Popham v. Conservation Com'n Dept. of Tidewater Fisheries

• Decision Date: 13 March 1946
• Docket Number: 67.
• Citation: Popham v. Conservation Com'n Dept. of Tidewater Fisheries, 46 A.2d 184, 186 Md. 62 (Md. 1946)
• Parties: POPHAM et al. v. CONSERVATION COMMISSION DEPT. OF TIDEWATER FISHERIES et al.
• Court: Maryland Court of Appeals

46 A.2d 184

186 Md. 62

POPHAM et al. v. CONSERVATION COMMISSION DEPT. OF TIDEWATER FISHERIES et al.

No. 67.

Court of Appeals of Maryland

March 13, 1946

Appeal from Circuit Court for Anne Arundel County; James Clark Judge.

Action by Benjamin F. Popham and others against the Conservation Commission Department of Tidewater Fisheries and others protesting against the leasing of certain areas.Judgments for defendants, and plaintiffs appeal.

Affirmed.

Emanuel Klawans and Wilbur R. Dulin, both of Annapolis, for appellants.

T Barton Harrington, Asst. Atty Gen. (William Curran, Atty Gen., and Marvin I. Anderson, State's Atty., of Annapolis, for Anne Arundel County, on the brief), for appellees.

Before MARBURY, C.J., and DELAPLAINE, GRASON, HENDERSON and MARKELL JJ.

GRASON Judge.

On February 27, 1945, Samuel J. Carr, a resident of Edgewater, Maryland, filed an application for lease of a certain area with the Department of Tidewater Fisheries of the State of Maryland(herein referred to as Department).This area comprised 8 acres of ground located in the Rhode River and in proximity of High Island, in the waters of Anne Arundel County, which area was marked by placing thereon not less than four stakes bearing Carr's name.This application was duly published, warning any persons who desired to do so to file protests against leasing this area within thirty days from March 22, 1945.Thereafter, within the time limited by the advertisement, Benjamin F. Popham, George T. Gardner and Allen Dawson filed a protest in the Circuit Court for Anne Arunded County against leasing this area, alleging that they are residents of Anne Arundel County, Maryland, and asserting: 1.That the said ground is a natural oyster rock or bed; 2. that the said ground is classified by the Department as a natural bar or bed; 3. that the application is null and void because the procedure required by law was not followed; 4. and for other reasons to be shown at the hearing.

An answer was filed to this protest by the gentlemen constituting the Conservation Commission Department of Tidewater Fisheries: 1. neither admitting nor denying that the petitioners are residents of Anne Arundel County; 2. denying the allegation in paragraph one of the protest; 3. denying the allegation in paragraph two of the protest; 4. denying the allegation in paragraph three of the protest and asserting that the procedure required by law was strictly followed; 5. asserting that the ground described in the petition was classified in 1906 as a natural oyster bar, but that, in conformity with the law, it was resurveyed and reclassified by agents of the Department on February 27, 1945, and determined to be a barren bottom; 'that the charts required to be filed by law in the office of the Clerk of the Circuit Court for Anne Arundel County have not yet been filed, as a period of ninety days has not elapsed between the time of survey and the time permitted by law in which said amendments may be filed with the Clerk.'Answer was also filed by Carr, which need not be set out.

On March 27, 1945, Charles Witt, a resident of this State, filed an application with the Department to lease 7 acres of ground located under the waters of the State of Maryland, which area had been marked by placing four stakes at the respective corners thereof, bearing the name of Witt, the area being described as: 'located in Rhode River, northerly and abreast of Locust Point; in the waters of Anne Arundel County.'This application for lease was duly published, warning any who desired to protest to file their protest in the Circuit Court for Anne Arundel County within ninety days from April 19, 1945.The same gentlemen who protested in Carr's case protested in Witt's case, and for the same identical reasons asserted in Carr's case.The Department's answer is identical with the answer filed in Carr's case.Witt also filed an answer, which we need not set out.

In this state of the matter the law required the clerk to docket a suit at law in which the protestants are plaintiffs and the Department is the defendant, and the judge to pass on order directing summons to issue for the defendant as is required in actions at law, returnable to a day named in the order.The hearing on the matter in the Circuit Court shall be before a jury, unless a jury trial be waived by the parties, in which event the hearing shall be before any judge or judges of said court with an appeal to this court from a judgment rendered below within ninety days thereafter, in which event this court shall have power to review all questions of fact or law involved.Acts of 1945, Chapter 929, Section 12(j).

