Mutual Chemical Co. v. Mayor and City Council

• Decision Date: 11 July 1940
• Docket Number: Civ. No. 201.
• Parties: MUTUAL CHEMICAL CO. OF AMERICA et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.
• Court: U.S. District Court — District of Maryland

33 F. Supp. 881

MUTUAL CHEMICAL CO. OF AMERICA et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.

Civ. No. 201.

District Court, D. Maryland.

July 11, 1940.

Mullikin, Stockbridge & Waters, Addison E. Mullikin, and Philip B. Perlman, all of Baltimore, Md., for Mutual Chemical Co. of America.

Marbury, Gosnell & Williams, L. Vernon Miller and William L. Marbury, Jr., all of Baltimore, Md., for Aluminum Ore Co.

Charles C. G. Evans and Allen A. Davis, both of Baltimore, Md., for Mayor and City Council of Baltimore.

Edwin M. Sturtevant and Alfred P. Ramsey, both of Baltimore, Md., for Consolidated Gas, Elec. Light & Power Co.

COLEMAN, District Judge.

This is a suit involving riparian rights along the Patapsco River, Baltimore Harbor, and grows out of the establishment by the Mayor and City Council of Baltimore of a municipal airport.

There are two plaintiffs, the Mutual Chemical Company of America, a New Jersey corporation, whose property adjoins the new airport development, and the Aluminum Ore Company, a Delaware corporation (superseded since the filing of the suit by the Crown Cork & Seal Company, as successor in title), between whose property and that of the Mutual Chemical Company of America lies the property of the various defendants, thirty in number. Jurisdiction of this Court is asserted, and has been accepted, on the ground of diversity of citizenship, all of the original defendants being citizens of States different from those of the original plaintiffs. 28 U.S. C.A. § 41 (1); Hardenbergh v. Ray, 151 U. S. 112, 14 S.Ct. 305, 38 L.Ed. 93; St. Paul Mercury Indemnity Co. v. Cab Co., 303 U. S. 283, at page 295, 58 S.Ct. 586, 82 L.Ed. 845, and cases cited; Camp v. Gress, 250 U.S. 308, 39 S.Ct. 478, 63 L.Ed. 997. Not all, but a number of the defendants, have filed answers, by which they join in the request of the plaintiffs for the adjudication of the riparian rights of all of the interested parties, with the exception of (1) the Mayor and City Council of Baltimore, who in their answer deny the jurisdiction of this Court to adjudicate such rights; and (2) the United States (made a party defendant because owner, for the Department of Agriculture, of one of the parcels of land whose riparian rights are here involved), which also moved to dismiss the bill of complaint as against it, for lack of jurisdiction. Decrees pro confesso have been duly entered against the other parties defendant who were duly summoned, but who failed to answer the complaint.

Preliminary to the hearing on the merits, the aforementioned objections of both the United States and the City of Baltimore were heard. The latter's objections were overruled, this Court concluding that, by established equitable principles, it had jurisdiction of the subject matter of this proceeding, and should determine the relative riparian rights of all the parties hereto and enjoin the impairment, if any, of such rights. The complaint is one of misuse or abuse of municipal administrative authority affecting private rights, and the jurisdictional requirements as to diversity of citizenship being satisfied, the case is clearly one for adjudication in a Federal Court upon the same principle as a similar suit is maintainable in a State Court. It is not inconsistent, as the City contends, with such decisions of the Maryland Court of Appeals as Classen v. Chesapeake Company, 81 Md. 258, 31 A. 808 and Cahill v. Baltimore, 173 Md. 450, 196 A. 305, for this Court to assume jurisdiction. See Baltimore & Ohio R. R. Co. v. Chase, 43 Md. 23; Lancaster v. Kathleen Oil Co., 241 U.S. 551, 36 S.Ct. 711, 60 L.Ed. 1161; Euclid v. Ambler Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016. However, the objections of the United States, on the ground that it could not be required to appear and answer the complaint, because there was no consent on its part to be sued, and that such lack of consent was not supplied by any statutory provision, were sustained. Wood v. Phillips, 4 Cir., 50 F.2d 714. Thereupon, the Government moved, and was permitted, to intervene as a party plaintiff.

Introductory to a statement and consideration of the material facts in the case, relating to the location of the various pieces of property affected by the present suit, and the positions assumed by their owners, it will be well to summarize, first, the evolution of the Maryland law with respect to the rights of riparian owners on navigable waters within the State; and second, the evolution of Federal and State regulation affecting such rights.

