text:
    JOHN T. STAUB, JR. v. JOHN T. STAUB, SR.
    [No. 757,
    September Term, 1976.]

      Decided September 7, 1977.

    The cause was argued before Morton, Davidson and Liss, JJ.

      Richard M. Winters, with whom was Robert D. Osburn, Jr., on the brief, for appellant.

      Kenneth J. Mackley, with whom were Mackley & Gilbert on the brief, for appellee.
   Davidson, J.,

delivered the opinion of the Court.

On 5 January 1954, John C. Staub (grandfather i purchased Series H United States Savings Bonds in the amount of $5,000 payable on death to his grandson, John T. Staub, Jr. The grandfather died on 9 March 1954 when his grandson was 17 months old. Thereafter, John T. Staub (father) cashed the interest checks which accrued from the bonds. On 19 May 1955, the father signed the name of John T. Staub, Jr. (son) on a form which requested that the bonds be reissued in the names of John T. Staub, Jr. or John T. Staub. The father continued to cash the interest checks as they accrued. In November, 1959, the father cashed the bonds.

On 6 June 1975, in the Circuit Court for Frederick County, the son, the appellant, filed suit against the father, the appellee, for trespass and conversion. Compensatory and punitive damages were sought. Judge Samuel T. Barrick found that the father had trespassed on the interest checks between 1954 and 1959, and had converted the bonds in 1959. In essence, he awarded the son $200 plus six percent interest for each of the years between 1954 and 1959 as compensation for the interest which had accrued on the bonds. In addition, he awarded him $5,000 plus six percent interest from September, 1959 as compensation for the bonds.

I

The son first contends that the bonds were converted on 19 May 1955 when the father had them reissued in his or his son’s name rather than in November, 1959 when the father cashed them. We do not agree.

The question of the time at which a conversion occurs has not previously been considered in Maryland. Conversion has been defined as a distinct act of ownership or dominion exerted by a person over the personal property of another which either denies the other’s right or is inconsistent with it. “[T]he gist of a conversion is not the acquisition of the property by the wrongdoer, but the wrongful deprivation of a person of property to the possession of which he is entitled.” Accordingly, a conversion occurs at such time as a person is deprived of property which he is entitled to possess.

Applying this principle to the instant case produces a clear result. Here the record shows that although the father wrongfully added his name to the bonds in 1955, the son was not then deprived of his property. Even after the bonds were reissued, the son as a co-owner could have cashed them at any time. It was not until 1959, when the father cashed the bonds, that the son was deprived of his property. The bonds were converted in 1959 when the father cashed them. The trial court did not err.

II

The son further contends that as compensatory damages he was entitled not only to an award of $200 plus six percent interest for each of the years between 1954 and 1959, but also to $200 plus six percent interest for each of the years from 1959 to the date of judgment. He maintains that “under a trespass theory of recovery” he is entitled to this additional amount as incidental damages. We do not agree.

There is a distinction between trespass to chattels and conversion and the measure of damages applicable to each. Restatement (Second) of Torts, Topic 2 Conversion (1965) states:

“The modern law of conversion began with Fouldes v. Willoughby, 8 M. & W. 540, 151 Eng. Rep. 1153 (1841), where the court first drew a distinction between a mere trespass interfering with possession of a chattel, and a conversion, which must involve some exercise of the defendant’s hostile dominion or control over it. From this there has developed the present rule, which regards conversion as an exercise of the defendant’s dominion or control over the chattel, as distinguished from a mere interference with the chattel itself, or with the possession of it. Since any interference with the chattel is to some extent an exercise of ‘dominion,’ the difference between the two becomes almost entirely a matter of degree.” “(2) In determining the seriousness of the interference .. . the following factors are important:
(a) the extent and duration of the actor’s exercise of dominion or control;
(b) the actor’s intent to assert a right in fact inconsistent with the other’s right of control;
(c) the actor’s good faith;
(d) the extent and duration of the resulting interference with the other’s right of control;
(e) the harm done to the chattel;
(f) the inconvenience and expense caused to the other.”
“The importance of the distinction between trespass to chattels and conversion ... lies in the measure of damages. In trespass the plaintiff may recover for the diminished value of his chattel because of any damage to it, or for the damage to his interest in its possession or use. Usually, although not necessarily, such damages are less than the full value of the chattel itself. In conversion the measure of damages is the full value of the chattel, at the time and place of the tort. When the defendant satisfies the judgment in the action for conversion, title to the chattel passes to him, so that he is in effect required to buy it at a forced judicial sale. Conversion is therefore properly limited, and has been limited by the courts, to those serious, major, and important interferences with the right to control the chattel which justify requiring the defendant to pay its full value.
“No one factor is always predominant in determining the seriousness of the interference, or the justice of requiring the forced purchase at full value. . . . The question is nearly always one of degree, and no fixed line can be drawn. There is probably no type of conduct with respect to a chattel which is always and under all circumstances sufficiently important to amount to a conversion, since the interference with the right of the plaintiff may in each case be either trivial or serious. Not only the conduct of the defendant, but also its consequences, are to be taken into account. In each case the question to be asked is whether the actor has exercised such dominion and control over the chattel, and has so seriously interfered with the other’s right to control it, that in justice he should be required to buy the chattel.”

Although different measures of damages are applicable in trespass and conversion, these two forms of action provide alternative remedies for the same wrong. Where there has been a single interference with a chattel, the owner may recover for trespass or for conversion, but not for both.

In Maryland, the measure of damages for trespass to a chattel is the diminished value of the chattel which results from the damage actually sustained from the time of the taking until the return of the goods. The measure of damages for the conversion of a chattel is the market value of the chattel at the time and place of conversion plus interest to the date of judgment. As in other tort actions, additional damages adequate to compensate an owner for other injurious consequences which result in a loss greater than the diminished or market value of the chattel at the time of the trespass or conversion may be allowed unless such claimed damages are so speculative as to create a danger of injustice to the opposite party.

Here the record shows that the father cashed the bonds in 1959. The trial court properly found that this was so substantial an exercise of dominion and control over the bonds as to constitute a conversion and properly awarded the market value of the bonds at the time of the conversion plus interest to the date of judgment as damages. There is nothing in the record to indicate that the son suffered any other injurious consequence which resulted in a loss greater than the damages awarded. The trial court did not err in failing to award additional damages.

Ill

Finally, the son contends that the trial court erred in refusing to award punitive damages because “[t]he total weight of the evidence produced at the time of trial leads to no other conclusion than the fact that the wrongful acts of the appellee were willful, wrongful, reckless, malicious and fraudulent against the rights of the appellant.” Again, we do not agree.

Under proper circumstances, punitive damages may be awarded in conversion and trespass actions. In order to recover punitive damages in such actions, an element of aggravation evidenced by conduct of an ■ extraordinary nature characterized by a wanton or reckless disregard for the rights of others, sometimes called implied malice or the legal equivalent of actual malice or legal malice must accompany the tortious act. As stated in McClung-Logan Equipment Co., Inc. v. Thomas, punitive damages may be awarded “where the act of the defendant is accompanied with fraud, ill will, recklessness, wantonness, oppressiveness, willful disregard of the plaintiffs rights, or other circumstances tending to aggravate the injury. . . .” Proof of actual malice in the sense of “the performance of an act without legal justification or excuse, but with an evil or rancorous motive influenced by hate, the purpose being to deliberately and willfully injure the plaintiff,” is not a prerequisite.

Whether the malice requisite to an award of punitive damages exists is a question of fact. Such malice need not be shown by direct evidence but may be inferred from acts and circumstances. Even where such malice is established, the award of punitive damages lies within the discretion of the trier of fact.

Here there was evidence to show that the father cashed the interest checks and bonds knowing that they belonged to his son. There was also, however, evidence to show that the father cashed the interest checks and bonds in order to preserve financial investments which provided support for his family, including his son. Indeed, he stated that his failure to use the bonds would have caused him to “lose everything” and thus be unable to care for his family. Under these circumstances, the trial court’s finding that the father did noc act out of evil motives intended to injure his son or with wanton or reckless disregard for his son’s rights was not clearly erroneous. Accordingly, punitive damages were properly denied.

Judgment affirmed.

Costs to be paid by appellant.

      . Interstate Insurance Co. v. Logan, 205 Md. 583, 588-89, 109 A. 2d 904, 907 (1954); Merchants’ National Bank v. Williams, 110 Md. 334, 351-52, 72 A. 1114, 1117 (1909).

      . Saunders v. Mullinix, 195 Md. 235, 240, 72 A. 2d 720, 722 (1950); Lawrence v. Graham, 29 Md. App. 422, 427, 349 A. 2d 271, 274 (1975).

