Department of Natural Resources v. Adams

Powers, J., delivered the opinion of the Court. It is inherent in our judicial system that review by an appellate court usually starts, not at the beginning of a case, but at the end, and, going backward from there, may result in the same ending, a new ending, or a new beginning. One of the many unusual aspects of this duck blind controversy now under review is that we start in the middle and go in both directions. This wide ranging process leads us to conclude that the order appealed from, entered by Judge Daniel T. Prettyman in the Circuit Court for Dorchester County, was correct, and should be affirmed.

The Dispute The dispute arose over the right to locate a stationary blind for hunting wild waterfowl in the waters of Dorchester County. The judicial phase of this case was initiated in the circuit court when Roger Adams, who is the appellee here, filed, on 10 January 1975, an Order for Appeal from an Opinion and Order of the Board of Review of the Department of Natural Resources. The Board of Review had, on 17 December 1974, upheld a determination made on 19 August 1974 by James B. Coulter, the Secretary of the Department. The Secretary’s determination had approved and reconfirmed an allocation among four applicants, made by a predecessor agency in 1967, of five locations for stationary duck blinds along the statutory Mills Point-Weir Point line, then defined in Code, Art. 66C, § 157 (c).

Roger Adams is the son and successor to the riparian interests of Claude Adams, one of the original applicants to whom a location for a stationary blind had been assigned in 1967. In May 1974, Adams asked the Department to review the assignment of the blind location to Thomas ¹⁶⁷ Merryweather and Carroll Thomas, 1 contending that it was illegal, that it deprived Adams of his rights as a riparian owner, and that Thomas was not entitled to a blind in that area. In a letter responding to the request, the Secretary advised the attorney for Adams that the Department would undertake a complete review of the location of duck blinds in the area. The departmental review was undertaken.

Upon the report submitted to him, the Secretary made his determination of 19 August 1974, which was appealed by Adams to the Board of Review, and then to the circuit court. Various papers, documents, exhibits, opinions, and other material constituting the record of the administrative proceedings within the Department were ultimately filed in the circuit court. Counsel for each side filed a written memorandum, and the case was set for hearing. At the hearing, held on 17 June 1976, the issues were submitted on oral argument.

The Opinion and Order of Court, filed on 23 July 1976, reversed the order of the Board of Review of the Department of Natural Resources, and remanded the proceedings to the Board for an order consistent with the Opinion. The Department of Natural Resources appealed. The Issue The Department, possibly oversimplifying, states in its brief that the appeal presents one issue, which is: “Whether the provisions of Title 10, Subtitle 6 of the Natural Resources Article authorize the Secretary to assign an owner of shoreline along Covey Creek a stationary blind site along the Mills Point-Weir Point line.” Adams, on the other hand, suggests in his brief that he may be oversimplifying by listing only 10 questions presented in ¹⁶⁸ this appeal. Our ultimate answer of “No” to the Department’s single question will suffice for all.

The Locale To understand the factual review we now undertake, one must understand the locale and the law. The locale is in the northwesterly part of Dorchester County. We shall speak of three bodies of water, Trippe’s Bay, 2 and two smaller bodies, Brannock’s Bay 3 and Covey Creek, which border Trippe’s Bay on the east. Brannock’s Bay, to the south, and Covey Creek, to the north, are separated from each other by a peninsula or neck of land.

All three have been separately recognized on maps for more than 100 years. 4 For a graphic description of the locale, we attach as Appendix “A” to this opinion a copy of one of the exhibits in the record, with the names of certain identified owners added. It shows the shoreline of the three bodies of water, and shows also a delineation of the statutory Mills Point-Weir Point line, the line which generated this dispute. ¹⁶⁹ The Statutes The law at the time of the 1967 allocation was found in Code, Art. 66C, § 149-165. The law now appears in the Natural Resources Art., Title 10, Subtitle 6, §§ 10-601 to 10-623. The only difference significant to this case was the treatment of the subsection which established the Mills Point-Weir Point line.

