The Archivist of Maryland is also the Commissioner of Land Patents.  In his capacity as Commissioner of Land Patents, it is his responsibility to determine if, on application, a private party or agent of the State has discovered land in Maryland that has never been legally granted to anyone.  All titles to land in Maryland must be traceable to an original land grant (called a Patent).  For a discussion of what constitutes a patent and the historical context for granting of land see John Kilty, Land Holder's Assistant and Land Office Guide (Baltimore: G. Dobbin & Murphy, 1808), available at http://www.aomol.net.  If vacant land is discovered by a private party, it may then either be purchased from the State by the discoverer at the current fair market value of the land minus certain expenses permitted by law, or it may, under certain circumstances, be reserved by the State for public purposes.   It is the intent of the laws of Maryland relating to discovery of vacant land to insure that either such land be added to the tax rolls expeditiously, or that it be designated among the land records as reserved for public purposes, with the State reimbursing any private discoverer for any reasonable costs incurred in identifying the land as vacant.  Only in certain clearly defined situations may the State intervene to reserve the land for public purposes, with the burden of providing the rationale for such intervention falling primarily upon the State Department of Natural Resources.

The land patent process is governed by Real Property Article, Title 13, Annotated Code of Maryland (1996 Repl. Vol. and 2001 Supp.).  On the ninth day of March, 2001, the Commissioner of Land Patents received an application for a warrant to survey allegedly vacant land in the 9th and 14th Election Districts, Carroll County, from Patricia M. Geyer and Richard E. Geyer.  A warrant to survey vacant land (Warrant 96) was issued to Van Mar Associates, professional land surveyors, and notice to all adjoining property owners and others entitled to notice was given, and all necessary publications of notice were made.  On October 25, 2001, Van Mar Associates filed a certificate of survey, plat, and metes and bounds description for Warrant No. 96 with the Commissioner.  The allegedly vacant land consists of two parcels, the North Parcel encompassing approximately 0.8397 acres, more or less and the South Parcel encompassing approximately 3.4776 acres, more or less.  A written objection to the issuance of a land patent was filed by Aubrey Carlyle, Doyet W. Carlyle, and Lucy A. Carlyle.  The actual fair market value of the land encompassed by the survey was determined by the Carroll County Supervisor of Assessments with an opportunity granted to the applicants to offer any evidence they might have relating to their understanding of the fair market value of the land.

As required by law and after proper notice, a public hearing was held on April 25, 2002 at 1:00 p.m. at the Hall of Records Building, 350 Rowe Boulevard, Annapolis, Maryland.  Present at the hearing were Dr. Edward C. Papenfuse, Commissioner of Land Patents; Richard H. Richardson, Deputy Commissioner; Richard E. Israel, Assistant Attorney General; Chris Hofer, Court Reporter; the applicants: Richard E. Geyer and Patricia M. Geyer; witnesses for the applicants:  Michael Van Sant, Sourabh Munshi, and Donald Allen, surveyors; and the objectors:  Aubrey Carlyle, Doyet W. Carlyle, and Lucy A. Carlyle; attorney for the objectors:  Lee Klavans, Esq. and his colleague, Philip J. Shafer; and witnesses for the objectors:  Bruce Fusselbaugh and David Linton.  The Commissioner explained the purpose and procedure of the hearing and persons who proposed to testify were duly sworn.

The basic issues to be decided in the matter of Warrant No. 96 are:  does vacant land (vacancy or vacancies) as defined in Real Property Article, Title 13, Annotated Code of Maryland (1996 Repl. Vol and 2001 Supp.) §13-101(m) exist; if it exists, where does it lie and what are its boundary lines (metes and bounds); if it exists, does the objectors' claim of possession take precedence over the applicants' claim; and finally, what is its fair market value as determined by Real Property Article, §13-313?