      . Restatement (Second) of Torts, § 222A, Comment a (1965).

      . Id. § 222A(2).

      . Id. § 222A, Comments c, d.

      . See W. Prosser, The. Laic of Torts, § 15 at 80 (4th ed. 1971).

      . Strasburger v. Barber, 38 Md. 103, 108 (1873).

      . Checkpoint Foreign Car Service, Inc. v. Sweeney, 250 Md. 251, 253, 242 A. 2d 148, 149 (1968); Herzbergv. Adams, 39 Md. 309, 313 (1874).

      . See Weishaar v. Canestrale, 241 Md. 676, 684-85, 217 A. 2d 525, 531 (1966); Strasburger v. Barber, 38 Md. at 108.

      . See Wedeman v. City Chevrolet Co., 278 Md. 524, 530-31, 366 A. 2d 7, 11-12 (1976).

      . 266 Md. 136, 148, 172 A. 2d 494, 500 (1961).

      . H & R Block, Inc. v. Testerman, 275 Md. 86, 43, 338 A. 2d 48, 52 (1975).

      . See Wedeman, 278 Md. at 530-31, 366 A. 2d at 11-12.

      . MeClung, 226 Md. at 148, 172 A. 2d at 500. See Vancherie v. Siperly, 243 Md. 366, 374, 221 A. 2d 356, 360 (1966).

      . See Wedeman, 278 Md. at 533, 366 A. 2d at 13.


source: Caselaw Access Project

author: Mason, J.,

license: Public Domain

text:
    JOHN J. FITZGERALD v. MONTGOMERY COUNTY, MARYLAND et al.
    [No. 787,
    September Term, 1976.]

      Decided September 7, 1977.

    The cause was argued before Moylan, Melvin and Mason, JJ.

      John J. Delaney, with whom were Linowes & Blocher on the brief, for appellant.

      Martin J. Hutl, Assistant County Attorney, with whom were Richard S. McKernon, County Attorney for

      Montgomery County, and Sue Levin, Assistant County Attorney, on the brief, for appellees.
   Mason, J.,

delivered the opinion of the Court.

Appellant, John J. Fitzgerald, is the owner of two contiguous tracts of land consisting of approximately twenty-two acres located on the south side of Democracy Boulevard (a six lane dual highway) opposite the Montgomery Mall Regional Shopping Center. Within the neighborhood of the subject property, the zoning pattern and land use is single family residential in accord with the R-R Zone, Rural Residential. Appellant requested reclassification of this property from R-R Zone (now designated as R-200, single family half acre) to C-3 Zone (Highway Commercial) or, in the alternative, R-T Zone (Town House). The Montgomery County Council, sitting as a District Council, denied both applications and the lower court affirmed this decision. Appellant only appeals, however, from the denial of the R-T Zone applications. He contends:

I. That the record is devoid of any legally sufficient evidence which would render the District Council’s denial of the applications for the R-T Zone fairly debatable.

II. That the District Council failed to comply with the statutory requirement of supplying reasons for its conclusions to deny the applications for the R-T Zone.

I.

The R-T Zone has been held to be a “floating zone.” Knudsen v. Montgomery County Council, 241 Md. 436, 217 A. 2d 97 (1966). Accordingly, the Maryland “change or mistake” rule is inapplicable. Such a zone is in the nature of a special exception and the requested reclassification must not only satisfy the express purpose clause of the R-T Zone, but must also result in development compatible with the uses in the surrounding neighborhood. Bigenho v. Montgomery County Council, 248 Md. 386, 237 A. 2d 53 (1968).

The purpose clause of the R-T Zone, as embodied in Section 59.44 of the Montgomery County Zoning Ordinances, provides in relevant part:

The purpose of the R-T Zone is to provide suitable sites for town houses:
(1) In sections of the county that are designated or appropriated for multiple-family residential development at densities of 12.5 units or more per acre; or
(2) In locations of the county where there is a need for buffer or transitional uses between commercial, industrial, or high density apartment uses and low density single-family uses.
. . . The fact that an application for R-T Zoning complies with all specific requirements and purposes set forth herein shall not be deemed to create a presumption that the resulting development would be compatible with surrounding land uses and, in itself shall not be sufficient to require the granting of the application.

Although finding that appellant’s applications technically satisfied the purpose clause of the R-T Zone, the District Council in its resolution and opinion, denied the applications for the following reasons:

(1) The proposed R-T development would not provide a suitable buffer between the commercial development to the north and the low density single-family uses immediately adjacent to the subject property.
(2) The proposed R-T development would not be compatible with the principles and objectives of the Master Plan for the Cabin John Watershed.
(3) The proposed R-T Zoning would permit a much higher density of development than provided for this tract and area in the Master Plan for the Cabin John Watershed.
(4) The proposed R-T development would not be compatible with the use of adjacent properties in the neighborhood.
(5) The proposed R-T development would have detrimental effects on the use of adjacent properties in the neighborhood.

It is evident that the question of density was the principal issue considered by the District Council in determining that the applications for R-T Zoning were incompatible with the surrounding neighborhood. The evidence before the District Council on this issue included, among other things, the report of the Professional Planning Staff of the Montgomery County Planning Board, the report of the Montgomery County Planning Board, and the report of the hearing examiner.

The Professional Planning Staff, which recommended the R-T Zone, stated:

There has been no deviation from the R-R Zoning classification throughout the entire neighborhood. In fact, the entire Cabin John Watershed Master Plan Area has historically been scrupulously adhered to.
[Residential townhouse uses on this site would help to uphold the integrity of the Cabin John Master Plan by retaining only residential uses south of Democracy Boulevard. Granted that the 12.[5] dwelling units permitted in the R-T Zone per acre is significantly more intensive than the 2.0 dwelling units per acre allowed in the R-R Zone utilizing the cluster method of subdivision; however, the staff believes that this site could well be developed with cluster of townhouses providing the stabilization sought for the area.
22 acres of R-T Zoning would generate approximately 272 dwelling units.

The Montgomery County Planning Board, which recommended disapproval of the R-T Zone, suggested:

[T]hat the applicant be permitted to withdraw without prejudice in order to refile under another zoning category with less density than R-T, such as R-60, R-90 or P.D., Planned Development.... [T]he density permitted in the R-T Zone is higher than would be consistent with the objectives of the Master Plan, and that the Planning in the R-T Zone is higher than would be consistent with the objectives of the Master Plan, and that the Planning Board should continue to take a strict view toward the implementation of the Cabin John Master Plan.... [T]hat 275 dwelling units would be too dense a development for this tract but that 175 to 200 units would be more feasible.

The hearing examiner, who recommended approval of the R-T Zone, stated in relevant part:

The total yield from this project will probably be closer to 200 units suggested by the applicant than the unrefined arithmetical computation of 275 dwelling units suggested by the Planning Board.
The R-T Zone would provide a form of development compatible with existing and planned land uses in .the surrounding residential area.
Although the requested reclassification to the R-T Zone is not in strict accord and harmony with the land use designation for this property in the Cabin John Master Plan, it is not antithetical to the planning principles and ideals contained in that Master Plan to retain the area south of Democracy Boulevard within this planning neighborhood for residential purposes and provide stability to the area.
Reclassification to the R-T Zone would not seriously impact public facilities in the area and would be in the public interest.

The neighborhood opposition to the R-T Zone was based on the following:

[T]hat the density permitted in the zone was too great a difference between the adjoining density of development under the R-R Zone.. .. [F]our dwelling units to the acre, producing 90 to 100 units as might be produced in the R-90 or R-60 Zone [would be agreeable], ... [T]here is insufficient open space under such zone and consequently development on the property would not be spacially compatible.

The evidence before the District Council, set forth above, indicates to us that the denial of the zoning reclassification was fairly debatable. It is fundamental that court review of actions taken by the zoning authority is narrow and restricted in scope. Where the zoning authority has declined to rezone, the inquiry of the court is whether there was legally sufficient evidence to support the decision of the zoning body, i.e., was it fairly debatable. Montgomery County Council v. Shiental, 249 Md. 194, 238 A. 2d 912 (1968). Rezoning is a legislative function and it is not for the court to zone or rezone if the legislative finding is based on substantial evidence. Board of County Commissioners v. Turf Valley, 247 Md. 556, 233 A. 2d 753 (1967).

