as to any particulars as might at first be supposed province all the rights and privileges, compatible -The case of the bankers 11; State trial 136-with their new situation, which they could enjoy 1 Plow. hist. Irel. 177.

in England-and besides, the provincial government In short, it appears to me, that the saying so of was no sooner formed than it specifically and by ten to be met with in the English law books, that name adopted magna charta and declared it to be an individual may be the owner of land covered by the law of the land— Bacon's laws, 1638, ch. 2. It navigable water, relates more properly to those old appears then, that the lord proprietary, immediategrants and titles acquired before the reign of king ly on his entering upon the exercise of his authoriJohn, than to any of modern times, and that the pro- ty, was to the full as strictly limited. in his preroperty of the king in land so situated is not that kind gative, as the king of England. Therefore, withof mere private estate in fee simple of which he may out enquiring what the king might have granted by divest himself at pleasure. But, it is of the nature the charter, it is clear, he did not grant to lord of a public inalienable right, which it is necessary Baltimore any prerogative here, freed from the rehe should continue to held, as a national domain, strictions imposed upon English prerogative. We in his political capacity of representative of the have seen that the two chapters of magna charta, nation, in order that the important rights and in-relative to the subject now before us, contain exterests of navigation may be more securely and perceptions or savings of some rights antecedently ac fectly preserved; or, that it is one of those private quired; but when the great charter was introduced, rights so intimately blended with, and necessary adopted, and applied as a restraint upon the regal for the preservation of the public rights, that it prerogatives of the lord proprietary, there were no ought not, nor cannot be aliened and transferred to such previous rights here which those saving clauses an individual—I am persuaded of this, because the could protect; consequently magna charta operated assertion of the right of alienation, unaccompanied here as an absolute and unqualified restraint upon by any evidence of its ever having been exercised the lord proprietary, in all respects whatever, as refor so many ages, where there were so many oppor-gards navigable rivers and the sea coasts; its protunities and temptations to exercise it, affords an irresistible presumption, that it does not in fact exist.

If then the king could not alien any soil which formed the bed of a navigable river, it would seem necessarily to follow, that he could not grant such right to lord Baltimore. But, after having thus far investigated the powers of the king of England relative to this subject, it will be necessary now to enquire, what are those of the lord proprietary; for within the province, it is admitted, he stood, in many respects, in place of the king; and, therefore, relative to the matter now under consideration, his powers and practice may be found to be essentially different, and in many respects much more circum scribed than those of the king from whom he derived his title and powers.

visions as respects such waters, and the lands which they cover, is general and imperative, without saving or exception of any sort whatever.

According to this view of the subject, it appears that the lord proprietary, within the province of Maryland, stood in the place of the king and was invested with royal powers and prerogatives co-extensive with those of the king of England since magna charta; but on looking farther into the provincial charter its provisions suggest the propriety of enquiring, whether there are not some clauses in that instrument which materially affect the lord proprietary's power over the navigable waters of the province, and which, in fact, deprive him of the power of aliening any land while it is properly and necessarily covered by them?

The second section of the charter of Maryland The charter of Charles the first to lord Baltimore, recites, that, "whereas our well beloved and right for the province of Maryland, is not only a convey-trusty subject Cæcilius Calvert, baron of Baltiance of mere private property, but also embraces more, in our kingdom of Ireland, son and heir of in it a grant of political and regal powers. When, George Calvert, knight, late baron of Bilimore, in therefore, it uses the language of a transfer of mere our said kingdom of Ireland, treading in the steps private property, it must be remembered, that such of his father, being animated with a laudable and expressions operate no farther than as a conveyance pious zeal for extending the christian religion, and from one individual to another; and that the whole also the territories of our empire," and then prois subject to be controlled by the express reserva- ceeds to specify the objects of the grant and the tions of the charter itself, and also by those powers, limitations under which they shall be held and enand that government, which was to be called into joyed. This charter is dated on the twentieth of June existence by the charter. So that, although it in the year sixteen hundred and thirty two; it was should be admitted that the king might invest the however ordered to be made out the year before, lord proprietary of a foreign colony with larger but the great seal not having been affixed, before and more extensive regal prerogatives than those the death of lord George, it was issued the year which he himself could exercise in England, yet following to his son-and the expressions, "reading the government which the proprietary is re-in the steps of his father," used in the recital, alquired to create, becomes by such creation, and by force of the charter, invested with power to limit and set bounds to the prerogative of the lord proprietary himself.

