Circuit Court for Worcester County Case No. 23-C-16-000712
Berger, Sharer, J. Frederick (Senior Judge, Specially JJ.
case involves the appellant's adverse possession claim of
a parcel of property (the "Property") located at
601 S. Atlantic Avenue in Ocean City, Maryland. The Property
has been continuously occupied and controlled by Nathan
Rapoport and his family for the last one hundred six years.
The Property is located on the east side of the Ocean City
Boardwalk. The appellant is Nathans Associates
("Nathans"), a partnership comprised of Mr.
Rapoport's granddaughter and great-grandchildren. The
Mayor and City Council of Ocean City ("Ocean
City"), appellee, conceded that Mr. Rapoport and his
successors had been in actual, open, notorious, exclusive,
and continuous possession and control of the Property since
1912. Ocean City contested the adverse possession claim on
the basis that the Property was located within a dedicated
and accepted public easement prior to Mr. Rapoport's
acquisition of title to the Property by adverse possession.
circuit court agreed with Ocean City and entered an opinion
and order requiring Nathans to vacate the Property and to
remove or demolish its building on the Property. Nathans
appealed to this Court, presenting four issues for our
consideration, which we have rephrased slightly and
consolidated as follows:
1. Whether Ocean City presented sufficient evidence to
support the circuit court's finding that the Property was
physically located within the area of the dedication and
public easement of the Town of Ocean City.
2. Whether Ocean City presented sufficient evidence to
support the finding that the dedication of the Property was
accepted and, therefore, that a public easement was created
on the Property.
3. Whether the circuit court erred in concluding that Ocean
City had not abandoned the Property and was not estopped from
enforcing its easement as to the Property.
4. Whether the circuit court abused its discretion by denying
Nathans' motion for recusal.
shall answer the first question in the negative and hold that
there was insufficient evidence to support the circuit
court's conclusion that the Property was physically
located within the relevant area. In light of this holding,
we shall not address the second and third questions. Because
this case will be remanded to the circuit court, we shall
address Nathans' motion for recusal and, as we shall
explain, find no abuse of discretion by the circuit court in
denying the motion.
relating to the origins of Ocean City are critically
important to our consideration of the issues in this appeal.
On July 28, 1876, Stephen Tabor conveyed a parcel of land to
certain trustees for the establishment of a "sea-side
summer resort." The deed (the "1876 Deed")
described the parcel conveyed as follows:
Fifty acres of the said tract have with my acquiescence and
approval been laid off into a town, with lots, streets, and
avenues, and is called and known as Ocean City, a description
of which will appear by reference to the plat filed with and
as a part of this deed, the lots being designated by number
and the streets and avenues by the names on said plat; which
said fifty acres are described as follows, to wit: Beginning
at a post set in the surf bank of the Beach opposite Hammock
Point six poles from low water mark, said post bearing from
the south chimney of said Tabor main dwelling house on
Hammock Point South seventy-six and one eighth degrees east
(76 1/8) and from the north chimney of said Tabor's
Marshall Farm dwelling house South forty seven and three
eighths degrees east (47 3/8) and from the South Chimney of
Thomas W. Tingle's dwelling house South Eighty-one and
seven eighths degrees East (81 7/8), and from said post
measuring as the magnetic needle [illegible] in the
[illegible] Eighteen hundred and seventy-five, Seventy-six
and one eighth degree West (76 1/8), fifty-eight poles to the
waters of Sinepuxent Bay; [illegible] and with the waters of
said Bay four and one fourth degree East (4 ¼)
ninety-six and [illegible] pole; thence across the Beach
South seventy six and eighth (76 1/8) [illegible] poles to
the surf at low water mark . . . .
was attached to the deed and referenced therein (the
"Plat"). The Plat is reproduced infra in
the Discussion section of this Opinion.