That difference does not affect our holding. Subtitle 6, dealing with the hunting of wild waterfowl, contains many provisions of local application only, and many general provisions not relevant to the issues in this case. We have excerpted and paraphrased certain provisions found in the subtitle. Not all are relevant to our decision in this case.

Some are included only to provide a brief explanation of the blind licensing process. With each statement of the law is a reference to the section in the present Natural Resources Article where the full statutory language may be found. A “blind site” is a specific location in the water where a person may hunt wild waterfowl from a boat or raft tied to or anchored at a stake and is not a permanent structure. § 10-601 (b). A “stationary blind” is a permanent offshore structure built on piling or stakes and used for hunting wild waterfowl. § 10-601 (f).

The word “site” is often used to refer to the authorized location for a stationary blind. A license is required for a blind site, and a license is required for a stationary blind. Either license is obtained, upon proper application, from the clerk of the circuit court of the county. § 10-612 (b), (d), (e). A blind license is separate from and has no relation to a hunter’s license, which must be possessed by any person hunting wild waterfowl from a stationary blind or blind site. § 10-613, § 10-301.

A license for a stationary blind or for a blind site, in the water in front of riparian property shall be issued to the owner (or to his lessee, licensee, or assignee) of riparian property of not less than 500 yards of shoreline (or, for a ¹⁷⁰ stationary blind, but not for a blind site, less than 500 yards, with written permission of other shoreowners, so as to make a continuous shoreline of not less than 500 yards), if application for the license is made before October 11 of each year. § 10-612 (a) (1) (2), (d) (2). Certifications of ownership and of the amount of shoreline must be submitted with the application. § 10-612 (d) (1). Other subsections of § 10-612 relate to licenses for blind sites, with which we are not directly concerned in this case. 5 A person who receives a license for a stationary blind (or for a blind site) may, within the restrictions of the law, choose the location for his blind. He shall mark the position by erecting a stake showing the licensee’s name and number. § 10-615 (a). 6 Three other sections of the subtitle govern the location of a blind.

They prescribe the permitted or required distances from the projected line of an adjoining owner, § 10-616, from other blinds, § 10-617, and from the shoreline, § 10-618. A blind may not be placed closer than 250 yards to the projected line of an adjoining owner, without his consent, § 10-616 (b), nor less than 500 yards from the ¹⁷¹ nearest licensed stationary blind or blind site. § 10-617 (a). On irregular shorelines where it is impossible to place blinds 500 yards apart, the Secretary may reduce these distance requirements, respectively, to not less than 150 yards and not less than 400 yards. 7 § 10-617 (a). The last statutory distance requirement for blinds is stated in § 10-618 (a), which provides that a person may not erect or maintain a blind more than one third the distance from his shoreline to the opposite shore, or more than 300 yards from his shoreline, whichever is less.

That provision is modified by several local exceptions. One of them, the root of the present controversy, effectively moves the 300 yard line, for riparian owners on Brannock’s Bay and Trippe’s Bay, as much as 1,000 yards farther out over the water, to the Mills Point-Weir Point line. This exception, now found in § 10-618 (e), reads: “Exception for Brannock’s Bay and Trippe’s Bay in Dorchester County. — In the waters of Brannock’s Bay and Trippe’s Bay in Dorchester County, a person may not erect or maintain a stationary blind or blind site beyond a line drawn from Mills Point in a northeastwardly direction to the southeast corner of what is known as the Great Flats and from there to what is known as Weir Point or Orchard Marsh.” ¹⁷² The Facts The 1967 assignment of blind locations along the Mills Point-Weir Point line was made by Mr. George Shields, then Director of the Department of Game and Inland Fish. The record reflects no indication of controversy at the time.

It appears that only four persons (or groups of persons) who owned more than 500 yards of shoreline property east of the Mills Point-Weir Point line seriously contended for assignment of a location. They were Adams, Thomas, a Mr. Brohawn, and a Mr. Seward. Shields calculated the length of shoreline owned by each without regard to the body of water on which it bordered. Adams had 7,500 feet, some on Trippe’s Bay, some on Covey Creek.