By the seventh section of the charter, the pro prietary is invested with the power to frame a goverminent and to cause laws to be made for the government of the inhabitants of the province, which, it is declared, shall be absolute and binding, "so, nevertheless, says this section, that the laws afore sail be consonant to reason; and be not repugnant or contrary, but, (so far as conveniently may be,) agreeably to the laws, statutes, customs and rights of this our kingdom of England." This clause, therefore, virtually gave to the inhabitants of the

lude to the exploits of the late lord George in America, which so ingratiated him with king James the first, that he granted him the province of Ave. lon, in Newfoundland, near which he had added some new glory to the British arms in the war with France, and also created him baron of Baltimore. Therefore a few facts and circumstances, relative to the Newfoundland fishery and navigation, will cast much light upon the reservation contained in the sixteenth section of the charter: because, it is evident from this allusion to the exploits and merits of lord George, that thoss facts and circunstances and the nature of the scene on which they were laid, and with the grant for part of which he had been previously rewarded, were present in the mind of the

grantor when the charter of Maryland was made put,

here attached to the right of fishing; the right of fishing, therefore, includes in it, in this case, some, thing more than the mere use of the waters; it com prehends the right of soil of the bed of the waters to which the use of the shore is attached as one of those "necessary incidents," the being deprived of which, together with the main right, the house of commons had complained of as "a great national grievance."

and pending at the time it was written, it does ap pear to me clear, that all right to the soil of the The Newfoundland fishery, which was first dis- beds of all navigable waters, together with all the covered or resorted to for profit and merchandize incidents thereto, were never intended to be conby some adventurous French navigators, in the year veyed to lord Baltimore as mere private property, 1504, was so skilfully and dexterously followed up, alienable at pleasure. And the clause itself furfrom thence forward,by most of the civilized nationsnishes some evidence that it was not so intended; of Europe, that it soon became an object of great for a privilege on shore is reserved as an incident nati nal importance to them all, and to none more to the reservation of the right in the water; the than England. So early as 1548 the parliament of privilege on the dry land is evidently and from England directed its attention to the subject, and the very nature of the thing itself, attached passed an act to prohibit the admiralty from exact to a more important right and estate in the sea in certain tolls which it claimed, In 1603 there or river. It cannot be, that one mere usufructuary were employed in this fishery annually two hundred interest is thus attached to, and upheld by, another British ships, and upwards of ten thousand men.-mere usufructuary interest. A mere privilege is And in the year 1621 king James granted to sir always considered as inferior to that to which it is George Calvert, afterwards lord George Baltimore, attached. The privilege, or use of the shore, is all that part of Newfoundland called Avolon, which he took possession of and held many years. After wards, in the year 1626, at the commencement of the quarrels of Charles the first and the parliament of England, the house of commons originated a bill for the maintainance and increase of shipping and navigation, and for the freer liberty of fishing voyages on the coast of Newfoundland, Virginia, and New England, which was rejected in the house of lords. In consequence of which, a short time But it has been said, that this would be to strain after, in a strong representation of grievances which the words of this clause of the charter, utterly be. they presented to king Charles, they insisted, "that yond their fair and true intent and meaning. It is, the restraint of the subject from the liberty of a free however, fair to presume, that this charter was fishing, with all the necessary incidents, was a drawn by some eminent lawyer; and, therefore, it great national grievance." The specific nature and will be doing no injustice to its phraseology to give description of those restraints, thus strongly com it any interpretation warranted by the well known plained of, I have no where been able distinctly to adjudications of the time. According to Plowden, learn, but there is every reason to believe, that, so then, it had been long held as the ancient common far as they related to the American shores and wa- law, that by the grant of a free fishery in a river, ters, they originated altogether from those royal the property in the soil of its bed would, and did charters, by virtue of which the grantees set up a pass-Plow. 154. Now, if a grant of free fishery right, in exclusion of the residents of Great Britain, would pass the right of soil in the bed of a river, under the construction, that having an unlimited it surely would not be denied, that a reservation of royal power over the beds of rivers and the adja- a free fishery would prevent the right of soil from cent seas, they had the power to exercise an ex-passing. For, it must be allowed, that the same clusive right of fishery; and on that ground assum- words which would operate to convey an estate, ed an authority to throw certain restrictions in the would operate with equal efficacy when used for way of the freedom of fishing. I conclude that the the purpose of reserving an estate. But, when we restraint alluded to by the house of commons, must recollect the circumstances and the feuds of the have been occasioned in this way, because their times, when this charter of Maryland was granted, complaint seems to have been grounded on the re-it would seem to be no more than bare charity to jection of their bill for the protection of the freedom the grantor, bad, and obstinate, and wicked as he of fishing and navigation in the American waters; was, to allow that in this instance he meant, by this and also, because if the cause of complaint had reservation, to yield, so far, to the complaints and have originated from the people of England, the claims of the English people as to except from this courts of that country could, and would have intergrant, to his favorite Lord Baltimore, all right over posed their authority to prevent and remove this the soil of the beds of all navigable rivers and the "great national grievance.” sea coasts, together with all rights which could be