Appellant argues that town house density is an insufficient basis for the denial of the requested rezoning unless it translates into some tangible adverse impact upon public facilities in the community, such as roads, schools and utilities. We do not agree. It is well established that zoning to regulate density is a legitimate exercise of the police power in furtherance of the public health, safety and welfare. See Malmar Associates v. Board of County Commissioners, 260 Md. 292, 272 A. 2d 6 (1971). Clearly, the character of a neighborhood and the quality and lifestyle conceived for it is determined by the density of the development. In Berman v. Parker, 348 U. S. 26 (1954), it was argued that taking property for ridding an area of slums was permissible, but taking it merely to develop a better balanced, more attractive community was not. The Supreme Court, in refusing to limit the concept of public welfare, stated:

We do not sit to determine whether a particular housing project is or is not desirable. The concept of the public welfare is broad and inclusive.. . . the values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. Id. at 32-33.

In Village of Belle Terre v. Boraas, 416 U. S. 1 (1974), the Supreme Court in upholding an ordinance restricting land use to one-family dwellings stated:

A quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land-use project addressed to family needs. This goal is a permissible one within Berman v. Parker supra. The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones, where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people. Id. at 9.

This language clearly suggests that density is a valid consideration in land use development projects. In Queen Anne's County v. Miles, 246 Md. 355, 228 A. 2d 450 (1967), the Court of Appeals held that where alternative zoning categories provide for a variety of housing required in the county, density restrictions in some areas are rationally related to the public welfare. In that case the Court upheld the establishment of a zone with a five acre minimum lot size. Obviously, the purpose in prescribing a minimum lot size was to control the density of the development. In Smith Bros. v. Montgomery County Council, 246 Md. 1, 4, 227 A. 2d 1 (1967), the Court held, among others things, that a “rezoning of ten acres for town houses with a density three times as great as permitted by the existing zoning would not be compatible with the present character of the neighborhood.” Similarly, an increase in density to nearly six times as great as the present zoning permits would be incompatible with the character of the neighborhood in this case.

Whether density, without more, is a sufficient basis to deny a request for rezoning depends upon the facts and circumstances of each case. In Kanfer v. Montgomery County Council, 35 Md. App. 715, 733, 373 A. 2d 5, 14 (1977), this Court said:

[D]ensity per se would not be a valid reason for the denial of the application, unless the District Council could reasonably have found that increased density caused adverse impact upon public facilities such as roads, schools and utilities.

There, the overwhelming evidence showed that the densities permissible under the R-T Zone were entirely compatible and appropriate in terms of existing and planned densities within the neighborhood. It is obvious the facts and circumstances in Kanfer are markedly different from the instant case. Here, the requested zoning would have resulted in a substantial increase in the density of a neighborhood where the Master Plan had been scrupulously adhered to and where there had been no deviation from the low density, single family, R-R classification. Moreover, there is no issue of exclusionary zoning or confiscation of property. The evidence shows that the subject property can be developed under two other single family, residential categories more compatible with the character of the neighborhood and with less density than the R-T Zone.

Therefore, we conclude that the lower court, under the facts and circumstances of this case, was correct in holding that incompatibility based on density consideration alone was a legally sufficient reason for denial of the applications.

II.

The contention of appellant that the District Council failed to comply with the statutory requirement of supplying reasons for its conclusions is without force. In Messenger v. Board of County Commissioners, 259 Md. 693, 706, 271 A. 2d 166 (1970), the court held:

In a case involving a denial by the District Council of the requested rezoning, it is only necessary for the District Council to find that the applicant had failed to meet his burden of proof on any of the elements necessary to justify the requested rezoning. . .

In this case appellant, in order to justify the requested rezoning, had the burden of proving that it not only complied with the purpose clause of the zoning ordinance, but that it also was compatible with the existing and planned uses in the surrounding neighborhood. Here, the District Council, based on the evidence, specifically found that the density permitted in the proposed R-T Zone was incompatible with the adjacent properties in the neighborhood and in conflict with the Master Plan.

Because we have already determined that density, even if it does not impact on public facilities, is a sufficient basis to deny a requested zoning reclassification, we conclude that the District Council made sufficient findings of basic facts to comply with the ordinance and to support its denial of the reclassification.

Order affirmed.

Costs to be -paid by appellant.


author: Powers, J.,

text:
    JAMES W. MATTINGLY et al. v. CHARLOTTE HALL SCHOOL et al.
    [No. 1272,
    September Term, 1976,]

      Per Curiam Order May 24, 1977.

      Opinion Filed September 7, 1977.

    PER CURIAM ORDER
    The Court having considered the Bill of Complaint and the Demurrers thereto, filed in the Circuit Court for St. Mary’s County, and the order entered in that court sustaining the Demurrers to the Bill of Complaint, without leave to amend; and having considered the briefs and the arguments of counsel in this Court on appeal; it is this 2Srd day of May, 1977, by the Court of Special Appeals of Maryland,
    ORDERED that the judgment of the Circuit Court for St. Mary’s County be and it is hereby affirmed.

      An opinion of this Court will be hereafter filed.
    The cause was argued before Powers, Davidson and Melvin, JJ.

      Walter B. Dorsey, with whom were Dorsey & Rue on the brief, for appellants.

      Joseph Ernest Bell, II, with whom was Thomas C. Hayden, Jr., on the brief, for appellees.
   Powers, J.,

delivered the opinion of the Court.

By an order entered on the day this appeal was argued we affirmed the judgment of the Circuit Court for St. Mary’s County, and stated that an opinion of this Court would be thereafter filed. Our opinion follows.

On or about 15 July 1976 The Board of County Commissioners of St. Mary’s County, Maryland, and Charlotte Hall School, a body corporate, entered into a written agreement which was entitled, “Option To Purchase Real Estate”. The effect of the agreement was that the County took an option, for approximately one year, to buy

“All land and real estate of the Seller, known generally as Charlotte Hall School Property, estimated to contain between 260 and 300 acres, more or less, including all buildings and appurtenances.”

Certain personal property of the School was included, and some was excluded.

It was recited that

“This Option is given in order to enable Buyer sufficient time to explore proposed and possible public uses of the property and to determine the method of financing same should Buyer exercise its option.”

The price was to be an amount sufficient to pay two existing encumbrances, approximately $1,150,000.00.

As consideration for the option the County agreed to pay interest on the encumbrances for one year, to pay premiums on insurance policies, and to maintain the property and buildings in a caretaker capacity. It was agreed that if the County did not exercise the option the School would give the County a junior mortgage for the net amount of its outlay in fulfilling its obligations under the agreement.

There were numerous other provisions in the agreement, among them an intangible whose historic significance we cannot ignore. The agreement said:

“The parties acknowledge that the option period reflects a time of great transition, a time immediately following the closing of Charlotte Hall School, a school of 202 years of continued existence. In this respect, the Buyer agrees to cooperate with Seller so as to facilitate, at Seller’s expense, the cataloguing of memorabilia, trophies, souvenirs and other items intrinsic and peculiar to the school, * * *. * * * Seller reserves right to place an appropriate memorial on the premises at a site to be agreed upon by the parties, the memorial intended to give notice of the school’s long and distinguished history.”

Promptly after the option agreement was entered into, James W. Mattingly and five other individuals, as residents and taxpayers of St. Mary’s County, filed a Bill of Complaint against Charlotte Hall School and the members of the Board of County Commissioners, seeking to rescind the agreement and to enjoin the expenditure of public funds pursuant to its terms.

Both the School and the County Commissioners demurred to the complaint. The demurrers were submitted to the court, Robert J. Woods, Judge, who thereafter sustained the demurrers without leave to amend. This ruling constituted a final judgment. Maryland Rule 373 d., from which the plaintiffs appealed.

The only issue, below and here, is whether the Board of County Commissioners had the authority to enter into the option agreement. The authority, if it existed, must be found in Code, Art. 25, § 11A, which reads, in part:

“The county commissioners of every county in the State may acquire by purchase, gift, devise, bequest, condemnation, or otherwise, any property, or any interest therein, of any kind needed for any public purpose * *

And since the statute does not spell out separately the authority to take an option, we must decide whether the grant of express authority to purchase property needed for any public purpose includes, by implication, the power to take an option on property before deciding whether to purchase it.

The decisions dealing with the question are uniform in stating the principles which control. In Rushe v. Hyattsville, 116 Md. 122, 81 A. 278 (1911) the Court of Appeals said, at 126:

“It is settled by all of the authorities that municipal corporations have only such powers as are granted to them by the constitution or statutes, either expressly, or by fair and reasonable construction.
“The following statement from 1 Dillon on Munic. Corp., 4th Ed., sec. 89, is supported by practically an unbroken line of decisions: ‘It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers and no others'.
“First. Those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation — not simply convenient, but indispensable.’ See also cases of St. Mary’s Industrial School v. Brown, 45 Md. 331; Baltimore City v. Bond, 104 Md. 590; Revell v. Annapolis, 81 Md. 9; Minturn v. Larue, 23 How. 436.
“It is equally well settled that any fair and reasonable doubt as to the existence of the power attempted to be exercised must be resolved against the corporation, and in such case the power must be denied.”

