Powell v. Wilson , 85 Md. 347 ( 1897 )

Briscoe, J.,

delivered the opinion of the Court.

The appellants filed a bill in the Circuit Court for St. Mary’s County to vacate and set aside the location of a certain oyster lot, located in the waters of St. Jerome’s Creek, in that county, and to enjoin the appellees from depositing and bedding oysters or other shell-fish therein. The bill alleges that the appellants are the owners of a tract of land lying on St. Jerome’s Creek, called “ Bar Neck,” containing one hundred acres, more or less; that this creek has lately become and is now less than one hundred yards wide at its mouth, and that they are entitled to the exclusive use of the creek adjoining their lands and to the middle of its stream for the purpose of bedding and planting oysters. It further avers that the appellees, on or about the 6th of October, 1887, when the creek was more than one hundred yards wide at its mouth, located four and 16-100 acres of oyster land, opposite the land of the appellants and between .it and the middle of the stream, for the purpose of planting oysters; that notice as to the contraction of the creek at its mouth had been duly given, but the appellees subsequently entered thereon and now assert a title to this located ground under section 46 of the Acts of 1894, chapter 380. An injunction was granted upon the allegations of the bill, but after a hearing upon bill, answer and proof, it was dissolved and the bill dismissed. It is from this order that the appeal has been taken.

There is but little dispute upon the facts, as disclosed by the record, but the main questions involved turn upon the interpretation of sections 46 and 47 of the Act of 1894, chapter 380, known as the General Oyster Law of the State.

It is admitted that the mouth of St. Jerome’s Creek was more than one hundred yards wide at its mouth when the oyster lot in question was located in 1887, and it appears from the proof to have contracted to the width of eighty-four yards since that date. The question then is, are the rights which the appellees acquired to this lot in 1887 superior and paramount to the rights of the riparian owners, the appellants ? And this depends, as we have said, upon the meaning and effect to be given to sections 46 and 47 of the Acts of 1894, chapter 380. By section 46 of the Act of 1894, which.is for the purposes of this case substantially 'the same as the law in force at the time of the location of the lot in dispute, it is provided that “the owner of any land bordering on any of the navigable waters of this State, the lines of which extend into and are covered by said waters, shall have the exclusive privilege of using the same for protecting, sowing, bedding or depositing oysters or other shell-fish within the lines of his own land; and any owner of land lying and bordering upon any of the waters of this State .shall have power to locate and appropriate in any of the waters adjoining his lands one lot of five acres for the purpose of protecting, preserving, depositing, bedding or sowing oysters or other shell-fish ; and 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; 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, * * and that twelve months peaceable possession of all location of oyster ground, under the laws of this State,- shall constitute good and sufficient title thereto.” And by section 47 it is further provided that “ if any creek, cove or inlet not exceeding one hundred yards at low water in breadth at its mouth make into the land, or if any creek, cove or inlet of greater width than one hundred yards at low water mark make into the lands, the owner or other lawful occupant shall have the exclusive right to use such creek, cove or inlet when the mouth of said creek, cove or inlet is one hundred yards or less in width; and when the said creek, cove or inlet is more than one hundred yards wide at its mouth at low water, the said owner or other lawful occupant shall have exclusive right to use such creek, cove or inlet so soon as said creek, cove or inlet in making into said land or lands shall become one hundred yards in width at low water, for preserving, depositing, bedding or sowing oysters or other shell fish, although such cove, creek or inlet may not be included in the lines of any patent; and in all such cases such right of the riparian proprietor shall extend to the middle of such creek, cove or inlet.”

We find no difficulty in reconciling these two sections and giving to each its proper effect. In the case of Hess v. Muir et al., 65 Md. 609, this Court in speaking of the statute regulating the oyster fisheries of the State, says, the right to locate oyster ground “ is not a grant of an indefeasible right or estate in the lot thus authorized to be located and planted with oysters. It is simply a conditional or qualified license or franchise, revocable at the will and pleasure of the State. It is neither inheritable nor transferable but is purely a personal privilege in the party locating the lot.” Now, while it is conceded that by section 46, the appellees’ title was good at the date of its location, it is earnestly insisted, and the Court below so held, that the possession by the appellees of this lot for more than the statutory period of twelve months, gave them a good and sufficient title thereto, notwithstanding the provisions of section 47, that when the creek, &c., is more than one hundred yards wide at its mouth at low water, the owner or- other lawful occupant shall have exclusive right to use such creek, so soon as the creek shall become one hundred yards in width. To this interpretation of these sections we cannot agree. In order to do that we should have to ignore section 47, and give effect alone to section 46. The fundamental rule in the construction of statutes is, if two Acts are plainly repugnant to each other in any of their provisions the latter Act without any repealing clause, will operate to the extent of the repugnancy as a repeal of the first. And this rule also applies to different sections of the same law, unless it appears from the whole Act, that the Legislature intended the prior section to remain in force. Smith v. School Commissioners, 81 Md. 576. We, however, fail to find any conflict between those two sections but think that they can stand together expressing a perfectly harmonious legislative intent. And being of this opinion we fully agree with the contention of the appellant, as stated in his brief, that when the appellees located this lot under section 46, they did so, subject to the contingency that the mouth of the creek might thereafter become less than one hundred yards wide, and that when it did become less than one hundred yards wide, their rights should cease and be superseded by the exclusive right given in that event, to the riparian owner by the language of section 47. The appellees, therefore, took a good title under sec. 46, but it was defeated upon the happening of the contingency provided for in sec. 47.

Upon the question of equity jurisdiction, we need only say, it is clear, that this case falls within that class of cases, in which the jurisdiction is exercised. Mr. Pomeroy in his work on Equity Jurisprudence, sec. 271, says, the jurisdiction is constantly exercised under a proper condition of facts, and enumerates as one of them, suits to restrain and remove private nuisances, especially when they are infringements upon some easement, as a water-right. And to the same effect are the cases of McRoberts v. Washburne et al., 10 Minn. 29; Britton, Admr. v. Hill, 27 N. J. Eq. 391; Ogden v. Gibbons, 4 Johnson Ch. 150; Goodsell v. Lawson et al, 42 Md. 354.

(Decided March 31st, 1897).

As to the ownership of the oysters planted upon this lot, there can be no question, that the appellees would be entitled to remove them within a reasonable time. This question was ruled upon in the case of Hess v. Muir et al., supra, where this Court said, “ that if the party lawfully locating-the lot, takes oysters from other localities and plants them in his lot, those oysters, with their increase, become his absolute property and he or his personal representatives or assignees may take them from the lot, within any reasonable time after the license or franchise is revoked or ended.” Angell on Tide-waters, 137.

Being then of opinion, that the Court below erred in dissolving the injunction and dismissing the bill, the decree will be reversed and the cause remanded so that a decree may be passed in conformity with this opinion.

Decree reversed and cause remanded.