Hurst v. Dulany

• Decision Date: 31 December 1888
• Citation: 5 S.E. 802,84 Va. 701
• Court: Virginia Supreme Court
• Parties: Hurst v. Dulany.

5 S.E. 802

(84 Va. 701)

Hurst

v.Dulany.

Supreme Court of Appeals of Virginia.

December 31, 1888.

1. Fisheries—Planting Oysters—Allotment op Water Front—Acts Va. 1883-84, Ch. 254, § 6.

Under Acts Va. 1883-84, c. 254, § 6, providing that "any owner or occupier of land having a water front thereon" may apply to any inspector, etc., who shall assign to him a location thereon for planting oysters, such assignment not to exceed one-fourth of said front, an allotment of one-fouth of the water front of certain lands was made to the occupier, who was a tenant. Held, that the privilege is exhausted, and the owner is not entitled to another allotment.

2. Same.

Acts Va. 1883-84, c. 254, § 6, provides that the owners or occupants of land having a water front thereon upon application to an inspector may have allotted to them such location as they may designate, of a limited area, for planting oysters; also that if any portion thus assigned shall be occupied by others with oysters actually planted thereon, such occupant shall have 18 months to remove them. Held, that an inspector is not bound first to allot an unoccupied portion of such water front.

3. Forcible Entry and Detainer—When Lies—Possession of Plaintiff.

In unlawful detainer, where it appears that plaintiff was in possession when the action was brought, judgment should be for defendant.

4. Limitation of Actions—When Applicable—Lands Owned by the State.

The statute of limitations as to adverse possession of lands has no application to lands belonging to the commonwealth.

5. Estoppel—In Pais—Lease from State.

One who has paid annual rent to the commonwealth for the use of certain oyster bottoms is estopped from denying the title of the commonwealth.

Error to circuit court, Northumberland county.

Action of unlawful detainer, by R. H. Dulany against Thomas B. Hurst, to recover possession of a piece of oyster shore. The circuit court gave judgment for plaintiff, and defendant brings error. In the progress of the trial the defendant, Hurst, asked the court to instruct the jury as follows: " (1) If the jury believe, from the evidence, that the commonwealth of Virginia had no right of possession in the premises in the summons set out and described, then the plaintiff, as the lessee of the commonwealth, has no right of possession in the same, and they must find for the defendant. (2) If the jury believe, from the evidence, that the premises in the summons mentioned and described are part and parcel of the territory embraced in the grant of the Northern neck of Virginia to Thomas, Lord Culpeper, then the commonwealth had no power to lease the same, and they must find for the defendant. (3) If the jury believe, from the evidence, that the defendant has occupied the premises in controversy for a period of years, beginning in 1867, down to the present day, and has used the same to plant and propagate oysters, and that the said premises are not, nor any part thereof, a natural oyster-bed or rock, they should find for the defendant. (4) If the jury believe, from the evidence, that the premises in the summons mentioned have been in the possession of the defendant for more than three years [the original instructions being somewhat illegible, I took the word marked * to be 'from, ' though it ought to be ' prior, ' and might have been intended for ' prior'] *from the date of the said summons, they must find for the defendant. (5) If the jury believe, from the evidence, that the plaintiff's claim of right to possess the premises in controversy is based upon the title of the commonwealth to the same, then, the commonwealth having no title to the same, they must find for the defendant. (6) If the jury believe, from the evidence, that the plaintiff, R. H. Dulany, is in possession of any of the shores along the Bluff-Point farm suitable for planting oysters, then the law is that you cannot give to him any part of the ground upon which the defendant, Hurst, now has oysters planted, and you will find for the defendant. (7) That if you believe, from the evidence, that there is any portion of the shores along Bluff-Point farm suitable for planting oysters, and which are now unoccupied, then the law is that you cannot give to the plaintiff, Dulany, any part of the ground upon which the defendant, Hurst, has oysters planted, and you must find for the defendant. (8) That if you believe, from the evidence, that any person occupying the Bluff-Point farm as agent, lessee, or tenant of the plaintiff, Dulany, is in possession of any shore along or upon said farm suitable for planting oysters, then the law is that the plaintiff, Dulany, cannot recover any portion of the ground upon which the defendant, Hurst, has planted oysters, and you will find for the defendant." The court refused to give the aforesaid instructions, but instructed the jury as follows: "If the jury believe, from the evidence, that, at the time of the issuing of the summons in these proceedings, the plaintiff, Dulany, wasin possession of the oyster bottom in controversy, by virtue of an assignment made to him by the duly-authorized oyster inspector, pursuant to the 6th section of chapter 254 of the Acts of Assembly for 1883-84, entitled 'An act for the preservation of oysters, ' etc., then the said plaintiff is entitled to recover in this action."

JR. M. Mayo, for plaintiff in error. Guy & Gilliam, for defendant in error.

Lacy, J. This is a writ of error to a judgment of the circuit court of Northumberland county, rendered on the 28th day of April, 1887. The action was unlawful detainer by Dulany, the defendant in error, against Hurst, the plaintiff in error, for a section of oyster bottom in Northumberland county, on the west shore of the Chesapeake bay. Dulany being the owner of a farm called "Bluff Point, " in said county, and lying on the said bay, had rented the same to one Snowden Hall, who has been the occupier of the same for 15 years. Under the sixth section of the act for the preservation of oysters, (chapter 254, Acts 1883-84,) Hall had procured from the inspector an allotment of 900 yards,...