| Volume 200, Volume 2, Page 496 View pdf image (33K) |
 |
|
|
 |
|
|
496 HIGH COURT OF CHANCERY. is covered by the navigable waters of the river, it is not grant- able, or if grantable, it must be subject to the jus publicum, which the state has no power to impair, and that if hereafter the waters should recede from the shore, or there should be any increase of the land from alluvion, his rights as riparian propri- etor attach to it. But until then, and so long as the waters flow over the land, which may be for an indefinite period, no mode exists by which the question can be brought before a court of law, and it is not perceived, upon what ground the patent can be called .in question in a court of equity because there could be no pretence that there was either fraud, surprise, or undue advantage taken in procuring it. It would present a case, therefore, in which the state would grant a patent, which would confer upon the grantee no valuable right, but which would hang like an incubus over the rights of another person, without giving that person an opportunity of removing it. Such a course surely can find no warrant in the principles of equity, which furnish the rule of decisions in this court, in the absence of positive law upon the subject, or when the law of the land office does not prescribe the rule, Cunningham vs. Browning, 1 Bland, 326; The Rail Road vs. Hoye, 2 Bland, 263. The case of John M. Carpenter vs. Mandus, decided by the late Chancellor, in the land, office, in 1845, has been cited as conclusive in favor of the right of the caveatee in this case. But it appears to me distinguishable from it in several material particulars. In the first place, the land for which the patent issued, was in some states of the tide, above the water. That it was an island, and the depositions taken in that case, show that improvements were made upon it by the careatees, and there was no pretence, that by making these improvements, they interfered with the rights of navigation and fishing. And in the next place, Mr. Carpenter, the caveator, whose land lay on the Virginia side of the river, from which the island was separated by its navigable waters, had and could have no claim to it, as riparian proprietor. That case, therefore, is not like the present. Upon the whole case, therefore, my opinion is, that no patent |
| |||
|
| ||||
|
| ||||
Please view image to verify text. To report an error, please contact us.
Reports of Cases in the High Court of Chancery of Maryland 1846-1854
| Volume 200, Volume 2, Page 496 View pdf image (33K) |
|
Tell Us What You Think About the Maryland State Archives Website!
|
An Archives of Maryland electronic publication.
For information contact
mdlegal@mdarchives.state.md.us.
Maryland State Archives