Avery v. Beale, 4159

• Citation: 80 S.E.2d 584,195 Va. 690
• Decision Date: 15 March 1954
• Docket Number: No. 4159,4159
• Court: Supreme Court of Virginia
• Parties: RAY T. AVERY, JOHN W. AVERY, AND E. FLOYD YATES v. C. W. BEALE. Record

Page 584

80 S.E.2d 584

195 Va. 690

RAY T. AVERY, JOHN W. AVERY, AND E. FLOYD YATES v. C. W. BEALE.

Record No. 4159.

Supreme Court of Appeals of Virginia

March 15, 1954.

Edward P. Simpkins, Jr., Robert Lewis Young and Bremner & Young, for the appellants.

George E. Haw and Haw & Haw, for the appellee.

JUDGE: SMITH

SMITH, J., delivered the opinion of the court.

This case involves the validity of certain duck blind licenses and the priority of rights as between riparian and non-riparian licensees.

On November 13, 1952, the appellee, C. W. Beale, presented his sworn bill of complaint, together with affidavits and exhibits, to the judge designate of the Circuit Court of Charles City county, alleging that the appellants, Ray T. Avery, John W. Avery and E. Floyd Yates were hunting from a stationary duck blind located in the public waters of the Chickahominy river in violation of his rights acquired under Title 29, Chapter 5, Article 3, of the Code of 1950, sometimes herein referred to as duck blind statutes. The prayer of the bill was for an injunction which was that day granted and under which the appellants were enjoined from using their blind for a period of ninety days therefrom, appellee and his surety executing bond in the penal sum of $500. In their joint and several answer, appellants, (Ray T. Avery, licensee of a duck blind here involved, and his two guests), denied that they were violating any of appellee's rights, and asserted that the duck blind statutes are unconstitutional so far as they purport to grant a perference to the riparian owner. Ray T. Avery, in addition to his answer, filed a cross bill praying that the appellee be enjoined from interfering with the use of his blind and that he be awarded damages for being denied the use of his blind during the effective period of the injunction. On December 15, 1952, the cause came on to be heard ore tenus and the trial court made the injunction of November 13, 1952, perpetual for the 1952-53 hunting season and ordered Ray T. Avery to remove his blind within five days, to which action of the trial court this appeal was awarded the appellants.

At the outset we are met with a motion to dismiss this appeal because 'there is now no question in controversy between these parties; that it is entirely a moot question, and regardless of whether the Court should hold that the statute in question is constitutional or not, cannot in any wise affect the rights of the parties in this suit as regards the hunting season of 1952-53, which has already ended and the license for same has expired.'

To support this motion, the appellee relies on Hankins v. Town of Virginia Beach, 182 Va. 642, 29 S.E. (2d) 831, which involved the right of certain individuals to operate their vehicles for hire on the streets of the Town of Virginia Beach under a license issued to them by the town. The case was dismissed because the particular license had already expired and all rights and benefits thereunder had ended. Here, however, while the hunting season of 1952-53 has ended, the right to damages 'by reason of the institution of this suit and the loss of this defendant's hunting privileges,' as asserted by Ray T. Avery in his cross bill, is not moot but dependent on the correctness of the trial court's final judgment. Goin v. Absher, 189 Va. 372, 53 S.E. (2d) 50. There is therefore no merit in this contention and the motion to dismiss this appeal is overruled.

Eagle Lodge, Incorporated, a corporation owned entirely by appellee, is the owner of a large tract of land of approximately 1,100 acres in Charles City county, Virginia, with a frontage of two and a half to three miles on the west bank of the Chickahominy river, a tidal and navigable stream. Between the channel of the river and the shore line of the Eagle Lodge property there is a pronounced indenture or bay known in that vicinity as Carys Flats which is a very desirable place to hunt waterfowl.

On July 1, 1952, appellant Ray T. Avery obtained license no. 16, and a license plate for a stationary blind, described in his application as being in the 'public waters opposite lower buoy in Carys Flats.' He had held a valid license for the same blind the previous hunting season, 1951-52. Immediately after obtaining the license plate he affixed it to his blind which had already been erected within 500 yards of the Eagle Lodge property, but more than 500 yards from any other then licensed blind.

