Weems v. Calvert County
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Thomas I. Weems, Jr., et al. v. County Commissioners of Calvert County No. 97, September Term, 2006 Headnote: When th e languag e of an ea sement is u nambigu ous in dem arcating the boundaries of the easement, courts will not look outside the four corners of the granting docume nt. The phrase having for its westerly termin al the lands o f the granto r, Lydia Leitch , is clear and unambiguous language that the particular easement ends where it first touches the property then owned by Lydia Leitch. That is the easement s westerly terminus. Furthermore, governmental entities may not legislatively terminate, by enactment of a statute, an indiv idual s right to exclude others from their private p roperty. Spe cific ally, § 15-201 of the Calvert County Code, in relevant part, is unconstitutional in that it gives the public the right to use the private property of a landowner without providing the landowner compensation for that taking or without the landowner s permission. It improperly and serio usly in terfe res w ith th e lan dow ner s righ t to ex clud e oth ers f rom the p rope rty. Circuit Co urt for Calver t County Case # 04-C-02-000450 IN THE COURT OF APPEALS OF MARYLAND No. 97 September Term, 2006 Thoma s I. Weem s, Jr., et al. v. County Comm issioners of Calve rt County Raker Cathell Harrell Battaglia Greene Rod ows ky, Lawr ence F . (Retired , specially assigned) Wilner, Alan M. (Retired, speciall y assigne d), JJ. Opinion by Cathell, J. Filed: March 16, 2007 Thomas I. Wee ms, Jr., M . Linda Weem s, Geo rge J. W eems, Jr., Thomas Loch Weems, Courtney Weems-L ooman, M arsha Wall Taylor, and Fred Taylor, Jr., appellants, (sometimes referred to as Weem s) filed a declaratory judgmen t action in the Circuit Court for C alvert County against the County Commissioners of C alvert Cou nty, appellees, w ith respect to disputes arising out of land located in that County. They sought a declaration as to the westerly terminus of a public eas ement, a declaration as to the ownership of an area known as Leitch s Wharf, and a declaration that § 15-20 1 of the C alvert Cou nty Code a s it pertains to the property known as Leitch s Wharf is unconstitutional in that the statute constitutes a taking of the Weems property without just compensation. Thus, began the litigation odyssey upon which the p arties are embarked. A fter a decision they deemed adverse to their interests, the Weems a ppealed to the Cou rt of Special Appeals. There they raised the following issues: I. Whether the trial court erred in finding th e easeme nt granted to the Coun ty in the 1949 deed was ambiguous and that the location of the easement extends to the present day barricade where no competent eviden ce was p resented to show the easem ent extends past the turnaround described by appellants witness who had both personal knowledge and expertise in property law, and where his testimony was consistent w ith a surveyor s letter and photograph entered into evidence. II. Whethe r the trial court err ed whe n it denied appellants motion to alter or amend judgment and/or for a new trial where appellants attached letters from the sheriff s of fice and o ffice of the State s Atto rney for Calv ert County indicating trespassers, when confronted by a Deputy, presented a copy of §15201 of the Co unty Code to justify their use of Leitch s Wh arf and the State s Attorney opined that the law is unconstitutional but that his office does not have the pow er to make a constitution al determina tion for that c onclusion rests with the ju dicia ry. III. Whether the trial court erred w hen it granted only partial summa ry judgment to plaintiff/appellants where appe llee s opposition to summ ary judgment contained affidavits from two road wo rkers that did not address the easemen ts and we re unrespo nsive to appellants affidavits, where the wo rkers had no personal knowledge of the legal status of the road, the deeds or the easemen t. IV. Whether the trial court erred as a matter of law when it dismissed appellants request for a declaratory judgment on the constitutionality of §15201 of the Calvert County Code. Appe llants ask this Court in the interest of time and justice to determine the constitutiona lity of §15-201 of the Calvert Coun ty Code - W here it is undisputed the County easement does not extend to Leitch s Wharf; L eitch s Wharf is specifically named in the local code; the Attorney General s office indicated it would n ot participate in the action; appellants p roperty is still subject to trespass; and without a ruling on the constitutionality