Swann Keys Civic Association v. Michael Dippolito

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
SWANN KEYS CIVIC ASSOCIATION, )
)
Petitioner )
)
v. ) C.A. No. 2021-0614-SG
)
MICHAEL DIPPOLITO, JOSEPH W. )
MANNING, SHARON MANNING, )
THERESA A. CORRICK, ROBERT C. )
DUFFY III, and JESSICA L. DUFFY, )
)
Respondents. )
MEMORANDUM OPINION
Date Submitted: September 9, 2022
Date Decided: December 30, 2022
David C. Hutt and Michelle G. Bounds, of MORRIS JAMES LLP, Georgetown,
Delaware, Attorneys for Petitioner.
Dean Campbell, of LAW OFFICE OF DEAN A. CAMPBELL, PA, Milton,
Delaware, Attorney for Respondents.
GLASSCOCK, Vice Chancellor
This action represents the unfortunate sequel to litigation apparently resolved
in this Court more than thirty-five years ago.1 In that earlier case, Vice Chancellor
Hartnett accepted a settlement to confirm title (the “Settlement”)2 to common areas
in a waterfront trailer park on Dirickson Creek in south-eastern Sussex, known as
“Swann Keys.” The individual lots in Swann Keys were held by the owners in fee.
The title to the common areas was confirmed in the litigation in favor of the
homeowners’ association, the Swann Keys Civic Association (the “Association”),
an entity created in light of that suit. Included in the common areas in the Settlement,
which were to be vested in the Association, were “two concrete boat ramps.”
However, when title documents were filed after the settlement, they did not include
the boat ramps, which, per the Respondent lot owners, actually occupy portions of
the adjoining lots.
In recent years, the behavior of those using the ramps has become noxious.
The Respondents here, lot owners adjacent to the ramps, discovered (to their
surprise) that they had a claim to title over the ramps. Upset by the boorish behavior
of ramp-users and concerned that they might be liable for injuries arising on the
ramps, the Respondents physically blocked access to the ramps. The Petitioner
Association sued to enjoin the barriers, and to quiet title or establish a prescriptive
1
See Atkinson v. B.E.T., Inc., 1984 WL 159375 (Del. Ch. Dec. 4, 1984).
2
Other issues, not pertinent here, were resolved by the settlement, which was incorporated by
Order of this Court.
1
easement in favor of the Association over the ramps. The matter was tried; this is
my post-trial opinion.
After the trial, the Association moved to amend the pleadings to reflect the
evidence that supports title to the ramps in favor of the Association under the
doctrine of adverse possession, in addition to prescriptive easement. Because I find
open, notorious and exclusive use of the ramps by the Association and its members
for the prescriptive period, and finding no assertion of ownership or control by the
Respondents or their predecessors during that period, I quiet title to the property
under both ramps in the Association, as common-use areas. I also dismiss the
counterclaims raised by the Respondents, with the exception of their allegations that
the Association is maintaining a nuisance, on which issue I reserve decision.
My reasoning is explained, below.
I. BACKGROUND3
A. The Parties
The Association is the homeowner’s association for Swann Keys (the
“Community”).4 The Association manages the Community’s common areas,
3
Where the facts are drawn from jointly submitted exhibits, they are referred to according to the
numbers provided by the parties and cited as “JTX- __”. Oddities in JTX numbers are artifacts of
the mode in which the exhibits were submitted.
4
Because the prescriptive period is satisfied by the period post-dating the Association’s creation,
and because the record, at times, does not clearly define who was acting on behalf of Swann Keys
2
amenities, and utilities. A 1985 court order (the “Order”),5 which followed a class
action lawsuit6 (the “Atkinson litigation”) and a proposed settlement,7 explicitly
created it to perform this function.8
Respondent Michael Dippolito is the record owner of Swann Keys Lot 1,
Block B, which is located at the intersection of Blue Teal Road and Swann Drive.9
He received ownership of the property in April 2019.10
Respondents Joseph W. Manning, Sharron Manning, and Theresa A. Corrick
(collectively the “Mannings”) are the record owners of Swann Keys Lot 1, Block G,
which is located at the intersection of Blue Bill Road and Swann Drive.11
Respondents Robert C. Duffy III and Jessica L. Duffy (the “Duffys”) are the
record owners of Swann Keys Lot 2, Block F, which is the second lot on Laws Point
Road.12
and its communal amenities prior to 1985, “Community” is, in context, also used to designate
those managing Swann Keys.
5
JTX-551–64.
6
See Atkinson, 1984 WL 159375.
7
JTX-565–80.
8
See Atkinson, 1984 WL 159375, at *5.
9
JTX-411–12.
10
Id.11
See JTX-425–27 (showing William and Mary Manning’s ownership). The Mannings inherited
the property from their father, William Manning.