The documentary evidence on the record, the applicants' testimony, and the testimony of the applicants' surveyor established to the satisfaction of the Commissioner that vacancies exist as shown on the survey plat and as described in the boundaries description.  The preponderance of the evidence submitted by the applicants and the testimony of the applicants' surveyor leave no doubt that the vacancies exist.  The history of the early patenting process as described in considerable detail by John Kilty, Land Holder's Assistant and Land Office Guide (Baltimore: G. Dobbin & Murphy, 1808), available at http://www.aomol.net, is in part, one of reworking and refining existing patents to eliminate vacancies that occurred between and within patents because of inadequate surveying.  The original surveys surrounding the vacancies: Batchelor's Refuge, surveyed 1761; Eppington Forest, surveyed 1764; North West Point of Batchelor's Refuge, surveyed 1771; Mansell's Purchase, surveyed 1771; and Red Oak Ridge, surveyed 1795 were progressively intended to eliminate all vacancies between them, but in fact did not.  However, the adequacy or inadequacy of the survey or surveyor is not the issue.  What is important is the configuration of the patented property and subsequent subdivision as it exists on the ground and is historically delineated.  In his testimony, the applicants' surveyor successfully placed the vacancies on the ground and on the survey plat in relation to the lines and angles as defined by patented tracts and as documented by evidence found in the field for subsequent surveys.

The key elements in establishing the location and metes and bounds of the vacancies are, for the North Parcel, the following patent lines:  line 89 of Eppington Forest, surveyed 1764;  line 2 of North West Point of Batchelor's Refuge, surveyed 1771; and line 4 of Red Oak Ridge, surveyed 1795.  For the South Parcel, the following patent lines:  line 3 of North West Point of Batchelor's Refuge; surveyed 1771; line 4 of Red Oak Ridge, surveyed 1795; line 13 of Batchelor's Refuge, surveyed 1761.   In addition, subsequent deed and plat descriptions throughout the nineteenth century and into the twentieth support the location and metes and bounds of the vacancies as shown by the applicants' surveyor.

The applicants' claim and the surveyors' placement of the vacancies on the ground and on the survey plat do not take any land from the objectors' property or from any other adjoining property.  The objectors' land is more or less a triangular shaped tract, an original patent called North West Point of Batchelor's Refuge, which was patented in 1771 for 14 acres.  In order to place the North West Point of Batchelor's Refuge on the ground, the applicants' surveyor determined the location of all the relevant tracts based on the original patents, nineteenth century stone monuments found in the field, and subsequent evolution of property lines as defined by deeds.  The North West Point of Batchelor's Refuge lost a small portion of its land area, the northern point, because the original survey ran lines into an elder survey called Eppington Forest surveyed in 1764.  In such cases, the survey lines of the elder survey prevail.  This was confirmed in a 1820 Baltimore County Court Land Commission.  A Land Commission is an equity proceeding to determine the metes and bounds of a given tract.  The Commission found that the North West Point of Batchelor's Refuge, "...clear of elder surveys, contained 12.2 acres..."   Although subsequent deed transfers of the objectors' property through time repeated the 14 acre claim, this was an error.   These subsequent deeds could not transfer that portion of the original survey that was lost to an elder survey.

The applicants submitted an exhaustive title search and followed the evolution of each relevant property line from the original patents through subsequent deeds, surveys, and equity court cases to the present.  The Commissioner's independent title search confirmed all of the applicants' assertions related to their title search and the relevant property lines through time.  The objectors presented no documentation or testimony to refute the applicants' assertions.  Therefore, based upon the documentary evidence submitted by the applicants and the testimony by the applicants' surveyor at the public hearing, the Commissioner finds that vacancies exist in the location and by the boundary descriptions (metes and bounds) given in the survey plat in this proceeding.

Although the Department of Natural Resources was given ample opportunity to determine whether the vacant land in question was needed for public purposes, the Department concluded that it was not, in a letter addressed to the Commissioner dated February 25, 2002.  The Commissioner notes that the land does lie in the Patapsco watershed and is not far distant from a proposed Gillis Falls Reservoir, but he is constrained by existing law to heeding the advice of the Department of Natural Resources with regard to any public need for the land, and, in this case, must therefore proceed with the granting of the land to the applicant, barring any valid claims of adverse possession that may take precedence.