The State, since earliest times, has owned the bed of all navigable streams within its boundaries; and in Colonial times, the State freely deeded the title to such beds by patent. After 1729, when Baltimore first became an incorporated town, the sovereign rights of the State were curtailed in favor of the landowner, in so far as his right to accretions and to improvements made into the water. See Kilty Laws of Maryland, Vol. 1, 1745, Chapter IX; Acts of 1862, Chapter 129; Article 54, Maryland Code Ann.1924, Secs. 46, 47 and 48. As a result, while at the present time the State remains the owner of the legal title to all beds of navigable streams within its boundaries, it cannot grant the same away, nor can it take away the right of the owners of lands bordering on navigable waters, to make improvements in front of their shore lines, this right being defined as "a franchise, — a vested right peculiar in its nature, but a quasi property, of which the lot owner cannot be lawfully deprived without his consent." Baltimore & Ohio R. R. Company v. Chase, 43 Md. 23; see also Baltimore v. St. Agnes Hospital, 48 Md. 419; Garitee v. Baltimore, 53 Md. 422; Classen v. Chesapeake Co., 81 Md. 258, 31 A. 808; Cahill v. Baltimore, 173 Md. 450, 196 A. 305.

The rights of riparian owners, as above established under Maryland law, are, however, subject to the power of the Federal Government, under the Constitution, to regulate navigation, and to a similar power vested in the State, in so far as it is concurrent and consistent with the dominant power of the Federal Government.

Thus, the Secretary of War is authorized, when the establishment of harbor lines is essential to the preservation and protection of harbors, to cause such lines to be established "beyond which no piers, wharves, bulkheads, or other works shall be extended or deposits made, except under such regulations as may be prescribed from time to time by him." 33 U.S.C.A. § 404. Pursuant to this authority, in 1917 the Secretary of War established the bulkhead and pierhead lines in the section of Baltimore Harbor with which we are concerned in the present suit. These lines having been so established, in so far as the Federal Government is concerned, shoreowners may, at will, make whatever improvements beyond their shore front they may see fit to make, provided the same do not extend beyond the limits defined by such lines. However, as already stated, such discretion is subject to the further regulatory power of the State of Maryland, which from very early times, the State has exercised. In 1783, Port Wardens were appointed for the City of Baltimore whose assent was first required before any wharf, etc., might be erected. See Kilty Laws of Maryland, Vol. 1, Chapter XXIV. This was followed by appropriate legislation in succeeding years. Kilty Laws of Maryland, Vol. 2, 1796, Chapter LXVIII; Baltimore City Charter 1938, Art. 6 (8), page 15. See City of Baltimore v. White, 2 Gill 444, 458; Wilson's Lessee v. Inloes, 11 Gill & J. 351. Pursuant to this authority, the City, even prior to the establishment of pierhead and bulkhead lines by the Government, fixed what were called Port Warden lines, corresponding with the lines subsequently established by the Federal Government. It was not until 1880, however, that really adequate provision was made for the granting of permits for pier or bulkhead extensions. In that year, the Harbor Board of Baltimore City was authorized to study and submit plans looking to the equitable apportionment of the riparian rights within the then limits of the City of Baltimore, and within four miles therefrom. See Resolution 131, approved May 2, 1880; Ordinance No. 83, approved May 17, 1881; Resolution 139, approved May 5, 1885; Ordinance No. 116, approved June 13, 1894; Ordinance No. 293, approved April 10, 1909; Baltimore City Code 1927, Art. 15, Sec. 11. By the latest of these enactments, "The Pierhead Line of 1900 established for the Patapsco River by act of the Secretary of War and the lines inside the Pierhead Lines in the portions of the Harbor shown on Plats numbered from 1 to 5, signed by the Mayor and the Harbor Engineer under Ordinance No. 116 of 1894, are hereby declared to be the limiting lines beyond which no structures shall extend."

At the present time, the Harbor Engineer of the City of Baltimore is head of the Bureau of Harbors, which is a subdivision of the Department of Public Works, and, as such, has authority to grant all permits for improvements out from the shore line, subject to the control, direction and supervision of the Chief Engineer of Baltimore. Charter and Public Local Laws of Baltimore City, 1938, Section 105, Part I; same, subsection 4; Section 558. By its Charter, the City is given the right, concurrently with that of the Federal Government which, as above pointed out, the Federal Government has exercised, to establish pierhead and bulkhead lines opposite the land involved in the present proceeding, by the establishment of such lines throughout the entire length of the Patapsco River and its tributaries. This authority thus given is as follows: "To provide for the preservation of the navigation of the Patapsco River and tributaries, including the establishment of lines throughout the entire length of said Patapsco River and tributaries, beyond which lines no piers, bulkheads, wharf, pilings, structures, obstructions or extensions of any character...