THE
Em.WNDSON: ISLAND
CASm
Fu:aGUSON V.HAMLIN.
(Oircuit,Oourt- D. MaryZand. February 4. 1890.)
L
'!
, -';J;'he States, for the use of thefl.sli. commission, rentecl,an island in the Chesape,ake bay from whO,:was the owner by mesneconyeyances froJP tb6 l g'l.'antees nnder 'a patent from Maryland; The United States was already the ,ow*er,in fee by deed ofa illilaU areaotthe island. on wb.ich it'maintained a lighthouse., . ,During t.he tenancy certain exte.nilionsllnd were con!ltructE¥l We ''United States for the use of, the fish cottlmission,exte1\ding',out into tbe wa1i\:lrol1ithe nortll anq vO'elltof the island9 COIIsisting of aPout ha.lf an acre, wbtah Wall IlOlldly,filMd in, a,ud of,certain wllaryes, iJ1closures. ' Upon the 'termination of the lease the United Stateli removed; onto tht! newly-made land and all' the buUdipgs which it I:lad on tlie. island, for .the )llle of the , l1eh ,coIUIIlj.!l!lion, and refU.!l6d ,to give up p08!lell!lion thereto as B etructlirebuUt in tbe nll.vlgablewater of the Chesapeake baY' to protect the'light; """,d' conten,dell that the, plaintUf }lad notitllll on l:le,could;reclJOler c because of theJ,'estrictipn!l of Act14d: 1835, c. the el'terlt " tOW'hichtlie island lDight be extendoo;' Held, that by'the }!arjrl.aud' act 01' 1862 , 44. 45, Coae }fd.) the patentee I)f an Islandia waret"s.oHhe , a pght t? impr,?ve ,?u\< tn fl'QJ;lt of his lan!ls, prl!vide,d lmprovelpe,:\ts 'do not lliter'fere wlth naVigatIOn; thatlmprovements and extension!l made by such 1)y: his llelong to him,.although tllC\V IJlay,e1tiend further tibau'tl:le ,law they may 1>e"aba;ted. to ,the e:Jttent thattl:leY,!'rellnlawful,by proper proceedings, but the' oWnershlp cannot be wrell1\ed' froin hlm;' and the premilles »,1l,UfP.6,',4 a!lt4,Us,ed by a,n,o,t,h, ,: ttl,e, !lam, ,eru,le, ill apPli,',C,awe,It,'ltth,e, PoseQ the extension of,JWmond!lon'ltl!lland,by the AC,t J8&5. c.99. ,,:, ' : waterreCtuired for theprotectiou of the light-housel ttle UnitBd State!l roU!l6 the bed 'of 80 navigable_tel' wlthoutcom"pen!layionls ,to ,the,''U!les Of, comID;,erce and navig'atioll, it can us.ethe ten'siOh$ of this island made 1:)y it only so fM· all their use is neces!lary- to'm'libitain the light-liotiae; and tlot lor: the purpolJeoUhe fi!lh COmmi8!lion; and allit' aponly u!le of the exteJ;lsioJ;l1l1 Ilopd ,lltructuresin qJiestion, ,pears ,t,bat , 'With the lightrhOuse, is to defend It freshet!l ice, ,the UUlted Stil.tes;ts entitledito'maintain them fdr that purpo!le;and for no other; 'atl.chhat the: plaintiff, a!l, the owner of the,i!lland,.iil entitled,toisuch them as can, Pe 'm&de without interference w:ith the enjoYment of thateallement, by the t1utted StateE!-" atJ:Zd. that the plaintiJl', as the owner of thefee!lubjEict to this easement ,in the Uni1ied Stat!!!!, is entitled to maintlloin an action of, ejectlllE:lnt. and isC}utitied toa'verdict in b.is favor for tb.e locus in quo, subject to' t4e easement in, thllUhited States. lilt thil.ri:ghti of
RIPARIAN RIGRTB-IMPROVBMENTSIN NAVIGABLE STREAMS. '
,
d :'
,.', ',',: ' ",,', ' .' ".',., :' ,41tt4> the,tlt!e !let up by ,the United Stat$ to the,loCU8 in qu<). ,as a strllctnre mlL!'le
MAUD FOR P.&OTEOTION'OFLIQRT-HouSBc;.:,TITLB 'TO TilE FEE-
. , " "'j",
,C,
'
,,' , Ei8her. for plaintiff. .",.. TJuYlYuiB G. Hayes, V. Dist., Atty, , for defendant. BON;o.. and .MORRIS,.,TJ
',' ,
'J. This isa,n action of ejectment originally instituted in the ,for' Harford, county" Md.. The defenq,allt" William, Hamcircuit. lin, is ,the agent of the UnitedStates,'aI;ldupon his filing a petition in that c()lll:h; alleging that' the title to thepremiseg was in the United he was in possessioljl. employe,and that the United by, a .paramounttiileunqartbe constitution spd latw80f the Ca!le."was' .·
nDEmAL 'REPORTER,
vol. 42.
