Baltimore & O.R. Co. v. Chase

• Decision Date: 11 June 1875
• Citation: 43 Md. 23
• Parties: THE BALTIMORE AND OHIO RAILROAD COMPANY v. MATILDA CHASE, and others.
• Court: Maryland Court of Appeals

43 Md. 23

THE BALTIMORE AND OHIO RAILROAD COMPANY v. MATILDA CHASE, and others.

Court of Appeals of Maryland

June 11, 1875

APPEAL from the Baltimore City Court.

This was an action of ejectment brought by the appellees against the appellant. The plaintiffs, assuming that they were entitled to a portion of the accretion in front of their lot No. 27, and the water, advanced five different methods of laying out the same. They first proposed that a straight line should be drawn from the extremities of the old shore line and straight lines should be drawn perpendicularly to this line from the termini of the original water front of lot No 27, and that these perpendicular lines should be thence extended until they reached the water. This plan is designated on the plat as 1. The second plan was to draw lines perpendicularly from the termini of the old water front of lot No. 27, to the Portwarden's line as it existed when the suit was brought. This plan is marked 2 on the plat. The third and fourth plans proceeded upon the supposition that lot No. 27, was not entitled to representation on the new water line for the full extent of its old water line, but only for so much as was unobstructed by the promontory marked Z. Treating lines C. B. as the water front, plan No. 3 proposed perpendicular lines to the Port-warden's line as it formerly existed, and from that perpendicular line to the present Port-warden's line--this is the plan marked 3. The fourth plan represents the lines as continued from the former Port-warden's line to the present Port-warden's line, without any change of direction. This plan is marked 4 on the plat. The fifth plan was to treat the present Port-warden's line as the shore line and to draw lines from the termini of the original water line of lot No. 27, to intersect the Port-warden's line at such points as would leave a proper proportion of the water front on that line to the east and west, to represent the old water front of the lots to the east and west of lot No. 27. This plan is designated on the plat by the number 5. The following plat will greatly assist the understanding of the case as stated in the opinion of the Court, as also of the theories of the appellees in respect of the accretion in front of their lot:

(Image Omitted).

TABLE

The cause was argued before BARTOL, C.J., STEWART, BOWIE, GRASON, ALVEY and ROBINSON, J.

John K. Cowen and John H. B. Latrobe, for the appellant.

The State being the owner of lands under navigable water, has granted the same to the owners of lots fronting on the water on condition of improvement.

The direction in which improvements are to be made from the shore, has not been accurately determined. But the universal practice in the harbor of Baltimore, has been to extend the lots by right lines, and this practice has been sanctioned by judicial decision. In the present case, by reason of the curvature of the shore, there is a conflict between the adjoining owners; and as there is no provision of law to avoid such a conflict, lots Nos. 20 and 21 being held under the elder title, coupled with the fact that the owners of those lots have improved, have the paramount right of extension. See Dugan, et al. vs. Mayor, &c. of Baltimore, 5 G. & J., 367, 373; Baltimore vs. McKim, 3 Bland, 454, 455, 466, 467; Casey vs. Inloes, 1 Gill, 510; Wilson vs. Inloes, 11 G. & J., 361.

The "alluvial" theory of the plaintiffs, or the mode adopted by the Court are impracticable. They both are furnished upon the fallacy that the object of a Portwarden's line is to determine the boundaries between the riparian owners, by determining the direction of improvement, whereas the only purpose of such a line is to determine the extent not the direction, of any improvement made--it protects the public right of navigation, but does not settle disputed claims among shore proprietors.

The defendant, by its charter, can take possession of land before condemnation; and as the defendant is entitled to possession, there can be no recovery in this action of ejectment. The defendant has entered upon, is using and occupying the premises for the purposes of its tracks, and for its warehouses and other works necessary to its road. The plaintiffs' remedy is in equity by a bill asking a mandamus to compel the company to have an inquisition of damages, or an injunction until the company take proper proceedings to ascertain the value. See Act of 1826, ch. 123, secs. 14, 15, 17; Compton vs. Susquehanna R. R., 3 Bland, 386; Mayor, &c. of Pittsburgh vs. Scott, 1 Penn., 309; Davis vs. Russell, 47 Maine, 443; Bloodgood vs. M. & H. R. R. Co., 14 Wend., 51.

