Lisa Bender spent her summers in the 1960s sailing to Dobbins Island in the Magothy River for some summer fun.
"You'd picnic, meet people and swim," the Severna Park woman said of her trips to a beach that she and many others considered to be a public place. In the 1990s, she began taking the next generation of her family there.
Then David and Diana Clickner bought the 7-acre island in 2004, with plans to make it their family home. They have no interest in hosting a summerlong party or in sharing the beach with uninvited strangers who often leave their trash behind. So in 2006, the Clickners erected a fence to mark their private property.
But Bender, the Magothy River Association and others sued to keep the beach public, and won. The fence came down. The Clickners appealed, and the case is scheduled to be heard Thursday in Maryland's highest court. At issue is whether a century of tradition trumps private ownership.
"The judge has made my personal property a public park," David Clickner said in a recent interview.
The Magothy River Association sees it differently.
"Did somebody take something away from him, or is he taking something away from the public?" asks Anne M. Fligsten, a lawyer for the association.
Baltimore Judge George Dobbins bought the island in the mid-1800s as a retreat. The Magothy River Association says that the Dobbins family allowed public use of the beach and subsequent owners kept that tradition. In 1997, a Chesapeake Bay magazine called the island a great stopping-off point for boaters, though it noted that "no trespassing" signs were posted "from time to time."
The island was once home to Native Americans, and area residents say they used to find arrowheads when they explored there as children. Local lore has it that old Dutch coins, possibly from a shipwreck, washed ashore and that a Colonial-era ship's planks were found underwater nearby.
But it is the sandy beach on the island's north side that has been the draw, serving as a destination for boaters.
Paul Spadaro, president of the Magothy River Association, says Dobbins Island plays an important role in the community as the only public beach in the Magothy. He said the Clickners should have known when they bought Dobbins Island from Jim and Edward Wilson for about $825,000 that they purchased what amounted to a park.
In fact, Spadaro wants to see the entire island turned into a public space, but his efforts to find a buyer willing to turn it into a park have been unsuccessful.
Now what's at stake is the 1,200-foot sliver of beach. Under Maryland law, the public has access to any waterfront — the portion of land below mean high tide. Boaters can legally drop anchor along Dobbins' beach or tie up to the posts that remain from the Clickners' fence.
The annual Bumper Bash, a daylong party that has drawn hundreds of boaters in recent years, is an example of a legal use. The gathering of revelers has turned rowdy in the past, and the police presence has been stepped up.
Clickner says he has no problem with the boaters but is not prepared to share the entire beach.
"We can't manage a public park," he said.
He mentions problems with underage drinkers, visitors who damage island foliage and the mess that many partyers leave behind.
"We have picked up everything from beer cans to diapers to a lot of drug paraphernalia," Clickner said. "It's on our property, and if somebody gets stuck by a needle that has some kind of a virus in it, who are they going to sue?"
But if the Maryland Court of Appeals agrees with the lower court that the entire beach must be considered public land, it would set a precedent. The Clickners' attorney, Barbara J. Palmer, says such a ruling could open up other property beyond the waterfront to claims of public access.
Similar efforts have been successful elsewhere. Florida and Oregon are among the states in which judges have ruled that past public use of private beach property created a custom that could continue over property owners' objections, said D. Kent Safriet, a Florida lawyer who has represented homeowners in such cases. The Florida case applied to just one location, but the ruling in Oregon applies to the entire coastline, he said.
Those decisions were based on a different point of law than the Magothy River Association is arguing, but the results were the same. The arguments in the other states have been "used by a court basically to achieve a policy goal of making the beaches public," Safriet said.
The Supreme Court has not settled the issue, which some legal experts say amounts to government granting the public free use of personal property without compensating landowners.
In 2006, Bender made her last trip to the beach that she remembers so fondly. She said she cried after seeing the fence the Clickners had erected and hasn't been back since.
"I would love for generations of kids to have all the experiences I had there as a kid," she said.Copyright © 2014, The Baltimore Sun