Olde Severna Park v. Gunby

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Olde Severna Park Improvement Association, Inc., et al. v. Paul Gunby, Jr., et al. No. 37, September Term 2007 Headnote: Where a recorded Plat specifically reserves the riparian rights to a Developer, when that Developer later conveys waterfront property recorded on that same Plat, it is presumed that riparian rights appurtenant to that waterfront property are also conveyed, absent a clear intention to exclude those rights. Circuit Co urt for Anne A rundel Co unty Civil Case Nos. C-05-100243 & C-05-104092 IN THE COURT OF APPEALS OF MARYLAND No. 37 September Term, 2007 Olde Severna Park Improvement Associatio n, Inc., et al. v. Paul Gu nby, Jr., et al. Bell, C. J. Raker Harrell Battaglia Eldridge, John C. (retired, specially assigned) Wilner, Alan M. (retired, specially assigned) Cathell, Dale R. (retired, specially assigned), JJ. Opinion by Cathell, J. Filed: December 3, 2007 This case requires us to consider whether a deed, which incorporates by reference a Plat recorded in 1931, should be strictly construed against the severance of riparian rights. We shall hold that the 1931 Plat specifically reserved to the Developer riparian rights in order that the notation of certain areas on the plat that appear ed to be w aterfront pro perty would not be considered an offer to dedicate such areas to the local governing authority, but that when the D evel oper sub sequ ently conveyed waterfront land recorded on that Plat in fee simple to an individual own er, the riparian rights were conveyed w ith the wate rfront prop erty and consequently were severed from the Developer at the time of that conveyance. In 1931, the Severna Company subdivided a tract of land owned by it in fee simple, and recorded a Plat displaying the subdivision in the Land of Records in Anne Arundel Cou nty. In 1963, the Severna Company conveyed to a Mr. Christian E. Rossee, in fee simple, waterfront property that included th e riparian rights at issue in this case. In 1972, M r. Rossee conveyed .70 acres of waterfront property to Mr. John M. Jones and his wife, Carol R. Jones. The Joneses in turn conveyed that waterfront property, along with a landlocked parcel of land, to Paul Gunby and his wife, Joan Gunby in 1991. In July 2004, the Maryland Department of the Environment ( MDE ) issued a license to Paul Gunby ( respondents )1 to construct a foot bridge and pier across a tidal pond that bisected his property. 1 On September 2, 2004, the Olde Severna Park Improvement The license from MDE was issued only to Mr. Gunby and some pleadings were filed solely by or against Mr. Gunby. At the motion hearing in March 200 5, however, Mr. Gunby orally amended his motion to add Mrs. Gunby. Therefore, we refer to the Gunbys as respondents. Association filed a petition for judicial review an d a motion for a tem porary restraining order and preliminary injunction, claiming that it owned the riparian rights required for the issuance of that license. Additionally, on February 25, 2005, petitioner filed a complaint for declaratory judgment seeking resolution of the disputed ownership of the riparian rights at issue in the case at bar. On Sep tember 13 , 2004, a co nsent orde r barring co nstruction u ntil the resolution of the petition was granted. The Circuit Court for Anne Arundel County heard oral arguments on cross-motions for summary judgment on the complaint for declaratory judgment on May 23, 2005, and on June 3, 2005, the Circuit Cou rt held that the deed conve ying the land (originally to Mr. Rossee, and through chain of title, to respondents) did not co nvey the riparian rights to Mr. Rossee. On June 28, 2005, the Circuit Court for Anne Arundel County held that the MDE had improper ly issued the original license, based on its determ ination in the declaratory judgm ent case that resp onden ts did no t posses s the req uisite ripa rian righ ts. Respondents filed a notice of appeal and subsequent petition for a w rit of certiorari in both the de claratory judgment and the petition for judicial review cases. The Court of Special Appeals issued an opinion on April 27, 2007, vacating the petition for judicial review judgment of the Circ uit Court, an d reversing the declaratory jud gmen t. Gunby v. Olde Severna Park Improvement Ass n, Inc., 174 Md. App. 189, 921 A.2d 292 (2007). Petitioner2 2 The petitioners were descried in the petition as Olde Severna Park Improvement Association (the A ssociatio n ), et al. For ease of reference we shall refer to them (contin ued...) -2- then filed a petition for certio rari with this Co urt, wh ich we granted . Old Severna Park v. Gunby, 399 Md. 595, 925 A.2d 634 (2007). Petitioner presents two questions for our review: 1. DO WILLIAMS V. SKYLINE DEVELOPMENT CORPORATION, 265 MD. 130 [,288 A.2d 333] (1972), MARYLAND ANN. CODE REAL PROPERTY ยง 2-101, OR ANY OTHER AUTHOR ITY REQUIRE THAT A FIFTY-FIVE YEAR OLD DEED INCORPORATING BY REFERENCE A 1931 PLAT BE STRICTLY CONSTRUED AGAINST THE SEVERANCE OF RIPARIAN RIGHTS? 