Hazlehurst v. Mayor of Baltimore

37 Md. 199, 1872 Md. LEXIS 119

Opinion

Miller, J.,

delivered the opinion of the Court.

This bill prays for an injunction to restrain the Mayor and City Council of Baltimore, and the City Collector from proceeding to collect certain benefits and assessments imposed upon the property of the complainants, for the widening of Light Street under City Ordinance No. 7, of 1869. The first section of that Ordinance, authorizes and directs the Street Commissioners “to condemn and widen all that part of Light Street, between Pratt and Lee Streets; the said widening to he made twenty feet, eastwardly, from the eastern side of said street.” According to our reading of the bill and understanding of the arguments of the appellants’ counsel, the grounds upon which the validity of this Ordinance and the proceedings themselves are assailed, and upon which the injunction is asked, are in substance these :

1st. That the twenty feet taken for this supposed widening are part of the public highway of sixty feet, established by the Acts of 1796, ch. 45, 1801, ch. 92, and 1805, ch. 84, and that it is beyond the scope of municipal power, either to abridge or condemn, and dedicate anew any part of the public highway, thus irrevocably made such by authority of the State itself, and over its own property.

2nd. That by the plain meaning of the Ordinance, the widening must be made from the eastern edge of the highway, as established by these Acts of the Legislature, that is to say, twenty feet into the water, eastwardly from the present water edge of the Light Street wharves, and that the Commissioners by adopting an erroneous line of commencement, have acted outside of the authority conferred by the Ordinance.

3rd. That the proceedings under this special Ordinance, are null and void, because the Commissioners did not complete the exercise of their powers and duties thereunder within sixty days, as prescribed by general Ordinance, No. 26, sec. 17, of 1866.

1st. We are unable to distinguish the first ground of objection from that stated in the fifth reason for quashing the proceedings, which was overruled by this Court in Page’s case, 34 Md., 558. The objection then made and urged was, that Light Street wharf, from Pratt to Lee Streets, for many years prior to the passage of this Ordinance, had been and still is a public highway, having been condemned as such by the Acts of 1796 and 1805. In that case, the several Acts of Assembly bearing upon the subject, the Ordinance of 1826, ch. 12, sec. 3, and the damage plat showing what part of the locality had been used exclusively as a street, and what for the purpose of wharves only, before and at the time the Ordinance of 1869 was passed, were before the Court and pressed upon its attention. Elaborate arguments were made by counsel upon the construction and effect of these laws, and the question not unattended with difficulty, was carefully considered by the Court. Its judgment, with the reasons- therefor, adverse to the objection, and sustaining in this respect the validity of the Ordinance, was deliberately formed and pronounced. The only additional matter contained in this record is proof by ancient plats, and oral testimony, as to the relative position of the land and water in 1796 and 1805, when these laws were passed. That however furnishes but little if any aid, in determining the true construction of this legislation, and the conflicting rights of wharfage and public highway thereby created. The only useful inference deducible from it, is that the filling up and wharfing out contemplated and authorized by these laws, was a work of considerable magnitude, and must have been attended with great expense to the riparian owners and improvers.

The argument for the complainants more fully presented, perhaps, in this than in the former case, is that the title to the soil covered by navigable water was in the State, and by these laws and as a free gift from it, the riparian proprietors were permitted to fill out and wharf and have “an estate upon condition,” viz: that a highway of sixty feet should there exist for the public forever ; that the made-land, wharfage, and highway of sixty feet are all to co-exist; that the highway to its full width is to exist before any estate or wharfage can arise, and that embanking out on the State’s lands binds to the performance of this condition precedent: that the only estate the riparian owners can have is a right to moor vessels to the edge of the wharves, and to receive fees for such use and for the loading and unloading of cargoes: that should any space for such purpose be required it should have been taken, then the sixty feet laid off, and then warehouses might have been erected on the residue : and even should the existence of a highway of sixty feet make nugatory the wharfage right, it must yield to the highway. But in our judgment the doctrine of estates upon condition, and the rule of strict construction most wisely applied by the Courts to grants of franchises to private corporations, can find no application here. These laws belong to a different class of legislation, and the rights conferred by them are to be ascertained from the language used, the obvious purpose of the Legislature expressed upon their face, and the end plainly designed to be accomplished. Long prior to the first of these enactments, the Legislature by the Act of 1745, ch. 9, sec. 10, supplemental to other Acts erecting Baltimore Town, had declared that all improvements of what kind soever, either wharves, houses, or other buildings that have been 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. The Act of 1796 was passed, as its preamble shows, upon petition of a number of inhabitants of Baltimore Town, setting forth that for want of convenient wharves at the .-west end of said town, that part of said town is deprived of many advantages it would otherwise enjoy, and in consideration of the representation thus made it was enacted by the second section, “that each and every of the proprietors of lots binding on and entitled to the privileges of the water, at the west end of Baltimore Town, between. Pratt street and Forest street, shall be and are hereby permitted to wharf out, extend and improve the whole front of their several lots respectively, and for such distance as from time to time they may deem fit, until they intersect the east side of a line drawn from the east side of Light street to the east side of Forest street, provided the whole front of each proprietor’s lot be extended, and no dock or vacant space left on part thereof. ” The third section then declares, “that the proprietors of said wharves shall be entitled solely and exclusively to the emoluments arising from the wharfage thereof, provided always that the proprietor or proprietors of said lots in making out and' extending the same, shall be subject to the rules, regulations and ordinances of the Board "of Wardens, or other constituted authority of Baltimore Town, respecting the manner the said wharves shall be extended, and also for the regulation of the wharfage thereof; and provided also, that eighty feet of the said wharves, when so made out and •extended, at the end thereof parallel with the line of Forest street, shall be deemed, taken and considered as a public highway forever thereafter, reserving, nevertheless, to the proprietors of said wharves the benefit and advantage of the wharfage thereof under the limitations aforesaid.-” The Act of 1801 limits the highway to sixty feet with the same reservation of wharfage. In 1805 another petition was presented to the General Assembly, stating that some of the proprietors had made the improvements, and that but a small part of the work remained to he done. The Legislature thereupon passed an Act making it the duty of the proprietors who had not extended their lots, to do so within two years, and if they made default, the city was authorized to complete the work within one year thereafter, and if the latter neglected or refused, then it was made lawful for any individual who should first signify his intention so to do, to make the improvement. This Act also contains a section respecting wharfage and the highway of sixty feet,, to the same effect and in almost the identical language of the Act of 1796.

