Horner v. Pleasants

Stone, J., delivered the opinion of the Court. The plaintiff below, Horner, agreed in writing to sell to Pleasants, the defendant, his interest, being two undivided thirds in a warehouse and lot, No. 80 Light street, Baltimore, “together with a wharf fronting twenty-five feet in front of said property” for a certain sum, to be paid in cash as soon as the title could be examined and approved. The agreement goes on to say, “the said property is in fee subject to the life estate of James W. Barroll.” The defendant upon examination was dissatisfied with the plaintiff's title to the wharf, and refused to perform his agreement upon the ground that the plaintiff had not a fee in the wharf, although he had in the lot. The only question for the decision of the Court therefore is whether the plaintiff had such a title to the wharf as a Court of equity would compel the defendant to accept.

The warehouse lot, No. 80 on Light street, mentioned in the agreement was one of the lots described in the Acts of 1796, ch. 45, and 1801, ch. 92. It then belonged to a man named Calhoun, and he availing himself of the privileges conferred by those Acts built the wharf. The Act of 1796, ch. 45, and the Act of 1745, ch. 9, have been more than once before this Court, and their construction we think settled in Page vs. Mayor, &c., of Balti ⁴⁷⁷ more, 34 Md., 558 ; Hazlehurst, et al. vs. Mayor, &c., of Baltimore, et al., 37 Md., 199 , and Baltimore & Ohio R. R. Co. vs. Chase, 43 Md., 23 , and we do not deem it necessary to repeat all that was said in those cases. There is no question as to lines or boundaries, and the only matter in dispute is the title to the wharf.

This wharf was made in strict accordance with and under the powers vested in the lot-owners by the Act of 1796, and it is important only in this case to decide what sort of title those who made the wharves acquired. This Court said in Hazlehurst’s Case, 37 Md., 199 , that that question was more difficult than important then to be determined, because if it were conceded that it remained in the State, that fact would not affect the -rights and privileges of the wharf owners. This is a purely statutory grant, and one that the State was fully competent to make. As said in Chase’s Case, 43 Md., 23 , the right of the lot-holders to make these improvements in the water is a franchise or vested right peculiar in its nature, but a quasi property.

This statutory franchise was an incident or apptrrtenance to the lots fronting on the water. It was the object of the State to hold out inducements to such lot-owners to make these improvements for the benefit of the trade and commerce of the city. When made they were declared to be the right of such improvers forever. In order to effect this object it was not necessary, to grant a technical fee in the land covered by the water.

But the State did grant a perpetual use of such land for the purpose of erecting and keeping up these wharves, and this valuable license or franchise, as long as