With the recollection of these circumstances, deduced therefrom. let us now turn to the sixteenth section of the char- This saving in the sixteenth section of the char. ter of Maryland. After authorisi g the lord proter is manifestly dictated in utter ignorance of the prietary to erect and constitute ports and harbors value and the nature of the fisheries of the waters for the convenience of trade, it proceeds thus-of Maryland; for, the privileges of the use of the "Saving always to us, our heirs and successors, shores as reserved, were then, and are now wholly and so all the subjects of our kingdom of England useless for any fishery ever known in our waters, and Ireland, of us our heirs and successors, the li-But the reservation is couched in general, com berty of fishing for sea fish, as well in the sea, bays, prehensive and popular terms, with an evident destraits, and navigable rivers, as in the harbors, sign to catch and pacify the popular feeling, then bays, and creeks of the province aforesaid; and the so much alive; and to shew, that there was no pos privilege of salting and drying fish on the shores sible new danger, or grievance to be apprehended of the same province; and for that cause to cut down from the new charter, by which the fishery speci and take hedging wood and twigs there growing, and fically, and in legal contemplation, the very soil to build huts and cabins, necessary in this behalf, itself and every thing relative to the subject was in the same manner as heretofore they reasonably might, or have used to do."

Now taking this reservation in connection with the circumstances and controversies in existence

reserved which the people of England could pos sibly ask. And from the nature and circumstances. of the times, when the Maryland charter was granted, it is but liberal and reasonable so to construe

this saving in it as to except out of it the right of soil in the navigable rivers as well as every incident thereto which might in any respect be necessary to preserve the freedom of navigation, of fishery, and the use of the waters of the province for the people of England and Ireland.

