Bowie v. Western Maryland R. R. Terminal Co.

Boyd, C. J., delivered the opinion of the Court. This is an action of ejectment brought by the appellant against the appellee in the Superior Court of Baltimore City for “All that portion of Upton Court in the City of Baltimore which is described as follows, to wit: All that portion of the Herring Pond which lies to the east and north of the ndddle file thereof; from the southeastern outline of that part thereof heretofore on the sixth day of January, in the year eighteen hundred and fifty-nine (by deed now recorded among the Land Records of Baltimore City in Liber Gf. E. S. Ho. 162, folio 413, etc.), conveyed by Alexander Gould to Thomas Winans; southerly and then easterly to and into the northwest branch of the Patapsco River.” A plea of not guilty was filed and the, case was tried before the Court, without a jury. The Court rejected the plaintiff’s prayer and granted the defendant’s third and fourth, which held that the plaintiff was not entitled to recover.

The verdict was accordingly rendered for the defendant, and from a judgment entered thereon this appeal was taken. A tract called “Upton Court,” containing 500 acres, more or less, was patented on the 2nd of August, 1668, by Lord Baltimore to David Pool, which became vested in John Giles by deed on June 18, 1720. John Giles by his will proven in 1725 devised a part of his “dwelling plantation and land adjacent which is between a pond called Herring Pond and the Middle Pond,” etc., to his wife for life, and after her death to his son John. Lie then devised part of that tract to his son John, and the remainder .to his son Jacob.

Before ⁴ John Giles (Sr.) died he had applied for a resurvey of said tract, but he died before it was patented, and on August 12th, 1731, a patent was issued to John Giles (Jr.). The will of John Giles' (Sr.) certainly leaves in grave doubt the question whether he intended to give his son John (whom for convenience we have designated in this opinion John Giles, Jr.) any, or, if some, what part of Herring Pond. The description of what he left to Jacob does not say whether the beginning was to be on the one side or the other of the mouth of Herring Pond, and if it miust therefore begin in the center of the mouth there is nothing to show where the trees at the head of the pond stood—although, of course, the call wo-uld take the line to> the trees. The rest of the will would seem to indicate that John was not to have any part of Herring Pond.

The patent granted to him on the 12th of August, 1731, does not help, because by the deed made by him to Jacob February 28, 1732, he undertook to convey to Jacob what was left him by their father’s will. Then the deed from Gerard Hopkins to Hugh Young, dated Nov. 20, 1778, is very indefinite. It began at a point somewhere “20 feet southeast from a poplar and two oak stumps formerly marked trees,” etc. Apparently, or at least probably, they were the poplar, red oak and “water oak” referred to in the will of John Giles (Sr.) at the head of Herring Pond. The deed then calls to run to’ the Southwest Branch of Patapseo River; thence running and bounding on and with the said Branch by several lines given, and then “south 55 degrees west 11 perches to the mouth of a small branch called the Herring Pond, and running and bounding on and with the said pond west 10 perches,” etc. The courses and distances of twelve other lines are then given, without any calls, and “then by a straight line to the beginning.” Where the beginning was depends upon where the trees were, and then some point from which the trees were “at a distance of 20 feet southeast” would be adopted, but it will be observed that the call is to the mouth of Herring ⁵ Pond “and running and bounding on and with the said ponds.” It is not “to the south side of the mouth of the said Herring Pond thence on and with the said Herring Pond” as in the partition deed between Sarah Hopkins and Elizabeth Webster of September 8, 1768.

Upon what principle of construction or locations the call in the Hopkins-Young deed could be taken to the south side of the mouth of Herring Pond we do not understand. It may or may not have been a mistake, but it may have been that Hopkins had some such idea as the appellant attributes to Gould—that it would be well to hold on to this; pond, although he sold his land abutting on it. Whatever the reason was, if the description set out at length in the record is correct, it did not take the grant to the south side of the mouth of the pond and hence did not convey any of the pond unless the home line—then by a straight line to the beginning—included some portion up about the head. Inasmuch as Gould claimed through John Giles (Jr.) and Hugh Young, if Herring Pond was not conveyed by them or either of them, then Gould did not acquire it.

As the record stands we can not see how the Court below, sitting as a jury, could have rendered a verdict for the plaintiff, and he would have been justified in declaring as a matter of law that under the proper construction of the Hopkins-Young deed the plaintiff could not recover. It is not in the record, but the appellee’s brief states that it did offer a prayer that there was no legally sufficient evidence to entitle the plaintiff to recover and we think that could have been granted. But as the lower Court relied on other grounds which must have assumed that title to the part of Herring Pond in controversy in this case became vested in Alexander Gould, we will further consider the ease with that assumption, which makes it unnecessary to go beyond him. It may be well to add that the appellee does not deny that Gould had title to the land outside of the pond and claims that he conveyed whatever title he had to that pond, which has now become vested in it.

