MKOS Properties v. Johnson

MKOS Properties, LLC v. Bradley W. Johnson, et al., No. 713, Sept. Term 2023. Opinion
by Arthur, J.

REAL PROPERTY—MEAN HIGH-WATER LINE—TITLE 26 OF THE CODE
OF MARYLAND REGULATIONS

The mean high-water line (“MHWL”) typically marks the division between State and
private ownership of the shoreline. Title 26 of COMAR prescribes how to ascertain the
location of the MHWL. Generally, one ascertains the location of the MHWL by
correlating on-site measurements with tidal datums published by the National Oceanic
and Atmospheric Administration. For purposes of obtaining a private tidal wetlands
permit, a person may also ascertain the location of the MHWL with an “evaluation of the
project site conditions” based upon four factors: (i) predicted tide range elevations, (ii)
meteorologic conditions, (iii) vegetation and other biological factors at the site including
barnacles and algae lines, and (iv) physical indicators at the site such as wrack lines, stain
marks on nearby structures, and beach particle sorting.

In this case, the appellant alleged that the appellees, its neighbors, had constructed
improvements (a bench, a boardwalk, and a weather station) on an intertidal beach
adjacent to appellant’s shorefront property. Appellant argued that the improvements
were above the MHWL and, thus, on appellant’s property. Appellant claimed that its
expert had properly located the MHWL using the four-factor method outlined above.
The circuit court found that the appellant failed to prove, by a preponderance of the
evidence, the location of the MHWL. The court specifically found that the expert did not
employ any of the methods discussed in COMAR, that the expert had not even been hired
to locate the MHWL, that he conducted his survey without sufficient precision, and that
he made various statements that undermined his credibility.

The Appellate Court of Maryland held that the circuit court was not clearly erroneous
when it found that appellant’s expert failed to prove, by a preponderance of the evidence,
that the improvements at issue were above the MHWL. The expert’s testimony was
deficient in locating the MHWL by any of methods that COMAR may permit.

RIPARIAN RIGHTS—EJECTMENT AND TRESPASS ACTION

In this case, the appellant alleged that the appellees had interfered with its riparian rights
to the intertidal beach adjacent to its property. The appellant sued the appellees under the
theories of trespass and ejectment and asked the court to order the appellees to remove
improvements that they had built on the beach. The circuit court declined to address
appellant’s riparian rights arguments because they were not relevant to disposing of the
trespass and ejectment claims.
The Appellate Court of Maryland held that the circuit court did not err in declining to
address the riparian rights arguments. Riparian landowners hold various rights of use of
and access to the water in front of their fast land. Ejectment and trespass, however, are
both possessory actions. To sustain a claim of ejectment or trespass, plaintiffs must
prove that they have the exclusive right to possess the property at issue. Because riparian
rights are access-based and not possessory, appellant’s riparian rights did not give it an
exclusive right to possess the intertidal beach adjacent to its fast land. The circuit court
correctly concluded that appellant’s riparian rights of access had no bearing on the
possessory claims of trespass and ejectment that appellant had pursued in its complaint.
Circuit Court for Wicomico County
Case No. C-22-CV-18-000501

REPORTED

IN THE APPELLATE COURT

OF MARYLAND

No. 0713

September Term, 2023

______________________________________

MKOS PROPERTIES LLC

v.

BRADLEY W. JOHNSON, ET AL.

______________________________________

Arthur,
Reed,
Zarnoch, Robert A.
(Senior Judge, Specially Assigned),

JJ.
______________________________________

Opinion by Arthur, J.
______________________________________

Filed: January 31, 2025

Pursuant to the Maryland Uniform Electronic Legal
Materials Act (§§ 10-1601 et seq. of the State
Government Article) this document is authentic.

2025.01.31
'00'05- 14:40:45
Gregory Hilton, Clerk
This case involves a dispute between neighboring owners of waterfront property.

The plaintiff contended that its neighbors placed three structures on a beach that the

plaintiff claims to own. The defendants contend that the structures are located below the

mean high water line (“MHWL”), which, in this case, would mean that the structures are

located on property owned by the State of Maryland, not by the plaintiff.

The plaintiff’s expert acknowledged that one of the structures was not located on

the plaintiff’s property. The circuit court found that the plaintiff had failed to prove that

the other structures were located on its property.

The plaintiff appealed. We affirm.

