196 A. 305 | Md. | 1938
The owner of property on the southwesterly shore of the northwestern branch of the Patapsco River, part of the harbor of Baltimore City, appeals from a dismissal, on demurrer, of his petition for the writ of mandamus to compel the city officials to issue him a permit to fill in and build a wharf out from one portion of that property. The pierhead line established under city ordinances now in force coincides with the present shore line at the site, and the appellant claims a right to wharf out beyond it.
The petitioner's whole lot, or the only property of his which need now be considered, would, except for two interruptions, be an oblong strip extending westwardly from the southwest shore of the river. The water end of that strip, the southwest shore, cuts diagonally across the north and south lines of the lot. There is no legal restriction on the petitioner's wharfing out from that diagonal line as far into the stream as he proposes, but practical obstacles are alleged. Immediately west of that line, and at the beginning of the north line of the lot, there is an interruption by a narrow strip of water extending into the lot southwesterly, apparently a remnant of a space between wharves of an earlier period. And it is this space which the petitioner desires to fill in completely, and from which he desires to extend into the water of the harbor. Plats exhibited in the case show that the site for the wharf proposed is at what may be described as the inner corner of a bending or concave shore line, and that the Bethlehem Shipbuilding Corporation has its plant adjoining on the west and north. The Shipbuilding property faces downstream and out of the harbor, the petitioner's faces across the stream, and the proposed wharf would jut to some extent across the front of the Shipbuilding property. If Webster Street, leading from the south, were carried through to the water it would cover the site of the wharf. And in the case of Baltimorev. St. Agnes Hospital,
The limit to which he desires to wharf out is that of a line established in 1917 by the federal government, marking the ultimate limits to which wharves might be built into the harbor under the authority of any local laws. Gring v. Ives,
Standing in the way of the petitioner in his suit, therefore, and in the way of compliance by the respondent officials, are the two ordinances of 1881, No. 83, and 1926, No. 779. And the validity of the restrictions imposed by these is attacked as unconstitutional invasions of rights given the petitioner under the general authorization for constructing wharves in front of riparian property. Code, art. 54, secs. 46, 47, and 48. The respondents contend that the proposed wharf would not be in front of the petitioner's property but would extend from the north side of it; that the restrictions in the ordinances cannot be held invalid by reason of anything alleged in the petition, but, even if they might be found so, their validity cannot be litigated on a petition for the writ of mandamus, which is a writ of enforcement only, to require obedience to a clear legal duty.
What in general, or in a particular case, may constitute "front" of land from which under the Code provisions the owner may make improvements, and what, on *455
the other hand, would be the side lines, are questions which may be reserved for further argument in another case, for it is found unnecessary to the decision of this one. Balto. O.R. Co. v.Chase,
The contention that such a dispute cannot be litigated on a petition for the writ of mandamus the court finds not sustained. The limitation of purpose on the writ does not exclude consideration of all or any disputed questions of law. If it did there would seldom be any usefulness in the writ, for official opposition to a citizen's claim would seldom be the result of official obstinacy in the face of an unquestioned requirement of the law. Disputes similar to that in the present case have been adjudicated on petitions for the writ in this state. Goldman v.Crowther,
A right to build a wharf into deep water of such a navigable river as the Patapsco can be derived only from a grant or permission of the State, or of the municipality to which the power has been delegated by the State for local harbor regulation, subject to any limitation imposed by the United States government in protecting navigation. "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 have no exclusive right to such lands, nor could any exclusive right to their use be acquired, otherwise than by express grant from the State." Day v. Day,
None of the lines marked out in the harbor, then, *457
authorize the extension which the petitioner proposes to build from that narrow strip. Consent for it has never been given, and his demand is that consent be enforced by the court, the existing ordinances to the contrary notwithstanding. Citing in support some expressions in opinions of this court, he contends, and this is the chief contention in the case, that as riparian owner he has an absolute, vested right to wharf out, protected under the Constitutions of the United States and of Maryland. "As owners of a lot in the City of Baltimore, fronting on the Patapsco River, the appellees had the right under the provisions of the Act of 1745, ch. 9, sec. 10, to extend or improve out said lot to the limit prescribed by the city authorities, and according to the well settled law of this State, they could not be deprived of this right without their consent." Baltimore v. St. AgnesHospital,
The Act of 1862, ch. 129, secs. 38 and 39, now sections 47 and 48 of article 54 of the Code, cited as having extended the rights of riparian owners by giving them "the exclusive right of making improvements into the waters in front of" their land, excluded others, but did not otherwise enlarge the rights of the riparian owners themselves. They still have only the exclusive right to build out to the extent of permission given for wharves at the site, and the petitioner has not been denied that right. Hess v.Muir,
The petitioner contends further, however, that in the establishment and retention of the line of 1881, contiguous with his shore line at this site, he has been denied equal treatment with the adjacent owner, the Shipbuilding Corporation immediately next to him, and in front of whose property the federal government line of 1917 has been taken as the municipal pierhead line. And this, it is contended, renders retention of the 1881 line a denial of constitutional rights of the petitioner. Const. U.S. Fourteenth Amendment, sec. 1; Declaration of Rights of Md., art. 23. The ordinance of 1926 seems clearly enough a provision for the property occupied by the Shipbuilding Corporation. It was expressly conditioned upon the acquisition by that corporation of properties on its southern side, next the petitioner. It appears from the exhibits in the case that the retained line of 1881 was adopted before the Shipbuilding Corporation acquired the adjacent properties, and it would seem therefore to have been a provision for the properties rather than for the particular owner. No new advantage would accrue to that owner from continuing the disallowance of a wharf from *459 the bend in the shore. The mere fact of an addition to the privileges allowed to the one adjacent owner, while leaving a limitation on those of the other owner, would not of itself support an inference of unconstitutional inequality of treatment under the laws, for another possible, if not probable, explanation would remain in the care of the municipal authorities for the primary interest of navigation. It is alleged that the proposed wharf would not be constructed so as to interfere with navigation in the harbor, but the judgment of the authorities is the determining factor on that; the determination would not be for a court upon allegation and proof before it. It is not alleged that the continuation of the restriction on wharfing out from the bend was due to any motive in the authorities other than that of proper performance of their duties. It is alleged that wharves already built by neighboring owners to the southeast, and an agreement made with the city in settlement of a bulkhead line, present the practical obstacles to extending a wharf from the petitioner's wide front on that side, but the plats filed fail to show any insurmountable difficulty. And whatever the practical problem, it is not to be solved by the court's ordering a permit for the wharf now prohibited, and with it the incurring of any difficulties, to the public or to other private owners, which may have been judged to require keeping the water at the site clear.
Two considerations of first importance need to be stated. The determination of the questions presented by this petition, those of the requirements of navigation in that part of the harbor, and possibly throughout a larger part, and the fair distribution of space into which riparian owners may be permitted to project wharves, is preeminently work for special officials made familiar with the demands of all navigation and all wharfing there, not for the processes of a court of law. And upon the basis of study by such officials, and their recommendations, then the problems are, under the system prevailing with respect to this harbor, problems for legislation. The full legislative power of the State, delegated as it is, has been *460 given expression in the ordinance fixing the restriction of which the petition complains, and those ordinances could not be amended by the judicial power, however a court might be persuaded that amendment should be made. Cases of misuse of power, or unconstitutional exclusion of single owners from privileges generally accorded, may possibly arise, and be found remediable by judicial action; but the present petition does not, in the opinion of the court, present such a case.
Order affirmed, with costs.