The objectors' memorandum of law concludes that the objectors have proven priority possessive use and if a patent is to be issued, it should be to them. The objectors assert that they were in possession of the land-in-question and that their use of the land-in-question was actual, open, hostile, notorious, exclusive, and under color of title.  The objectors are not claiming adverse possession against the State, and could not because adverse possession does not run against the State.  Adverse possession is not a basis for asserting ownership of land which has never been patented (see Real Property Article §13-503(b)).  In accordance with Real Property Article, §13-401(2), an objection based on adverse possession is actually a claim of possession that either directly or by tacking, is actual, open, notorious, exclusive, and continuous, and uninterrupted for the 20 years immediately preceding the date of filing the application (see also §13-408(a)(2) and §13-412(a)).

The objectors do assert that they should be given priority possessive use of the land-in-question over the applicants, and if vacancies exist, the patent should issue to them.  The objectors based this assertion on the testimony they and their witnesses gave at the public hearing.  In order to prove possession, the objectors must show continuous and uninterrupted possession for a period of 20 years before the application for a patent or from March 1981 through March 2001.  The testimony of the objectors and their witnesses does not support their assertion that their use was actual, open, hostile, notorious, exclusive, and under color of title for the required 20 year period.  The testimony showed only that the objectors and one witness occasionally hunted on the land-in-question, that a make-shift shack of discarded doors was built and left to ruin, and that one of the objectors may have walked some unknown portion of the land-in-question one day a year from 1979 through 1999.  The objectors were also required to submit documentary evidence in support of their claim of possession in their written objection, but they failed to do so.  To establish adverse possession, possession must be actual and consistent with ownership and the nature of the property.  At best, the objectors use of the land has been occasional and falls short of the statutory requirement that the possession be actual, continuous, and uninterrupted for 20 years prior to the application.  Therefore, the Commissioner finds that objectors have not possessed the land-in-question in accordance with Real Property Article, §13-401(2).

With respect to the valuation of the vacancies, the applicants filed a statement in response to the Carroll County Supervisor of Assessments assessors' joint determination of the fair market value of the land-in-question.  The assessors provided an explanation for their determination:  that the assessment office values real property without incumbencies, i.e. flood plain, buildable lot; that the land was valued as bulk land or excess land; that the parcels are wooded and the area zoned "conservation," which requires minimum lot size; their only value would be as additions to surrounding parcels; and that recent sales of similarly zoned land in the area ranged from $4,700.00 to $6,600.00 per acre.  In a follow-up request by the Commissioner, the assessors provided examples of individual sales of bulk or similar land in the area in support of their earlier explanation.  The assessors' joint determination of the fair market value of the land-in-question was $5,800.00 per acre.  The assessors indicated that the fair market value of the subject parcels is $25,000.00.

In their response, the applicants claim that the land-in-question is worth considerably less.  They assert that the assessors did not inspect the land, as required by Real Property Article, §13-313(b)(1); that they did not consult topographical or flood plain maps; that they did not identify the sales of agricultural land on which they relied; that they ignored a principal of appraising agricultural land when they appraised across-the-board per acre, rather than appraising different parts of the land separately based on access, utility, etc.; and that one of the adjoining properties was assessed at only $1,000.00 per acre.  In support of their claim, the applicants hired a professional real estate appraiser to determine the fair market value of the land-in-question.  The appraiser's report has been made part of the record in this proceeding. The appraiser's determination of the fair market value of the land-in-question is $3,500.00 per acre.  The applicant's appraiser indicated that the fair market value of the subject parcels is $15,000.00.

