Gray v. Gray

Mitchell, J., delivered the opinion of the Court. On the 28th day of November, 1938, upon the application of James P. Gray and others, heirs at law of Cornelius Gray, late of Dorchester County, a “special ⁵⁶⁸ warrant of re-survey of holding and possession” was issued by the Commissioner of the Land Office, directed to the county surveyor of that county. In substance, the special warrant recited that the applicants for the same, or those under whom they claimed for the last twenty years, had set forth in their application that they were entitled to the fee in a certain tract or parcel of land located in the eighteenth election district of Dorchester County, adjacent to the lands of certain named owners thereof, “which they desired to reduce into one entire tract, without adding any contiguous vacancy,” and, accordingly, the surveyor to whom it was addressed was directed to re-survey on behalf of the applicants the land aforesaid, according to their holdings and possessions, and the holdings and possessions of those under whom they claimed. In pursuance of the authority of said warrant, a survey of the property mentioned therein was duly made by the surveyor, who, as appears from the record, on May 22nd, 1939, filed in the office of the Land Commissioner a certificate of survey and plat, showing the location of a tract of 321 acres of land, designated as “East Marsh Re-Survey.” The record shows that on October 3rd, 1939, David H. Gray, the appellee, by letter addressed to the Commissioner and received by the latter on October 5th, 1939, filed a caveat in the proceedings, in which it was set forth that the caveator understood from the surveyor that said survey included practically all of a tract of land called “Gray’s Discovery,” and that it was the further understanding of the caveator that it also embraced land alleged to be vacant.

On November 8th, 1939, the appellants answered the caveat, setting forth that no part of the land called “Gray’s Discovery” was included in the survey under the warrant, and further that the same did not embrace land other than that which under the laws of the state the respondents were entitled to include therein. Following the answer, an amended caveat was filed by the appellee, in which objection was made to the ⁵⁶⁹ granting of a patent for the land described in the aforegoing survey, and in which, in substance, the specific grounds upon which the original caveat was filed were set forth as follows: (1) Because said “East Marsh Re-Survey” included therein tracts or parts of tracts of land, among which was a tract called “Gray’s Discovery” which was owned by the caveator; and further that it included other tracts of land known as “Gray’s Luck,” “Gray’s Possession” and “Moore’s Desire,” respectively, or portions thereof; all of which said lands, together with other parcels of land included in said re-survey, prior to the application for the land for which the patent was sought, had been previously patented by the State; (2) because the application and return of the surveyor embraced vacant land for which the caveatees sought to obtain a patent; (3) because said application and return embraced navigable waters, and (4) because they embraced land which was not owned in fee simple by the caveatees, and to which they were not entitled under the provisions of section 29 of article 54 of the Code of Public General Laws of this State. It does not appear from the record that the amended caveat was formally answered by the caveatees, but it nevertheless does appear that the respective parties, represented by counsel, treated the questions involved in this case as being those raised by the amended caveat, and in consequence the voluminous testimony before us is directed to that end. Briefly, the testimony submitted by the caveatees tends to establish the fact that in 1917 Cornelius Gray, their father, died intestate, leaving surviving him his widow and seven children, who were his sole heirs at law; that at the time of his death the said Cornelius Gray owned a one-half undivided interest in approximately 1220 acres of marsh land located in Dorchester County, the remaining half interest being then owned by J. Fred Dunn; that upon the death of the said Dunn the entire marsh land was sold under appropriate chancery proceedings to the ⁵⁷⁰ widow and children aforesaid, and that the said widow subsequently died intestate, leaving as her sole heirs at law the aforesaid seven children, who are the caveatees in the instant case.

The testimony further tends to show that the above land is covered by marsh; that for many years it has been used for the purpose of trapping muskrats, and that, during the period of the successive ownerships above indicated, for convenience in trapping the same, it was divided into three sections designated, respectively, as “North Marsh,” embracing certain tracts of land, the patent names of which were “McAllister’s Desire,” “Gray’s Possession,” Gray’s Preference,” or by whatever other names the said constituent tracts might be known, containing approximately 320 acres; “East Marsh,” containing approximately 300 acres, embracing patented tracts known as “Moore’s Desire,” “Gray’s Luck” and “Gray’s Possession,” or by whatever other names the same might be known, and “South Marsh,” containing approximately 600 acres, embracing patented tracts known by various names, among them being a part of the above mentioned land known as “Gray’s Possessions.” All of the above subdivisions appear to be contiguous, and it further appears that the entire tract is surrounded by other marsh lands belonging to various owners who use the same for like purposes, namely, that of trapping muskrats. Among these adjacent owners is David Gray, the appellee, who together with his son, Rodney L. Gray, claim title to a tract of land containing 17 ty, acres commonly called and known as “Gray’s Discovery,” which testimony tends to show was originally patented to Thomas Gray, by virtue of a patent issued May 24, 1792, and which, through transition of title, having become vested in Louisanna D. Covington, was conveyed by the said Louisanna D. Covington andt Milton Covington, her husband, to the said David H. and Rodney L. Gray, by deed dated the 4th day of February, 1922, duly recorded among the Land Records of Dorchester County. The subdivision of land belonging to the caveatees, appearing to be adjacent to the land of the caveator, is ⁵⁷¹ embraced in that part of the entire holdings of the caveatees designated as “East Marsh.” Specifically, the subject of controversy in the case before us, as between the parties to the same, involves the division line between the originally patented tract known as “Gray’s Discovery,” the ownership and possession of which is claimed by the caveator, and the originally patented tract known as “Gray’s Luck,” the ownership and possession of which is claimed by the caveatees. And in this connection it is conceded that, in relocating the lines dividing the respective tracts known as “Gray’s Luck” and “Gray’s Discovery,” as called for in the respective patents of the above tracts, the certificate of survey and plat returned to the Land Commissioner establishes the fact that said lines do not coincide.

