Dugan v. Mayor of Baltimore

5 G. & J. 357

• Court: Court of Appeals of Maryland
• Decided: June 15, 1833
• Status: Published

Opinion

Doksey, J.,

delivered the opinion of the court.

The appeal of Dugan and M’Elderry against the Mayor and City Council of Baltimore, will first be considered. The right of the appellants to collect the wharfage in question, has in the argument, been asserted to arise under the act of assembly of 1745, ch. 9, sec. 10; which, in reference to the town, now city of Baltimore, declares “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.” But this act of assembly gives no support to the claims, in aid of which it has been invoked. The improvement made by Dugan and M’Elderry, in front of the market house lot, is not such an improvement as is justified by that act of assembly. So to construe it, would be to give it a literal, not a sound, or rational interpretation. The irnprovements authorised and encouraged were those made by improvers in front of their own lots, not of their neighbors. The legislature never designed such invasion of the rights of private property; nor indeed had they the power to legalize it, if such had been their intention. But if this act of assembly could have sustained the appellant, he has waived all claim to relief under it, by withdrawing his first bill of complaint, and filing his third as a substitute therefor. His title to wharfage, if it existed at all, is derived from the permission for his improvement, granted in 1794, by the commissioners of Baltimore town. This permission, or contract, if it may be so called, is, it has been insisted, on the part of the appellants, a nullity, and discharged of all obligation as respects Dugan; because the town commissioners having, under the act of 1784, ch. 62, no power to extend their grounds but in the extension of the market house, could confer no such authority as that which had been exerted by Dugan and M’Elderry. This assertion is in direct contradiction to the positive allegations contained in their bills. To ascertain its correctness, however, it becomes necessary to examine into the nature and extent of the interest of the town commissioners in the market house property, and the “privilege” of extension therewith conferred. If, as is alleged, this “privilege” was nothing more than the extending the market house to the channel of the basin, it is evident that Dugan and M’Elderry derived from the commissioners no such authority as that which has been exercised under the permission.

The solution of this inquiry depends entirely on the true construction of the second section of the act of 1784; which enacts that Samuel Smith and others, “shall have full power and authority by this act, to build and erect a market house on a parcel of ground, situate'in the said town, opposite Harrison street, beginning on Baltimore street, and running thence south, parrellel with Gay street, of the width of one hundred and fifty feet, to Water street, with the privilege of extending the same to the channel; and that the said market house, when erected, and the ground whereon the same shall he built, with the privilege aforesaid, shall he, and is hereby declared to be vested in the said commissioners of Baltimore town and their successors forever, from and immediately after the said market house shall be built and erected; to hold, possess, and enjoy the same market house, ground and privilege aforesaid, to and for the use and benefit of the said town, in as full and ample manner as if the said commissioners had been legally constituted a body politic and corporate, in deed and in name; provided always, that the said Samuel Smith and others, shall erect and build the said market house in a good substantial workman-like manner, according to such plan and dimensions as the commissioners of Baltimore town shall approve, on or before the first day of March, in the year one thousand seven hundred and eighty-seven.” What vested in the commissioners of Baltimore town, under this legislative provision, is the question to be determined?