FACTUAL AND PROCEDURAL HISTORY

In 2010, Bradley and Nancy Johnson purchased two plots of land on the shore of

Wetipquin Creek in Quantico, Maryland. Between 2012 and 2014, the Johnsons

constructed a boardwalk that allows the public to reach Wetipquin Creek and an intertidal

beach, which is at least partially submerged at high tide. A portion of the boardwalk—

the portion running over the intertidal beach—is not on the Johnsons’ property.

In early 2017, the Johnsons installed a bench and a weather station on that beach

to facilitate the use of a sailboat that they had recently purchased. Mr. Johnson placed the

bench and weather station below what he estimated to be the MHWL.

Around the same time that the Johnsons installed the bench and the weather

station, MKOS Properties LLC (“MKOS”) began the process of purchasing a 55-acre

plot of land adjacent to the Johnson parcels.
On March 6, 2017, the Johnsons sent a letter to the owner of the adjacent plot.

The Johnsons stated that they and other local residents “have used” an intertidal beach

adjacent to the parcel “for more than 20 years and have constructed benches and installed

walkways to provide access to the beach.” The Johnsons informed the owner that the

beach was generally accessible only “at low tide” and that it “is actually not a part of [the

owner’s] property,” but is instead “owned by the State of Maryland.” The Johnsons

suggested that they meet with the owner or with MKOS so that the Johnsons could

“answer any questions” about the walkway and the bench.

The parties never held such a meeting. Instead, MKOS purchased the parcel in

April of 2017 and demanded that the Johnsons remove the boardwalk, the bench, and the

weather station from what MKOS said was its property. MKOS posted “no trespassing”

signs on the beach and “asserted [a] possessory interest” over the land on which the

boardwalk, bench, and weather station are situated.

The Johnsons did not remove the improvements, and MKOS filed a complaint in

the Circuit Court for Wicomico County on November 5, 2018. The complaint alleged

one count of “trespass/ejectment” and requested, among other things, “an [o]rder ejecting

[the Johnsons] from the MKOS Parcel” and “an [o]rder finding that [the Johnsons had]

trespassed on the MKOS Parcel.” MKOS alleged that the improvements interfered with

its property rights, its riparian rights, or both.

On January 23, 2019, the Johnsons moved to dismiss MKOS’s complaint. On that

same day, the Johnsons filed a counterclaim for a declaration that they may use what they

called the “Beach Area” at low tide for recreational purposes. Simultaneously with the

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filing of their counterclaim, the Johnsons moved for summary judgment. On February

28, 2019, MKOS moved for summary judgment as well. The circuit court heard the

parties’ cross-motions on April 26, 2019.

On July 26, 2019, the circuit court issued a declaratory judgment and an order

granting the Johnsons’ motion for summary judgment. The declaratory judgment stated

that the Johnsons had “acquired an easement to maintain the [bench, boardwalk, and

weather station] and make recreational use of the Beach Area, either by virtue of adverse

possession or by virtue of an implied public dedication.”

MKOS appealed to this Court. On November 23, 2020, this Court held that the

declaratory judgment “lack[ed] the clarity and specificity required under [section 3-409

of the Courts and Judicial Proceedings Article] in order to terminate the controversy

between the parties.” MKOS Properties, LLC v. Johnson, No. 1215, Sept. Term 2019,

2020 WL 6869893, at *5 (Md. Ct. Spec. App. Nov. 23, 2020) (unreported).

In reaching that decision, we observed that the circuit court had “fail[ed] to define

whether one or more of the fixtures [are] located on the MKOS parcel.” Id. at *7. We

referred specifically to the circuit court’s finding that “the Beach Area and the three

fixtures are underwater except at low tide and, consequently, they are below the

[MHWL].” Id.

We noted that the location of the MHWL is defined by common law and

regulation. Id. We cited COMAR 26.24.01.02(32) for the definition of the MHWL: “the

line where the land meets the water surface at the elevation of mean high water.” MKOS

Properties, LLC v. Johnson, 2020 WL 6869893, at *7. We also cited COMAR

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26.24.01.02(31) for the definition of “mean high water”: “the average of all high water

levels observed over the national tidal datum epoch.” MKOS Properties, LLC v.

Johnson, 2020 WL 6869893, at *7. 1 Finally, we cited COMAR 26.24.01.02(35) for the

definition of “national tidal datum epoch”: “the specific 19-year period adopted by the

National Ocean Service as the official time segment over which tidal observations are

taken and reduced to obtain mean values for tidal datums.” MKOS Properties, LLC v.