12
JTX-440–42.
3
B. Setting the Scene
Swann Keys is a waterfront trailer park in Sussex County. The development
sits on a series of lagoons that open onto Dirickson Creek, which itself opens onto
Little Assawoman Bay. Within the Community there are two boat ramps—the West
Ramp and the East Ramp—which are the subject of this action.13 The West Ramp
is located on Swann Drive between Blue Bill Drive and Laws Point Road.14 The
East Ramp is located on Swann Drive one lot east of the intersection of Blue Teal
Road and Swann Drive.15 The Mannings’ and Duffys’ deeds refer to the Swann
Keys plot plan, which indicates that they each own a portion of the West Ramp as a
part of their lots.16 Dippolito’s deed—likewise via the plot plan—indicates that he
owns a portion of East Ramp.17 Several non-parties, the Shaffers and the Matterns,
issued Corrective and Confirmatory Deeds such that the Association is record owner
of the remaining portions of the ramps.18
13
See Verified Pet. Quiet Title & Other Relief, Dkt. No. 1.
14
JTX-1.
15
JTX-2.
16
See JTX-425–27; see also JTX-440–42.
17
See JTX-411–12.
18
See Resp’ts’ Omnibus Answer to Pet’r’s Verified Pet. Quiet Title & Other Relief and Defs.’
Countercl. Injunctive Relief ¶ 31, Dkt. No. 21.
4
C. Swann Keys Through the Ages
In 1965 James and Gladys Swann (the “Swanns”) purchased the land that
would become Swann Keys.19 They sold a number of lots prior to formally plotting
the development in 1969 and 1970.20 The plot plan does not show the ramps; the
lots adjacent to the ramps are shown as contiguous to one another.21 Later, between
1970 and 1971, the Swanns sold their interest to Exten Associates, Inc. (“Exten”).22
Exten managed the Community and sold lots until it declared bankruptcy in 1974.23
Swann Keys sold at a Sheriff’s sale to B.E.T., Inc. (“B.E.T.”) in 1975.24 That entity
took over management of Swann Keys and sold additional lots.25 However, when
B.E.T. attempted to raise their fees in 1980, the Swann Keys residents brought a
class action, the Atkinson litigation, in this Court to enforce a restrictive covenant,
which required a non-profit to collect assessments and operate the common areas.26
Then-Vice Chancellor Hartnett, faced with what he described as “almost
insurmountable title problems,”27 tasked the parties with determining “how the
nonprofit corporation [was] to obtain title to the common facilities and the amount
19
Atkinson, 1984 WL 159375, at *1.
20
Id.21
JTX-392–97.
22
Atkinson, 1984 WL 159375, at *1.
23
Id. at *2.
24
Id.
25
Id.
26
Id. at *1–2.
27
Id. at *1.
5
of any sum to be paid to [B.E.T.] as reimbursement for some or all of the costs of
the common facilities it constructed.”28 The parties set to work and ultimately came
to an accord; a proposed settlement followed.29 That settlement proposed the
exchange of $300,000 for, among other things, “the basketball court, playground
equipment, pool, clubhouse, tennis courts, two concrete boat ramps, entrance
gatehouse and mobile home office, equipment and furniture.” 30 Notice of this
proposed settlement, including the intention to purchase “two concrete boat ramps”
from B.E.T.,31 was mailed to the residents of Swann Keys.32 Then-Vice Chancellor
Hartnett approved the Settlement,33 and incorporated its contents within his final
order.34 The Court retained jurisdiction
for the purpose of enforcing, protecting and implementing the terms of
this Order, and the terms of the Compromise and Settlement Agreement
. . . including the resolution of any dispute that may arise with respect
to effectuation of any of the provisions . . . and for the entry of such
further orders as may be necessary or appropriate.35
28
Id. at *5.
29
JTX-565–80.
30
JTX-566 (emphasis added).
31
JTX-462. The Respondents point out that the land under the ramps had already been deeded out
to the adjacent lot owners. Defs. Post-Trial Opening Br. 3–6, Dkt. No. 42.
32
JTX-457–533.
33
JTX-551. For the Settlement, see JTX-565–80 (Compromise and Settlement Agreement).
34
JTX-552–64. For the deeds conveying title to the Association, see JTX-398–99 and JTX-400–
01.
35
JTX-564.
