Linthicum v. Shipley

Adkists, J., delivered the opinion of the Court. This appeal is from an order of the Commissioner of the Land Office, sustaining the caveat of the appellees, and refusing to grant a patent to appellant to part of the bed of a body of water, designated in the surveyor’s certificate as a “pond,” in the Third Election District of Anne Arundel County, containing, in the part alleged to be vacant land, thirty acres. This pond, or lake, or whatever may he its proper designation, is entirely surrounded by lands owned by the caveators and the caveatees, and by one Hancock. The grounds of the caveat are: 1.

That the survey comprehends within its metes and bounds a tract of land or part thereof, covered or overspread with navigable or tide water. 2. That the said survey comprehends within its metes and hounds a tract of land or part of a tract of land, covered with water; that the caveators, who are owners of the land abutting on said water, enjoy riparian rights to the said water and land thereunder. 3. That the survey comprehends within its metes and bounds a tract of land, or part thereof, to which the caveators hold deed of title; and the land is owned by the caveators in fee simple. The fundamental questions to- he answered are: a.

Has the. State title to the locus in qua? b. Is the land covered by navigable water ? ⁹⁸ If the water is navigable then, under the Act of 1862, Code, art. 54, see. 49, a patent may not be issued. If the State has no title the result is the same.

First as to navigability : It is abundantly established by the testimony of all the witnesses that the water covering, the land cannot be used for purposes of commerce or travel; and that is the well established test in most of the states of this country. It. does not seem to have been adopted in this 'State unless the recognition of the general rule in the case of Havre de Grace v. Harlow, 129 Md. 265 , had the effect of overruling earlier decisions of this Court. It was decided in the case of Sollers v. Sollers, 77 Md. 148, that a parcel of land containing about one and a half or two acres of land, called Terrapin Cove, “all of it covered by water, within the ebb and flow of the tide” with a maximum depth of eight feet, with a wire fence extending across its mouth thirty yards wide, said cove being described as “an arm of Mearses’ Cove, which emptied into the Patuxent River through a channel made by John J. Sollers,” was within the inhibition of article 54, section 49, of the Code. It being uncertain from the evidence in that case whether the “channel” thus referred to was an entirely artificial way, or whether, before it was made, the waters of Mearses’ Cove had flowed through a natural outlet to the river, the Court assumed, for the purposes of its ruling, that it was a natural outlet.

Judge P'age, who wrote the opinioxx, quotes from earlier decisions of the Court as follows: “All the soil below high water mark within the limits of the State, where the tide ebbs md, flows, that is the subject of exclusive propriety axid owxxershipi, belongs to the State, subject only to sxxch lawfxxl graxxts of such soil, as may have been heretofore made”; citixig Hess v. Muir, 65 Md. 607 ; Browne v. Kennedy, 5 H. & J. 203 . Continuing, the Court says: “Tex-rapin Cove, therefore beixxg a tributary of the Patuxent Rivex-, axid withixx the ebb and flow of the tide, must be regarded as a public xflver or arm of the sea, the soil of which xxnder the charter ⁹⁹ granted to Lord Baltimore, became vested in the State of Maryland; and so it remains, unless it be included in some grant by the State, made prior to the passage of the Act of 1862.” That case seems to bold that a body of water navigable under tbe common law test comes within the provision of the Act of 1862. If this be the proper interpretation of that decision, the order appealed from must he affirmed, because then the Commissioner was prohibited by the Act of 1862 from granting a patent for the locus in qua, as it appears from the testimony of all the witnesses that there is a channel connecting the so-called pond with the P'atapsco River, said channel being variously estimated at from eight to' twenty feet in width, through which the tide ebbs and flows. However, it does not appear from the report of the Sellers case whether or not “Terrapin Gove” was in fact navigable, that is, susceptible of being used for purposes of commerce or travel; and no