Boyd v. Schaefer

Melvin, J., delivered the opion of the Court. In this case the parties in interest, by cross-bills of complaint, are seeking the intervention of a court of equity in their dispute about the location of duck shooting blinds off their adjoining shores on North East River, Upper Chesapeake Bay. The appellant, Roy Martin Boyd, is the owner of a large tract of land known as “White Point Farm,” which has a frontage on this river sufficient for establishing three blinds more than five hundred yards apart, by including thirteen hundred feet on an indentation of the river known as Carrot (or Cara) Cove. One of the appellees, Mrs. Bessie W. Wallis, owns the adjoining farm on this cove with a frontage thereon of 1,529 feet.

Since 1938 she has been leasing to John Schaefer, another appellee, the one duck blind concession appurtenant to that farm, the location of which has continued in the same spot for many years. As of June 1, 1942, Schaefer renewed this license-being granted license “No. 1” — and in due course prior to November 10, 1942, erected his blind at the accustomed place off the shore of the Wallis farm. On October 22, 1942, the appellant obtained a license for a blind off the shore of White Point Farm in Carrot Cove, having acquired title to that property by two deeds, one dated June 25, 1942, and the other August 2, 1942. Pursuant to this license he caused a blind to be erected at a point where his predecessor in title, Aida J. Ries, had located a stake under the alleged authority of license “No. 2,” obtained by her on June 1, 1942.

The record shows ⁶²⁴ that the Schaefer, or Wallis, blind was actually built in that year prior to his (Boyd’s) blind. After they were both in place, Schaefer complained to the State Game Department that the Boyd blind, designated as “No. 1” to distinguish it from the other two blinds off White Point Farm, was too close to the one he (Schaefer) had previously erected. The Chief Deputy State Game Warden, Richard T. Norris, thereupon visited the premises and, in view of the dispute which had arisen on the very eve of the duck shooting season, ordered both blinds closed — it being later determined that Schaefer’s point was well taken. On the night before the opening day of the season Boyd’s lessee moved the No. 1 blind sufficiently far to the westward to separate it five hundred yards, at least, from the Wallis blind but left the stake at the place where it had been first located.

Within ten days the blind was moved back to that spot and promptly thereafter the pending litigation was started by Boyd. He filed a bill for an injunction, alleging that the Wallis blind, and not his, was the one illegally placed, in that it was less than 1,500 feet from his No. 1 blind in Carrot Cove. Then followed ánswers to the bill, a cross bill for an injunction against Boyd and those claiming under him, answers thereto and the taking of testimony before the court — all resulting in a decree which established a dividing line extended out over the waters of Carrot Cove, and which enjoined the parties in interest from placing a duck blind within 250 yards of their respective sides of said line, as forbidden by the statute. Code, 1943 Supp., Sec. 49 (a), Art. 99.

This line was the one recommended by the warden and was drawn direct from the dividing line of said property at the shore line, bearing north therefrom 5 degrees 4 minutes west, substantially coinciding with a line drawn at a right angle with the shore of the Wallis property as the base. The practical effect of the decree is to allow statutory space for one blind off the Wallis property and for three blinds off the Boyd property, by requiring the appel ⁶²⁵ lant to move his No. 1 blind 258 feet to the westward of his present location, and the appellees, Wallis and Schaefer, to move their blind 45 feet farther to the eastward, so as to maintain the minimum distance of 500 yards apart. It is from this decree that the present appeal was taken by Boyd. The errors assigned are: (1) that in its decree the court did not follow the method prescribed by the statute for extending the dividing line out over the waters of Carrot Cove; (2) that the method employed by the court was not fair or equitable to the appellant; and (3) that the testimony relating to duck blinds off the shore of White Point Farm, other than the “No. 1” blind, should have been excluded.

The decision of the case depends on the interpretation to be given the above mentioned section of the Code in establishing a dividing line, as therein referred to. This section is as follows: “49 (a). Whenever an owner of land bordering on any waters of this State shall desire to erect a booby, brush, or stake blind in front of his property, or other person to whom he shall give permission, he shall not place same within 250 yards of the dividing line * * * on said waters * * *, meaning a line extending out over the waters drawn direct from the dividing line of said properties at the shore line unless with the consent of the adjoining landowner, same being for the purpose of allowing each landowner bordering on any of the waters of the State permission to avail himself of the privilege of setting, erecting, or maintaining a booby, brush, or stake blind in front of his property, provided he is the owner, lessee, or licensee of the amount of shore frontage as required by law.” The framers of this statute evidently attributed qualities of sportsmanship, fairness and common sense to those to whom it would apply in establishing the dividing line in any case where a conflict might arise, for the directions given are expressed in only broad terms, without attempting to provide a method capable of general application to the curvatures and irregularities of shores lines ⁶²⁶ and water frontages commonly found among the creeks, coves and rivers of the duck shooting areas of the State. Much is left to the individuals themselves to adjust their differences without resorting to the courts to apply a statute so obviously inadequate to meet the varying conditions naturally incident to shore front properties.