From a careful consideration of these statutes, it is apparent to our minds, the main purpose the Legislature had in view, and the improvements they deemed important, was not the making of a public highway, hut the construction and erection of wharves to accommodate and promote the commerce and trade of the city. And in order that this might be done without direct charge to the State or city, the Legislature encouraged and induced private owners of water-lots to fill out and build the wharves at their own cost and expense, by an express grant and reservation to them of wharfage rights and privileges. The work having been thus undertaken and completed by private individuals at their own expense, upon the faith of this grant and reservation, no narrow construction should be placed upon it as against them and iu favor of the highway. The terms as well as the purpose of the statute forbid it. Eor it not only designates these improvers as “proprietors of the wharves,” and makes an express and exclusive grant to them of “the emoluments arising from the wharfage,” but in the clause establishing the highway there is a careful reservation “ to the proprietors of the wharves of the benefit and advantage of the wharfage thereof.” Thus the very proviso which creates the highway qualifies it by the reservation of these rights. The highway thus established cannot make nugatory the wharfage right; if either is paramount, and if conflict arises between them, it is the former and not the latter which is subordinate, and must give way. Again, these statutes do not permit the filling out to be extended beyond the designated line, and the sixty feet of highway is made to extend to the same line. Under these laws no space could be filled up or wharves constructed eastwardly beyond the sixty feet, and therefore any use of these wharves as authorized to be built for the purpose of loading or unloading cargoes, would necessarily obstruct and interfere with some part of these sixty feet, so as to prevent it from being an unqualified highway. This clearly shows it could not have been the design of this legislation to make, and that it did not in fact make, a complete and absolute highway throughout the whole limit of these sixty feet, but that for a part at least of this extent it was to be, and in truth is, “incomplete, qualified and limited,” as was said in Page’s case.

How much then of this space have these ¡proprietors the right to use and occupy for wharfage purposes? We know of no better answer to be'given to this question than to say, they have the right to use as much of it as is necessary for the fair and just enjoyment of the privileges granted and reserved to them by these statutes. These privileges, defined by the law to be “ emoluments arising from,” and “the benefit and advantage of, wharfage,” are not confined to the mere right to moor vessels to the edges of the wharves and receive fees for such use of them, but extend to the use of the wharves for such space and time as may be necessary for the purpose of loading and unloading from vessels, cargoes of every kind and description, and for receiving and protecting the same for a reasonable time, before and after, as well as while in the course of being loaded and unloaded. The damage plat offered in evidence, shows that these proprietors have used and are now using these wharves, and interfering with the highway in a greater or less degree, for a space extending from their edges to and over the twenty feet condemned by this Ordinance. Assuming this to be necessary to the just and reasonable enjoyment of their privileges, their right to such use is valuable, and can only be extinguished for the purpose of an unqualified highway or street, by an Ordinance of this character. We cannot determine the contrary from anything appearing in this case, if indeed such a question could be raised in a proceeding like the present. What would constitute an unwarrantable use by them of any portion of this space, or what would be an unauthorized abridgment of this highway by the erection of improper buildings or obstructions on these wharves, or whether any such have been or are now placed thereon, are questions which we have no power to adjudicate under this bill. What we are asked to do now, (and that is the foundation of the jurisdiction of a Court of Equity to grant, the relief prayed for,) is to declare this Ordinance totally null and void, and we can do that only upon the ground, that the right of highway in the entire twenty feet of widening which it directs to be made, is absolute, unqualified and paramount, and irrevocably made so by these statutes. Oiir opinion upon that question has been sufficiently expressed. The Ordinance of 1826, ch. 12, sec. 3, declared it should not be lawful to encroach upon these wharves with any article landed thereon further than eighteen feet, measuring from the inner edge of the logs or stones of which they are formed,. Even this would allow an encroachment upon part of the twenty feet now condemned, but it does not appear this Ordinance was ever enforced, and in our opinion it could not have been enforced against the wharf proprietors, in restriction of the enjoyment of their privileges to the extent and in the manner before stated. Whether the fee in these sixty feet remained in the State, or passed, by the laws to which we have referred, to the improvers, is a question more difficult than important now to be determined; for if it be conceded to remain in the State, that fact could in no wise limit or affect the wharfage rights we have been considering. They exist by force and effect of the grants and reservations contained in the statutes themselves, no matter where the fee in the land may remain. It results from these views that we cannot determine that the Ordinance' in question • is not a valid exercise of the power conferred upon the city authorities, to open and widen streets', because there are no proper subjects of condemnation for that purpose upon which it can operate. ' The first ground of objection to it therefore cannot be sustained.

