Day v. Day

CocHRAN, J.,

delivered the opinion of this Court.

The first objection presented by the appellant to the issue of a patent on the certificate of survey in this case, is founded on the Act of 1862, chapter 129, which expressly prohibits the issue of any patent of land covered by navigable waters. The survey was made under a common warrant, issued from the Land Office on the 3rd of February 1836, and the certificate thereof, returned on the 2nd of February 1837, states that nine and a half of the ten acres described, are covered by navigable water at high tides. The proceedings of the appellee to acquire a title from the State, appear to have been suspended from that time until 1857, when, the composition money was paid, and the caveat of the appellant filed; the appeal to this Court having been taken on the 9th of August 1860, from an order overruling the caveat, passed hy the Commissioner of the Land Office on the 18th of November 1859.

The proceedings up to and including the appeal, thus appear to have been taken before the Act of 1862 was passed; and the appellee therefore insists, that this case should be excepted from its operation and effect. The disposition of the appeal, in our opinion, depends on the determination of that question. We find nothing in the evidence tending in any degree to qualify or contradict the description of the land contained in the certificate of survey, and although no question was raised as to whether the terms of the Act would embrace land described, as “covered by navigable water at high tides,” yet a brief notice of that point would seem to be appropriate.

The Common Law distinction between navigable waters, and rivers or streams not navigable, is founded on the difference of the rights to which they are respectively subject; the entire property of the former being vested in the public, while the latter belong to riparian proprietors, although in some cases subject to a qualified public use. Rivers or streams within the ebb and flow of tide, to high water mark, belong to the public, and in that sense are navigable waters; all the land below high water mark, being as much a part of the jus publicum, as the stream itself. The owners of adjacent ground had no exclusive right to such lands, nor could any exclusive right to their use be acquired, otherwise than by an express grant from the State. The Act of 1862 was intended to vest these owners of contiguous lands with rights and privileges not recognized by the Common Law, and to that end, the 1st section declares, — that the proprietor of land bounding on any of the navigable waters of the State, should be entitled to all accretions thereto by the recession of water, whether before or thereafter formed or made, by natural causes or otherwise. The 2nd section goes further, and not only vests such owners with the exclusive privilege of extending improvements from their lands into the waters in front thereof, but declares that these rights and privileges shall pass to the successive owners of such lands, as incident to their respective estates. Looking then to the general purpose disclosed by these affirmative provisions, it is clear that the clause in the 3rd section prohibiting the issue of any patent of land covered by navigable water should be so construed, as to apply to all lands below high water mark, or in terms still more comprehensive, to embrace any lands, to which the rights and privileges conferred by tbis Act could attach. This construction, assuming that the Act applies to the present case, would seem to establish the right of the appellant to claim the land in question as an accretion to “Snipe Island',” for the testimony of Brown, Woods, Ashur and Hawkins, most of them witnesses examined on behalf of the appellee, proves, beyond question, that the land described in the certificate of survey, is an alluvial formation, connecting at low tides with “Snipe Island.” But without expressing a more decided opinion on that point, we proceed to consider the main question: whether the Act of 1862 applies to this case.

In our opinion, the payment of composition money by the appellee, did not, as between him and the State, establish the- relations of contracting parties. According to the settled practice of the Land Office, the payment of it was necessary before the question whether a patent should be granted, could be considered, and under no circumstances could the amount so paid be refunded to him. That a caveat to his application for a patent could be entered and sustained, without entitling him to a return of the composition money, is neither disputed nor doubted, and under such circumstances, it would seem impossible for money paid by way of composition, to take the technical character of a consideration, binding the State to a transfer of her title. Strictly speaking, the payment is made as a part of the proceedings necessary to the final adjudication of the case, and as such, other things being equal, seems nothing more than a right to be preferred when the patent is granted. The question whether a patent shall issue, depends not' on the proceedings had in any given case alone, but on the further fact, that the land for which a patent is sought, may by law be granted in that mode, when the question as to the issue of the patent comes to be finally adjudicated. The payment made by the appellee here, vested him with no specific interest in the land described in the certificate, and his relation to the title is necessarily the same as it would have been, had all his proceedings been taken since the Act of 1862 was passed. This Act is one relating to the interests and property of the public, and we are bound to take judicial notice of it, whether the parties on either side rely upon it or not. In applying its imperative provisions to the present case, it is obvious that no patent can issue for the land in dispute, It is proper, however, to refer to another well settled rule, which clearly leads to the same results; and that is, that we are bound to decide according to existing laws, even though a judgment, rightful when rendered by the Court below, should be reversed as a consequence. As we have seen, there was no interest vested in the appellee to except this case from the operation of the Act, and the rule above stated, although broad enough to embrace a much stronger case where public interests are affected, would necessarily apply. In the case of the United States vs. Schooner Peggy, 1 Cranch, 103, it. was said: “That in mere private cases, between individuals, a Court will struggle hard against a construction which will, by a retrospective operation, affect the rights of parties; but in great national concerns, where individual rights acquired by war, are sacrificed for national purposes, the contract making the sacrifice ought always to receive a construction conforming to its manifest import; and if the nation has given up the vested rights of its citizens, it is not for the Court but for the Government to consider whether it is a proper case for compensation. In such a case the Court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful, when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside,” The rule here laid down has been adopted and often acted upon in this State, as will more fully appear by reference to the case of Keller vs. The State, 12 Md. Rep., 322. We think, under the present circumstances of the case, that no patent, of the land in question, should issue; and shall therefore reverse the order of the Commissioner of the Land Office, and rule the caveat good, each party to pay his own costs.

(Decided March 15th 1865.)

Order reversed.