of the code, law enforcement cannot effectively respond to the public s unlawful use of appellants property and th e State s A ttorney s office cannot pro secute offen ders fo r crimin al trespa ss. Initia lly, the Court of Specia l Appeals , in an unreported opinion, found the language of the easement at issue to be ambiguous: Appellants next contention contains tw o parts. First, app ellants claim that the trial court erred in finding th at the 1949 Deed was ambiguous. Second, they complain that the court erred in ruling that the easement extends to the present day barricade. . . . , because there was no competent evidence that showed that the easement extends past the turn around [sic] . . . . We shall res olve the first poin t, but we are una ble to res olve the second . In concluding that the easem ent was indeed am biguous, the intermediate ap pellate court further found th at the testimon y at the trial, by the nature in which it w as given and the failure of trial counsel to clarify the issues by connecting the testimony to the exhibits in the record, did not contain a sufficient description of the ease ment, as presented in that record, -2- to resolve the language it con sidered ambiguou s. Accordingly, the intermediate appellate court found it necessary to remand the case for fur ther pro ceedin gs. Furthermore, because of its determina tion regardin g the easem ent, the court did not resolve any of the other issues. Rather, the court chose to neither affirm nor reverse the [trial] court s determination as to the location of the easement and stated that, [i]nstead, we shall remand for further proceedings. . . . Given our resolution of the case, we also decline to reach the constitutiona lity claim in Count III, which the [trial] court below did not address based on a finding of mootness. After the remand hearing, appellants again appealed. On our own motion we issued a writ of certiorari on December 11, 2006, to the Court of Special Appeals prior to any further procee dings in that cou rt. Weem s v. Calvert C ounty, 396 Md. 11, 912 A.2d 647 (2006). In this appeal appellants present two questions: I. Whether the trial court erred in arbitrarily disregarding appellants expert s opinion and therea fter finding that the westerly terminal of the easement granted in the 1949 Deed, was located within Appellant Weems property[?] II. Whether the trial court erred when it did not find §15-201 of the Calvert County Code u nconstitutional as applied to appellants pro perty at Leitch s Wharf[?] In reaching our determination, it is necessary to review the two key documents that are in dispute : (1) the e aseme nt at issu e and (2 ) § 15-2 01 of th e Calv ert Cou nty Cod e. The language of the easement that creates the present controversy is found in a Deed -3- granting easements from num erous parties to the Cou nty Commissioners o f Calvert County. The controversial language provides: 2. The rem aining of th e above m entioned p arties of the f irst part do hereby grant a parcel or strip of ground beginning for the same at the intersection of the present County road, and the land of Thomas I. Weems and Clifton Smith, and running in a westerly direction adjacent to and through the lands of the abo ve mentio ned parties o f the first part, and running with the center of the said present county road, said 30 foot strip lying 15 feet on each side of the center line thereof, and having for its westerly terminal the lands of the grantor, Lydia Leitch. [Emphasis ad ded.] Section 15 -201 of th e Calvert C ounty Cod e provides in relevant p art: Subtitle 2 Access to Wharves and Landings § 15-201. Established. [Code 1981, § 15-101, 1985, ch. 715, § 2] (a) The public shall have an easement or right-of-way over any roads or ways in C alvert C ounty lea ding to . . . Leitch s Wh arf . . . . (b) The purpose of this easement or right-of-way is solely for access to the wharves and landin gs and en joyment of the wharves and landings by the public. A. The Language of the Easement The only language of the easement that is in controversy in this case is the last phrase: having for its westerly terminal the lands of the grantor, Lydia Leitch. That language simply is not ambiguous. While there may be some confusion as to who was a party of the first part at any given pla ce in the gra nting docu ment, the ea sement be ing granted had its westerly boundary clearly fixed. Therefore, as relevant to the present controversy, it makes no difference who was w ho. Th e easem ent end s at the ea semen t s wes terly termin us, i.e., -4- where it first touches the property then owned by Lydia Leitch. All