Thereafter, but prior to September 1, 1952, Beale, as permitee of Eagle Lodge, Incorporated, obtained sixteen licenses for duck blinds on or in front of the Eagle Lodge property for the use of himself and his guests. The location designated in the application for one of these licenses, no. 18, was in the 'lower part of Carys Flats approximately opposite buoy in river channel, 500 yards more or less from Charles City shore line,' which blind was built in the public waters in front of the Eagle Lodge property and west of the channel and within 32 yards of the blind erected by appellant Ray T. Avery. The appellee's application for another license, no. 32, described the location of the blind as 'on shore at or near up or down river from Goose Point,' which blind was built on the shore line of the Eagle Lodge property between high and low watermarks, and within 500 yards of Avery's blind. The license plates for these two licenses were affixed and the blinds built within the time required to give the riparian owner priority under the terms of the duck blind statutes.

This brings us to the issues of the case, which are thus stated by appellants: 'If Title 29, Chapter 5, Article 3, of the Code of Virginia, 1950, be properly interpreted as conferring upon the appellee under the circumstances of this case any rights superior to the rights of the appellant, Ray T. Avery, under license No. 16, then such statutes are void in the particulars mentioned under * * * Article 1 of the Fourteenth Amendment to the Constitution of the United States, and Sections 1, 3, 4, 11 and 63, Paragraph 18, of the Constitution of Virginia, particularly as made statutory by Section 62-1, Code of Virginia, 1950,' and that said Article 3, 'insofar as it might be interpreted to confer rights of priority upon the appellee in this case, the provisions thereof being vague, contradictory and unworkable, is void.'

In 1916 the United States entered into a treaty with Great Britain which obligated the United States to take measures for the preservation of migratory birds and in 1936 a similar treaty was made with Mexico. These agreements have been implemented by the Migratory Bird Treaty Act of July 3, 1918, c. 128, 40 Stat. 755, and the amendatory act of June 20, 1936, c. 634, 49 Stat. 1555.

In conformity with this act of Congress the Virginia legislature has enacted the provisions of Title 29, Chapter 5, Article 3, § 29-81 of which makes it unlawful to hunt migratory waterfowl in the public waters of this state from unlicensed blinds and without a season license to hunt. Sections 29-82, 29-83, and 29-87, prescribe the kinds of blinds and how they may be used; § 29-89 allocates the money received from the sale of blind licenses to the game protection fund; § 29-90 provides for both civil and criminal penalties; § 29-91 exempts Accomack, Northampton, York and Princess Anne counties from the provisions of the article; and § 29-92 authorizes the Commission to alter its provisions wherever 'practicable and desirable * * * to meet changing conditions' except that the Commission may not alter the privileges of riparian owners. The most pertinent provisions of the duck blind statutes read as follows:

Code, § 29-85. 'Stationary blinds on shore and in the public waters for owners of riparian rights. -- The owners of riparian rights, their lessees or permittees, who desire to do so, shall, each year, have the exclusive privilege of licensing and erecting blinds on their shore line, and the prior right of licensing and erecting blinds in the public waters in front of such shore line, to shoot waterfowl on or over the public waters, and when such license has been obtained and a stake, or a blind, erected on the site with the metal license plate supplied with the license for that season affixed thereto, no other stationary or floating blind shall locate in the public waters within less than five hundred yards thereof without the consent of such riparian owner, lessee or permittee. Riparian owners, their lessees or permittees, may obtain licenses on and after July first and on or before August thirty-first of each year. A stake, or a blind, shall be erected on the site and the metal license plate supplied with the license for that season affixed thereto within ten days.'

Code, § 29-86. 'Stationary blinds in the public waters for nonriparian owners. -- Unless the license has been obtained and a stake, or a blind, erected and marked as aforesaid within the time stated, in any year, the owners of riparian rights, their lessees or permittees, shall forfeit the privilege of licensing blinds on their shores and also priority for licensing stationary blinds in the public waters adjoining such shores. Any locations remaining in the public water shall belong to whoever first obtains license and erects a stake, or a blind, and cannot be located in water having a greater depth than eight feet at mean high tide, on the site selected, which must be at least five hundred yards from any other stationary blind, with the metal license plate supplied with the license for that season affixed thereto. The license for a stake or brush blind, or other stationary blind permitted by law, in the public waters, may be obtained on and after July first and on or before September thirtieth, and a stake or blind shall be erected on the site with the metal license plate supplied with the license for that season affixed thereto within ten days.'

Code, § 29-88. 'Renewing licenses. -- The holders of licenses...