Department of Natural Resources v. France

• Decision Date: 13 April 1976
• Docket Number: No. 90,90
• Citation: 277 Md. 432,357 A.2d 78
• Parties: DEPARTMENT OF NATURAL RESOURCES v. Eldridge R. FRANCE.
• Court: Maryland Court of Appeals

Page 432

277 Md. 432

357 A.2d 78

DEPARTMENT OF NATURAL RESOURCES v. Eldridge R. FRANCE.

No. 90.

Court of Appeals of Maryland.

April 13, 1976.

Warren K. Rich, Asst. Atty. Gen., Annapolis (Francis B. Burch, Atty. Gen. and Henry R. Lord, Deputy Atty. Gen., Baltimore, on the brief), for appellant.

No brief filed on behalf of appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, ^* JJ.

O'DONNELL, Judge.

In this case, we are called upon, for the purpose of venue, to locate the boundary line between two counties separated by a navigable river; at issue is whether the boundary line between Wicomico and Somerset Counties, at the confluence of the Wicomico and Nanticoke Rivers, runs along the mid-point of the geographic center of the water area of the Wicomico River, or whether it is fixed by the thalweg of the channel of the Wicomico River, located southward of its geographic center line.

The factual posture in which this boundary dispute arose involved the dredging of oysters by the use of patent tongs, upon two natural oyster bars, the Great Shoals Bar, located at the mouth of the Wicomico River, and the Middleground Bar, located at the mouth of the Nanticoke River, where those rivers converge to form Tangier Sound.

Maryland Code (1974), Natural Resources Article, § 4-1011(a), prohibits the use of patent tongs to catch oysters in the waters of Wicomico County. ¹ 'County waters' are defined in § 4-1001(d), of the same article, as 'the waters lying within the territorial limits of any county in the state as defined by the charts of the Oyster Survey of 1906 to 1912, and its amendments.'

In late November and early December, 1974, enforcement officers of the appellant, Department of Natural Resources, (the 'Department'), apprehended a number of oystermen, including the appellee, Eldridge R. France-who was cited several times-using patent tongs on the Great Shoals and Middleground oyster bars and charged them with violating § 4-1011(a) of the Natural Resources Article. When the appellee, as the first of the alleged offenders, was brought to trial in the District Court for Wicomico County, the charge against him was dismissed, upon a finding that those portions of the two bars on which the patent tonging had occurred, were located within Somerset County, as shown on the topographic maps, prepared by the Maryland Geological Survey, and were not geographically within Wicomico County.

On December 13, 1974, the Department, acting on behalf of the State, instituted an action in the Circuit Court for Wicomico County, which sought 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' as ancillary relief, the complaint sought that the appellee, and 'other holders of licenses to take oysters for commercial purposes by use of patent tongs during the 1974-1975 oyster season' be enjoined from 'the taking of oysters by the use of patent tongs . . . from the waters of Wicomico County as defined by the Charts of the Oyster Survey of 1906 to 1912, and its amendments.' The appellee countered with a cross-Bill of Complaint, praying that the Department be enjoined from 'issuing summons(es) or other charging documents requiring the presence of the Cross-Complainant in the District Court for Wicomico County . . . for offenses allegedly occurring within the territorial limits of Somerset County . . . or the prosecution thereof in the District Court for Wicomico County.' ²

When the matter was heard in the Circuit Court for Wicomico County (before Duer, C. J. and Pollitt, J.), ³ the trial court ruled that 'the proper boundary between the waters of Wicomico County and Somerset County, for the purposes of the Natural Resources Article is the channel of the Wicomico River as designated in Article XIII, Section 2, of the Constitution of Maryland, and as shown on the Oyster Survey (Charts) of 1906 to 1912, and its amendments,' and that an injunction would issue 'prohibiting the taking of oysters by the use of patent tongs, in Wicomico County waters, as shown on (those) maps.' The trial court further held that 'the jurisdiction of counties on navigable waters was, for the purposes of service of process, as shown on the topographic maps prepared and distributed according to the provisions of those Sections (82-84) of Article 78' and that it would enjoin the appellant, or any 'other law enforcement agency, from bringing prosecution in these cases in Wicomico County because the District Court of Wicomico County has no jurisdiction, the proper place for any prosecution for any violation of the law south of this line (as) shown on the topographic maps being in Somerset County.'

