Selby Community Association
Court Opinion of the 1938 Perpetual Injunction
COPY OF OPINION OF COURT
HOWARD R. ROBEY AND No. 7457 EQUITY
FRANCES S.ROBEY, his wife,
Complainants
Vs. In the
WILLIAMS REALTY CO., INC. CIRCUIT COURT FOR
A Body Corporate ANNE ARUNDEL COUNTY
Under the laws of the state of Delaware,
Respondents,
OPINION OF COURT
(electronically copied word for word)
This is a bill for an injunction filed by a lot owner in a water front development to restrain the defendant from selling off any portion of the "Community Beach and Park" as laid out originally on the Plat for the use of the lot owners in said Development and also to restrain the defendant from commercializing said "Community Beach and Park" or otherwise interfering with the Complainant's free and unobstructed use thereof.
The substance of the bill is that in August, 1930 a lot was sold to Complainants from a plat upon which was laid off a "Community Beach and Park", and they were specifically told that said "Beach and Park" was for their exclusive use and benefit of the lot owners of Selby-on-the-Bay. That relying on the plat and assurance, they had erected upon said lot a substantial summer cottage. They now complain that the defendant corporation, controlled by one of the original partners who made said sale, is attempting to deprive them and other lot owners of their easement in this "Community Beach and Park".
The defendant demurred and answered. By its answer it appears the defendant denies that it, or its predecessors have "created any easement of any kind whatsoever" in said tract referred to by Complainants as a "Community Beach and Park"; that on the plat later prepared and recorded, this tract was shown simply as an undivided area; and that whatever use the Community lot owners has made of this area has been permitted as a "courtesy and special privilege."
The controlling facts may be summarized in a few paragraphs as follows:-
1. In July, 1930 Branham and Williams purchased by contract from the late Enoch P. Johnson a tract of land on the Chesapeake Bay called Selby-on-the-Bay. They operated as partners in developing this tract under the designation "Selby-on-the-Bay Properties Company." It consists of 206 acres. They did not sub-divide the whole tract in one plat. The first plat which included Complainant's lot, laid off about 175 lots. It was not recorded but they began selling lots from it early in August, 1930. This is not disputed. It showed a "Community Beach and Park" consisting of about six to eight acres. It was from this plat that Complainants purchased their lot August 22nd, 1930. About a month later a plat substantially the same was prepared and recorded upon which the aforesaid "Community Beach and Park" area was identically the same, but was not designated as a "Community Beach and Park".
2. The sales continued under the Lunch and Lecture system, which was operated directly by the partners, and not by the customary imported organization. From the beginning the partnership had their lecture rooms and executive offices in a building that stood on this "Community Beach and Park" area. In 1932 they erected a new building for the above purpose and called it a Clubhouse, which the whole community apparently enjoyed. Crowds of prospective buyers were brought in by agents for free lunches and sales lectures.
3. In October, 1935 the Williams Realty Company, Inc. took over by deed from said partnership the entire operation as it stood. Then in 1936 this defendant Corporation leased the Clubhouse and grounds around it to Mr. Hamilton, and in 1937 to a Mr. Bauer. During these leasing periods meetings were held protesting the opening of the "Beach and Clubhouse" to the public with its concomitant consequences.
4. May 12th, 1937, a plat was recorded by the defendant Corporation subdividing this "Community Beach and Park" into fifteen building lots and the Clubhouse lot. This plat shows on its face that it was prepared by the partnership in 1932, but was withheld from record. The proceedings and evidence in this case does not disclose that any one knew anything about this 1932 plat until it was recorded by the defendant Corporation in May, 1937. The filing of this bill followed July 31st, 1937.
The bill prays: (1) for the free and unobstructed use of the "Community Beach and Park" area by your orators and all other lot owners in Selby-on-the-Bay; (2) for an Injunction restraining the defendant, its successors and assigns, from using or permitting the use of said area as a public bathing beach and park; (3) for an Injunction prohibiting the sale of said area subdivided for sale purchases as aforesaid.
The Complainants produced the original plat given them with their contract of sale which designated the area in question as "Community Beach and Park". No one denied this fact. The "Community Beach and Park" is referred to in their deed. On the Beach side of their lot in a 30 foot driveway, which is described in their deed as "lying between the property hereby conveyed and Community Beach."
The question presented to the Court for determination is the relative rights of the Williams Realty Company, and the lot owners, in to this area in question. The Court has read the proceedings and carefully examined the testimony of all the witnesses, especially the surveyor and the two men constituting the said partnership.
Mr. Hobday, the surveyor, speaking of the blue print delivered to the Complainants when they purchased their lot testified, the original drawing was not made on tracing cloth but on perishable paper, and that it was "practically destroyed while being blue-printed." That the blue print was delivered to Branham and Williams by the blue-printer and so far as he knew they made no objections to the words "Community Beach and Park" printed on this plat. Just before this Mr. Hobday had testified that the layout was according to his general instructions from Branham and Williams.