the great natural highways of the nation, which the king is as much bound, as the representative of the nation, to protect and preserve from the rage and violence of the ocean, as he is to guard the realm against the incursions of a public enemy. And the absolute ownership of the soil covered by It is this view of the sixteenth section of the char such navigable waters is, oftener than otherwise, ter of Maryland and of what appears to be its true essentially necessary to enable the chief magistrate intent and meaning which has satisfied me, that the effectually to discharge this high and important lord proprietary had no right to grant any land duty. Hence the correctness of the maxim, that which was naturally and properly covered by navi- he shall be presumed in all cases to have retained gable water; and, therefore, that the land in ques-the ownership of such soil until the contrary is extion, which was of that character, could not be, pressly shewn. There is solid sense and reason in nor was not embraced by the patent for Todd's the maxim, which presumes, that neither the reRange, granted to James Todd. public, nor their accredited agents have parted with Before I take leave of this point, however, it any of the means necessary to enable them to per seems to be necessary to notice a matter apparent form their duty to society until the contrary is dis ly resting upon the same principles, for the pur-tinctly made to appear. And it is this very impor pose of shewing its dissimilarity from the question tant difference between the principles of law, ap. before us, and of laying it aside-1 allude to the plicable to land covered with navigable water, and right to grant the privilege of making wharves and that situated in the common way, which has given of reclaiming land. The right to grant the privi-rise to the necessity of a more accurate, special lege of making wharves is included as a necessary and specific description in a grant for the former incident to the power to create and establish ports than for the latter kind of land.

and harbors which is expressly given to the lord It does not appear, that the common law recogproprietary by this sixteenth section of the charter. nizes or requires any peculiar set form of words, And even if it had not been thus expressly granted, as necessary to be used in a grant of land covered the power to improve the navigation by means of with navigable water, nor is it any where laid down wharves, grows out of the nature of things, and has what expressions shall be deemed sufficient in such always been recognized by the common law; for in a grant; but, it is clear, that its phraseology must England, as lord Hale observes, there are a thousand be very descriptive, strong, unequivocal, and disinstances of the kind, Hale de ju. ma. 85. And in tinct.

this country such cases are quite common. By the "But it seems, says lord Hale, the grant of increcommon law also, the king may grant lands cover-menta maritima will not pass lands that often haped by tide water for the purpose of their being re- pen to be relict by the sea; because, that is not so elaimed; but if the carrying of such reclamation properly maritimum incrementum. And besides, the into execution will injure the navigation, the grant soil itself under the water is actually the king's, will be deemed void; and if it be not actually made and cannot pass from him by such an incertain within a reasonable time the grant of the privilege grant as maritima incrementa; but must pass a prewill be considered as lapsed and abandoned and the sent interest." right of soil will remain in the public.

"But if the king will grant land adjacent to the

There is, however, still another very important sea, together with a thousand acres of land covered question upon this part of the case, to be consider-with the water of the sea, as usual of the same land, ed and decided; for, it is said, that the words of &c. adjacent, such a grant, as it may be penned, the patent of Todd's Range are sufficiently compre- will pass the soil itself; and if there shall be a rehensive to embrace this land; and if so, it may be cess of the sea leaving such a quantity of land, it considered, that the patent is at most only voidable, will belong to the grantee." Hale de ju. ma. 18. and must prevail in a court of law until it is regu- In the case of the attorney general against sir larly vacated; consequently it becomes necessary Edward Farmer, 2 Lev, 171. T. Raym. 241. 2 Mod. to enquire, whether this patent for Todd's Range, 106. It appeared, that a patent was issued conwhich is couched in the phraseology common to taining these strong expressions, "all the soil, all grants issuing from the land office, would con-ground, land, shore, and marshy land lying contivey land covered by a navigable water course guous to the premises, which appear sometimes to which ran into the tract. For, if those expressions be inundated by the waters of the sea covering it, and that special description, required by the common law to pass land covered by an arm of the sea, be not found in the patent for Todd's Range, no right to the soil of the bed of Jones' Falls, so far as it was navigable, did pass, whatever might be the powers of the king or of the lord proprietary over land so situated.