6
Use of the boat ramps by members of the Swann Keys community dates back
to at least 1969.36 From the beginning, the Community attempted to limit use of the
ramps to Community residents, with mixed success: in these early days the
Community issued boat registration stickers and maintained locks and chains to limit
ramp access to those resident in the park.37 The developer, prior to the Association’s
formation, and later the Association, would occasionally change these lock codes
and distribute the new codes to Community members from the Swann Keys office.38
Presently, if a code is requested by email, the office confirms that the requestor is a
resident and, only then, replies with the code.39
Beyond the use of locks and chains, the Association has tried to limit the non-
resident use of the boat ramps. Via newsletter, the Association told Swann Keys
residents that the boat ramps are for their use and that residents should avoid sharing
the lock codes.40 In 2020,41 the Association mailed letters to contractors who launch,
retrieve, and store boats in the local area, requesting that these businesses only use
the boat ramps for boats owned by Swann Keys residents.42
36
Tr. 2.3.22 Trial 91:13–92:15, Dkt. No. 40 [hereinafter Trial Tr.].
37
Id. 96:9–22.
38
Id. 96:20–97:7, 98:18–99:13.
39
Id. 104:5–12.
40
Id. 104:23–105:9.
41
Id. 107:18–108:8.
42
Id. 104:23–14.
7
Beyond controlling ingress and egress, the Association has maintained and
improved the ramps. Specifically, the Association repaired and improved the East
Ramp in 1988,43 and has receipts for repairs made to the East Ramp in 2005, 2012,
and 2014.44 In 2005, after receiving no objection from Mr. Dippolito’s predecessor
in interest,45 the Association made $5,000 of repairs.46 In 2012, the Association paid
$3,000 to repair a wash hole in the canal bed at the end of the ramp.47 In 2014, the
Association paid $10,400 to extend the East Ramp and repair a wash-hole at its
former base.48 More regular upkeep has taken the form of maintenance of the
walkways, chains, and locks.49
D. The Unpleasantness
In recent years, some ramp users have behaved boorishly. Those living
adjacent to the ramps have suffered accordingly. The evidence at trial showed that,
on occasion, boaters have trespassed, loitered, and damaged property, including
43
Id. 95:2–16; JTX 10.
44
JTX-253; JTX-42; JTX-48; JTX-51.
45
JTX-244 (“Swann Keys will be putting in a new boat ramp with permanent breakwater in the
canal next to your property. We need you to sign off that you have no objection to this work being
done.”).
46
JTX-253.
47
Trial Tr. 64:6:16; JTX-42.
48
JTX-46; JTX-48, JTX-51.
49
Trial Tr. 95:17–96:8, 109:2–11 (noting that when materials were needed for these smaller repairs
a debit card was used).
8
moored boats.50 They have left the guard chains unlatched.51 They have strewn
cigarette butts and litter.52 They have held picnics and left trash on the neighbors’
lawns.53 They have left dog excrement, and have themselves micturated at the
ramp.54 They have, irrespective of the hour, been noisy.55 They have verbally
abused the neighbors.56 They have behaved, in other words, as members of the genus
and species described by taxonomist Franc White as Swinus Americanus.57
E. Closure of Ramps
After a number of informal complaints to members of the board, the
maintenance man, and other members of the community, as well as a formal
complaint in June 2020,58 the Respondents blocked the East Ramp in October 2020
with a concrete “jersey” barrier.59 The closure of the East Ramp diverted all boat
loading and unloading to the West Ramp.60 In response, the Petitioner filed this
50
Id. 137:11–138:10, 206:12-21, 141:13–142:12, 153:18–154:9, 191:22–192:4.
51
Id. 161:8–162:18.
52
Id. 166:16–167:3.
53
Id. 180:3–18.
54
Id. 193:14–20.
55
Id. 140:2–141:9, 155:21–157:1, 182:14–24, 190:12–19.
56
Id. 199:3–202:19.
57
See gen. Franc White, http://francwhite.com/ (last visited Dec. 27, 2022).
58
Trial Tr. 192:5–20.
59
Id. 215:10–17, 242:4–13; JTX-1.
60
Trial Tr. 215:10–17.
9
lawsuit,61 and the Respondents subsequently shut down West Ramp.62 These are the
only boat ramps in the community.63
F. Procedural History
Petitioner filed its Verified Petition to Quiet Title & for Other Relief (the
“Petition”) July 15, 2021.64 The Petition included four counts for relief, which
sought to quiet title to the boat ramps, an injunction to remove the “jersey” barrier
and prevent any further blockage from either of the ramps, an easement by estoppel
over the boat ramps, and a prescriptive easement over the boat ramps.65 A request
for a temporary restraining order to allow the Association to reopen the boat ramps
followed on August 13, 2021.66 I granted that relief subject to a $10,000 bond on
August 17, 2021.67 On October 6, 2021, Respondents entered their Answer and
Counterclaims, which contained three counts for relief.68 Discovery followed, and I
61
See Verified Pet. Quiet Title & Other Relief ¶¶ 25–32.
62
See Trial Tr. 215:18–22.
