Van Ruymbeke v. Patapsco Industrial Park

Smith, J., delivered the opinion of the Court. Since this case involves a suit in ejectment and a patent for submerged lands, it is a relatively “rare bird” in present day judicial proceedings. It also involves claims ⁴⁷² relative to accretion and an argument as to what is proper evidence to establish mesne profits, with the added spice of a contention that the case is now moot because of a settlement between certain of the parties subsequent to judgment. Appellants, Eugene Douglas Dudley Kenneth Van Ruymbeke et al. (the Van Ruymbekes), were plaintiffs.

They are unhappy with the result of the trial in the Circuit Court for Baltimore County, despite the fact that they there prevailed. Since we perceive no errors in the rulings of the trial judge, we shall affirm the judgment. Although the case here was sufficiently complicated to require 27 days of trial before a jury, for the purposes of our decision the facts can be relatively succinctly summarized. The Van Ruymbekes claim under a deed in 1895 to their ancestor, Joseph Van Ruymbeke.

The area in question is partly in Baltimore City and partly in Baltimore County, on the west side of the main stream of the Patapsco River in close proximity to Patapsco Avenue and the Curtis Bay branch of the B. & O. Railroad. Examination of the attached sketch, which the reporter is directed to reproduce, may contribute to a somewhat better understanding of the case. The land lies between the patent of Linthicum’s Comet and the original lines of the Van Ruymbeke land except for 1.1632 acres within the original Van Ruymbeke tract. The disputed land not within the original tract was at one time a cove in the Patapsco.

It is even conceivable that part of it at one time might have been called “wetlands”, a now common term. It therefore stands as a mark that “wetlands” may disappear in areas other than Worcester County. 1 The main question became whether the accretion belonged to the Van Ruymbeke tract or to Linthicum’s Comet, a part of which is now owned by one of the defendant-appellees, Patapsco Industrial Park (Patapsco). The Van Ruymbekes sued (some originally and some by subsequent amendment) Patapsco, MacLeod Construc ⁴⁷³ tioxi Company, Inc. (MacLeod), Canary Island Development Co., Inc. (Canary Island), and what we shall later refer to as the Tyler interests, Refuse Disposal, Inc., Waste Disposal, Inc., and Robb Tyler, Inc. The original declaration claimed damages of $200,000.00, an amount raised by subsequent amendment to $600,000.00. The declaration alleged that the deed contained two adjoining tracts, “one containing 40.97 acres and the other containing 11.75 acres, both binding on the waters of the Patapsco River as said river then existed”.

It claimed that “the said waters of the Patapsco River hav[e] since receded, leaving an area of land containing 15.8055 acres more or less accreted to the land acquired by said Deed * * It asserted that the plaintiffs from the date of that deed had been “in rightful, peaceful and continuous possession of said land conveyed by said Deed and accreted to it until the Defendants ejected the Plaintiffs therefrom as to the portion accreted and 1.1632 acres of the original conveyance * * It is conceded that the disputed land has been filled by various of the defendants. The only relevant plea of defendants Patapsco, MacLeod, and Canary Island was that of not guilty. The pleas of the Tyler interests basically raised the issue of title. The case was submitted to the jury on issues.

By the first issue it was directed to determine whether the entire area was covered by water, the entire area was not covered by water, or part of the area was covered by water and part not so covered. It determined that the entire area was not covered by water. The second issue directed it to determine from what direction the fast land extended, from the Van Ruymbeke shoreline only, the Linthicum’s Comet shoreline only, or from the shorelines of both. It concluded the answer to that question was from the shorelines of both.

Pursuant to the court’s direction, it then drew dotted lines upon a map showing “the maximum advancement of fast land from both Van Ruymbeke and Linthicum’s Comet”. By stipulation of counsel, judgment was entered in favor of the Van Ruymbekes against the defendants Robb Tyler, Inc., and MacLeod for the ⁴⁷⁴ 1.1632 acres within the original Van Ruymbeke conveyance together with damages of $342.63. Upon the jury's verdict, judgment was entered in favor of the Van Ruymbekes against Patapsco, Canary Island, and Waste Disposal, Inc., for certain of the land which had accreted within the cove adjacent to the Van Ruymbeke land. The jury determined the damages relative to that land to be. in the amount of $2,741.00.