Thomas had 6,000 feet, all on Covey Creek. Brohawn had 10,000 feet, substantial portions of it on each of the three bodies of water. Seward had 2,700 feet, all on Brannock’s Bay. The length of the Mills Point-Weir Point line was approximately 2,500 yards, which would accommodate five blind locations.

Beginning at the northerly end of the line, Shields assigned location No. 1 to Adams, No. 2 to Thomas, Nos. 3 and 4 to Brohawn, and No. 5 to Seward. Presumably the clerk of the circuit court issued annual blind licenses according to these assignments, until the current dispute germinated in September 1973 when Merryweather notified the Natural Resources Police that someone was constructing a stationary blind too close to the Thomas site. Upon investigation, the Natural Resources Police ascertained that the reported blind was only 220 yards from the Thomas site, and that the constructor was Roger Adams. Since the location violated the 500 yard limitation of the law, the Superintendent instructed Adams to remove the construction from the site and to return the site to its 1967 placement.

Otherwise, the blind would be closed to hunting. Adams refused, and later lodged his complaint with the Department. ¹⁷³ Conclusions The words of the statutes which control the decision in this case are generally clear and free of doubt. It is indeed true that the statutory scheme regulating rights to duck blinds does not cover every conceivable set of circumstances which one might argue should have been covered, but the courts may not extend statutes to make them say what the legislature, by choice or oversight, did not say. To the extent that we indulge in statutory construction, we observe the cardinal rule, which is to ascertain and carry out the real legislative intent.

Frericks v. General Motors Corp., 278 Md. 304 , 363 A. 2d 460 (1976); Baltimore Gas & Elec. Co. v. Board of County Comm'rs of Calvert County, 278 Md. 26 , 358 A. 2d 241 (1976); Becker v. Crown Central Petroleum. Corp., 26 Md. App. 596 , 340 A. 2d 324 (1975). In ascertaining such an intent, words of the statute are deemed to be used in their ordinary and popular sense and the language to carry its natural and ordinary signification.

Comptroller of the Treasury v. The Mandel, Lee, Goldstein, Burch Re-election Committee, 280 Md. 575 , 374 A. 2d 1130 (1977); Harden v. Mass Transit Administration, 277 Md. 399 , 354 A. 2d 817 (1976); Whitt v. Dynan, 20 Md. App. 148 , 315 A. 2d 122 (1974). A court may not add to a statute by judicial construction, nor lightly read into a statute by implication, a provision which the legislature did not see fit to include. Department v. Greyhound, 247 Md. 662 , 234 A. 2d 255 (1967); Amalgamated Ins. v. Helms, 239 Md. 529 , 212 A. 2d 311 (1965). Where a law is plain and unambiguous, free from all objection on constitutional grounds and enacted in an area clearly within the province of the legislature, courts have no power to set aside or evade its operation by forced or unreasonable construction.

It is evident that the legislature intended to permit the issuance of a license for a stationary blind only to certain riparian owners, and to them only for a blind in the water in front of their riparian property. None of the provisions relating to distance from shore, from other blinds, or from property dividing lines, indicates a different intent. ¹⁷⁴ A riparian owner to a body of water is a person who owns property bordering on that water. In discussing riparian rights, a leading treatise states that: “The owner of land contiguous to a navigable body of water acquires by virtue of that ownership certain rights — termed riparian rights — which include principally the right of access to the navigable waters; the right to build piers, wharves, docks, and other improvements to the line of navigation; the right to reclaim land; and the right to accretions to his lands. These rights do not depend upon ownership of the soil under water but upon lateral contact with the water.

It is a universal rule that for riparian rights to attach to a tract of land, the water must form a boundary of the tract.” (Emphasis supplied.) 2 Shalowitz, Shore and Sea Boundaries 534 (1964). See generally 1 R. Clark, Waters and Water Rights, §§ 4.3, 16.2, 53.3 (1967); Ditwiler, Water Problems and Property Rights — An Economic Perspective, 15 Nat. Resources J. 663 , 667-669 (1975); Teclaff, What You Have Always Wanted To