63
Because Dirickson Creek connects to navigable water, the lagoons in Swann Keys can be
reached by boat without the use of the ramps in question. It would be a significant inconvenience
to do so. There is a public ramp on the north side of Little Assawoman Bay, in the Assawoman
Wildlife Area, but that ramp is a long drive from Swann Keys, some of it on unimproved dirt roads.
Another ramp is easier to reach by car and boat trailer, but a significant distance from Swann Keys
by water; the state ramp on The Ditch connecting Little and Great Assawoman Bays, adjacent to
the Delaware/Maryland state line.
64
See Verified Pet. Quiet Title & Other Relief.
65
Id. ¶¶ 33–48.
66
See Pet’r’s Mot. Expedited Proceedings and Temporary Restraining Order, Dkt. No. 8.
67
Judicial Action Form, Dkt. No. 13; Tr. 8.17.21 Rulings Ct. Pet’r’s Mot. TRO, Dkt. No. 17.
68
See Resp’ts’ Omnibus Answer to Pet’r’s Verified Pet. Quiet Title & Other Relief and Defs.’
Countercl. Injunctive Relief.
10
held a one-day trial on February 3, 2022.69 Post-trial briefing was complete on
March 28, 2022,70 but on April 4, 2022 Petitioner sought leave to amend their
petition to add a claim for adverse possession.71 On May 6, 2022, subject to
Petitioner paying the cost of the additional briefing required, I granted the requested
leave to amend.72 In granting the Petitioner’s leave to amend I stated that if the
Respondents could demonstrate prejudice such that they were “precluded from
developing evidence in discovery and presenting it at trial that might be material to
the outcome,” I would deny the relief sought.73 Supplemental briefing followed and
was complete on June 15, 2022.74 Respondents sought to supplement the trial
record, and I granted this request on August 18, 2022.75 The matter was fully
submitted on September 9, 2022.76
69
See Trial Tr.
70
See Pet’r Swann Keys Civic Association’s Post-Trial Answering Br., Dkt. No., 45.
71
See Mot. Leave Amend Pet’r Swann Keys Civic Association’s Verified Pet. Quiet Title Pursuant
to Chancery Rule 15(B), Dkt. No. 48.
72
Judicial Action Form, Dkt. No. 51.
73
Tr. 5-6-22 Telephonic Hr’g Regarding Pet’r’s Mot. Leave Amend 6:9–7:14, Dkt. No. 55.
74
See Pet’r’s Suppl. Br. Pet’r’s Claim Adverse Possession, Dkt. No. 58.
75
Granted (Stipulation Regarding Def’s Request Suppl. Tr. R.), Dkt. No. 67.
76
Joint Letter for Vice Chancellor Glasscock from David Hutt and Dean Campbell, Dkt. No. 69.
11
II. ANALYSIS
A. Leave to Amend
I granted the Petitioner’s leave to amend on May 6, 2022, subject to
supplemental briefing; I address the issue here in light of that briefing.77 Simply
stated, the Petition originally sought to quiet title to the property occupied by the
boat ramps in the Association, and alternatively sought a finding of easement by
prescription. The quiet title request logically—if not explicitly—encompassed title
by adverse possession. The evidence at trial supported adverse possession. If a party
opposing leave to amend can show that it was prejudiced by an inability to seek
discovery on the amended claim and to present such evidence at trial, I should deny
the amendment; otherwise, leave to amend is granted freely.78
Respondents have proved unable to make a showing of prejudice. In their
supplemental brief, Respondents’ arguments focus on the difference between “use”
(for purposes of easement) and “possession” (for purposes of adverse possession).79
Rather than explaining how they were prejudiced and describing the evidence they
were unable to gather and present, the Respondents primarily argue the merits.
77
Judicial Action Form, Dkt. No. 51.
78
See Vichi v. Koninklijke Philips Elecs., N.V., 85 A.3d 725, 761 (Del. Ch. 2014) (internal
quotations omitted) (“The primary test for prejudice when a party seeks to assert a new theory is
whether the opposing party was denied a fair opportunity to defend and to offer additional evidence
on that different theory.”); see also Tr. 5-6-22 Telephonic Hr’g Regarding Pet’r’s Mot. Leave
Amend 6:9–7:14.
79
Defs.’ Suppl. Br. Concerning Pl.’s Mot. Amend Pleadings 5, Dkt. No. 56.
12
However, the Respondents do aver that “had [they] been put on notice that
possession, instead of use, was an issue, [they] would likely have provided additional
testimony, and possibly documentation, of the possession of the boat ramps over the
years.”80 This statement is entirely conclusory. It fails to explain what evidence
would have been gathered, why it would have helped the Respondents, and how they
were prejudiced. If such evidence existed, it would have been pertinent to
prescriptive easement as well as adverse possession. As it is, the Respondents did
not depose any witnesses in developing their case. I also note that the adverse
possession claim is broader than for prescriptive easement; it requires a showing, as
Respondents themselves point out, of use and possession,81 and not simply use. In
these circumstances, not only have Respondents failed to show prejudice, but it is
difficult to understand a theory of how prejudice could have occurred.
