a deed. Presumptions of deeds for the protection of ancient possessions, are made upon principles of public policy. Such presumptions are founded in equity, and are always made for the promotion of justice.length of possession is the great leading fact in presuming grants and deeds The Baltimore Chemical Manufacturing Company s Lessee v. Dobbin, 23 Md. 210 (1865). Ancient possession sufficient to allow presumption of a deed can be shown by successive grants in a deed, when possession is not susceptible of proof by living witnesses. The presumption of a grant is an inference of law, the fact finder does not have to actually believe that an actual grant was executed. Elizabeth Casey s Lesssee v. Inloes, 1 Gill 430 (1844). In the case at hand, the Town Commissioners were granted control over the streets by the General Assembly in 1898, including the authority to open and pave roads and remove obstructions therefrom. Exhibit H to the Complaint. The Town Commissioners governed the Town of Arundel on the Bay from 1898 until 1949 when the Town Charter was repealed by the General Assembly. The property owners in Arundel on the Bay, including Defendant s predecessors in title, were eligible to vote to elect the Town Commissioners. Exhibit H to Complaint, Acts of 1898 Section 3. The Town Commissioners granted a deed to the streets to the Town Trustees, in trust, for the benefit of all property owners in Arundel on the Bay, including Defendant s predecessor in title. Exhibit B to the Complaint. The Town Trustees could only convey a deed to streets if so directed by the property owners of Arundel on the Bay, again who would have included Defendant s predecessor in title. The deed to the Association from the Town Trustees, who were required to act at the direction of the property owners of 7
Arundel on the Bay again was for the proper use, benefit and behoof of the recorded property owners of Arundel on the Bay. Exhibit A to Complaint. The Association, on behalf of all property owners, including Defendant and her predecessors in title, has granted title to certain roadbeds to Anne Arundel County, including portions of Saratoga Avenue, to the County Commissioners of Anne Arundel County through the years. Such successive grants of title to and use of the roads in Arundel on the Bay to the Trustees, Association and County Commissioners of Anne Arundel County, without objection by anyone claiming superior title to the streets for over 100 years (the Acts of the General Assembly were dated 1898, Defendant claimed superior title to the roads through this litigation in 2005), is more than sufficient to show long possession and control of the roads under color of title sufficient to justify the presumption of a deed to the Town Commissioners under Baltimore Chemical Manufacturing, supra. The property owners in Arundel on the Bay directed the transfer of title to the streets from the Trustees to the Association for the benefit of all property owners, including Defendant s predecessors in title. Under such a scenario wherein there is a presumption of a deed to the Town Commissioners of Arundel on the Bay by long possession and control, the Association has superior title to Saratoga Avenue through its chain of title to the streets. The Defendant offers no deeds or other record evidence showing any title of record to Saratoga Avenue in her name. Defendant contends that only the ownership of Saratoga Ave. is at issue and asserts that unless the Association can prove ownership of Saratoga Ave., that it can not prevent Defendant from fencing off and claiming that portion of Saratoga Ave. which abuts her deeded property boundaries. The Amended Complaint filed by the Association should clarify, to extent that there was ever any doubt, that not only bare legal title, but rights of use, control and possession of the platted roads in the Arundel-on-the-Bay subdivision are at issue in the above-captioned matter. 8
Defendant has not sought summary judgment as to any issues of right of use, control or possession of Saratoga Ave., only as to fee simple title of Saratoga Avenue. Fee simple ownership of streets and paths is clearly not a predicate for controlling the use of streets and paths (nor does it give a right to block the streets or paths in Arundel-on-the-Bay), particularly with regard to restricting obstructions. If a street or pathway has been dedicated to public use or an easement, it may not be obstructed even by one with fee simple title. Simon Distributing Corporation v. Bay Ridge Civic Association, 207 Md. 472 (1955), Mauck v. Bailey, 247 Md. 434 (1967). Defendant has cited no authority to the contrary. As is set forth in detail in the contemporaneously-filed Plaintiff s Motion for Summary Judgment, the facts and law are clear that there has been a public dedication of Saratoga Avenue or at the very least there exists an implied easement over Saratoga Avenue in favor of all property owners in Arundel-on-the-Bay. Thus even if Defendant proves she has bare legal title to the roadbed, which the Association disputes, the fundamental issue to be resolved in this matter of whether she can block off Saratoga Avenue for her private use, remains unresolved. Defendant s argument that only bare legal title to the roadbed is relevant to determine whether the Association can compel removal of the fence is simply wrong as a matter of law and summary judgment must be denied. Defendant further argues that the Association lacks standing to clear its title and right of use to the roadbed of Saratoga Avenue on behalf of the members of the Association because the Defendant is convinced that it holds title to the roadbed of Saratoga Avenue. This novel legal proposition is not supported by any relevant case law nor by Maryland law. Clearly, parties are entitled to a declaratory judgment construing legal rights arising under a deed. Md. Cts. and Jud. Proc. Code Ann. Section 3-406. The Association has a deed to Saratoga Avenue, Exhibit A 9
to the Complaint, the Defendant does not. As is set forth above, the facts support the presumption of a deed to the Town Commissioners and thus the Association has legal title to the roads in Arundel on the Bay. Thus Defendant s argument that Plaintiff lacks standing to maintain this suit is without merit and summary judgment should be denied. Defendant s motion for summary judgment is supported by an affidavit for which the underlying factual basis is negated by its own exhibit (i.e., the Maryland General Assembly in 1898 expressly granted control of the streets in Arundel-on-the-Bay to the Town Commissioners, contrary to the Mr. Dowling s factual opinion to the contrary), case law which has been reversed by the Court of Appeals, is contradicted by Mr. Albert s affidavit, and cites to no authority which would allow Defendant to block Saratoga Avenue even if she prevails in establishing bare legal title to Saratoga Avenue, which title is questionable at best. This Court should simply deny Defendant s motion for summary judgment as there is a dispute of material fact and Defendant is not entitled to judgment as a matter of law. 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 (410) 268-6600 Attorneys for Plaintiff/Counter-Defendant, Property Owners Association of Arundelon-the-Bay, Inc., et al. and Plaintiffs Frank A. Florentine and Milton Harrod 10
CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the day of October, 2005, a copy of the aforementioned Response To Motion For Summary Judgment was hand-delivered to Merle F. Maffei, P.A., 113 Cathedral Street, Annapolis, Maryland 21401. Susan T. Ford 11