2. IN DETERMINING THE INTEN T AND MEA NING OF A 1931 PLAT WITH REGARD TO RIPARIAN RIGHTS, IS IT APPROPRIATE FOR A COURT TO APPLY A LEGAL CONTEX T DEVELOPED BY AN APPELLATE DECISION NEARLY SEVENTY YEARS AFTER 1931? We hold that the reservation in the 1931 Plat only had the effect of not dedicating the riparian rights to Anne Arundel County, but instead insured that those rights were retained by the Severna Com pany. Therefore, in 1963, when the Severna Company conveyed to Mr. Rossee the waterfront land in fee simple, it had the effect of conveying to Mr. Rossee (and consequ ently to respond ents throug h chain of title3 ) the riparian rig hts as well. In light of this holding, it is unnecessary to resolve the second question of the petition. 2 (...continued) collectively as petitioner. 3 An owner s chain of title is simply the preceding recorded deeds (or other instruments of transfer, such as a will) going back in time, in orde r, i.e., the last recorded to first recorded instrumen t. . . . A subsequent owner, therefore, has notice of what is contained in his or her actual chain of title even if he or she has neve r seen it, heard it, o r even im agined that it exis ted. Bright v. Lake Linganore Ass n, Inc., 104 Md.App. 394, 424-25, 656 A.2d 377, 393 (1995 ). -3- I. Facts The facts relevant to our holding4 begin in 1931, when the Severna Company recorded a Plat in the Land Records of An ne Aru ndel C ounty. The waterfront property at issue in the case before us5 is indicated on that Plat. In the upper left hand corner of the Plat appears the following handwritten notation: NOTE IT IS THE INTENTION OF THE S EVERNA C OMPANY NOT TO DEDICATE TO THE PUBLIC , THE STREETS, ALLEYS, ROADS, DRIVES, AND OTHER PASSAGE WAYS AND PARKS SHOWN ON THIS PLAT, EXCEPT THAT THE SAME MAY BE USED IN COMMON BY LOT OWNERS AND RESIDENTS OF S EVERNA P ARK P LAT 2. A LL RIPARIAN RIGHTS BEING RETAINED BY THE SAID THE S EVERNA C OMPANY. In 1963, the Severna Company conveyed to Christian Rossee (the R ossee Deed ), in fee simple, several parcels of land, including the waterfront property at issue in the instant case. That property in the Rossee Deed was described as running with the water[ ]s edge . . . and granted to Rossee all privileges, appurtenances and advantages to the same belonging or anywise appertaining. Additionally, the habendum clause stated: TO HAVE A ND TO H OLD the said parcels of ground above described and mentioned and hereby intended to be conveyed together with the rights, privileges, appurtenances and advantages thereto belonging or appertain ing unto and to the proper use and benefit of the said CHRISTIAN E. ROSSEE, his executor, administrator, heirs and assigns, in fee simple. 4 For a more thorough and extensive explanatio n of the fa cts in this case, re ference is made to Judge Hollander s excellent opinion in Gunby v. Olde Severna Park Improvement Ass n, Inc., 174 Md. A pp. 189, 921 A .2d 292 (2007). 5 When r eferencin g the waterfront property at issue , we do not imply that the ownersh ip of the land is disputed, b ut refer only to the riparian rights that accompany the waterf ront pro perty. -4- AND the party of the first part [Severna Company] hereby wa rrants that it has not done or suffered to be done, any act, matter or thing whatsoever to encumber the property hereby conveyed and will warrant specially the property hereby granted and that it w ill execute such further assurances of the same as may be requisite, but nothing herein granted is to apply to restrictions, dedica tions, ea semen ts or wa ys. (Em phasis a dded.) According to the testimony of Mr. Ros see s daughter, Deb ra Shepley, Mr. Rossee and Ms. Shepley, shortly after the conveyance to Mr. Rossee, constructed approximately four jetties from the shoreline into the water to prevent erosion. Those jetties were built and mainta ined by M r. Rosse e until th e early 19 70 s w ithout an y objectio n. In 1972, Mr. Rossee conveyed in fee simple approximately .70 acres of waterfront property the waterfront property at issue in the instant case to Mr. and Mrs. Jones (the Jones Deed ). That deed described the property as: part of . . . the . . . conveyance from the Severna Company to Christian E. Rossee . . . and described the property as extending to a point located on the shoreline of the Severn River . . . . The habendum clause in the deed to Jo nes stated in re levant part: To Have A nd To H old the said lot of ground and premises, described and mentioned, and hereby intended to be conveyed; together with the rights, privileges, appurtenances and advantages thereto belonging or appertaining unto and to the proper use and benefit of the said JOHN M. JONES, JR. and CAROL R. JONES, his wife, as tenants by the entireties, their assigns, the survivo r of them , the surv ivor s h eirs and assigns , in fee si mple. (Emp hasis ad ded.) In 1977, the Severna Company transferred all of its remaining property rights, to the Olde Severna Park Imp rovemen t Associatio n in a quit claim deed that sta tes, in relevant p art: WHEREAS, The Severna Company n ow desires to convey the -5- hereinafter described p roperty and riparian rights thereto to The Anne Arundel County Planning and Zoning Officer, in trust, to be imm ediately conve yed to the Olde Severna Park Improvemen t Associatio n, Inc.[,] the co mmun ity association representing the lot owners of Severna Park. NOW, THEREFORE, THIS DEED WITNESSETH: That for and in consideration of the premises and the sum of One Dollar, receipt of which is hereby acknowledg ed, the Party of the First Part [the Severna Company] does hereby grant, convey, and assign, release, and quit claim unto the said Par ty of the Second Part [the Anne A rundel Co unty Planning and Zon ing Off icer], in trust, neve rtheless, to be im mediately reconveyed to the Olde Severna Park Imp rovemen t Associatio n, Inc., all its right, title, interest and estate whatsoever in law or in equity in, to, or over the proper ty . . . . Then in October 1991, the Severna Company conveyed to Olde Severna Park Improvement Associatio n via quit claim deed any prop erty in teres t rem ainin g in the Sever na C omp any, Inc.[,] on the herein described four plats that was not previously conveyed to the Grantee or to any third party. In sum, the two deeds conveyed any interests, including whatever riparian rights, th at the Se verna C ompa ny may ha ve had in 1977 and 19 91 to pe titioner. Following her father s death in July 1980, Ms. Shepley obtained title to the remaining Rossee prop erty. 6 In 1989, she constructed, with the Joneses permission, several more jetties into the water f rom both her prope rty and that of the Joneses, which did include the property at issue in t he insta nt case. T his wa s done , again, without objection. With regard to the ownersh ip of riparian rights, her testimony states, in relevant part: My father and I b oth installed and m aintaine d our je tties . . . because we believed, and I continue to believe, that 6 The remainder of the property originally conveyed to Rossee from the Severna Company, except that .70 acre of waterfront property at issue in the present case. -6- we owned the riparian rights associated with our ownership [of the property] . . . . Fina lly, by deed dated February 27, 1991, the Joneses conveyed in fee simp le to respondents, two contiguous and adjoining parcels of land, wh ich included the waterfront property at issue in this case . There, the p arcel of land that included the waterf ront prope rty was described as being located on the shoreline of the Severn River and as being the same parcel of land which by Deed dated J anuary 1 7, 1972 . . . was granted and conveyed from Christian E. Rossee unto John M. Jones and Carol R. Jones, his wife. The habendum clause states: TO HAV E AN D TO HOL D the said described lo t of ground and premises, above described and mentioned, and hereby intended to be conveyed; together w ith the rights, privileges, appurtenances and advantages thereto belonging or apperta ining unto and to the proper use and benefit of the said parties of the second part [John M. Jones and Carol R. Jones], as Tenants by the Entireties and not as Tenants in Common[,] personal representatives and assigns , in fee si mple. (Emp hasis ad ded.) In November 2003, respondents filed a JOINT FEDERAL/STATE APPLICATION FOR THE ALTERATION OF ANY TIDAL WETLAND IN MARYLAND with MDE for a license to construct a 410 foot walkw ay over a tidal po nd that