Mayor and City Council v. Crown Cork & Seal Co.

• Decision Date: 19 August 1941
• Docket Number: No. 4804.,4804.
• Citation: 122 F.2d 385
• Parties: MAYOR AND CITY COUNCIL OF BALTIMORE v. CROWN CORK & SEAL CO., Inc., et al. (UNITED STATES, Intervenor).
• Court: U.S. Court of Appeals — Fourth Circuit

122 F.2d 385 (1941)

MAYOR AND CITY COUNCIL OF BALTIMORE v. CROWN CORK & SEAL CO., Inc., et al. (UNITED STATES, Intervenor).

No. 4804.

Circuit Court of Appeals, Fourth Circuit.

August 19, 1941.

Wilson K. Barnes and Allen A. Davis, both of Baltimore, Md. (Charles C. G. Evans, of Baltimore, Md., on the brief), for appellant.

L. Vernon Miller and Philip B. Perlman, both of Baltimore, Md. (Jesse Slingluff, Jr., Hershey, Donaldson, Williams & Stanley, Addison E. Mullikin, Frank C. Wachter, and Mullikin, Stockbridge & Waters, all of Baltimore, Md., on the brief), for appellees.

Before SOPER, DOBIE, and NORTHCOTT, Circuit Judges.

SOPER, Circuit Judge.

This suit was brought to settle the boundary lines of the riparian rights of the owners of certain lands fronting on the northeast shore of the Patapsco River for two miles between Colgate Creek and Bear Creek in the harbor of the City of Baltimore. At the northern end of the area the City owns a tract of land upon which it has built an airport, still in course of development, that covers not only fast land inside the original shore line, but also filled land and improvements in the waters of the river. A controversy has arisen between the City and the Mutual Chemical Company, which owns land adjoining the City's property on the south, as to the location of the division line in the waters of the river separating the areas in which they are entitled to exercise their respective riparian rights. The question is whether the line should be fixed by projecting into the river the dividing line between the properties on the land, according to the course thereof as described in the deeds, until it meets the bulkhead and pierhead lines established by the federal government, or whether the dividing line in the waters of the river should run from the end of the dividing line at the shore so as to meet the bulkhead and pierhead lines at right angles The course of the line first mentioned, which for brevity we shall call the deed line, is south 42° 24' west. The course of the other line is north 66° 45'25" east, and this line will be called herein the Hammond line since it was first fixed by Elmer E. Hammond, Harbor Engineer, and head of the Bureau of Harbors of Baltimore City. These lines, with the bulkhead and pierhead lines as a base, form a right angled triangle that defines the area in dispute.

The Hammond line was fixed in 1928 when the City acquired the land on the water front, in order to establish an airport, and Hammond prepared a plan covering all the land between the two creeks, and showing the divisional lines in the water between the several tracts in the area, including the property of the City. The City now contends that the Hammond line was fixed erroneously and without authority, and that the true southern line of its property is the deed line. If this line is adopted, the City will gain the disputed triangular area to the south, and will secure additional length for the runways of the airport; while the Chemical Company will lose a portion of the area allotted to it under the Hammond plan, and certain improvements in the river which it has made in conformity therewith. The allotment of the triangular area to the city will also invade a portion of the area assigned by the Hammond plan to Sanford and Brooks Company, the owner of the land next adjoining that of the Chemical Company on the south; but the Sanford and Brooks Company has made no improvements beyond the shore line. A rough sketch of the Hammond plan is appended, on which a broken line indicates the deed line for which the City now contends.

The suit was brought by the Chemical Company and the Aluminum Ore Company, since replaced by the Crown Cork and Seal Company as purchaser of its property. The City, the United States, and the other riparian owners, shown on the Hammond plan, were joined as defendants. Subsequently the United States was dismissed as defendant, and was permitted to intervene as plaintiff. Jurisdiction is based on diversity of citizenship, the plaintiffs being corporations of New Jersey and Delaware respectively, and the defendants being citizens of the State of Maryland, except the Bankers Trust Company, a New York corporation. The bill prayed that the riparian rights of the parties be established, that the claims asserted by the City of Baltimore to the triangular area be rejected, and that the City be enjoined from making any fill in the waters of the Patapsco River south of the Hammond line. Answers were filed by the City denying the jurisdiction of the court, and by two other owners, the trustee in bankruptcy of Sanford and Brooks Company, and the Consolidated Gas, Electric Light and Power Company, who joined in the request for an adjudication of the riparian rights of all the parties. Decrees pro confesso were entered against the other defendants. The District Court held that the City had fixed the riparian lines, in accordance with the Hammond plan in 1928, and was estopped from making any further claims. The court further held that the distribution of riparian rights under the Hammond plan was the fairest and most equitable division that could be made, and confirmed it in the decree. The City alone appealed.

