Cain v. Simonson

• Decision Date: 30 June 1905
• Citation: 39 So. 571
• Parties: CAIN v. SIMONSON ET AL.
• Court: Alabama Supreme Court

39 So. 571

CAIN v. SIMONSON ET AL.

Supreme Court of Alabama

June 30, 1905

Appeal from Chancery Court, Mobile County; Thos. H. Smith Chancellor.

"Not officially reported."

Bill by Eugene Simonson and others against Melvin Cain. From a decree in favor of plaintiffs, defendant appeals. Modified and affirmed.

Erwin &amp McAleer, for appellant.

Charles L. Bromberg, Jr., for appellees.

DENSON J.

This is the second appeal in this case, and a statement of the allegations in the bill and amendments thereto, and in the answers, will be found in the report of the case on the former appeal. Simonson v. Cain, 138 Ala. 221, 34 So. 1019. It was there held that the bill as amended was not subject to the objection of multifariousness, which was made by the single demurrer interposed by the respondent. The chancellor's decree dissolving the injunction on the denials contained in the answer was affirmed, but that part of the decree sustaining the demurrer was reversed, and the cause was remanded. After the cause was remanded testimony was taken, and on the pleadings and proof the chancellor rendered a final decree adjudging that the complainants were entitled to relief, enjoining the respondent from going on, over, or across any of the waters designated, except to go to his own lands or oyster beds in the channel staked out as described in the third amendment to the bill, and requiring him to use such skiffs or boats as would not trespass upon or injure the oysters of complainants. The register was also directed by the decree, if requested by the complainants, to issue a writ of injunction in accordance with the decree. From this decree the respondent appeals.

The contention is over the right to use for planting and gathering oysters Little Bay, a body of water with a narrow mouth toward the west, then widening and running southeast bounded by an irregular curve. Complainants own land bordering this bay all the way on the south and a part of the way on the north, including that bordering on the narrow mouth of the bay. Defendant owns a leasehold interest in lands bordering this bay on the northeast. Complainants planted oysters in the water fronting their lands, and clear across the mouth of the bay, which is less than 1,200 yards wide. Defendant claims the right to sail through the mouth of the bay, to and from the waters in front of his land, for the purpose of planting and gathering oysters. Complainants deny this right asserted by the respondent, and filed the bill to enjoin the defendant from going at all over the waters of Little Bay where they have planted oysters, or, in the alternative, if they are mistaken in their right to exclude him altogether, to require him to use a particular channel in going to and from his oyster beds. Though the bill alleges that complainants are the owners of all that part of the bay, known as "Little Bay," lying within the boundaries of the land described, there is no proof whatever of this allegation. It was admitted, however, that complainants jointly own lands bordering on this bay, and that the respondent owned a leasehold interest in other lands bordering on the bay. The lands are located in the lower part of Mobile county. The body of water that the lands front is known and designated on the maps as Mississippi Sound. See Geological Map of Alabama 1894; also map by the General Land Office of the Department of Interior, compiled under the direction of Harry King, civil engineer, 1895; also map attached as Exhibit A to the answer of the respondent to the bill. There is no such separate and distinct body of water known as Little Bay, otherwise than a local name is given to a small portion of the Mississippi Sound inclosed within a curve of its shores. It was shown that Little Bay is tide water. Therefore the title and domain of it is presumed to vest in the state of Alabama, in the absence of proof to the contrary. 21 Am. & Eng. Ency. Law (2d Ed.) 430; Mayor and Aldermen of the City of Mobile v. Eslava, 9 Port. 577, 33 Am. Dec. 325; Boulo v. New Orleans, etc., 55 Ala. 480.

It follows that, if the complainants have any rights in the waters of this bay, or the lands covered by them, such rights must exist by virtue of the statute a...