Furthermore, the above papers definitely show that, as established by the pretensions of the caveatees, based upon their alleged adverse holdings, the dividing line between the above named tracts excludes from “Gray’s Discovery” approximately 12% acres, and embraces the same in the re-survey of “East Marsh.” The case now under consideration involves two appeals, the first being from an order of the Land Commissioner passed on the 23rd day of February, 1940, sustaining the caveat, with costs to the caveator; and the second being from an order of said Commissioner, passed on the 20th day of March, 1940, overruling a motion of the caveatees for leave to amend the certificate of survey of “East Marsh Re-Survey,” so as to exclude therefrom “any part of ‘Gray’s Discovery’ included within the survey of ‘East Marsh Re-Survey’ ” as returned in the surveyor’s certificate filed with the Commissioner. These appeals will now be considered. Section 29 of article 54 of the Code of Public General Laws provides as follows: “Any person entitled to lands in fee simple and being in possession thereof and not desiring to add contiguous vacancy may obtain a warrant of re-survey from the land office, and it shall not be necessary in such warrant to state the name of the tract ⁵⁷² or tracts of land to be re-surveyed; and the surveyor of the county to whom such warrant shall be directed shall survey the lands to be affected thereby according to the possession and holding of the person obtaining such warrant, or those under whom he claims for the last twenty years, and shall take proof of such possession and holding.” It is the contention of the caveatees that, under the provisions of the above section, whether their title is supported by private grants, by proof of adverse possession, or whether their application for a patent embraces land covered by former patents from the State, upon proof that they are entitled to lands applied for, in fee simple, they are entitled to a warrant of re-survey and the issuance of a patent, provided no contiguous vacancy is applied for or is embraced in the same, and provided also that all other requirements of law relating to the granting of patents in this state have been complied with. For the reasons set forth in the amended caveat, that contention is denied by the caveator, and accordingly the testimony adduced by the contending parties is directed, respectively, along these diverging lines.

Nothwithstanding the existence of wide conflict between the parties upon questions tending to establish their respective exclusive holdings, it seems quite clear from the testimony as a whole that the lands of both thg caveator and the caveatees, in connection with lands held by other owners who are not involved in this suit, form a vast area covered by marsh, which for many years has been used by trappers and hunters. The testimony is conclusive that a greater part of the area is boggy and is traversed by guts characteristic of lands of the above type. It is also shown that it is traversed by a stream which gradually increases in magnitude as it flows toward a common outlet, and eventually enters the Nanticoke River. Much of the testimony is directed to the end that the above stream is navigable within the area for which the instant patent is applied, and there is evidence tending to show that the tide ebbs and flows in the ⁵⁷³ section of the stream which passes through the controversial area, as well as in sections of the stream both above and below that area.

The width of the stream at some points is not over eighteen or twenty feet; its depth ranges from two and one half to three feet, and it is established that, at one point along its course, a dam has been maintained so as to coniine fresh water from upper territories within a trapping area, and that at another point a county road bridge is erected across the stream, without provision for under-passage by boats. On the other hand, it is shown that from time to time the stream has been traversed along its lower section in small motor boats, and that, along its entire course, trappers and others have traversed it in boats of such weights as to enable the navigator to lift the craft above or around the dam. It also appears that the bridge crosses the northern section of the stream, and the dam crosses the southern section thereof, at points, respectively, above, and nearly below, the outlines of the land embraced in the re-survey upon the application for the instant patent is predicated. Moreover, the plat filed with the return to the Commissioner indicates that sections of the stream embraced within the area of the patent now applied for, as well as sections located further toward the source of the stream and beyond the outlines of the patent applied for, assume the form of lakes or ponds varying