Travers v. Dean , 98 Md. 72 ( 1903 )

This case presents a peculiar question, and arises upon the construction to be given to Section 46 of Article 72 of the Code of Public General Laws as enacted by the Act of 1894, chap. 380. The Act was evidently intended to encourage and regulate the cultivation and planting of oysters by private individuals, citizens of this State. After preserving to the owner of land bordering upon any of the navigable waters of the State "the exclusive privilege of using the same for protecting, sowing, bedding or depositing oysters and other shell fish within the lines of his own land," where these lines "extend into and are covered by said waters;" and to the owners of land "lying and bordering" on any waters of this State a priority of right "to locate and appropriate in any of the waters adjoining his lands one lot of five acres" for a like purpose, the Act among other things provides that "any male or female citizen of full age, of the county wherein he or she resides, shall have power to locate and appropriate, and hold one lot of five acres, and no more in any waters in this State not located or appropriated; provided, thirty days' notice in writing shall be given the owner or occupant of land bordering on said waters proposed to be located, that the owner or occupant may have priority of claim."

Then after certain other provisions there is this proviso, "that no natural bar or bed of oysters shall be so located or appropriated, and that twelve months' peaceable possession of all locations of oyster grounds under the laws of this State, shall constitute a good and sufficient title thereto; but should any one within twelve months be charged with locating or appropriating any natural bed or bar hereinbefore prohibited, the question may be at once submitted by any person interested to the Judge of the Circuit Court for the county where such questions shall arise, who, after having given notice to the parties interested, shall proceed to hear the testimony and decide the case; and if his decision shall be in favor of the party locating said five acres, said decision shall be recorded with the original record of said five acres, and shall in all cases be conclusive evidence of title thereto."

From the record it appears that on the 17th of March, 1903, the appellee filed with the Judge of the Circuit Court for Dorchester County, a petition alleging that the appellant had recently and "within twelve months last past located and appropriated five acres in the waters of the Nanticoke River, in Dorchester County, ____ for the purpose of protecting, depositing, bedding or sowing oysters or other shell fish;" that said five acres was at the time of filing the petition and at the time of its location and appropriation a natural bar or bed of oysters; that the appellant was not at the time of so appropriating the said five acres the owner of any land bordering on the said river the lines of which extended into and were covered by the waters thereof wherein the said five acres is so located; that the said lot of five acres is not located in any waters adjoining lands owned by the appellant and bordering on said waters; that the appellant was a non-resident of Dorchester County wherein the said five-acre lot is located; and alleging that the appellee was, by the act of the appellant complained of, seriously injured in his right to take oysters, prayed "that the location and appropriation of the said five acres by the appellant might be annulled and vacated."

The appellant answered the petition admitting his location of the five acres as alleged but denying that the said lot of five acres was a natural bed or bar of oysters as charged; admitting that he was not the owner of any land bordering on the Nanticoke river; averring that the allegation that he was not a resident of Dorchester County was insufficient in law; and denying the jurisdiction of the Judge to inquire into any question other than that whether or not the five acres located and appropriated by him as described in the appellee's petition is a natural bed or bar of oysters.

The Judge passed in the case the following order: "Evidence having been heard upon the allegations in the above entitled case, and being of opinion that the lot described in the certificate is located in Dorchester County and is not a natural bed or bar of oysters, but it being admitted that the said John E. Travers (appellant), is and always has been a non-resident of Dorchester County and a resident of Wicomico County, as alleged in said petition and that he owns no land in Dorchester County, and was not the owner of any land in Dorchester County at the time the said lot was located and appropriated, and is not the owner of any lands bordering on the Nanticoke river, the lines of which extend into and are covered by the said waters wherein the said lot was so located and appropriated, said lot being located and appropriated within the limits of Dorchester County, and being of opinion that the said Travers (appellant), is not entitled to appropriate and hold said lot because of his non-residence in Dorchester County, and should not hold the same I refuse to dismiss said petition, but adjudge, order and decree that said lot be and is hereby vacated and set aside."

From this order the appeal in this case was taken. The contention of the appellant is that the Judge who passed the order was without jurisdiction to adjudicate and determine any question other than the one whether the five-acre lot referred to in the order was or not a natural bed or bar of oysters; and that having in the order undertaken to adjudicate other matters as to which no jurisdiction was given him by the statute under which the proceedings set out in the record were had, there is error in the order for the correction of which an appeal lies to this Court. There can be no doubt that, whatever matters the statute in question intended to refer to the Judge for trial under the provision giving him jurisdiction which has been recited, the jurisdiction conferred was special, limited and peculiar; and if it has been exceeded in the order here under consideration the order can be reviewed in this Court and reversed even though no appeal has been provided for Kinnear et al. v. Lee et al.,28 Md. 488-491.

The question then is, what are the limits to the inquiry the Judge was to make; and what had he the authority to decide under the statute creating the jurisdiction that he was exercising in this case. The statute deals with a number of conditions in the provisions it makes for private oyster culture. Some of these precede and some follow the provision that no natural bar or bed of oysters shall be located or appropriated. In immediate connection with this last named provision occurs the one under which the jurisdiction, such as was exercised in this case, is conferred. This jurisdiction is not in terms extended to any question in respect to any of the other conditions or provisions of the statute — either those which precede or those which follow the one excluding natural beds or bars of oysters from private location and appropriation. The object of the statute in forbidding the location and appropriation to private ownership of natural bars or beds of oysters, while it was providing for private oyster culture, was to preserve for the common benefit of the people of the State these natural bars or beds and the more effectually to protect the public right in that regard a summary and speedy mode of making and having decided questions as to the existence of natural bars or beds at the points of attempted private location was provided in the jurisdiction and authority given to the Judges to hear and determine in the mode pointed out in the statute questions of that character. The power to be exercised by the Judges to that end was therefore in the nature of the police power and could be appropriately conferred upon a special jurisdiction to be exercised in a summary way. Other matters embraced in the order which is the subject of this appeal might give rise to questions which could not be dealt with in this way. Questions as to ownership of land might be presented in such a way as to involve title to the particular lands under wills or deeds, making necessary the construction of these; or the location of lines in a particular deed if it were a question as to whether a five-acre lot located under the statute was included in the lines of the deed. It would be manifestly inappropriate to commit such questions as these to a special jurisdiction to be disposed of in a summary way; and an intention to do this upon the part of the Legislature or to attempt to do it is not to be presumed.

The matters last alluded to as embraced in the order of the Court below, beyond the question as to whether the five-acre lot in controversy was a natural bar or bed of oysters, are not within the object of the provision of the statute, here in question, creating the jurisdiction which the Judge was exercising in passing the order. The statute does not in terms provide for their submission to the jurisdiction created for determining the question of the existence vel non. of natural oyster bars or beds nor is their determination in any way necessary to the decision of the question which the statute in terms commits to such jurisdiction. From no point of view does it seem they can be brought within the authority under which the Court below proceeded to pass the order here appealed from. Having disposed of the question of whether the five-acre lot which was the subject of controversy was a natural bed or bar, in proceeding to determine the other matters covered by the order the jurisdiction conferred by the statute was exceeded and for that reason the order appealed from must be reversed and the case remanded.

Order reversed and case remanded with costs to appellant.

(Decided December 3rd, 1903.)