Garitee v. Mayor of Baltimore

Alvey, J., delivered the opinion of the Court. This is an action on the case brought by the appellant against the appellees to recover damages for an alleged special and particular injury suffered by the appellant from the acts of the appellees in filling up the Patapsco river in front of his, the appellant’s property bounding on said river, and thereby obstructing access to such property by wáter as formerly used and enjoyed. There is little or no dispute in regard to the principal facts of the case. It is conceded that the appellant is, and has been since about the year 1868 or 1869, the owner of two several parcels of land fronting on the Patapsco river, a tidal navigable stream, within four miles of Baltimore city, — one parcel in fee and the other a leasehold.

It also appears that upon the parcel owned in fee there is a large building, which has occasionally been rented' out and used as a place of resort for excursionist and pleasure parties during the summer season ; and that upon the leasehold premises there is an extensive brickyard, and upon both parcels of land there are deposits of valuable brick-clay, and, upon one of them, potter’s clay also. It ⁴³¹ is also shown that there is a wharf, extended out from the leasehold parcel of land, about two hundred feet long, to which boats and vessels of considerable size could come and load and unload, before the obstructions complained of by the appellant. ' The deposits, causing the obstructions complained of, were the mud, sediment and other material, dredged from the bottom of the basin, and in cleaning out Jones’ Falls, in the City of Baltimore, and by the agents and employees of the city, transported in scows to the flats opposite to the property of the appellant and there dumped out in water which, previous to that time, was navigable for steam-boats, steam-tugs, scows and other transports. This dumping commenced in 1874 and continued to the time of bringing this suit; and it is conceded that it has materially obstructed the access by water to the property of the appellant. The manner of making the deposits was to commence as near in to the shore as the tug and scow could be taken, and thence recede out towards the channel’of the river, as the water became too shallow from the deposits to float the tug and loaded scow; and in this way deposits were made along nearly, if not quite, the entire front of the appellant’s property.

The evidence tended to show that by reason of the obstructions thus placed in the previously navigable water in front of this property, the appellant would now have much greater difficulty in sending off his bricks or clay from the premises by boats or scows, than formerly existed; and that the approach to the wharf is much-obstructed by these deposits, and that now, a wharf to answer the same purposes as the one in existence did formerly, would have to be extended out from six hundred to eight hundred yards, and at a considerable cost. It was further shown that the appellant remonstrated from time to time against the making of these deposits. ⁴³² At the close of the appellant’s case, without requiring the defendants to proceed, the Court below instructed the jury that there was no evidence in the cause from which they could find that the plaintiff had sustained injury or damage for whicli he could recover in this action. And whether this instruction was proper, in view of all the facts contained in the record, this Court is now called upon to determine. In giving this instruction, the Court below was required, and so this Court in reviewing that ruling, to assume as established, for the purposes of the decision, all the facts in favor of the appellant which the jury would have been justified in finding from all the evidence before them.

It is conceded, of course, that the appellant is a riparian owner, and that he has all the rights of such ownership; hut it is contended on the part of the appellees that what has been done has been done by competent authority, and though the appellant may have been injured thereby, it is damnum absque injuria, and therefore no action can he maintained. Now, in order to treat intelligibly this broad general proposition, it is necessary to ascertain, in the first place, what are the rights of the appellant as riparian owner, and the extent of those rights; and, in the second place, to what extent, if at all, the appellees were authorized to make the deposits in front of the appellant’s property, with proper legal regard to his rights as riparian owner. I. In defining the exact limits of the rights of the riparian proprietor at the common law, on navigable tidal streams, there is to he found a considerable diversity of opinion among Coiirts of high authority, as well as among the writers upon the subject. In this State, however, those rights have been defined by statute, and secured to the proprietor to an extent beyond what the common law allowed, even according to the largest definition of those rights under that law.

This has been effected by the Act ⁴³³ of 1862, ch. 129. By the first section of that Act, the proprietor of land hounding on any of the navigable waters of this State is declared to be entitled to all accretions to said land by the recession of the water, whether formed by natural causes or otherwise, in like manner and to the like extent as such right may be claimed by the proprietor of land bounding on water not navigable. And by the second section, such proprietor is declared to be entitled to the exclusive right of making improvements into the water in front of his land; and that such improvements and accretions shall pass to the successive owners of the land to which they are attached, as incident to their respective estates; saving only that no such improvement shall be so constructed as to interfere with the navigation of the stream. The third section declares that no patent shall issue by the State for land covered by navigable waters, or to impair or affect the rights of riparian proprietors as by the Act are explained and declared; and this Court has held, in the case of Day vs. Day, 22 Md., 530 , that no patent could issue for lands below high water mark, because it would interfere with those rights.