Johnson, 2020 WL 6869893, at *7. We concluded that the court had neither “defined nor

established” the location of the MHWL. Id.

Establishing the location of the MHWL was crucial to the circuit court’s analysis

because the mean high water line ordinarily “‘marks the division between state and

private ownership of the shoreline.’” 2 Id. (quoting Clickner v. Magothy River Ass’n Inc.,

424 Md. 253, 267-68 (2012)). The circuit court could not determine whether the fixtures

1
In the fields of surveying and civil engineering, “datum” means “any level
surface, line, or point used as a reference in measuring elevations.” WEBSTER’S
ENCYLOPEDIC UNABRIDGED DICTIONARY OF THE ENGLISH LANGUAGE 368 (1989).
“Datums” is the plural of “datum.”
2
The MHWL does not mark the division between State and private ownership of
the shoreline in cases where the State granted title to land beneath navigable waters. In
Maryland’s early history, the State, as successor-in-interest to the Proprietors of
Maryland, had the power to “patent[] to individuals, subject to the public rights of
navigation and fishery, fee[]simple title to land under water.” Mayor and City Council of
Baltimore v. Canton Co. of Baltimore, 186 Md. 618, 630-31 (1946). In 1862, the State
lost that power when the General Assembly passed an act declaring that “[n]o patent
hereafter issued out of the Land Office shall impair or affect the rights of riparian
proprietors, . . . and no patent shall hereafter issue for land covered by navigable waters.”
1862 Md. Laws 137. Some Maryland shoreline, then, may be privately owned—even
though it is below the MHWL—if it was included in a patent before the passage of the
Acts of 1862.

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were located on MKOS’s property unless it found whether the fixtures were located

above or below the MHWL.

We vacated the order and declaratory judgment and remanded the case to the

circuit court for proceedings consistent with the appellate opinion. Id. at *8. One task on

remand was to define and establish the MHWL.

The parties appeared again in the circuit court on December 20, 2022, for a bench

trial. The Johnsons had, at that point, dismissed the counterclaim for declaratory

judgment with prejudice, leaving the court to decide only the trespass and ejectment

claims brought by MKOS.

At trial, MKOS called Douglas Jones as an expert in the field of land surveying.

Mr. Jones testified that he performed a boundary survey of the MKOS parcel and found

that the boardwalk and weather station were “on the MKOS Parcel.” On the other hand,

Mr. Jones testified that the bench was “within the intertidal zone immediately adjacent to

the MKOS Parcel”—i.e., that the bench was not on MKOS’s property. The Johnsons

argued that Mr. Jones “did not definitively locate the MHWL as directed by” this Court.

The circuit court denied MKOS’s request for relief in a written opinion on May

10, 2023. The court found that, for purposes of determining the location of the MHWL,

Mr. Jones’s testimony and the survey completed by him and his crew were not

“credible.”

In support of its finding, the court reasoned, first, that MKOS had not hired Mr.

Jones to find the MHWL. In fact, when MKOS engaged Mr. Jones in 2018, MKOS had

told him that locating what it called the “wet boundary” of the MKOS property was

5
irrelevant to its interests and a waste of money. The court found that Mr. Jones

conducted the boundary survey in a way that “comports with” MKOS’s “stated lack of

interest” in identifying the MHWL: he collected elevation data using a GPS-tracked

surveyor’s rod and noted the location of the “wrack line”—the place where debris is

deposited at high tide. 3 According to the court, Mr. Jones’s method of locating the

MHWL “[did] not comport with any of the permissible methods outlined in COMAR,

much less the one provided by” this Court.

The court also found that, even if Mr. Jones had conformed his survey to the

methods identified in COMAR, he conducted his survey “without sufficient precision.”

He used a surveyor’s rod with a sharpened tip rather than a “‘frog-footed attachment” that

would be “less prone to sinking in soft, waterlogged soil.” In addition, he believed that

he had calculated the elevation “from atop the boardwalk itself and not the ground

below.” “This lack of precision,” the court found, had “led to clear discrepancies in the

data” that Mr. Jones presented to the court. The court concluded that it could not rely

upon the calculation of the MHWL in Mr. Jones’s boundary survey.