and which might, by the reliction of the sea, be sometimes after recovered, or otherwise in any manner whatever, not by limiting, nor naming the value, whether in quantity or quality." After which great quantity of land was gained from the sea, which the patentee claimed as being contiguous and adjoining, and therefore, coming within the ex. As regards land covered by navigable water, the press terms of his grant. As to which, it was said presumption of the common law is, not merely, by Holt for the king, that if these words contithat it is holden of the king, derived from him in guous and adjoining were to have the force conone way or other; but, that the right is actually intended for by the grantee, his rights might be exhim, until the contrary is clearly shewn, by some tended over to Denmark; that this grant, in order grant or uninterrupted prescription in full force at to comprehend any part of the sea, which was parthe time. The maxim, that all lands are holden of cel of the prerogative, it ought to be expressly the king, is founded on feudal principles; but the named; and moreover, that at the time this grant maxin, that the right to the soil under the naviga was made, this reliction was but a possibility, and ble waters shall be presumed to be actually in the consequently no present interest passed by the king, is founded on a regard to the public good, and grant. And it was held accordingly by the whole the interests of navigation. The ports and harbors court, that nothing did pass, and th the property are said to be the gates, and the navigable rivers which had been so gained by the reliction of the

sea, belogned to the king and not to the patentee of standing and settled principle of the land office, the lands immediately adjacent: that there were but two kinds of land which could Some additional light appears to me to be thrown be affected by an original warrant of that office, upon this subject by the case of the Abbot of Ram-whether common or special; that is, such land as sey, which was a contest about the right to a piece of was vacant, waste, uncultivated and new in every marsh, over which the sea occasionally flowed, Dyer, respect; and such as had been cultivated and im326; and by the case of the corporation of Romney, proved, which shews, that, in that office, the word which was a controversy about land lying between land was understood in the more ancient and curthe flux and reflux of the sea, Dyer, 326, note; and rent sense to refer to that, the surface of which by the case of Ward against Creswell, which was a might be ploughed merely by being cleared of its contest about the right of landing fishing boats at a timber. certain shore, Willis, 265; and also by the cases of of the king against Smith and others, Doug. 444; and Ball against Herbert, 3 T. R. 258, which were Controversies respecting the right of having a tow ing path along the margin of a navigable river; in all of which, it seemed to be tacitly but clearly admitted, that a grant in general terms of so much laid calling for, or lying on the sea coast, or the shore of a navigable river, at most, carried the grantee's right no farther than to low water mark.

That none other than such land, or than what is commonly called forest or arable land, was at first conveyed by titles derived from the land office is proven by various facts and circumstances. It was not usual until sometime about the commencement of the last century, and after the greater part of the lands in the province had been granted, to in clude contiguous marshes; in consequence of which, after that period, we find applications for warrants of resurvey for the purpose of including such lands, From all which, I feel satisfied, that according to in order, as it is stated, "to prevent evil minded the principles of the common law, no grant from persons from encroaching thereon to the prejudice the king, couched merely in those general terms of the holder of the upland"-Land, H_A. 147.used for the purpose of conveying land, will or can And by the land law of 1699, it was declared, that be construed to convey any part of the soil of the "such adjacent marsh shall be deemed and adjudg bed of a navigable stream, not specifically and speed absolutely to belong to the land to which it is cially designated in such grant; and consequently, adjacent, and be bounded by the same courses that no part whatever of the bed of this streain cal-drawn from the firm land into such river or creek led Jones' Falls passed from the lord proprietary to as the firm land is bounded by, except in Somerset JRies Todd by the general and common expres-county, and upon Delaware and the Ocean"-Lund, sions of the patent for Todd's Range. H. A. app. IX. It also appears by all the lord But are these the principles of the law of Mary-proprietary's instructions, that in laying out lands land, and have they been applied, and are they applicable to the local and other circumstances of our comotry? All titles to lands in Maryland, some few proprietary leases excepted, Land H. A 219, were derived from the lord proprietary through the land office. The patent for Tidd's R .nge was obtained in that way; its true intent and meaning must, there fore, be regulated and governed by the rules and principles of that office so far as they apply.

