Bostick v. Smoot Sand and Gravel Corporation

• Citation: 154 F. Supp. 744
• Decision Date: 21 August 1957
• Docket Number: Civ. No. 8974.
• Parties: Edward M. BOSTICK, Henry I. Altshuler, Anna B. Wickes and Virginia R. McDonnell, Mrs. Norma J. Bostick and Mrs. Roselina R. Altshuler, v. SMOOT SAND AND GRAVEL CORPORATION.
• Court: U.S. District Court — District of Maryland

154 F. Supp. 744

Edward M. BOSTICK, Henry I. Altshuler, Anna B. Wickes and Virginia R. McDonnell, Mrs. Norma J. Bostick and Mrs. Roselina R. Altshuler, v. SMOOT SAND AND GRAVEL CORPORATION.

Civ. No. 8974.

United States District Court D. Maryland.

August 21, 1957.

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Niles, Barton, Yost & Dankmeyer, Baltimore, Md. (Carlyle Barton, Theodore R. Dankmeyer and Robert C. Prem, Baltimore, Md.), for plaintiffs.

Piper & Marbury, Baltimore, Md. (Charles C. G. Evans and E. Clinton Bamberger, Jr., Baltimore, Md.), for defendant.

R. DORSEY WATKINS, District Judge.

This is an action by the owners and occupants of four contiguous parcels of land adjacent to Mt. Vernon, Fairfax County, Virginia, against the defendant, a Delaware corporation qualified to do business in Maryland. The complaint, in four counts, alleges a cause of action in trespass againt the defendant; a claim for nuisance in the manner in which said trespass has been and is being committed; and a claim for damages for the taking and carrying away of the "exclusive property" of plaintiffs.¹

More specifically, the complaint alleges that defendant is dredging sand, gravel and other materials from "the bed of the Potomac River in Charles County, State of Maryland" between the near channel line and the highwater line of the Potomac River on the Virginia side, approximately seven hundred and five yards off shore from plaintiffs' property, such dredging being in Charles County, Maryland, without license or permit from plaintiffs; "that said dredging constitutes a trespass² upon the riparian rights" of the plaintiffs "in the bed of the Potomac River as granted to them" by Article 27, Section 572 of the Annotated Code of Maryland, 1951 Edition, in that plaintiffs "as owners in fee simple of riparian lands bordering on the Potomac River * * * are the owners of exclusive riparian rights in the bed of said river opposite said lands from highwater mark on the shore bordering said lands to the outer line of the channel nearest said shore, granted to them by enactment of the Legislature of the State of Maryland codified as Article 27, Section 572 of the Annotated Code of Maryland, 1951 Edition, as follows:

"572. It shall not be lawful for any person to dig, dredge, take and carry away any sand, gravel or other material from the bed of any of the navigable rivers, creeks or branches of this State, under a penalty of a fine not exceeding Three Hundred Dollars ($300), and confiscation of the boat, vessel, dredge and implements used in digging, dredging and carrying away such sand, gravel or other material, and imprisonment in the county jail for a period not exceeding six months, in the discretion of the court; one-half of said fine and one-half of the proceeds of the sale of such confiscated boat, vessel, dredge and implements, to be paid by the sheriff to the informer, and the other half to the commissioners of public schools for the counties, provided, however, that it shall be lawful for any riparian owner of lands bordering on said rivers, creeks or branches, or for any person or corporation with whom such owner shall have a contract in writing for the purpose, or for the agents, servants or employees of such person or corporation to dig, dredge, take and carry away such sand, gravel, or other material from the bed of said river opposite said lands from highwater mark on the shore bordering on said lands to the outer line of the channel nearest said shore, subject to the laws of the United States relating to navigation; and provided further, that none of the provisions of this section shall be deemed to interfere in any manner with the provisions of any law of the State relating to the taking and catching of fish and oysters." (The italicized portions were added in 1900 and 1906, and are further discussed below).

The complaint further alleges that such dredging operations are carried on "in a noisy, unpleasant, unhealthful, unsanitary manner in such a way as to constitute a nuisance to the Complainants and otherwise interfere with the quiet enjoyment of the properties of the Complainants."

Such taking and carrying away of gravel and other material "which are the exclusive property" of plaintiffs is averred to have been done without license or permit.