The court added that “throughout his testimony” Mr. Jones had made “multiple

statements” that “undermined his credibility.” He testified that a dark, bolded line on the

3
Throughout the record, “rack” and “wrack” are used interchangeably to refer to
the line of debris that accumulates on a beach at high tide. COMAR uses the word
“rack,” but the overwhelming majority of publications and courts in other jurisdictions
use “wrack.” See, e.g., Nat’l Audubon Soc’y, Inc. v. U.S. Fish & Wildlife Serv., 55 F.
Supp. 3d 316, 333 (E.D.N.Y. 2014) (“In addition, beach scraping may. . . delay the
formation of an upper beach wrack line[]”) (internal quotation marks omitted). We will
use “wrack” for the remainder of this opinion.

6
boundary survey defined both the property line and the MHWL even though the line was

not so labeled and even though it is standard practice to employ such a label in the

surveying profession. He also testified that the NOAA 4 station at Bishops Head,

Maryland, was too far away to be a reliable reference, said that he preferred to use a

closer station, and identified a station in Tyaskin Park, Maryland, “immediately adjacent

to the parties’ properties,” as a closer station. The court found, however, that the NOAA

website does not identify any such station and that Mr. Jones, in any event, did not use

any information from that alleged station.

The court also found that Mr. Jones contradicted himself: in discussing one of the

documents prepared by his crew, he testified that the letters “HWL” meant “MHWL”

even though he had previously stated that the calculation of “HWL” “needed ‘final

refinement.’” Mr. Jones asserted that the MHWL can appear at multiple elevations,

which, the court observed, “contradict[s] the very concept of a ‘mean’ measurement.”

Contrary to the directives of this Court, Mr. Jones also asserted that the “correlation of

local elevations to the NOAA tidal datum is not required to determine the location of the

MHWL.” “The cumulative effect” of these statements led the court to “seriously doubt

the credibility of Mr. Jones’s testimony.”

Because of Mr. Jones’s failure to “comply with the guidance provided by the

Appellate Court of Maryland,” the court found that MKOS “failed to prove, by [a]

preponderance of the evidence, that the boardwalk and weather station built by [the

4
“NOAA” means the National Oceanic and Atmospheric Administration.

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Johnsons] on the Beach Area trespass on [MKOS’s] property.” Because of Mr. Jones’s

concession, the court also found that the bench did not trespass on MKOS’s property.

Turning briefly to the issue of riparian rights, the court found that MKOS’s allegations

were “not relevant to dispensing with [MKOS’s] trespass claim” and declined to address

them.

MKOS noted a timely appeal.

QUESTIONS PRESENTED

MKOS presented five questions, which we have consolidated and reworded in the

interest of concision:

1. Did the circuit court err by ruling that MKOS failed to prove that the
improvements at issue were on its property?

2. Did the circuit court err by declining to address MKOS’s arguments
regarding its riparian rights? 5

5
MKOS framed the questions as follows:

(1) Whether the Circuit Court erred by refusing to address material
legal issues brought before it, namely the riparian rights of MKOS and the
infringement of those rights by the Johnsons?

(2) Whether the law provides MKOS with actionable vested riparian
rights that the Johnsons have infringed upon?

(3) Whether the Circuit Court erred as a matter of law by
determining that the only legal permissible method to locate the seaward
boundary of a waterfront property is by correlation of elevation
measurements to a NOAA tidal datum epoch?

(4) Whether the Circuit Court committed clear error when it failed to
find that the Johnsons’ unpermitted boardwalk and unpermitted weather
station lie above the MHWL?

8
For the reasons that follow, we shall affirm the judgment of the circuit court.

STANDARD OF REVIEW

“When reviewing a bench trial decision, we will not set aside a trial court’s

judgment on the evidence unless it is clearly erroneous, giving ‘due regard to the

opportunity of the trial court to judge the credibility of the witnesses.’” Braude v. Robb,

255 Md. App. 383, 396 (2022) (quoting Md. Rule 8-131(c)). When reviewing for clear

error, “we must consider the evidence in the light most favorable to the prevailing party

and decide not whether the trial judge’s conclusions of fact were correct, but only

whether they were supported by a preponderance of the evidence.” Royal Investment

Group, LLC v. Wang, 183 Md. App. 406, 430 (2008) (citations omitted).

“When the trial court’s decision involves an interpretation and application of

Maryland statutory and case law,” however, “[this] Court must determine whether the

trial court’s conclusions are legally correct.” Estate of Zimmerman v. Blatter, 458 Md.