of the evidence is consistent that the turnabout as shown on the various photographs and plats marks the point where the right-of-w ay first touched Lydia Leitch s land. None of the parties seriously contests that point. Accordingly, that is where the easement ends.1 The term westerly as used in the deed of easement does not refer to the westerly boundary of the Leitch prope rty, it refers to the westerly boundary of the easement. The lands of Lydia Leitch was, in essence, a call it de fined the w estern end p oint of the easement, i.e., the western boundary, which is the easement s terminus. A call is a term used in describ ing the b ounda ries of p roperty. Black s Law Dictionary 217 (8th e d. 2004), de fines a ca ll as 5. A la ndmark designating a property bound ary. 2 In a case involving a dispute as to whether the underlying title of certain grantees carried to the middle of a public way, we ex plained the nature of calls. We s aid in Hunt v. Brown, 75 Md. 481, 48 3, 23 A. 1029, 10 30 (1892): And, whatever may be the rule elsewhere, it is well settled in this State that a grant of land by metes and bounds and courses and distances, with calls for visible boundaries on the side of a highway; for instance a call for a stone planted in the south side of the road, and running thence, by the south side of the road to anothe r stone, these calls and boundaries will be construed as defining the limits of the property thereby conveyed; and the grantee under such a grant will not take the fee to the middle of the road. (Emph asis added .) 1 We are only concerned in this case with the rights granted to the County in the 1949 deed of easement. 2 The landmarks are chosen by the surveyor and recorded in his field notes or in the accompanying deed. Black s Law Dictionary 217 (4th ed. 2004). -5- See Gump v. Sibley, 79 Md. 165 , 28 A. 977 (189 4). We noted in Crook v. Pitcher, 61 Md. 510 (1884), that we were faced with a c laim that the description of a private way was ambiguous. The relevant language of the instrument provided . . . from said land, over a road adjoining the same, and running to the highway which leads from Chase s Station to the Philadelph ia road . . . . Id. at 514. We held that [t]he termini a quo [from which] and ad quem [point of arrival] are distinctly stated, . . . and is . . . a sufficient description of the way obstructed. Id. at 514- 15 (citat ions om itted). In respect to the description of the easement in the case sub judice, it, as indicated, sets its terminus as the lands of Lydia Leitch. Laying a course to the lands of a particular party is, as noted supra, a call. It sets the boundary of that property being granted by referencing the boundary of another property beyond which the lands being granted do not go unless expressly provided otherwise. We talked about beginning and ending terminus calls in Capron v. Greenway, 74 Md. 289, 291-93, 22 A. 269, 269 (1891), albeit as dicta: In the deed of February, 1872, from the trustees to the appellee, a private right of way, 66 feet in width was reserved, running north from the above mentioned county road [now Merryman s lane] and extending along the wester n line of said lot c onveyed to Gree nway . . . . The appellee erected a fence across this right of way, and the appellant filed a bill of com plaint now before us , praying that G reenway m ight be requ ired to open th e right o f way . . . . By the express terms of the deed of 1872, the way extended north from Merryman s lane alo ng the w estern lin e . . . , and no further . . . . Its northern extremity was coincident with the northern terminus of Greenway s w estern line in the deed of 1872, and that po int was 525 feet no rth of Merryman s lane. (Brackets in original.) See also Kelly v . Nagle, 150 M d. 125, 132 A. 587 (1 926); Rowe v . Nally, 81 Md. 367, 368, -6- 32 A. 198, 198 (189 5) ( It was a lso averred . . . he was en titled to have a gate maintained at the public road at the terminu s of the strip. ). In the case sub judice, it is clear that the western boundary of the easement ends at the Leitch property, not w ithin the prop erty, and not at the westerly boundary of the property, but at the very point w here the ea sement firs t touches the then prop erty of Lydia Leitch (extant from the record as marked on the various photographs and maps as the turnaroun d). This clearly and unambiguously demarcates the westerly point of the right-of-way as described in the deed. There is no d ispute as to the other bound aries of the easement relevant to the instant case. This case only concerns the western boundary of the public easement. The County has