Wagner v. City of Baltimore, 195

• Decision Date: 30 July 1956
• Docket Number: No. 195,195
• Citation: 124 A.2d 815,210 Md. 615
• Parties: H. Milton WAGNER, Jr., Amelia W. Sutton, Florence C. W. Mulligan, et al. v. CITY OF BALTIMORE.
• Court: Maryland Court of Appeals

Page 615

210 Md. 615

124 A.2d 815

H. Milton WAGNER, Jr., Amelia W. Sutton, Florence C. W Mulligan, et al. v. CITY OF BALTIMORE.

No. 195.

Court of Appeals of Maryland.

July 30, 1956.

William L. Marbury and Frank T. Gray, Baltimore (Piper & Marbury, Baltimore, on the brief), for appellants.

John R. Cicero, Asst. City Sol., Baltimore (Thomas N. Biddison, City Sol., Edwin Harlan, Deputy City Sol. and Lloyd G. McAllister, Asst. City Sol., Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

BRUNE, Chief Judge.

This is a controversy between the City of Baltimore (the 'City') and the successors in interest of the late Harry M. Wagner over the validity of a patent for land described as an island in the Patapsco River in Anne Arundel County. This patent was issued on September 10, 1909 to one John B. Bruns. He and others, who claimed an equitable interest in the island, joined in a deed dated September 23, 1910, by which they conveyed the island known as 'Reed Bird Island' to Wagner. The present suit was instituted by the City to have the patent issued to Bruns and the deed to Wagner set aside and declared null and void. The original bill of complaint was filed on March 28, 1916, the amended bill on May 9th, the answer on June 13th and a replication on September 2, 1916. Thereafter, except for the withdrawal in 1933 of certain exhibits which were subsequently refiled, the case lay dormant until May 28th, 1954. After a substitution of parties defendant the case proceeded and was tried in the Circuit Court for Anne Arundel County and resulted in a decree setting aside the patent and declaring it null and void. The successors in interest of Harry M. Wagner (who may be referred to collectively as the 'Wagners') appeal from that decree.

Reed Bird Island lies at about the point where the Patapsco River flows into the harbor of Baltimore, but much of the harbor east and southeast of that point is still known as the Patapsco River and it continues to be so designated until it flows into Chesapeake Bay some miles away. The Bay, the harbor and the river for some distance above Reed Bird Island are all within the ebb and flow of the tide. The City claims to be the owner of riparian rights pertaining to land bounding on the south side of the Patapsco River in front of which Reed Bird Island grew up as a result of the deposit of mud and silt. The principal question in the case is whether Reed Bird Island was or was not covered by navigable water when the patent for it was issued to Bruns in 1909.

The south shore of the Patapsco River in front of which Reed Bird Island developed has been the southern terminus of a highway bridge or bridges across the Patapsco for nearly a century. In 1856 an Act of the Legislature authorized one Richard Owens Crisp to build a bridge from Ferry Point on the north to some point on the southern shore, which was then a part of Anne Arundel County. Crisp and one Richard Cromwell, Jr. purchased a bridgehead site near where Reed Bird Island now is (though, as least partly as a result of a fill, it is no longer an island). The projected bridge was built and was known as the Light Street Bridge or Long Bridge. In 1878 another Act of the Legislature authorized the City and Anne Arundel County to purchase the bridge, and in 1880 they did so.

On September 15, 1908, a survey of Reed Bird Island was made by the then County Surveyor of Anne Arundel County on a warrant issued from the State Land Office. His survey stated that the land was not covered by navigable water. On September 10, 1909, the patent now in question was issued out of that Office to Bruns. The Light Street Bridge was shown on this survey as crossing Reed Bird Island.

In 1914 the Legislature authorized the State Roads Commission to construct what is now known as the Hanover Street Bridge to replace the old Light Street Bridge. Actual construction began about 1915, but a plan in profile of the proposed bridge was approved by the Chief Engineer of the Commission on August 25, 1914. It was based upon data gathered during a period of a year and a half to two years prior to that date and was prepared under the direction of Mr. John N. Mackall, then Engineering Surveyor for the Commission. The Hanover Street Bridge followed a new route. One section crossed the Middle Branch of the harbor to a point which was then in Baltimore County, another crossed the main channel of the Patapsco to a causeway across and about six feet above Reed Bird Island and a third and last span crossed from Reed Bird Island to the Anne Arundel County shore at Brooklyn. Wagner conveyed to the State Roads Commission for one dollar a right of way across Reed Bird Island, reserving to himself certain rights of access. The profile dated August 25, 1914 shows no part of Reed Bird Island as being above mean low water.