The Court of Appeals, in Howard County v. Matthews, 146 Md. 553, 127 A. 118 (1924), had before it the validity of a contract made by Howard County to complete the construction or improvement of a road, after default by the first contractor. The second contract had been made without advertisement and award to the lowest responsible bidder. The Court set out “the settled law of this State.” It said, at 561:

“Counties, like municipal corporations, can only exercise such powers as are expressly granted by the State, together with such implied powers as are necessary for the execution of the powers expressly granted. Officers of a county are public agents of limited powers, and cannot bind the public by their acts in excess of the delegated power, nor can an expressly delegated power be exercised in a manner contrary to the mandatory language of the enabling statute.”

The Court ruled on this aspect of the case, saying, at 564:

“It will therefore be seen that the express power given in the statute to construct a road carried with it the necessarily implied power to complete the construction or improvement in case of default by the original contractor, and that it was unnecessary to readvertise for the completion of the construction or to require a new bond of the contractor who was to complete the road, after assent had been given by the surety on the original contractor’s bond.”

In a brief reference to the question in Duvall v. Lacy, 195 Md. 138, 73 A. 2d 26 (1950), the Court said, at 143:

“Municipal corporations have only the powers conferred upon them by the Legislature, and these are to be strictly construed. ‘To doubt such power in a given case is to deny its existence.’ Hanlon v. Levin, 168 Md. 674, 179 A. 286, 287, Mayor & City Council of City of Baltimore v. Canton Company, 186 Md. 618, 631, 47 A. 2d 775.”

See also Barnett v. Charles County, 206 Md. 478, 112 A. 2d 492 (1955), which involved the wrong choice by the County between a special procedure and general procedures for condemnation of land. The Court noted, at 483:

“It has been generally held that powers granted to county commissioners should be strictly construed, for they confer a special and limited jurisdiction.”

Within the framework of the governing principles of law, we have no difficulty in holding that in the circumstances of this case, the express power to purchase the property, if needed for a public purpose, carried with it the implied power to enter into an option, to assure the availability of the property until the county could determine whether it was needed for a public purpose.

It is plain common sense that the determination of whether a particular piece of property is needed for a public purpose calls for the exercise of judgment by those officials to whom that decision is committed. When we entrust to a public official the power to exercise his judgment on a question of public business, we also charge him with the duty to exercise an intelligent, well informed, and well considered judgment.

An anomaly of this case is that if the Board of Commissioners had made a snap judgment that the Charlotte Hall property was needed by the county, and had entered into a binding contract to buy it, the appellants would not be here. They would not have been in the circuit court. They would have recognized that no matter how much they may disagree with the judgment of the Board of Commissioners, the Board had the power to determine the need, and the power to purchase the property.

Strangely enough, the complaint of the appellants is that the Board of Commissioners entered into the option agreement without having determined that the property was needed for a public purpose.

What the appellants condemn as illegal, we commend as cautious and prudent.

A sound decision to buy or not to buy may require consideration of many factors. The greater the magnitude of the transaction, the greater the need that the decision be a well informed one. To become well informed costs money. What cost is justified in relation to the proposed transaction is a matter of judgment, not a matter of authority.

No one would question the cost of an appraisal, incurred to aid the members of the Board in deciding whether to purchase the property. Buying time is no different from buying information. Both are necessary to the exercise of well informed and well considered judgment. The option bought time.

Whether incurring the cost of the option was good judgment or bad is not the issue. Only the authority to incur that cost is at issue. That authority was a necessary incident to the exercise of the authority to purchase the property.

The demurrer to the bill of complaint was properly sustained, without leave to amend.

      . Charlotte Hall School came into being as the jointly operated Free-School of three Southern Maryland counties. The term “Free-School” connoted that the institution provided a liberal arts education, not that the education was free of cost, although the early Free Schools received a degree of tax support. We record a little of the background to the founding of Charlotte Hall School. An Act of the General Assembly in 1696 contemplated the establishment of a Free School in every county. It provided that the first, to be called King William’s School, (later to become St. John’s College) be founded at a place called “Ann-Arundel Town, upon Severn River”. The second was to be at the Town of Oxford, in Talbot County, with others to follow in every county. In 1723 the General Assembly passed “An Act for the Encouragement of Learning, and erecting Schools in the several Counties within this Province.” It required the erection of one school near the center of each county, and named a board of seven visitors for each county.
      Many of the county Free Schools encountered difficulties, and in 1774 the General Assembly, reciting representations to it by “sundry the Inhabitants of Saint Mary’s, Charles, and Prince-George’s Counties that the Free-Schools in the said Counties do not separately afford sufficient Encouragement for proper Masters”, enacted
      “That as soon as may be, after the End of this present Session of Assembly, there shall be erected one School for the said Counties of Saint Mary’s, Charles, and Prince-George’s, at the Place aforesaid, called the Cool Springs, in Saint Mary’s County, which shall be called by the Name of Charlotte-Hall.”

        The Act also provided for a board of 21 Trustees, seven from each of the three counties.
      By an Act passed in 1798 Calvert County was authorized to participate with the other three counties in the operation of Charlotte Hall School. The number of Trustees was enlarged to 28.


text:
    DEPARTMENT OF NATURAL RESOURCES v. ROGER ADAMS
    [No. 858,
    September Term, 1976.]

      Decided September 8, 1977.

    The cause was argued before Gilbert, C. J. and Morton and Powers, JJ.

      Sharon K. Tucker, Assistant Attorney General, with whom were Francis B. Burch, Attorney General and Warren K. Rich, Assistant Attorney General on the brief, for appellant.

      Edward H. Nabb and Edward H. Nabb, Jr., with whom were Harrington, Harrington & Nabb on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court.

It is inherent in our judicial system that review by an appellate court usually starts, not at the beginning of a case, but at the end, and, going backward from there, may result in the same ending, a new ending, or a new beginning.

One of the many unusual aspects of this duck blind controversy now under review is that we start in the middle and go in both directions. This wide ranging process leads us to conclude that the order appealed from, entered by Judge Daniel T. Prettyman in the Circuit Court for Dorchester County, was correct, and should be affirmed.

The Dispute

The dispute arose over the right to locate a stationary blind for hunting wild waterfowl in the waters of Dorchester County. The judicial phase of this case was initiated in the circuit court when Roger Adams, who is the appellee here, filed, on 10 January 1975, an Order for Appeal from an Opinion and Order of the Board of Review of the Department of Natural Resources. The Board of Review had, on 17 December 1974, upheld a determination made on 19 August 1974 by James B. Coulter, the Secretary of the Department. The Secretary’s determination had approved and reconfirmed an allocation among four applicants, made by a predecessor agency in 1967, of five locations for stationary duck blinds along the statutory Mills Point-Weir Point line, then defined in Code, Art. 66C, § 157 (c).

Roger Adams is the son and successor to the riparian interests of Claude Adams, one of the original applicants to whom a location for a stationary blind had been assigned in 1967. In May 1974, Adams asked the Department to review the assignment of the blind location to Thomas Merryweather and Carroll Thomas, contending that it was illegal, that it deprived Adams of his rights as a riparian owner, and that Thomas was not entitled to a blind in that area. In a letter responding to the request, the Secretary advised the attorney for Adams that the Department would undertake a complete review of the location of duck blinds in the area. The departmental review was undertaken. Upon the report submitted to him, the Secretary made his determination of 19 August 1974, which was appealed by Adams to the Board of Review, and then to the circuit court.

Various papers, documents, exhibits, opinions, and other material constituting the record of the administrative proceedings within the Department were ultimately filed in the circuit court. Counsel for each side filed a written memorandum, and the case was set for hearing. At the hearing, held on 17 June 1976, the issues were submitted on oral argument. The Opinion and Order of Court, filed on 23 July 1976, reversed the order of the Board of Review of the Department of Natural Resources, and remanded the proceedings to the Board for an order consistent with the Opinion. The Department of Natural Resources appealed.

The Issue

The Department, possibly oversimplifying, states in its brief that the appeal presents one issue, which is:

“Whether the provisions of Title 10, Subtitle 6 of the Natural Resources Article authorize the Secretary to assign an owner of shoreline along Covey Creek a stationary blind site along the Mills Point-Weir Point line.”

Adams, on the other hand, suggests in his brief that he may be oversimplifying by listing only 10 questions presented in this appeal. Our ultimate answer of “No” to the Department’s single question will suffice for all.