now in dispute are a portion of a small island called "Shad Battery" or "Edmondson's Island," situate in the Chesapeake bay, near the mouth of the Susquehanna river, three or four miles from Havre de Grace, and a little to the eastward of the channel for vessels. In 1834 a patent was granted by the state of Maryland to Donohue & Gale for this island, in which it was described as containing 2 acres 2 roods and 10 square perches of land, although from the testimony it would appear to have merely a. shoal spot in the river or bay, upon which a }llOund then of stOnes had been deposited to make it useful as a fishing station. In 1835 it was represented to the Maryland legislature that the island might pl'ejlldice to the navigation of the be filled up and river and bay, and, there being then no general law permitting riparian owners tQimprove out into navigable waters of the state, it was enacted (Laws c. 99) that the patentees might fill up and improve proyidedthey shQuld not exceed the limits described in the the patentisnd, 19 prevent tllefilling up fl'()m being extended so as to impE¥ie 'navigation, it was enacted that certain commissioners .sholl1d lay 'down and,' mark the lines and bounds to which the island might be filled 'up witP:bi;lt itripeding nayigation.' And it was enacted that the filling up might go to the extent fixed by the commissioners, and no further, and the'commissio.ners weI'edirectcd to return their proceedings to the county court, together with a plat of the lines and bounds as defined by them, to berecordedanlong t.heland records of said county. In 1836 the commissioners made their return, which was duly recorded, in which they gave the metes and bounds and a plat of the premises, which they had determined might be filled up without impeding navigation, describing' space' 321 feet long by 154 feet wide, containing 1 acre and 18 square perches of land, which they certified was within the limHsdescribed in the original patent. In 1853 a.small portion of the al'ealaid out by the commissioners, about 45 feet square. was deeded by the then owners to the United States for a light-house site; the deed stipulating that the United States should have free egress, ingress, and and over the residue of the island, to and from the part conveyed, the use of the part conveyed to interfere as little as practicable with the use of the residue as a fishery. The light-house was built, and prior to 1879 the area of the island was about three-quarters oj a!' acre, which had been inclosed by stone riprapping, ,¥ithopenings, for the passage of boats; 1hespace inclosed by the riprapping being some of it bare at low water, but oV'erflowed' at high water. In 1879 the plaintiff, Major Ferguson; had purchased the island, exthen assistant to cept the portion deeded to the United States. He Ptof.' Baird; the United States fish commissioner. It was thought that the place,,,,aa:a,desirable ohe for the propagation of fish, and it began '" beused,withFerguson'sassent, by the fish commissioner for that PUlpose.' 'Ori June 29, 1883, a formal lease of the island was executed b) t6Commissioner Baitd. as the agentef the UnitedStatelt, at d0Uar a· year, rene:Wable from year to for three use ifiiCa;tchingand propagatiing fish. The lessee'agreed not to use or
THE EDMONDSON ISLAND CASE.