Because the question of determining the fair market value of the subject land lies outside the expertise of the Commissioner, he must, under Real Property Article, §13-313(b) rely on the expertise of two assessors of the Carroll County Supervisor of Assessments to determine the fair market value of the subject land and under Real Property Article, §13-313(c)(2) allow the applicants to present evidence that the fair market value of the land is less than established under Real Property Article, §13-313(b).  The Commissioner has some discretion in determining the proper fair market value of the land.  Real Property Article, §13-313(c)(2) states, in part, that the Commissioner shall set the purchase price for the vacant land at any amount, not exceeding that established under Real Property Article, §13-313(b), which the Commissioner, based on the endorsed duplicate certificate and statements of the assessors and any other satisfactory evidence presented in the matter, determines to be the proper fair market value of the land.

With respect to the valuation of the subject land, the Commissioner, after careful review of all the evidence including on line assessment records of neighboring and near-neighbor properties, accepts the Carroll County Supervisor of Assessments assessors' joint determination of the fair market value of $25,000.00.

With respect to the applicants' request that the Commissioner assess any costs of the hearing to the objectors, the Commissioner, notwithstanding the points raised by the applicants in their request, determines that the costs of the hearing should be assessed to the applicants.  The objectors acted in good faith and raised questions that the Commissioner would have raised if there had been no objectors and had held a hearing on the evidence alone, without objectors.  The cost of the hearing can be deducted from the purchase price in accordance with Real Property Article, §13-313(c).

With respect to the applicants' account of expenses claiming reasonable attorney's fees, on advice of counsel, the Commssioner determines that the applicants cannot deduct reasonable attorney's fees for representing themselves.  Business Occupations and Professional Article, Title 10, Annotated Code of Maryland (2000 Repl. Vol. and 2001 Supp.) governing the practice of law provides that this statute does not apply to an individual engaged in self-representation.  The applicants may lawfully engage in self-representation, but would not be engaged in the practice of law in Maryland.  The statute governing the practice of law defines "attorney at law" and "practice law" in terms of representation of another person.  Accordingly, even a Maryland attorney engaged in self-representation is not acting as an attorney or engaged in the practice of law.  Although one of the applicants is an out-of-state attorney who could lawfully represent himself in a land patent proceeding, he cannot claim a deduction for reasonable attorneys' fees from the fair market value of the subject land as he was not lawfully representing another person.  This conclusion is also consistent with the Supreme Court's interpretation of the Civil Rights Attorney's Fees Award Act, 42 U.S.C. §1988.  In Kay v. Ehrler, 499 U.S. 432, 434, and 438 (1991), the Supreme Court held that an attorney who successfully represented himself in a civil rights case was not entitled to an award of attorney's fees.  For a person to be an attorney, it was understood that there had to be an agency relation in which an attorney represents another person.  On this point and in support of the Commissioner's finding, see letter of Advice from Assistant Attorney General to the Commissioner dated July 12, 2002.

All documentation, including the specific references cited herein, related to the Commissioner's decision is available for review from the Maryland State Archives web site: http://www.ecpclio.net, user name: warrant, password: 96.
 
 

Based upon the record and the testimony presented, the Commissioner concludes that the land embraced by the application is vacant land within the meaning of the statute and that a patent may properly issue.  The purchase price of the subject land is $8,393.00 being the fair market value of the land of $25,000.00 less statutory adjustments totaling $16,607.00, which includes expenses of the surveyor of $14,714.00, reasonable attorney's fees of $150.00, and costs charged by the Commissioner of $1,743.00 as determined in accordance with Real Property Article, §13-313(c).

Accordingly, the Commissioner, upon payment of the purchase price and all other outstanding costs, if any, shall cause a patent to the subject land to be prepared and shall forward same, together with such portions of the record as he may deem appropriate, to the Board of Public Works for its review.
 

It is, therefore, this 6th day of August, 2002, by the Commissioner of Land Patents, State of Maryland
 

ORDERED, That upon approval of the Board of Public Works, a patent be issued to Patricia M. Geyer and Richard E. Geyer for the land encompassed in Warrant No. 96.