Oemler v. Green

• Court: Georgia Supreme Court
• Writing for the Court: BECK, J.
• Citation: Oemler v. Green, 134 Ga. 198, 67 S.E. 433 (Ga. 1910)
• Decision Date: 03 March 1910
• Parties: OEMLER v. GREEN.

67 S.E. 433

134 Ga. 198

OEMLER v. GREEN.

Supreme Court of Georgia

March 3, 1910

Syllabus by the Court.

Under the pleadings and evidence in the case, it does not appear that the court erred in granting the interlocutory injunction.

Additional Syllabus by Editorial Staff.

A grant from King George II to an island in Georgia, bounded on certain sides by the ocean and rivers and "northwesterly by large marshes," did not convey the marshes, but they are points beyond which the island conveyed does not go.

Error from Superior Court, Chatham County; W. G. Charlton, Judge.

Action by Anthony Green against Augustus Oemler. Judgment for plaintiff, and defendant brings error. Affirmed.

Atkinson J., dissenting.

Osborne & Lawrence, for plaintiff in error.

Travis & Travis, for defendant in error.

BECK J.

Anthony Green brought his equitable petition against Augustus Oemler praying for an injunction to restrain the defendant from interfering with the free access of petitioner and his agents to enter upon certain leased territory for the purpose of taking oysters therefrom, or exercising any of his rights under his lease. The lease referred to had been obtained by plaintiff in the month of April, 1901, from the commissioners of Chatham county, in accordance with the provisions of the acts of the Legislature of 1889 and 1891, relative to the leasing of territory for planting oysters and their cultivation, and included in the lands described in the lease as five acres of land under water in Rhodes or Sandy Bottom creek. Petitioner alleged that he had planted oysters on said land in accordance with the terms of said lease and the law under which the same was executed, and Oemler had interfered with petitioner and had prevented him from exercising his rights in said leased territory and from entering upon the same and planting oysters thereon or gathering oysters therefrom; that Oemler had been taking oysters from the territory leased, and would continue to do so unless restrained by law; and that by reason of the fact that oysters are a "growing commodity," and for other reasons set out in the petition, it was impossible for petitioner to ascertain the amount of damages he has suffered or will suffer, unless the defendant should be restrained from taking oysters from the leased territory. Among other things not material now to be considered, the defendant set up in his answer the following: That Rhodes or Sandy Bottom creek is a stream, and not an arm of the sea that it is not a navigable stream; that it is incapable at any season of the year of bearing upon its bosom boats loaded with freight in the regular course of trade; and that defendant had title to and the use and possession of said stream by virtue of the following facts: Rhodes creek is an unnavigable stream lying partially across Wassaw Island; that King George II, in 1756, granted Wassaw Island, together with all lakes, ponds, and fishings, including the lands in dispute, and from him the defendant held a lease not yet terminated; that defendant was engaged in the oyster industry, and had expended large sums of money planting oysters to supply his oyster factory; that he had been planting the portion of Rhodes or Sandy Bottom creek suitable for the cultivation of oysters since the year 1888. Plaintiff introduced in evidence the lease from the commissioners of Chatham county, a copy of which was attached to the petition, and which covered 15 acres of land in Rhodes or Sandy Bottom creek. He also introduced the affidavits of several witnesses, describing the oyster territory in controversy, the character of Rhodes creek, and showing the quantity of oysters planted by the plaintiff. He introduced certain charts also. Defendant introduced in evidence a lease from one George Parsons to himself and numerous conveyances and other muniments of title to his lessor, Parsons, and among others a copy of the grant from King George II to ...