1'1
permit the island to be used for gunning or ducking, and not to sublet, and it was stipulated that the lessee might, during the term or within six months afterwards, remove all buildings, machinery I or materials placed thereon by the lessee. This lease continued in force until terminated by.uotice from Major Ferguson, in 1888. During this period the island was used by the fish commission, and, to facilitate its operations, considerable changes and improvements were made by the United States with the sanction of Major Ferguson. The northern portion of the riprapping was removed, and about one-third of the island excavated, and a fish basin inclosed by crib-work was constructed. Additional crib-work was put down to partly inclose two other fish-basins. Cribwork of considerable length was run out westerly.from the north end of these constructions, to act as a defense and against the ice coming down the river, and an area of about half an acre was filled in solidly, lying to the north-west, adjoining and connected with the improvements constructed within the lines fixed by the commissioners of 1835, but lying outside of those lines, to the west ,and north. When by the notice of November 28, 1888, the lease was terminated, the fish commission removed all the buildings it had erected on that part of the island inside of the lines designated by the commissioners of 1835, and placed them upon the half acre made by filling up along-side 'those lines to the north-west, and the United States now has exclusive posses· sian of and claims title to that made land, and the, crib-work surround· ing and protecting it. The United States disclaims in this suit any title to any made land and cribs, except that which lies outside of the lines of the commissioners of 1835, and except the 45 feet square light-house site conveyed to it by deed. By written stipulation, a jury hus been waived" and the issues are to be determined by the court. The parties have contended for the rulings contained in the following propositions of law submitted by them: Plaintiff'#} Prayers. (1) The plaintiff's first prayer asks the court to rule that if the land declared for. and not embraced within, the disclaimer, was made by the United States for the use of tbe fish commissioner, while let into possession of the island as the tenant'of the plaintiff, then the plaintiff is entitled to recover., ' (2) The plaintiff's second prayer asks the court to exclude all the testimony offered by the defendant (under exception) tending in aliy way to impeach the title of thl!- plaintiff to the island. Defendant's Prayer.y. (1) The defendant's first prayer asks the court to rule that the plaintiff has proved no title to the loc-us in quo sufficient to entitle him to recover. (2) The defendant's second prayer. asks the court to rule that the riparian rights granted by the Maryland Code (article 54, §§44, 45) to owners of land bounding on naVigable waters of ),oIaryland give the plaintiff lio right of possession or title to the locus in quo, provided it is found to be outside the lines defined by the commissiont'rs of 1835. (3) The defendcourt to rule that the Maryland Code (Id. §§ 44, dant's third prayer 45) gives no title or right of possession to the plaintiff, provided the court fillds that leased premises wall originally an artificial island, constructed by the'deposit of stone and earth on a shoal in the waters of the Chesapeake, .and provided the court tinds the lOC14S in qtltO was constructed by the United States on the bottom of said waters, outside of ordinary high-water mark of tbe fast land, as it existed at the date of the lease. (4) Thedefendant'sfourth
v.421!'.no.1-2
tbe courtto.J'Hlt; that, if in quo was the bottom of of tbeChesapeake mark of. the 'fast land as it existed at the date of the limse, and that·· one. of the necessary uses' of said laud and structures Is to protect the of the Unit.ad States 01'1 the islandfl'om the waters and ice which ·at: certron, Seasolls is 'liable1ioovertlow ' the island .and 'light"house, ilS well as toppoteclt &.1cbannel ,1eading;from the main ,channel to the island,. then the recover.,'· ' It :is urged by counsel for the' United States that the fact that Edmonson1 i islandwas originallyian artificially made island of itself materially s affects ,the riparian rights:oftheplaintiffj but, in our opinion, whatever may with 'respect to artificially made islands in navigable sbtte,by,its patent recognized this island as land, and'W-ltnt.ed:.itto:thepatentees as so muchlandj it became,except as restricoodby legislation, like 'any other land or natural island granted out 'byth:e'smtetoprivate owners. Starting with this proposition, it tQ;!cbnsider,: first, what would be the rights: of the ·partIes iftbe'titleoHhe