Whitehead v. Syndicate

• Decision Date: 14 June 1906
• Citation: 105 Va. 463,54 S.E. 306
• Parties: WHITEHEAD. v. CAPE HENRY SYNDICATE et al.
• Court: Virginia Supreme Court

54 S.E. 306

105 Va. 463

WHITEHEAD.

v.CAPE HENRY SYNDICATE et al.

Supreme Court of Appeals of Virginia.

June 14, 1906.

1. Fish—Rights of Fishery—Deeds—Construction.

A deed by the board of public lands, describing land as bounded by the margin of the bay an ocean at low-water mark, under Acts Assem. 1865-66, p. 160, c. 44, providing that the rights of owners of land acquired under the act shall extend to ordinary low-water mark, and no further, does not confer on the grantees an exclusive right of fishery opposite their shores beyond low-water mark.

[Ed. Note.—For cases in point, see vol. 23, Cent. Dig. Fish, § 13.]

2. Same—Obstruction of Fishing Rights-license.

Under Code 1904, § 2120, providing that if any person plant oysters or place stakes in certain waters within any fishery where a seine is set or hauled during the fishing season, so as to hinder any person in his rights of fishery, and shall not remove them when required by the owner or lessee of the adjacent fishing shore, he shall be fined, and sections 2086, 2087, subsequently enacted, making it a penal offense to fish with pound nets, or haul seines hauled other than by hand without obtaining a license, the owner of shore land cannot complain of the acts of another beyond the low-water mark obstructing his use of such nets and seines where he has procured no license, even if section 2120 is not superseded by section 2086.

Appeal from Circuit Court, Princess Anne County.

Action by the Cape Henry Syndicate and another against Charles Whitehead. From a decree in favor of complainants, defendant appeals. Reversed.

The deed from the board of public works to Frazier and Hall, referred to in the opinion, described the land conveyed in part as follows: "Beginning at a stake, thence along the margin of Chesapeake Bay, until it strikes the ocean, and thence with the mar gin of the Atlantic Ocean at low-water mark. * * *"

J. Edward Cole and W. W. Old, for appellant.

Burroughs & Bro., for appellees.

BUCHANAN, J. On the 6th day of June, 1904, the Cape Henry Syndicate, a corporation chartered under the laws of this state, and J. H. Buchanan, filed their bill in the circuit court for Princess Anne county, in which it is alleged that the Cape Henry Syndicate is the owner of a tract of land known as "Cape Henry, " extending from Lynnhaven Inlet to the Atlantic Ocean and down the coast for a distance of about three miles, together with all riparian rights and fisheries; that for more than 50 years there have been located along those shores fisheries and seine hauls, which the owners of the shore have been accustomed to operate or lease from year to year, and that in the year 1904, by a contract in writing, the Cape Henry Syndicate had leased all of the said fisheries to J. H. Buchanan; that in the last 30 days one Charles Whitehead, an irresponsible and insolvent person, had trespassed upon the ancient seine hauls and fisheries belonging to the Cape Henry Syndicate and under lease to J. H. Buchanan, opposite the fishhouse of a former lessee, and that the said Whitehead is now engaged in pumping in poles and has already set nets to the hindrance of the said Buchanan, lessee, in the enjoyment of the rights leased to him, and the damage and injury of the Cape Henry Syndicate, for which damage and injury it is impossible for the complainants to recover compensation by reason of the insolvency of Whitehead. The bill further charges that unless the court issues a mandatory injunction to Whitehead to remove the poles already placed as obstructions to the fisheries, and enjoins and restrains him and his agents and employés from using any set nets, pounds or other contrivances for catching fish within the bounds of the fisheries described, the complainants will suffer irreparable loss and damage; and prays that Whitehead may be made a party defendant and be required to remove his poles and nets from said fisheries, and that he and his agents and employés be enjoined from trespassing upon or interfering with the fisheries in any manner.

Whitehead demurred to and answered the bill. He disclaimed any knowledge of the title of the complainant corporation to the land claimed, and called for strict proof thereof, but admitted that if the syndicate had title to the land it had exclusive control of it down to the low-water mark, but no farther. He alleged that the soil under the waters opposite the land claimed by the syndicate and below low-water mark is owned by the state of Virginia, for the benefit of all the people of the commonwealth, to be disposed of and regulated by the state inaccordance with the will of the Legislature of the state. That by section 2086 of the Code of 1887, and amendments thereto (Acts 1902-3-4, p. 867, c. 545 [Va. Code, p. 1054]) residents of the state desiring to fish with a pound net in those waters below low-water mark are required to procure from the oyster inspector of the district in which they desire to operate a license for the exercise of this privilege. That he was a citizen of the state, and on the 11th day of April, 1904, he applied to the oyster inspector of the district in which the lands claimed by the syndicate lie for a license to fish with a pound net at the point indicated in the bill, which was paid for and granted. That under and in accordance with his license he had erected a pound net about one and a quarter miles from Lynnhaven Inlet, in front of the lands claimed by the syndicate, about 33 yards below low-water mark and extending about 75 feet parallel with the shore. That immediately on either side of the point where his net is located are the poles of pound nets erected by a former lessee of the syndicate under a license similar to that under which his net was erected, and until those poles are removed a seine could not be hauled at that point if his net was removed. That the privilege granted him by the state is worth the sum of $1,500. He denied that his net interfered with or hindered the lessee of the syndicate from fishing on the shores leased to him, or that the erection of his net under a license from the state was a trespass upon the rights of the complainants or that they had any exclusive rights of fishery by seines or in any other mode in the waters of Chesapeake Bay where his net is located.

An injunction was granted in accordance with the prayer of the bill, and upon a hearing of the cause was made perpetual. From that decree this appeal was granted.

The right of the complainants, the appellees here, is based upon two grounds, as stated in their brief, viz.:

(1) That the Cape Henry Syndicate is the grantee of an exclusive right of fishery in the waters of the Chesapeake Bay at the point in controversy, derived from the state under an act of her General Assembly enacted February 28, 1866, entitled "An act respecting amending and re-enacting the first and second sections of chapter 62 of the Code of 1860, " and found at page 160, c. 44, of the Acts of Assembly of 1865-66.

(2) That as an ordinary riparian owner of ancient seine hauls in the waters of the Chesapeake and Lynnhaven Bays between Cape Henry and Sewell's Point the syndicate is protected by the prohibition contained in section 2120 of the Code of 1904.

The circuit court held that the grant of the state, under which the Cape Henry Syndicate acquired title to the land in front of which the appellant's pound net was located, did not convey any exclusive right of fishery below the ordinary low-water mark.

By section 1338 of the Code of 1904 it is provided that "all the beds of the bays, rivers, creeks, and shores of the sea within the...