With respect to what is alleged in the bill, and has been said in argument as to the amount of damages allowed for this condemnation, and the corresponding heavy assessments for benefits, it is hardly necessary to say that this Court under this proceeding, has no power to administer relief for such grievances. The law has provided other modes for their redress, and if tlie complainants have neglected to pursue or have unsuccessfully pursued them, it is a misfortune which cannot be made a substantive ground of relief by a bill in Equity.

2d. What has already been said, enables us to dispose of the second objection in a few words. The Ordinance of 1869 was passed with reference to the state of things then existing, and it must .be thereby construed and applied. It cannot be referred to the highway mentioned, and described in the Acts of 1796 and 1805. If therefore, the commissioners in applying the Ordinance to existing state of things found, as it appears they did, that but twenty-six feet from the western side of Light street had been paved and used exclusively as a public street, and that the remainder of the sixty feet were held and used by the wharf proprietors, they were entirely right in assuming the eastern edge of these twenty-six feet, as the eastern side of said street, and making this the line from which the twenty feet of widening eastwardly was to be made.

3d. The third objection is of a different character. It does not assail the validity of the Ordinance of 1869 upon any ground. It concedes that the Mayor and City Council had power and jurisdiction to pass it, and that the commissioners did that which it authorized and directed to be done. Conceding this, the objection attacks the validity and regularity of the proceedings of the commissioners, because they failed to observe one of the directions or requirements of the Ordinance of 1866, ch. 26. This latter Ordinance provides for the appointment of Street Commissioners, defines their powers, prescribes their duties, and directs the mode of procedure to be observed by them; and among these is the provision of sect. 17, that they shall be allowed ninety days to complete any proceedings commenced by them under that or any future Ordinance, and if they cannot so complete the same, they shall report the fact to the Mayor and City Council, and shall suspend all further proceedings until otherwise directed. Failure to observe this direction or requirement, constitutes the objection now made. Whatever force this objection might have had if presented at the proper time and in the proper forum, we are clearly of opinion it furnishes no ground for the interference of a Court of Equity. Objections like this may be taken advantage of upon the appeal provided by law from the action of the Street Commissioners. Failure to complete their work within ninety days and completing it after-wards without first obtaining direction so to do from the City authorities, is a defect, if one at all, of the same character as failure to take the prescribed oath or to .give the required notice before proceeding to act. It was decided in Page’s Oase, upon a careful review of the authorities that such objections could be availed of by motion to quash the proceedings on appeal to the City Court by a party, deeming himself aggrieved by the assessment of damages. The Court in that case said “ there is no doubt that where an Ordinance is void and its provisions are about to be enforced, any party whose interests are to be injuriously affected thereby, may and properly ought to go into a Court of Equity and have the exegution of the Ordinance stayed by injunction.” This proposition was supported by reference to cases where execution of Ordinances was enjoined by a Court of Equity, because the municipal authorities had, or had acquired, no jurisdiction or authority to pass them. But it was also there decided that where an appeal is given by law to the parties to be affected by the action of Street Commissioners, any objections going merely to the legality and regularity of their proceedings, are open for review on that appeal, and redress on such grounds must be sought in that mode only. The authorities there cited not only sustain this position, but also the further and familiar one, that a party who fails or neglects to avail himself of the means provided by law for redress of the wrong of which he complains, is without remedy in a Court of Equity. 6 Gill, 402 ; 6 G. & J., 312.

(Decided 20th December, 1872.)

Decree affirmed.