The circuit court, by its decree (a) enjoined the appellee and all other holders of patent tong licenses, from 'taking . . . 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' and (b), declared that '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 (the) authority of the Laws of Maryland, 1896, Chapter 51, and the Laws of Maryland, 1898, Chapter 129 (as set forth in Art. 78, § 83)' (emphasis added), and enjoined the appellant and its agents, 'from instituting (the) prosecution of any person in the District Court of Wicomico County . . . for any offenses . . . alleged to have occurred within the territorial limits of Somerset County . . . as shown on said (topographic) maps.'

The Department appealed to the Court of Special Appeals from the second portion of the decree. It asserted that the trial court was in error in holding that the jurisdictional boundary line between the two counties was as shown on the topographic maps (to be the geographic center of the river), within the provisions of Code (1957, 1969 Repl. Vol.), Art. 75, §§ 82-84, and, urged a construction of the word 'channel' to mean the 'natural channel,' i. e., the deepest part of the river, contending that the true boundary line, in accordance wth Article XIII, Section 2, of the Maryland Constitution, and the provisions of Art. 75, § 81, was the mid-channel line of the Wicomico River.

The Court of Special Appeals, in Department of Natural Resources v. France, 28 Md.App. 110, 344 A.2d 193 (1975), pointing out that the appellee had been enjoined from using patent tongs in the waters of Wicomico County, and that the State's Attorney of Wicomico County had agreed to hold in abeyance the cases involving other oystermen, pending final decision in these proceedings, found that the injunction against the Department, contained in the second portion of the decree, was 'unnecessary' and 'too broad,' and vacated it. That court was further of the view that the declaration made by the circuit court as to the boundary between the two counties was correct, but, limited as it was 'for the purposes of service of process,' was 'too restrictive.' The court, noting that pursuant to Maryland Rule 104 a, process issued from any court may be served on the party named therein wherever he may be found, 'whether in or out of the said county,' and that the principal issue involved the proper venue for the trial of the appellee for violations of § 4-1011(a) of the Natural Resources Article, modified the second portion of the trial court's decree to read as follows: 'The proper boundary between Wicomico and Somerset County for purposes of venue is as shown on the county map of Somerset County issued under authority of the Laws of Maryland, 1896, Chapter 51, and the Laws of Maryland, 1898, Chapter 129 . . .' (emphasis added) As modified, the decree was affirmed. Finding that a review of the case was 'desirable and in the public interest,' pursuant to Code (1974), Courts and Judicial Proceedings Article § 1i-203, we granted certiorari.

In 1704, the Provincial General Assembly, by the enactment of Chapter XCII, confirmed as 'firm and stable forever' the 'several Divisions and Partitions' made by the Act of May 8, 1695, which created Prince George's County, and the 'several other Divisions and Partitions, Lines and Land-Marks, (which) were made, relating to the Bounds of both' Anne Arundel and Baltimore Counties, which were created by the Act of April 16, 1698. The Act of 1704 then went on to provide:

'III. And whereas there are several Counties that are divided by navigable Rivers, and no Rule yet made how far the Jurisdiction of each County shall extend on the River; BE IT THEREFORE ENACTED by the Authority aforesaid, That every County lying on any navigable River, in this Province, shall extend its Jurisdiction From the Shore to the Channel of such River that divides the County; and be divided From the other County by the Channel of the said River. And that where any Ship or Vessel shall ride at Anchor in the Channel of such River, Process may be served on board said Ship, by the Officer of either County that can first serve it. But when moored by any Hold on the Land, shall be supposed to lie in That County to whose shore she is Fastened, if moored.' (emphasis added).

Section III of Chapter XCII of the Acts of 1704 has remained virtually unchanged, except for those changes made by the General Assembly in 1860 when it adopted a Code of Public General Laws. Today it is codified as Art. 75, § 81, and reads as follows:

' § 81. Jurisdiction of county lying on navigable river.

'Every county lying on any navigable river in this State shall extend its jurisdiction from the shore to the channel of the river that divides the counties except where a dividing line has been fixed in such river by law, and, where any ship or other vessel shall be in said river, process may be served...