698, 717-18 (2018) (quoting Bottini v. Dep’t of Fin., 450 Md. 177, 187 (2016)). “Where

a case involves both issues of fact and questions of law, this Court will apply the

appropriate standard to each issue.” Id. at 718.

(5) Is it a reversible error when the trial court’s stated basis for
discrediting an expert witness’s testimony is based on the Court’s own error
of law and misapprehension of facts?

9
DISCUSSION

I. The Mean High Water Line

MKOS’s complaint alleged that the Johnsons had trespassed on its property.

“[T]respass is a tort involving ‘an intentional or negligent intrusion upon or to the

possessory interest in property of another.’” Royal Investment Group, LLC v. Wang, 183

Md. App. at 444 (quoting Mitchell v. Baltimore Sun Co., 164 Md. App. 497, 508 (2005)

(further citation omitted)). “In order to prevail on a cause of action for trespass, the

plaintiff must establish: (1) an interference with a possessory interest in [the plaintiff’s]

property; (2) through the defendant’s physical act or force against that property; (3)

which was executed without [the plaintiff’s] consent.” Id. at 445 (citations omitted).

MKOS’s complaint also asserted a claim for ejectment. Ejectment is an “action

brought by one claiming a right to possess real property against another in possession.”

BRYAN A. GARNER, A DICTIONARY OF MODERN LEGAL USAGE 209 (1987).

At issue in this case is whether the Johnsons installed the boardwalk, bench, and

weather station on property that MKOS possesses such that MKOS can sustain a trespass

or an ejectment action. As stated previously, the MHWL typically “marks the division

between state and private ownership of the shoreline.” Clickner v. Magothy River Ass’n

Inc., 424 Md. at 267-68. This Court remanded the case to the circuit court so that it could

determine whether the improvements were above or below the MHWL.

In its opinion remanding the case to the circuit court, this Court laid out

COMAR’s definition of the MHWL:

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The mean high water line is defined in Title 26 of the Code of Maryland
Regulations as “the line where the land meets the water surface at the
elevation of mean high water.” COMAR 26.24.01.02(32). “Mean high
water,” in turn, is defined as “the average of all the high water levels
observed over the national tidal datum epoch.” COMAR 26.24.01.02(31).
“National tidal datum epoch,” in turn, is defined as “the specific 19-year
period adopted by the National Ocean Service as the official time segment
over which tidal observations are taken and reduced to obtain mean values
for tidal datums.” COMAR 26.24.01.02(35).

MKOS Properties, LLC v. Johnson, 2020 WL 6869893, at *7.

In its opinion, the circuit court discussed Mr. Jones’s methodology for locating the

MHWL. The court found that “Mr. Jones testified that he and his crew collected

elevation data from a GPS-tracked surveyor’s ‘rod’ and noted where the ‘wrack line’ (a

location along the shore where debris is deposited at high tide) was along the MKOS

Parcel boundary.” The court found that this method of locating the MHWL did not

comport with the method that this Court had identified—the method identified in

COMAR 26.24.01.02(35). That finding seems unassailable—identifying the “wrack

line” is not the same as identifying “the average of all the high water levels observed over

the national tidal datum epoch.” COMAR 26.24.01.02(31).

MKOS claims that the circuit court erred by finding that MKOS was required to

calculate the MHWL “by taking elevation measurements on-site at the MKOS Parcel and

correlating them to the nearest [NOAA] tidal datum epoch.” MKOS argues that the

circuit court’s method of determining the MHWL is merely one of three “expressly

permitted methods of locating mean high water under the COMAR standards[.]”

To support its argument that Mr. Jones was permitted to calculate the MHWL in

other ways, MKOS cites COMAR 26.24.02.02(E)(2), which delineates the requirements

11
to receive a private tidal wetlands permit. MKOS argues, specifically, that Mr. Jones

could locate the MHWL by “using a comparison of observational records with control

tide station data as published by the U.S. Department of Commerce, National Oceanic

and Atmospheric Administration” (COMAR 26.24.02.02(E)(2)(b)) or by evaluating

“project site conditions based upon the following parameters: (i) Predicted tide range

elevations, (ii) Meteorologic conditions, (iii) Vegetation and other biological factors at

the site including barnacles and algae lines, and (iv) Physical indicators at the site such as

[wrack] lines, stain marks on nearby structures, and beach particle sorting.” COMAR

26.24.02.02(E)(2)(c) (emphasis added).