If he never had any title in the bed of the ⁶ pond of course lie can not maintain the action of ejectment for it, and any rights he had as riparian owner have undoubtedly passed out of him. Alexander Gould and wife by deed dated the 24th day of January, 1853, conveyed to J. Washington Tyson two parcels of land which were parts of Upton Court, both of them being on the easterly side of Herring Pond. They were separated by a street 50 feet wide, which the deed says was “laid out by the said Gould for the benefit of the purchasers of his ground fronting thereon.” . The first parcel is described as beginning on the southeast side of that street (which in later deeds is called Gould street) at a point described, “and running thence bounding on the southeast side of said 50 foot street south 46 and 3 quarter degrees west 282 feet to the water of Herring Pond; then running and bounding on the water of Herring Pond the two following courses, viz. south 22 and a quarter—west 562 feet, north 85 degrees east 354 feet to the water of Patapseo River,” etc. The second parcel begins on the northwest side of that street and calls to run, “to the water of Herring Pond, then running and bounding on the water of Herring Pond, south 12 and a half degrees east 120' feet to the northwest side of said 50 feet street.” James E. Eead, trustee, conveyed to William P. Twamley seven different properties, including one that is described as follows: “First all of the bed of Gould street 50 feet wide extending from its northerly terminus at the northeasternmost outline of the property formerly belonging to the estate of Alexander Gould, deceased, to its southerly terminus at the Herring Pond, a distance of about 1,800 feet.” Twamley and wife subsequently conveyed the same property to the appellee, but we do not find the dates of either of those deeds in the record.

The two parcels conveyed to Tyson by the above mentioned deed became vested in Thomas Winans by deed of April 25th, 1859, and subsequently the Winans interest became vested in the appellee. We will first consider the effect of the deed from Gould to Tyson, for the two parcels of land. The appellant contends ⁷ that as the deed from Gould to Winans., dated January 6, 1859, expressly called to run to the margin and then to the center of Herring Pond, etc., it shows that it was not intended to so run by the deed from Gould to Tyson made six years before, but, that would be a violent presumption and inasmuch as Winans purchased the property acquired by Tyson a few months, after he purchased the property from Gould, it is more likely that he thought that the Tyson property extended into the pond, if he thought anything about it. Before Gould sold to- Winans. he had ample front on the pond for that property, after he had sold to Tyson, and it is difficult to see any possible use he could have made of it excepting in front of the property he retained until he sold it to Winans.

The case of Browne v. Kennedy, 5 H. & J. 195 , seems to us to be conclusive of most of the questions. Whatever the law was elsewhere that case settled it for this State, and has never been overruled or qualified. It was there held that Lord Baltimore, a proprietor of Maryland, acquired the same right to dispose of land covered by navigable waters within the Province, under the charter granted to him by the King, as the King had prior to granting the charter—subject to the right of the public to use it for fishing and navigation. The right to grant land covered by navigable waters after-wards became vested in the State—subject to the same retstrictions.

In June, 1700, a tract of land called Todd’s. Range, being a resurvey of Cole’s Harbor, was granted to James Todd. The courses, and distances, included Jones’ Palls and at the time of the grant, and until 1786, the ordinary tides flowed up. Jones’ Falls to a place marked on the plat, and boats went to that place until 1787.

By mesne- conveyances and devises the tract called Todd’s. Range became vested in Charles 'Carroll of Annapolis, who on April 18, 1757, conveyed a part of the tract on the northwest side of Jones’ Falls to William Lyon, which called to run “unto Jones’ Falls, then bounding down and with the said Falls the twelve following courses,” etc. On the 20th of May. ⁸ 1757, said 'Carroll conveyed to Alexander Lawson another part of said'tract, also binding on Jones’ Falls, on the southeast side. That was described as running “unto Jones’ Falls, then bounding upon and with the said Falls the seven following courses,” etc. On January 26, 1795, Charles Carroll of Carrollton, the heir at law of Charles Carroll of Annapolis, made a deed to John Smith, Benjamin Williams and others, by which he conveyed all that part of Todd’s Range which is described as “Beginning for the same at,” etc., “and running 'x" * * to the middle or center of the bed of Jones’ Falls, thence running in the middle or center of said Falls,” etc. The question was whether by the deeds of Charles Carroll of Annapolis, Lyon and Lawson, the grantees, and those claiming under them, were entitled to the land under Jones’ Falls to the middle of the stream, or whether the title remained in Charles Carroll of Annapolis so that his heir could convey it to other parties. Chief Judge Chase filed a separate opinion, in which he held that the plaintiff, who claimed under Lawson, had a right to recover