It will be perceived that a decision holding that the City is estopped from claiming the area south of the Hammond line, does not necessarily affect the rights of any riparian owner in this area, except the Chemical Company. Such a decision would deprive the City of the right to use the triangular area, but the lines between the other properties could still be fixed by projecting their division lines on land into the river. We shall, therefore, first consider whether the City is estopped, and then decide whether it is proper in this case to go further as prayed in the bill and determine the respective riparian rights of all the parties to the suit.

As pointed out in the full discussion of the subject by the District Judge, (33 F. Supp. 881), the riparian rights of all the parties were derived from the State, as the owner of the beds of navigable streams within its boundaries. The State legislation long ago provided that riparian owners should be entitled to all accretions to the land by the recession of the water, and the exclusive right to make improvements into the water in front of their land. Code, 1939, Article 54, Sections 46, 47 and 48. The charter of the City authorizes it to establish lines in the Patapsco River beyond which no improvements may be made, and to regulate improvements so as to prevent injury to navigation or health. Baltimore City Charter (1938) Art. 1, § 6(8). The charter also provides for a Bureau of Harbors in the Department of Public Works, with the Harbor Engineer at the head, subject to the authority of the Chief Engineer of the City. Charter, Art. 1, § 105. The Harbor Engineer is given charge of the harbor, wharves and navigable waters; Charter, Art. 1, § 115; and no alteration or extension of wharves, bulkheads, or pilings in the river can be made without his consent. Charter, Art. 2, § 558. See also, Art. 15, § 15, Baltimore City Code, 1927.

The facts upon which the claim of estoppel is based must be considered against this legal background. The Chemical Company and the Aluminum Company bought their property in 1916. In 1917, the Chemical Company built its first pier in the river in the area between the side lines of its lot extended into the water. This pier was built by the Chemical Company without permission from any governmental authority; and it occupies a portion of the area later assigned to the Sanford & Brooks Company under the Hammond plan. Such was the situation in 1928 when, pursuant to an Act of the Maryland Legislature of 1927, the Mayor and City Council of Baltimore, by ordinance, authorized a bond issue, and also the acquisition by the Board of Estimates of property for the establishment of an airport, including any necessary riparian and aquatic rights. The land adjoining the Chemical Company was accordingly purchased. Permission of the War Department to fill in the area in front of the firm land of the City to a point beyond the bulkhead and pierhead lines established by the United States was requested in an application which covered a much greater area to the south than that included in the present airport; and the southerly bulkhead line in this application was drawn perpendicularly or nearly so, to the bulkhead and pierhead lines, that is to say, substantially in accordance with the Hammond plan.

Conferences took place between the Mayor and Chief Engineer of Baltimore City on the one hand, and the Aluminum Company, one of the original plaintiffs herein, on the other, in order to quiet an objection of the Aluminum Company to the issuance of the permit. As a result, the objection was withdrawn and the Aluminum Company was assured by the City officials that the north line of its riparian rights would coincide with the southern line of the City's. Permission to make the contemplated improvement was granted by the Government to the City on July 16, 1928. On November 10, 1928, the City applied for and was granted an amended permit reducing the airport to its present dimensions, and fixing the southern riparian boundary thereof, in accordance with the Hammond line. Two additional government permits, showing the same boundaries were granted to the City in 1929 and 1930. It was under these circumstances that the Hammond plan was prepared in 1928 showing the southern boundary of the airport as aforesaid, and also apportioning the riparian rights of all the properties on the shore from Colgate to Bear Creek by divisional lines in each case perpendicular to the bulkhead and pierhead lines. Copies of this plan were sent to all the riparian owners, asking for criticism, but none was received.

This work was done upon the order of the Chief Engineer of Baltimore City, Hammond's superior officer; but no ordinance of the...