West. Md. T.R. Co. v. Baltimore City

The appellant owns several lots of ground in the city of Baltimore, which bound on the north side of the main branch of the Patapsco river, together with the riparian rights appurtenant thereto. It constructed what are spoken of in the record as a freight pier and a coal pier. The former is about 840 feet long and 120 feet wide and consists of a wooden platform resting upon piles, with a steel shed, one story high for freight purposes. The latter is 729 feet on one side and 700 on the other, and is a wooden structure which also rests upon piles.

They were projected from the bulkhead line into the water to the pierhead line, and the water flows under them. The Patapsco is a navigable river at the place in controversy, in which the tide ebbs and flows. The eastern and *Page 563 southern boundaries of the city are those fixed by the Act of 1816, ch. 209. After describing the northern and eastern boundaries the Act describes the southern boundary as follows: "on the south by a line drawn from the Patapsco river, at the termination of the last mentioned line" (which is the last one on the east), "to the most southern part of Whetstone Point, on the main branch of the Patapsco river, and running with and bounding on the said main branch, excluding the land ceded to the United States on Whetstone Point, for the uses of a fort, to the place called the Ferry Point, being the junction of the said main branch with the middle branch aforesaid," etc. These piers project from the boundary of the city which is included in the description "running with and bounding on the said main branch," and it is conceded that they are for the most part constructed in a portion of the river, which was originally outside of and beyond the limits of the city.

The evidence tends to show that including the boiler-room, engine, machinery, etc., the cost connected with the coal pier within the bulkhead line was about $35,000 and the whole cost of the two piers was about $400,000. The petition for appeal of the appellant states that it is properly assessable for $35,000 in the city, but that the rest is illegal and void because the property on which the assessment is made is not within the city, or within the assessing powers of the Appeal Tax Court. The contention of the appellee is that inasmuch as the piers are attached to and project from the land of the appellant, which borders on this navigable river, and are immovable structures, permanent in their character, they are taxable by the city of Baltimore. It is well settled that the same rules of construction will be applied to the boundaries of a municipality, bordering on navigable or non-navigable water, as will be to a description in a grant to an individual for land so situated.

Fort Smith VanBuren Bridge Co . v. Hawkins, 54 Ark. 509 ; s.c. 12 L.R.A. 487 ; Perkins v. Oxford, 66 Me. 545 ; State, etc., v. Columbia, 27 S.C. 137 , and a number of cases cited in the notes on page 1149 of 20 Am. Eng. Ency. of Law . In Giraud *Page 564 v. Hughes, 1 G. J. 249, our predecessors thus stated the rule as to the rights of proprietors of land on navigable waters; "The principle seems to be well settled, that where a tract of land lies adjacent or contiguous to a navigable river or water, any increase of soil formed by the waters gradually or imperceptibly receding, or any gain by alluvion in the same manner, shall, as a compensation for what it may lose in other respects, belong to the proprietor of the adjacent or contiguous land." In this State where we have so much navigable water, many cases have been before the Courts involving the rights of riparian owners, and as at common law those rights were limited in some important respects statutes were very early passed concerning them.

The Act of 1729, ch. 10, creating Baltimore Town, shows that the General Assembly then had in mind the importance of establishing a town on the Patapsco river, and sec. 10 of the Act of 1745, ch. 69, whereby Baltimore Town and Jones' Town were consolidated, under the name of Baltimore Town, provided that "All improvements, of what kind soever, either wharves, houses or other buildings, that have or shall be made out of the water, or where it usually flows, shall (as an encouragement to such improvers) be forever deemed the right, title and inheritance of such improvers, their heirs and assigns forever." Then the Act of 1796, ch. 68, gave the city powers to provide for the preservation of the navigation of the basin and Patapsco river, within the limits of the city of Baltimore, and four miles thereof," and declared that the powers granted to it should extend to Deep Point "and to all wharves and other grounds heretofore made and extended into the basin of Baltimore Town, or which shall hereafter be made or extended into the same, which shall be considered and taken as part of the said city; and the said corporation may provide for the exercise of such powers in the same manner as if the said wharfs and reclaimed lands were originally candemned as part of the said town." Other Acts were passed and there is now in sec. 6 of the charter of the city full power and authority, "To provide for the preservation of the navigation of the Patapsco river and *Page 565 tributaries, including the establishment of lines outside the limits of said city and within four miles thereof, beyond which no pier, bulkhead or wharf may be built or extended," and other powers and authority over the Patapsco river and branches thereof are given to the city authorities. These and other provisions made by the statutes of this State tend to show that the Legislature never intended that the city of Baltimore should be deprived of the water front, which is so valuable to it, by limiting it to the shore line as it existed in 1816. A plat filed with the record shows that that line is a considerable distance from the present bulkhead line, near the property now before us. The Legislature in 1862 passed an Act which is embraced in secs. 47, 48 and 49 of Art. 54 of the Code, by which it greatly enlarged and defined the rights of proprietors of lands bordering on any of the navigable waters of this State.