As there has been no showing of prejudice, leave to amend to conform to the
evidence is granted, and the adverse possession claim stands to be judged on the
merits.
I next turn to that analysis. I note that among the issues litigated here was
whether the Settlement and Order in the Atkinson litigation created legal title to the
land under the ramps in the Association. This assertion by the Petitioner was
80
Id. 10.
81
Id. (citing RICHARD R. POWELL, POWELL ON REAL PROPERTY §§ 91.02–91.03 (2013)).
13
vigorously opposed by Respondents. The Order, by incorporation of the Settlement,
directs the “two concrete boat ramps”—which I find by a preponderance of the
evidence refers to the East and West Ramps at issue here—to be transferred to the
Association.82 The deeds implementing the Order fail to mention the ramps,
however.83 Issues regarding the effect of the Order on title are legion.84 If ownership
is not provided to the ramps by the Settlement and Order, however, title to the ramps
by prescription is manifest from the trial record. For purposes of this Memorandum
Opinion, therefore, I assume, without deciding, that the Respondents hold record
title to land underlying the boat ramps, and consider only whether the Petitioner has
nonetheless established title by prescriptive use.
B. Adverse Possession
To quiet title by adverse possession a plaintiff must show by a preponderance
of the evidence that she used and possessed the property at issue, in a manner open
and notorious, exclusive, and hostile and adverse, for a continuous statutorily-
82
JTX-554; JTX-566.
83
JTX-398–99; JTX-400–01.
84
These include, in part, whether the developer owned the ramps as of the date of the Order;
whether the Respondents’ predecessors had adequate notice that any property interest in the ramps
was jeopardized by failing to object; whether the omission of the ramps from the deed was an
intentional waiver of rights under the Order, etc.
14
prescribed period of years.85 The prescriptive period in Delaware is twenty years.86
The evidence shows that Petitioner has satisfied each of these elements.
I address each element below. I note, however, that there could hardly be a
clearer case for adverse possession. The ramps are paved and obvious features of
the community. They connect the roads of Swann Keys to the lagoons, where the
Association’s members dock their boats.87 At the time of the litigation, some 200
boats were docked in the lagoons, accessed by the ramps.88 The Respondents did
not believe, until shortly before the litigation, that they had any claim of title to the
land occupied by the ramps.89 Even under the Respondents’ theory, no individual
lot owner owned an entire ramp; that is, it is clear the neither ramp was an amenity
for a particular lot. The Association, going back long before the prescriptive period
required, has maintained the ramps for the use of its members, has attempted to
exclude trespassers by closing off the ramps through the use of locks and chains, and
has never sought permission for use from the Respondents,90 nor acknowledged a
85
Tumulty v. Schreppler, 132 A.3d 4, 23–24 (Del. Ch. 2015) (quoting Taraila v. Stevens, 1989
WL 110545, at *1 (Del. Ch. Sept. 18, 1989). It is an anomaly of our law that adverse possession
requires only a preponderance of evidence, while easement by prescription requires clear and
convincing evidence, see Ayers v. Pave It, LLC, 2006 WL 2052377, at *2 (Del. Ch. July 11, 2006);
in any event, the evidence of adverse possession here, I find, would clear either bar.
86
10 Del. C. § 7901.
87
Trial Tr. 49:6–50:17.
88
Id.
89
Id. 192:21–193:6, 214:15–215:9, 229:15–18, 233:10–14, 241:1–10.
90
As required by Department of Natural Resources and Environmental Control, the Association
did obtain permission for repairs to a ramp from Respondents, as adjacent property owners to the
ramps themselves.
15
claim of others over the property. The Respondents, by contrast, evinced no claim
to the property under the ramps until this dispute arose long after the prescriptive
period had run. They and their predecessors, the record demonstrates, have never
attempted to make use of the ramps, outside their right to do so as Community
residents for launching boats. The disputed title results from what the Atkinson court
described as near-insurmountable title problems, and the failure of the Atkinson
litigation, in 1985, to resolve title to the ramps. It is to quiet title in such situations
that the doctrine of adverse possession was created. I examine the facts in light of
the elements of adverse possession, below. I find that the preponderance of the
evidence satisfies each.
1. Open and Notorious Use
“Open and notorious means that the possession must be public so that the
owner and others have notice of the possession. If possession was taken furtively or
secretly, it would not be adverse and no title possession could be acquired.”91 The
question is whether the owner and the public would notice that the alleged possessor
is in possession of the land.