That the market house, when built, passed to them is undeniable ; but what quantity of ground was transferred with it, is a matter not so self-evident. To give to this enactment a superficial examination, a literal interpretation, and it might be said, that no more ground passed to the commissioners than that which the market house built, actually occupied. But when we advert to the size of the ground, the privilege conferred as to its extension, the nature of a market house, its probable dimensions, the facilities necessary to its beneficial enjoyment, and the benevolent designs of the legislature manifested in relation thereto; it is impossible to doubt that they intended to vest in the commissioners the entire ground described. Give to their act a different exposition, and the market house is stript of its most valuable, nay, inseparable appendages; it no longer exists as of public utility. Houses might be built in immediate contact with its sides; and wagons, carts, and such other vehicles as usually attend a public market, are wholly excluded, there being no place appropriated for their reception. Whoever saw, or heard of a market house without public avenues, or highways on its sides, for the accommodation of the public ? That it was intended for the market house to cover the entire ground by being erected of one hundred and fifty feet in width, is an idea too absurd to be indulged for a moment} indeed, it is distinctly repudiated by the conclusion of the aforeging section of the law, which provides, that the market house shall be built of such plan and dimensions as the commissioners shall approve. If the legislature meant to convey nothing more than the ground actually covered by the market house, what motive could have prompted them to transfer the privilege, not only of extending to the channel the lot occupied by the market house, but also the water front of the lots on the east and west sides of it? Our construction of this clause of the act of assembly, in relation to the limits of the ground which was granted, is not only consistent with the spirit and objects of the law, but is in accordance with its terms and expressions. It describes the ground suitable for the purpose, authorises the erection of the market house thereon, and then grants the market house, with the ground on which it is built. On what ground was it built? On that ground which was described and appropriated for that purpose. The entire parcel of ground clearly passed to the town commissioners.

It was contended in the argument that in the grant of the “privilege of extending the same to the channel,” the relative term “same,” there used, referred to the market house, and not to the ground whereon it was to be erected. If such was the design of the general assembly, it is difficult to conceive by what motives they were actuated. What? extend a market house fourteen hundred feet through the marsh, and into the water, to the very channel of the basin, and leave in contact with each side of it, such a marsh and depth of water as would preclude all possibility of approaching it, but through its northern extremity. It has been com-mon to grant the privilge of extending lots of ground into die basin; but it is perhaps the first time that it was ever alleged, that an authority was granted to extend houses into navigable water. There is, however, nothing to warrant this construction. According to the obvious meaning and grammatical interpretation of the sentence, the relative, “same,” agrees with its more immediate antecedent “ground;” and the ground referred to, is the market house lot of one hundred and fifty feet wide. That the “privilege” thus conferred, with the ground which might be reclaimed under it, were vested in the town commissioners in fee simple, there is no room for the suggestion of a doubt. But it is insisted on in the bills of complaint, and in the argument at bar, that its use and enjoyment by the city, is exclusively limited to the erection of a market house thereon. If such was the intention of the legislature, it is impossible to collect it from their act. They have used no words of limitation, or restriction, as to the purposes to which this extension of ground was to be appropriated, nor can any be inferred from the nature of the grant, its subject matter, nor any of the circumstances attending it. On the contrary, they declared that this “privilege,” shall vest in the commissioners of Baltimore town and their successors forever, “to, and for the use and benefit of the said town.” Thus leaving the mode of its enjoyment, the purposes to which it was to be applied, to the sound discretion of those, who were created the trustees, or guardians of the interests of the town. These commissioners acting in its behalf, and for its benefit, might have improved this “privilege” themselves, by filling up from time to time, or at any time, this immense space, or any part of it; or employed, or permitted, upon such terms and conditions as to them seemed reasonable and just, other persons to do so. Under this power, and in virtue of their permission, the improvement of Dugan and McElderry has been effected. Their rights then, over the wharves and ground, extended In front of the market house lot, depend altogether upon the construction that may be given to the permission they received from, or in other words, the contract they made with the town commissioners. Upon this subject, as far as Dugan and McElderry'1 s claim to wharfage is concerned, we think the permission or contract under which they acted too explicit,’and unambiguous, to permit us to entertain even a momentary doubt. In the wharves and canal to be constructed, the town commissioners neither gave, nor intended to give to Dugan and McElderry, any right of domain, or of property. Their attempt to charge wharfage, therefore, has no colorable pretext to support it, and is a violation of the spirit and meaning of that condition imposed by the town commissioners, which declares, “that the said canal, wharves, and streets on each side of said canal, be a common highway, and free for the public use.” A distinct annunciation to Dugan and McElderry, that they had no right therein, but in common with the rest of the community. Great stress appears to be placed on the fact, that the canal and wharves were made by Dugan and Mc-Elderry at an immense expenditure of money, and that the health, and commerce of the city, have been greatly promoted by their “improvement,” and we are left to infer, that all this has been done with the most patriotic public spirit, and disinterested motives; with a single eye to the public benefit;—that this effort by the corporate authorities of the city of Baltimore to deprive them of this wharfage, their only return for this enormous expense of money and labor, is an act of ingratitude, persecution, oppression, and injustice, which should excite the indignation and sympathies of this court.

