Mayor of Baltimore v. White

| Md. | Jun 15, 1845

Dorsey, J.,

delivered the opinion of this court.

• In bar of the appellant’s right to recover, in the action they have instituted, a great variety of objections have been interposed. .

First, it is insisted, that the right to make the improvement in question, and the improvement when made, remain in the heirs of Thomas McEldery; and that, therefore, the agreement of the Olivers, in regard to the public wharf, was wholly inoperative and void. This objection, we think, cannot be sustained. By the deed for the reversion to Robert and John Oliver, all the right, title, and interest of the heirs of McEldery, as well in the water lots demised to Martin F. Maher, as in the extension or improvement thereon, which the lessee was authorised to make, passed to said Olivers, who, by virtue of said conveyance, and their recovery in ejectment against the lessee, and those claiming under him, under the statute of 4 George 2, became seized, in fee, of all the right, title, and interest in the property held by the heirs of McEldery, prior to the lease to Maher; and, upon the forfeiture, or termination of the lease, no right or interest in the original lot demised, or the improvement or extension authorised to be made by the lessee, could revert to them. To sustain the argument, urged by the appellee, that no entry or distress could have been made by the lessors or their assigns, had the improvement been made by Maher, the lessee, no authority has been adduced, nor do we think any can be found; nor can we conceive a reason why, if the improvement had been the work of the lessee, the right of entry, or distress, by the lessors or their assigns, upon the improvement, was not as indisputable, as it was upon the original water lot itself.

The next objection, relied on by the appellee, is, that to give validity to the creation of this public wharf, in the mode in which it has been attempted, would be in violation of the registration system of our State, in regard to interests in lands, and in direct opposition to the decision of this court, in the case of Hayes and Richardson, 1 Gill £f John. 366. This objection cannot be maintained. To give efficiency to the arrangement, by which this public wharf has been provided for, is in perfect accordance with the doctrines established in the case of Hayes and Richardson, and with the general registry system of the State. It sanctions no conveyance, or incumbrance, created by matters in pais, or resting in parol; the means by which the wharf has been erected and appropriated to the public use form a part of the paper title, the record evidence, which must be resorted to and examined, to trace the title to the property in question. No patent for this improvement has issued, or will issue from the land office of the State. No title to it can be shewn, but by a reference to the acts of 1745, ch. 9, sec. 10; of 1783, ch. 24, sec. 9; of 1796, ch. 68, sec. 10; and the ordinances of the city of Baltimore, of November the 10th and 19th, of 1821; and these disclose every thing in relation to the wharf, as fully as if its construction and use had been provided for in a patent from the land office, or by deed duly executed, acknowledged, and recorded amongst the land records of Baltimore county.

The next objection, raised to the appellants recovery, is, that the appellee is a bona fide purchaser, without notice, and, therefore, even though the Olivers were bound by the arrangement as to the public wharf, yet, that it has no obligation as to him. For this objection, there is not the slightest foundation; the law imputing to a purchaser a knowledge of all facts, appearing, at the time of his purchase, upon the paper or record evidence of title, which it was necessary for him to inspect, to ascertain its sufficiency.

• Another of the objections of the appellee is, that it would be a fraud upon him, to presume the writing by the Olivers of the letter assenting to the terms of the city ordinances, as required by the ordinance of the 19th of November 1821. If presuming the writing of such a letter would be a fraud upon the appellee, it would be equally a fraud upon the Olivers. Can such a presumption as against them, be termed a fraud? Nay, would it not rather be regarded as a fraud on their part,, after exercising rights and acquiring property which only could have resulted from such a letter, to deny that they had written it ? They are both at law and in equity estopped from doing so ; and the estoppel applies with equal force against the appellee claiming under them.

The act of 1745, ch. 9, sec. 10, enacts, 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.” To prevent the evil consequences likely to flow from this latitudinarian enactment, a prominent object of the act of 1783, ch. 24, in appointing “wardens for the port of Baltimore,” was to protect, as concerns its navigation, the interests of its citizens, and the public at large; as a means of enabling the port wardens to do this, by the 9th section of this act it is enacted, “that no person, or persons, shall make, alter, or extend a wharf or wharves, from and after the publication hereof, without laying before the said wardens a plan of his or their intended wharf or wharves, and without consent first obtained, under the seal of the board, to carry the same into effect.” Under this act it appears to be conceded in the argument, (as well it might be,) that the port wardens were competent to have authorised the extension or improvement asked for by the Olivers, upon condition, that it be constructed of particular materials; that it be abutted by a wall of stone, instead of wood, and that it be of a specified height, prescribed by the wardens of the port of Baltimore, or the successors to.their powers, the Mayor and City Council of Baltimore. It is equally dear, that the Mayor and City Council of Baltimore might have refused their assent to the wharf extension, in the plan proposed, or have required that a dock should be left in the middle of the extension, for the mooring of vessels, or that rings or posts be attached to the wharf, so that vessels might make fast, or moor to it, whether lying out in the basin or by the side of the wharf. If the safe and convenient navigation of the port of Baltimore, by the public, made such requisitions necessary, (of which necessity, the Mayor and City Council were the judges,) they were warranted in exacting them.

