Patterson v. Gelston , 23 Md. 432 ( 1865 )

Bartol, J.,

delivered tbe opinion of tbis Court:

Tbe application in this case was made to tbe Land office, for a special warrant to cover about twenty acres of vacant land suggested to lie in Baltimore city, on Harris’ creek. A warrant was issued, and in its execution twenty-one acres, two roods, and twenty-four perches were located and embraced in a certificate of survey dated tbe 24th day of October 1851, by tbe name of “Oversight.” Tbis certificate was returned, and tbe composition money paid. A caveat was filed by tbe Canton Company as to part of tbe land embraced in tbe survey; and that caveat being sustained, tbe plats and certificates were returned and corrected. On tbe 30th of October 1860, tbe appellants filed their caveat,, and under an order from the Commissioner, evidence was taken, and locations made by them. On tbe 2nd of August 1861, tbe Commissioner passed an order sustaining tbe caveat in part, and in part overruling tbe same, and deciding that a patent should issue to tbe appellee for two parcels, one containing two acres, one rood and six perches, tbe other one rood and seven perches. On the application of tbe caveators, this order was opened, and further proof was offered, and other locations were made on their behalf. Upon tbe re-bearing, tbe Commissioner, on the 11th of October 1861, adhered to bis decision of the 2nd of August. Whereupon tbe caveators ajjpealed, and filed their reasons therefor, as required by the 46th section of the 5th Article of tbe Code.

In tbe progress of tbe case in tbe Land office, a great many locations were made, and numerous plats returned, accompanied with voluminous testimony, requiring for their examination much labor on tbe part of tbe Commissioner, and that officer appears to have devoted to the consideration and decision of tbe subject very great care and ability.

In disposing of tbe present appeal, however, it will not be necessary for ns to enter into any elaborate examination of the plats, or to discuss tbe many interesting questions presented in tbe argument of counsel. The whole contest before us, is upon the caveat to one parcel delineated on tbe plats and described in the surveyor’s return of the 30th of September 1861, as containing two acres, one rood and six perches, and is, for the most part, covered by navigable water.

Since the decision of the case by the Commissioner, the Legislature, by the Act of 1862, ch. 129, has enacted “that no patent shall hereafter issue for land covered by navigable waters.” This Act came before us for consideration in the recent case of Day vs. Day, reported in 22 Md. Rep., 530, when it was determined, upon full argument, that under its provisions no patent could be issued for land covered by navigable waters, notwithstanding the warrant had been returned, and the composition money paid into the Treasury, before the passage of the Act. That case, it is conceded by the appellee, would be conclusive of the present; provided the appellants have such an interest in the subject of dispute as to entitle them to prosecute an appeal.

In the case of Gittings vs. Moale, reported in 21 Md. Rep., 135, this Court intimated the opinion that in order to maintain an appeal from the decision of the Commissioner of the Land office, overruling a caveat, the caveator must prove title, or an interest in the land in dispute, without which the appeal would be dismissed. That opinion was not material to the decision of the case, inasmuch as the interest was there shown to exist. Nor is it actually necessary now to decide that point, as it appears from the record before us, that these appellants have rights as riparian owners, which would be injuriously affected by granting the patent; and, therefore, even if such interest were necessary to be shown, would be entitled to prosecute the appeal. Tet, as the question is an important one, and has been fully argued and more carefully considered, and as we are all of opinion tbat wbat was said in Gittings vs. Moale, on-this subject, was erroneous, and ought to be corrected, we deem it proper now to dispose of the question.

Ordinarily, every suitor is bound to show to the Court some interest in the matter in dispute, in order to maintain his suit; and in the same manner every appellant must appear to be aggrieved by the judgment complained of, in order to he heard on his appeal; and, ordinarily, no one can be properly said to be aggrieved by a judgment, unless it be rendered upon a matter in which he has some interest or right of property. But this rule is not applicable to cases arising in the Land office, on applications for patents. It seems to he settled, by the long established usage and practice of that office, that “a caveat will not be dismissed merely because the caveator shows no interest.”

