Summary
Appeal from a 'decision of the Commissioner of tbe Land Office.
The United States, under tbe circumstances detailed in tbe opinion of this Court, having located tbe site of au Aqueduct dam "at or near tbe Great Falls in tbe Potomac River, and upon tbe soil of tbe State of Maryland, tbe Great Falls Manufacturing Company afterwards, and witb knowledge of this fact, obtained a common warrant from tbe Land Office for a tract of land which included and was bisected by the proposed dam; whereupon the United States filed a caveat against the issuing of a patent for said hind. The Commissioner of the Land Office (Seabrook) upon hearing of the case overruled the caveat, and the caveator appealed, and filed in writing the following reasons therefor:
“1st. The land sought to be patented is covered by the waters of the Potomac River, and the bed of said river, and the water flowing over the same, and is a portion or part of the jus publicum, and therefore it is not in the power of the State to grant the same to individuals, or private companies for private use or speculation, or for any other than public purposes.
“2nd. Because it would be in derogation of rights conferred upon the Potomac Company, and also rights conferred upon the Chesapeake and Ohio Canal Company.
“3rd. Because the State of Maryland, by her Act of 1853, ch. 179, granted to the United States the bed of tbe river, as well as the right of way, and also tbe use of tbe water, for purposes which have been declared constitutional by the Court of Appeals, to wit: ‘The Washington Aqueduct, subject to rights acquired by the Chesapeake and Ohio Canal Co., under its charter, and from the Potomac Company;’ and therefore it is incompetent for even the State to issue a patent, which would necessarily conflict with such grant.
“4th. Because the grant or patent for any portion of tbe bod of tbe river, could confer no substantial rights, audits only effect would be to tempt the grantee into a conflict with the United States, or to interfere with the public right of using the water for domestic purposes, navigation and fishing, which the State can neither destroy or impair.
“5th. Because the dam of the Washington Aqueductproposed to he constructed under the grant to the United States by the Act of 1853, ch. 179, has been located, and cuts the land covered by this certificate In two, and destroys the contiguity, which, according to the rules of the land office^ is fatal.
“6th. Because the law of Maryland having reserved to the public the water flowing over any land granted by the patent, in as much therefore as all or nearly all the land sought to be patented in this certificate is covered by the waters of the Potomac River, the right of the publie cannot be preserved, except by a denial of the patent, or if granted, unless the patent should expressly upon its face reserve the water.
“7th. Because in as much as the United States has the right to select, as against the whole world, the site of an aqueduct dam, at or near the Great Falls, and the site now selected, or which may be selected hereafter, can be changed if found unsuitable, and toties quoiies, until tlie site selected shall be satisfactory in every respect, therefore no patent ought to be granted which will conflict with such right.”
1st. The Act of 1853, ch. 179, is an express grant of both the waters of the Potomac and the soil covered thereby, for thé purposes of the Act, so far as is compatible with the prior grants t-o the Potomac Company and Chesapeake and Ohio Canal Company.
2nd. If not an express grant,, it is a grant by necessary, implication of the bed of the river as well as its waters. The nature of a dam requires the occupation of the soil. The purpose of this dam requires its permanent occupation, the right of stopping and throwing back the water, creating an immense reservoir as contemplated by the-Act, the building of coffer-dams, walls, &c., &c. All of these must be ex-elusive rights not to be interfered with. The violation or interference with any one of these rights, when once exercised, would result in a great public calamity. Ang. on Water Courses, sec. 158.
The charter of the Alexandria Canal Company, by Congress, contained just such an implied grant with reference to this very river. City of Georgetown vs. Alex. Gem. Go., 12 Peters. 12 Curtis, 651.
3rd. Had the Legislature of Maryland the right to grant by Act of Assembly, as we say she has granted? The right of the State originally to grant the land sought to he patented, is conceded on all sides. See Bl. Gh. Dec., 128. Opinion in Gr. Palls Cond. Gase. The appellant relies upon a legislative grant; the appellees on the right to grant by patent. The right of the State to grant by legislative Act, can hardly he disputed. The Act of 1745, ch. 9, has been construed to be a legislative grant of vacant lands covered by water, to tbe owners of adjacent water lots, without applying to the land office in the usual way, in consideration of certain improvements materially beneficial to the public. Hammond’s Lessee vs. Inloes, 4 Md. Rep., 138. The Supreme Court of the United States have sustained a legislative grant of the bed of the Potomac River, (for purposes almost identical with those in the present grant,) by Congress, deriving the authority of Congress so to grant from the States of Virginia and Maryland. Above case in 12 Curtis, p. 650. Applying to the reasoning of the Court in 12 Curtis, the Maryland doctrine that the Potomac is wholly in Maryland, the authority of Congress to make the grant in that case was derived from Maryland.
