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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 2, Page 490   View pdf image (33K)
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490 HIGH COURT OF CHAWCERY.
Ptt., 410, has been read, and it is supposed to be in conflict
with the decision of the Court of Appeals in Browne vs.
Kennedy. But, upon carefully examining me language of the
Chief Justice, it will be found, I think, that no such conflict
exists. He was not discussing the power of the king since magna
charts, to grant to the subject a portion of the soil, covered by the
navigable waters of the kingdom, without interfering with, or
affecting the public, or common right of user, for purposes of
navigation or fishing; but his power to make such grant, so as
to confer upon the grantee, the exclusive right of fishing, and
be concluded, that from the opinions expressed by the judges
of the court of King's Bench in the case of Blundell vs. Cat-
terall, 5 Barn & Ald., 287, 294, 304 and 309, and the Duke
of Somersett vs. Fogwell, 5 Barn & Ores; 883, 884, that the
point roust be regarded as settled in England, against the
power, not to grant the soil covered by navigable waters sub-
ject to the common right, but to make sach grant in violation
of, or in restraint of, such right.
It is very clear, I think, that the opinion of the Chief Jus-
tice is not in opposition to the decision of the Court of Ap-
peals in Browne vs. Kennedy; and that his high authority can-
not be invoked to shake, or throw a doubt upon the correctness
of that decision. But, if it were otherwise, considering as I
do that the point in question was expressly adjudicated by the
Court of Appeals, I should regard it as a binding authority,
though sitting here as judge of the land office, my judgment is
not, by direct appeal subject to the revision of the appellate
court.
But, though looking to the case of Browne vs. Kennedy, I
am clearly of opinion, the state has the power to grant land
covered by navigable waters, subject to the right of the public
to fish in, and to navigate them, it by no means follows, that
she is bound to do so, or that she will do sn, in every case in
which application is made to her.
In the case now under consideration, Mr. Hoskins, the
c»veatee, obtained from the land office a special warrant for
five acres of land, described as "vacant land, lying in the

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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 2, Page 490   View pdf image (33K)
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