42 Md. 348 | Md. | 1875
delivered the opinion of the Court.
The facts of this case are fully stated, and the several questions involved are discussed with much ability and clearness in the opinion of the Circuit Court, sent up with the record, and as we concur in the conclusions therein expressed, it will not be necessary for us to enter into any extended or elaborate discussion of the same questions. These, as succinctly stated by the Circuit Court, are:
“1st. What are the rights of the complainants in the premises in question?”
££3rd. Has the Court jurisdiction in the premises?”
1. Upon the question of jurisdiction, which is first discussed in the opinion of the Circuit Court, we entirely agree with the views therein expressed, and for the reasons therein so well stated. The principle that “ when a subject-matter of controversy is already in possession of a Court of competent jurisdiction, its action will not he interfered with by any other Court of concurrent jurisdiction” has no application to the present case.
The Commissioner of the Land Office, although declared by the Code, (Art. 54, sec. 1,) to he a ££ Court of Record,” and though he is clothed with certain functions and powers in their nature judicial; yet as was said in Smith’s Lessee vs. Devecmon, 30 Md., 473, that officer does not form any part of the judiciary under the Constitution.” In that case it was decided, that his powers and duties are subject to he changed or modified by the Legislature. In like manner the proceedings before him may he reviewed or controlled by the judicial tribunals of the State. West vs. Jarrett, 1 H. & J., 538. In our judgment the pendency of proceedings before the Commissioner, with a view to obtaining a patent, whether upon a caveat or otherwise, does not oust the jurisdiction of chancery over the same subject-matter.
It is true that in ordinary cases, the Courts will not interfere by injunction or otherwise with proceedings pending before the Commissioner, but will leave parties to their usual remedies by appeal from his decision, and by resort to the legal tribunals after a patent may he issued. But we think in this case, the appellees were entitled to relief by injunction. From the nature of the rights claimed by them, the situation of the parties, and the condition of the property in question, it is very elear that no adequate
2nd. In our opinion the doctrine of estoppel applies to the appellant with great force.
Nothing is better settled than that every tenant is absolutely estopped and precluded from disputing the title of his landlord, under whom he holds. Here the relation of landlord and tenant exists between the parties. Anderson vs. Critcher, 11 G. & J., 450. The appellant is actually in possession of the premises under and by virtue of his contract of May 24th, 1867. Under that contract he has gone on to reclaim the property in question from the water in front of the appellees’ land, and by their license and permission has made improvements ; and now to allow him to repudiate his contract, and to appropriate to himself that which he has agreed shall belong to others, would be a fraud which a Court of Equity could not sanction.
3rd. But the rights of the appellees do not rest alone upon this ground. By the Code Art. 54, see. 38, there is secured to them as riparian proprietors, the exclusive right of making improvements into the waters in front of their lands, and such improvements when made belong to them as incident to their estate. This is a valuable right which other persons cannot lawfully destroy or interfere with. Where such rights existed under the Acts of 1745 and 1784, it has been held that no patent ought to be issued for the land covered by water, in front of the property of the riparian proprietor, so as to interfere with its prospective enjoyment by him ; and this was decided before the passage of the Act of 1862. Chapman vs. Hoskins, 2 Md. Ch. Dec., 485, approved in Patterson vs. Gelston, 23 Md., 448. In the exercise of this right of improvement, the riparian proprietor is not restricted except by the provi
In this case there is no evidence that this provision has been violated; and it may be questioned whether such an objection could be urged by the appellant, by whom the improvement has been made under his contract of May 24th, 1867. But as we have said, it does not appear in this case, that the navigation of the river has been interfered with by the improvement in question.
It has been argued on the part of the appellant, that by the true construction of the Code, Art. 54, secs. 37 and 38, the right of the riparian proprietor to make improvements, extends only to the thread or middle of the river, “ad medium filum, aquce,” as in the case where the land bounds upon water not navigable; and it has been contended that in this case, the improvements in question extend nearer to the opposite shore, than they are to the land of the apj)ellees, and therefore cannot legally be claimed by them. This fact is not alleged in the answer, nor does it appear by the plats or other proof in the cause. But we are of opinion that this is not the true construction of these sections of the Code.
The law which applies to riparian proprietors upon waters not navigable, and which defines their proprietary rights by the thread of the stream, has no application to navigable waters; and the Code is not to be construed so as to apply this doctrine to improvements made in navigable waters. It often happens that the channel or deep water lies much nearer to one bank than to the other, and that on one side, the flats or shallow water unfit for navigation may extend a considerable distance from the shore. Now in such case, the right to improve has no reference to the thread or middle of the stream; but is limited and defined, as we have seen, with reference to the rights of navigation, and is to be exercised “so as not to interfere with the, navigation of the stream.”
Again in making the improvements, the proprietor is not compelled, as has been argued, to commence them at the shore, but may begin at the outer extremity of the projected improvement, and extend the same to the bank of the river, which it clearly appears was the design in the present case.
The Code provides that such improvements “ shall pass to the successive owners of the land to which they are attached, as incident to their estate.” It does not follow from this, that the title to the improvements when made, may not be severed from that of the mainland, and be conveyed to and held by other persons having no interest in the original tract. The right of the riparian proprietor to such improvements, necessarily carries with it such power of alienation as owner thereof.
We agree with the Circuit Court in the opinion that the conveyance by the appellees of the lot of ground to Isabella E. Goodman, dated May 6th, 1871, conferred upon her no riparian rights, or rights to make improvements into the water in front of her lot, which would be in conflict with, and would destroy the rights here claimed by the appellees. That deed conveyed by metes and bounds “ a lot of ground in the Town of Qrisfield, being part of block No. 19 on the plat of said Town,” and must be construed with reference to said town-plat; from which it plainly appears that no riparian rights whatever were conveyed, or were intended to be conveyed by the deed. For although at the date of the deed, the lot was upon the water, the plat shows that the parties contemplated that the contiguous water should be filled up and made fast land.
For these reasons as well as lor those which are stated more at length in the opinion of the Circuit Court, we think the appellees were entitled to the relief prayed in their bill. The order appealed from will be affirmed and the cause remanded, to the end that the injunction may be issued.
Order affirmed.