While the Act provides that the dividing line shall be one “extending out over the waters drawn direct from the dividing line of said properties at the shore line,” it does not prescribe any exact course for the line to take, thus giving rise to much ambiguity and confusion as to just how this language should be applied in practically all cases except those where the shore line happens to be straight. If it be construed to mean that the property line at the junction point on the shore be extended or prolonged directly out over the waters, a manifestly impossible situation would frequently result, making it necessary to adopt some other method in order to accomplish the statute’s clearly declared purpose. That was precisely the situation which arose in the two previous cases which brought this particular section here for interpretation, namely, Sheehy v. Thomas, 155 Md. 688 , 142 A. 506 ; and Councilman v. LeCompte, 179 Md. 427 , 21 A. 2d 535 . In the Sheehy case, Judge Urner, speaking for the Court, said: “In order to sustain the plaintiff’s contention we should have to construe the statute (the one now in question) as meaning that the imaginary line with reference to which a riparian owner may place his blind must be an extension in a straight course of the dividing line between the adjoining shore properties regardless of any curvatures or irregularities in the line of the shore. * * * The terms of the statute may be difficult or impossible of application under certain waterfront conditions.

It is unnecessary and inadvisable in this case to attempt a general statement as to the applicability of the statute to varying shore and property locations. * * * When it is impracticable to locate by extension, according to the statutory direction, a line of water division in relation to which the pre ⁶²⁷ scribed restriction on the choice of position for blinds, in front of adjoining riparian lands, may be applied, a conflict in the exercise of the privileges conferred by the statute upon the owners of such properties may be avoidable only by mutual accommodation.” In the Councilman case, supra, the Court was confronted by the same kind of difficulty as caused the present controversy in applying this statute to the curvatures and irregularities in the shore lines peculiar to that case. The game warden there, finding that the statutory method of establishing the dividing line would, if followed, deprive one of the landowners of his space for a blind, adopted a method for extending the line which the court held was inequitable in that it would have deprived the the landowner of his space. It was agreed by all concerned, as in the Sheehy case, that the statutory method was inapplicable and that there was no fixed rule which would work equitably in all cases. The Court, through Judge Forsythe, in commenting on this situation, said [ 179 Md. 427 , 21 A. 2d 537 ] : “Under those circumstances some other method of dividing waters which are common to two properties must be found, and, it must be a method which will be equitable, and fair, to all parties concerned.” The inquiry in the case at bar, therefore, narrows down to this: Was the method recommended by the Chief Deputy State Game Warden, and adopted by the court in its decree, equitable and fair to all parties concerned and in conformity with the declared statutory purpose of allowing each landowner bordering- on any of the waters of the State, and having 500 yards of shore frontage, the privilege of erecting a blind in front of his property?

We find nothing in the record that would justify holding to the contrary on this appeal. The appellant did not take the stand himself, and the only witness offered on his behalf was Lawrence M. Crouch, who was an employee of the alleged equitable owner of White Point Farm, T. Woodward Trainer, Jr. Crouch was the one who actually located and built Boyd No. 1 blind in 1942, and was the one, too, who in that year moved the struc ⁶²⁸ ture back to the location where he had first placed it. Not only does the testimony of this witness fail to support appellant’s claim to the legality of his position but, on the contrary, strongly tends to disprove it. In locating this blind, he testified, he determined the position “from a line from the junction at the water line of the Boyd and Wallis properties on the shore of Cara (Carrot) Cove to a point across Cara Cove, known as Roach’s Point, and then placed the Boyd No. 1 blind 750 feet or more (actually 870 feet) westerly from that line.” The line referred to is practically identical with the one marked on the plat filed in the case as “North 9° 50' East” from the shore junction point across Carrot Cove to Roach’s Point, and which was rejected as being obviously inequitable to Mrs. Wallis.

Mr. Norris’ testimony to this effect is uncontradicted in the record. To conform to such a line her blind would have to be moved as much as 270 feet in order to give way to the Boyd No. 1 blind and make a space of 1,500 feet between them. The record shows that that blind location has been established off the Wallis property unchanged for many years. It further shows that in the year 1942, when this controversy came to a head, the lessee, Schaefer, procured his license before anybody else (being issued blind license No. 1), that he placed his stake and built his blind within the statutory time limits, and was all set for the beginning of the 1942 duck season when the appellant erected his blind within 500 yards of the prior Wallis location.

The one and only other condition with which