Mayor of Baltimore v. Baltimore & Philadelphia Steamboat Co.

Schmucker, J., delivered the opinion of the Court. The cross-appeals in this case are from the rulings and inquisition of the Baltimore City Court on appeals taken to that tribunal from an award of the Burnt District Commission of Baltimore City. The award made by the commission was of damages and benefits for the widening of Pratt street eastwardly from its intersection with Light street. Those two streets intersect each other at what is practically a right angle.

The wharf running along the south side of Pratt street abuts on the north side of the navigable waters of the basin, and the wharf running along the east side of Light street abuts on the west side of the same waters. The most important questions with which we have to deal relate to the respective water rights of the city of Baltimore as the owner of Pratt street and wharf and the Baltimore and Philadelphia Steamboat Company as the owner or lessee of a portion of the Light street wharf. All of the land involved in the present controversy including the beds of the two streets, was originally covered by the waters of the basin and has been filled up from the north and ⁴⁸⁸ west by thg proprietors of adjacent'lands under the provisions of the Acts of 1745, ch. 9; 1796, ch. 45; 1801, ch. 92; 1805, ch. 94,. or some of them. These Acts have been construed by this Court in Page v. Baltimore, 34 Md. 558 ; Hazlehurst v. Baltimore, 37 Md. 199 ; Horner v. Pleasants, 66 Md. 475 ; Tome Institute v. Crothers, 87 Md. 584 , and other cases, and it will not .be necessary for us to refer at length to their provisions.

Such portions of them as bear specially upon features of the present case will be noticed hereafter. The portion of Pratt street with which we are concerned was condemned and opened of its present width of 70 feet under the Act of 1817, ch. 71, as a highway and public wharf and substantial damages were awarded and paid to the owners of the land taken under the condemnation. The city thus acqnired the wharf and riparian rights of the former owners of the land abutting on the north side of the basin. The Steamboat Company is the owner or lessee of contiguous lots on the west side of Light street having an aggregate front, extending from Pratt street southerly, of about 151 feet.

As appurtenant to each one of these lots the company also owns the wharf lying opposite it on the east side of Light street. The wharf extends back from the water 14 feet so that the Steamboat Company has on the east side of Light street contiguous wharves 14 feet deep with an aggregate front on the basin of about 151 feet. In front of these wharves the company has, under various permits from the city, constructed out over the water what is practically a continuous pier, projecting from the east side of Light street into the basin eleven and a half feet at its north end, aud one hundred and seven feet ten inches at its south end and having a diagonal water front on its east side of one hundred and eighty-four feet, five inches. The Steamboat Company is also the lessee from the city, at an annual rent of $3,600, of a portion of the wharf on the south side of Pratt street extending 200 feet easterly from tthe corner of Light and Pratt streets.

The general situation at the southeast coiner of Pratt and Light streets being such as we have mentioned the Burnt Dis ⁴⁸⁹ trict Commission, acting under ch. 87 of the Acts of 1904 and Ordinance No. 66 of 1904, of Baltimore City, undertook to add fifty feet to the width of Pratt street easterly from its intersection with Light street. In the process of widening the street the commissioners condemned a strip of land fifty feet wide by three hundred and fifty-eight feet long lying immediately south of the original Pratt street. They divided this strip of land into three lots, designated A B & C, for which they awarded damages. They at the same time assessed benefits upon three other lots, one lying in the basin immediately south of lots A & B, and designated No. 312, the other two lying on the east side of Light street designated Nos. 313 and 314.

All six of these lots were at the time covered by the navigable waters of the basin with the exception of a strip of the Light street wharf 50 feet, one and a half inches long by 14 feet wide, but over Lots 313 and 314 and Lot A were erected the piers, already referred to, owned or leased by the Steamboat Company. A nnmber of plats appear in the record which do not entirely agree in their lines but the following plat, made up from those filed by the commissioners with their return, designates the location and dimensions of the lots in question with sufficient accuracy for the purposes of this opinion. ^{490 491} The commissioners awarded $17,531.25 damages to the city and the Steamboat Company for Lot A, which includes the strip fifty feet, orie and a half inches long by fourteen feet wide of Light street wharf owned by the company together with the pier built out from it into the basin and also the pier along the south side of Pratt street leased by the company from the city. They awarded $30,000 damages to the city for Lot B, which includes enough of the basin to make in connection with Lot A sufficient area to widen Pratt street fifty feet for the distance of two hundred and eight feet, seven inches easterly from Light street. They awarded $15,000 damages to the State of Maryland for Lot C, lying east of Lots A & B and including enough of the basin to extend the widening of Pratt street for an additional one hundred and fifty feet easterly.