By stipulation, $2,055.75 of this was entered as a judgment against Patapsco, Canary Island, and Waste Disposal, Inc., with the remaining $685.25 as a judgment against Patapsco only, apparently, as indicated in the brief of appellees, on the basis of an apportionment resulting from the fact that Patapsco was the only defendant in possession of the premises from January 19, 1967, until the date of the verdict. The appellees here are Patapsco and Canary Island. Subsequent to the Baltimore County Circuit Court decision a settlement was reached between the Van Ruymbekes and the Tyler interests represented by Refuse Disposal, Inc., et al., as a result of which a stipulation was filed that the appeals of those parties be dismissed, that the judgment entered against Robb Tyler, Inc., “be entered as paid and satisfied”, and that the judgment “in the amount of $2,055.75 against Patapsco Industrial Park, Canary Island Development Company and Waste Disposal, Inc., be released as against Waste Disposal, Inc., only.” Patapsco and Canary Island claim this action makes this case moot. Since we find no error on the part of the trial judge, we are not obliged to pass upon this point.

I Linthicum’s Comet is the same land which was before our predecessors in Linthicum v. Coan, 64 Md. 439 , 2 A. 826 (1886). It was a patent to underwater land issued in 1861, prior to the enactment of Chapter 129 of the Acts of 1862 prohibiting under water patents (now Code (1968 Repl. Vol.) Art. 54, § 48). Under Maryland Rule T42 b the plea of not guilty put in issue title to the land.

The Van Ruymbekes would not ⁴⁷⁵ be entitled to recover if the various defendants established an outstanding title “with clearness and precision * * * a title of such nature as to entitle [a] stranger to recover in ejectment against either of the contending parties.” Lannay v. Wilson, 30 Md. 536, 546 (1869), and Hall v. Gittings, 2 H. & J. 112, 125 (1807). The Van Ruymbekes complain that the trial judge erred in even permitting the jury to decide whether any of the disputed land which the jury determined was not covered by water had accreted to Linthicum’s Comet. As they see it, the Linthicum’s Comet patent was an infringement upon their riparian rights. Accordingly, they conclude that any accretion between Linthicum’s Comet and their land must all become their land, and, therefore, the title to none of the accreted land would pass to Linthicum’s Comet.

In other words, their theory is that title to accreted land in this instance could be only from the shore outward, that there could be no title by accretion from the island inward. The Patapsco River here admittedly was navigable. In Maryland navigable water is defined as where the tide ebbs and flows. Wagner v. City of Baltimore, 210 Md. 615 , 124 A. 2d 815 (1956) ; Toy v. Atlantic Etc.

Co., 176 Md. 197 , 4 A. 2d 757 (1939) ; Linthicum v. Shipley, 140 Md. 96 , 116 A. 871 (1922) ; Sollers v. Sollers, 77 Md. 148 , 26 A. 188 (1893) ; and Hess v. Muir, 65 Md. 586 , 5 A. 540 , 6 A. 673 (1886). It is not necessary to a stream’s being navigable in fact that it be capable of carrying large vessels. Toy v. Atlantic Etc. Co., and Gray v. Gray, 178 Md. 566 , 16 A. 2d 166 (1940).

The property owner owns to the mean high water mark. There was no contention here relative to whether the federal navigable-in-fact test was applicable. See footnote in Owen v. Hubbard, 260 Md. 146, 152 , 271 A. 2d 672 (1970), and cases there cited. McHenry notes in the introduction to his work, Ejectment Law of Maryland (1822) : “In the year 1632, Maryland as a Province, ⁴⁷⁶ was granted by Charles the first, King of England, to Lord Baltimore, by Charter constituting him absolute Lord and Proprietary of the Province of Maryland, with power to him, his heirs and assigns to grant any part of the Province, in fee simple, fee tail or otherwise, to be held of the Lord Proprietary, his heirs and assigns.” Id. at 25.

In Bowie v. Western Md. R. R. Ter. Co., 133 Md. 1 , 104 A. 461 (1918), Chief Judge Boyd referred to Browne v. Kennedy, 5 H. & J. 195 (1821), and said: “Whatever the law was elsewhere that case settled it for this State, and has never been overruled or qualified. It was there held that Lord Baltimore, [as] proprietor of Maryland, acquired the same right to dispose of land covered by navigable waters within the Province, under the charter granted to him by the King, as the King had prior to granting the charter — subject to the right of the public to use it for fishing and navigation. The right to grant land covered by navigable waters afterwards became vested in the State — subject to the same restrictions.” Id. at 7.

There is authority in Maryland for the rejection of an underwater patent. In Day v. Day, 22 Md. 530 (1865), there was an application for a patent prior to 1862. The land was underwater. Before the passage of the Act of 1862 the Commissioner of the Land Office granted the patent, overruling the caveat.