Are these grievances complained of, well founded ? Were these the considerations that induced the complainants to engage in their laborious and expensive undertaking? Is this wharfage the only remuneration they receive for their inordinate sacrifices ? A slight comparison of their condition before, and after the completion of their improvement, will rectify any misapprehension on this subject, that might ¡otherwise arise.

In 1794, Dugan and McElderry were the owners of two lots fronting on the water, and adjoining the market house, the one being on the west side of it, the other on the east. Whether the front of each of those lots was 30, 40, 50, or 100 feet on Water street is not shown by the record. Suppose Dugan and McElderry had extended their lots into the basin to the channel, or port wardens’ line, without any additional extension under the town commissioners’ privilege ; how many feet of water front, or wharf property would they have been entitled to ? As many feet, and no more, as their lots fronted on Water street. What length of wharf would they have been compelled to make to attain that object? Precisely the same length of wharf, except eight feet on Pratt street, which they have now made; the wharves on the sides of their lots, binding on the market house lot “privilege” being indispensable to prevent the earth, with which their lots was filled, from washing away and filling up, and destroying the navigation of the basin. Their net gain of water front, or wharf lots under the permission of the town commissioners is two thousand feet, perhaps ten times as much navigable front on the water, as they could legally have acquired, by availing themselves only of their own water rights. By this operation they have rendered their property, in all probability, at least four or five times as valuable as it would otherwise have been. And what compensation do the Mayor and City Council of Baltimore, (who under its charter are clothed with all the powers of the town commissioners,) receive as territorial proprietors of their “privilege ; ” for its enjoyment by Dugan and McElderry ‘l According to the pretensions of the latter, not one farthing. And furthermore, agreeably to that part of the chancellor’s decree, relative to the repairing of these wharves, (which is unquestionably correct,) the corporation are bound to bear the whole burden of repairs. This to be sure, would be a left handod} unilateral bargain with which it would be difficult to find a parallel. Seeing no equity in the claims of the complainants, Dugan and McElderry, their several bills of complaint against the Mayor and City Council of Baltimore ought to be dismissed with costs, as concerns Dugan and McElderry, both in this court and in the Court of Chancery ; but without costs so far as the widow and heirs of Mc-Elderry are concerned ; and the injunction issued in those cases is dissolved.

Having disposed of the cases of Dugan and McElderry against the Mayor and City Council of Baltimore; our next duty is to examine, upon the bill filed by the latter against Cumberland Dugan, what- right the corporation of Baltimore have to collect the wharfage to which, by their bill, they have made claim. To make this examination, we must settle the true construction of the permission, by which the commissioners of Baltimore town authorised the “improvement” made by Dugan and McElderry; according to which we think, that no right of property or domain passed to them, in the canal, wharves, and streets constructed under the commissioners’ “privilege.” But that the same, vested in the said commissioners, in the same manner, that they would have done, had the “improvement” been made by themselves ; except so far, as their powers were abridged, by that condition attached to their permission, by which it was declared that “the said canal, wharves and streets, on each side of the said canal, be a common highway, and free for the public use, and subject to such regulations as the commissioners and their successors shall from time to time establish.” If to ascertain the meaning of this stipulation, we could look to the acts of the parties from the time when their stipulation could have been brought into operation, until the present moment, it is most manifest, that neither party supposed the right of wharfage was extinguished. Both parties admitted the existence of the right; the only controversy was, by whom it should be exercised. Over the wharfage collected at private wharves, or wharves other than those owned by the town or city of Baltimore, or made at the ends or sides of public streets, lanes and alleys, the town or city officers have no power or control. Its imposition and collection, is the exclusive privilege of the wharf owners; with it, the officers of the town or city have no concern. It is otherwise with wharf-age collected at wharves owned by the town or city, or at the ends or sides of the streets, lanes or alleys : all these are called public wharves; are common highways, free for the use of the public; but at which tolls were collected by the town, now city, officers.