MKOS’s argument fails for two reasons. First, the circuit court found that, even if

MKOS’s preferred way of establishing the MHWL was a permissible one, Mr. Jones’s

methodology “d[id] not satisfy the requirements under [COMAR chapter 26.24.02].”

Second, the circuit court found that, even if Mr. Jones’s methodology “conform[ed] to

regulatory requirements,” he still made his MHWL calculations without “sufficient

precision.”

On the issue of whether Mr. Jones employed any of the other methods discussed in

COMAR, the circuit court noted that Mr. Jones did not testify about having observed or

considered any of the other factors delineated in COMAR 26.24.02.02(E)(2)(c). Based

on Mr. Jones’s testimony, the circuit court found that Mr. Jones located the wrack line

alone, which is not a permissible method.

MKOS claims that Mr. Jones “completed his boundary survey of the MKOS

Property using the methodologies permitted under COMAR,” but provides no detailed

12
factual support for its assertion. MKOS says only that, at trial, its counsel asked Mr.

Jones whether he “appl[ied] methodologies permitted under COMAR regulations that

[were] just discussed” and that Mr. Jones replied, “Yes, sir.” MKOS’s counsel, however,

did not question Mr. Jones any further on the subject. In the total absence of any

substantive questioning about predicted tide range elevations, meteorologic conditions, or

vegetation and other biological factors at the site, the circuit court was not required to

accept Mr. Jones’s conclusory response as dispositive on whether he complied with

COMAR 26.24.02.02(E)(2)(c).

Moreover, on cross-examination, Mr. Jones’s answer to counsel for the Johnsons

contradicted his two-word answer to counsel for MKOS:

[COUNSEL]: So, again, [] the way you determine the mean high water
line in this case is you walk the wrack line and you shoot elevations?

[MR. JONES]: Most definitely.

[COUNSEL]: And that’s it?

[MR. JONES]: Yes.

Mr. Jones made no subsequent comments to indicate that he did anything other

than “walk the wrack line” to comply with MKOS’s preferred methodology. Thus, even

assuming that MKOS is correct that the MHWL can be found in more than one way, the

circuit court did not commit clear error in finding that MKOS and Mr. Jones failed to

prove that they found the MHWL in any one of those ways.

Second, and in any event, the circuit court found that Mr. Jones’s calculations

were insufficiently precise even if he had employed a permissible method. This is so,

13
according to the court, because Mr. Jones testified that he took the “elevation shots” from

which he formed his opinions “atop the boardwalk itself and not the ground below.”

Additionally, Mr. Jones testified that he used a type of surveying rod that is not

conducive to establishing the MHWL because he “was not [conducting his survey] for

elevation work at the time[.]” As a result of Mr. Jones’s “lack of precision,” the court

found that he presented contradictory data that made his calculation of the MHWL

unreliable. MKOS has done nothing to show that this finding was clearly erroneous.

MKOS claims that the circuit court committed clear error by failing to find that the

boardwalk and weather station lie above the MHWL based chiefly on Mr. Jones’s

testimony. The court, however, was not required to believe Mr. Jones. Ultimately, the

court did not find Mr. Jones’s testimony or his survey “credible for making this

determination.”

The court gave a detailed explanation of why it did not find Mr. Jones and his

survey to be credible. For example, Mr. Jones said that he preferred to use a specific

NOAA station for tidal datums, but NOAA says that that station does not exist, and Mr.

Jones did not use it in any event. In addition, Mr. Jones made absurd statements, such as

the statement that the MHWL can appear at multiple locations, which, the court observed,

is inconsistent with the concept of a “mean.”

It is almost impossible for a court to be clearly erroneous when it is simply not

persuaded of something. See, e.g., Bricker v. Warch, 152 Md. App. 119, 137 (2003).

Here, the circuit court had ample grounds not to be persuaded by Mr. Jones’s opinions.

Therefore, giving “due regard to the opportunity of the trial court to judge the credibility

14
of the witnesses[,]” (Md. Rule 8-131(c)), we do not find cause to set aside the circuit

court’s judgment. 6

II. Riparian Rights

MKOS next argues that, even if the improvements are below the MHWL, it is still

entitled to judgment on its trespass and ejectment claim because it has riparian rights in

the water abutting its land. MKOS is correct that it has riparian rights in water abutting

its land. It is incorrect that its bundle of rights entitles it to judgment in its favor on a

trespass and ejectment claim.