Town of Ocean City was incorporated in 1880. 1880 Md. Laws
ch. 209. The Act incorporating the Town of Ocean City
described the boundaries of the town as follows:
That the bounds and limits of the said town are as follows,
to wit: Beginning at a point in Synepuxent Bay at or near the
easternmost end of the Ocean City Bridge Company's
bridge, and from thence by and with the waters of said bay in
a southerly direction to the south side of the lands conveyed
by "Stephen Faber" to Granville Stokes, in a deed
dated August the twenty-eight, eighteen hundred and
seventy-nine, thence by and with said south side line in an
easterly direction, and a continuation of the same across
Atlantic avenue to the Atlantic Ocean, thence by and with the
waters of the same in a northerly direction to the north side
line of the lands conveyed by said Faber to Hillary R. Pitts,
Benjamin Jones Taylor, and George W. Purnell, trustees, by
deed dated July twenty-eight, eighteen hundred and
seventy-six, thence by and with said north side line north
seventy-six and one-eight degrees west, across the beach to
Synepuxent Bay, then down by and with the waters of said bay
in a southerly direction to the first beginning, at the
easternmost end of the Ocean City Bridge Company's
bridge; and the commissioners of said town, as hereinafter
provided for, shall have a survey made by a competent
surveyor of all the streets and avenues of said town, and
shall have a stone placed at the north and south sides of the
streets, bearing westerly from Atlantic avenue in said town,
and at the east end thereof, at the intersection of said
streets bearing westerly with Atlantic avenue.
11, 1891, following Mr. Tabor's death, the executors of
Mr. Tabor's estate conveyed additional property to the
Sinepuxent Beach Company of Baltimore City.
1911, Mr. Rapoport arrived in Ocean City. He built his first
building on the Property in 1912. From 1912 until 1968, Mr.
Rapoport personally operated various businesses on the
Property. During 1969 and 1970, Mr. Rapoport leased the
Property to Candy Kitchen. Since 1971, Mr. Rapoport and his
successors have leased the Property to Dumser's
Dairyland. Mr. Rapoport died in 1973.
the years, Mr. Rapoport and his successors made various
modifications to their building on the Property. In 1954,
Ocean City requested that Mr. Rapoport move his building east
on the Property to allow for the widening of the Ocean City
Boardwalk. Mr. Rapoport acquiesced. When he relocated the
building, Mr. Rapoport constructed a full basement under the
building. Mr. Rapoport sought and obtained a permit for the
construction of the basement.
1966, Mr. Rapoport wished to add living quarters to his
building by constructing a second floor, a project for which
a permit was required. At that time, Mr. Rapoport and Ocean
City entered into an agreement to permit the construction of
the second floor. The agreement further required Mr. Rapoport
to pay property taxes.  The agreement provided that it would
"be completely void fifty (50) years from the date
hereof." Since the signing of the 1966 Agreement,
Mr. Rapoport and his successors have paid city, county, and
state real property taxes for the Property.
Rapoport's only daughter died in 1999, after which the
Property was conveyed by deed to Mr. Rapoport's
granddaughters and great-grandchildren. In 2001, the Rapoport
family began operating the Property under the name of
Nathans, and in 2016 the Property was formally retitled in
the name of Nathans.
17, 2016, Ocean City, by letter, demanded that Nathans vacate
the Property. In response, Nathans filed a complaint to quiet
title and for declaratory judgment. Nathans' complaint
contained two counts. The first count sought to quiet title
to the Property based upon a claim for adverse possession and
was filed against the Sinepuxent Beach Company of Baltimore
City, Inc., and any and all unknown persons having any legal
or equitable right or claim of ownership to the Property. The
second count sought a declaratory judgment that Ocean City
had no rights or interest in the Property. The circuit court
entered an order for service by publication and posting.
Service by publication was effectuated through notices in The
Daily Times on September 20, 2016, October 3, 2016, and
October 10, 2016. The only response filed was by Ocean City.
Ocean City filed both an answer and counter-complaint. The
counter-complaint sought declaratory relief, injunctive
relief, and accounting and disgorgement of profits.
case was tried before the circuit court on April 18, 2017.
Ocean City conceded that Nathans and its predecessors had
been in actual, open, notorious, exclusive, and continuous
possession of the Property since 1912. Ocean City contested
Nathans' adverse possession claim on the sole basis that
the Property was located within a dedicated and accepted
public easement prior to Mr. Rapoport's acquisition of
title via adverse possession in 1932.
18, 2017, the circuit court ruled in favor of Ocean City and
ordered Nathans to vacate the Property. This timely
appeal followed. Additional facts shall be discussed as
necessitated by our discussion of the issues on appeal.
critical issue for our determination in this case is whether
sufficient evidence exists in the record to support the
circuit court's conclusion that the Property is located
within a dedicated and accepted public easement.
an action has been tried without a jury, the appellate court
will review the case on both the law and the evidence."
Md. Rule 8-131(c). This Court will "not set aside the
judgment of the trial court on the evidence unless clearly
erroneous, and will give due regard to the opportunity of the
trial judge to judge the credibility of the witnesses."
Id. "Findings are not clearly erroneous if
'any competent material evidence exists in support of the
trial court's factual findings[.]'" Bontempo
v. Lare, 444 Md. 344, 363 (2015) (quoting Webb v.