The complaint prays for an injunction against the taking of gravel and other material from the "highwater mark" on the Virginia shore of plaintiffs' properties to the outer line of the channel of the Potomac nearest said shore; for an accounting for the value of the gravel and other materials removed from such areas; and for costs and other relief.

Defendant answered, denying the allegations of nuisance; denying that plaintiffs had any rights beyond low water mark, under Maryland Code, Article 27, Section 572 or otherwise; and averring that the title to land under water from the low water mark on the Virginia shore to the outer line of the channel of the Potomac nearest the Virginia shore was vested in the State of Maryland, and that by action of the Maryland Board of Public Works, defendant was vested with authority to remove sand and gravel between low water mark on the Virginia side and the outer line of said channel.

The case so made by the pleadings presented the narrow, if not easy, question of the interpretation of the provisions of Maryland Code, Article 27, Section 572. However, at final argument, plaintiffs presented the additional proposition that, in the alternative,³ their rights were based upon the Compact of 1785 between Maryland and Virginia, and the Black-Jenkins Boundary Award of 1877; or upon said Compact and Award as implemented by "statutes of the State of Maryland and/or the Commonwealth of Virginia."

The issues so tendered require a more extended excursion, although into a most interesting field, than those specifically advanced in, the Complaint.

The Compact of 1785 between Maryland and Virginia.

The boundary between Maryland and Virginia has now been established as the low water line⁴ on the Virginia shore of the Potomac River.⁵ However, the controversy preceding this determination, and particularly certain provisions of the Compact of 1785, are relied upon by plaintiffs in support of their position.

Historically, the State of Maryland and the Commonwealth of Virginia have both laid claim to the entire Potomac. These conflicting claims stem from conflicting grants made by successive kings of England in the Seventeenth Century. In May, 1609, James I granted to the Commonwealth of Virginia a tract of land extending two hundred miles northward from Point Comfort. This embraced all of the Potomac River and much territory beyond. In 1632 Charles I made a grant to Lord Baltimore including substantially what is now the State of Maryland, the southern boundary of which was described in part as to the farther bank of said river and following it. In 1688 James II granted to Lord Culpepper what is now known as the northern neck of Virginia including the Potomac River and all the islands within the outermost banks thereof.

These conflicting grants led to considerable controversy between the two states both before and immediately after the Revolution. The chief problem which concerned the State of Maryland was the practice of the Commonwealth of Virginia to levy tolls upon vessels proceeding to Maryland through the Virginia waters of the Chesapeake. Conferees on behalf of Maryland, appointed to confer with similar representatives of Virginia, had explicit instructions to break off the conferences unless the representatives of Virginia would agree to forego this practice. Following one or more unsuccessful endeavors to settle the matter, on March 28, 1785 a compact was entered into between the commissioners of the two states. This compact was approved by the Legislature of the State of Maryland by Chapter 1 of the Acts of 1785. The Virginia Legislature approved the compact by Chapter 17 of its Acts of 1785. The Maryland act provided specifically:

"* * * every article, clause, matter and thing, in the same Compact contained, shall be obligatory on this State and the citizens thereof, and shall be forever faithfully and inviolably observed and kept by this government, and all its citizens, according to the true intent and meaning of the said Compact; and the faith and honor of this State is hereby solemnly pledged and engaged to the General Assembly of the Commonwealth of Virginia, and the government and citizens thereof, that the law shall never be repealed or altered, by the Legislature of this government, without the consent of the government of Virginia."

Section 7 of the Compact, in particular, reading as follows, is urged by plaintiffs:

"Seventh, The citizens of each state respectively shall have full property in the shores of Patowmack river adjoining their lands, with all emoluments and advantages thereunto belonging, and the privilege of making and carrying out wharfs and other improvements, so as not to obstruct or injure the navigation of the river, but the right of fishing in the river shall be common to, and equally enjoyed by, the citizens of both states; provided, that such common right be not exercised by the citizens of the one state to the hinderance or disturbance of the fisheries on the shores of the other state, and that the citizens of neither state shall have a right to fish with nets or seans on the shores of the other." (Original orthography preserved).

It is conceded by both plaintiffs and defendant that at the time of the Compact, "the emoluments and advantages" belonging to the ownership of property on the shores of navigable waters (riparian rights) encompassed in Maryland only the right to acquire any increase in the fast land by alluvion or the natural recession of the water. It did not include even the right of wharfage; the right to erect improvements into the navigable water in front of the fast land. Goodsell...