The appeal reached our predecessors after the passage of the 1862 act. The Court said: “The Common Law distinction between' navigable waters, and rivers or streams not navigable, is founded on the difference of the rights to which they are respectively subject; the entire property of the former being vested in the ⁴⁷⁷ public, while the latter belong to riparian proprietors, although in some cases subject to a qualified public use. Rivers or streams within the ebb and flow of tide, to high water mark, belong to the public, and in that sense are navigable waters; all the land below high water mark, being as much a part of the jus publicum, as the stream itself. The owners of adjacent ground had no exclusive right to such lands, nor could any exclusive right to their use be acquired, otherwise than by an express grant from the State.

The Act of 1862 was intended to vest these owners of contiguous lands with rights and privileges not recognized by the Common Law, and to that end, the 1st section declares, — -that the proprietor of land bounding on any of the navigable waters of the State, should be entitled to all accretions thereto by the recession of water, whether before or thereafter formed or made, by natural causes or otherwise.” Id. at 537 . The Court went on to hold that the patent should not issue. In Patterson v. Gelston, 23 Md. 432 (1865), after first citing Day , the Court said: “Upon the principles decided by the late Chancellor, in Chapman v. Hoskins, 2 Md. Ch. 485 [(1851)], to which we give our entire approbation, no patent ought to be granted for land so situated, even though the power of the State to grant such patent might be unquestionable, and the Act of 1861-1862 had not been passed.” Id. at 448. In Baltimore & O.R.R. v. Chase, 43 Md. 23 (1875), there was a conflict between riparian owners.

Both grants had come from the State as a result of what were termed the “Confiscation Acts” of 1780 and 1781, the “property [having] belong[ed] to British subjects, and which es ⁴⁷⁸ tate, with certain exceptions and reservations, was divided into lots and sold by commissioners appointed by the State.” The rights of riparian owners were summed up by Judge (later Chief Judge) Alvey: “By the common law it is well settled, that where land lies adjacent or contiguous to a navigable river, in which there is an ebb and flow of the tide, any increase of soil formed by the gradual and imperceptible recession of the waters, or any gain by the gradual and imperceptible formation of what is called alluvion, from the action of the water in washing it against the fast land of the shore, and there becoming fixed as part of the land itself, shall belong to the proprietor of the adjacent or contiguous land. 2 Bh Com. 261; Giraud v. Hughes, 1 G. & J. 249 [(1829)]. And the right to accretion, thus formed, is considered as an interest appurtenant to the principal land, and belonging, in the nature of an incident, to the ownership of that, rather than as something acquired by prescription or possession, in the ordinary legal sense of those terms. 3 Washb. on Real Prop. 59. And in addition to this right by reliction or accretion, the riparian proprietor, whose land is bounded by a navigable river, whether his title extends beyond the dry land or not, has the right of access to the navigable part of the river from the front of his lot, and the right to make a landing, wharf or pier for his own use, or for the use of the public, subject to such general rules and regulations as the Legislature may think proper to prescribe for the protection of the rights of the public, whatever those rights may be. This is well established doctrine by both Federal and State courts.

Dutton v. Strong, 1 Black, 25 ; R. R. Co. v. Schurmeir, 7 Wall. 272 ; Yates v. Milwaukee, 10 Wall. 497 ; East Haven v. Heming ⁴⁷⁹ way, 7 Conn. 186 ; Sherlock v. Bainbridge, 41 Ind. 35 . “These riparian rights, founded on the common law, are property, and are valuable, and while they must be enjoyed in due subjection to the rights of the public, they cannot be arbitrarily or capriciously destroyed or impaired. They are rights of which, when once vested, the owner can only be deprived in accordance with the law of the land, and, if necessary that they be taken for public use, upon due compensation. Yates v. Milwaukee, 10 Wall. 504 . It Is in view of these principles that the present action Is sought to be maintained.

But these principles of the common law, governing the rights of the riparian owner, however well established, are subject to change and modification by the statute law of the State, and by the nature and circumstances of the grant by which the title may have been acquired to the land bounding on the river.” Id. at 34-36 (Emphasis in original). The holding of that case was that the State, having granted one lot with consequent riparian rights, could not by a subsequent grant of another lot cut off those riparian rights. Patapsco sees help here in the case of Melvin v. Schles singer, 138 Md. 337 , 113 A. 875 (1921). The dispute there concerned land patented subsequent to the act of 1862.