91
Tumulty, 132 A.3d at 27 (quoting Walker v. Five N. Corp., 2007 WL 2473278, at *4 (Del. Super.
Ct. Aug. 31, 2007) (internal quotations omitted).
16
There is no question that the Association unfurled its flag.92 These ramps are
paved and obvious features. Since at least the late 1960’s or early 1970’s, the
Association and its precursor developers maintained chains and locks limiting access
to the ramps.93 Recently, they announced to residents rules and restrictions for use
of the ramps.94 Residents of the neighborhood understood that the ramps were
maintained by the Association. In fact, the Duffys believed that the boat ramp was
on communal property until 2019 or 2020.95 Similarly, Dipollito did not believe the
boat ramps were his property until he attempted to purchase insurance.96
2. Hostile and Adverse Use
“A hostile claim goes against the claim of ownership of all others, including
the record owner.”97 This element simply requires the adverse possessor to use the
92
See Marvel v. Barley Mill Rd. Homes, 104 A.2d 908, 911 (Del. Ch. 1954).
93
Trial. Tr. 96:9–22.
94
See JTX-34–35.
95
Trial Tr. 192:21–193:6, 214:15–215:9, 229:15–18.
96
Id. 233:10–12. “I didn’t know who it belonged to. I didn’t believe it was mine, though. I didn’t
believe it was on my property, I should say.” Id. 241:8–10. Insomuch as the Respondents rely on
a “neighborly accommodation” defense to adverse possession, this evidence is largely fatal to such
a defense. To the extent this jurisdiction respects the doctrine of neighborly accommodation, the
doctrine simply means that a failure to object to the use of one’s property is, under the
circumstances, explicable as an accommodation rather than an acknowledgment of superior right;
it is better stated as a kind of permissive use or license demonstrated by circumstances. The record
does not support the theory that the Respondents (none of whom testified that they were aware of
any claim of record title in themselves) extended a license to Swann Keys homeowners to use their
property.
97
Tumulty, 132 A.3d at 27 (quoting Ayers v. Pave It, LLC, 2006 WL 2052377, at *2 (Del. Ch. July
11, 2006)) (internal quotations omitted).
17
property “as if it were his own, to the exclusion of all others.”98 Again, the
Association and its predecessors attempted to exclude those other than its members
from use of the ramps, through the use of stickers, locks, and chains. The
Association also told residents not to share passcodes and mailed letters to local
contractors who launch and retrieve boats, instructing them to only use the boat
ramps for boats owned by Swann Keys residents. The Respondents point out that
these efforts were not entirely successful; true, but as described below, not fatal to
hostile and adverse use. The use was certainly hostile to any use (other than as
homeowners launching boats) by the Respondents; the first assertion of right by the
Respondents of this property led promptly to this litigation.
3. Exclusivity
The “exclusivity” element of adverse possession requires that the adverse
possessor show “exclusive dominion over the land and an appropriation of it to his
or her benefit.”99 That is, that the possessor acted as an owner. This, however, does
not require “absolute exclusivity.”100 The fact that trespassers sometimes use the
property does not necessarily void the exclusivity element.
98
Id.99
Id. at 26.
100
Id.
18
Respondents cite Edwards v. Estate of Muller to the contrary.101 In Edwards,
the Court found that the claimants had failed to show exclusivity.102 There, multiple
adverse parties laid claim to a piece of marshland.103 However, none exercised
exclusive possession, because of the use of the other plaintiffs and because non-
parties used the land similarly or lived there.104 That is not the case here. Here, the
adverse possessor is an association of individuals rather than individuals in their own
right. Each permitted user believed they had use of the land by virtue of their
membership in, or by permission of, the Association. As laid out above, the
Association and its members attempted to exclude the non-resident public.
The Respondents point to evidence of record that “drip trails” leading out of
the park indicate that non-homeowners were likely using the ramp.105 True, but
unavailing. The fact that outsiders managed to trespass over the property does not
defeat the claim. “An ordinary landowner may experience trespasses on her land;
promptly excluding such individuals upon discovery reinforces a claim of exclusive
ownership.”106 Here, the evidence was that individuals on behalf of the Association
101
1993 WL 489381 (Del. Ch. Oct. 18, 1993).
102
Id. at *14–15.
103
Id. at *13.
104
Id. at *14–15.
105
Trial Tr. 223:3–223:17.
106
Tumulty, 132 A.3d at 26.
19
took actions to avoid or limit trespass,107 and that those actions—such as chains and
locks—were obvious to the community, the public, and the Respondents.