no rights, under this easement, beyond that point. On that issue, there is no ambiguity in regar d to the e aseme nt. When the Court of Special Appeals first addressed the issue, that court should not have remanded the case. It should have found the contested descrip tion in th e easem ent to be unam biguou s as we do toda y. In deeds gra nting easem ents, ambig uity only exists when the particular location point at issue cannot be determined, not in instances where the location point is clear from the language of the deed. If there was any ambiguity in re spect to lang uage (of w hich there is none in this case with respect to the boundary at issue) then, in s uch an ev ent, other evidence might be considered to att emp t to lo cate the right of w ay. The case sub judice, howev er, is distinguisha ble from cases in which the Court has found it necessary to look outside the four corners of a granting d ocumen t. -7- The case of Sibbel v. Fitch, 182 Md. 323, 325-27, 34 A.2d 773, 773-74 (1943), involved language granting an easement from one place to another but not fixing the intervening location. Grantors conveyed a 91+ acre tract of property that lay between the Grantors family cemetery and a public road, but included language in the conveyance that read: saving thereout the fa mily graveyard and reserving also a right of way to and from the graveyard. Id. at 325, 34 A.2d at 773. There was no other attempt to fix the location of the right-of-way. From the time of the original conveyance in 1866 until at least 1918 (during which period there were conveyances of portions of the 91+ acre tract) the right of way to the fam ily graveyard ran in an easterly direction between the h ouse and barn tha t were on the farm in 1866, and after passing the barn turned north and ran to the graveyard. Id. It was called the Old Road. Id. During the period of 1917 through 1926 a new road was built by one of the suc cessors to the original grantee of the 91+ acre tract. The original old road was still interm ittently used. Between 1926 and 19 39 there were sev en funera ls, all of which went over the new road. Id. at 326, 34 A.2d at 773. In 1939, the owners of the servient tract erected a barrier to keep persons from using the new road to reach the graveyard. We described the initial issue as: The principal question for decision is whether the appellees have acquired any vested right in the new road. Id. at 326, 34 A.2d at 774. The Court opined: The deed of 1866 reserved a right of way in general terms, without defining its location my metes and bou nds. For more than half a century the old road was used as the right of way reserved, and this raises an inference that the owners of the dominant and servient tenements had agreed upon the metes and -8- bounds of the right of way rese rved, and its lo cation thereb y became as definite and fixed as if it had been described in the deed of 1866 by metes and bounds. There is every indication that the old road was in existence prior to 1866, and was the existing right of way to the family graveyard at the time the deed of 1866 was executed. Where a way is granted without fixing its location, but there is a way already located at the time of the grant, such way will be held to be the location of the way granted unless a contrary intention appears. 28 C. J. S., Easem ents, Sec. 80, Subsec. b. This principle of law is well settled, and after the location of the right of way which has been granted in general terms has been defined and fixed by the owners of the dominant and servient tenements by user in a particular location over a long period of time, it becom es as defin itely established as if the grant or reservation had so located it by metes and bounds and the location of the right of way as thus defined can only be changed by agreement of the owners of the dominant and servient tenements. Where an easement in land, such as a way, is granted in general terms, without giving definite location and description of it, the location may be subseque ntly fixed by an express agreement of the parties, or by an implied agreement arising out of the use of a particular way by the grantee and acquiescence on the part of the grantor, provided the way is located within the boundaries of the land over which the right is granted. As otherwise expressed, it is a familiar rule , that, when a right of way is granted without defined limits, the practical location and use of such a way by the grantee under his deed acquiesced in for a long time by the grantor w ill operate to fix the location. The location thus determined will have the same legal effect as though it had been fully described by the terms of the grant. 