These rights, thus secured, are valuable; they are property, according to repeated decisions; and of which the owner cannot be deprived without his consent, or by other competent legal means. Dungan vs. City of Baltimore, 5 G. & J., 367 ; Casey vs. Inloes, 1 Gill, 501 ; Balt. & Ohio R. Co. vs. Chase, 43 Md., 23 ; Buccleugh vs. Met. Board of Works, 5 H. L., 418. And whenever those rights are invaded, or their enjoyment obstructed, the owner is entitled to his remedy for redress, as in other cases of the violation of the rights of property. 2.

Such beiug the rights of the appellant as riparian owner,the next inquiry is, what is the power given by law to the City of Baltimore in regard to the cleaning out and the improvement of its harbor, and the deposits of the ⁴³⁴ mud and material removed in making such, improvement? From a very early day in the history of Baltimore, there has been special legislation upon this subject. By the Act of 1783, ch. 24, providing for the appointment of wardens for the port of Baltimore Town, in the tenth section of the Act, the wardens were required to have cleared out and scoured the basin and harbor of the town, and to have removed “ all obstructions and annoyances in and upon the said basin, harbor and river, whether from vessels sunk or any other carrse.” This provision is still in force and is now found in the Code of Public Local Laws, Art. 4, sec. 264. And in the Act of 1796, ch. 68, first chartering the city, among the numerous powers delegated was one, to be found in the ninth section of the Act, to provide for the preservation of the navigation of the basin, and Patapsco river within the limits of the city, and within four miles thereof.

This provision still remains among the powers of the city, as appears from section 793 of Art. 4 of the Code of Pub. Local Laws; and by the next succeeding section of the same Article of the Code, it is declared that “No person, his servant, &c. shall put or throw into the Patapsco river, or any of the navigable branches thereof, any earth, sand, or dirt, or lay out on the beach or shore of said river below common high water mark, any earth, sand or dirt, unless such earth, sand or dirt, he first well secured by stone walls, dovetailed log pens or otherwise, so that no part thereof may wash into said river or the navigable branches thereof.” These provisions manifest the care with which the Legislature has guarded this river and harbor against deposits and obstructions of all kinds, not only the main channels thereof, hut every part of them. If the mud and material dredged from the channels or particular localities might he deposited in other parts of the river where, by the action of the tides, such material ⁴³⁵ would be washed down' the slopes and made to fill up the channels and obstruct navigation, the work of cleaning out and improving would be of but temporary value. All such deposits are prohibited, under a penalty, in any part of the river or harbor, unless they be secured as provided in the statute, so as to prevent their being washed again into the river.

It is contended, however, that all this legislation has been essentially modified by the the Act of 1872, ch. 246. By that Act the City of Baltimore was clothed with full power and authority, to widen and deepen the ship channel leading into the Patapsco river, and between the mouth of the river and the city, and to any point within the limits thereof, and to keep such channel in proper condition in respect to width and depth. This Act makes no reference whatever to any previous legislation; and in order to deduce from it the power claimed by the appellees, it is necessary to maintain not only that the express authority given conferred by implication power to do what is complained of by the appellant, but that this latter Act repealed by implication the 794th section of Art. 4 of the the Public Local Code, heretofore referred to and quoted. Such construction, however, is supported by no authority, and cannot for a moment be maintained.

Repeals by mere implication are never favored by the Courts; the general presumption being against an intention on the part of the Legislature to alter or modify the pre-existing law beyond the express terms or immediate scope of the statute relied on as having the effect of a repeal. If the subsequent Act can be made, by any reasonable construction or intendment, to stand with the previous legislation, that construction will always be adopted. This is a canon of construction which is as well established as any principle of the law. City of Cumberland vs. Magruder, 34 Md., 381 ; William vs. Pritchard, 4 D. & E., 2; Sedg. on St., 123, 125.

Here there is no sort of conflict between the later and ⁴³⁶ previous statutes; the later statute simply conferring additional power in affirmative terms, without at all undertaking to regulate or touch upon the subject-matter of former statutes. The 794th sec. of Art. 4 of the Public Local Code being therefore still in force, the appellees were not only without authority for what they did, but their acts were in plain violation of the terms of the statute. And that being so, all the authorities agree in holding that the obstructions complained of, placed in a public navigable river, without competent authority, would constitute a public nuisance. The public have a right, at common law, to navigate over every part of a common navigable river. 3 Kent Com., 427.

They have a right to all the conveniences which the former state of the river afforded, and they cannot be deprived of this benefit by the exercise of any discretionary power on the part of the city, or its officials or agents, as to the uses to be made of certain parts of the bed of the river, even for the improvement of other parts. .This has been .expressly so decided. Rex vs.