Classen v. Chesapeake Guano Co. of Baltimore City

• Decision Date: 19 April 1895
• Citation: 31 A. 808,81 Md. 258
• Parties: CLASSEN ET AL. v. CHESAPEAKE GUANO CO. OF BALTIMORE CITY.
• Court: Maryland Court of Appeals

31 A. 808

81 Md. 258

CLASSEN ET AL. v. CHESAPEAKE GUANO CO. OF BALTIMORE CITY.

Court of Appeals of Maryland

April 19, 1895

Appeal from circuit court of Baltimore city.

Action by Charles H. Classen and another against the Chesapeake Guano Company of Baltimore City. There was a judgment for defendant, and plaintiffs appeal. Modified.

Argued before ROBINSON, C.J., and McSHERRY, ROBERTS, PAGE, and BRISCOE, JJ.

Charles M. Howard and Geo. R. Willis, for appellants.

T. M Lanahan and Frank Gosnell, for appellee.

BRISCOE J.

The appellants are the owners of a lot of ground fronting on the Patapsco river, in the city of Baltimore, and the appellee is the owner of the adjoining lot on the west, likewise fronting on the river. The shore line of the river is concave, so that, if some of the riparian owners should build out wharves or piers in straight lines, the full width of their lots, to the pierhead or port warden's line, other riparian owners would be deprived of the privilege of building piers to the pierhead line, since the water front on the pierhead line is much less in extent than the shore line in the rear. In 1876 Joshua Horner, who then owned the appellee's lot, and also the lot now adjoining on the west, was authorized by the mayor and city council, by Ordinance No. 114 of that year, to erect a bulkhead and piers in front of his lot. By Ordinance No. 141 of 1880, approved October 6, 1880, the ordinance of 1876 was repealed and re-enacted to grant permission to the heirs of Joshua Horner to erect said bulkhead and piers. The heirs of Horner, in August, 1880, agreed to sell to the appellee a portion of the lot referred to in these ordinances, fronting 150 feet on Gould street, and running to the port warden's line; and as a part of the consideration agreed to build a solid bulkhead to the bulkhead line. And this bulkhead was constructed under the above-mentioned ordinance between October 6, 1880, and January 6, 1881, extending the whole width of the appellee's lot, and running out in straight lines to the bulkhead line. Subsequently Ordinance No. 83 was passed, and approved on May 17, 1881, establishing certain piers and bulkhead lines in the harbor of Baltimore city. It recites in its preamble that, whereas it has become evident that further legislation is necessary to enable the mayor and city council, with equity to the riparian owners and to the public interest, to grant permits for pier or bulkhead extensions in such portions of the harbor as the shore line may be concave or hollow, or where it forms sharp, re-entrant angles, so that the water front measured on the pier or bulkhead lines is much less in length than the shore line in rear; and then enacts as follows: "That from and after the passage of this ordinance the lines marked and shaded in 'red' in the maps numbered from 1 to 5, submitted this day by the joint standing committee on harbor, be, and are hereby declared to be the pier and bulkhead lines, beyond which no extension of piers or bulkheads shall be made in the portions of the harbor to which said maps relate." Now, it appears that the southeast part of the appellee's solid bulkhead or wharf is within the lines of what would be the appellants' lot if extended according to the ordinance of 1881, and that the piers authorized in front of the appellee's lot by the ordinance of 1880 would be, if constructed, almost wholly within the lines of the appellants' lot extended to the pierhead or port warden's line. And upon the case as thus stated the court was asked to declare the erection of the appellee's bulkhead a trespass, and to enjoin it from constructing piers to the pierhead line.

There can be no question, it seems to us, that the appellee has the right to maintain its wharf or bulkhead in front of its lot to the bulkhead line. The Patapsco river, in the city of Baltimore, is a navigable stream, and the power of the legislature, or of the municipality under its authority, to establish the lines within which wharves may be built, or other improvements made into the water, cannot be disputed. Browne v. Kennedy, 5 Har. & J. 195; Hess v Muir, 65 Md. 586, 5 A. 540, and 6 A. 673. In the case of Railroad Co. v. Chase, 43 Md. 23, this court said that, by the construction of the act of 1745 (chapter 9, § 10) as...