4th. Is the Act of 1853, ch. 179, constitutional as a legislative grant under Art. 3, sec. 17, of the Constitution of Maryland. Reddall vs. Bryan, 14 Md., 477, 478.
5th. Supposing our legislative grant to he concurrent with the grant by patent, in point of date, &c., instead of a prior grant, as is actually the case, we say:
(1.) That the legislative power to grant is the more comprehensive. A State may grant by legislative Act, not only lands, the title to which is in the State at the passage of the Act, but lands that might thereafter vest in the State by escheat. Ang. & Ames on Corp., sec. 169, p. 133, 7í7¿ ed.
(2.) Considering the purposes of the respective grants there can be no doubt that the grant to the United States should be preferred. Its purpose is to supply the seat of government of the United States with an abundance of wholesome water. Beddall vs. Bryan, 14 Md., 477. What are the purposes of the grant to the Great Palls Manufacturing Company? Asa Manufacturing Company, desiring to use water-power, it was unnecessary to own the soil covered by the river. Their right to use the water of the Potomac was guaranteed by the 13th section of the Act of 1784, ch. 33. The land itself, as land, could be of no substantial value to the Company. It is covered by water. They could not use it as land, except in violation of theyiis publicum. Its possession could only serve to bring them into collision, and provoke contention with the riparian proprietors on the other side, and with the United States. ■See Chapman vs. Hosldns, 2 Md. Ch. Dec., 485. Hammond’s Lessee vs. Inloes, et al., 4 Md. Bep., 138. Angelí on Water Courses, secs. 12,14, 535, 536, 541, 545. Brown vs. Kennedy, 5 H.dcJ., 195. What then are the purposes for which the grant of these lands is so eagerly sought by the Great Palls Manufacturing Company? We say for the purpose of speculating upon the necessities of the Government— a favorite purpose with many, which, fortunately, has of late met with a wholesome check. This purpose is to be gathered from the conduct of the Company. U. 8. 8en. Doc., vol. 2, 1859-’60.
6th. The State of Maryland as long ago as the year 1784, by its Act of Assembly of 1784, ch. 33, granted to the Potomac Company rights utterly inconsistent with the proposed grant by patent to the Great Palls Manufacturing Company, all of which rights were subsequently conferred on the Chesapeake and Ohio Canal Company. See also, 1823, ch. 40, sec. 9. The patent applied for should not be issued, therefore, because it would be in derogation of the rights of the Chesapeake and Ohio Canal Company. Can. Co. vs. B. R. Co,, 4 G. & J.,1. The State will never knowingly grant the same land a second time. Twiggs vs. Jacobs, 4 Md. Oh. Dec., 541.
7th. Under the Act of 1852, ch. 129, no patent can be lawfully issued in this case. See the title and last clause of sec. 1 of that Act.
(1.) What is meant by the term ‘ ‘navigable waters?’ ’ Does it mean, as in the admiralty cases, so much of every river or stream as is affected by the ebbing and flowing of the tide, or does it mean, in the more general acceptation of the term, as in the more recent cases, so much of the rivers and, streams of the State as are available for boating, scoioing, rafting or floating saw-logs, or other vakiable floatage? We contend for the latter meaning. The Act was passed with immediate reference to oyster beds in the rivers and creeks of lower Maryland, affected by the ebb and flow of the tide; but speaks generally with reference to all navigable waters of the State.
In its general application this Act is only declaratory of what was before the law. It professes nothing more. (See the preamble to the Act.) The doubts spoken of as existing in the preamble, do not seem to have been entertained by the learned judges who sat in the case of Browne vs. Kennedy, 5 II. & J., 196, of whom three filed elaborate opinions, viz: Judges Chase, Buchanan and Earle. See head note, p. 196. “The king of England, &c., had the right to grant,” &c., and also that commencing “ Where the lines of a grant include a navigable river,” &c. We rely on this case 1st, as showing that the law as declared by the Act of 1862, had been emphatically announced as the law of the land by this Court many years before; and 2nd, and more especially, as showing the nature of the stream spoken of in this case as “navigable waters” or “public rivers,” as distinguished from “private rivers,” a descriptive term more generally used in the modern cases. See opinion of Buchanan, J. on p. 204; see the statement of the case p. 191, the description of “Jones’ Falls,” the part thereof included in the grant.
