Lewes Sand Co. v. Graves

• Decision Date: 20 June 1939
• Citation: 8 A.2d 21,40 Del. 189
• Court: Supreme Court of Delaware
• Parties: LEWES SAND COMPANY, a corporation of the State of Delaware, Defendant Below, Plaintiff in Error, v. HENRY G. GRAVES and LEWIS B. GRAVES, Plaintiffs Below, Defendants in Error

8 A.2d 21

40 Del. 189

LEWES SAND COMPANY, a corporation of the State of Delaware, Defendant Below, Plaintiff in Error, v. HENRY G. GRAVES and LEWIS B. GRAVES, Plaintiffs Below, Defendants in Error

Supreme Court of Delaware

June 20, 1939

Supreme Court, No. 6, June Term, 1938.

From the record the following facts appear:

The State of Delaware held a large tract of vacant land contiguous to the Town of Lewes and reaching to the seashore on which land were large deposits of sand in the form of sand hills or sand dunes; that the General Assembly by Act of April 11, 1907, Chapter 220, Vol. 24, Laws of Delaware, being re-enactment of former legislation, vested this land in the Town of Lewes as provided by Sec. 7 of the Act, and all of the land involved in the present controversy is admitted to be a portion of the land mentioned in the Act. Section 7 provides:

"Section 7. All the public and vacant lands lying within the corporate limits of said town of Lewes, and all the public or vacant lands contiguous to but outside the corporate limits of said town and fronting on the Bay between the point of Cape Henlopen on the south and Veasey's Inlet on the north shall be vested in the Commissioners of Lewes and the said Commissioners shall have jurisdiction over the same; and all ordinances adopted by the said Commissioners shall have the same force over and upon the said public and vacant lands as within the corporate limits of said town, and the said Commissioners are hereby authorized to lease, to persons who will improve or agree to improve the same, such portions of said public lands for such time and upon such terms as they, the said Commissioners, may deem proper for the interest and benefit of said town. * * *"

On March 7, 1917, the Commissioners of Lewes leased a portion of the above mentioned land, for the term of twenty years from March 1, 1917, to William C. Lofland. This lease covered a small tract of 21050 square feet adjoining a railroad siding, together with a thirty foot right of way from the railroad to the "Sand Hill", and "the privilege or right to use, sell, ship or deliver sand from the Sand Hill." By the lease the grantee was to pay to the Town of Lewes the annual rental of $ 5.00, and the further sum of two cents a ton for all sand used, sold, shipped or delivered during the term of the contract. On March 20, 1924, the foregoing lease and agreement was assigned by the Administrator of William C. Lofland to Lewes Sand Company, the defendant below, plaintiff in error.

On February 15, 1937, the Commissioners of Lewes renewed the said lease and agreement with the Lewes Sand Company, for the further period of twenty years commencing March 1, 1937, and ending March 1, 1957.

On October 30, 1936, the Commissioners of Lewes executed a lease to Henry G. Graves and Lewis B. Graves, the plaintiffs below, defendants in error, which lease covered a portion of the public lands vested in the Commissioners, and consisted of two contiguous parcels aggregating forty-one acres. The parcels were described by metes and bounds, and with them was granted a right of way one hundred feet wide leading from the State Road into the big Sand Hill, with the right to construct thereon a graded road for the purpose of giving access to the Sand Hill by truck.

In August, 1937, the sand digging operations of the Lewes Sand Company reached and encroached upon the parcels theretofore leased to Henry G. Graves and Lewis B. Graves, who thereupon brought an action in the Superior Court for Sussex County of trespass quare clausum fregit. From the action of the Court below the matter is brought to this Court by Writ of Error.

The assignments of Error relied upon are:

1. That the Court erred in admitting in evidence the lease from the Commissioners of Lewes to Henry G. Graves and Lewis B. Graves, the plaintiffs below, over the defendant's objection that the lease was ultra vires and void.

2. That the Court erred in refusing to allow the defendant to introduce evidence tending to show that the plaintiffs below had made no improvements on the lands leased to them, nor any agreement to improve said lands.

3. That the Court erred in not granting the motion of the defendants below for a non-suit.

4. That the Court erred in not granting a directed verdict for the defendant below, as requested by it at the conclusion of the testimony.