the surveyors were to make actual surveys by passing over the ground, and in their descriptions of the boundaries to refer to some visible and tangible object on dry land, as trees or the like; and it is observable, that a similar reference to visible and tangible objects is made in all the examples of description of boundary put in the land law of 1699; and the 17th example concludes in these words, "yet, if any of the former courses come to the riAhough the word land, in its legal signification, ver, branch or cove, the courses shall there detercomprehends any ground, soil or earth whatever, mine, and thence by the water be bounded and as meadows, pastures, woods, waters, marsh, &c. shall not pass over, but the owner shall be content yet it would seem, that terra or land, according to with what land is between such lines and the wathe more ancient law of England, referred only to ter, be it never so little"-Land, H. A. app. VIII. that which might be ploughed, Co. Litt. 4 a. and It likewise appears by the repeated instructions that seems at this day to be its most current, of the lord proprietary, that the lands were to be though not its more comprehensive and legal sig-so laid out as not to permit any one to have more nifiestog. than a certain extent upon a navigable river, so as to

Under the proprietary government, as well as give access, and the advantages of such water under the present, there were five distinct kinds of courses to as great a number of settlers as possible warrants by which a citizen might have any land-Land, H. A. 55, 63, 157. And it moreover apdesignated to which he wished to obtain a complete pears by the application for the first warrant of relegal title by patent. 1st, a common warrant, which survey found on record, dated 26th October, 1658, could affect only such land, as was waste uncul."that upon scrutiny it is found a considerable part tivated and new in every respect-2d, a warrant of thereof is run into and taken away by several creeks resurvey, which was intended merely to correct the land coves of water; it is therefore prayed, that a errors of the first survey, by including or leaving warrant to resurvey the same after such manner as out waste land, intended or not intended to be ob- shall leave out the said water, and if vacant land tained-3d, a special warrant, to include vacant shall be found contiguous to include the same,"cultivation; 4th, an escheat warrant; and 5th, a pro- Lund, H. A. 148. clamation warrant, for the purpose of obtaining a Hence, it is clear, so far as the rules and proceedpatent for any land designated by any of the four ings of the land law and the land office cast any first kinds of warrants, to which the title remained light upon the subject, that no portion of the soil imperfect after a certain lapse of time. The three under any navigable river ever was understood or first are original in their nature and operation. The intended to be conveyed by a patent in the ordinainception and commencement of title is dated from ry form, in whatever way it might be located, or the original designation of the land made under howsoever the confines or boundaries of such tract their authority. The two last are derivative only, might be described.

being founded on a previous complete or incomplete But, in addition to these evidences derived from title or designation of land. And from a very early the old acts of assembly, and the rules of the period, it seems to have become a uniform under-land office, as fortified and explained by them, the

Case of the state of Maryland at the relation of sage; for it would be difficult, in a case like this, Yates against Smith and Purviance-2 Ha & M H❘ where there is a manifest natural necessity to have a 344-is conclusive to shew, that no part of any lan passage for this stream in one way or other, to estacovered by a navigable stream could, or did, in blish the position, that the state had lost its right any case, pass by a grant which contained no other to the old channel, and yet might have acquired no than the usual words of conveyance of land. The right, whatever, to the new one. A case like this, case was this; the state, at the relation of Yates of imperious natural necessity, admits of no possifiled a bill against Smith and Purviance, for the bility or doubt; the right of the state to a free paspurpose of vacating a patent which they had obsage for this stream in one way or the other is contained for a tract called Bond's marsh resurveyed; clusive and absolute; and, therefore, it would seem, because, among other reasons set forth in the infor- that its indubitable right to the old passage cannot mation, the "vacant land, added to the original be lost or at all affected until it has acquired a title tract aforesaid, now is, and at the time of obtaining to the new passage altogether as clear and incontrothe said warrant and grant, was part of the waters of vertible.

tion of the property or the use, and a dedication of it by the original owner to the use of the state. Thus if a citizen have a public wharf unto which all persons who come to that port must come and unlade or lade their goods; in that case there cannot be taken arbitrary and excessive duties, but they must be reasonable and moderate though settled by license or charter. "For now the wharf, says lord Hale, is affected with a public interest and it ceases to be the jus privatum only; as if a man set out a street in new buildings on his own land, it is now no longer bare private interest, but it is affected with a public interest, Hale de ju. Ma. 77, 78.

