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BALTIMORE v. McKIM. 455
These claimants found their prayer for patents upon the facts,
that the state had never, at any time, either by a grant from the
Land Office, or, in any other legal manner, parted with its right of
soil, in the land in question to any one; and that it is such a piece
of grantable land for which they now may; or any one else might
have obtained a patent, according to the rules of the Land Office,
upon payment of the composition money.
On the other hand the caveators contend, that no patents can be
allowed to issue; because the strip of land in question was a
public wharf on which they, during many years, had charged and
collected wharfage; and the right of soil in all such wharves had
been virtually vested in them by the act which gives them the right
to charge and collect wharfage; (a) since to give all the uses of
land is, in effect, to give the land itself. And also because, even
supposing no right had been vested in them, by that act of Assem-
bly; yet it was sufficient to prevent the issuing of a patent, for
them to shew, that the state had previously parted with its right of
soil to any one else; or that this ground was not the subject of a
grant from the Land Office. To shew which they urged, that this
ground was an extension, not of any land belonging to John Smith,
or those claiming under him, but of a part of Gay street; and
consequently belonged as a rightful incident to the patentee of Cole's
Harbour, or those claiming under him; who alone were the owners
of the ground over which Gay street passed, and the incidents and
appurtenants thereto. Or, if, indeed, the right of soil in this strip
of land had not accrued to and vested in those holding under the
patent for Cole's Harbour, as a legal incident of their title; yet,
that the ground in question, in its present condition, charged as it
was with a public use, was not the proper subject of a grant from
the Land Office.
The Land Office has always been, as it now is, the general mar-
ket in which all public lands have been offered for sale; and into
which any one capable of holding real estate might come and pur-
chase according to the prescribed rules and terms of sale. This
office, so peculiar in its nature, evidently originated from the cir-
cumstance of the right of soil of the whole country having been
Tested exclusively in the Lord Proprietary as a part of his private
estate; and from the whole territory being at that time vacant, and
held by tribes of savages in their national capacities, and not as
(a) 1827, ch. 162.
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