Giraud's Lessee v. Hughes , 1 G. & J. 249 ( 1829 )

Stephen, J.

delivered the opinion of the court.

This action was instituted in Baltimore County Court, to recover a parcel of land called Augustus's Discovery Resurveyed, which was patented to John James Giraud, as vacant land, and whether it was vacant or not at the time he caused it to be resurveyed, is the question now to be determined, and in order to ascertain this question it becomes necessary to decide what was the true location of Gist's Inspection, patented to Richard Gist, on the 9th of July, in the year 1732, that is, not how it was originally located, but what was its true position at the time of Augustus's Discovery, and the resurvey upon Augustus's Discovery were taken up. It is admitted that Gist's Inspection, when it was surveyed and patented, ran into the water or basin of Baltimore; since that time the water has gradually receded, and the land formed by the recession of the water, is the land upon which Giraud made his survey of Augustus's Discovery in the year 1812, and his resurvey, in the year 1813. In the course of the trial, the parties made the following admission: “ It is admitted that the several water lines or shores located by either party in this cause, shew and designate where the tide water of the Patapsco river or basin of Baltimore, flowed al different periods of time, receding gradually eastwardly, to where the same now arc shewn by the most eastward location thereof, in blue shaded lines, and that the lines of Gist's Inspection, when the same was' granted, including part of the sixth line thereof from the end of said line, ran into the water Patapsco or basin of Baltimore Town, to the end of the tenth line thereof, and that the above lines are so located, except a small part of the south end of the tenth line.” It has been contended that as the lines of Gist's Inspection were originally run, course and distance, when the survey of it was made, and had no call to the water, it must be confined to its course and distance, and cannot be extended beyond them. This position is true as a general principle in exposition of grants; hut the question is not here what was the true original location of Gists Inspection at the time it was surveyed, but whether under the circumstances of this case, the defendants are entitled to the' adjacent land formed by the waters having gradually receded in an eastern direction. Christopher Hughes, the father of the defendants, held a part of Gists Inspection., and the deed under which he claimed title .to it, describes it 'as running into the water; that deed bears date the 6th of June, 1782. The principle seems to be well settled, that where a tract of land lies adjacent or contiguous to a navigable river or water, any increase of soil formed by the waters gradually or imperceptibly receding, or any gain by alluvion in the same manner, shall, as a compensation for what it may lose in other respects, belong to the proprietor of the adjacent or contiguous land. For this principle, see 2^Blk. Com. page 261, where he says, “as to land gained from the sea, either by alluvion by the washing up of sand and earth, so as in time, to make terra firma, or by. dereliction, as when the sea shrinks back below the usual water mark; in these cases the law is held to be, that if this g.ain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining.” It is then not upon the principle that the land calls for the'water, but because it adjoins the water, that the. owner acquires a tifie to the soil so formed, for, continues he, de minimis non curat lex; and besides these owners being often losers by the breaking in of the sea, or at charges to keep it out, this possible gain is therefore, a reciprocal consideration for such possible charge or loss; here we have in plain and strong language, the reason of the rule, which places the acquisition of the additional soil by the owner of the adjoining land, upon the ground, that he might be a loser by .the breaking in of the sea, or at an expense to keep it out. And to bring the case within the operation of the rule, it is only necessary that the land should be adjoining the water. To the same effect is the Jaw laid down in the 5th vol. of Bacon’s Abridgement, page 494, title prerogative; the principle • is there stated to be, that if the sea leaves any shore by a sudden falling off of the water, such derelict lands belong to the king, hut if a man’s lands lying to the sea, are increased by insensible degrees, they belong to the soil adjoining. Here, too, it appears only to be necessary, that the land should be adjoining to the sea, to entitle its owner to the derelict land formed by the recession of the water. It appears by the. proof in the cause, that Barbaugh who obtained from the Port Wardens in Baltimore, a permission to make a wharf, never did complete it according to such permission, but after proceeding in the work for some time, totally abandoned it. This permission he obtained from the Board of Wardens who were authorised to grant it by the provisions of the act of 1783, ch. 24, hut in order to vest a title in such wharf, it appears to he necessary that he should have completed it. This appears to be essential by the provisions of the act of 1745, ch. 9, sec. 10, by which it is enacted, 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 tbe right, title, and inheritance of such improvers, their heirs and assigns, forever.” Neither Hughes nor Barbaugh therefore, acquired any title to the work done by Barbaugh, in virtue of his permission, but it being expressly admitted by the parties, that the water gradually receded to where it now flows, it is upon the ground of such gradual recession, by which the derelict land was formed, that Hughes and those now representing him claim title to it. The counsel for the appellant having waived the points arising on the first bill of exception, it is not deemed necessary to give any opinion upon it.

Judgment aeeuimei».