But even if the Railroad Company did not have by its charter the right of entry and use prior to condemnation; yet after it has entered and built upon the ground, the landholder who stands by and sees these things going on, cannot reclaim the land in ejectment, nor enjoin its use. His only remedy is by a proceeding to obtain its value. Goodin vs. C. & W. Canal Co., 18 Ohio St., 169; McAulay vs. Western Vt. R. R. Co., 33 Vt., 311-- especially 320-321; Wendell vs. Van Rensselaer, 1 Johns. Ch., 352-353, and cases there cited; Adams vs. Rockwell, 16 Wend., 285.

In no event can the plaintiffs' lines, under the Court's instruction, go beyond the navigable water on the Portwarden's line of 1833. The instruction proceeds upon the theory, that the entire space between the Port-warden's line and the shore may be filled. But this cannot be, otherwise in many instances there would be the cutting off of water fronts of the various lot owners. Lot No. 27 is only entitled to go to navigable water; is not entitled to the land under it, as is given by the Court.

The building of the bulk-heads and their continued exclusive use, under claim of right, as the water front privilege of lots Nos. 28 and 29, is an adverse possession--not only of the land covered by the bulk-heads or wharves--but also, of all lying between them and the shore line of Nos. 28 and 29. And although the filling in of the intervening space might not have all been completed twenty years prior to the time of commencing the suit, yet the erection of the bulk-heads twenty years prior thereto, under claim of right so to do, as the water front privilege of lots Nos. 28 and 29, and their continued exclusive use by the owners of those lots ever since, was a possession adverse, of the whole space covered with water, between the ancient shore of said lots, and the bulk-heads. What is meant by " adverse" in any case? Simply a claim of right inconsistent with the claims and rights of others. What can be adverse possession of a water front? Such a use of the water front claimed to belong to certain lots as is ordinary, and which cuts off an adjoining lotowner from going in that direction to the water.

If McKim, as owner of lots Nos. 28 and 29, built the bulk-heads as appurtenances to those lots, surely right of access to the bulk-heads from the lots, goes as part of the adverse claim. How could lot No. 27 claim to go towards the bulk-head? Only to get to the water. But the bulkhead stops them from going to the water. Therefore the erection of the bulk-head is adverse to the claim to go in that direction at all, and the possession and use of the bulk-heads would be a possession and use of the entire space to the old shore.

This is true, even technically, because every pile that is driven, and every load of earth that is thrown into the bulk-head, changes the condition of the water between that and the shore.

Skipwith Wilmer and Randolph Barton, for the appellees, contended:

1st. That by the deed of the 1st of January, 1795, from the State of Maryland to the ancestor of the appellees lot No. 27, therein described, was conveyed with a water front of seventy-two feet, six inches, (the extent is conceded) the water in front of which they were to enjoy in common with the owners of lots Nos. 20 and 21; and that the rights thereto, existing between said three lots were reciprocal, and were to be enjoyed by all subject to corresponding rights in each other. And that this right could only be divested by voluntary conveyance, or by the Act of Limitations--and that their right has not been lost by either of these means.

2nd. That the appellees were under no compulsion to improve their property-- and that by failing to make improvement, no rights are lost, but their original claim to a water front is unimpaired, except so far as a change made by natural causes (accretion, &c.,) may have reduced it in extent. And that the appellant cannot rely upon its "spirit of enterprise" to justify it in appropriating private property to its own uses without consideration.

3rd. That natural causes, viz: accretions to the original shore line in front of all of the lots on the north-eastern side of Whetstone Point, from Fort McHenry northwardly to Locust Point, (at the foot of Hull Street, said street being the old road leading from Locust Point to Fort Avenue) and the consequent shortening of the present shore line as compared to the original shore line, necessitate a proportionate decrease in the water fronts of the several lots lying on the water between the points thus indicated--and that this decrease is in accordance with the principle of an equitable division of the new land thus formed in front of the various lots.

The termination of Hull Street on the north, at the water, and at Martin Street on the south, at the water, (this being the line of the United States property at Fort McHenry,) are the points to be considered, between which the accretions are to be divided, so far as the rights of riparian owners between those points are to be ascertained.

The plat and copies of the city map filed in the cause, show that these two...