28 C. J. S., Easem ents, Sec. 82. Sibbel, 182 Md. at 32 6-27, 34 A.2d at 77 4 (emphasis adde d).3 See also Amabile v. Winkles, 276 Md. 234, 241, 347 A.2d 212, 216 (1975) ( It must first be noted that an imp recisely described easement may be pre cisely located by user. ); Taylor v. Solter, 247 Md. 446, 231 3 In Sibbel, the dispute was not about the terminus of the easement, but, how to get there. The terminus was clear the cemetery. The terminus is equally clear in the case at bar the turnaround, i.e., . . . the lands of . . . Lydia Leitch -9- A.2d 697 (196 7); Burroughs v. Milligan, 199 Md. 78, 84, 85 A.2d 775, 778 (1952 ) ( Where a right of way over [an] existing road was involved and the Court noted: What that existing road was at that time is a q uestion of f act. ); Weeks v. L ewis, 189 Md. 424, 56 A.2d 46 (1947); Stevens v. P owell, 152 Md. 604, 608, 137 A. 312, 313 (1927) ( The definition of its course by actu al user durin g the period of its enjoyment b y the domina nt, and its recognition by the servient ow ners, is a sufficient identification of the w ay . . . . ).4 In the case sub jud ice, the westerly terminus of the right of w ay was not c ouched in general terms, as w ere the bou ndaries in the cases abo ve discusse d, but, rather it w as specifically and purposefully described as having for its [the easement s] westerly terminal the lands of the grantor, Lydia Leitch. That description of the westerly terminus has specifically defined and fixed limits, consistent with the Court s holding in Sibbel. We hold that the relevant lang uage in the deed of e asement w as not ambiguous. It clearly stated that the right-of-way terminated at the property line of Lydia Leitch which is presen tly marke d by the tu rnarou nd on th e exhib its in the re cord. W e hold that the turnaround point marks the end of the public right to the road insofar as the rights granted under the easement are concerned. In light of our decision in this case that the disputed language in the deed of easement is not ambiguous, we need not further answer appellants 4 As far as the County s rights under this easement are concerned, the County s maintenance, if any, of any area inside the lands of Lydia Leach, the testimony of roads employees, and the like, are simply not relevant. The roadway beyond the turnaround was never part of the County road under the provisions of the easement at issue. It stopped at the turnaround. -10- question as to whether it was reversible error for the tr ial court to ignore or reject the testimony of M s. Add is. We sha ll now ad dress the sec ond que stion presen ted by appellan t. B. The Constitutionality of § 15-201 of the Calvert County Code as Applied to A ppellants Prop erty With our d ecision today, all of the property then owned by the late Lydia Leitch from the point of the turnaround, if not otherwise conveyed to governmental entities since the deed of easement of 1949, remains private property, and is entitled to all the protections afforded by the Federal and State Constitutions.5 One of the most important cases involving a governm ental taking of the rig ht to exclude segment of the bu ndle of rights that comprise private property rights, is Nollan v. California Coastal Commission, 483 U.S. 825, 831-32, 107 S.Ct. 3141, 3145-46, 97 L. Ed. 2d 677 (1 987). Nollan is in many ways fundamentally similar to the case sub judice. The primary diffe rence is the procedure used in Nollan versus the procedure used in the case at bar. In both instances, private property owners were required by public agencies to give up their rights to exclude others from their private property without receiving compensation for the taking of their property rights. 5 The specific complaints of appellants as to the trespass of other persons, of which they complained to the County and the Sheriff, primarily related to the area beyond the barricade. The County appeared to concede that the area was not within the bounds of what it claimed to be its public road. With our decision today, unless the area of the road beyond the turnaround has been acquired by the County since the time of the 1949 deed, all of that area beyond the turnaround is private as well. The public has no rights to such private property. -11- When the Nollans sought to build a beachfront cottage, they were confronted with the provisions of a Californ ia statute that required them to ob tain a perm it from the C alifornia Coastal Commission. The Commission would only issue a permit if the Nollans would grant a public acce ss easeme nt across the ir property. The California