The Locale

To understand the factual review we now undertake, one must understand the locale and the law. The locale is in the northwesterly part of Dorchester County. We shall speak of three bodies of water, Trippe’s Bay, and two smaller bodies, Brannock’s Bay and Covey Creek, which border Trippe’s Bay on the east. Brannock’s Bay, to the south, and Covey Creek, to the north, are separated from each other by a peninsula or neck of land. All three have been separately recognized on maps for more than 100 years.

For a graphic description of the locale, we attach as Appendix “A” to this opinion a copy of one of the exhibits in the record, with the names of certain identified owners added. It shows the shoreline of the three bodies of water, and shows also a delineation of the statutory Mills Point-Weir Point line, the line which generated this dispute.

The Statutes

The law at the time of the 1967 allocation was found in Code, Art. 66C, § 149-165. The law now appears in the Natural Resources Art., Title 10, Subtitle 6, §§ 10-601 to 10-623. The only difference significant to this case was the treatment of the subsection which established the Mills Point-Weir Point line. That difference does not affect our holding.

Subtitle 6, dealing with the hunting of wild waterfowl, contains many provisions of local application only, and many general provisions not relevant to the issues in this case. We have excerpted and paraphrased certain provisions found in the subtitle. Not all are relevant to our decision in this case. Some are included only to provide a brief explanation of the blind licensing process. With each statement of the law is a reference to the section in the present Natural Resources Article where the full statutory language may be found.

A “blind site” is a specific location in the water where a person may hunt wild waterfowl from a boat or raft tied to or anchored at a stake and is not a permanent structure. § 10-601 (b).

A “stationary blind” is a permanent offshore structure built on piling or stakes and used for hunting wild waterfowl. § 10-601 (f). The word “site” is often used to refer to the authorized location for a stationary blind.

A license is required for a blind site, and a license is required for a stationary blind. Either license is obtained, upon proper application, from the clerk of the circuit court of the county. § 10-612 (b), (d), (e).

A blind license is separate from and has no relation to a hunter’s license, which must be possessed by any person hunting wild waterfowl from a stationary blind or blind site. § 10-613, § 10-301.

A license for a stationary blind or for a blind site, in the water in front of riparian property shall be issued to the owner (or to his lessee, licensee, or assignee) of riparian property of not less than 500 yards of shoreline (or, for a stationary blind, but not for a blind site, less than 500 yards, with written permission of other shoreowners, so as to make a continuous shoreline of not less than 500 yards), if application for the license is made before October 11 of each year. § 10-612 (a) (1) (2), (d) (2). Certifications of ownership and of the amount of shoreline must be submitted with the application. § 10-612 (d) (1).

Other subsections of § 10-612 relate to licenses for blind sites, with which we are not directly concerned in this case.

A person who receives a license for a stationary blind (or for a blind site) may, within the restrictions of the law, choose the location for his blind. He shall mark the position by erecting a stake showing the licensee’s name and number. § 10-615 (a).

Three other sections of the subtitle govern the location of a blind. They prescribe the permitted or required distances from the projected line of an adjoining owner, § 10-616, from other blinds, § 10-617, and from the shoreline, § 10-618. A blind may not be placed closer than 250 yards to the projected line of an adjoining owner, without his consent, § 10-616 (b), nor less than 500 yards from the nearest licensed stationary blind or blind site. § 10-617 (a). On irregular shorelines where it is impossible to place blinds 500 yards apart, the Secretary may reduce these distance requirements, respectively, to not less than 150 yards and not less than 400 yards. § 10-617 (a).

The last statutory distance requirement for blinds is stated in § 10-618 (a), which provides that a person may not erect or maintain a blind more than one third the distance from his shoreline to the opposite shore, or more than 300 yards from his shoreline, whichever is less. That provision is modified by several local exceptions. One of them, the root of the present controversy, effectively moves the 300 yard line, for riparian owners on Brannock’s Bay and Trippe’s Bay, as much as 1,000 yards farther out over the water, to the Mills Point-Weir Point line. This exception, now found in § 10-618 (e), reads:

“Exception for Brannock’s Bay and Trippe’s Bay in Dorchester County. — In the waters of Brannock’s Bay and Trippe’s Bay in Dorchester County, a person may not erect or maintain a stationary blind or blind site beyond a line drawn from Mills Point in a northeastwardly direction to the southeast corner of what is known as the Great Flats and from there to what is known as Weir Point or Orchard Marsh.”

The Facts

The 1967 assignment of blind locations along the Mills Point-Weir Point line was made by Mr. George Shields, then Director of the Department of Game and Inland Fish. The record reflects no indication of controversy at the time. It appears that only four persons (or groups of persons) who owned more than 500 yards of shoreline property east of the Mills Point-Weir Point line seriously contended for assignment of a location. They were Adams, Thomas, a Mr. Brohawn, and a Mr. Seward.

Shields calculated the length of shoreline owned by each without regard to the body of water on which it bordered. Adams had 7,500 feet, some on Trippe’s Bay, some on Covey Creek. Thomas had 6,000 feet, all on Covey Creek. Brohawn had 10,000 feet, substantial portions of it on each of the three bodies of water. Seward had 2,700 feet, all on Brannock’s Bay.

The length of the Mills Point-Weir Point line was approximately 2,500 yards, which would accommodate five blind locations. Beginning at the northerly end of the line, Shields assigned location No. 1 to Adams, No. 2 to Thomas, Nos. 3 and 4 to Brohawn, and No. 5 to Seward.

Presumably the clerk of the circuit court issued annual blind licenses according to these assignments, until the current dispute germinated in September 1973 when Merryweather notified the Natural Resources Police that someone was constructing a stationary blind too close to the Thomas site. Upon investigation, the Natural Resources Police ascertained that the reported blind was only 220 yards from the Thomas site, and that the constructor was Roger Adams. Since the location violated the 500 yard limitation of the law, the Superintendent instructed Adams to remove the construction from the site and to return the site to its 1967 placement. Otherwise, the blind would be closed to hunting. Adams refused, and later lodged his complaint with the Department.

Conclusions

The words of the statutes which control the decision in this case are generally clear and free of doubt. It is indeed true that the statutory scheme regulating rights to duck blinds does not cover every conceivable set of circumstances which one might argue should have been covered, but the courts may not extend statutes to make them say what the legislature, by choice or oversight, did not say.

To the extent that we indulge in statutory construction, we observe the cardinal rule, which is to ascertain and carry out the real legislative intent. Frericks v. General Motors Corp., 278 Md. 304, 363 A. 2d 460 (1976); Baltimore Gas & Elec. Co. v. Board of County Comm'rs of Calvert County, 278 Md. 26, 358 A. 2d 241 (1976); Becker v. Crown Central Petroleum. Corp., 26 Md. App. 596, 340 A. 2d 324 (1975). In ascertaining such an intent, words of the statute are deemed to be used in their ordinary and popular sense and the language to carry its natural and ordinary signification. Comptroller of the Treasury v. The Mandel, Lee, Goldstein, Burch Re-election Committee, 280 Md. 575, 374 A. 2d 1130 (1977); Harden v. Mass Transit Administration, 277 Md. 399, 354 A. 2d 817 (1976); Whitt v. Dynan, 20 Md. App. 148, 315 A. 2d 122 (1974).

A court may not add to a statute by judicial construction, nor lightly read into a statute by implication, a provision which the legislature did not see fit to include. Department v. Greyhound, 247 Md. 662, 234 A. 2d 255 (1967); Amalgamated Ins. v. Helms, 239 Md. 529, 212 A. 2d 311 (1965). Where a law is plain and unambiguous, free from all objection on constitutional grounds and enacted in an area clearly within the province of the legislature, courts have no power to set aside or evade its operation by forced or unreasonable construction.

It is evident that the legislature intended to permit the issuance of a license for a stationary blind only to certain riparian owners, and to them only for a blind in the water in front of their riparian property. None of the provisions relating to distance from shore, from other blinds, or from property dividing lines, indicates a different intent.

A riparian owner to a body of water is a person who owns property bordering on that water. In discussing riparian rights, a leading treatise states that:

“The owner of land contiguous to a navigable body of water acquires by virtue of that ownership certain rights — termed riparian rights — which include principally the right of access to the navigable waters; the right to build piers, wharves, docks, and other improvements to the line of navigation; the right to reclaim land; and the right to accretions to his lands. These rights do not depend upon ownership of the soil under water but upon lateral contact with the water. It is a universal rule that for riparian rights to attach to a tract of land, the water must form a boundary of the tract.” (Emphasis supplied.) 2 Shalowitz, Shore and Sea Boundaries 534 (1964).

