Classen v. Chesapeake Guano Co.

Briscoe, J., delivered the opinion of the Court. The appellants are the owners of a lot of ground fronting on the Patapsco River, in the city of Baltimore, and the appellee is the owner of the adjoining lot on the west, likewise fronting on the river. The shore line of the river is concave, so that if some of the riparian owners should build out wharves or piers in straight lines the full width of their lots to the Pierhead, or Port Warden’s Line, other riparian owners would be deprived of the privilege of building piers to the Pierhead Line, since the wáter front on the Pierhead Line is much less in extent than the shore line in the rear. In 1876, Joshua Horner, who then owned the appellee’s lot, and also the lot now adjoining on the west, was authorized by the Mayor and City Council, by Ordinance No. 114 of that year, to erect a bulkhead and piers in front of his lot. By Ordinance No. 141 of 1880, approved October 6, 1880, the ordinance of 1876 was repealed and re-enacted, [265] to grant permission to the heirs of Joshua Horner to erect said bulkhead and piers. The heirs of Horner, in August, 1880, agreed to sell to the appellee a portion of the lot referred to in these ordinances, fronting 150 feet on Gould street, and running to the Port Warden’s Line, and, as a part of the consideration, agreed to build a solid bulkhead to the bulkhead line. And this bulkhead was constructed under the above-mentioned ordinance between October 6th, 1880, and January Cth, 1881, extending the whole width of the appellee’s lot, and running out in straight lines to the bulkhead line. Subsequently Ordinance No. 83 was passed and approved on May 17th, 1881, establishing certain pier and bulkhead lines in the harbor of Baltimore City. It recites in its preamble that, “ Whereas it has become evident that further legislation is necessary to enable the Mayor and City Council, with equity to the riparian owners and to the public interest, to grant permits for pier or bulkhead extensions in such portions of the harbor as the shore line may be concave or hollow, or where it forms sharp re-entrant angles, so that the water front, measured on the pier or bulkhead lines, is much less in length than the shore line in the rear,” and then enacts as follows : “ That, from and after the passage of this ordinance the lines marked and shaded in ‘ red ’ in the maps numbered from x to 5, submitted this day by the Joint Standing Committee on Harbor, be and are hereby declared to be the pier and bulkhead lines, beyond which no extension of piers or bulkheads shall be made in the portions of the harbor to which said maps relate.” Now, it appears that the southeast part of the appellee’s solid bulkhead, or wharf, is within the lines of what would would be appellant’s lot if extended according to the ordinance of 1881, and that the piers authorized in front of the appellee’s lot by the ordinance of 1880, would be, if constructed almost wholly within the lines of the appellants’ lot extended to the Pierhead or Port Warden’s Line. And upon the case as thus stated the Court was asked to declare [266] the erection of the appellee’s bulkhead a trespass and to enjoin it from constructing piers to the pierhead line. There can be no question, it seems to us, that the appellee has the right to maintain its wharf or bulkhead in front of its lot to the bulkhead line. The Patapsco River in the city of Baltimore is a navigable stream, and the power of the Legislature, or of the municipality under its authority, to establish the lines within which wharves may be built or other improvements made into the water cannot be disputed. Brown v. Kennedy, 5 H. & J. 195 ; Hess v. Muir, 65 Md. 586. In the case of B. & O. R. R. Co. v. Chase, 43 Md. 23, this Court said, that by the construction of the Act of 1745, chapter 9, sec. 10, as settled by the decisions of our predecessors, the right of the lot owner, fronting on the water, to extend his lot or improve out, to the limit prescribed by the authorities of the city, is a franchise, a vested right peculiar in its nature, but a quasi property of which the lot owner cannot be lawfully deprived without his consent. And if any other person without his authority make such extension, no interest or estate in the improvement vests in the improver, .but it becomes the property and estate of the owner of the franchise. And in Horner v. Pleasants, 66 Md. 475, it was distinctly held that where a wharf is built by a riparian owner under a statute authorizing such improvement he is entitled to the perpetual use of the land covered by water for the wharf. But under statutes now in force in Baltimore City, the Mayor and City Council are authorized to prescribe the extent and mode within which riparian owners may make improvements in front of their lots, and when they.bound upon a concave shore to declare what the front of a particular lot shall comprehend upon the Bulkhead or Port Warden’s Line. Balto. City Code, Articles 343 and 351. Now, in this case, the wharf of the appellee, built out to the bulkhead line, was actually constructed prior to the ordinance of 1881, and under the ordinance of 1880, and the right of the appellee to maintain it cannot now be questioned by the" appellants. [267] We come now to the second question, as to the right of the appellee to build the piers authorized by the ordinance of 1880, to the pierhead line. It will be observed that no piers were erected during the time the ordinance of 1880 was in force, nor down to the institution of this suit. It is contended by the appellee that the ordinance of 1881 “does nothing but define the pier and bulkhead lines, the reasonable interpretation of which is that the heavier lines marked Bulkhead Line and Pierhead Line are the lines meant to be established.” But we think when this ordinance is considered in connection with the preamble and the map ordered it to be placed on file in the office of the Harbor Board, it is clear that its design was to give each of the owners along this concave shore a right to so much of the bulkhead and pierhead lines in front of their respective lots, as is comprehended within the red lines on said map, traversing in a southerly direction the bulkhead line. The effect of this ordinance was to abrogate, so far as these parties are concerned, any right which the appellee may have as the elder grantee and to give all these riparian owners equal rights to make improvements within the lines prescribed by the ordinance to the Pierhead or Port Warden’s Line. But it is manifest since the right to build piers beyond the bulkhead line conferred by the ordinance of 1880, has not been exercised, the appellee has no vested fight in the same. It was a privilege subject to revocation at any time before it was acted upon, and the ordinance of 1881, which repealed all ordinances inconsistent therewith was a revooation of this privilege. Casey v. Inloes, 1 Gill, 430; Giraud v. Hughes, 1 G. & J. 249; Linthicum v. Coan, 64 Md. 453. The appellants were therefore entitled to an injunction restraining the appellee from constructing piers beyond the bulkhead line, according to its contention, as being in front of the appellant’s lot. And to allow the appellee in this case to improve out in a straight line, the shore line being concave, would permit [268] it to shut off and almost entirely deprive the adjacent lot owners, the appellants here, of water frontage and rights on the Pierhead or Port Warden’s Line. Inasmuch, however, as the appellee acquired, by building its wharf under the ordinance of 1880, a vested right to a part of the bulkhead line, which has been allotted by the ordinance of 1881 to the appellants, the Chesapeake Guano Company now has a right to build piers to the pierhead line, taking so much of the pierhead line in front of the appellant’s property (as laid down in the plat), as will bear the same proportion to the whole of said line, as the part of the bulkhead line acquired by the appellee bears to the whole bulkhead line in front of the appellant’s property, such piers to be built according to the converging lines, in the direction of the lines laid down in the ordinance of 1881. (Decided April 19th, 1895.) And the right of the appellants to extend to the pier-head line is to be measured by their proportion of frontage of the bulkhead line, diminished by that part occupied by the wharf of the appellee. It follows, then, that the pro forma decree appealed from will be affirmed in part and reversed in part, and the cause remanded to the end that a decree may be passed in conformity-with this opinion. Each party to pay one-half of costs in this Court and the Court below. Decree affirmed in part and reversed in part. Each party to pay one-half of costs.