They assessed $5 benefits to the city on Lot No. 312 lying in the basin immediately south of Lot B, and they assessed $658 and $885, respectively, benefits to the SteamboaCCompany on Lots Nos. 313 and 314, which lie in succession along the east side of Light street south of Lot A, and include a large portion of the wharf and pier of the Steamboat Company there being. Both the city and'the Steamboat Company excepted to the awards and appealed to the Baltimore City Court, where the case was tried without a j ury before Stockbridge, J., who by-his inquisition filed in that Court allowed damages to the Steamboat Company for the value of the condemned portion of its Light street wharf and the improvements thereon and the loss of its right to moor and dock vessels on any part of the fifty feet taken for the widening of the street and the deprivation of the right of access by water over those fifty feet, and the extinquishment of its lease of the Pratt street wharf and the improvements thereon, damages aggregatieg $28,162.50, and assessed nothing against it for benefits to accrue to the portion of its property not taken under the condemnation. He allowed the city only the nominal damages of $5, because he held that it will have the same wharfage and riparian rights to the south side of the widened Pratt street and the water in ⁴⁹² front of it that it now has to the south side of the present street and the water in front of it. The city and the Steamboat Company thereupon took the present cross-appeals from the rulings and inquisition of the City Court.

At the hearing in the Court below the Steamboat Company offered eight prayers of which the ist, 2nd, 4th, 5th and 7th were granted and the other three were rejected. ' The city offered no prayers. As both sides appealed we will review all of the rulings on the prayers, and in so doing will dispose of all of the questions presented by the record. The first prayer simply asserts that the owners of the lots on the west side of Light street who filled out their land to the east side of that street according to the provisions of the Acts of 1796, 1801 and 1805, acquired thereby the right to maintain wharves and load and unload vessels from and on them and to moor vessels to them and to dock them; in the waters of the basin on the east, to their respective wharves. As this prayer does not claim for the owners of the wharves any sole, exclusive or superior right to the use and occupancy of the waters of the basin, it was properly granted under the authority of the cases of Page, Hazelhurst and Horner, supra, in which it was held that although that the owners who had so filled out their land did not thereby acquire a technical fee in it they did acquire a perpetual use of it for the purpose of erecting and maintaining the wharves, which is defined in Horner’s case as a license or franchise, which, so long as it is used, the State can no more annul than she could a patent in fee.

The second prayer asserts that the Steamboat Company is the owner of the “property and rights” conveyed to it by certain enumerated deeds under which it claims title to its Light street lots and wharves. That prayer was properly granted. The fourth prayer is really a corollary to the second and asserts that neither the owners of the lots on the west side of Light street who had filled them out in accordance with the Acts of Assembly mentioned, nor their successors in title could be deprived of their wharfage rights and privileges, without their consent, by the State or the city except by condem ⁴⁹³ nation under the power of eminent domain. That prayer also was properly granted.

The seventh prayer declares that the Steamboat Company is not estopped, by the lease from the city to it of the Pratt street wharf, from asserting in this case any right it may have to moor and dock vessels in the dock lying south of that wharf. We think that prayer was properly granted. This is not a case between landlord and tenant as such nor one calling in question, in behalf of one of them against the other, their respective rights under their lease. It is a proceeding in ran to condemn all property rights of every kind in the area necessary to be taken for widening Pratt street.

The Steamboat Company claims certain rights in this property, i. e., in the basin, as incident to its ownership of the Light street wharf and other rights as lessee of the Pratt street wharf. All that the prayer does is to say that the company is not estopped by its lease of the Pratt street wharf from asserting any rights in the waters of the basin which it may have as an incident of its ownership of the Light street wharf. The fifth prayer asserts that the Steamboat Company is entitled to the use of such wharves and the land under them as the Court shall find that it extended into the basin under permits from the city, subject to the limitations or restrictions contained in the permits or imposed by law. The propositions embodied in this prayer are, when fully stated and properly understood, correct.

