|
|
|
|
|
|
|
|
|
|
|
|
|
|
474 HUGHLETT'S CASE.
From which it necessarily follows, that if a public street or road
passes over any land belonging to the state, the patentee of such
land can only take subject to such right of way. A wharf, in a public
port, is, as to this matter, governed by the same general principles
of law. The use of a wharf, like that of a road or a navigable
river, may belong to the public, or it may be held entirely separate
from the soil itself, upon which the wharf has been built. And,
consequently, a grant of the state's title to the land cannot, in any
manner, affect a pre-existing right to the use of the wharf any
more than a grant of the bed of a navigable river, or of the land
over which a road passes, can affect the previously vested usufruc-
tuary interest of the public, or of any individual, (t)
And, therefore, although it is-in general true, that it is enough to
prevent the issuing of a patent, for the caveator to shew an out-
standing legal title any where,- not belonging to the state; (u) yet
as no such title has been shewn here, I am clearly of opinion, that
a patent may well issue for this strip of land; because the grantee
can only take it, as it is, subject to all the uses with which it may
have been previously charged.
Whereupon it is Decreed, That the said caveat of The Mayor
and City Council of Baltimore, against the said certificate of Isaac
McKim, &c., be and the same is hereby set aside and overruled
with costs, to be taxed by the register.
|
|
|
|
|
|
|
|
|
|
HUGHLETT'S CASE.
A. right to take out a warrant of resurvey is an incident only of a legal title derived
from a patent, or of an imperfect legal title under a certificate compounded on.—
Where the holder of a tract of land by a legal title, by a warrant of resurvey, takes
in some contiguous vacancy, and then makes sale of the original tract by its name
and description, as the vacancy embraced by the certificate, under the warrant of
resurvey, does not thereby pass to the purchaser, he cannot obtain a patent upon
such certificate of resurvey.
THIS case arose in the Land Office on a petition by William
Hughlett, for a patent. It appeared, that Aaron Allford, holding
a patent for a tract of land containing three hundred and sixty-five
acres, by the name of Allford's Fancy, had obtained a warrant of
(f) Godtitle v. Alker, 1 Burr, 143.—-(u) Hammond v. Godman, 1 Bland, 318, note.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
 |
