Phipps v. State , 22 Md. 380 ( 1864 )

CoohraN, J.,

delivered the opinion of this Court.

The questions to be considered in this case arise on a demurrer to an indictment for violating the 18th section of Article 71 of the Code. In disposing of the appeal, we are called on to decide: 1st. Whether the 17th and 18th sections of this Article are constitutional: and 2nd. The more general question as to the sufficiency of the indictment founded on them. The 17th section authorizes any citizen of any county bordering on the waters of the State, to locate and appropriate within the waters thereof, any area, not exceeding one acre, for the purpose of depositing and bedding oysters, on condition that the area so located should not interfere with any right reserved by the 15th and 16th sections, nor impede the navigation of navigable waters, and that it should be marked out by stakes or other proper bounds, and a written description thereof, under oath, recorded in the office of the clerk of the Circuit Court of the proper county.

The constitutionality of the section is questioned on the ground that it confers special and exclusive privileges inconsistent with, and in derogation of tbe common right of free fishery in the waters of the State. It was also suggested that this section, even if the Legislature had power to enact it, was repealed by the Act of 1861, ch. 129, before the location shown in this case was made. We, however, attach but little importance to this suggestion, as the sole purpose of the provision referred to in that Act, — “that no patent should issue for land covered by navigable waters," — was to restrict and limit the powers of the Land Commissioner, and nothing more. The effort to subject section 17th of Article 71 to the operation of the Act of 1861, appears to have been made with some misapprehension of the true nature of the question to be decided.

It abundantly appears from the nature of the privilege in dispute, as well as from the terms in which it was conferred, that no transfer of the State’s title to lands covered by navigable water was contemplated. Permission to use given areas, covered by navigable water for a particular purpose, seems to be all that the Legislature intended, and we think the language of its assent to that use should he construed, not as a grant binding the State, but as a conditional license, revocable at the pleasure of the Legislature.

It is true that it contemplates several and exclusive privileges, and it may be said, privileges that constructively abridge in some qualified sense, the common right of the public, although the abridgment of the public right does not constitute the main element of the privilege. The license simply proposes means for the protection of private rights, existing independently of the means. Oysters taken by one in the exercise of his common right of free fishery, thereby become the property of the taker, and the whole scope of the privilege conferred appears to be nothing more than permission to use portions of the State lands covered by navigable water as places of deposit, where the title and possession of the property thus acquired may be continued and protected. As we construe it, this privilege subtracts nothing from the common right of fishery, nor can it be said to operate as a grant of several rights from the common right, residing in the body of the people. The natural beds or deposits of the oyster do not extend to all the waters of the State, and at most, the argument that the common right to fish for and take them is impaired by the artificial deposits here authorized, would hold good only on proof that a natural bed or deposit is appropriated to the artificial use. It is settled that the lands of the State covered by navigable water, may be granted, subject to the public right of navigation and fishery; and independent of the question, as to the power of the Legislature to restrict those rights by grants in severalty, it is clear that they may be aided by grants, conferring particular privileges. The power of the Legislature to authorize the erection of wharves, and the reclamation of land from the water, for the purpose of encouraging navigation and commerce, has never been questioned, notwithstanding the effect has been to confer privileges and advantages wholly private and exclusive in their character. And there appears to be no substantial reason why it may not, in like manner, grant privileges affording particular and exclusive benefits, for the purpose of increasing generally the product and value of the common right of fishery. The tendency of the privilege, here conferred, is undoubtedly in that direction. It affords the citizen enjoying the common right, the means of preserving, and increasing in value the fruits of his labor, — a result substantially enhancing the worth of the right enjoyed, and contributing also to the general comfort of the people and prosperity of the State. It is not necessary to decide, in this case the very important, and perhaps delicate question, as to the power of-the Legislature to grant several or exclusive rights of fishery in navigable waters, and we forbear the expression of any opinion upon it. It is enough to say that the grant here objected to, does not involve that question. We have examined with much care, the authorities referred to in course of the argument, and in accordance with the general current, do not hesitate in saying, that the Legislature did not exceed its power in granting the privilege here drawn in question.

(Decided November 25th 1864.)

The remaining question as to the sufficiency of the indictment, would seem to be free from difficulty. The offence charged, is a violation of the 18th section, and it was unquestionably necessary for the State to show, on the face of the indictment, all the facts necessary to constitute the offence. In that particular it should be explicit and certain, and nothing left to inference. That could not be done in this case without averring the location and appropriation of the depot by Davis, and the perfection of his right or privilege therein, by recording the written description thereof, as required by the 17th section, before the oysters were removed by the traversers. We find by inspection, that the indictment does not allege the material iact, that the oysters were removed after the right of Davis to the depot was perfected by recording the description of it in the Clerk’s office. It avers generally that the offence was committed on the 6th of September 1862, and that the description was recorded on the same day, but whether it was committed before or after recording.the description, does not appear. In this respect the indictment was defective, and without examining further, we shall reverse the judgment on that ground.

Judgment reversed.