4. Actual Possession
“The requirement of actual possession overlaps to a large extent with open and
notorious possession.”108
As a general rule it will be sufficient if the land is so used by the adverse
claimant as to apprise the community in its locality that it is in his
exclusive use and enjoyment, and to put the owner on the inquiry as to
the nature and extent of the invasion of his rights and this is especially
true where the property is so situated as not to admit of permanent
improvement. In such cases, if the possession comports with the usual
management of similar lands by their owners, it will be sufficient.109
Here, the use and maintenance of the boat ramps by the Association and its members
amply satisfies possession for the prescriptive period.
5. Continuity of Possession
Association members testified to use of the ramps as far back as 1969.110
Absent tacking, looking only to the use of the ramps after the Association’s
107
Trial Tr. 164:19–165:4.
108
Tumulty, 132 A.3d at 30.
109
Marvel, 104 A.2d at 912 (emphasis added).
110
Trial Tr. 91:13–92:15; Treherne v. Forsight, LLC, 2022 WL 2057563, at *7 (Del. Ch. June 6,
2022), report and recommendation adopted, (Del. Ch. 2022) (citation and internal quotation
omitted) (“The doctrine of tacking may be invoked where the predecessor in title was under the
impression that she was conveying to the plaintiffs the property in dispute, and the plaintiffs were
under the impression that by reason of the deed they were obtaining title to that property even if
the instrument does not convey legal title to the property.”).
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formation in 1985, the Association and its members used the ramps for roughly 35
years before this action was filed. The use required is that consonant with the
property as developed; here as a seasonal boat ramp used each year for well more
than twenty years.
Having found by a preponderance of the evidence that the Petitioner has
satisfied each element of adverse possession, I turn to the Respondents’
counterclaims.
C. Trespass and Nuisance Counterclaims
The Respondents brought three counterclaims; Count I: Quiet Title, Count II:
Permanent Injunction to Enjoin Trespass, and Count III: Permanent Injunction to
Enjoin Nuisance.111 The adverse possession analysis above fully disposes of Count
I and its requested relief.112
Count II seeks a permanent injunction, to enjoin the “Association and its
members from entering upon [Respondents’] real property.”113 To the extent this
claim involves the land to which I have quieted title in the Petitioner, it is moot. To
the extent that the claim seeks injunctive relief to prevent trespass on the
111
Resp’ts’ Omnibus Answer to Pet’r’s Verified Pet. Quiet Title & Other Relief and Defs.’
Countercl. Injunctive Relief, 19–21.
112
See id. 19.
113
Id. 20.
21
Respondents’ own lots, adjacent to the boat ramps, there is certainly evidence that
individuals using the ramps have in the past trespassed on the Respondents’
property. Trespass to real property is a tort and can be a criminal offense as well.
The sole counterclaim defendant is the Association, however, and there is no
evidence that that entity has trespassed, or encouraged trespass. Moreover, equity
does not generally assume future torts, and there is no ongoing trespass here, just a
suspicion that trespasses will happen in the future.114 If they do, the Respondents
have failed to demonstrate why legal remedies are not sufficient; they have thus
failed to show the sine qua non of injunctive relief.115 Accordingly, and for all the
reasons above, the request for a permanent injunction enjoining trespass is denied.
Count III requests permanent injunctive relief to enjoin “the Association and
its members from continuing the nuisance, including but not limited to, enjoining
the Association from providing the members with false information that they have a
right to trespass onto [Respondents’] real property.”116 I confess that I am not
entirely sure what the Counterclaim Plaintiffs seek here. They ask me to forbid
dissemination of “false information that [Community residents] have a right to
trespass.” Aside from the general equitable prohibition on enjoining future
114
See Int’l Bus. Machines Corp. v. Comdisco, Inc., 602 A.2d 74, 79–82 (Del. Ch. 1991); See also
Preston Hollow Capital LLC v. Nuveen LLC, 216 A.3d 1, 10–11 (Del. Ch. 2019).
115
In re COVID-Related Restrictions on Religious Servs., 2022 WL 17101449, at *23 (Del. Ch.
Nov. 21, 2022).
116
Resp’ts’ Omnibus Answer to Pet’r’s Verified Pet. Quiet Title & Other Relief and Defs.’
Countercl. Injunctive Relief, 20.
22
speech,117 this claim seems to be mooted by my decision to quiet title to the ramps
in the Association. Use of the ramps, in other words, does not work a trespass.
There was evidence of noxious behavior by some boaters at the ramps,
however, and I examine that evidence, under the assumption that Counterclaim-
Plaintiffs are seeking to enjoin maintenance by the Association of a private nuisance
at the ramps. Any relief must rest upon a demonstration of the existence of a private
nuisance, and I begin there. Delaware recognizes two types of private nuisance, but
only nuisance in fact is applicable here.118 A “claim of nuisance will lie where a
defendant, although acting lawfully on his own property, permits acts or conditions
‘which become nuisances due to the circumstances or location or manner of
operation or performance.’”119 The plaintiff must show by a preponderance of the
evidence that a defendant neighbor’s use of its property “constitutes an unreasonable
invasion of the plaintiff’s property rights.”120 “This analysis—whether the
conditions permitted to emanate from one property upon another are so unreasonable
117
See, e.g., Preston Hollow, 216 A.3d.
