Linthicum v. Coan

Bryan, J., delivered the opinion of the Court. In the year 1763, Charles Croxell obtained a patent for a tract of land in Baltimore County, which was called Leicestershire. It was bounded for a considerable distance by the Patapsco River. In the year 1831, the title to a portion of this tract became vested by regular mesne conveyances in Hezeldah Linthicum; and in the year 1856, a portion of Hezeldah Linthicum’s portion was duly conveyed to Margaret Coan. This latter portion had the Patapsco River as one of its boundaries. In 1861, Sweetzer Linthicum obtained a patent for a tract of land containing three hundred and seventy-eight acres and three-quarters, named Linthicum’s Comet. It was covered entirely by the waters of the Patapsco; and according to its location by course and distance, it was bounded by the lines of Leicestershire where the latter tract bordered on the river ; the lines of the two tracts at this boundary, strictly conforming to each other. Along the river-boundary of Margaret Coan’s land, and running towards the channel of the Patapsco, a considerable body of land has been formed where — 449 — the water formerly flowed. It lies within the lines of Linthicum’s Comet, as they are designated in the patent, and is supposed to contain about twenty-eight acres. The questions before us arise in an action of ejectment brought by Sweetzer Linthicum to recover this land from Margaret Coan. The Patapsco at this point is a public navigable river, in which the tide ebbs and flows. ■ The evidence for the plaintiff in the Court below tended to prove, that at the date of the patent for Linthicum’s Comet, the river at ordinary high tide overflowed all the land in question, and that the portion of it east of Sweetzer’s Bridge began to be formed some years after 1860, and the formation of land commenced from the edge of the main channel of the river, and increased in a northerly direction inland towards the Baltimore County shore of the river, and did not make outwards from the fast land on the shore. The evidence on the part of the defendant contradicted this testimony, and tended to prove that the. river had been gradually filling up from the bank on the Baltimore County side towards the channel since 1846 or 1848, and that the flats and marsh on the bank of the river in 1854 were nearly in the same condition as they are now, except that at that time they were not so solid as they are now. There was also evidence on the part of the plaintiff that there was a great freshet in the river in or about the year 1868, which filled up the bed of the river very much, and deflected the main channel fifteen or twenty feet from its original course towards the Anne Arundel shore east of the bridge, and made a deposit of from fifteen inches to two feet of mud on the premises described in the declaration. It is thus seen that we are to determine the respective rights of the riparian proprietor, and of the owner of the bed of the river. In Giraud’s Lessee vs. Hughes, et al., 1 G. & J., 249, this Court considered one of the questions arising in this case, and they laid down the law as follows: — 450 — “ 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.” And the Court refers with approbation, to 2 Blackstone’s Commentaries, page 261, where it is said, “ as to land gained from the sea, either by alluvion by the washing up of sand and earth, so as in time to make terra firma, or by dereliction, as when the sea shrinks back below the usual water mark, in these cases the law is held to be, that if this gain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining.” The same rule is generally recognized by the authorities, although it is sometimes expressed in language slightly different. In Rex vs. Yarborough, 3 Barn. and Cress., 91, the Court of King’s Bench decided that the word “imperceptible ” in this connexion must be understood as “ expressive only of the manner of accretion, and as meaning imperceptible in its progress, and not imperceptible after a long lapse of time.” And when this case came before the House of Lords; on writ of error, the judgment below was affirmed. The Lords requested the opinion of the Judges, and the unanimous opinion of all the Judges who heard the argument was delivered by Best, Chief Justice, and concurred in by the Lord Chancellor and Lord Eldon. The abstract of this opinion states its substance as follows: “ Land, not suddenly derelict, but formed by alluvion of the sea, imperceptible in- progress, belongs to the owner of the adjoining demesne lands, and not to the crown.” 5 Bingham, 163. And if we refer to the original authority on which this whole doctrine is founded, it is manifest' that these decisions correctly state the meaning of the rule. The earliest exposition of it in any work on the common law is found in the second chapter of the second book of — 451 — JBracton, who adopts, almost verbatim, the language of the •civil law as it is found in the Institute, liber 2, title 1, section 20. The words of the text are “ Est autem diluvio latens incrementum; et per alluvionem adjeci dicilur quod ita paulatim adjicitur quod intelligere non possis quo momento temporis adjiciatur.” Alluvion is a secret increase which is so gradually added, that it cannot be known at what moment it is added. It is contradistinguished from those large additions which are made to the land when the sea suddenly recedes, or when it casts up, by its immediate and manifest force, large quantities of earth and sand. The rights of the riparian proprietor do not depend at all up>on the question whether the amount of increase can be definitely measured by fixing accurately the original location of the bank of the river. If the increase were not perceptible, after it had accrued, it would hardly be necessary that the title to it should be determined by the law. In Lord Yarborough’s Case the land formed by accretion •amounted to four hundred and fifty acres; and in the noted case of the City of New Orleans against the United States the accretions embraced the whole river front of the city, and were of immense value. There is an annual rise in the Mississippi River, which continues for several months. When the waters subside they leave in some places large deposits of mud, which, in the course of successive accumulations, reach the height of the banks of the river and become firm land. The land in this way is gradually formed, inasmuch as it is