5. The Court erred in striking out testimony referred to by the Court as follows on page 232 of the Record:

"I will strike out all testimony relative to the description of the Sand Hill by metes and bounds and also the testimony to the effect that the sand hill referred to in the lease of nineteen seventeen and the renewal in nineteen thirty-seven extends into or upon the land of the plaintiffs."

6. That the Court erred in instructing the jury to return a verdict in favor of the plaintiffs.

The judgment is affirmed.

James M. Tunnell, Sr., and James M. Tunnell, Jr., for plaintiff in error.

Daniel J. Layton, Jr., for defendants in error.

HARRINGTON, Chancellor, LAYTON, C. J., RICHARDS, RODNEY and TERRY, J. J., sitting.

OPINION

RODNEY, J.

We may consider the first two assignments of error as one. Both have a tendency to attack the validity of the lease from the Commissioners of Lewes to Henry G. Graves and Lewis B. Graves, the plaintiffs below, defendants in error. The Lewes Sand Company strongly relies upon the language of the Legislative Act vesting the lands in the Commissioners of Lewes, whereby the Commissioners were authorized to lease the lands "to persons who will improve or agree to improve the same." The plaintiff in error contends the lease was ultra vires on the part of the Commissioners and attempted to show the lack of improvements by the lessee. The lessee contended that improvements within the meaning of the Statute had been made, and that there had been no showing that no agreement to improve was in existence. The lessee also contended that, in any event, no error existed in the action of the Court below because the entire contention constitutes a collateral attack upon the municipal action, which can not be allowed. We shall not pause to consider the testimony as to the nature of improvements or whether they were made, or as to effect of the presence or absence of any agreement to make improvements. The municipal authorities were given quite extensive authority to lease the lands for the benefit of the Town of Lewes. The Town Commissioners did by ordinance and by a formal instrument of writing lease the lands to the plaintiffs below. We do not think the circumstances of this case bring the matter within any exception to the general rule that a municipal ordinance is not subject to collateral attack. Public policy forbids that legislative acts or municipal ordinances should be attacked collaterally. 2 McQuillin Mun. Corp., (2d Ed.) Sec. 844, p. 869; Sawyer v. Robison, 114 Tex. 437, 268 S.W. 151; Chicago Tel. Co. v. N.W. Tel. Co., 199 Ill. 324, 65 N.E. 329, at page 335.

In Treasurer of City of Camden v. Mulford, 26 N.J.L. 49, the Court drew the clear distinction between the lack of jurisdiction of municipal authorities to pass an ordinance on the one hand and on the other hand the admitted power to pass the ordinance, but the improper manner of exercising the right. In the latter case it was held that the ordinance could not be collaterally attacked. The authority of the Commissioners of Lewes to make a lease can not be disputed; the manner of exercising the right can only be attacked in a direct proceeding and not collaterally.

The third Error assigned, viz., that "the Court erred in not granting the motion of the defendant below for non-suit as requested by it at the conclusion of the testimony in chief offered by the plaintiffs below" must be denied. In May v. Curry and Davis, 4 Del. 265, 4 Harr. 265, it was determined that a writ of error will not lie to the judgment of a Court granting or refusing a non-suit. See, also, Truxton v. Fait & Slagle Co., 17 Del. 481, 1 Penn. 483, at page 510, 42 A. 431, at page 438, 73 Am. St. Rep. 81.

By the Fourth assignment of error the plaintiff in error contends that the Court below erred in not granting a directed verdict for the defendant below, as requested by it at the conclusion of the testimony.

While it may or may not be strictly appropriate we propose to briefly consider under this assignment certain reasons which were advanced in argument under the motion for a non-suit, but which do not seem to have been renewed under the motion for binding instructions. In support of the motion for a non-suit the defendant below contended that the lease to the Graves Brothers was a "mining lease" merely and, as such, would not sustain an action of trespass. The Court below held otherwise and we think it was correct. While it may not be denied that the removal of sand was the chief object of the lease, yet the agreement between the parties was not a mere license to that effect. The agreement was a formal instrument described as a lease, by which the lessor vested in the lessee a definite property described by metes and bounds; the lease was for a definite term, reserving a fixed amount per ton for sand removed, with a guaranty of a minimum...