Over the centuries, the Great Dune has offered commanding views, a wealth of natural resources, and no small amount of controversy
From the June 2019 issue
Cape Henlopen State Park’s Great Dune, once called the Great Sand Hill, for years has been the spot where Sussex residents went to get a good view of the coast. “From the top of the Sand Hill is a broad view all around the compass,” wrote the authors of “Delaware: A Guide to the First State,” published in 1938 by the Federal Writers’ Project, part of the New Deal’s Works Progress Administration.
Among the highlights of the view were the “spires of Lewes,” the guidebook said; the “great marshy flats” of Gordons Pond; the “long line of dunes down the coast to Rehoboth”; and the Atlantic Ocean “with the waves breaking over the Hen-and-Chickens Shoals in the foreground, and the Overfalls Lightship riding at anchor 4 miles offshore, steadfastly guarding the shoals.”
Also visible: Cape May, N.J., 13 miles away, which sometimes in hot weather “appears suspended upside down in the air — a startling mirage”; the Harbor of Refuge Breakwater and the “great sweep of the Delaware Bay” beyond it; and the mile-long Delaware Breakwater with its distinctive red Breakwater Light.
But the Great Dune wasn’t just a place from which to admire such scenic views. For centuries, according to the guidebook, it was also the perfect spot for Lewes-area residents who wanted to observe the goings-on in Delaware Bay and the Atlantic Ocean:
“The Great Sand Hill, always a vantage-point, has often been a grandstand. During the 60 years of piracy that plagued this coast after 1685, many Lewestowners would come here to watch craft that flew the French and Spanish Flags, as well as the Jolly Roger, as they … fought each other.”
That habit continued during the American Revolution, when residents watched the interaction between a tender of the HMS Roebuck, a British brig (or two-masted sailing ship), and a schooner owned by Capt. Nehemiah Fields of Lewes. The tender had gone aground on the shoals and the brig, because of the low tide, couldn’t get close enough to defend it; Fields, as a result, “had great sport for two hours as he sailed back and forth and raked the helpless enemy.” The rising tide eventually allowed the Roebuck to free the tender and sail away.
During the War of 1812, the dune “was a good place to watch the bombardment of Lewes” by the British. Fortunately, no cannonballs flew that way.
And in the 1930s, the dune “was a perch from which to watch the boats trying to find the sunken DeBraak and its treasure.” (The DeBraak, a Dutch ship seized by the British in 1795, sank off the coast of Lewes three years later. These days, more than 80 years after curiosity-seekers sat atop the Great Dune to watch recovery efforts, many of the ship’s artifacts, finally recovered in 1986, can be viewed at the Zwaanendael Museum in Lewes.)
Today, the Great Dune is still a place from which people in Sussex can get a good view of their county. Really a connected series of dunes covering more than 1,900 acres, its highest peak is 64 feet above sea level (according to the Delaware Geological Survey). That’s the highest spot on the Sussex coast and the second highest natural point in all the county. (The top spot, at 74 feet, is in the south central part of the county, north of Line Road and west of Whitesville.)
On a clear day, visitors to Cape Henlopen State Park can still observe all of what the writers of the 1938 state guide saw — except for the Lightship Overfalls, a later iteration of which has been retired and moored along the Lewes-and-Rehoboth Canal.
But this could very well not have been the case. The dune has faced its challenges through the centuries, and the fact that it is still part of the Cape Henlopen landscape is due to a 330-year-old land grant as well as to a 1982 court decision that settled once and for all that the terms of the land grant still applied.
Grants and disputes
In 1682, the Colonial court in Lewes granted to area resident Edmund Warner “the land of the cape commonly called ‘Cape Inlopen.’” Warner was allowed, the grant said, to build a rabbit warren on the land, as well as a house for himself.
Otherwise, “the timber and feed of said land, and marshes thereunto, belonging be and forever hereafter lye in common for the use of the inhabitants of the town of Lewes and the county of Sussex,” the grant continued. While they couldn’t hunt there, those inhabitants were given “free liberty … to fish, get and take of their oyster and cockle shells and gather plums, cranberries and huckleberries on the said land, as they shall think fit always.”
That grant was the origin for what, by the late 20th century, was a “long-accepted legislative and judicial conclusion that the lands contained within the Warner Grant … were public lands,” according to a 1982 Chancery Court ruling.
In 1781, a century after Edmund Warner got his land, “the state gave the city of Lewes authority to administer the grant as it saw fit,” according to a June 15, 1979, story about the area in the Evening Journal, a Wilmington daily newspaper. In 1857, an act of the General Assembly made the city of Lewes a trustee of the grant lands. The city “shall … have the general supervision and trustship of the public land on the northeast side of Lewes Creek, called ‘The Cape,’ with power to lease the same of any part thereof … and to sell the timber and wood thereon.”
A 1969 law passed by the General Assembly reaffirmed that point. Specifically, it gave the city the right to sell grass and hay harvested from the marshes, sand and gravel taken from the beaches and dunes, and wood taken from the forests.
By that time, the mining of sand from the Great Dune had been underway for decades. In 1912, Lewes commissioners had passed an ordinance making it illegal for any person to “convey away or remove any sand, gravel or earth” from any public lands in the town without permission of the commissioners. That same year, the town was successful in getting the Chancery Court to file an injunction against the PB&W Railroad Co., which had been taking sand “by the carload lots” without having permission to do so.