bisec ted their property, and a 200 foot pier. Petitioner noted its objection in a letter dated February 26, 20 07, whe re it claimed to MDE that riparian rights had never been conveyed to Mr. Rossee, and consequ ently, respondents could not have obtained those riparian rights through chain of title. Petitioner claimed that those riparian rights belonged to it. MDE, nevertheless, issued the license in July 2004. -7- As stated above, in September 2004, petitioner filed a petition for judicial review regarding the issuance of the license by MDE , and complaint for de claratory judgmen t as to the ownersh ip of the ripa rian rights. W hile the petition was pendin g, the Circuit Court for Anne Arundel County heard cross-motions for summary judgment in June 2005, and ultimately issued a written opinion and separate order granting petitioner s motion. There, the Circuit Court found that the Severna Company had expressly reserved to itself the riparian rights via the notation on the 1931 Plat, and determined that the Rossee Deed did not convey riparian rights. In support of this conclusion, the Circuit Court reasoned that Maryland law under Williams v. Skyline, 265 Md. 130, 288 A.2d 333 (1972), provided that a plat is incorporated into a deed if the deed contains a reference to the plat, which the Rossee deed did.7 Additionally, it observed that when interpreting deeds, the entire deed must be interpreted as a contract, no part of which may be disregarded unless violative of some princip le of law . Finally, the Circuit Court found the 1931 Plat to be ambiguous, based on the different conclusions of tw o different attorneys. It therefore looked to the language of other deeds from the Severna Company to determine the intent of the grantor, which the Circuit Court ultim ately determine d to be an intention to reserve riparian rights free from the claims of subsequent individual property owners. 7 In its description of the land, the Rossee Deed stated, in relevant part: TOGETHER with the right to use in common with the seller and others, all of the streets, roads, parks, and avenues as shown on Plat #2, Severna Park . . . surveyed . . . April, 1931, recorded among the Plat R ecords of An ne Aru ndel C ounty. -8- In June 2005, the Circuit Court also heard arguments on the petition for judicial review challenging the issuance of the MDE license. Taking judicial notice of its decision in the declaratory proceeding, the Circuit Court concluded that because respondents did not possess ripa rian rights, resp ondents were not entitled to a license to construct the walkway or pier, and consequently reversed MDE s decision. The Gunbys, respondents, then filed a notice of appeal and subsequen t petition for a writ of certiorari from bo th the Circu it Court s de claratory judgm ent and its reso lution in respect to the petition f or judicial rev iew of the MDE license. The Court of Special A ppeals issued a reported opinion on April 27, 2007, where it vacated the judgment of the Circuit Court regarding the petition for judicial review, and reversed the decision regarding the declaratory judgmen t. Gunby v. Olde Severna Park Improvement Ass n, Inc., 174 Md. App. 189, 921 A.2d 292 (20 07). Obs erving th at rip arian rights usually a ccom pany waterfront prop erty, the Court of Special Appeals held that to sever riparian rights, a more express and definitive statement of reservation would normally be required than existed in the instant case. We agree with that court. II. Standard of Review Maryland Rule 2-501 authorizes a motion for summary judgment8 where: th ere is no genuine d ispute as to an y material fact an d that the pa rty is entitled to judgment as a 8 The trial cou rt declared ju dgment a s to the complaint for declaratory judgment by the granting of a motion for summary judgment with an opinion declaring the rights of the parties. -9- matter of law. This Court has stated: When reviewing the grant or denial of a motion for summary judgmen t we mus t determine w hether a m aterial factual is sue exists, and all inferences are resolved against the moving party. Miller v. Bay City Property Owners Ass n, Inc., 393 Md. 620, 631, 903 A.2d 938, 945 (2006) (quoting King v. Bankerd, 303 Md. 98, 110-11, 492 A.2d 608, 614 (198 5)); e.g., Lynx, Inc. v. Ordnance Products, Inc., 273 Md. 1, 7-8, 327 A.2d 5 02, 509 (1974). That, as a general rule, the construction or interpretation of all written instruments is a question of law for the court is a principle of law that