In 1917, after the completion of the Hanover Street bridges, the old Light Street or Long Bridge was removed.

Under the Annexation Act of 1918, Chapter 82, the limits of the City of Baltimore were extended and the whole of the Hanover Street Bridges, and the connecting link which had formerly been in Baltimore County, the area which had formerly been occupied by the Old Light Street Bridge, and the southern bridgehead of both the old and the new bridges were included within the City. Also under this Act, the City acquired title to all highways and bridges in the newly annexed area.

In 1924 the City conveyed to a third party a part of the land which it and Anne Arundel County had acquired from Crisp and Cromwell in 1880, but reserved to itself all riparian rights in and to the Patapsco River pertaining to this property. In 1926 the City acquired additional land in the area bounding on the river and the riparian rights pertaining thereto.

In December, 1940, the then successors to Harry M. Wagner's title to Reed Bird Island executed a deed to the City of a part of the island lying in the bed of what was then known as 'Race Street'. The deed was executed after the Commissioners for Opening Streets awarded damages for the strip in question to the City and the grantors had appealed. The appeal was dismissed and the deed was executed in consideration for the City's agreement to go forward with this suit.

In October, 1951, the City opened an extension of Potee Street (formerly Race Street) across Reed Bird Island. No consideration was paid therefor and apparently no agreement was made with regard thereto. The City and the Wagners have filed a stipulation in this case, one paragraph of which reads as follows: 'No advantage is to be taken by either party by reason of the delay in prosecuting or defending this suit.'

One other fact which it seems appropriate to mention at this point is that in 1900 the Baltimore & Ohio Railroad Company was granted permission by the Corps of Engineers of the U. S. Army to fill in under the bridge of the Railroad's Curtis Bay Branch across the Patapsco, provided that it left a 600 foot opening northwest of Billiken Island. This fill was made in 1900 and at seems to have contributed to the silting up of the river below that point and the building up of both Billiken and Reed Bird Islands.

Billiken Island lay upstream--i. e., to the southwest of Reed Bird Island. It became in part joined to the shore at some time prior to 1920 and was the subject of litigation in Melvin v. Schlessinger, 138 Md. 337, 113 A. 875, in which a patent for this island issued in 1916 was held invalid.

The statute which is controlling as to the principal controversy in the present case is Chapter 129 of the Acts of 1862 the three sections thereby enacted now being codified as Sections 45, 46 and 48 of Article 54 of the Code 1951. (The only amendment to any of these sections was made by Chapter 47 of the Acts of 1955 to correct an error in the numbers of the two earlier sections referred to in Section 48, which apparently occurred as the result of the insertion of what is now Section 47.) This statute has been before this Court in a number of cases. In the present case a great deal of argument has been directed to the meaning of 'navigable waters'--whether the term should be construed as including all waters subject to the ebb and flow of the tide or only such waters as are navigable in fact. For reasons which we shall state below, we do not consider this particular question as necessarily determinative of the case.

The statute itself, as originally enacted, Acts of 1862, Chapter 129, reads as follows, the numbers of the Sections in the 1951 Code being inserted in brackets after the numbers of the corresponding Sections of the Code of 1860, to which these Sections were added:

'Whereas, Doubts are entertained in regard to the extent of the rights of proprietors of land bounding on navigable waters, to accretions to said land, and to extend improvements into said waters; for the purpose of solving such doubts, therefore,

'Section 1. Be it enacted by the General Assembly of Maryland, That article fifty-four of the Code of Public General Laws, be amended by adding thereto the following sections, to wit:

"Thirty-seven .' The proprietor of land bounding on any of the navigable waters of this State, is hereby declared to be entitled to all accretions to said land by the recession of said water, whether heretofore or hereafter formed or made by natural causes or otherwise, in like manner and to like extent as such right may or can be claimed by the proprietor of land bounding on water not navigable.

"Thirty-eight .' The proprietor of land bounding on any of the navigable waters of this State, is hereby declared to be entitled to the exclusive right of making improvements into the waters in front of his said land; such improvements, and other accretions as above provided for, shall pass to the successive owners of the land to which they are attached, as incident to their respective estates. But...