Any right of the Steamboat Company to extend piers into ‘.the basin in front of its Light street wharves under permits from the city is of course subject to the limitations and restrictions, if any, imposed by the permit under which the right is claimed. It is equally clear that all such rights are subject to the limitations and restrictions imposed by law including those imposed by law upon the city’s power to grant the permit or inherent in the nature of its title to the navigable waters into or over which the structure designated in the permit is intended to be built. The title and power of the city in relation to such waters being derived from the State cannot be greater than those of the State itself. It is well ⁴⁹⁴ settled.that, although the State is said to be the owner of the navigable waters within its boundaries, it holds them, not absolutely, but as a .quasi trustee for the public benefit and to support the rights of navigation and fishery to which the entire public are entitled therein, and, although the State can make a valid grant of privileges or interests in or over those waters, such grants are subject to the public rights of navigation and fishery.

Browne v. Kennedy, 5 H. & J. 196 ; Wilson v. Inloes, 11 G. & J. 359 ; Phipps v. State, 22 Md. 389 ; Dundalk, &c., R. R. Co. v. Smith, 97 Md. 180 ; Woodworth v. N. Bloomfield & Co., 18 F. R. 778; Newark Aqueduct Board v. Passaic, 45 N. J. Eq. 393. It is a familiar principle of the common law, which was recognized and in part relied on'by us in the Dundalk R. R. Co’s, case, that in a grant from the State nothing passes by implication but the grantee takes only that which is given him by express terms. For a long time previous to the granting of the permits referred to in this prayer there had been a public wharf along the south side of Pratt street east of Light street to which vessels navigating the basin were entitled to be moored and docked under such reasonable regulations as the city might from time to time adopt. There is no express provision in the permits in question indicating that it was the intention of the city in granting them to confer upon the grantee an interest in the waters of the basin inconsistent with or superior to the right of the public to the use of the basin in front of the Pratt street wharf, and no such intention should be implied from the grant.

The fact appearing from the record that the city from time to time made leases from year to year of portions of the Pratt street wharf to individuals or corporations does not alter the principles applicable to the situation. We will now turn our attention to the rejected prayers. The third prayer asserts the proposition that any rights which the city has by virtue of the condemnation of Pratt street as a public street and wharf under the Act of 1817 to moor and dock vessels along the south side of that street easterly from Light street are subordináte to the rights of the Steamboat ⁴⁹⁵ Company as the successor of the owners of the lots mentioned in the first prayer, and that the city can only use its rights in that connection to such an extent as will not encroach upon or interrupt the user of the rights of the cpmpany. That prayer was properly rejected.

The record affords no sufficient foundation on which to base the proposition asserted in the prayer. The contention of the Steamboat Company is that by the Acts of 1796, 1801 and 1805, which authorized the extension of the lots at the west end of the basin, eastwardly to the east side of Light street, the State undertook to grant to its predecessors in title exclusive “wharfage rights and privileges” in the navigable waters of the basin lying in front of the east side of Light street, and that therefore when the State or its agent the city thereafter in 1817, by the condemnation of Pratt street and wharf, acquired the riparian land to the north of those waters it was estopped from claiming any rights superior to or inconsistent with those granted by the earlier. Acts of 1796,1801 and 1805. That contention involves the concession that the Legislature by the passage of the last mentioned Acts intended to grant to the owners of the Light street lots rights in the basin superior to or exclusive of those vested in the owners of the land bounding those waters on the north.

In order to ascertain the true intention of the Legislature in the passage of those Acts we must look to the then existing condition and situation of the property and rights upon which they were intended to operate and the general principles of law applicable to the field of legislation to which the Acts belong. When those Acts were passed the Act of 1745, authorizing the owners of land fronting on the basin to extend their land into' the water by filling in or improving out, was in full force. This Court in construing that Act in B. & O. R. R. v. Chase, 43 Md. 36 , said that it “was intended to encourage improvements on the water fronts of the harbor of Baltimore, for the convenience and accommodation of commerce; and as an inducement, the State agreed with and did thereby surrender to those .improving, as contemplated by the Act, all its right as sover ⁴⁹⁶ eign in the shore of the river covered by such improvements below the ordinary water mark and declared that such improvements should be forever deemed the right, title and inheritance of such improvers, their heirs and assigns forever. By the construction of this Act, as settled by the decisions of our predecessors, the right of the lot owner fronting on the water to extend his lot or improve out to the limit prescribed by the authorities of the city is a franchise, a vested right peculiar in its nature but a quasi property of which the lot owner cannot be deprived without his consent.” It appears from a copy,