does not admit of doubt. Gordy v. Ocean Park, Inc., 218 Md. 52, 60, 145 A.2d 273, 277 (1958) (citing Roberts v . Bonapa rte, 73 Md. 191, 20 A. 918 (1890)); Sperling v. Terry, 214 Md. 367, 135 A.2d 309 (19 57), Strickler Engineering Corp. v. Seminar, 210 Md. 93, 100, 122 A.2d 563 (1956), Hartsock v. Mort, 76 Md. 281, 291, 25 A. 303 (1892). Our standard of review of [a] [] decla ratory judgment entered as the result of the gran t of a motion for sum mary judgment is whethe r that declaratio n was co rrect as a ma tter of law. South Easton Neighborhood Ass n v. Town of Easton, 387 Md. 468, 487, 876 A.2d 58, 70 (2005) (citing Converge Servs. Group, LLC v. Curran, 383 Md. 462 , 476, 860 A.2d 8 71, 879 (2004)). III. Discussion Petitioner argues that the notation on the 1931 Pla t served to sever the ripa rian rights from the land, and that the 1963 Rossee Deed, from which respondents derive their title, specifically incorporated the 1931 Plat, resulting in no conv eyance of rip arian rights to Rossee, respondent s predecessor in title. It further argues in its brief that the intention of -10- the Severna Company was to reserve the ripar ian righ ts for its elf and later the c omm unity. We disagree. The notation on the 1931 Plat serve d only to ensu re that the riparia n rights were not d edic ated to the public o r a go vern ing b ody thereof, e.g., A nne Aru ndel County. At the time of the filing of the Plat, the notation served as a reservation of the riparia n rights to the Severna Company, free of any offer to dedicate such rights to the C ounty. When the Severna Company subsequently conveyed to Rossee the waterfront property in fee simple, it conveyed exactly what it then had; i.e., both the land and the riparian rights that went with the land. It no longer reserved any riparian rights appurtenant to that land then being conveyed. A s Judge H ollander co rrectly noted fo r the Cour t of Specia l Appeals : [T]he Note on the 1931 Plat did not retain riparian rights in the developer with respect to the waterfront lot purchased by Rossee or his successors. To accomplish that objective with respect to a waterfront commu nity, more wo uld have been required tha n the one sentence we h ave h ere. . . . [O ]ne w ho buys waterfront property in a development usually expects to acquire riparian rights, unless th ose righ ts are cle arly and e xpress ly exclud ed. Gunby, 174 Md. App. at 257-58, 921 A.2d at 333. Gen erall y, when a plat is recorded, it is pres umed tha t there is an inten t to dedicate particular types of land in terests to pub lic use, such as roads, parks, etc., and when that offer of dedication is accepted, the dedication is complete and the loc al governm ent will generally have jurisdiction over that land. We explained the concept of common-law dedication in City of Annapolis v. Waterman: Generally, commo n-law de dications are voluntary off ers to dedica te land to public use, and the subsequent acceptance, in an appropriate fashion, by a public e ntity. Common-law dedications are not mandated by statute. The -11- offers [to dedicate] are g ener ally, although not e xclu sively, made by showing roads, parks or similar facilities on plats without any limitations on dedication, and the recording of those plats. 357 Md. 484, 503-04, 745 A.2d 1000, 1010 (2000). The offer of dedication of land and the acceptance of that off er by a public b ody generally ha s the effec t of imposing on the local governing entity the resp onsibility o f main tenanc e and re pair. Id. 357 Md. 504, 745 A.2d at 1010. Further, dedications of the nature alleged here must be made to the public at large, and normally are not intended for sole use of the individual landowners. [T]here is no such thing as a dedication between owner and individuals. The public must be a party to every dedication. Id. 357 at 506, 745 at 1011(quoting Jackson v. Gaston ia, 246 N.C. 404 409, 98 S.E.2d 444, 447 (1957 )). Where a reservation in a dedication is present, it will overcome the presum ption of de dication: [W]hen an owner of land makes a plat of his property on which streets or alleys are laid down and then c onveys it in lots as bounding on the streets and alleys by reference to their numbe rs on the plat from w hich it appears that they do in fact bound o n the streets or alleys, an intention to dedicate the land lying in the bed of the streets and alleys to public u se will be presumed, in the absence of language showing that no dedication was intended. (Emph asis added .) Mauck