State Ex Rel. Blount v. Spencer , 114 N.C. 770 ( 1894 )

after stating the facts: The entry made by the defendant covered a natural oyster-bed, according to the definition given by this Court in S. v. Willis, 104 N.C. 764, and subsequently adopted by statute (section 1, chapter 287, Laws 1893).

Only one question is presented by this appeal: Whether the action of the Board of Commissioners of Shell Fisheries, under chapter 119, Laws 1887, in laying off and establishing the locations of the public grounds of Hyde County, when there was no protest and appeal from their action in the premises, was a final decision, binding both the State and the party making an entry and receiving a grant under its provisions; or, may the entry and grant of a natural oyster-bed not included in (776) the boundaries fixed by said board be now vacated and set aside upon the ground that the same is not subject to entry under the laws of North Carolina?

It seems to have been the policy of the Legislature for many years to encourage the cultivation of oysters and other shellfish by private parties, and at the same time to preserve for the public use those natural beds where oysters were found in sufficient quantities to be of value to the public. A reference to some of the statutes upon the subject may be found in the opinion in the case above cited. At each session of the General Assembly since that of 1887, material changes have been made in the law upon this subject, but it will only be necessary to refer to one of these subsequent statutes, because, whatever rights the defendant may have in the franchise conveyed to him by the grant in question vest in him by virtue of said act of 1887, and cannot be divested by subsequent legislation. Therefore, the fact that this action is instituted under the provisions of Laws 1893, ch. 287, sec. 4, gives it no additional strength.

It will be seen by reference to chapter 119, Laws 1887 (the 4th, 5th, and 6th sections above set out in the statement of the case) that by said act an elaborate system was adopted for the furtherance of the objects in view, the encouragement of the culture of oysters, and also the preservation of the rights of the public in the use of the natural beds. A board of commissioners was appointed, with clearly defined duties, to have surveyed and mapped a certain area, in which was included that part of Pamlico Sound which was within the jurisdiction of the County of Hyde, "whereon shall be shown the location and area of all the natural oyster-beds, and of all the grounds which may have been occupied under the authority of previous acts for the growing, etc., of (777) shellfish; and upon the completion of said surveys in, and maps of, each or any county, the Board of Commissioners of Shell Fisheries shall determine the location, area, limits and designation of each and every public ground in the county, and such public grounds are to include the natural beds," etc.

It was further provided that persons dissatisfied with the action of the board might file a protest with the board, have a hearing, after notice to all parties in interest, and that after such hearing the decision of the board should be final until reversed on appeal to the Superior Court.

The final decision of the board was to be published, and entries might be made of any ground which had not been designated as public ground, and after payment therefor, grants were to issue, to the enterer, of a perpetual franchise to cultivate oysters within a certain limit and upon a certain condition. We are given to understand in the case before us that all the provisions of the law have been complied with, unless it be that the board of commissioners has failed to have all the natural beds included within the boundaries determined by said board to be the public grounds of said county.

There is no question but that the locality of the grant was upon the land covered by the waters of Pamlico Sound, which is navigable water, and that the same was not subject to grant under the general laws regarding entries and grants, and became so subject in a qualified sense by virtue of the act of 1887.

It will be conceded, also, that there was no stretching of the power of the Legislature in delegating to a board of commissioners the authority to designate what portions of the public domain not free to entry already should be opened to entry for the special purposes designated.

Acts of this kind are not infrequent, and the authority of such boards has not been seriously questioned, as far as we have been informed. Instances may be found of precedents in the appointment (778) of commissioners from time to time to have surveyed and opened to sale and grant the lands in western North Carolina acquired by treaty from the Cherokee Indians, which acts are set out in the Revised Statutes of 1836, or the appointment of commissioners under act of Congress of 3 March, 1877, in regard to the Hot Springs reservation in Arkansas, whose duties were to designate a portion of said tract to be still reserved, and to have the remaining portion surveyed off into lots, and to finally determine the rights of claimants and occupants to purchase the same. In Rector v. Gibbon, 111 U.S. 276, it was held, there being no provision for an appeal from the decision of the commissioners, that their action was subject to review in the courts. In our case, however, full provision was made for the review of the action of the board of commissioners, and in case of no such review being sought and had, its decision was declared final.

A grant or patent may be vacated at the instance of a private person, under section 2786 of The Code, and in an action brought by the Attorney-General to vacate the same, under section 2788. But these actions must be founded upon a charge of fraud or mistake.

The present action is brought under the provisions of Laws 1893, ch. 287, sec. 4, which is as follows:

"4. That it shall be the duty of the solicitor of the judicial district in which any county is situated, wherein there is any license, entry or grant, or any oyster- or clam-bed, upon an affidavit being filed with him, sworn to and subscribed by five inhabitants of such county, stating that such license, entry or grant includes a natural oyster- or clam-bed, forthwith to institute an action in the Superior Court of such county (779) in the name of the State of North Carolina upon the relation of such solicitor, to vacate and amend such license, entry or grant, and to prosecute the same to judgment."

It appears, then, that a tribunal was established for the purpose of designating such portion of the lands, not theretofore subject to entry, and covered by the waters of Pamlico Sound and other waters, as were natural oyster-beds, and to declare them public grounds, and that such other portions of said territory in the County of Hyde and certain other counties as are not included in said public grounds shall be open to entry for certain purposes and under certain restrictions; that a mode of review upon appeal from the final decision of said board was provided in the act, and their decision in the absence of any reversal by the courts declared final after a certain time; that the Legislature had power to make such provision, and that in the absence of fraud or mistake in the procurement or issue of the grant it must be binding upon the parties thereto. "If the terms of the grant are doubtful, that construction will be adopted which least restricts the rights of the State and of the public, inasmuch as public grants, whether made by the Crown or by Congress or by a State, are construed strictly and pass only what appears by express words or necessary implication." Gould, Waters, p. 88.

But fraud is never presumed. When the State comes into its courts seeking their aid in annulling a contract, it is governed in general by the same rules as the citizen. It has provided its own tribunal with full powers and a system by which its decisions may be reviewed. These laws are binding upon us. Aware, as we are, of the importance of preserving these public grounds for the common benefit, we are not permitted to provide another way when the Legislature has marked out the course to be pursued by those who have been injured by the action of commissioners.

In the absence of any allegation of fraud or mistake in the (780) complaint, there was no cause of action stated. If grants have been issued under the provisions of and in strict accord with the law, rights of property have been acquired which the State itself cannot take away, except after compensation and under the principle of eminent domain.

His Honor could not have done otherwise than to sustain the demurrer.

Affirmed.

Cited: Blount v. Simmons, 118 N.C. 10; S. v. Twiford, 136 N.C. 607;S. v. Young, 138 N.C. 572.