Sec. 47 enacted that such a proprietor "shall be entitled to all accretions to said land by the recession of said water, whether heretofore or hereafter formed or made by natural causes or otherwise, in like manner and to like extent as such right may or can be claimed by the proprietor of land binding on water not navigable," and sec. 48 provided that such proprietor "shall be entitled to the exclusive right of making improvements into the waters in front of his said land; such improvements and other accretions as above provided for shall pass to the successive owners of the land to which they are attached, as incident to their respective estates. But no such improvement shall be so made as to interfere with the navigation of the stream of water into which the said improvement is made." Sec. 49 provides that "No patent hereafter issued out of the land office shall impair or affect the rights of riparian proprietors, as explained and declared in the two preceding sections; and no patent shall hereafter issue for land covered by navigable waters." JUDGE ALVEY said, in a concurring opinion in Hess v. Muir, 65 Md. 603 , in speaking of that Act, that "The right given to improve out from the shore into the water was designed, manifestly, to embrace only structural improvements, *Page 566 such as wharfs, piers, warehouses, or the filling out from the shore and reclaiming the land from the inundation of the water ." It is not shown in this case just how the land was formed between the line of 1816 and the present bulkhead line, but the proprietors had the right to fill out from the shore and reclaim the land and it may have been done in that way, or it may have been formed by natural causes. But however that may be, it is certain that the Legislature of 1816 never intended, when it called for the limits of the city as "running with and binding on the said main branch" of the river, that a strip of land so formed should deprive the city of the right to reach the water. It cannot be supposed that, when the Legislature called for the southern lines of the city running with and binding on something, which it was presumed to know might and probably would change, it intended to fix the limits as they existed at that date (1816).

The owners of land whose deeds made similar calls were not limited to the highwater mark of the river, as it then existed, and surely the city should not be. It clear is therefore that the second prayer of the appellant, which undertook to so limit the city, was properly rejected, regardless of the admission made by the appellant in its petition for an appeal above referred to. That brings us to the consideration of the first prayer, which asked the Court to rule that such portions of the property of the appellant as are located beyond the bulkhead line, established by the city, are not subject to taxation by it, or to assessment by the Appeal Tax Court. There can be no doubt that the right of the appellant to construct the piers dependent upon its ownership of the contiguous land, which we have said was within the city limits, and, under sec. 48 above quoted, "such improvements and other accretions as above provided for shall pass to the successive owners of the land to which they are attached, as incident to their respective estates ." Because the appellant owned this land, which was in the city, it had the "exclusive right" to make these improvements, and there would seem therefore to be at least very strong equity in favor of the contention of the city.

If instead of making *Page 567 piers such as those described in this case the appellant had filled out from the shore with earth, stone or other solid material, and reclaimed the land over which the piers are, and had then erected valuable improvements upon them, there would seem to be no doubt that the city limits would have been extended so as to include that property. If that be not so, then if every owner of land bordering on the river, in that neighborhood, reclaimed the land in front of his lot, the city would be cut off from the water, which manifestly was not contemplated by the Legislature. It should not be forgotten that although the riparian owner has the right to reclaim the land, and to make improvements into the water in front of his original land, yet until he does so, the title to the land under the water is in the State, and hence is not subject to taxation. Baltimore County will not therefore be deprived of property on which it has been collecting taxes by treating the limits of Baltimore City as including these piers.

It was decided in Giraud v. Hughes, 1 G. J. 249, and Casey v. Inloes, 1 Gill 430 , "that the right to make improvements in navigable waters granted by the Act of 1745, ch. 9, sec. 10, was a mere privilege of acquiring property by reclaiming it from the water, and that until the improvement was completed, no title was acquired by the adjacent owner," Linthicum v. Coan, 64 Md. 453 . And consequently it was held in Casey v. Inloes , that a grant from the State of land covered by navigable water, bounding the property of a riparian proprietor, who had not made the improvements, "intercepted" his right to afterwards make them. Under the Code, the proprietor is now protected, by prohibiting the issue of a patent, but until he does make the improvements he has no interest in the land under the water on which his land borders, excepting such as the Act of 1862 or some other statute, if any, may give him. In Horner v. Pleasants, 66 Md. 475 , a wharf, built under the Act of 1796, ch. 45, was under consideration, and it was said that it was not necessary for the State to grant a technical fee in the land covered by the water, in order to give the improver the benefits intended by the statute, "But the State did *Page 568 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 used, she can no more annul than she could a patent in fee." In that case a commission was issued for the partition of an intestate's estate, and a warehouse and lot were assigned to an heir, but no express mention was made of a wharf attached thereto in the report of the commissioners.

Reference was, however, made to a deed which was before them, and by which they were governed, conveying the lot to the intestate and which