See generally 1 R. Clark, Waters and Water Rights, §§ 4.3, 16.2, 53.3 (1967); Ditwiler, Water Problems and Property Rights An Economic Perspective, 15 Nat. Resources J. 663, 667-669 (1975); Teclaff, What You Have Always Wanted To Know About Riparian Rights, But Were Afraid To Ask, 12 Nat. Resources J. 30 (1972); Note Maryland’s Wetlands: The Legal Quagmire, 30 Md. L. Rev. 240, 243-250 (1970).

The Department of Natural Resources contends that the manner in which the Mills Point-Weir Point line is drawn shows an intent by the legislature to permit all shoreline property owners east of the line to be eligible for a stationary blind on the line. Appellant’s brief states “[t]he fact that subsection (e) of Section 10-618 uniquely adopts a line in lieu of setting a uniform numerical distance from shore is evidence that the General Assembly contemplated the eligibility of any shoreline owner bordering on the waters east of and enclosed by the line for a site along the Mills Point-Weir Point line.” We cannot agree with this contention.

More logically, the question is whether the legislature, when it referred to “the waters of Brannock’s Bay and Trippe’s Bay”, intended to include the waters of Covey Creek. For two reasons, we hold that it did not so intend. First, Covey Creek is in fact a separate body of water, and second, it has a separate name.

We conclude that Covey Creek is a separate body of water by applying the headland to headland rule. Generally, the rule is applied in determining whether a bay is inland water or open sea; that is, whether it is a distinct body of water or an indentation in an irregular coastline. By analogy, we apply the rule here.

Shalowitz, in his treatise, writes:

“In theory, the question whether a bay is intraterritorial or extraterritorial, that is, whether inland waters or open sea — would seem to depend upon the extent to which the waters penetrate into the land, or more precisely, upon the ratio of that penetration to the dimension of the entrance.” 1 Shalowitz, supra 34.

Both the inland penetration of the waters of Covey Creek from its headlands, and the ratio of that penetration to its mouth, show that Covey Creek cannot be viewed as merely an irregular shoreline to Trippe’s Bay. The Creek stretches over one half mile from its headlands to its eastern shore. This is much more than a mere indentation. Moreover, the distance between the headlands is approximately half the distance of the penetration into the land, showing the penetration to be quite pronounced. Such a configuration permits no conclusion but that Covey Creek is a body of water separate from Trippe’s Bay.

For more than one hundred years, published maps have shown Covey Creek by name as a separate body of water. It is separately shown and named on all of the maps and charts contained in the record in this case.

When the legislature enacted § 10-618 (e) in 1975 it was fully aware that Brannock’s Bay and Covey Creek are lesser bodies of water, both bordering Trippe’s Bay on the east. It chose to legislate with respect to Trippe’s Bay, the greater, and Brannock’s Bay, one of the lesser bodies of water. It chose not to legislate with respect to Covey Creek. The failure to include Covey Creek must be taken as a purposeful exclusion. Inclusion of Brannock’s Bay confirms the exclusion of Covey Creek.

The statute which created the Mills Point-Weir Point line simply has no relation to owners of shoreline riparian to the waters of Covey Creek. Although the exception is stated in prohibitory terms, it must be read as permissive to have any effect at all. The only effect which could have been intended is that — for owners of property riparian to the waters of Brannock’s Bay and Trippe’s Bay — the Mills Point-Weir Point line was substituted for the 300 yard line, fixing the maximum distance of a blind from the owner’s shoreline.

Since the law requires that one be a riparian owner on a body of water in order to have a stationary blind in that water, and since the Mills Point-Weir Point line lies in the waters of Brannock’s Bay and Trippe’s Bay, we must conclude that only owners of property with riparian rights to Brannock’s Bay and Trippe’s Bay may secure licenses for a stationary blind in those waters.

The Department further contends that under certain conditions the laws vest sufficient discretion in the Secretary in the location of blinds to support the allocation which he determined to be equitable in this case. Under § 10-616 (e), when the property line projected over the water forms an angle of less than 90 degrees to the shoreline, “the Secretary may determine where any stationary blind or blind site may be placed pursuant to the provisions of § 10-617 (a).” Whatever the discretion given in § 10-616 (e), its exercise must be within the terms of § 10-617 (a). That section says, in part:

“On irregular shorelines in creeks, coves, bays, and indentations where it is impossible to place them 500 yards apart, the Secretary may permit a stationary blind and blind site to be placed not less than 400 yards apart nor less than 150 yards from the dividing line. Where circumstances require, the Secretary may designate the distances from the dividing line between properties with regard to the property rights of adjacent landowners.”

Although the law grants the Secretary certain discretion in placing stationary blinds and blind sites, it may be exercised only within prescribed limits. He may designate the distance of a blind location from the dividing line between properties, by reducing that distance from 250 yards to not less than 150 yards, and from the nearest licensed blind, by reducing that distance from 500 yards to not less than 400 yards. He may not, under any circumstances, authorize the placing of a stationary blind outside the body of water upon which the applicant owns, or holds the rights of, riparian frontage.

We are not persuaded that the legislature intended to vest a broader discretion in the Secretary of the Department of Natural Resources. The duck blind laws are designed to protect and to give priority to riparian owners. To allow the Secretary, in his discretion, to place a blind in another body of water clearly infringes upon the riparian owners of that body of water. To permit that kind of infringement would jeopardize the very foundation upon which the Maryland duck blind laws are established. It would be both inequitable and unreasonable to allow a person to acquire a less valuable piece of waterfront property and then permit the Secretary to give him the riparian rights of a landowner who owns a more valuable and desirable piece of waterfront property simply because the angle formed by the property dividing line is less than 90 degrees. Section 10-616 (e) provides for the equitable resolution of riparian rights in a body of water for the riparian landowners on that body of water, not for those who own property elsewhere.

When geography and the law say that an owner of Covey Creek shoreline may not be licensed to place a stationary blind on the Mills Point-Weir Point line, neither the Department of Natural Resources nor the courts may say otherwise. It follows from what we have said that the order of the Board of Review, and the Secretary’s determination which it upheld, were based upon a mistake of law, and are illegal.

Order of- the Circuit Court for Dorchester County affirmed.

Appellant to pay costs.

      . We shall refer hereafter to the “Thomas blind” or the “Thomas property”. It appears that originally Merryweather and Carroll Thomas combined their claimed riparian ownership to support one application. Such combining of shoreline is permitted under the law. It appears also that the claimed qualifying shoreline is now owned by Henry Thomas, who leases the hunting rights to Merryweather.

      . Trippe’s (sometimes Trippe) Bay is named for Lieutenant Colonel Henry Trippe, who fought in Flanders under William of Orange. Son of the Reverend Thos. Trippe of Canterbury, County Kent, England, Trippe, in 1663, at the age of 31, came to the Province of Maryland, and located between the Great Choptank River and the Little Choptank River, on the bay which has been called Trippe Bay since the days of the earliest cartographers. E. Jones, New Revised History of Dorchester County 473 (1966).

      . Although not documented as having given their name to Brannock’s (or Brannock) Bay; the Brannock family, like the Trippes, were among the earliest settlers of Dorchester County, and undoubtedly were the source for the bay’s name. The early county records show that Edward Brannock was appointed to a commission “to purchase land and lay out towns” and which was “required to meet before the 28th of March, 1684”. Another Brannock, John, appears on the court records of 1 August 1690. E. Jones, supra, 52,56.

      . Coast and Geodetic Survey, Natural Oyster Bars Maryland Chart No. 15, (1961); Maryland Geological Survey, Historical Shorelines and Erosion Rates for the Lower Eastern Shore (1975) (map dated 1942); United States Department of Interior Geological Survey, Maryland Sharps Island Quadrangle (June 1904 edition reprinted 1944); S. Martenet, H. Walling & 0. Gray, New Topographical Atlas of the State of Maryland and District of Columbia (1873) (on this map Brannock Bay is referred tó as Brannack’s Bay). Some older maps show names for Brannock’s Bay and Trippe’s Bay, but not for Covey Creek. W. Dilworth, Map of Talbot County (1858); Lake, Griffey & Stevenson, Atlas of Talbot and Dorchester Counties Maryland (1877).

      . Those subsections permit riparian owners of less than 500 yards, or their lessees, licensees, or assignees, to apply, from October 11 through October 21, for a blind site at a location not in conflict with a previously licensed stationary blind or blind site. § 10-612 (d) (3).
      After October 21 any resident, regardless of riparian ownership, may apply for a license for a blind site at a location not in conflict with a previously licensed stationary blind or blind site. § 10-612 (d) (4).
      Licenses for blind sites, applied for by persons owning less than the required shoreline, or none at all, as permitted by § 10-612 (d) (31 and (4) above, shall be issued in the order in which applications are received. § 10-612 (g).
      It should be emphasized that this first-come, first-served rule applies only to blind sites, not to stationary blinds, and further, it applies only among persons whose applications are not based upon riparian ownership of 500 yards or more of shoreline. We note also that it does not a{)ply to persons who are eligible to make application before October 11. The right to a stationary blind is not perpetual, but there need be no race to the courthouse. The right is exclusive to the riparian owner until October 11 of each year. After October 10, he may be precluded by the proximity of a subsequently licensed blind site.