Supreme Court upheld the regulatory action . The Un ited States Su preme C ourt reverse d, saying, in releva nt part: Had California simply required the Nollans to make an easement across their beachfront available to the public on a perman ent basis in order to increase public access to the beach, rather than conditioning their permit to rebuild their h ouse on th eir agreeing to do so, we ha ve no do ubt there w ould have been a taking. To say that appropriation of a public easement across a landowner s premises does not consti tute a taking of a property interest but rather . . . a mere restriction on its use, . . . is to use words in a manner that deprives them o f all their ordina ry meanin g. . . . We hav e repeated ly held that, as to prop erty reserved by its owner for private use, the right to exclude [others is] one of the most essential sticks in the bundle of rights that are commonly characterized as property. In Loretto [6] we observed that where governmental action results in [a] perma nent physical o ccupation of the prop erty, by the go vernm ent itself or by othe rs, . . . our cases uniformly have found a taking to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner . . . . We think a permanent physical occupation has occurred, for purposes of that rule, where individuals are given a permanent and continuou s right to pass to and fro, so that the real property may continuously be traversed, even though no particular individual is permitted to station himself permanently upon the premises. Nollan, 483 U.S. at 831-32, 107 S. Ct. at 3145-46 (brackets in original) (citations omitted) (emphas is added) (footn ote om itted). In reversing the California Supreme Court s decision, the Court c oncluded that: 6 Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed. 2d 868 (1982). -12- The Commission may well be right that it is a good idea, but that does not establish that the Nollans (and other coastal residents) alone can be compelled to contribute to its realization. Rather, California is free to advanc e its comprehensive program, if it wishes, by using its power o f eminen t domain for this public purpose, see U.S. Const., Amdt. 5; but if it wants an easement across th e Nolla ns pro perty, it mu st pay for i t. Nollan, 483 U.S. at 841-42, 107 S. Ct. at 3151. The Supreme Court has remained consistent in asserting tha t included a mongst a property owner s bundle of rights is the right to e xclude others. See United States v. Craft, 535 U.S. 274 , 283, 122 S .Ct. 1414, 1 423, 152 L.Ed.2d 4 37 (2002 ); Dolan v. City of Tigard, 512 U.S. 374, 384, 114 S.Ct. 2309, 2316, 129 L.Ed.2d 304 (1994) ( [T]he right to exclude others is one of the most essential sticks in the bundle of rights that are commonly characterized as property. (quoting Kaiser Aetna v. United States, 444 U.S. 164, 176, 100 S.Ct. 383, 391, 62 L.Ed.2d 3 32 (1979 ))); see also C ollege Sav ings Ban k v. Florida Prepaid Postsecondary Educatio n Expense Board, 527 U.S. 666, 673, 119 S.Ct. 2219, 2224, 144 L.Ed.2d 605 (1999) ( The hallmark of a protected property interest is the right to exclude others. ). In Kaiser Aetna, the Supreme Court discussed the right to exclude issue in relation to the Federal Governme nt s attempted imposition of a navigational servitude. 444 U.S. 164, 100 S.C t. 383. Justice R ehnquist, writing for the Court, presented the issue as follows: The Hawa ii Kai Marina was developed by the dredging and filling of Kuapa Pond, which was a shallow lagoon separated from Maunalua Bay and the Pacific Ocea n by a bar rier bea ch. Although under Hawaii law Kuapa Pond was private property, the Court of Appeals for the Ninth Circuit held that when petitioners converted th e pond in to a m arina and thereby connected it to the -13- bay, it became subject to the navigational servitude of the Federal Govern ment. Thus, the public acquired a right of access to what was once petition ers priv ate pon d. Id. at 165, 1005 S. Ct. at 385. The Court addressed the relevant aspect of prope rty rights in its review o f the Gov ernment s argumen t: The Government contends that as a result of one of these improvements, the pond s connectio n to the naviga ble water in a manner approved by the Corps of Engineers, the owner has somehow lost one of the most essen tial sticks in the bundle of rights that are commonly characterized as property the right to exclud e others . Id. at 176, 100 S. Ct. at 391. In conclusion, the Court stated: In this case, we hold that the right to exclude, so universally held to be a fundamental element of the property right, falls within this category of interests that the