Melvin v. Schlessinger
| Decision Date | 08 April 1921 |
| Docket Number | 47. |
| Citation | 113 A. 875,138 Md. 337 |
| Parties | MELVIN et al. v. SCHLESSINGER. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court of Baltimore City; James P. Gorter, Judge.
Bill by Ridgely P. Melvin and others against Jacob Schlessinger. From decree dismissing the bill, plaintiffs appeal. Decree affirmed.
Clarence A. Tucker, of Baltimore (Knapp, Ulman & Tucker, of Baltimore on the brief), for appellants.
Wilbert L. Merriken and Roger B. Williams, both of Baltimore, for appellee.
Floyd J. Kintner and Marbury, Gosnell & Williams, all of Baltimore amici curiae.
On the 16th day of December, in the year 1916, Wm. N. Crisp, H Emory Gray, and Ridgely P. Melvin obtained a patent for a tract of land therein called "Billikin," containing 8.72 acres bordering upon the Patapsco river, a navigable stream, in Anne Arundel county, Md. On the 14th day of September, 1920, the said patentees, the appellants in this court, entered into an agreement with the appellee, Jacob Schlessinger, to sell to him the said tract of land at and for the sum of $4,500, of which sum $200 were paid prior to the execution of said agreement, and the balance was to be paid in 30 days from that time, when possession of said land was to be given to the purchaser, and a deed thereto was to be executed by them conveying to him a good and marketable title to said property.
The bill filed in this case by the appellants asking for specific performance of the aforesaid contract of sale alleged that they had offered to put appellee in possession of said property, and to execute and deliver to him a deed therefor conveying to him a marketable title thereto upon the payment to them of the balance of the purchase money, and that he had refused to pay the same, alleging in his answer filed to said bill that the patentees were not in possession of said property, and could not convey to him a marketable title to said land, consisting of marsh that had formed in said river because of the riparian rights of the owners of the fast land abutting thereon.
The land in question is at or near the town of Brooklyn, and immediately south of the Baltimore & Ohio Railroad bridge, upon the Curtis Bay branch of its road.
It appears from the evidence that the accretion commenced to form at or near the edge of the channel of the river, and extended toward the shore, and at this time, except for a short distance south of the railroad bridge, the formation has reached the shore, and there, at the southernmost end of the patented land, it is separated from the upland only by a narrow and shallow stream or run, which at this time is not more than 50 feet in width. As stated by some of the witnesses, said stream or run in its upper course is so shallow that at low tide there is no water at all in it, and at such times a person can walk across it from the fast land to the land conveyed by the patent.
The evidence is in conflict as to whether the land described in the patent was, at the time of its issuance, at high tide covered by water.
The learned judge in the court below, however, stated in his decree that on the evidence before him he was of the opinion that the land in question was formed as "an island in the stream of the Patapsco river, a navigable water, *** and gradually extended toward the shore, and that at the time the patent was issued it was not at high tide covered by water," but held that, because of the rights conferred upon the abutting landowners by the provisions of Acts 1862, c. 129, or sections 47, 48, and 49 of article 54 of the Public General Laws of this state, the patentees could not convey unto the purchaser, the appellee, a marketable title thereto and so dismissed the bill.
The second of these sections (section 48) gives to the proprietor of land such as those mentioned in the first section "the exclusive right of making improvements into the waters in front of his land; such improvements and other accretions *** shall pass to the successive owners of the land to which they are attached, as incident to their respective estates," provided such improvements shall not "interfere with the navigation of the stream of water into which" they are made.
In Goodsell v. Lawson, 42 Md. 348, in speaking of the rights of the proprietor of lands bounding upon a navigable stream, this court there said:
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Rayne v. Coulbourne
...or affected by the issuance of a patent is largely to be determined upon the facts and circumstances of each case." Melvin v. Schlessinger, 138 Md. at 343-44, 113 A. 875. Hence, the trial court noted that the Act of materially enlarged the rights 5 of proprietors of land bounding on navigab......