Day v. Day

• Decision Date: 15 March 1865
• Parties: JOHN Y. DAY v. WILLIAM Y. DAY.
• Court: Maryland Court of Appeals

22 Md. 530

JOHN Y. DAY v. WILLIAM Y. DAY.

Court of Appeals of Maryland.

March 15, 1865

APPEAL from a decision of the Commissioner of the Land Office.

This appeal was taken on the 16th August 1860, from a decision of the Commissioner of the Land Office, rendered on the 18th of November 1859, overruling a caveat filed by the appellant to the issuing of a patent to the appellee for " Mud Island. "

A common warrant was issued out of the Land Office to the appellee, on the 3rd of February 1836, for ten acres of land. On this warrant the survey was made, on the 18th of February 1836, of ten acres of land lying in Baltimore County, and the certificate of the surveyor was returned to the Land Office on the 2nd of February 1837. This certificate was caveated by the appellant on the 22nd of June 1853, and again more formally on the 30th of November 1857. The composition money on this certificate was not paid until the 28th of October 1857.

The certificate of survey describes the land as: " containing ten acres, nine and a half acres, part thereof, as covered by navigable water at high tides." The record also shows that on the 1st of December 1826, a patent was granted to the appellee for " Snipe Island. " The cause was heard on the 3rd of November 1859, when various statements, depositions and certificates were filed by the appellant, tending to show that " Mud Island " was only alluvion to " Snipe Island. " Evidence was also adduced on the part of the appellee to show that " " " Mud Island " was a distinct tract, separated from " Snipe Island " by a swash or thoroughfare, through which the water flowed. The grounds of the decision of this Court render it unnecessary to state more than the general effect of the evidence.

On the 18th of November 1859, the Commissioner filed an opinion and order overruling the caveat, from which the caveator appealed.

The cause was argued before BOWIE, C. J., BARTOL, GOLDSBOROUGH COCHRAN, and WEISEL, J. O. Miller, for the appellant.

1st. At the time the warrant was issued and the survey made for the appellee, and indeed up to the time the decision in the case was rendered, there was nothing in the laws of the State forbidding the issuing of a patent for land covered by navigable water. But since this appeal was taken the Act passed March 3rd 1862, ch. 129, has expressly declared, that " no patent shall hereafter issue for land covered by navigable water." When this appeal was taken a bond was given to stay proceedings in accordance with the provisions of Article 5, section 45 of the Code, and no patent has ever been issued for this land. In view of the law above cited, can such a patent now issue? The appellant will insist that it cannot. This Court must look at the law as it now exists. The language of the Act of 1862, is broad and sweeping--pending cases are not excepted, " no patent shall hereafter issue," & c. " If subsequent to the judgment and before the decision of the Appellate Court a law intervenes and positively changes the rule which governs, the law must be obeyed or its obligation denied; " United States vs. Schooner Peggy, 1 Cranch, 103, decided by the Supreme Court, per MARSHALL, C. J. See also, Keller vs. The State, 12 Md. Rep., 322, and cases there cited. That the patent, if it should issue, would violate this law, is clear beyond doubt. The patent must follow the certificate, which describes a large part of the ten acres as covered by navigable water. Its location on the plat in this case, shows the same thing, for a portion of it extends into the Gunpowder river, beyond any location, made even by the appellant, of " Snipe Island. " But besides this, the appellee has no standing in Court, unless he shows that there was navigable water between " " " Mud Island " and " Snipe Island, " and all his testimony is directed to show this; and yet the lines of " Mud Island " will be seen to cross and embrace a considerable part of the channel, which he contends is navigable water.

2nd. Again, if the first point should not be deemed conclusive of the case, the appellant will insist, that whatever land there is within the lines of " Mud Island, " as located in this case, is gained by alluvion to " Snipe Island, " (if indeed it should be decided that the true location of " Snipe Island, " does not include the same,) and therefore no patent should issue therefor to the appellee. Giraud's Lessee vs. Hughes, 1 G. & J., 249. Chapman vs. Hoskins, 2 Md. Ch. Dec., 485. Act of 1862, ch. 129.

