Wilson v. Inloes , 11 G. & J. 351 ( 1840 )

Stephen, J.,

delivered the opinion of the court.

This action of ejectment was instituted to recover a parcel of ground situated on Fell’s Point, in the city of Baltimore, containing six acres, the location of which is particularly designated in the plaintiff’s declaration. The defendants in the suit pleaded not guilty, and took defence for a part only of the land claimed by the plaintiff in his declaration; which defence is particularly described and designated upon the plats in the case. The land in controversy was originally covered by water, and has since been re-claimed and improved, under the provisions of several acts of Assembly, and ordinances of the city of Baltimore; and the question which this court now have to decide, is to whom under the facts and circumstances given in evidence, and the operation of the acts of Assembly, and the true construction of the ordinances upon those facts, the property in litigation in this suit belonged at the period of the institution of this action; for to enable the lessors of the plaintiff to sustain their ejectment, and to recover the land in controversy, it was essentia], that they should be clothed with the legal title, and the right of possession at the time the action was instituted. The principle being well settled, that in such suit the plaintiff must recover by the strength of his own title, and not by the weakness of the title of his adversary. It is an admitted fact, that the tract of land called Mountenay's Neck, under which the plaintiffs claim, is older than the land called FelVs Prospect, under which the defendants claim. The patent for the first bearing date in 1737, and the patent for the last in 1761. The dates of these patents are important, because upon the priority of the grant of Mountenay’s Neck, to the grant of FelVs Prospect, the merits of this controversy will in our opinion very materially depend, when we come to consider, the right or privilege given by the act of 1745, ch. 9 sec. 10, to the holders of the lots in the then town, now city of Baltimore, to make improvements in front of their own lots. The language of that act of Assembly is as follows: “that all improvements of what kind soever, either wharves, houses or other buildings, that have, or shall be made out of the water, or where it usually flows, shall as an encouragement to such improvers, be forever deemed the right, title, and inheritance of such improvers, their heirs and assigns forever.” We are not called upon now for the'first time, to give a construction to this provision of the act of 1745, ch. 9, sec. 10. The court have already s.etted that question, and performed that duty. . In 5 Gill & John. 368, where they say, that the improvements authorised by that act, were those made by ..improvers in front of their own lots, not of their neigh’ hours, the Legislature never designed such invasion of the rights of private property, and indeed in that case, the exercise of such a power by the Legislature, is considered to be questionable, and open to serious objections, even if it should be attempted. It is sufficient for us however in this case to say, that we perfectly concur in the opinion then expressed,, that the improvements intended to be authorsed and encouraged by that act, were such as- should be made by improvers in front of their own lots; and we moreover think, that the' right of improvement given by the act of 1745, vested in the patentee of Moimtenafs Neck,, and was not divested or in any manner impaired by the subsequent grant to the patentee of FelPs Prospect. This vested right of improvement is also express ly recognised and confirmed by the act of 1784, ch. 39, sec. 6, which was intended to make such improvements as had' been made a part of Baltimore town, and to clothe them with all privileges and immunities as such; after performing that office, the section uses the following strong and explicit language “saving to all persons whatsoever, their right of property in any of the said grounds so made and extended as aforesaid, and in the lots or land from which such ground may be made and ex-' tended, and the right to make and extend ground as aforesaidj and the right to the water or the land covered by water, wffiich rights are not meant, or intended, in any manner; to be interfered "with, determined on, or affected by this act.” In the case of Bowie vs. Kennedy, 5 Harr. & John. 185, this court established the principle, that the State had the right to grant the soil covered by navigable waters, subject to the public or common right of fishing and navigation, and for the purpose of protecting the public right of navigation from infringement, the Legislature passed the law of 1783, ch. 24, entitled, an act appointing Wardens for the Port of Baltimore town, in Baltimore county. The right to improve given to the owners of lots by the act of 1745, was made subject by that law to the jurisdiction of the Board of Wardens, wffiose permission it was necessary to obtain, before any wffiarf or improvement could be made, into the harbour or basin of said town. It appears from the proof in this case', that application was made to the Board of Wardens in 1786, by those under -whom the plaintiffs claim, to extend their ground into the water, and that permission was obtained to make such extension to a line marked on the plats as the Port Bcltden’s line, along which logs were planted, but by whom the proof did not establish. It was further proved, that the effect of these logs,Together with others placed along the' said Port Warden’s line, was to aid the filling up of that part of the cove, which lies between the Port Warden’s line, and the line of Mountenay’s JVeck, located on the plats; and it was further proved, that Philip Rogers, to whom the plaintiffs had given a bond of conveyance of the said grounds, cut drains from Harford run, by means of which at high water, the washings of that stream were Carried upon the property between Miceanna street, and the water line of the plaintiff’s lot; that the logs continued where" they were planted till 1823, when they were covered by the fillings up by the city; Some further proof was given by the plaintiffs,- and also by the defendants, which it is not deemed necessary to state in detail for the purposes of this opinion, as we think-that the merits of this controversy depend upon other grounds. We do not think, that the ordinance of 1801, limiting the right of improvement to the south side of Jlliceanna street, by the owners of lots on Wilk street, has any material bearing' upon the rights of the parties to this suit; as the corporation by whom the improvement in question was made, had full and complete jurisdiction over the subject of that' ordinance; and in making the improvement in question virtually repealed and annulled, any restriction or limitation, imposed by that ordinance.] The great and leading question in this case is, for whosebenefit was the improvement made by the corporation under the ordinance of 1823, ch. 19? In reference to that question the ordinance speaks a language, which cannot we think be misunderstood. The contract was' to be made by the corporate authorities, with the owners of the lots, for the filling up of their lots into the water, and in case of neglect or refusal to contract on the part of the owners, the improvement- was to be made at their expense, which was to be a lien upon the property, and the proprietors are also made liable to be sued for the amount of the expense incurred in making such improvement. But it has been strongly argued in this case, that both plaintiff and defendants are riparian proprietors, and that as no provision has been made by law for such a conflict of rights, neither party can claim title to the prejudice or exclusion'of the other. But we think, as we have before remarked, that the right vested in the prior grantee under the act of 1745, and confirmed by that of 1784, is paramount to, and must prevail over that of the junior grantee, and that the improvement made by the corporation under the ordinance of 1823, must enure to the benefit of those who claim title under the senior grant. We think moreover, that the improvement or filling up being made for their benefit, under the true construction of the acts of Assembly and the ordinance of 1823, a title vested in them which could not be divested, or in any manner impaired by the fact, that the expense of such filling up or improvement, was paid for by the defendants. It was not competent for the corporation by any act of theirs, so to vary or affect the rights of the parties as established by law. Under this view of the case we think, that the court below ought to have granted the plaintiff’s prayers; that they were entitled to recover, although there might have been no sufficient evidence of certain facts upon which in part their prayers were predicated, they having a right to recover independently of the existence of such facts, upon the evidence which they exhibited. We think also, that the evidence relative to the paying by the defendants for the expense of the improvement in controversy was irrelevant, and therefore ought to have been rejected for the reasons which we have already slated, such expense having been paid by them, could not operate to affect or impair the plaintiff’s title.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.