Of the great advantage and convenience resulting to the interests of navigation, by the public wharf in question, nobody can doubt. And, as the case is now before us, we are bound to presume that the extension, as proposed by the Olivers, could not, in the judgment of the city authorities, have been granted, without detriment to navigation, unless the injuries resulting from it, were counteracted by the great facilities afforded to navigation by the surrender to its uses, of the exterior margin of the improvement in the shape of a public wharf. If the city authorities believed that the unconditional grant of the power of improvement, proposed by the Olivers, would be ruinous to the navigation of the port of Baltimore; but, that its effects would be wholly obviated by the facilities to navigation afforded by the wharf at the southern side of the improvement, being dedicated to the use of the navigating public, were they not authorised, nay, were they not bound to withhold their assent, unless such a dedication were made ? or suppose the Olivers’ original application had thus proffered the dedication, ought the corporate authorities, entertaining such opinions, to have withheld their assent? We think not.

This case is not at all changed by the fact, that the privilege sued for by the Olivers was not granted, but upon superadded terms and conditions imposed by the corporation. Their action upon this subject must receive the same interpretation as if the terms, ultimately agreed on, had been the first, and only plan and proposition of the Olivers, and as such, had been unconditionally assented to. Nor is the case varied by the fact, that the board of wardens of the port of Baltimore, had been abolished, and their powers vested in the corporate authorities of the city. What has been done, must receive the determination that would be given to it, had the original plan or application from the Olivers, been to the wardens; and been that ultimately established by the city ordinances, and so unqualifiedly assented to by the board of wardens.

We do not concur with the counsel of the appellee, who regard this case as identical in principle, with the case of the Mayor, Aldermen and commonalty of the city of New York, against Scott, decided by the Supreme Court of New York, and reported in 1 Caines, 543. In the latter case, the act of the legislature required the owners of lots to fill them up, and make piers according to the directions of the corporation. On non-compliance, the corporation were to be at liberty so to do, and to receive the wharfage to their own use. The corporation passed an ordinance requiring the owners of lots, within a time specified to fill them up and make the piers, (which was accordingly done,) and reserving a portion of the wharfage on the piers, and declaring the piers, public streets, or highways, to be kept in repair by the said owners, their heirs and assigns. For such a reservation and declaration, not a semblance of authority was shewn; and the court decided, that such a reservation was void, being wholly unauthorised by the act of the legislature, and it is difficult to imagine, how a doubt could have arisen in such a case.

In the case before us, the ordinances of the corporation do not, peremptorily, legislate away the water rights of the Olivers, without color of authority, and in manifest contravention of the act of the legislature, under which the ordinances were passed, as was done to the lot owners, by the Mayor, Aider-men, and commonalty of the city of New York, in the case reported in 1 Caines; but simply refuse an unconditional assent (which as a faithful statutory guardian of the navigation of the port of Baltimore, the corporation was bound to withhold,) to an improvement that could only be made, consistently with the paramount interests of navigation, upon the terms prescribed by the ordinances. They, the Olivers, were deprived of no right which they possessed; they were imperatively enjoined to do nothing; their actions were the result of their own discretion. They were offered powers of great value and importance, limited by no restriction, but that necessarily imposed by a just regard to the rights and interests of the public. The acceptance or rejection of them rested entirely with themselves.

If the conditional assent, given by the corporation of Baltimore, to the improvement, had, without reference to navigation, or the protection of the facilities thereof, secured to the corporation for its own benefit, a portion of the improvement, or of the wharfage arising therefrom, then would the condition, as such, be wholly inoperative and void. But such was not the conduct of the Mayor and City Council of Baltimore. They reserved nothing for the separate benefit of the corporation; but, as the protectors and guardians of navigation, stipulated exclusively for its preservation in securing to it, in exchange for the facilities surrendered, the equally important facilities to navigation resulting from the creation of the public wharf in question. We think, therefore, that the requisition, or condition, (or contract, if it may be so called,) under which the Olivers improvement was made, was, on the part of the Mayor and City Council of Baltimore, a legitimate exercise of the powers conferred on them, by the laws of the State, for the protection of the navigation of the port of Baltimore.

Assuming the wharf in question to be a public wharf, the collection of wdiarfage upon it formed a fit subject for State legislation; and the 4th section of the act of 1827, ch. 162, gives to the Mayor and City Council of Baltimore, the right to charge and collect the wharfage for which their action was instituted, and which is unlawfully withheld from them by the appellee, who has received it.

We concur with the county court in granting the defendant’s third prayer, but dissent from their rejection of the plaintiffs’ prayers, and from the granting of the defendant’s first prayer, and from the instruction given by the court to the jury, and therefore reverse its judgment.

JUDGMENT REVERSED AND PROCEDENDO ISSUED.

Chambers J., dissented.