The Potomac River is boatable far above that portion of it included within the lines of the patent sought to be obtained, “Neilson’s Desire,” and available for boating, scowing, rafting and other valuable floatage, difficult to be crossed bj pontoon bridges, more available for such purposes than any part of “Jones Falls” within the lines of “Todd’s Range. ’ ’
Angelí on Water Courses,” sec. 535: “All rivers above the flow of tide-water, are prima facie private; but when they are naturally of sufficient depth for valuable floatage,” &c. This law dates as far back as .the times of Sir Matthew Hale. (See Harg. Tracts De Jure Maris, &c.) Angelí also at sec. 536, “The Potomac River is part of the jus publicum,” &c., -citing the case in 12 Peters, 91, and Binney’s Case, 2 Bl., 99. There are many instances where similar streams are classed as “public rivers,” “public highways,” &c. See case of Carson vs. Blazier, 2 Binney, 415, declaring the Susquehanna and other rivers navigable streams. The law ©f Maryland referred to in Angelí, as expressly declaring the Potomac River to be “navigable as a public highway,” is the Act of 1184, ch. 33, sec 10. See also the Act of 1168, ch. 5, passed sixteen years before the Potomac Company was chartered, entitled an Act to prevent any obstruction of the navigation of the River Potomac. This Act refers expressly to that part of the river “between the Great Falls and Wills’ Creek.” See also the Act of 180.2, ch. 84, declaring the object contemplated by the Act of Assembly establishing a company for opening and extending the navigation of the River Potomac to have been'accomplished. See also the Acts of 1806, ch. 89, a supplement to the Act of 1168, ch. 5, and 1824, ch. 10, seo. 13.
8th. In answer to the objection that the Act of 1862, ch. 129, was passed pending this appeal, we refer to the case-of Keller vs. The State, 12 Md. Rep,, 323.
1st. That there is nothing in the record to show that the land in question is covered by the waters of the Potomac. Indeed, the 8th reason of the appellants admits that there is no proof of the assertion, and makes the surveyor’s omission to state that any part of the land is covered by water, a reason for reversing the decision of the Commissioner. But on the contrary the record shows affirmatively, that the land is out of water, and the greater part of it was granted by the State nearly a century since, as high land. But if it were all covered by water, the legal proposition advanced in the above reason, could not be sustained. The title of the State of Maryland to the laud at the bottom of the Potomac River to high water mark on the Virginia shore, and her right to grant portions of it not yet granted by patent or otherwise, is too firmly settled to be questioned now. Binney’s Casa, 2 Bland,, 127. Such grants, of course, are subject to the public right of fishing and navigation, but the land beneath the water belongs to the grantee of the State as much as the soil of a public road within a farmer’s lands belongs to him, though be cannot prevent the public from passing over it. Chapman vs. Hoskins, 2 Md. Oh. Dec., 491.
2nd. An examination of the Acts of 1784, cb. 38, and 1823, ch. 140, will clearly show “that nothing in either of them,” in the words of the able opinion of the Commissioner, ‘han be construed into a grant by the State of any of her vacant land;” still less of this land, with which neither of the companies alluded to, so far as the record shows, ever bad any connection. But if our claims are in derogation of the rights of the Potomac Co. and Ches, and Ohio Canal Co., the Act of 1853 is equally so, and therefore confers no right upon the government of the United States.
3rd. There is nothing in the Act of 1853, ch. 179, which can reasonably be construed into a grant of any land to the United States for the use of the Aqueduct. The Act authorizes the United States to bv,y or condemn lands in the manner therein pointed out, and if the United States had been more vigilant, it might have obtained a patent for the vacant lands in this resurvey, or it can now buy them from the present owners, or condemn them according to the-law. The record shows that the Government did apply to the Land Office to buy the land long after' the passage of the Act of 1853, but the Commissioner declined to part with the State’s title except in the usual mode by warrant, &c. That Act was simply a grant of concurrent jurisdiction to the United States over the lands which might be “'purchased” for the purposes of the Aqueduct.. The title fully discloses its real and only objects, and any thing in the body of the Act outside of the title is to be considered as-“irrelevant and void.” Davis vs. State, 7 Md. Hep., 157.
Does the title imply any thing like a grant by the State of its public domain ? Its words are “An Act giving the-assent of the State of Maryland to such plan as may he-adopted by the President of the United States for supplying the city of Washington with water,” surely there is. nothing like a grant of land disclosed here.
