BALTIMORE v. McKIM.—3 BLAND. 465

of prerogatives held and enjoyed by him; the most of which he
may, by a patent under the great seal, grant to an individual.
Bac. Abr. tit. Prerogative, F. But here no department or branch
of our limited government has been entrusted with any such large
and uncontrolled power of making grants to individuals. The
executive has been prohibited from exercising any such preroga-
tive; and the Legislature have only so much of a discretionary
power delegated fo them as will enable them to act within their
proper sphere for the public good. No * patent can issue
from the land office, but according to its settled rule; or lor 473
any thing not allowed by law to be sold there according to those
rules. Nothing can be sold in the land office, but the State's right
of soil in land, and the improvements affixed thereto as parcel
thereof. The title of the State of which it there makes sale, is
only in such land as had never before been granted to any one: or
where an individual had done some acts towards acquiring a title
which he had neglected to complete: or where the complete title
which had been granted, had fallen back, or escheated for want
of an heir or successor of the original grantee, or him who claimed
under him, who could take and hold.

Hence it is always distinctly understood, that every one who
goes into the land office, with an intention to buy, only proposes
to purchase of the State its title to lands held in one or other of
these modes; because nothing else can be sold there. A patent
from the land office can convey nothing else; it cannot give to the
grantee any franchise or privilege which is not necessarily and
always embraced in a grant of the legal title to the land itself; it
cannot give to the grantee a mere right of way; or a right to de-
mand and collect toll or wharfage anywhere; because such things
are not, and cannot be sold or granted in the land office. And,
therefore, no question concerning any right to demand and receive
toll or wharfage anywhere can be incidentally heard and decided
by the Chancellor upon a caveat in the land office.

But if land, to which the State has a title, is in any way incum-
bered, such in cumbered title may well pass by a patent from the
land office: and the grantee will take and hold, subject to such
incumbrance. As where the owner in fee, after having leased the
land for years, died intestate and without heirs; so that his right
escheated. It was held, that the grantee from the State, under
an escheat warrant, could only take subject to the lease, (h) So,
too, where the land had been mortgaged before the title reverted
to the State. Hix v. The Attorney-General, Hard. 176; 1799, ch.
79, s. 7; 1805, ch. 93. And where the State had granted land
covered with navigable water; it was held, that the grantee could

(h) LINE'S CASE, 1680.—At a council held in the land office.—Land Records,
lib.B. C.fol. 118.

30 3 B.