A jury trial was waived and these cases were heard together by the court, without the aid of a jury.They were heard by the court on May 15, 1945, at which time Article 72, Flack's Code 1939 and amendments thereto were in effect.The judgment in each case was rendered on June 14, 1945.Between the time these cases were heard by the court and the rendition of the judgment therein, the Legislature passed the Act of 1945, Chapter 929, effective June 1, 1945, changing, in certain respects, the provisions of Article 72.In this situation the Act of 1945, Chapter 929, supersededArticle 72 in so far as it amended same, and its provisions governed and controlled the cases at bar as the existing law.Munroe v. Wells,83 Md. 505, 35 A. 142;Meloy v. Scott,83 Md. 375, 376, 35 A. 20;Turner v. Bryan,83 Md. 373, 374, 35 A. 21;State of Md. v. American Bonding Co. et al.,128 Md. 268, 97 A. 529;Day v. Day,22 Md. 530;Wade et al. v. St. Mary's Industrial School,43 Md. 178;Chesapeake & O. Canal Co. v. Western Maryland R. Co.,99 Md. 570, 58 A. 34;Cocherham et ux. v. Children's Aid Society of Cecil Co., Md.,43 A.2d 197.

Thereafter there was filed, in each case, a motion to strike out the respective judgments, which, after hearing thereon, were overruled and the judge below wrote an opinion in the cases, wherein he considered the law as changed by the Act of 1945 and came to the conclusion that the applications should be granted.Thus the lower court applied the current law to the facts of the cases.The court then amended its judgment in each case by striking therefrom the words 'or bed within the purview and meaning of Section 93 of Article 72 of Flack's Annotated Code of Public General Laws of Maryland, title 'Oysters', subtitle 'Oyster Culture".This action was taken on July 12, 1945, from which action an appeal was taken in each case.By these judgments the court held that the areas in question were not natural bars at the time of the entry of the judgments.

The appellants, in their brief, contend that the decision to reclassify the areas from natural beds to barren bottoms is illegal; that receiving applications for leases of areas while the public records still show them as natural beds, excluded from leasing, is invalid procedure; that the applications and public notice are insufficient in the description of the areas to be leased; and that the statutory requirement that a copy of the chart be filed in the Circuit Court for Anne Arundel County has not been complied with.The only question pressed in argument before this court was the authority of the Department to declare an area to be a barren bottom, and if so found, the power of the Department to lease the same.The other points referred to were not pressed in argument before this court, and need not be considered, except to say that we have reviewed the same and think that the court below was correct in its conclusions thereon.

It is the contention of appellants that the General Assembly of Maryland has not empowered the Department to lease a depleted oyster bed or bar, although the facts show, at a given date, it is a barren bottom.Appellees challenge this contention, and assert the Department has such power and the courts can review its finding, and the finding of a court is final.Appellants assert that the word 'resurvey', contained in section 12(c), Acts of 1945, Chapter 929, is intended to limit the Department to the determination of the actual area of a natural bar.The word 'resurvey', it is contended, does not give the Department power to reclassify a bar heretofore classified as a natural bar, and to determine that at a given time it has ceased to be such and has become a barren bottom.The contention is that once a natural bar always a natural bar, notwithstanding a given area has become so depleted that no oysters can be found thereon.

Appellees assert that the word 'resurvey' was not intended by the Legislature to have such a restricted meaning.They say that the word in the Act means that the Department has power to determine as a fact whether such an area heretofore classified as a natural bar is a barren bottom.

Section 86 of Chapter 711 of the Acts of 1906 required the Board of Shell Fish Commissioners(the predecessor of the Conservation Commission of Department of Tidewater Fisheries) to make an actual survey of the natural beds of the State and to delineate the boundaries thereof on maps and charts, and to cause one copy of each to be filed with the clerk of the Circuit Court of the appropriate county.And section 89 of that Act required the Board to conduct a survey with the assistance of the U.S. Coast and Geodetic Survey and the U.S. Fish Commission.The Board was required to make a written report and cause it to be published in pamphlet form, and to file a copy thereof with the clerk of the appropriate Circuit Court where the particular map or chart was filed.This survey was completed and charts and reports were published and filed.

Section 119 of that Act required the old Board of Shell Fish Commissioners to prepare an annual report of its...