Chappell v. Waterworth, 39 F. 77 (C.C.D. Md. 1889)

Morris, J.

The brief filed by the learned district attorney correctly states the case made by the pleadings, and his full citations from decisions of the supreme court applicable to the question raised make it unnecessary to quote them in this opinion.

The plaintiff by this action of ejectment seeks to dispossess the United States of a light-house built by the United States light-house board in the year 1868, under authority of congress. It is erected upon piles in

the waters of the Patapsco river, where the tide ebbs and flows, at the distance of about 210 feet from the shore, and it is one of the range lights of the main channel of the river, known as the “Brcwerton Channel,” which is the only approach for vessels of large draugnt to the port of Baltimore. In this channel the natural depth of the water-way is about 16 feet. It has been deepened to over 27 feet for the purpose of admitting large ocean steamers, and it is kept dredged out, buoyed, and lighted bv the constant supervision of the proper United States authorities with appropriations made by congress. It is conceded that the Hawkins Point light, as now located, is required for the safe navigation of the channel by ships engaged in foreign commerce. It covers an area of only 27 feet square. The plaintiff has acquired by grant, and now owns, all the title and right in the upland, and the shore opposite this light-house, and in the bed of the river covered by this structure which the state could grant away, and has the riparian rights specially confered by the Maryland act of 1862, c. 129, by which it was enacted that “the proprietor of land bounding on any navigable waters of this state is hereby declared to be entitled to the exclusive right of making improvements into the waters in front of his said land. Such improvements, and other accretions as above provided for, shall pass to the successive owners of the land to which thoj7 are attached as incident to their respective estates. But no such improvement shall be so made as to interfere with the navigation of tbe stream of water into which said improvement is made.” In fact, the plaintiff never has availed of this privilege of improving out into the water covered by the light-house, but the right to do so is a valuable riparian right, not to be arbitrarily or capriciously destroyed. Yates v. Milwaukee, 10 Wall. 504. It is, however, -a privilege which must be exercised subject to the right of the public to use the river for the great primary and paramount purpose of navigation, and for furnishing the usual and necessary aids to navigation.

The ruling in Yates v. Milwaukee was that when under legislative permission, or in accordance with his privilege as a riparian owner, the owner of laud hounding on a navigable stream has actually made his improvement, and by such improvement that portion of the stream so improved or reclaimed has ceased to be part of the navigable water, and is appropriated to private use, it can then only bo taken to improve navigation upon proper compensation being made, as for any other strictly private property. Such was the effect of the mandate of the supreme court in that case in reversing the decree below. But while the submerged land remains a part of the bed of the river it is not private property, in the sense of the frith amendment to the federal constitution. As was declared in Gilman v. Philadelphia, 3 Wall. 725, the navigable waters “are the public property of the nation, and subject to ail the requisite legislation by congress.” In the hands of the state or of the state’s grantee the bed oí a navigable river remains subject to an easement of navigation, which the general government can lawfully enforce, improve, and protect. It is by no means true that any dealing with a navigable stream which impairs the value of the rights of riparian owners

gives them a claim for compensation. The contrary doctrine, that, in order to develop the greatest public utility of a water-way, private convenience must often suffer without compensation, has been sanctioned by repeated decisions of the supreme court. The following are cases all involving that proposition: The Blackbird Creek Case, 2 Pet. 245; Gilman v. Philadelphia, 3 Wall. 713; Pound v. Turck, 95 U. S. 459; Wisconsin v. Duluth, 96 U. S. 379; South Carolina v. Georgia, 93 U. S. 4.

If it were made apparent to congress that any extension of the plaintiff’s present shore line into the river tended to impair the navigability of the stream, or its use as a highway of commerce, congress could authorize the agents of the United States to establish the present shore as the line beyond which no structures of any kind could be extended, and the plaintiff would have no claim for compensation. If the plaintiff could thus lawfully he prevented from appropriating to his private use any part of the submerged land lying in front of his shore-line, and the whole of it be kept subservient to the easement of navigation, how can it he successfully claimed that he must be paid for the small portion covered by the light-house 200 feet from the shore, which has been taken for a use as strictly necessary to safe navigation as the improved channel itself? The court of appeals of Maryland, whenever called upon to declare the nature of the title of the state and its grantees in the land at the bottom of navigable streams, has uniformly held that the soil below high-water mark was as much a part of the jus publicum as the stream itself. Day v. Day, 22 Md. 537. And in the leading Maryland case of Browne v. Kennedy, 5 Har. & J. 203, (decided in 1821,) discussing the nature of the property in the soil covered by navigable rivers in Maryland, it was said:

The same doctrine has been recently enforced, with regard to the character of the ownership of New Jersey in the lands under the navigable waters of that state, by Mr. Justice Bradley in Stockton v. Railroad Co., 32 Fed. Rep. 19. It appears, therefore, that the private interest granted to the plaintiff in the soil in question was of necessity granted to him subject to the use which the United States is now making of it in aid of navigation, and that the special plea to plaintiff’s action of ejectment sets up a perfect defense to the action. The plaintiff’s replication to the defendant’s special plea simply avers that, when pos

session of tlie submerged land was taken by the United States as in the plea alleged, the plaintiff held title to it under the grants from the state, and still holds said title, and that he has never been paid or tendered any compensation therefor. This, in my opinion, is no answer to the plea, and the defendant’s demurrer to it is sustained. The plaintiff electing to stand on his replication, judgment will be entered for the defendant.