v. Bailey, 247 Md. 434, 442-43, 231 A .2d 685, 690 (196 7) (quoting A tlantic Construction Corp. v. Shadburn, 216 Md. 44, 51, 139 A.2d 339, 343 (1958)). The reservation language on the Plat at issue here is just that type of language used to show that no offer to dedicate ripa rian rights w as made b y the filing of the 1931 Pla t. A riparian landowner is defined as one who own s land border ing u pon, bou nded by, -12- fronting upon, abutting or adjacent and contiguous to and in contact with a b ody of water, such as a river, bay, or ru nning s tream. (citation omitted ). Kirby v. Hook, 347 Md. 380, 389, 701 A.2d 39 7, 402 (1997) (quoting People s Counsel v. Maryland Marine Mfg. Co., 316 Md. 491, 493 n. 1, 560 A .2d 32, 33 n. 1 (1989 )). When waterfro nt property is conveyed, there exists a presumption that the property is accompanied by the riparian rights to those waters. See Williams v. Skyline Development Corp., 265 Md. 130, 162, 288 A.2d 333, 35152 (1972) ( a conveyance of land bordering on naviga ble water p resumptiv ely carries with it the grantor s riparian rights ); Conrad/Dommel, LLC v. West Development Company, 149 Md.App. 239, 277, 815 A.2d 828, 850 (2003) ( A bsent an ex press reserv ation, it is presumed as a matter of law that the ripa rian rights [are] [] conveyed in the de eds ). In the instant case, when the 1931 Plat was recorded, the notation had only the effect of showing the Severna Company s intent not to dedicate to the public, i.e., the County, the riparian rights. Indeed, the notation beg ins It is the intention of th e Severn a Co mpa ny not to dedicate . . . (emphasis added). By using this language at that particular time, it protected those streets, alleys, roads, drives, other passage ways, parks and riparian rights from becoming the property of Anne Arundel County. There could no t have bee n an intent to dedicate the riparian rights to the community at large when th ey were reser ved in a notation restricting the dedication offer, because, as previously noted, the very nature of the type of dedication that might apply here usually requires that the public be the beneficiary of a -13- dedication.9 The notation on the Plat contains no ambiguity of language that would require this Court to look beyond the plain language of the 1931 Plat and the rele vant deed s to the waterfront property at issue if the notation on the Plat is re ad in its proper co ntext, whic h is governed by the law of dedication . Accordin gly, when the waterfron t property was later conveyed to Rossee in 1963 in fee simple, Rossee received whatever the Severna Company then possessed, which included the riparian rights appurtenant to the land conveyed. That deed, by operation of law, contained an unrebutted presumption of a conveyance of the land and riparian rights. In the subsequent conveyances to the Joneses and the Gunbys, no reservation of riparian rights was ever made. Riparian rights accordingly went with the waterfront property at issue here. Con sequently, respo ndents de rived their ripa rian rights through chain of title from the original deed to Rossee. IV. Conclusion The trial court erred in the instant case in construing the notation on the 1931 Plat as an intent on the part of Severna Company to reserve the entire platted area for the reciprocal use of future owners of the private land within the development. Th at court clearly assumed that the notation was intended for prospective landow ners as a dedication to the land owners as a whole f or reciproca l use, when in fact , it wa s merely a notice to A nne Aru ndel Cou nty that no dedication was intended. The law of dedication, as stated above, clearly shows that 9 Both the trial court and the Court of Special Appeals examined other conveyances of waterfront p rope rty from the Severna Company to individual landowners. As we have found n o am bigu ity, ho wev er, co nsid erati on of ext rinsi c docum ents is un nece ssary. -14- the effect of such a notation reserved the riparian rights to the Severna Company. When the waterfront property was conveyed to Rossee, prior to any conveyance to the Olde Severna Park Improve ment As sociation, the S everna C ompany co nveyed exa ctly what it then possessed; i.e., the land and the riparian rig hts. For the foregoing reasons, we affirm the decision of the Court of Special Appeals. JUDGMENT OF THE COURT O F S P E C I A L A PP E A L S AFFIRMED; COSTS TO BE PAID BY PETITIONER. -15-

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