Culley v. Hollis

Sloan, J., delivered the opinion of the Court. The appellant, E. N. Culley, was the holder of a ten-acre oyster bed located on Swan Creek, in Kent County, which he held under a lease from the Conservation Department of this State to George F. Satterfield, dated January 2, 1926. The appellee, Dr. Charles B. Hollis, is the owner of a parcel of land, triangular in shape, the longest side bordering on Swan Creek about 360 feet. Dr. Hollis had let a contract to his co-defendant, Irving L. Crouch, to build a pier extending 220 feet into Swan Creek, which was practically finished before the bill was filed.

The water frontage of Dr. Hollis’ lot was not a straight line, and the pier was projected about 100 feet from the northerly end of the property. The plaintiff does not complain of the location of the pier, so far as his shore property is concerned, but because it is projected into his oyster bed, the lease on which was assigned to him by George F. Satterfield. It is conceded that Swan Creek is a navigable stream, the title to which is in the State. There is no contention that the jurisdiction of the War Department of the United States does not also extend over the stream, and that the consent of that department was necessary before the pier could be built.

Dr. Hollis did have the consent of the War Department, but it has been held that such permit does not pretend to give any property rights to the permitee, nor authorize any injury to private property, nor obviate the necessity of the consent of the State, but merely expresses the assent of the federal government so far as the public rights of navigation may be affected. Cummings v. Chicago, 188 U. S. 410 , 23 S. Ct. 472 , 47 L. Ed. 525 . ³⁷⁴ Dr. Hollis’ claim to the right to erect a pier from his property out into the creek is derived from Code, 1939, Art. 54, Sec. 47. Mr. Culley’s claim is by virtue of an oyster planting lease granted by the Conservation Department of the State, made under the provisions of the Act of 1906, Ch. 711, Code, 1939, Art. 72, Sec. 93 et seq. And the question here is the priority or superiority of one over the other.

The ten-acre oyster lease of CuIIey extends over the entire water front of Hollis, so that if it gives him the superior right in the waters of Swan Creek, Hollis will be denied the right attached to his property by Section 47 of Article 54 of the Code, 1939, Act of 1862, Ch. 129, Sec. 38. The statute defining the riparian rights of water front owners on navigable waters, Art. 54, Secs. 47 and 48 of the Code, 1939, Act of 1862, Ch. 129, Sec. 38, is-: “47. The proprietor of land bounding on any of the navigable waters of this State shall be entitled to the exclusive right of making improvements into the waters in front of his said land; such improvements and other accretions as above provided for shall pass to the successive owners of the land to which they are attached, as incident to their respective estates.” “48. No patent hereafter issued out of the land office shall impair or affect the rights of riparian proprietors, as explained and declared in the two preceding sections; and no patent shall hereafter issue for land covered by navigable waters.” Phipps v. State, 22 Md. 380, 388 , 85 Am.

Dec. 654 . In Garitee v. Baltimore, 53 Md. 422, 433 , it is declared that the “rights thus, secured, are valuable; they are property, according to repeated decision; and of which the owner cannot be deprived without his consent, or by other competent legal means. Dungan v. Baltimore, 5 G. & J. (357), 367; Casey’s Lessee v. Inloes, 1 Gill (430), 501 ( 39 Am.

Dec. 658 ) ; Baltimore & Ohio R. R. Co. v. Chase, 43 Md. 23 ; Buccleugh v. Met. Board of Works, 5 H. L. 418. And whenever those rights are invaded, or their enjoyment obstructed, the owner is entitled- to ³⁷⁵ his remedy for redress, as in other cases of the violation of the rights of property.” In the case of Hess v. Muir, 65 Md. 586, 598 , 5 A. 540 ,