In declaring the wharves on Market space, common highways, and free for the public use, the commissioners never designed to surrender their proprietary right; further than that the wharves should not be held as private wharves, under the absolute dominion of their owners; to which no vessel can approach, or make fast without the consent of the proprietors: but that they should be “free,” that is, (according to its obvious as well as literal sense,) open for the public use. They meant nothing more, than that the use of those wharves should be the common privilege of all; but never intended to relinquish the natural, inherent right, incident to their title of collecting a reasonable and customary wharfage. They do not agree that it shall be a highway for the use of the public, free of wharfage, or expense; but simply, that it should be a common highway, “free,” or (to use another word of the same import,) openíor the public use; leaving to the proprietors of the soil, their natural, inherent right of collecting a wharfage. All our turnpike roads are common highways, and free for the public use, but hot free from the collection of tolls. A wharf may be free from wharfage, and yet not a highway, or free for the public use; or it may be a highway, and free for the public use, and yet not free from wharfage.

From the nature of the permission, and circumstances attending it, granted to Dugan and McElderry by the town commissioners, ought we to infer a surrender of their rights of domain, beyond the terms of their stipulations ? Dugan and McElderry acquired, what was clearly the object of their application, an immense additional water front, and highways, or streets in front of their numerous warehouses, which they had in contemplation ; and which they have told us, they subsequently built. It was no part of their application, that “the canal, wharf, and streets when made should be free for the public use.” The only requisition, in their application was, that they should “be made public for the use of the inhabitants, under the laws and regulations of the town commissioners.” Is it then rational to presume, that when it was not even asked for, these commissioners by using the word “free” where they have used it, designed to relinquish an inherent, and unquestionable right, of great value to the town, and their only direct advantage, or income resulting from the “improvement,” whilst at the same time, they imposed upon Baltimore the new burden of keeping these wharves and streets in repair, and of furnishing at its own expense, officers to enfore such regulations as the said canal, wharf, and streets might render it necessary for them to establish ? Strip them of this claim to wharfage, the essence of their right of domain, and there is no more reason, or justice in holding them bound to repair these wharves, and incur the expense of these regulations; than there would be in requiring them to repair and regulate every private wharf in the city.

Was this asserted exemption from wharfage, deemed essential or appurtenant to the warehouses; the erection of which was the great object of the improvement ? The acts of Dugan demonstrate the contrary. He always denied its enjoyment to the occupants of the warehouses, and exercised himself the right of collection, as separate from, and independent of such occupation.

Can any thing be more reasonable and just, than this claim to wharfage ? The city of Baltimore as proprietor is bound to cleanse the canal, and to regulate and repair those wharves and streets. The natural fund to defray the necessary expenditure of which, is what? The wharfage; an income derived from those who enjoy the benefit of this expenditure. We cannot then by a technical strained construction of the word “free,” which those who used it could not have intended it to bear, invert the natural order and fitness of things, and deprive the city of jBaltimore as a freeholder, of its inherent rights of emolument, and at the same time impose on it all the correlative burdens.

In doing so we think the chancellor erred, and therefore reverse his decree, with costs to the appellants in this court, and in the Court of Chancery. The injunction issued against Cumberland Dugan should have been made perpetual, and a decree to account, passed in the usual form; for which purpose, and that the chancellor may pass such orders and decrees in the case, as are requisite to give full and final relief to the complainants, according to their equities, this cause is remanded to the Chancery Court.

DECREE REVERSED, AND CASE REMANDED TO THE COURT of chancery for further proceedings.