Government cannot take without compensation. This is not a case in which the Government is exercising its regulatory power in a manner that will cause an insubstantial devalua tion of petitio ners priv ate p rope rty; rather, the impositio n of the na vigational se rvitude in this conte xt will result in an actual physical in vasion of the p rivately ow ned m arina. . . . Thus, if the Government wishes to m ake wh at was fo rmerly Kuap a Pond in to a public aquatic park . . . it may not, without invoking its eminent domain power and paying ju st comp ensatio n, requi re them to allow free ac cess . . . . Id. at 179-08, 100 S. Ct. at 393 (emphasis added ) (footnote omitted). Fina lly, and perh aps most in teresting, is a very recent F ourth Circuit case with facts very similar to those in the case sub judice. Presley v. C ity of Charlo ttesville, 464 F.3d 480 (4th Cir. 2006) (a 42 U.S.C. § 1983 (2000) case decided on other grounds). Judge Motz, writing for the court, described the facts of that case: She [Presley] allege s that, withou t her consen t, the Defen dants conspired to publish a map that showed a public trail crossing her yard. Presley further alleges that, even after the Defendants realized their error, they did not correct -14- it but rather criminally prosecuted her w hen she herself took measures to preven t trespas ses on h er prop erty. . . . ... Presley s home and yard encompass less than an acre of land along the Rivanna River. In 1998, without having obtained her consent, the RTF [Rivanna Trails Foundation, a defendant] began distributing a map that displayed a public trail known as the Rivanna trail crossing a portion of Presley s property. The City publicized the RTF s map on the City s official website. Relying on the Rivanna trail map, members of the public began traveling across Presley s yard, leaving behind trash, damaging the vegetation, and so metim es even setting u p overn ight cam p sites. . . . Although the Defe ndants ack nowled ged their erro r, they assertedly neither changed the map nor stopped its distribution. Rather, several RTF officials and mem bers of the Charlottesv ille city council met with Presley and asked her to give the D efendan ts an easem ent across h er property in exchange for favorable tax treatment and other official favors (but not compen sation). Presley refused. The intrusions by trespassers persisted and became more severe. Presley called the City police several times to eject the trespassers, but, although the police responde d regularly, they cou ld not stem the tide. Presley then posted over one hundred no trespassing signs on her property, all of which were d efaced and de stroyed. Finally, Presley installed razor wire along the perimeter of her property. City officials responded by revising a local ordinance to prohibit Presley s protective measures and then bringing a criminal prosecution against her for vio lating th at ordin ance. The prosecution was lat er dism issed. Id. at 482-83. The Fou rth C ircuit discuss ed th e seizure of P resle y s property, finding that: In fact, the Supreme Court has held that a seizure of p rope rty occurs whenever there is some meaningful interferenc e with an individual s possessory interests in that property. Presley, 464 F.3d at 487 (quoting United States v. Jacobsen, 466 U.S . 109, 113, 1 04 S. Ct. 1652, 80 L. Ed. 2d 85 (1984)). The Court found that the constant physical occupation by people using -15- the path certainly constitutes a meaningful interference with Presley s possessory interests in her property. Id. Distinguishing between the actions of private individuals and government action, the Court opined: Of course , it is privat e individ uals, no t City offi cials, w ho have actually interfered with Presley s possessory inte rests here. Altho ugh priva te actions generally do not implicate the Fourth Amendment, when a private person acts as an agent of the Government or with the participation or knowledge of any governmental official, then the private person s acts are attributed to the go vernm ent. Jacobsen, 466 U .S. at 113 , 104 S.Ct. 1652 (internal quotation marks om itted). The government need not compel nor even involve itself directly in the private person s actions. For example, in Skinner v. Railway Lab or Executives Ass n , 489 U.S. 602, 614-15, 109 S.Ct. 1402, 103 L.Ed.2d 6 39 (1989), the Sup reme Court held that breath and urine tests required by private railroads implicated the Fourth Amendment when the railroad s volun tarily com plied w ith fede ral regu lation go vernin g such tests. As in Skinner, several facto rs in this case com bine to convince