
    COURT OF APPEALS,
    MAY TERM, 1788.
    Smith and Purviances against The State of Maryland, at the relation of Thomas Yates.
    THIS was an appeal from a decree of the Court of Chancery, vacating a grant.
    
    The information states, that William Rogers, on the 27th of April, 1759, obtained a special warrant out of the land-office; that there was surveyed and laid out for the said Rogers, on the 13th of June, 1759, in virtue of the said warrant, a tract of land called Rogers’s Inspection, lying in Baltimore county, upon which a patent was granted, on the 29th of September, 1759, all necessary requisites having been complied with. By the certificate of survey and patent, the said land is described to run as follows : “ Beginning at a bounded White Oak, standing near the side of the north-west branch of Patapsco, it being the second bounded tree of a tract of land called Mounteneif s Neck, and running thence, bounding on the said land, E. 71 perches, unto a creek. of the said north-west branch, then bounding down with the creek S. 20, W. 7 perches unto the mouth of the creek, then bounding upwards on the said northwest branch, the four following courses: viz. N. 58, W. 35 perches; S. 80, W. 16 perches; N. 74, W. perches; N. 33, W. 20 perches ; and then with a straight line to the beginning, containing and laid out for two and three quarters of an acre, more or less.” That by divers mesne conveyances, the said Thomas Tates hath become seised and possessed of certain parts of the said tract of land, viz. of No. 388. 408. 451. and 452. as marked on a plat produced. That at ........ sessions, 177 — , an act of assembly was passed and made, for laying out the said tract of land with other grounds therein mentioned for a town, and annexing and adding the same to Baltimore town: since which time, the said tract hath been, and yet is, a part of Baltimore town.
    That by an act of assembly, entitled and passed in August, 1745, c. 9. it was among other things enacted, [section 10.] “ that all improvements, of what kind soever, either wharves, houses or other buildings, that have or shall be made out of the water, or where it usually flows, (as an encouragement to such improvers,) be for ever deemed the tight, &c. of such improver or improvers, their heirs and assigns for ever.”
    That by an act of assembly, entitled an act appointing wardens for the port of Baltimore, &c. passed in Aprils 1783, c. 24. it was among other things enacted, [section 2.] that certain persons therein named, should be wardens for the port of Baltimore town, and [section 9.] that from and after the publication of the same act, “ no person or persons should make, alter or extend, a wharf or wharves, without laying before the said wardens a plan of his or their intended wharf or wharves, and without consent first obtained under the seal of the board, to carry the same into effect.”
    