Nowak, 433 Md. 666, 678 (2013)). We consider questions
of law de novo. Id. We "consider
without deference . . . the lower court's decision
regarding the legal interpretation of a deed only after the
proper location of the disputed boundary line has been
established by an adequate factual record."
Webb, supra, 433 Md. at 677.
adverse possession case, "a claimant must show
continuous possession of the property for 20 years in an
actual, open, notorious, exclusive, and hostile manner, under
claim of title or ownership." Porter v.
Schaffer, 126 Md.App. 237, 276 (1999) (quotation
omitted). Ocean City conceded at trial and in this appeal
that Nathans had established continuous possession of the
Property for over twenty years in an actual, open, notorious,
exclusive, and hostile manner, under claim of title or
addition, Nathans put forth evidence of the location of the
Property as well as evidence of the record title holder.
George Young testified on behalf of Nathans as an expert in
the field of professional land surveying. He performed a
boundary line survey of the Property and identified the
physical location of the building. Mr. Young testified as
[COUNSEL FOR NATHANS]: Mr. Young, do you have an opinion
within a reasonable degree of certainty and probability in
the field of professional land surveying as to the physical
location of the Nathans Associates property located at 601
South Atlantic Avenue in Ocean City?
[MR. YOUNG]: Yes, I do.
[COUNSEL FOR NATHANS]: And what is that opinion, sir?
[MR. YOUNG]: Located as shown on our plat.
[COUNSEL FOR NATHANS]: Mr. Young, I'm just handing you
the blowup of the plat which has been mounted on the board.
And it's your opinion that the location of the Nathans
Associates property is as indicated by the boundary
description, with the metes and bounds descriptions and calls
indicating the four property lines of the property?
[MR. YOUNG]: Yes, that's my professional opinion.
plat was introduced into evidence. On cross-examination, Mr.
Young explained that his task was to establish the
"physical location of the building."
also presented expert testimony from title abstractor Cynthia
Todd. After describing the process she undertook to research
the title of the Property, Ms. Todd testified as follows:
[COUNSEL FOR NATHANS]: Based on your title abstract of this
property, do you have an opinion within a reasonable degree
of certainty and probability within the field of title
abstracting as to who owns record title to the property
titled in the name of Nathans Associates and located at 601
South Atlantic Avenue?
[MS. TODD]: Correct. Yes, I do.
[COUNSEL FOR NATHANS]: And what is that opinion?
[MS. TODD]: The owner, fee simple owner, is Sinepuxent Beach
Company of Baltimore City.
City's sole defense to Nathans' adverse possession
claim was that Property could not be adversely possessed
because it was within a public easement. In order for the
Property to be within a public easement, it must be located
within the area of the parcel designated as Atlantic Avenue
that was conveyed by the 1876 Deed discussed supra.
If the Property is located north of the original southern
boundary of the Town of Ocean City (and south of the original
northern boundary), title cannot be obtained via adverse
possession because the Property would be located within the
Atlantic Avenue public easement. If the Property is located
outside of the original boundaries of Ocean City, title to
the Property can be obtained via adverse possession because
it is not within the Atlantic Avenue public easement.
burden is upon Ocean City to establish the location of the
Property within the parcel conveyed by the 1876 Deed.
Porter, supra, 126 Md.App. at 261-62
("Where a defendant, in an action to quiet title,
substantially asserts and relies upon a fact as an
affirmative issue, he must establish such
fact."). The circuit court determined that Ocean
City presented sufficient evidence to establish that the
Property was part of the parcel conveyed in 1876, and,
therefore, that title to the Property could not be obtained
via adverse possession because the Property is located within
a dedicated and accepted public easement.
parties do not dispute that a dedicated and accepted public
easement was created on Atlantic Avenue when the parcel was
conveyed in 1876 and the Town of Ocean City was subsequently
created in 1880. See Windsor Resort Inc. v. Mayor &
City Council of Ocean City, 71 Md.App. 476, 487 (1987)
("There can be no serious dispute that that portion of
Atlantic Avenue which lies within the original boundaries of
the Town of Ocean City was accepted by the General Assembly
on behalf of Ocean City as a public roadway."). The
parties dispute whether the evidence sufficiently establishes
that the Property was located within the relevant area. We
must, therefore, carefully examine the evidence presented
before the trial court in order to determine whether
sufficient evidence supports the trial court's
1876 Deed and accompanying Plat is the only evidence that was
introduced at trial to show the location of the dedication of