Of course, permission of that sort came with a fee. The 1938 election of a mayor divided Lewes, with some residents wanting to continue charging the Lewes Sand Co. and the Cape Henlopen Sand Co. 2 cents a ton for sand that they mined, and the other half wanting to raise the rate to 5 cents a ton.
According to a Sept. 25, 1937, article in the Journal-Every Evening newspaper, Mayor David Burbage was in favor of the hike, arguing that the purpose of the 17th century Warner Grant was to enable the town to “receive whatever revenue might be had through leases or other sources.” Opponents argued that the town had already agreed to the 2-cent-per-ton rate and was bound to it under the terms of the leases.
Burbage, who was reluctant to run for re-election but agreed to do so at the last minute, was later forced to withdraw from the race when the board of election ruled that by the time he turned in necessary paperwork, the filing deadline had passed. That left the field wide open for his opponent, William E. Walsh, whom Burbage had defeated in 1936.
In March, Walsh and the town commissioners approved another sand mining lease, this one with builder and contractor William Tappan. Under that 15-year lease, Tappan was to pay 5 cents for each ton of sand that he took from the dune. The other two sand companies, however, kept their 2-cent-per-ton rate. Those two companies “are the largest users from whom the town receives considerable revenue,” according to a March 17, 1938, article in the Wilmington Morning News.
Two months later, in May 1938, Burbage died. What the paper called his “stubborn fight” for the 5-cent rate had harmed his health, it reported. “He was in the midst of the battle against the election of town commissioners [who disagreed with him], in spite of physicians’ orders to remain in bed.”
In April 1938, a month before Burbage died, a new player came to town. With war in Europe increasingly likely, the U.S. Army announced its intention to place a training camp at Cape Henlopen for men from the 52nd Coast Artillery, which was based at Fort Hancock, N.J. The Wilmington Morning News reported that “the experimental test firing in defense of Delaware Bay” would use “12-inch mortars and 8-inch rifles,” set up about 2,000 yards from the water’s edge and behind the Great Dune. The dune, the paper said, would serve as a screen over which the practicing artillerymen would have to fire. Targets were 900 to 1,200 yards offshore, and would be towed behind a “mine-planter” that would move at 8 knots, the paper reported.
Funding for Fort Miles, the planned Army installation on the cape, had already been approved in 1934. (The fort is named for Gen. Nelson Appleton Miles, 1839-1925, a Massachusetts native who fought in the Civil War, battled Native Americans in the West and served in the Spanish-American War.) Construction of the facility was completed Dec. 4, 1941, just three days before the Japanese attacked Pearl Harbor. At its peak, Fort Miles was home to 2,200 soldiers.
At the end of the war, most of the fort’s property was declared surplus by the Army and, in 1964, 543 acres were given to the state of Delaware for the foundation of Cape Henlopen State Park. A photo taken in 1967 from the parking lot of the brand-new park shows the Great Dune, treeless and supporting large metal towers topped with satellite dishes.
The battle to preserve the historic Warner Grant and the Great Dune wasn’t over, though. Mining of sand from the dune, with permission of the city of Lewes, continued. And in 1970, the Army, which still had a “morale, welfare and recreation” area at Fort Miles, decided to flatten the dune and put in housing for vacationing Army personnel. Teacher John Stenger and a group of students from his science class at Cape Henlopen High School staged a protest at the site, and Sen. Caleb Boggs took the fight to protect the land to Washington. According to a 2010 News Journal story about Stenger, Boggs “used the issue to make inroads in Delaware’s fight to recover more land at Cape Henlopen.”
Meanwhile, as a result of the Army’s actions, citizens filed two lawsuits in the Court of Chancery. To resolve the suits, Delaware Attorney General W. Laird Stabler Jr. asked the General Assembly to establish once and for all what the boundaries of the Warner Grant were, and how the land could be used. In 1979, legislators passed, and then-Gov. Pete du Pont signed, a law decreeing that from then on, the Warner Grant Trust Lands would consist of 3,390 protected acres to be administered by the state’s Department of Natural Resources and Environmental Control “for the benefit of the people of Lewes, Sussex County and [the] State of Delaware.”
The property “must be administered for the public benefit as areas of public recreation, conservation and/or nature education and may not be used for private benefit to the detriment of such public benefit.” The law also says that anyone who wants to change the terms of the Warner Grant needs action by the General Assembly as well as approval from the Court of Chancery.
That legislation was made final by a Sept. 9, 1982, ruling by the Court of Chancery of Delaware, Sussex County, dismissing the two lawsuits that had been filed in 1972 and in 1974.
The Great Dune, after so many years of turmoil, must have breathed a big sigh of relief.
Today, it is a healthy ecosystem, says Cape Henlopen State Park Superintendent Grant Melville. Native plants, including prickly pear cacti, persimmon trees, beach heather, cedar trees and bayberry, grow there. With all those plants, and their roots burrowing deep into the sand, the dune is stable, he says.
For years, Melville notes, the dune was considered a commodity — something of value because of how it could be used rather than because of the part it plays in the coastal environment. “Now, it’s hard to even imagine that not too long ago, people thought of it like that.”