us that [the Defendants] did more than adopt a passive attitude toward the underlying private conduct and that theref ore the acts of p rivate person s are attributab le to the De fenda nts. See id. at 615, 109 S.Ct. 1402. At some point the Defendants knew that their map was erroneous. They also knew that the Rivanna trail map w ould enco urage pu blic use of the trail this was, after all, the map s purpose. Finally, Defendants also knew that the City s involvement would communicate to trail users that there were no legal barriers to their use of the entire trail, includin g the po rtion tha t cut thro ugh P resley s pr operty. Cf. Rossignol v. Voorhaar, 316 F.3d 516, 52 5-26 (4th Cir.2003) (seizu re attributable to the government when official gave significant encou ragem ent to its [allege dly private ] perpe trators ). Nevertheless, despite this knowledge, the Defendan ts assertedly did nothing to correct their error, and consequently, in reliance upon the erroneous map, p rivate in dividu als tresp assed o nto Pre sley s yard. Presley, 464 F .3d at 48 7-88 (b rackets in origin al) (foo tnotes o mitted). In the case sub judice, § 15-201 of the Ca lvert Coun ty Code prov ides in pertine nt part: The public shall have an easement or right-of-w ay over any road s or ways in Calvert County leading to . . . Leitch s Wharf . . . . The purpose of this -16- easement or right-of-way is solely for access to the wharves and landings and enjoyme nt of the wharv es and l anding s by the pu blic. It is constitutionally impermissible for the government to give the p ublic the right to use the private property of a landowner without that landowner s permission, just as it would be unconstitutional for a governmental entity to enact a statute to give the public the right to go into and reside in the private home of a citiz en in Po tomac , or An napolis , or Oce an City. A governmental entity cannot grant som e sort of licen se to the pub lic to go into a homeo wner s bedroom or his or her backyard. The legal and constitutional principles are exactly the same wheth er applie d to a be droom or a field . The property desc ribed as Le itch s Wh arf is clearly private prop erty (even prior to this case, the County did not contend that the area beyond the barricade w as public property), yet § 15-201 gives to the public a right-of-way and use ease men t to ap pella nts p rivate property. That § 15-201 encourag es memb ers of the p ublic to use a ppellants pro perty is clearly established. As a result of this statutorily mandated right-of-way, the Sheriff s Department has declined (or at least has bee n relucta nt) to forc e tres pass ers o ff of the prop erty. 7 The injury created by § 1 5-201 is cle arly shown b y the evidence in th e record of this case. Section 15-201 seriously impe des the righ ts of appella nts to exclud e others fro m their priva te prop erty. As applied to the lands of L ydia Leitch as th ey existed in 19 49; it is 7 The record indicates that when the Sheriff s Department has responded to appellants complaints concerning trespassers, the alleged trespassers have presented copies of § 15-201 in assertion of their right to be on appellants property. -17- unconstitutional in that it improperly and seriously interfere s with app ellants rights to exclude others from their property without compensating them for the taking of that right to exclude stick from their bundle of property rights. Unless there have been conveyances to the County since 1949 of parts of the property that were lan ds of Lydia Leitch at the time of the 1949 easement, all of the lands of L ydia Leach, as of 1949, westerly of the turnaround, as indicated on the exhibits, are private prop erty. No public right-of-way exists westerly of the turnaround; the public has no right of access past that point to any of the lands of Lydia Leitch, including any lands of hers, or her assig ns, con sidered to be pa rt of L eitch s W harf. 8 JUDGMENT OF THE CIRCUIT COURT FOR CALVERT COUNTY REVERSED; CASE REMANDED TO THAT COURT TO ENTER A DECLARATORY JUDGMENT CONSISTENT WITH THIS OPINION; COS TS T O BE PAID BY A PPE LLE ES. 8 What comprises the area of Leitch s Wharf is unclear. The exhibits in the record indicate that the wharf no longer exists and, when it was in existence it was situated at a different place on the lands of Lydia Leitch, far removed from the area of the barricade where much of the controversy had been centered. It may refer to the whole general area. It is unclear. But, in any event, there are no public access rights beyond the turnaround. -18-
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