6
None of the parties raised the issue of whether the State is a necessary party in a
trespass or ejectment action in which the defendants assert that an offending structure is
not located on the plaintiff’s property, but on property owned by the State. Maryland
Rule 2-211(a) identifies necessary parties—i.e., parties whose joinder is required:

Except as otherwise provided by law, a person who is subject to service of
process shall be joined as a party in the action if in the person’s absence

(1) complete relief cannot be accorded among those already parties,
or

(2) disposition of the action may impair or impede the person’s
ability to protect a claimed interest relating to the subject of the action or
may leave persons already parties subject to a substantial risk of incurring
multiple or inconsistent obligations by reason of the person’s claimed
interest.

In our judgment, the State is not a necessary party. The court could accord
complete relief in this trespass and ejectment action without joining the State. The State
is not in privity with MKOS or the Johnsons, so the State cannot be bound by res judicata
or collateral estoppel. Finally, the disposition of the action would not leave MKOS or the
Johnsons subject to a substantial risk of incurring multiple or inconsistent obligations by
reason of the State’s potential interest, because the only issues raised were whether the
Johnsons had trespassed onto MKOS’s property and whether the Johnsons should be
ejected.

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A riparian landowner is one who “‘owns land bordering upon, bounded by,

fronting upon, abutting or adjacent and contiguous to and in contact with a body of water,

such as a river, bay, or running stream.’” Conrad/Dommel, LLC v. W. Dev. Co., 149 Md.

App. 239, 268 (2003) (quoting Kirby v. Hook, 347 Md. 380, 389 (1997)) (further citation

omitted). “The term ‘riparian rights’ indicates a bundle of rights that turn on the physical

relationship of a body of water to the land abutting it.” Id. (quoting 1 WATERS AND

WATER RIGHTS, § 6.01(a) at 6-3, 6-4 (Robert E. Beck, ed. 1991, 2001 Repl. Vol.)). The

bundle of rights afforded to a riparian landowner includes at least the following rights:

(i) of access to the water;

(ii) to build a wharf or pier into the water;

(iii) to use the water without transforming it;

(iv) to consume the water;

(v) to accretions (alluvium); and

(vi) to own the subsoil of nonnavigable streams and other ‘private’
waters.

Conrad/Dommel, LLC v. W. Dev. Co., 149 Md. App. at 268-69.

“[T]he fundamental riparian right—on which all others depend, and which often

constitutes the principal value of the land—[is] access to the water.” Steinem v. Romney,

233 Md. 16, 23 (1963) (emphasis omitted); see also White v. Pines Cmty. Improvement

Ass’n, Inc., 403 Md. 13, 18 (2008) (“the real fight, as it usually is in riparian rights issues,

is over access to water and who has it”); People’s Counsel for Baltimore Cnty. v. Md.

Marine Mfg. Co., Inc., 316 Md. 491, 501-02 (1989) (“[at common law], the sole purpose

16
of [riparian rights] was to assure to the riparian owner that [the owner] would never be

cut off from [the owner’s] access to water”); Rayne v. Coulbourne, 65 Md. App. 351, 365

(1985) (“[o]ne of the greatest assets of being riparian is the right of access to navigable

water”).

MKOS contends that, by virtue of its ownership of land on Wetipquin Creek, it

has riparian rights such that a court can eject the Johnsons from property over which

MKOS “asserts possessory rights.” MKOS claims the circuit court “materially erred, as a

matter of law” when it declined to address MKOS’s riparian rights arguments. MKOS is

incorrect.

MKOS’s complaint contained one count: “Trespass/Ejectment.” MKOS

demanded a remedy in the form of an order “ejecting the [Johnsons] from the MKOS

Parcel” and an order directing the Johnsons to pay MKOS “any and all costs and

expenses for the restoration of the MKOS Parcel” to its previous state.

Ejectment, in its nascency, was a common law action “brought by one claiming a

right to possess real property against another in possession.” BRYAN A. GARNER, A

DICTIONARY OF MODERN LEGAL USAGE 209 (1987). Ejectment began as a “a very

narrow remedy, designed to give the lessee of property a cause of action against anyone

who ejected [the lessee], including [the lessee’s] lessor.” Pernell v. Southall Realty, 416

U.S. 363, 373 (1974). Over time, common-law ejectment evolved and “became the

principal means employed by landlords to evict tenants for overstaying the terms of their

leases, nonpayment of rent, or other breach of lease covenants.” Id. Courts in this State

have “repeatedly recognized” that, to succeed on an ejectment action under the common

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law, a plaintiff “‘must be clothed with both the legal title, and the immediate right of

possession.’” Velicky v. Copycat Building LLC, 476 Md. 435, 496 (2021) (Watts, J.,

dissenting) (quoting Lannay’s Lessee v. Wilson, 30 Md. 536, 546 (1869)). In other

words, when a party brings a common-law ejectment claim, the party is “seeking

repossession of its possessory interest.” Velicky v. Copycat Building LLC, 476 Md. at

479.