      That the’ relator being desirous to make and extend wharves from the said parts or parcels of the said tract of land of which he was seised and possessed as aforesaid, # ' running from the fast land unto the waters of the northwest branch of Patapsco, did lay before the board of wardens the plan of the said intended wharyes, and did obtain from the said board their consent, under the seal of the said board, to make and extend certain wharves, which are particularly described on a plat exhibited.
    That'the said relator being so seised, &c. and having obtained permission, &c. had begun to make and extend .the said wharves, and was about to make and .extend the \same to the limits permitted, &c.
    That on the 13th of June, 1768, it was ordered by the board of revenue, that a reserve be laid for the use of the lord proprietary, on all vacant and escheat land lying and being in the town of Baltimore, in Baltimore county, or within the distance of five miles thereof, or of any part thereof,, of which the judges of the land-office were desired to make an entry on record, and to take the greatest care to prevent any survey being made upon the same, either by expressly mentioning the reserve in all warrants to be issued out of the office, or in such other manner as may make the same .known, and remove all pretence of ignorance. And by virtue of, and in obedience to, the said order, it was by the judges, of the land-office, on the 4th day of July, 1768, entered on record among the records of the land-office, that a reserve was made on all vacant and escheat land, in the town of Baltimore, or within the distance of five miles thereof, or any part thereof, for the use of the right honourable the lord proprietary, of which the surveyor of Baltimore county was directed to take notice, and demean himself accordingly. That the said reserve bath never yet been taken off.
    That by an act of assembly, entitled an act allowing a Ifonger time to compound on old certificates, &c. passed In April 1782, c. 38. it was, among other things, enacted, (section 6.) “ that the governor and. council should, and they were thereby requested, as soon as conveniently could be done, to give instructions to all the surveyors in the several counties in this state, not to run the lines of any common warrant, special warrant, or warrant of resurvey, issued, or hereafter to issue, out of the land-office for common vacancy, into the manors or lands heretofore reserved for the use of the late lord proprietary, lying adjacent to such manors, or which may have been otherwise reserved for the use of the said proprietary,” and it was thereby “ declared, that the said reserves should be appropriated to such uses and purposes, as the general assembly should thereafter direst.” That instructions were given accordingly to the several surveyors in the several counties, and, among others, to the surveyor of Baltimore county.
    That Nathaniel Smith, of Baltimore county, being seised and possessed of and in a tract or parcel of land, called Bond’s Marsh, situate in the said county, originally granted unto a certain John Bond, on the 16th of September, 1766, obtained on the 29th of April, 1782, a warrant of resurvey on the said tract, having by his petition set forth, that he had discovered some vacant land contiguous thereto, and that he was desirous of adding the same thereto; by which warrant, the surveyor of Baltimore county was directed to lay out, and carefully resurvey, for and in the name of him the said Smith, the said tract of land called Bond’s Marsh, according to its ancient metes and bounds, nevertheless correcting and amending any errors in the original survey; and by his outlines adding any vacant lands thereto contiguous, not funning the said lines within the lines of any former or more ancient survey, or manors, or lands reserved by act pf assembly ; in pursuance whereof, the said surveyor, on the 8th of May, 1782, did certify into the land-office, that he had resurveyed the said original tract called 
      Bond’s Marsh, and that it contained exactly four acres, and that there was the quantity of 17 1-2 acres of vacant added; and on the 2d of °fune, 1788, the said Smith obtained the State of Maryland’s grant on the said certificate, wherein the said State did grant to the said Smith, his heirs and assigns, the aforesaid tract or parcel of land, resurveyed with the vacancy added, reduced into one entire tract, and called Bond’s Marsh Resurveyed, described as lying and being in Baltimore county, beginning, &c. and containing 211-2 acres of land, more or less, and which is particularly located on the plat exhibited.
    That the said Smith, having so obtained the State’s grant for the said land, afterwards, on the 8th of July, 1784, did bargain and sell, by deed of bargain and sale, for a consideration therein mentioned, two undivided third parts of the said tract to Samuel and Robert Purviance. That although the said Smith, by his aforesaid petition did allege and set forth, that he had discovered vacant land, adjoining the said tract called Bond’s Marsh, there was not any vacant land adjoining or contiguous to the same, but that the whole, which, by the said grant, is granted to the said Smith, as vacant land, added to the original tract aforesaid, now is, and at the time of obtaining the said warrant and grant, was, part of the waters of the north-west branch of Patapsco River.
    
    That the whole extent and comprehension of the said tract of land called Bond’s Marsh Resurveyed, and every part thereof, contained within its boundaries, do lie and are situate within two miles of Baltimore town; and that the survey of the said tract of land called Bond’s. Marsh Resurveyed, was made contrary to the laws of the state, and the express terms of the said warrant; and the grant thereof was obtained from the state by fraud, misrepresentation, and in deceit of the said state.
    That there was an agreement entered into, between the said «SotzíA and Purviances, before the said Smith obtained the said warrant; that the said Purviances should be two-thirds interested with the said Smith, in the said survey, &c. and that the said Purviances, when the war-J 7 7 rant was procured, and when the grant was obtained, and , ‘ 1 . , ’ , . , . , when the said conveyance was made to them by the said Smith, did well know that the pretended vacancy discovered and included was not land, but part of the waters of the north-west branch of Patapsco River, and the whole lay within two miles of Baltimore town in Baltimore county, and were partners with the said Smith in the said fraud, misrepresentation and deceit by which the grant was obtained.
    But, See. the said Smith and Purviances combining, &c. to injure and prejudice the said State of Maryland, and the said Thomas Tates, the relator, under pretence that the said grant of Bond’s Marsh Remrveycd was fairly and honestly obtained, do claim all the waters of the said branch of Patapsco, comprised within the lines of the said survey, as their sole and exclusive property, and have actually forbid the said lates from making and extending the said wharves, by the said Tates begun, into the waters of the said branch of Patapsco, within the limits of the said resnrvey, by the said Smith made as aforesaid, &c.
   The defendants’ anszver. That by virtue of an escheat warrant granted to William Rogers, to escheat a tract of Find called Bold Venture, dated the 27th of April, 1759, directed to the then deputy-surveyor of Baltimore county, the said surveyor did, on the 13th of June, 1759, survey for the said Rogers, a tract of land called Rogers’s Inspection, lying in two parts, on which said survey a certificate was returned, and patent thereon issued on che 29th of September, 1759. That the plat annexed to the information, does not contain either a true location i>f Rogers’s Inspection, nor of the waters of the northwest branch of Patapsco, and is materially defective, &c-They hope an accurate survey might be made, &c. Other parts of the information are either admitted, or the proof thereof put upon the complainant.