      . It is interesting to note that § 10-614 requires the Department to inspect licensed blind sites, but not stationary blinds, upon request of the owner of the shore front property.

      . The formula for projecting property lines over the water (to delineate “the water in front of riparian property”, § 10-612 (b)) is prescribed in § 10-616 (a). From a property boundary at the water line, a straight line 200 yards long is projected in each direction, following the general contour of the shore. The angle at the junction of the two lines is divided equally by a line projected over the water. It is evident that the statutory formulae for locating blinds do not solve all problems.
      If one riparian owner’s two projected lines diverge, the farther he goes over the water, the greater his choice to locate a blind in front of his riparian property, unless one of his lines intersects the projected property line of a non-adjoining riparian owner at a point less than 300 yards from the shoreline of either. If this occurs, or if his lines converge, so that his choice of a location is increasingly limited, there may be trouble. He may ask the Secretary for relief, but the only relief that official is authorized to give him is to reduce the distance from his blind to the nearest blind to 400 yards, and to a neighbor’s projected property line to 150 yards. The riparian owner may be required to locate closer to his own shoreline. The 300 yard rule is a maximum, not a minimum.

      . The actual boundaries of a creek or a bay, or any other body of inland water, are determined by using the headland to headland rule. In reference to this rule, Shalowitz writes:
      “Both with respect to true bays and rivers, the line marking" the seaward limit of inland waters is a headland-to-headland line. This is the general principle. But more specific rules are required. The problem of defining the actual limits of a body of water tributary to a larger body is not always a simple one. The solution lies in finding the exact place where the tributary waterway merges into the principal waterway. * * * In common usage, the word headland implies a land mass having considerable elevation, something that the navigator can see from offshore — a kind of landmark for him. However, in the context of the law of the sea, elevation is not a pertinent attribute. What is important are the relationships between land and water which lie in a horizontal plane. A headland can then be defined generally as the apex of a salient of the coast; the point of maximum extension of a portion of the land into the water; or a point on the shore at which there is an appreciable change in direction of the general trend of the coast.” (Footnotes omitted) 1 Shalowitz, supra 63-64.

      . We attach no significance to the fact that the exception, formerly Code, Art. 66C, § 157 (cl, was placed elsewhere, and with different effect, in the 1973 Code Revision, and was not reenacted until 1975. The reenactment was in effect at the time of the order of the circuit court. If the exception, and the Mills Point-Weir Point line it establishes, were not in effect, neither Adams nor Thomas could have any rights in the disputed area.


author: Morton, J.,

text:
    GEORGE (NMN) HARRIS, JR. v. STATE OF MARYLAND
    [No. 925,
    September Term, 1976.]

      Decided September 8, 1977.

    The cause was argued before Gilbert, C. J., and Morton and Moore, JJ.

      Bradford C. Peabody, Assigned Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Leroy Handwerger, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Michael Whalen, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

George Harris, Jr., appellant, was convicted by a jury in the Circuit Court for Prince George’s County (Loveless, J., presiding) of assault with intent to murder and carrying a dangerous weapon openly with intent to injure. He was sentenced to consecutive prison terms of three and two years, respectively. The sole question presented in this appeal is whether the trial judge erred in admitting into evidence alleged confidential communications between appellant and his wife.

The record shows that on December 17, 1975, David N. P. Smith, a self-employed private detective and commissioned special officer, engaged in a telephone conversation with appellant concerning the triangular relationship of appellant, Smith and appellant’s wife, Thelma Joyce Harris. Appellant testified that during the conversation he was threatened by Smith and dared to come to Smith’s house to fight. Smith, on the other hand, denied challenging appellant, but rather claims that he told him not to call again.

Later that, evening as Smith, wearing his service revolver and in uniform, was leaving his home for work as a night shift security guard, he observed Mrs. Harris’s car approach with its headlights off and a shotgun barrel protruding from a rear window. He recognized appellant as the person holding the shotgun and appellant’s wife as the driver of the vehicle. The shotgun was fired as the car passed him with several pellets striking him in the left wrist. Smith retaliated by emptying his six-shot service revolver.

Appellant testified that he went to Smith’s house only in response to the alleged challenge made by Smith on the telephone earlier that evening. He stated that while he did have a shotgun with him it was not loaded since he intended only to fight Smith physically, not shoot him. Appellant related that upon arrival at Smith’s residence he found Smith crouched beside his automobile waiting for him and that Smith opened fire first. According to appellant, it was not until after Mrs. Harris jumped from the car which she was driving, thereby causing it to roll onto a neighboring lawn, that he loaded his shotgun and returned fire.

Thelma Harris was called to the witness stand by the state. When advised by the trial judge that she could not be compelled against her will to testify against her husband, she stated that she wished to testify. Mrs. Harris stated that she was married to appellant at the time of the shooting but was not living with him and that, in fact, there had been several periods during their marriage when they were separated. She testified that on the date of the shooting appellant came to her house at 7:30 p.m. and engaged in the aforementioned telephone conversation with Smith. The following colloquy ensued at trial:

“Q. [Assistant State’s Attorney] Did there come a time that you left your home?
A. [Mrs. Harris] Yes, there did.
Q. Under what circumstances?
A. Threatening.”

Defense counsel objected to these questions on the ground that it violated the rule that spouses are incompetent to testify about confidential communications between them. The trial judge overruled appellant’s objections and the direct examination of Mrs. Harris continued.

“Q. Mrs. Harris, when you referred to the fact that he threatened you, to whom are you referring?
A. My husband.
Q. How did he threaten you?
A. He wanted to know where David lived, and I wouldn’t tell him, and he threatened to hurt me if I didn’t, so we left.”

Mrs. Harris testified that after appellant procured his shotgun the two of them traveled to Smith’s home in her car. “He told me to pull down [in front of Smith’s home] and blow” the horn. She stated that she jumped from the car and immediately thereafter the gun battle ensued.

Appellant contends that by allowing his wife to testify concerning the conversations they had at her apartment and in her car on the drive to Smith’s residence the trial judge violated the provision of the Courts and Judicial Proceedings Article, § 9-105: “One spouse is not competent to disclose any confidential communication between the spouses occurring during their marriage.”

It would appear that the basis for the statute is the legislative policy which seeks to encourage and maintain marital harmony, confidence, peace and tranquility. See, e.g., McCormick on Evidence 161, 172 (2nd ed. 1972), 97 C.J.S. Witnesses § 266 (1957). This attitude was articulated in Mercer v. State, 40 Fla. 216, 24 So. 154, 157 (1898): “Society has a deeply-rooted interest in the preservation of peace of families, and in the maintenance of the sacred institution of marriage; and its strongest safeguard is to preserve with jealous care any violation of those hallowed confidences inherent in, and inseparable from, the marital status.”

it is apparent, however, that the statute does not define the scope of what communications are to be considered confidential. Nor does a search of the legislative history of § 9-105 shed any light on this matter. The objective sought to be achieved by the statute has been considered in other jurisdictions and the rule, as presently embodied in § 9-105, has been subjected to substantial modification in many, but not all, courts when the communication sought to be excluded pertains to threats uttered or actual violence inflicted by one spouse against the other. Compare, e.g., People v. Fields, 31 N.Y.2d 713, 337 N.Y.S.2d 517, 289 N.E.2d 557 (1972) with Wheeler v. State, 220 Tenn. 155, 415 S.W.2d 121 (1967). See generally McCormick on Evidence 144-45 (2nd ed. 1972). Moreover, at least one state, California, provides, by statute, that “[tjhere is no privilege ... if the communication was made, in whole or in part, to enable or to aid anyone to commit or plan to commit a crime or fraud.” West’s Ann. Cal. Evid. Code, art. 5 § 981.

There exists a dearth of legal authority in Maryland vis-a-vis these modifications. In Gutridge v. State, 236 Md. 514, 517 (1964), the Court of Appeals indicated its approval of relaxing the strict rule rendering spouses incompetent to testify with respect to confidential communications between them when it declared:

“We may note that some authorities advocate an exception to the privilege, where its invocation would protect acts in furtherance of a crime or fraud. See McCormick on Evidence, § 83, p. 171, note 52 Journal of Criminal Law 74, 79, and Fraser v. United States, 145 F.2d 139, 143 (6th Cir.). In the Uniform Rules of Evidence, Rule 28 (2) (e), it is provided: ‘Neither spouse may claim such privilege * * * if the judge finds that sufficient evidence, aside from the communication, has been introduced to warrant a finding that the communication was made, in whole or in part, to enable or aid anyone to commit or to plan to commit a crime or a tort.’ ”

Although the Court expressly stated that it was unnecessary for it to decide the issue since it was able to decide the case on other grounds, we nonetheless glean direction from Gutridge in the resolution of the present case.