Maryland courts have distinguished between ejectment actions and actions to quiet

title. In quiet title actions, “[i]t is enough that the interest asserted by the plaintiff in

possession of land is superior to that of those who are [defendants.]” Porter v. Schaffer,

126 Md. App. 237, 272 (1999) (citations omitted). In ejectment actions, on the other

hand, where one is “seeking to recover possession,” the plaintiff is “bound to show a

perfect title as against all the world[.]” Id. (quoting Logan D. Fitch, 2 ABSTRACTS AND

TITLES TO REAL PROPERTY § 517 (1954)).

Common law ejectment is a pure possessory action. Consequently, MKOS has

sued the Johnsons under a wrong theory. Riparian rights are not possessory rights; they

are a bundle of rights granting “access ‘to the water in front of [a property owner’s] fast

land.’” Becker v. Litty, 318 Md. 76, 83 (1989) (quoting United States v. 222.0 Acres of

Land, 306 F. Supp. 138, 151 (D. Md. 1969)). “[T]he sole purpose of the rule” granting

riparian owners rights to land accumulated by accretion or reliction, in fact, was to

“assure to the riparian owner that [the owner] would never be cut off from . . . access to

water.” Bd. of Public Works v. Larmar Corp., 262 Md. 24, 36 (1971). Riparian rights

relate almost exclusively to use and access. MKOS asked the circuit court, then, to be

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restored to possession of water it may have the right to use and access, but does not have

the right to possess. MKOS cannot show “perfect title as against all the world” to waters

that it does not have the exclusive right to possess. Porter v. Schaffer, 126 Md. App. at

272.

Similar reasoning applies to the trespass portion of MKOS’s complaint. “A

trespass is a tort involving ‘an intentional or negligent intrusion upon or to the possessory

interest in property of another.’” Mitchell v. Baltimore Sun Co., 164 Md. App. at 508

(quoting Ford v. Baltimore City Sheriff’s Office, 149 Md. App. 107, 129 (2002)).

Because riparian rights are non-possessory, MKOS cannot prove that the Johnsons

negligently intruded “upon or to” its “possessory interest.” Id. Simply put, the remedy

for a violation of a riparian owner’s riparian rights is not to restore that owner to

possession of the water in front of the owner’s fast land. The circuit court was correct

that MKOS’s riparian rights arguments were “not relevant to dispensing with [its]

trespass claim[,]”and was, by extension, correct to decline to address them.

Finally, MKOS argues that the circuit court “was required” under Title 16 of the

Environment Article of the Maryland Code (1996, 2014 Repl. Vol.) “to take action to

enjoin” the Johnsons’ alleged violations of that article. It cites section 16-307(a)(1) of

the Environment Article, which provides that “[a]ny person proposing to conduct on any

wetland an activity not authorized by” certain COMAR regulations “shall apply for a

permit[.]” Thus, MKOS argues that it should be allowed “a private cause of action to

prohibit unpermitted improvements in the intertidal lands adjacent to [its] riparian

property[.]”

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Once again, however, MKOS has sued only for trespass and ejectment. The

remedy for any alleged violation of a permitting requirement of the Maryland Code is not

to eject the violator from riparian waters and restore a riparian landowner to possession of

the waters. The circuit court was correct to decline to address MKOS’s arguments to the

contrary.7

JUDGMENT OF THE CIRCUIT COURT
FOR WICOMICO COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.

7
Because MKOS proceeded solely on theories of trespass and ejectment, we need
not consider MKOS’s contention that a riparian owner has a private right of action under
COMAR to obtain an injunction requiring the removal of structures, like the boardwalk
and weather station, that were erected in the intertidal area without a required permit. We
do not countenance the unpermitted installation of structures on State property, in the
navigable waterways of the State, or in areas regulated by the State, such as the
Chesapeake Bay Critical Area.

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