| U.S. Circuit Court for the District of Maryland | Feb 4, 1890
This is an action of ejectment originally instituted in the circuit court for Harford county, Md. The defendant, William Hamlin, is the agent of the United States, and upon his filing a petition in that court, alleging that tho title to the premises was in the United States, and that he was in possession as its employe, and that the United States claimed by a paramount title under the constitution and laws of the United States, the ease was removed to this court. The premises
In 1879 the plaintiff, Major Ferguson, had purchased the island, except the portion deeded to the United States. He was then assistant to Prof. Baird; the United States fish commissioner. • It was thought that •the place wasAdesirablemhefor the-propagation.of fish, and it began to 'be used, -with Ferguson’s assent, by the fish commissioner for that purpose. On June 29, 1883, a formal lease of the island was executed by Major Ferguson to Commissioner Baird, as the agent ef the United States, at one dollar a year, renewable from, year to year, for three years, for ' usé in catching and propagating fish. The lessee agreed not to use or
Plaintiff’s Prayers. (1) The plaintiffs first prayer asks the court to rule that if the land declared for, and not embraced within the disclaimer, was made hy the United States for the use of the fish commissioner, while let into possession of the island as the tenant of the plaintiff, then the plaintiff is entitled to recover. (2) The plaintiff’s second prayer asks the court to exclude all the testimony offered by the defendant (under exception) tending in any way to impeach the title of the plaintiff to the island.
.Defendant’s Prayers. (1) The defendant’s first prayer asks the court to rule that the plaintiff has proved no title to the loom in quo sufficient to entitle him to recover. (2) The defendant’s second prayer asks the court to rule that the riparian rights granted by the Maryland Code (article 54, §§ 44, 45) to owners of land hounding on navigable waters of Maryland give the plaintiff no right of possession or title to the loans in quo, provided it is found to be outside the lines defined by the commissioners of 1835. (3) Thedefend-dant’s third prayer asks the court to rule that the Maryland Code (Id. §§ 44, 45) gives no title or right of possession to the plaintiff, provided the court finds that the leased premises was originally an artificial island, constructed by the deposit of stone and earth on a shoal in the waters of the Chesapeake, and provided the court finds the locus in quo was constructed by the United States on the bottom of said waters, outside of ordinary high-water mark of the fast land, as it existed at the date of the lease. (4) The defendant’s fourth
It is urged by counsel for tbe United States that the fact that Edmon-son’s island was originally an artificially made island of itself materially affects the riparian rights of the plaintiff; but, in our opinion, whatever may be the general rule with respect to artificially made islands in navigable waters, after the state by its patent recognized this island as land, and granted it to the patentees as so much land, it became, except as restricted by legislation, like any other land or natural island granted out by the state to private owners. Starting with this proposition, it may be convenient to consider, first, what would be the rights of the parties if the title of the plaintiff was not affected by the act of 1835, c. 99, and the return of the commissioners thereunder limiting the area to which the island might be extended to less than the area of the original grant. In that case, being a riparian owner of land bounding on navigable water, (independently of the fact that his patent covered adjacent land covered by water,) the plaintiff is declared by the Maryland law first enacted in 1862, and now article 54, §§ 44, 45, Code, to be entitled to all accretions to his land by recession of the water, whether made by natural causes or otherwise, in like manner and to like extent as such right might be claimed by the proprietor of land bounding on water not navigable, and as such proprietor he is also declared to be entitled to the exclusive right of making improvements into the waters in front of his land, such improvements and other accretions to pass to successive owners of the land to which they are attached. “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.” And it is declared that no patent thereafter issued shall impair or affect the riparian rights of such proprietors, and that thereafter no patent shall issue for land -covered by navigable waters. Goodsell v. Lawson, 42 Md. 371; Garitee v. Mayor, etc., 53 Md. 432, 433.