So the rule was stated by Chancellor HaNSON, in his testimony concerning the rules and practice of the Land office. See Landholder’s Assistant, 449. The Chancellor further says: “Where the caveator shows no interest, but shows a cause of caveat, the judge determines merely with attention to the interest of the State, or, perhaps, its officers.” Mr. Kilty says: “As to the point of an interest to be shown by the caveator, on hearing, I shall leave it where the testimony of the late Chancellor has placed it, only observing that on a full review of the practice, it does not appear to me that there ever was a rule requiring that a caveat should be dismissed, because the caveator did not show an interest in the matter in dispute.” Landholder’s Assistant, 491. These authorities sufficiently show the rule and practice of the Land office; and we will add, that .looking to the nature of the subject, it is reasonable that a patent ought to be refused, if any good cause be shown against it, though the interest of the party making the objection should not be proved. In most cases, the caveat proceeds upon the ground that some right or title of the caveator would be interfered with by the grant of the patent; but as the question is always whether it is lawful, right and just to issue the patent, this may and sometimes does depend upon other and higher considerations than the rights of the caveator, and therefore a caveat will not be dismissed merely for want of interest in the caveator in the matter in dispute; nor would this Court refuse to entertain his appeal merely on that ground. See Chrisholm vs. Perry, and Smith vs. Baker, 4 Md. Ch. Dec., 31.

"We have said, that under the provisions of the Act of 1862, the patent in this case would be refused. The decision in Day vs. Day applies, and we see no reason to depart from our ruling in that case. But, as in our opinion this record furnishes other and sufficient grounds of objection to the granting of this patent, we shall not rest our decision upon the Act of 1862. The documentary evidence produced by the caveator before the Commissioner, may, we think, be properly considered as testimony in the cause on this appeal. No exception was taken below to the form of the proof, and such objection now made for the first time in this Court, ought not to prevail.

It appears, from the documentary and other proof, that the tract called “Parker’s Haven,” which had been granted by the State before the year 1686, according to its true location, included the land lying between what is now called Burke street, on the west, and Cannon street, on the east, and extending on the south to the Patapsco river. It further appears, that all the land now lying between those streets down to the present water-line south of Boston street, is fast land, connected with what was originally the north bank of the Patapsco, and extending the shore-line by natural accretion, and filling up by artificial means, into the harbor much further south than the original south line of “Parker’s Haven.”

These facts are shown by the testimony of William Dawson and Owen Boulden. This land, formed by accretion, would, of course, belong to the riparian proprietor, and could not be granted by the State as vacancy. Excluding tbis from the parcel in controversy, there remains nothing for the patent to cover, but the part lying south of Hudson street,, extending to the Port Warden's line, and covered by the waters of the Patapsco. Upon the principles decided by the late Chancellor, in Chapman vs. Hoskins, 2 Md. Ch. Dec., 485, to which we give our entire approbation, no patent ought to be granted for land so situated,, even though the power of the State to grant such patent might be unquestionable, and the Act of 1862 had not been passed.

(Decided July 12th, 1865.)

The reasoning of the Chancellor in Chapman vs. Hoskins, applies with more force to the case of lands lying in the harbor of Baltimore, where riparian owners have secured to them, under the Acts of 1745 and 1784, valuable rights- and franchises of extending improvements into the harbor from their water lots, and which it would be inequitable for' the State to deprive them of, by granting to others the lands-covered by water, in front of their lots. For these reasons the Court is of opinion that the caveat to the parcel containing two acres, one rood and six perches, ought to be sustained, and the patent therefor refused, and will pass an order accordingly. As to the other parcel, containing one rood and seven perches, no controversy has been made, and a patent may be issued for the same. The Court will not-award costs to the appellants, but will leave the parties to pay their own costs respectively.

Order affirmed in part, and reversed in part, and cause remanded,