The preamble, “The key of the Statute,” declares, that whereas, Congress has appropriated money “for the purpose of supplying the city of Washington with water, upon-such plan as the President of the United States may approve, on the condition, that if such plan should require said water to be drawn from, any source within the limits of the State of Maryland, the assent of that State should first be obtained,” (not that a grant should first be obtained,), and whereas, by a joint resolution of Congress in 1841, “it is provided that no public money shall be expended upon any land or site hereafter to he purchased for the United States, until the consent of the Legislature of the State in-which the land or site may be, shall be given for such purpose, and as it is also made the duty of the Secretary or head of the proper department, to apply to said Legislature for a cession of the necessary jurisdiction over said lands.” It seems clear that there is nothing like a grant here, for the preamble evidently speaks as of tbo assent of the State to th e purchase, and of tbe cession of jurisdiction.
The 1st section explicitly says, that if the water should be drawn from within the limits of the State, “ consent is hereby given to the United States to purchase such lands, and to construct such dams, reservoirs, buildings and other works, and to exercise concurrently with the State of Maryland such jurisdiction over the same as may he necessary for the said purpose.”
It seems equally clear, that this section only announces the consent of the State to the purchase of lands, and to the exercise of such concurrent jurisdiction as might he necessary in building and maintaining the aqueduct, and cannot he considered as a grant.
The 2d and 3d sections of the Act simply authorize the United States to condemn lauds where their agents “cannot agree with the owners for th a purchase,” &c., according to the plan prescribed in the charter of the Chesapeake and Ohio Canal Company.
The 4th section reserves all rights vested in the Canal Company, or granted by it to individuals; and the 5th section requires the adoption of proper measures to guard the canal from injury by the construction of the aqueduct.
The whole Act really does not seem to he as full a grant by the State as cb. 185 of tbe same year, “ceding to the United States the jurisdiction over the addition to the site of the Naval School at Annapolis,” and is certainly as bare of anything like an express grant of property.
It is not denied that the State may give its property to the United States, or to individuals, by proper legislative grant. But wherever it has undertaken to do so, the grant has been explicit; as in the Act of 1745, ch. 9, sec. 10, referred to in Wilson’s Lessee vs. Litloes, IT (A & J., 357.
It is insisted by the appellant, that the grant may beimplicd from tbe language of tbe Act of 1853, and tbe case of the Corporation of Georgetown vs. Alex. Gan.'Go., 12 Peters, 91, is relied upon in support of the position. Bui in that case there was no question as to the title of the bed of the river. It was simply an application to restrain by injunction the construction of the aqueduct, as a public nuisance. The Court held that the grant by Congress, in 1830, to the Alexandria Canal Company, was necessarily a grant of the right to build the aqueduct complained of. A ^comparison, however, of the Act of Congress, of 1830, 6 Stat. ■ at Large, 420, and the Maryland Act of 1853, ch. 119, will show that the language of the two is widely different.
We deny that the Act of 1853, ch. 119, does grant the use of the water of the Potomac to the United States, as alleged. It only consents that the Government may purchase lands having water privileges. But if it did grant the use of the water, we deny that this would “ necessarily imply the grant of the bed of the river.” For if this were so, the State had long before granted the bed of the river to the Chesapeake and Ohio Canal Company.
4th. There is nothing to show that any of this land is covered by water. Moreover the patent can confer no right upon the patentee, inconsistent with the rights of public fishery and navigation, if the land were covered by navigable water, or of public fishery and use of the water after it has flowed over the land, if it were covered by unnavigable water. The case of Ohapmcm vs. Hoshins, decides no such proposition as is here contended for: If the Court sees that the patent will be inoperative, because of a prior title existing for so long a time as to present an impregnable title against the State’s grant, it will not issue the patent. B.ut the State has never refused to sell any part of her vacant land, because it is represented to be of small value, and likely, for this reason, to be an unprofitable bargain to the buyer. If the United States desires to buy the land from the appellees, the parties can agree upon terms, or if not, the right of condemnation by a jury is expressly given by a law of the State. No right of navigation can be interfered with by a patent, for the Potomac here is a foaming torrent rushing over rocks, and is scarcely more navigable-than Niagara itself.
5th. There being no proof whatever of the matter alleged in the fifth reason of appeal, it is unnecessary to discuss it.
The 6th and 7th reasons are conclusively answered in the opinion of the Commissioner.
In reply to the 8th reason, we say that no-such duty was imposed upon the surveyor by the warrant, or by any rule of the Land Office.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
