Sterling v. Sterling

Brune, C. J., delivered the opinion of the Court. This is a controversy between Wellington G. Sterling (also ⁴⁹⁵ known as Guy Sterling) and Jacob K. Sterling (also known as Jake Sterling) regarding the title to an island situated in and surrounded by the waters of Ape’s Hole Creek in Somerset County, Maryland. The appellant, Guy Sterling, claims title through a patent issued by the State of Maryland on April 29, 1955, and the appellee, Jake Sterling, claims title by adverse possession. Suit was instituted by the appellant to enjoin the appellee from trespassing on the island and to force the appellee to remove the buildings and floats which he had constructed there.

The case was tried in the Circuit Court for Somerset County and resulted in a decree dismissing the bill of complaint. This appeal is from that decree. The island in controversy is the “North Island” of the two islands known as “Guy’s Islands” and is located in the navigable waters of Ape’s Hole Creek. It is not a naturally formed one but came into being through the depositing of oyster shells for many years below a crabbing shanty which the appellee had constructed on pilings in a shallow place in the creek.

The primary question in this case is whether or not the appellee has gained title to the locus in quo by adverse possession so as to prevail over the patentee of the State. The facts tending to show adverse possession concern two different subject matters: (1) land under navigable waters and (2) land above water (here an island). Because of the distinction in legal principles affecting the different subjects we shall discuss them separately. 1. Land Under Navigable Waters.

Code (1951), Article 54, Section 48 (as amended by Chapter 47, Acts of 1955), provides: “No patent hereafter issued out of the land office shall impair or affect the rights of riparian proprietors, as explained and declared in Sections 45 and 46: and no patent shall hereafter issue for land covered by navigable waters.” Essentially this same statute has been in effect since 1862. (The 1955 amendment merely corrected the reference to §§ 45 and 46, instead of §§ 46 and 47 erroneously referred to in ⁴⁹⁶ the 1951 Code.) The question of title by adverse possession to lands under navigable waters in the light of this statute has long been settled in Maryland. In the leading case of Sollers v. Sollers, 77 Md. 148, 26 A. 188 , this Court said (at pages 151-152 of 77 Md.) : “Terrapin Cove, therefore, being a tributary of Patuxent River, and within the ebb and flow of the tide, must be regarded as a public river or arm of the sea, the soil of which under the charter 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. The plaintiff in this case does not rely upon such a grant; his only claim is by adverse possession.

But title by possession presumes a grant, and such a presumption cannot be entertained as against one incapable of granting. Casey’s Lessee vs. Inloes, et al., 1 Gill, 497 . No title, therefore, could be acquired by possession as against the State, in the face of the statute, which expressly provides, that no such grant shall be made, * * See also Hodson v. Nelson, 122 Md. 330 , 89 A. 934 , in which the continued ownership of the State of submerged land beneath navigable waters was recognized, where, as in the instant case, a crab house was built on poles driven into a creek bottom. It follows that the appellee cannot gain title by adverse possession as to the land under navigable waters.

Thus, for the appellee to gain title by adverse possession he must have the required possession when the locus in quo is not under navigable waters. 2. Land Above Water (An Island). Article 57, Section 10 of the Code (1951) provides: “Whenever land shall be taken up under a common or special warrant, * * * any person * * *