the north west branch of Patapsco river," which It is a principle of the common law, that the state the defendants admitted was "at some tides co-as well as an individual, may acquire an absolute vered with water, and at other tides uncovered by right to property, or to certain uses of it by prewater and muddy ground, and in some parts cover scription, custom, long usage or by a tacit dereliced with flags”—and it was proved, that the survey was made the ice, and that it could not have been otherwise made but by wading or having the assistance of boats, and that there was a large space of water between the shore and the land included in such survey. The patent was declared void. There is nothing in the case, as reported by Harris and M'Henry, which declares the reasons and grounds on which the decision of the court was founded; but from the manuscript notes of the late Mr. Jennings, who was of counsel in the cause, it appears, that its being a grant for the bed of a navigable river was one of the objections made, and much relied on against, the validity of the pat- And, with regard to such usufructuary rights, ent; and his notes are endorsed thus, "bill in chan- claimed by an individual, the courts have, in concery to vacate a patent, which included navigable formity to the period of limitation established by water, patent vacated by decree." Whether the positive law, laid it down as a rule, that the person reason of the decree was, that the land under navi- claiming such right must either produce a grant, gable water was not the subject of a grant, or that or shew an enjoyment for twenty years at least unit would not pass by the usual and general expres-interrupted by the owner of the inheritance, 11 sions does not appear; but whether founded on the East, 374; but the right of the state or the public one ground or the other, in point of principle, it to such property or use, has been held to be estabapplies with equal force against the patent for lished by a much shorter period of prescription or Todd's Range, which must in like manner be held limitation. Thus, in a controversy about the right to have no operation, so as to convey any land which was covered by the navigable water of this same stream called Jones' Fails, or the north-west branch of Patapsco river.

to the passage of the public along a street leading to the Foundling Hospital in London, it appeared, that the street had been used for fifty years, but for the last eight years only, the owner had permitThe chief point, and great difficulty in this case, ted the public at large to have the free use of the being thus disposed of, another enquiry, having an way without any impediment whatever. incidental bearing upon it, seems to invite some lit-Kenyon said, "This is quite a sufficient time for tle attention before we leave this part of the inves. presuming a dereliction of the way to the public.gation; that is-In whom is the right of the soil of the bed of that part of the present passage of this stream called the canal of Jones' Falls?

Lord

In a great case which was much contested, six years was held sufficient. If it were otherwise in such a great town as this, it would be a trap to make peoIf the canal be still private property; if the state ple trespassers." 11 East 375, note. So on the other has no legal claim to it, I apprehend that it might hand, it is laid down, that after a street or public be at any time closed by its owners. And if as has highway has been laid out, over lands, which are been contended this ancient deserted bed has now the property of the state, and dedicated to the pubbecome the vested private right of the plaintiff or lic, the right to such highway cannot be affected the defendant or of both, the public might be pla- or closed by any subsequent grant of the right of ced in a most singular dilemma. The public, it soil over which the highway passes, Burr. would appear, were originally entitled to a free pas On these principles of common law, it is, theresage for a very copious and valuable stream of wa-fore, my opinion, that the canal of Jones' Falls has ter, part of which was navigable, which navigation been long enough dedicated to the public for prethe public might have continued or might now find suming a dereliction of all right of its former owner it very advantageous to restore; but, owing to the to the public; and also, that the streets and highingenuity of some individuals and the industry of ways, that have been laid out over the old bed of others, in accelerating the operations of nature, the public now finds itself totally deprived of a passage for its river, and also of a valuable part of its navi. gation.

It, therefore, occurred to me, that in this case it was not enough for the plaintiff to shew, that he had acquired a right in the old bed, without shewing, that the state had acquired a right to the new pas

Jones' Falls, so far as it was navigable, and consequently, as I have before shewn, is the property of the state, has been sufficiently dedicated to the public, to prevent any future grantee of the state from closing up, or any manner affecting such right of way by any tide or patent cinanating from the land office.