Bannon v. Shekell

Pearce, J., delivered the opinion of the Court. The appellant filed a bill in the Circuit Court for Anne Arundel County for an injunction to restrain the appellee from placing a ducking blind “at or off the place or point in the waters of South river, known as ‘Round Point’ or ‘Blacksmith’s Hammer,’ and from shooting wild fowl therefrom.’’ The appellee demurred to the bill, and the Court sustained the demurrer and dismissed the bill. Sec. 254 of the Local Law of Anne Arundel County regulating the shooting of wild fowl provides that before any person shall place any blind in the waters of South river and shoot therefrom, he shall obtain a license therefor from the Clerk of the Circuit Court, upon payment of $2.50-100, and “the holder of such license shall have the right over any other person to renew his license from year to year,” provided he secures a new license on or before May 15th, in each year. Sec. 255 provides that “after said blind has been licensed,” no blind shall be established at a point nearer to said blind than three hundred yards.

Sec. 256 imposes a fine of from $5.00 to $20.00 for violation of sec. 255, and an additional fine of $5.00 upon the owner of any blind who shall establish a blind within three hundred yards of another already licensed and established, for each week it remains after notice to remove by the owner of the blind first established. Sec. 259 provides that all licenses shall begin on May 1st and continue for one year. The bill alleges, 1st. That Geo.

W. Duvall, on May 1st, 1899, obtained a license in accordance with law to place a blind in the waters of South river “at a place or point on said river known as ‘Round Point’ or ‘Blacksmith’s Hammer,’ and to shoot therefrom.” ⁷⁴⁰ 2nd. That Duvall died in the year 1900, without having renewed his license. 3rd. That sometime in April, 1900, and after Duvall’s death, plaintiff applied to the Clerk of the Court for a license to place a blind “at said place on the waters of South river, formerly occupied by said Duvall, and to. shoot wild fowl therefrom,” and then paid the proper license fee to said Clerk, who declined then to issue him a license either for the unexpired year ending May 1st, 1900, or for the ensuing year. 4th. That on May xst, 1900, the Clerk issued to the appellant the license applied for. 5th.

That on the same day, the Clerk unlawfully issued to the defendant a similar license to place a blind and to shoot therefrom, “at the same place or point on said waters as that described in the license to plaintiff.” 6th. That defendant “is about to place said blind off said ‘Round Point’ or ‘Blacksmith’s Hammer,’ and to- shoot therefrom, to the injury and destruction of plaintiffs rights.” . yth. That plaintiff “is entitled to the sole right of placing a blind at or off ‘Round Point’ or ‘Blacksmith’s Hammer,’ by reason of his having made application therefor before the application of defendant, and having paid the license fee therefor, and that he is entitled to have the defendant restrained, &c.” There was filed with the bill, as an exhibit, the license issued to the plaintiff, which it will be seen does not mention the place formerly occupied by Duvall, but confers general authority to place one blind “off Round Point or Blacksmith’s Hammer, in the waters of South river,” so that the license granted neither creates any specific right in, or preference to, the precise location established by Duvall, nor restricts the appellant to that precise location. Under it, he had the right to establish his blind at any point in the waters of South river off Round Point or Blacksmith’s Hammer, which he might select, provided only he did not establish the same at a point less than three hundred yards from any blind previously licensed.

The license issued on the same day to the appellee, is averred by the bill to be “similar” to that issued ⁷⁴¹ to the appellant, and these two licenses therefore conferred equal rights upon the licensees. It was the duty of the clerk to issue as many licenses as were applied for by qualified persons, leaving them to establish their blinds, and thereby to fix and determine their respective rights thereunder in accordance