the result of causes continually in operation through a considerable period. But the deposits are frequently very large. It is said that on one occasion, after the fall of the waters, the batture was extended into the river a space measuring from seventy-five to eighty feet, and was covered with mud to a depth varying from two to seven feet. In dealing with this case the Supreme Court discard altogether the use of the w'ord “imperceptible.” They say “the question is well settled at common law, that the person whose land is bounded by a — 452 — stream of water, which changes its course gradually by alluvial formations, shall still hold .by the same boundary, including the accumulated soil. No other rule can be applied on just principles. Every proprietor whose land is thus bounded is subject to loss by the same means which may add to his territory; and as he is without remedy for his loss in this way, he cannot be held accountable for his gain.” 10 Peters, 717. The Court evidently considered that the justice and true sense of the rule depended on the question, whether the land was formed by the operation of causes extending through a length of time, without any reference to the consideration whether the stages of the progress towards the final result could be perceived. It has been made a question in this case whether the patent for Linthicum’s Comet did not take away from the riparian owners the right to such accretions as we have been considering. As it was issued before the passage of the Act of 1862, chapter 129, it is of course not affected by this statute. If the land covered by the patent had ■remained the property of the State, the riparian owners would have been entitled to the accretions under the circumstances above mentioned. It was a valuable right given to them by the law. It is needless to consider in the present case, whether the Legislature could have divested this right by changing the law. It is very certain that no other department of the State Government has the power to do so. When the Commissioner of the Land Office issued a patent to Sweetzer Linthicum, he merely sold' him the State’s interest in the land. He could not thereby diminish or abridge the rights of the riparian owners. The. patent is simply a grant of land, and this grant is made subject to all existing rights. The rights of the riparian owners connected with this land were valuable and essential parts of their own estate, and they could not on any principle of law or reason be deprived of them, merely by the act of the State in parting with: its ownership. We are not called upon in this connexion — 453 — to consider any theory of the sovereign rights of the State. These sovereign rights must be exercised in the mode and by the agencies prescribed by the Constitution. The only right of the State exerted by the Land Office when this patent was issued, was to sell the land, and to receive the money for it. When it is proposed to take away from the adjacent proprietors the rights in land covered by navigable waters which the law has conferred upon them, the question must be dealt with by that department of the government, which alone has the power to change the law. It is sufficient for the present purpose to say that no statute has been enacted, which purports to abridge the rights of the riparian proprietors as they were established by the common law. An expression to be found in the report of the case of Goodsell vs. Lawson, 42 Md., 364, militates with the conclusions which we have reached. It is in the opinion of the learned Judges of the Circuit Court for Somerset County. Speaking of the Act of 1862, they say: “ Previously, a person’s right to the accretion or even to make improvements under laws then existing, might be practically destroyed by a grant from the State for the land covered by the water adjacent to his premises.” The decree of the Circuit Court was affirmed by the Court of Appeals. The controversy in the case related entirely to improvements made under the Act of 1862, and did not involve in any way the right of accretion. Nor does the opinion of this Court make any reference to this right. It has been decided in Giraud’s Lessee vs. Hughes, 1 G. & J., 249, and in Casey’s Lessee vs. Inloes, 1 Gill, 430, that the right to make improvements in navigable waters granted by the Act of 1745, chapter 9, ■section 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. And as a consequence of this doctrine, it was held in Casey and Inloes, that where a riparian proprietor had not made any improvements in front of his property, — 454 — his right- to make them was intercepted by a grant from the State of land covered by navigable water bounding his property. The Circuit Court, in discussing the right to make improvements, inadvertently included in their remarks the right of accretion which was founded on different reasons. (Decided 26th January, 1886.) If the land in question was formed by gradual accessions extending from the shore into the river, it would belong to the riparian proprietor; and this would be the case notwithstanding the fact, that by the influence of floods and freshets, large deposits of mud may have been made in the bed of the river. These deposits would, of course, materially contribute to the formation of land, and would hasten the time when it would appear above the surface of the water. But the leading characteristic of alluvion is the gradual extension of the land from the shore into the water; and when this is the case, it is irrelevant to consider the causes which, operating beneath the surface of the stream, have brought about the result. On the other hand, if land was formed in the river, and extended inwards towards the shore, it would be the property of the plaintiff, with all its accretions. Under these circumstances, it would have belonged to the State, if the patent had not been issued; and the plaintiff has of course, acquired the State’s title. If the plaintiff’s fourth prayer had distinctly left this question to the jury, it ought to have been granted; but it is not clear to us that this was its meaning — There is considerable obscurity in its terms, and it would have perplexed the jury. The plaintiff’s seventh prayer was properly refused. The alluvion was part and parcel of the land bordering on the shore, and would pass to a grantee without express mention. We agree with the Circuit Court in all its rulings. Judgment affirmed.