We agree with those courts which hold the spouse/incompetency rule inapplicable when, as here, the confidential communication constitutes a threat or crime against the other spouse. When the communications of one spouse in and of themselves run contrary to the promotion of marital harmony and tranquility, the basis for the statute no longer prevails. Hence, the statute itself is rendered inapplicable in those situations. See Coleman v. State, 35 Md. App. 208 (1977).

In this case it was the threat itself which wrought discord to the marriage, not the voluntary in-court disclosure thereof. Moreover, it is patent that the marital harmony, once damaged by the inter-spouse communication, is not miraculously resurrected by a rule of evidence. Accordingly, we hold that the spouse/incompetency rule does not encompass those communications which, as here, are destructive by themselves of the marital relationship.

Judgments affirmed; costs to be paid by appellant.

      . Section 9-105 is not to be confused with § 9-106 which declares that “[t]he spouse of a person on trial for a crime may not be compelled to testify as an adverse witness * * ’,”

      . Quoted in 25 Md.L.Rev. 324 (1965).


author: Melvin, J.,

text:
    H. CONRAD LUHMANN, JR. v. NATALIE C. LUHMANN
    [No. 1016,
    September Term, 1976.]

      Decided September 8, 1977.

      The cause was argued before Thompson, Lowe and Melvin, JJ.

      Dale L. Button for appellant.

      Edward J. McGrath, with whom were McGrath & Doyle on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

The principal issue ih this appeal involves the duration of the child support provisions of a divorce decree entered on 15 April 1974 by the Circuit Court for Montgomery County.

The underlying facts can be briefly recounted. The appellant, H. Conrad Luhmann, Jr., and the appellee, Natalie C. Luhmann, were married on 24 July 1954. Two children were born of the marriage, viz., Craig Lee Luhmann, born 15 May 1955, and Eric Conrad Luhmann, born 10 June 1957. On 22 September 1971, when Craig was 16 years old and Eric was 14 years old, the parties entered into a “Separation and Property Settlement Agreement”, which, among other things, provided as follows:

“.. . That the Husband agrees to pay to the Wife for the support and maintenance of the aforesaid children the sum of One Hundred Fifty Dollars ($150.00) per month per child, the first of which said payments shall be due upon the execution of this Agreement by both parties hereto, with each succeeding monthly payment due on the same date of each month thereafter. The said support for each child shall continue until each child shall become twenty-one years of age or be sooner emancipated, at which time the support for that child shall then terminate ....”

The Agreement further provided that,

.. consistent with the rules or practice of any court granting any decree of absolute divorce, the provisions of this Agreement, or the substance thereof, may be made a part of that said decree, but notwithstanding such incorporation, this Agreement shall not be merged in such decree but shall in all respects be forever binding upon the parties”.

On 1 July 1973, Chapter 651 of the Laws of 1973, now codified as Art. 1, § 24 of the Md. Code (1957, 1976 Repl. Vol.), became effective, decreasing the age of majority from 21 to 18 years.

On 4 January 1974, when Craig was 18 and Eric was 16 years old, the appellant-husband filed a bill of complaint for divorce on the grounds of three years separation. The bill alleged, inter alia, that “the property rights between the parties have been settled by a Separation Agreement between them dated September 22, 1971, as well as custody and child support”. The appelleé-wife did not contest the divorce. The case was forwarded to the Domestic Relations Master for the taking of testimony and recommendations.

On 11 April 1974, pursuant to the recommendations of the Domestic Relations Master, the divorce was granted to appellant. The decree provided in pertinent part as follows:

“ORDERED that the Plaintiff shall pay to the Defendant, for the support and maintenance of the remaining minor child, the sum of Two Hundred Dollars ($200.00) per month, commencing on the first day of the month, following the signing of the Decree by the Court, pending further order of the Court, and it is further
“ORDERED that the provisions of the Separation and Property Settlement Agreement dated September 22, 1971, and filed in this matter as Plaintiffs Exhibit No. 2, may be incorporated in the Decree of Divorce, insofar as the Court has jurisdiction, pending further order of the Court....”

On 10 June 1975, Eric became 18 years of age and appellant discontinued all child support payments. On 6 August 1975, appellant filed a “Motion to Amend Decree of Divorce” in which he alleged that Eric had “pass[ed] the age limit within which the Court in its Decree of April 11, 1974, had jurisdiction to require the payment of support by the Plaintiff to the Defendant”. He prayed that the decree be amended to “eliminate the provisions as to custody and child support”.

By order filed 25 August 1976, the court dismissed the motion. In his appeal from that order, appellant contends that his motion to amend the decree as prayed should have been granted for either of the following reasons: 1) As a matter of law, the decree can not operate to require him to provide child support for Eric beyond his eighteenth birthday, because the decree was passed after the effective date of Chapter 651 of the Laws of 1973. 2) Regardless of his age, Eric has become emancipated by reason of his earning capacity and ability to care for himself.

I

Had the divorce decree of 15 April 1974 not mentioned the Agreement, it is clear that the requirement of the decree that appellant pay $200 per month for the support of “the remaining minor child” would automatically expire upon the child’s (Eric’s) reaching his eighteenth birthday. Monticello v. Monticello, 271 Md. 168, 315 A. 2d 520 (1974); Code Art. 1, § 24. This does not mean, however, that the child support provisions of the Agreement would also expire. On the contrary, the Agreement specifically provides that whether incorporated in a divorce decree or not its provisions “shall not be merged in such decree but shall in all respects be binding upon the parties”. Thus even if the Agreement were not incorporated as part of the decree, its provisions would still be enforceable between the parties. Consequently, after Eric became 18 and before he became 21 years of age (assuming he was not “emancipated” during that period), appellant would be bound by the Agreement to pay $150 per month for Eric’s support. The appellant concedes this to be so, but argues that the decree, as opposed to the Agreement, can not be the basis for his obligation to pay child support beyond Eric’s eighteenth birthday.

It is clear that the provisions of the 1971 Agreement for Eric’s support “until . .. [he] shall become twenty-one years of age .. .” are not affected by Chapter 651 of the Laws of 1973. Monticello v. Monticello, supra. The basic question in this case is whether the incorporation of the Agreement into the divorce decree has the effect of permitting the appellee to look to the decree, as well as the Agreement, for a remedy in seeking continued support for Eric. [We note parenthetically that there is no issue in the case presented concerning Craig’s support.]. To put it another way, does the decree, as well as the Agreement, require appellant to continue child support for Eric until he becomes twenty-one years of age or emancipated, even though the decree was passed after the effective date of the statute lowering the age of majority to 18 years? We think that it does and that appellant’s motion to amend the decree to provide otherwise was properly denied.

Code (1957, 1973 Repl. Vol.), Art. 16, § 28, and cases construing it, clearly give courts of equity power to enforce agreements between husband and wife respecting child support, subject of course to the power of the court “to modify the . .. agreement in respect to the infants as to the court may seem proper, looking always to the best interests of the infants”. Art. 16, § 28. Zouck v. Zouck, 204 Md. 285, 104 A. 2d 573 (1954). Jackson v. Jackson, 14 Md. App. 263, 286 A. 2d 778 (1972). Maryland Rule S77 b provides that such agreements may be made a part of the record in an action for divorce and incorporated, insofar as the court may deem proper, into the decree. In the present case, the record is very clear that both parties desired the Agreement to be made part of the divorce decree. So incorporated by reference, the provisions with respect to Eric’s support became as much a part of the decree as if set forth therein in haec verba, with the exception that the amount of support was changed from $150 per month to $200 per month, a change that the court clearly had the power to effect. See Art. 16, § 28. The duration of the support was not changed, however, and under the decree remains, unless changed by further order of court, until Eric becomes 21 years old or sooner dies.

II

Appellant also contends that the trial court erred in determining that Eric is not emancipated. After reviewing the evidence before the lower court we are unable to find this decision to be clearly erroneous. Md. Rule 1086.

Order affirmed.

Appellant to pay the costs.

      1. The decree was dated 11 April and filed 15 April.

      . Unless, of course,_ it could be shown in a proper proceeding that the best interests of the child warrant a lesser amount. See Stern v. Horner, 22 Md. App. 421, 324 A. 2d 134 (1974) for power of equity court to reduce child support payments previously agreed upon by the parties.