In our opinion, therefore, if the restrictive act of 1835 had never been enacted, there could be no doubt but that the improvements made out into the water from the island, if made by a private person, would belong to the plaintiff, and the defense of the United States to this action would have to rest entirely upon its being able to establish that the exclusive possession of the premises in dispute is required to protect and -maintain the light-house. • It does appear from the testimony that there is at times a considerable flow of ice from the Susquehanna river against the north side of the island, and that after the riprapping and part of the 'island on that side had been removed by the United States, and the fish-basin constructed where the riprapping had been, the fish-basins and in.closing cribs did suffer; from the ice and floods, and that the present
But these structures, although built under the direction of the engineers in charge of the improvement of the navigable channels of the Chesapeake, and of the officials in charge of the maintenance of the lighthouse, were constructed primarily to facilitate the purposes of the fish commission, and so far as they are now used, in the sense of being occupied and held in exclusive possession, they are used solely by the fish commission. The houses removed from the other portions of the island at the termination of the lease, and re-erected on this new-made area, have no use whatever in connection ivith the light-house, or with commerce or navigation. It was held by this court in the Hawkins Point Light-House Case, 39 Fed. Rep. 77, that the United States might erect a necessary light-house in a navigable stream in front of the land of a riparian proprietor who had not only the rights which the Maryland law of 1862 had given him as riparian proprietor, but had also a patent from the state for the submerged land itself, without making him any compensation. But it is a necessary qualification of that rule that the United States can exclude the owner, without making him compensation, to no greater extent than is reasonably necessary for the maintenance of the light-house; and that the United States would have no right to forbid such an owner from making any use of the premises which did not interfere with the easement asserted by it for the public use of commerce and navigation.
If, for example, the riparian owner had, under the state law, an exclusive right to plant and take oysters in the waters surrounding the light-house, he could do so, unless it was injurious to the light-house structure, or interfered with navigation; but the United States could not exclude him from that privilege upon the ground that it interfered with the light-house or navigation, and grant the same privilege to the fish commission. So in this case, if these structures are such that, if made by any private person, they would become appurtenant to the island, and belong to the owner of it, if the United States justifies the construction of them on the ground that they are aids to commerce and navigation, it can only exclude the owner of the island from them to the extent required by the use which is relied upon as the justification of their construction. After erecting the liglit-house upon the parcel 45 feet square, to which the United States acquired title by deed, it might have discovered that the safety of the light-house required that a heavy wall should be built out in the water so as to surround the island. If such, a wall had been built, could it be contended that the United States might say to the owner of the land, “You must not make any use of the wall for landing or drawing seines because it is injurious to the structure,” and then proceed to grant that privilege to the fish commission.
It seems to us that, if this was a case of ordinary riparian ownership, the owner of the island would be entitled to the additions to the island.
“All islands, relicted lands, 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. It is subject to the same law of descents, and liable to be transferred by the same mode and form of conveyance, and is subject to none of the rules applicable to lands not granted or distributed out. ”
See, also, Giraud’s Lessee v. Hughes, 1 Gill & J. 249.
It would appear that, as a fact, the extensions made to the island do not interfere with navigation as they have been constructed by those having charge of the improvement of navigation, and, although, as against the plaintiff, they might, at the instance of the state, be adjudged unlawful, because of the restrictions of the act of 1835, still until that is done, in our opinion, tne legal title is in the plaintiff.
With such a legal title to' the locus in quo, although it is subject to an easement, we think there is no doubt that the plaintiff may maintain this action of ejectment. In Adams v. Emerson, 6 Pick. 57, it was held that the owner of the soil over which a turnpike road was laid out might maintain trespass against the turnpike corporation for taking the herbage. In deciding this case, the Massachusetts court said:
The same doctrine bad been previously held by the same court in Robbins v. Borman, 1 Pick. 122, and was reaffirmed in Perley v. Chandler, 6 Mass. 454, in which the court said:
“The soil and freehold remain in the owner, although incumbered with a way; and every use to which the land can be applied, and all the profits which may be derived from it consistently with the continuance of the easement, the owner may lawfully claim. He may maintain ejectment for the land thus incumbered, and, if the way be discontinued, he shall hold the land freo of the incumbrance. ”
In our judgment, the plaintiff is entitled to a verdict and judgment for the premises declared for, subject to the easement in the United States to make such use thereof as is necessary for the protection of the lighthouse. Having readied this conclusion without reference to the questions growing out of the relation of landlord and tenant, wo do not iind it necessary to rule upon the prayers in which the contentious of the plaintiff'based upon that aspect of the case are stated, but it is evident that the familiar rule that a tenant cannot be held to dispute his landlord’s title must, so far as it is applicable, strengthen the plaintiffs’ case, and tend to support the conclusions at which we have arrived.