Travers v. Dean

• Court: Maryland Supreme Court
• Writing for the Court: JONES, J.
• Citation: Travers v. Dean, 98 Md. 72, 56 A. 388 (Md. 1903)
• Decision Date: 03 December 1903
• Parties: TRAVERS v. DEAN.

56 A. 388

98 Md. 72

TRAVERS v. DEAN.

Court of Appeals of Maryland

December 3, 1903

Appeal from Circuit Court, Dorchester County; Henry Lloyd, Judge.

Action by William H. Dean against John E. Travers. From an order vacating defendant's location of oyster beds, he appeals. Reversed.

Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PEARCE SCHMUCKER, and JONES, JJ.

Alonzo L. Miles and W. Laird Henry, for appellant.

Harrington & Mace and John R. Pattison, for appellee.

JONES J.

This case presents a peculiar question, and arises upon the construction to be given to section 46 of article 72 of the Code of Public General Laws, as enacted by Act 1894, p. 501 c. 380. The act was evidently intended to encourage and regulate the cultivation and planting of oysters by private individuals, citizens of this state. After preserving to the owner of land bordering upon any of the navigable waters of the state "the exclusive privilege of using the same for protecting, sowing, bedding or depositing oysters and other shell fish within the lines of his own land," where these lines "extend into and are covered by said waters," and to the owners of land "lying and bordering" on any waters of this state a priority of right "to locate and appropriate in any of the waters adjoining his lands one lot of five acres" for a like purpose, the act, among other things, provides that "any male or female citizen of full age, of the county wherein he or she resides, shall have power to locate and appropriate and hold one lot of five acres, and no more in any waters in this state not located or appropriated: provided, thirty days' notice in writing shall be given the owner or occupant of land bordering on said waters proposed to be located, that the owner or occupant may have priority of claim." Then, after certain other provisions, there is this proviso "that no natural bar or bed of oysters shall be so located or appropriated, and that twelve months' peaceable possession of all locations of oyster grounds under the laws of this state, shall constitute a good and sufficient title thereto; but should any one within twelve months be charged with locating or appropriating any natural bed or bar hereinbefore prohibited, the question may be at once submitted by any person interested to the judge of the circuit court for the county where such questions shall arise, who, after having given notice to the parties interested, shall proceed to hear the testimony and decide the case; and if his decision shall be in favor of the party locating said five acres, said decision shall be recorded with the original record of said five acres, and shall in all cases be conclusive evidence of title thereto." From the record it appears that on the 17th of March, 1903, the appellee filed with the judge of the circuit court for Dorchester county a petition alleging that the appellant had recently and "within twelve months last past located and appropriated five acres in the waters of the Nanticoke river in Dorchester county, *** for the purpose of protecting depositing, bedding or sowing oysters or other shellfish"; that said five acres was at the time of filing the petition, and at the time of its location and appropriation, a natural bar or bed of oysters; that the appellant was not at the time of so appropriating the said five acres the owner of any land bordering on the said river, the lines of which extended into and were covered by the waters thereof wherein the said five acres is so located; that the said lot of five acres is not located in any waters adjoining lands owned by the appellant and bordering on said waters; that the appellant was a nonresident of Dorchester county, wherein the said five acre lot is located; and, alleging that the appellee was, by the act of the appellant complained of, seriously injured in his right to take oysters, prayed "that the location and appropriation of the said five acres by the appellant might be annulled and vacated." The appellant answered the petition, admitting his location of the five acres as alleged, but denying that the said lot of five acres was a...