pMintitfwBs not affected by theaQt of'1835; c. 99',aud,the 'return: ofthe-commissioners. thereunder limiting'the area to wbroh the:is1:andmight be'extendedtorlessthan the area of the original ,grant. In,tbat'case,'beirip; of· the fact tnat his patent covered alljacent landeoveitud bywate.ri): ig declared by .the law Jirstemctlid'in l'862,'arnI;nQw'urtiole,64,§§ 44, 45, Code, to be entitled ..tecessiori,of thewater, whethel'f made'by natUMJJ O8.U1!es or othermsej:{iIidike'manner and to like extent It.s such ·right biighi"be' claimed'by ;tbe proprietor ,of land bounding on' water not navigali>ler8nd!8S1 suoh 'pJ.'oprietorh'e i,s ialsQ1declared t<> be entitled to' the exclaJlive'; right rOf' makh,lg impr.ovements il1to: the waters' irifrorit of his "land;8uch im ,:other 'aCOJ1etions to ,pass 'to successive owners of th.e land to which they are attached. "But no such improve'memt shaH 'be: sa made as! to:' interfere ,with :the' navigation of'thestl'eam of'water'intdwblcJlrithesaid'imwovement'is'made." And itis DC? or affect ,9f "no patent shall Issue fqr land ,. Law8on, 42 v. Mayor, etc.,' 53 Md, 432,483. '.' . In oar opiriion,therefore,,:if the restrictive act of 1835 had never been 'enacted, there 'could be 'no'dbubtbutthat,the improvements made"out into., the if by a person"woU)d be;long to ,United States totijis .l,lption · would havetQ entir()ly, v.p.on its being a.ble to estttblish that the ex,elusive posiiression.ofthe'p1emises in dispute. is. required to protect and ,maintain the light.-hoU'se.'; 'It does appear from the testimonythat there ,'is at times Bow of fee fronnbEiSusquehann.arivpt against tre pf'iii,e ,1$l!!-P9 9H.r S,tates, .and .tile fi$ij,the fish,.basius ariddn!closing .critbs ;didsutfer from the ice,andAloods, and that the .present
a
THE JCDHOND80N ISLAND CASE.
19
But these· structures, although built under the direction of the engineers in charge of the improvement of the navigable channels of the Chesapeake, and of the officials in charge of the maintenance of the lighthouse, were constructed primarily to facilitate the purposes of the fish commission, and 80 far 8S they are now used, in the sense of being occupiedandheld in exclusive possession, they are used solely by the fish commission. The houses removed from the other portions of the island at the termination of the lease, and re-erected on this new-made area, have no use whatever in connection with the light-house; or with commerce or navigation. It was held "by this court in the Hawkins Point LightH0U86 0186, 89 Fed. Rep. 77 , that the United States might erect a necessary light-house in a navigable stream in front of the land of a riparian proprietor who had not only the rights which the Maryland law of 1862 had given him 8S riparian proprietor, but bad also a patent from the state for the submerged land itself, without making him any tion. :But it is a necessary qualification of that rule that the United States can exclude the owner,without making him compensation, to no greater extent than is reasonably necessary for the maintenance of the light-house; and that the United States would have no right to forbid such an 'owner from making any use of the premises which did not interJere with the ea'3ement asserted by it for the public use of commerce and navigation. If, for eX!lmple, the riparian owner had, under the state law,mex.. clusiveright to plant and take oysters in the waters the so, unless it was injurious to the light-Ilouse light-house,he could structare, Qr interfered with navigation; but tbeUnited States could pot exclu<ie ·him·fromthat privilege upon the ground that it interfered with the' or navigation, and grant the same to the. fish So in this case, if these structures are such that, ifmade bjrariy p'rivate person, tbey would become appurtenant to the island, and belong to the owner of it, if the United States justifies the tion of them on the ground that tbeyare aids to commerce Rnd navigatibri,itcim only exclude the owner of the. island from them to theextl:lnt required: by the, use which is relied upon as the justification of their const1;notion. After. erecting· the light-house upon the. parcel 45 feet square, ,to which the United States title by deed, it might,hlLve discotered that the safety of the light-house required that a. heavy wall should he built out in the water so as to surrOlllldthe island. If !luch a .wall .had bt:en built, could it be· contended .that· the United States migbtsayto the owner oBhe land, ''You:mustnot. make any use oftbe wall fur landing. orlhawing seines because it is. injurious to the strU;Qture;"andthen proceed to grant that privilege to the fish· COmmiElSion. to us that, if this was a case. ofordinaryriparian,ownershipj the owner of the island would: beentitledtQ·the addit.ions islM,d