118
See Beam v. Cloverland Farms Dairy, Inc., 2006 WL 2588991, at *2 (Del. Ch. Sept. 6, 2006)
(“A nuisance per se involves an interference with the property rights of another that is intentional;
or such an interference resulting from abnormally hazardous activity on the defendant’s property;
or such an interference in violation of a statute intended to protect public safety.”).
119
Id. (quoting Artesian Water Co. v. Government of New Castle Cnty., 1983 WL 17986, at *15
(Del. Ch. Aug. 4, 1983)).
120
Id.23
as to constitute nuisance-in-fact—involves a weighing of the facts and of the
conflicting interests of the parties involved.”121
I will not recite again here the litany of antisocial behavior demonstrated in
the record, caused by users of the ramps. For the present, I find sufficient to say that
the Respondents have endured unpleasantness from individual users of the adjacent
boat ramps. The question is whether under these facts, the unpleasantries are an
unreasonable impairment of the Respondents’ property rights,122 and whether a
balancing of the parties’ interests favors application of an equitable remedy: here,
presumably, permanently prohibiting use of the ramps. Although Delaware does not
recognize “coming to the nuisance” as a defense,123 I may take into such balance the
fact that Respondents purchased homes next to a boat ramp in a marina community.
Proximity to the boat ramps likely featured into the Respondents’ calculus of
whether to purchase their homes, as well as the price they paid.
The incidents about which the Respondents complain are of recent vintage
and episodic. There is nothing inherent in the use of the ramps that constitutes an
unreasonable invasion of the Respondents’ rights of quiet enjoyment. The
availability of the ramps as a community amenity is, and has been from the inception
of Swann Keys, a valuable benefit available to homeowners, including the
121
Id.122
Id. at *3.
123
Cain v. Roggero, 38 A.2d 735, 737 (Del. Ch. 1944).
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Respondents. The incidents reported by the Respondents are unsettling but are not
necessary to the use of the ramps. The record does not demonstrate that efforts by
the Respondents, including reporting trespassers to the police and obnoxious
behavior to the Association, will not provide relief to the Respondents.124 The
equitable relief sought125 as I understand it—enjoining the use of the ramps—is
unsupportable in equity on this record.
Nonetheless, the mal-behavior of some boaters, both in trespassing and in
noisy and antisocial behavior disturbing to some neighbors, was demonstrated at
trial. It is incumbent upon the Association126 to act to reasonably ensure that the
common areas—now including the boat ramps—serve as Community amenities.
This includes expending efforts sufficient to maintenance of the quiet enjoyment of
the neighboring properties. I need not decide here whether the behavior
demonstrated, given its nature and duration, amounts to a nuisance. This is because
the parties are in a superior position than am I to determine what rules for and
limitations on use of the ramps will ameliorate the Respondents’ legitimate concerns.
I assume that, with the possible exception of duck hunters, little use will be made of
124
Presumably, those engaging in anti-social behavior are readily identified by auto and trailer
license plates.
125
The Respondents have not sought injunctive relief of a more limited nature, such as restrictions
on the time or manner of use of the ramp, beyond asking that I enjoin “false information” by the
Association; as I stated above, that claim for relief is moot.
126
I note that, in the one instance Respondents informed the Association of an issue, the
Association resolved the matter. Trial Tr. 36:22–39:20, 150:5–24, 157:14–158:4, 175:20–176:5,
243:12–17.
25
the ramps for the next few months. The parties have time, in light of my decision
concerning ownership here, to confer and reconcile their differences. Accordingly,
I reserve on whether the Respondents have established that the current use of the
ramps constitutes a nuisance, and, if so, what equitable relief such a finding invokes.
I direct the parties to submit a joint letter, no later than March 1, 2023, informing me
that the matter has been resolved and whether an order implementing the resolution
is required, or submitting the remaining questions addressed above for decision. In
the latter case, I will decide the remaining matters without further evidence or
argument.
III. CONCLUSION
For the reasons above, title to the land under the boat ramps is quieted in the
Association. The counterclaims are DENIED, with the exception that I reserve on
the claim of nuisance, as described above. The Association shall at its own expense,
but with review by the Respondents, prepare documents of title consistent with this
Opinion. The Association shall also pay to Respondents the reasonable fees and cost
in connection with its Motion to Amend and the briefing thereon. The parties should
submit a form of order consistent with this Memorandum Opinion.
26