Mr. Branham testifying concerning the words "Community Beach and Park", on the first plat, admitted there was to be a Park and Beach layout, but said he did not know how large it would be when this plat was made. He said, answering question 41: "I objected to this and instructed him (Mr. Hobday, the surveyor) not to put it in there any more because we did not know how much land we would put in the park." He does not deny an intent to set aside a "Beach and Park" for the community. There certainly is no evidence of any other park or beach location. Later this area was apparently reduced by platting lots at the extreme southeast end to which there seems to be no objection by the lot owners. This end was apparently unused.
Mr. Williams testified that the first order of blue prints from which the plaintiff bought her lots consisted of only 15 to 20 in number, yet he said a crowd was coming to the opening and he had to have them right away. He testified that he used these plats for a week or ten days. That seems to the Court a long while in which to use only 15 to 20 prints with them number of salesmen mentioned in the record over such a period. No explanation is made as to why so few were made and delivered. Moreover, if "Community Beach and Park" was not to be on the plats it would have been easy to block out these words when they were exhibited to the public. This was not done. The one delivered to the Complainants and which they personally produced at the hearing did not show any attempt on the part of any one to cancel or block out these words. Mr. Williams was an experienced man in such matters and must have known the effect of selling such lots subject to a plat showing a uniform development and delivered to the purchasers with sales. It is true the plat was not recorded then, but a permanent drawing was made later and recorded, showing the same lot numbers and the same "Beach and Park" area, but with the words in question omitted from it. Evidence is abundant that all the lectures assured the use of the "Community Beach and Park" to the lot purchasers.
The Court might not have had more difficulty in reaching a conclusion in the matter if the defendant Corporation had not in May, 1937 put on record a plat subdividing this "Beach and Park" area into building lots with the purpose of sale. Not only does no party to this cause seek to defend this act, but it seems entirely inconsistent with all the testimony - even that of the defendant's witnesses including it's President (Mr. Williams).
With respect to the law applicable to this case, there can be no doubt that if a developer sub-divides a tract of land bordering on the water-front into building lots, streets, lanes, roads, and a Community Beach and Park stretching along the said water-front, and puts this plat or sub-division on record among the Land Records of the county, showing a uniform plan and scheme for development of the property and executes and draws deeds on, or referring to said plat, representing said development as a private residential and non-commercial water-front community, that this constitutes to each lot holder an easement in said "Community Beach and Park" in common with all other lot holders for all ordinary Beach and Park purposes. Such an easement is exclusive to all such lot holders. Neither the owner of the servient estate nor any lot holder vested with an interest in the dominant estate, can add to or detract from such easement. It becomes and easement vested in each and all lot owners to the exclusion of the general public or strangers, "for as to such persons the rights of the owners of the easement are exclusive. The owner of the servient estate may use his property, including easement itself, in any manner consistent with the rights of the dominant tenement; but any use, of a character adverse to that of the owner of the easement is actionable without proof of special damages." Cyo. xx Vol.14 page 1215 Sec. G.
In the instant case no objection has been made to the continued use of the "Beach and Park" area for sales purposes, a club building with executive offices and lecture rooms, and even lockers to accommodate bona fide prospective purchasers, who desire to go in bathing while there without charge. Such uses are but incidental to the scheme of salesmanship. This is the undenied right of the owner of the servient tenement.
The Complainant is that the defendant corporation sub-divided the said "Community Beach and Park" into building lots for sale, and has commercialized the Beach contiguous to the Clubhouse, thus violating the Complainant's easement rights. The defendant answers that the Complainants are "only licensees" in the use of said Beach and Park, who have been enjoying until now "special privilege."
The reasoning of the defendant which concludes with the denial of an easement is, that although the blue-print given to the Complainants and from which they bought their lot showed a "Community Beach and Park", the plat that was put on record about a month later did not contain this designation. The defendant, however, admits as exhibits show, that the plat put on record did contain identical area laid off as it was laid off in the blue-print from which Complainants bought. It also shows that the Complainant's lot number and location were identically the same on both plats, namely Lot 27, Block K Selby-on-the-Bay. The deed to Complainants was made after the plat went on record.
Therefore, the controlling question is, whether the defendant is bound by the plat which was delivered to the Complainants and from which they made their purchase, or the latter plat referred to in Complainant's deed, differing only in the absence of the designation "Community Beach and Park", the layout and number of their lot being the same. In other words, is this a case where the "doctrine of estoppel by representation applies?"
Discussing the subject of easements, Mr. Tiffany says (Tiffany on Real Property, Second Edition page 1324):
"The question then in each case becomes one of the meaning of the language used a regards the property conveyed, whether, that is it means the land alone or the land with and easement annexed thereto?
