Department of Natural Resources v. France, 1115

• Citation: 28 Md.App. 110,344 A.2d 193
• Decision Date: 08 September 1975
• Docket Number: No. 1115,1115
• Parties: DEPARTMENT OF NATURAL RESOURCES v. Eldridge R. FRANCE.
• Court: Court of Special Appeals of Maryland

Page 110

28 Md.App. 110

344 A.2d 193

DEPARTMENT OF NATURAL RESOURCES v. Eldridge R. FRANCE.

No. 1115.

Court of Special Appeals of Maryland.

Sept. 8, 1975.

Warren K. Rich, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and Henry R. Lord, Deputy Atty. Gen., on the brief, for appellant.

No appearance for appellee.

Argued before ORTH, C. J., MELVIN, J., and EDWARD F. BORGERDING, Special Judge.

MELVIN, Judge.

This appeal presents for determination the location of the jurisdictional water boundary between Wicomico County and Somerset County.

The issue was spawned in November, 1974, when enforcement officers of the Department of Natural Resources (Department) apprehended the appellee and others allegedly using patent tongs to catch oysters in the Wicomico River near its confluence with the Nanticoke River. They were charged with violation of § 4-1011(a) of the Natural Resources Article of the Maryland Code (1974 Ed.), which prohibits the use of patent tongs to catch oysters in the waters of five eastern shore counties, including Wicomico County; Somerset County waters are not included in the prohibition.

When the appellee was brought to trial in the District Court of Wicomico County, that court found that the alleged offense occurred within the jurisdictional boundaries of Somerset County and dismissed the charge for lack of venue.

On December 10, 1974, the appellee and others filed a bill of complaint against the Department in the Circuit Court for Somerset County alleging that despite the District Court's ruling, 'the respondent's officers, upon the instruction of the respondent, have continued to wrongfully harass, hinder and interfere with the Complainants in their daily occupation by ordering them to cease their lawful tonging of oysters and have continued to arrest the Complainants and issue summons for them to appear in the District Court for Wicomico County, for alleged offenses, knowing the alleged offenses and act of the Complainants took place in Somerset County, Maryland, and that the District Court of Wicomico County will not hear the cases involving the alleged offenses because of lack of proper venue.'

On December 13, 1974, the Department, the appellant here, filed in the Circuit Court for Wicomico County a bill of complaint for 'Declaratory Judgment and Injunction by way of Ancillary Relief' seeking a declaration 'that the proper and constitutional boundary between the waters of Wicomico County and Somerset County, for purposes of Title 4 of the Natural Resources Article, is that established by the Oyster Survey of 1906 to 1912, and its amendments' and an injunction 'ordering the Respondents (including the appellee here) to cease and desist the taking of oysters by the use of patent tongs, in violation of § 4-1011(a) of the Natural Resources Article, Annotated Code of Maryland, (1974 Volume, 1974 Supplement), from the waters of Wicomico County as defined by the Charts of the Oyster Survey of 1906 to 1912, and its amendments.' (Emphasis added)

On December 20, 1974, the appellee, alone, filed in the Wicomico County proceedings a cross-bill to the Department's bill of complaint. The appellee's cross-bill adopted by reference the allegations which the appellee and others had set forth in their bill of complaint filed December 10, 1974, in Somerset County. A copy of the Somerset County bill of complaint was filed with the cross-bill. In his prayer for relief the appellee asked the court to issue 'an injunction Ordering and Directing the Cross-Respondent to cease and desist further interference with the Cross-Complainant's occupation and Ordering the Cross-Respondent to cease and desist issuing summons or other charging documents requiring the presence of the Cross-Complainant in the District Court for Wicomico County, Maryland, for offenses allegedly occurring within the territorial limits of Somerset County, Maryland, or the prosecution thereof in the District Court for Wicomico County, Maryland.'

Neither side filed answers to the other's pleadings. The matter, nevertheless, came on for trial in Wicomico County before Judges Duer and Pollitt.