That the tract called Bond's Marsh Resurveyed, is at some tides covered with water, and at other tides uncovered by water and muddy ground, and in some parts covered with flags. They admit that the said tract is within the distance of two miles from Baltimore town, but deny that the grant for the same was obtained by misrepresentation, fraud or deceit. They admit that the said Tates was forbade, by them, to make and extend the ■wharves by him begun. That they have a good title, &c.

Exhibits and proofs. Extracts from the proceedings of the port-wardens.

“ The board took in consideration the application of Thomas Tates to extend the Lots No. 451. and 452. to navigable water, and are of opinion that the said lots shall extend in a south direction, parallel with Harford street, to intersect a line drawn east. from,.and parallel with, the south side of Lee street. Samuel Purvianee being present, and objecting on behalf of himself and others, to the above permission, as interfering with his property in front of said lots, The Board are of opinion, that the said permission shall not be deemed and .taken to affect or injure the rights or claims of any individuals whatever; and permission was granted accordingly, the. said Thomas Tztes securing each side of his wharf effectually, as the same shall be extended, so.as not to injure the adjoining lots.”

A similar application to extend-Lots No. 388. and 408. into the basin to the channel, and the like permission to extend in a south direction, parallel with Gay street, binding on the line of Jones’s Falls, to intersect a line drawn east from, and parallel with, the south side of Lee street. A. Purviance objected as above, and the same opinion, &c. of the board.

There were a number of depositions of witnesses fded respecting the waters of Palapseo River, Jones’s Falls, and the basin, and of the different situation of the lands in dispute at high and low tides, at various times within 40 years last passed.

There was also proof, that the resurvey made on Bond’s Marsh was done on the ice, and that the whole space of the resurvey was, at the time it was made, covered over with ice, except the island called Bond’s Marsh, being the original tract, and that the resurvey could not have been made and executed save on the ice, without either wading, or having the assistance of boats. That the island called Bond’s Marsh is two-thirds larger now than when the said resurvey was made. That the basin has filled up considerably.

By the plat of the land made by order of the Chancellor, it appears that the whole of Bond’s Marsh Re~ surveyed, except the island, being the original tract, lay in the water at the time the said plat was made in 1784, and that the inner lines of the said resurvey was distinct from Baltimore town, running along with the south or outer edge of Jones’s Falls, and fronting on the said town in the form of an arm, into the north-west branch of Palapsco River, the nearest part of which resurvey was 160 feet, and the nearest part of the farthest extension thereof into the said falls, 347 feet from the said town, leaving a large space of water between the said town and the said resurvey.

At February term, 1786, the Chancellor (Rogers) passed a decree, dated the 27th April, 1786, “ that the patent aforesaid granted to the said Nathaniel Sm'-th, on the 2d of June, 1783, for the said tract of land called Bonds Marsh Resurveyed, be, and the said patent hereby .is, vacated, revoked, cancelled and. annulled, and void, vacated and invalid be had. and held, and that the enrolthereof be, and hereby is, cancelled, made void and annulled, and that the said Nathaniel Smith do brine; • . . o-into this Court the said patent of Bond's Marsh Resur- ' veyed, that the same may be vacated and cancelled ac~ cordingly, and that the said Nathaniel Smith, Samuel Purviance and Robert Purviance, do pay to the said - Thomas Tates the relator, his costs of suit in this behalf laid out and expended.”

Jenings and Smith, for the appellants.

Martin, (Attorney-General,) Chase and J. T. Chases for the appellees.

The defendants appealed to the Court of Appeals.

The decree of the Court of Chancery was affirmed in the C°tirt of Appeals at this term, (May, 1788.)  