The Court distinguished Linthicum v. Goan, held that the patent should not have been issued, and that good title did not exist in the patentee, stating; “The Act was passed with the Intention and for the purpose of enlarging the rights of riparian owners upon navigable waters of this State by giving to them accretions to their lands, to which, without the statute, they would not be entitled, and also by giving to them the exclusive right to make improvements in the waters in ⁴⁸⁰ front of their lands; and while it has been said that it was not intended by the Act to give to such riparian owners the title to the bed of the stream (Goodsell v. Lawson [, 42 Md. 348 (1875) ]); yet by the language of the Act, we do not think the accretions contemplated by it, to which the riparian owners are thereby entitled, are confined to those only that, in their formation, start at the shore and extend outwards to the channel. “As already stated, the riparian owners had the right to such accretions before the passage of the Act when they were imperceptibly formed, and now to say that their rights, enlarged by the statute, go only to the extent of adding thereto accretions which have been more rapidly and suddenly formed, from natural causes or otherwise, extending outward from the shore, would be giving the statute a very narrow construction and one that, we think, should not be adopted. “The Act prohibits the granting of patents that will impair or affect such rights of the riparian owners * * Id. at 343. In Browne v. Kennedy, 5 H. & J. 195 (1821), Judge Buchanan said for the Court: “If one has an estate, through which a private river runs and an island should arise in the river, it will belong to him; so, if he has the property in the soil of a public river, and an island springs up, it will equally belong to him. Again, if in the case of a private river, the bed is left bare by a sudden recess of the water, the relicted land remains the property of the former owner; and so, if one had the property in the soil of a public river, and the bed is left bare by a sudden recess of the water, the relicted land will remain his; because in each case the prop ⁴⁸¹ erty in the soil is in him. And for the same reason all islands, relicted land, and other increase arising in navigable rivers, belong, in England, to the King, here to the State, where the property in the soil has not been appropriated; but where it has'become private property, either by grant or prescription, the same rules do or should apply to it that govern other private property of the same nature.” Id. at 206 .

We regard this case as controlled by Linthicum v. Coan, supra. In that case Linthicum, the plaintiff, was the owner of Linthicum’s Comet. He requested an instruction (refused by the trial court) as follows: “4. That if the jury believe that the increase of the land within the limits of the plaintiff’s locations on the plats was from the edge of the channel or from the river inland, the defendant is not entitled thereto as alluvion, by reason of her being adjacent riparian proprietor; nor were her predecessors in title so entitled as such.” Id. at 442 .

In discussing this and other points our predecessors there said: “If the land in question was formed by gradual accessions extending from the shore into the river, it would belong to the riparian proprietor; and this would be the case notwithstanding the fact, that by the influence of floods and freshets, large deposits of mud may have been made in the bed of the river. These deposits would, of course, materially contribute to the formation of land, and would hasten the time when it would appear above the surface of the water. But the leading characteristic of alluvion is the gradual extension of the land from the shore into the water; and when this is the case, it is irrelevant to consider the causes which, ⁴⁸² operating beneath the surface of the stream, have brought about the result. On the other hand, if land was formed in the river, and extended inwards towards the shore, it would be the property of the plaintiff, with all its accretions.

Under these circumstances, it would have belonged to the State, if the_ patent had not been issued; and the plaintiff has of course, acquired the State’s title. If the plaintiff’s fourth prayer had distinctly left this question to the jury, it ought to have been granted; but it is not clear to us that this was its meaning — There is considerable obscurity in its terms, and it would have perplexed the jury.” Id. at 454 (Emphasis added). The Van Ruymbekes claim the trial judge “permitted the jury to decide that a part of the increase of the land went from the river inland. This instruction was expressly refused in Linthicum v. Coanl” (Emphasis theirs).

The trial judge here said to the jury in pertinent part: “You are instructed as a matter of law that the owners of the Van Ruymbeke property and the owners of the northern lines of Linthicum’s Comet are riparian owners. “Under the law, riparian owners would gain such fast land, if any, that attaches to their holdings by accretion, would lose such fast land, if any, that detaches from their holdings by erosion. ' “Accretion means a gradual or imperceptible building up of the land underwater until it is no longer covered by the ebb and flow of tide to the high water mark. It may occtfr from the deposition of materials by the river itself or from the deposition of materials by drainage courses entering the river from other fast land or both. When and if fast land emerges to connect to existing fast land, it becomes, by opera ⁴⁸³ tion of law, the property of the riparian owner of such existing fast land to the point of its maximum advancement even if that maximum advancement continues until it meets the fast land of another riparian