In their final order the trial judges gave each side substantially what they asked for. The order reads as follows:

'For the reasons dictated to the court stenographer in open court, it is this 23rd day of December, 1974,

ORDERED BY THE CIRCUIT COURT FOR WICOMICO COUNTY, MARYLAND:

(1) That the proper boundary between the waters of Wicomico County and Somerset County for the purposes of Title 4 of the Natural Resources Article of the Code is that established by the Oyster Survey of 1906 to 1912 and its amendments, and that the Respondent, Eldridge R. France, and all other holders of licenses to take oysters for commercial purposes by the use of patent tongs, are hereby enjoined from the taking of oysters by the use of patent tongs in the waters of Wicomico County as shown on the Oyster Survey of 1906 to 1912 and its amendments. ¹

(2) The proper boundary between Wicomico County and Somerset County for the purposes of service of process is as shown on the county maps of Wicomico and Somerset Counties issued under authority of the Laws of Maryland, 1896, Chapter 51, and the laws of Maryland, 1898, Chapter 129, and the Department of Natural Resources and its agents are hereby enjoined from instituting prosecution of any person in the District Court for Wicomico County, Maryland, for any offenses against the laws of this state alleged to have occurred within the territorial limits of Somerset County, Maryland, as shown on said maps.

The court costs herein are to be divided equally between the parties.'

The Department has appealed from the second paragraph of the order. The appellee filed no appeal and no brief, so the first paragraph of the order is not before us for review.

The Department contends that the trial court erred in holding that the jurisdictional boundary line between the two counties is as shown on the county maps of Wicomico and Somerset Counties issued by the Geological Survey under authority of the Laws of Maryland, 1896, Chapter 51, and the Laws of Maryland, 1898, Chapter 129. Instead, it argues that the true line is the mid-channel line of the Wicomico River, using the word channel to mean the deepest part of the river. If the Department is correct, the appellee's alleged offenses took place within the jurisdictional boundaries of Wicomico County, for the evidence is clear that the deepest part of the river lies south of the place patent tongs were allegedly being used. ² On the other hand, it is equally clear that the boundary line shown on the maps of the Geological Survey is north of the place where the alleged offenses took place, so that, if the trial court is correct, Somerset County is the proper venue. In other words, the alleged offenses occurred somewhere between the two disputed lines, the Geological Survey line being north of the deep channel line.

In support of its position the Department refers us to Article XIII, § 2, of the Constitution of Maryland which created Wicomico County in 1867. The limits of the county are there set forth, in part, as follows:

'Beginning at the point where (the) Mason and Dixon's line crosses the channel of Pocomoke River, thence following said line to the channel of the Naticoke River, thence with the channel of said river to Tangier Sound, or the intersection of Nanticoke and Wiscomico Rivers, thence up the channel of the Wicomico River to the mouth of Wicomico Creek . . ..' (Emphasis added).

The Department argues that 'channel' means the 'natural channel' and that the natural channel is the deepest part of the river, and that the boundary thus established is the true boundary between the counties for jurisdictional purposes and can only be changed by constitutional amendment.

We do not agree.

First of all, we do not agree that as used in the context of Article XIII, § 2, the word 'channel' necessarily denotes a fine line delineating the deepest part of the river. The word is defined in Black's Law Dictionary (Revised Fourth Edition) in various ways:

'CHANNEL. The bed in which the main stream of a river flows, rather than the deep water of the stream as followed in navigation. But the term is sometimes used to designate the customary and traveled way. It may also be used as a generic term applicable to any water course, whether a river, creek, slough or canal. The 'channel' of a river is to be distinguished from a 'branch'. (Citations omitted).

MAN CHANNEL. That bed of the river over which the principal volume of water flows.

The main channel of a navigable stream, called for as a boundary between states, means the 'thalweg' or deepest and most navigable channel as it then existed (Citation omitted).

NATURAL CHANNEL. The channel of a stream as determined by the natural conformation of the country through which it flows. The floor or bed on which the water flows, and the banks on each side thereof as carved out by natural causes'. (Citations omitted).

Webster's Third New International Dictionary (1967) gives the primary meaning of the word as 'the hollow bed where a natural body or stream of water runs or may run'. The secondary meaning given is 'the deeper part of a moving body of water (as a river, harbor, or strait) where the main current flows or which affords the best passage.'

It is undoubtedly true that the word 'channel', when employed in treating of subjects connected with the navigation of rivers and bays, indicates the line of deep water which vessels usually (but not always) follow. In this sense it is frequently used by boatmen of the Chesapeake Bay and its rivers. As a precise boundary line between counties, however, it is all but illustory and fosters uncertainty where certainty should exist. See Dunleith & Dubuque Bridge Co. v. County of Dubuque, 55 Iowa 558, 8 N.W. 443 (1881). At trial it was stipulated that an expert for the Department would,...