In case the conveyance makes no reference to any street or way, or to a plat, but the grantor, previous to making the conveyance states to the grantee that there is a street or way, such statement may be referred to for the purpose of determining whether the language of the conveyance meant the land with an easement appurtenant thereto of the character referred to, or the land without such easement. And the same may be said as regards the exhibition by the vendor of a plat on which streets or squares appear, which plat is not referred to in the conveyance."
The same author says, Sec. 366 at page 1326:
"If in order to effect a sale of land, the intending vendor states that there is a street or way adjacent to or near the land, or an easement appurtenant thereto, and on the faith of such statement the purchase is made, the vendor is estopped to deny the existence of the way, street, or easement, and the same effect has occasionally been given to the exhibition by the vendor to the vendee before the sale, of a plat showing a particular street or way as existing in connection with the property."
Likewise in Gosnell Vs. Roberts, 147 Md., 627.
In McCleary, et al. Vs. Lourie, et al., (N.H.) 117 Atl. 732, there was no specific grant of an easement in a grove and beach between the Plaintiff's lot and the lake, and there was a later attempt to subdivide the grove into lots for sale, as is done in the instant case. The Court held that the lake and grove being essential features of the exclusive summer colony, the easement was established by estoppel, and the sale of said lots was restrained.
See also, Lennig Vs. Ocean City Association, 41 NJ. Eq. 606.
However, our Complainants are not resorting only to doctrine of implied easements, they are claiming under express grant.
The Court cannot agree with the defendants that the Complainants are merely licensees with respect to the area in question. The record clearly discloses with respect to the area in question. The record clearly discloses the intent to set aside a "Park and Beach" out of this 206 acre tract for the use of the lot owners. This was admitted by Mr. Williams who was a partner when this lot was sold, and is now President and in control of the Defendant Corporation. He simply testified he did not know how large to make the "Beach and Park" and therefore asked the surveyor to leave the designation on the first plat, of the plat that was finally recorded. There is no evidence that it was at any time made smaller, or that it was at any time located elsewhere. On the contrary defendant's witnesses said there was no other suitable location.
When this blank space is shown on the recorded plat lying between the laid-off lots and the Bay at the point where the sandy beach is located the most natural inquiry is, why this space was left blank. The evidence is that the lecturers and salesman all represented it as a "Community Beach and Park" as shown on the salesman's blue-print.
"The mere leaving of a blank upon a plat without any designation of its purpose does not of itself sufficiently indicate and intention to dedicate the premises represented by the blank or undesignated space to public use. Nevertheless, where the owner has left blank a block in the plat, instead of dividing into lots, it may be held to be dedicated as a public square or park if such appears to be the intention of the person making the plat."
18 Corpus Juris, page 65 Sec. 51 - "Blocks left blank".
See also City of Pittsburgh Vs. Epping Carpenter Co. 41 A 129, 194 Pa. 318.
This case is easily distinguished from the case of North Beach Vs. North Chesapeake Beach Land and Improvement Company in 172 Md. 101. In that case as in this, there was a strip of land running along the Beach with lots bordering on it sold to the public, which strip was not designated for any certain purpose on the plat of said property which was recorded in 1900. In other words, it was left blank, but in a conspicuous place on said plat was the following legend: The Company Reserves Rights to the ShoreFront. Five years later this blank space along the waterfront was platted and divided into lots and commercialized. Nothing was done or said about or against this by any of the lot owners. The only occasion for this suit by North Beach was a certain requirement of the Works Progress Administration that the possible question of public or private ownership of a part of said area be adjudicated to avoid possible title trouble in the future. Federal Project Works were not permitted on private property. This amicable suit was brought in pursuance of said requirement.
After a thorough review of the facts the Court said:
"There is no substantial basis for an inference to be made of an intention to dedicate this space for any purpose. The absence of any dedicatory expression of a public use as common, park, public beach, and the display of the buildings, are indicative of a retention of the proprietary rights of the owner. It must be held that this first plat is not sufficient evidence of an intention of the owner to dedicate this space as a public beach or common. As was said in Baltimore Vs. Frick, 82 Md. 77, at page 86, 33 A 435,437. "No one should be thus deprived of his property, on the ground of a dedication, unless there has been some clear and decisive act indicating an intention to dedicate to public use. .......The facts stated demonstrate that for thirty years this land has been divided, sold, conveyed, and occupied as exclusively private property, with the sole exception of the public ways which traverse and bound it."
In the instant case intent to create a Beach and Park is fully established. The defendant and his witnesses admit such intent as discussed in this Opinion.
The authorities submitted by defendant's Counsel at the hearing have been examined, but they do not apply to the particular facts of this case.
The Court will sign an order in conformity with the views herein expressed, granting the relief prayed.
(Signed) LINWOOD L. CLARK, Judge
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