3rd. That the land called " Mud Island " is embraced within the lines of " Snipe Island, " as properly located, and has for more than twenty years been in the possession of the appellant, and therefore no patent can issue therefor. Steyer vs. Hoye, 12 G. & J., 202. Twigg vs. Jacob, 4 Md. Ch. Dec., 541. Lee vs. Hoye, 1 Gill, 188. Smith vs. Baker, 4 Md. Chancery Dec., 29. Act of 1818, ch. 90.

4th. That the appellee having failed to comply with the rules of the Land Office, in not paying the composition money for more than twenty-one years after the date of his warrant, must be considered as having abandoned his title founded upon that warrant, and therefore no patent should issue therefor. Act of 1781, ch. 20, sec. 6. Act of 1795, ch. 88, secs. 9 and 10. Hoye vs. Johnson, 2 Gill, 291. Chapman vs. Hoskins, 2 Md. Chancery Dec., 485.

5th. The irregularities and illegality in the proceedings to take testimony and in the conducting of the case, are sufficient not only to exclude much of the testimony in the case, but to warrant a reversal of the decision below, and the sending the case back for a new trial. Power is given to the Commissioner of the Land Office by Article 54, sec. 14 of the Code to hear and determine all disputes concerning the issuing of patents, and in all disputes that shall come before him he shall have full power to decree thereon according te equity and good conscience and the principles established in Courts of Equity. By section 32, he is required to hear and determine every caveat within twelve months from the entering of the same, unless he shall under special circumstances, give further time to the parties. And by section 35, he " may prescribe rules to regulate the conduct of surveyors in making surveys, & c., and he shall in all things regulate his proceedings by the usages and principles which have heretofore been established by the practice of the Land Office, not inconsistent with this Article or the principles of equity." See also Landholder's Assistant, 379, 380, and the Act of 1782, ch. 38.

The record shows that these rules and principles have been violated in many important particulars. 1st. In taking testimony at the house of the appellee in the absence of the appellant, and not on the premises near " Snipe Island, " where, according to notice and agreement, it was to be taken, and where the appellant was present and ready to proceed. In this connection it will be insisted, that all the depositions taken by Quinlan, the magistrate, on the 18th, 21st and 31st of October 1859, were illegally taken and should be rejected. 2nd. In the refusal of the magistrate, Quinlan, to issue summons for witnesses to testify for the appellant, when applied to by the appellant for that purpose on the 13th of October, as stated by Quinlan in his certificate. 3rd. In allowing depositions to be read, taken before a magistrate of another State, out of the State of Maryland. The appellant knows of no rule or practice of the Land Office, and certainly none of equity, allowing such depositions to be read, even if taken on notice given.

A. W. Machen and R. J. Gittings, for the appellee, argued:

1st. That the Act of 1853, ch. 415, is unconstitutional. The jurisdiction of the Commissioner has been exercised and acquiesced in ever since the passage of the law, and adopted by this Court. Const. Art. 7, sec. 8. Dorothy vs. Hillert, 9 Md. Rep., 570.

2nd. The general rule of the Land Office is to issue the patent when the right is doubtful, in order that the party may not be deprived of the privilege of taking the judgment of a court of law upon its efficacy. Jones vs. Bradley, 4 Md. Ch. Dec., 167. Dorothy vs. Hillert, 9 Md. Rep., 570. Cunningham vs. Browning, 1 Bl. Ch. R., 325. Ridgely vs. Johnson, 1 Bl. Ch. R., 316, (note.)

3rd. The certificate having been regularly returned to the Land Office, and examined and passed by the Examiner General, and the composition money subsequently paid in good faith and accepted by the State, the appellee is entitled to a patent, notwithstanding the lapse of time--the only effect of delay being the risk of being deprived of the land by a proclamation warrant. Kilty's Landholder's Assistant, 469, 319, 480. Laws of Maryland, 1781, ch. 20, sec. 6. Ib. 1795, ch. 88, secs. 9 and 10. Jones vs. Bradley, 4 Md. Ch. Dec., 167. Dorsey on Ejectment, 88.

4th. " Mud Island " is not alluvion to " Snipe Island, " but separate from it. The caveator's evidence was objected to in the Land Office and is still objected to as incompetent, not having been taken in pursuance of the order of the...