Hess v. Muir

Ritchie, J., delivered the opinion of the Court. The bill alleges, that under a mortgage sale of property of John Butter, the complainant is owner of certain land bounding on the Monobin river and St. Peter’screeb, navigable waters of the State, in which the tide ebbs and flows, and that by virtue of such ownership, he is exclusively entitled to use- the soil of the waters in front of said land in making improvements and bedding oysters thereon. It further alleges, that by the same-deed conveying him said land, there were also conveyed to him some thirty-four oyster lots in front of said land, to which Butter had acquired title in 1875, by procuring ⁵⁹⁵ other parties to locate them in their own names, and then to transfer their certificates of survey to him. The bill charges that the defendants in 1885, and since severally located some thirty-one oyster lots, on the identical sites of the Rutter lots, and without notice to complainant, although proprietor of the contiguous land.

The relief prayed is that complainant’s title to the said land and his rights to improve into the said waters in front thereof be established, and that the surveys, locations and certificates of defendants to their oyster lots be vacated and annulled; and also that the defendants he severally restrained and enjoined from all interference with complainant in the enjoyment' of his right to improve into the said waters in front of his land, &c. The prayer for injunction having been submitted on the allegations of the bill before answer by defendants, was denied by the Circuit Court at that stage of the case, whereupon this appeal was taken. The ground of complainant’s claim to relief is two-fold. His first and principal contention is, that under the Act of 1862, chap. 129, defining the riparian rights of owners of land hounding on navigable waters, he is vested with the exclusive right to make improvements upon all the soil of the water in front of his land, subject only to the restriction of not interfering with navigation, and that' the bedding ,of oysters thereon is an “improvement,” within the contemplation of the Act of Assembly.

It is apparent, that if such he the true construction of the Act, the State has relinquished to the proprietors of land on navigable waters, the sole right of planting oysters along the entire water front of its navigable waters, and whether the right be actually exercised or not. Sucli a construction is at variance with the subsequent legislation of the State, which has repeatedly assumed the right to admit all its citizens to the privilege of using the soil of its public waters, subject to a prior right on ⁵⁹⁶ notice to the riparian proprietor to locate an oyster lot if he shall elect within a prescribed period to do so. To have bestowed upon the contiguous land owner an absolute right to hold this water territory subject to such a use, and without actually so availing of it, would have been to surrender to a comparatively few, a most valuable public right, and to impair the most essential means of promoting an important source of subsistence and wealth to large numbers of the State’s inhabitants. The true intent of the Act of 1862, can be gratified, in our opinion, without such unfortunate consequences.

The Act of 1862, after reciting in its preamble, “whereas, doubts are entertained in regard to the extent of the rights of proprietors of land bounding on navigable waters, to accretions to said land, and to extend improvements into said waters; for the purpose of solving such doubts, therefore” — proceeds to add three sections to Article LIY of Yol. 1 of the Code, which are as follows: “87. The proprietor of land bounding on any of the navigable waters of this State, is hereby declared to be entitled to all accretions to said land by the recession of said water, whether heretofore or hereafter formed or made by natural causes or otherwise, in like manner and to like extent as such right may or can be claimed by the proprietor of land bounding on water not navigable. “ 38. The proprietor of land bounding on any of the navigable waters of this State, is hereby declared to 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. But no improvement shall be so made as to interfere with the navigation of the stream of water into which the said improvement is made. “39.

No patent hereafter issued out of the Land Office shall impair or affect the rights of riparian proprietors, as ⁵⁹⁷ explained and declared in the two sections next preceding this section, and no patent shall hereafter issue for land covered by navigable waters.” The subject-matter of the right declared by the first of these sections to be in the riparian proprietor, is “all accretions to said land.” It seems obvious the right does not attach until the accretions to the land are formed and become visible. Until new land is made or emerges, there can be no “accretion” to or increase of the land of which it shall constitute a part. The very term imports an addition of what possesses the characteristics of land. So long then as the water covers the soil adjacent to the land, it is not within the contemplation of the Act, but remains under the control of the State, subject to tho possibility of accretion being made or formed therefrom.

Under this Act, the riparian owner of land on navigable water has the same right to accretions, whether imperceptibly or palpably formed, and the same right to create them as is enjoyed by an owner of land on a non-navigable stream. But the parallel is confined to the accretion itself, and no grant to the land owner on navigable waters is intended of the soil itself over which navigable water still flows. The benefit of possible accretions to the latter class of landholders, is preserved to them by the last section of the Act, directing that no patent shall hereafter issue for laud covered by navigable waters. Whether the State could repeal this protection, is a question not now practically before us.

That the prohibition of granting a patent of land covered by navigable waters, is not inconsistent with a license to locate lots for the planting of oysters, has been decided in the case of Phipps, et al. vs. The State, 22 Md., 388 , where is explained the office of the prohibition and the legal effect of such a license. The Court say: “The sole purpose of the provision referred to in that Act— £that no patent should issue for land covered by navigable ⁵⁹⁸ waters’ — was to restrict and limit the power’s of the Land Commissioner and nothing more. * * * * abundantly appears from the nature of the privilege in dispute, as well as from the terms in which it was conferred, that no transfer of the State’s title to lands covered by navigable waters, was contemplated. Permission to use given areas covered by navigable water for a particular purpose, seems tobe all that the Legislature intended, and we think the language of its assent to that use, should be construed not as a grant binding on the State, but as a conditional license, revocable at the pleasure of the Legislature.” The improvements, which under section 38, a proprietor of land bounding on navigable waters, is entitled to make into the same, and which with the other accretions provided for, shall pass to the successive owners of the land to which they are attached as incident to their respective estates, are plainly, we think, such structures as are subservient to the land, and which used in connection with the land, enhance its value or enlarge its commercial or agricultural facilities, or other utility, to an extent the land alone would be incapable of, and in this way “improve ” it. They are to be made “ into ” the water, a term inconsistent with entire separation from the land.

Wharves, piers and landings are examples of such improvements. Farming and commercial interests .are promoted by the privilege, and to encourage the development of these was the main object of conferring it. When such improvements are made they become incident to the estate, as not inherently identical in nature with land, but from being joined to it, and contributing to its uses and value legally identified with it, as a fixture or a right of way, or other appurtenance that passes with land. The mere planting or depositing of oysters in the water implies no essential union or relation between the main land and the soil under the water contiguous; and therefore, does not effect an improvement of the former, ⁵⁹⁹ Implied in something erected or constructed, attached to the shore, and, together with the land, furnishing conveniences and facilities that enlarge the advantages of the latter.

Until, therefore, “ improvements ” are made to the land in the sense we have described, the mere right to construct them, although still subsisting, is not incompatible with licensing of the soil covered by water for uses not subversive of such right or irreconcilable therewith, and which must yield to the paramount right of making improvements when actually exercised. Then, and to the extent actually occupied by the improvements, do the improvements and the ground they necessarily occupy, become “incident to the estate.” The principal ground, therefore, upon which the injunction was asked for, is not maintainable; and there is left for our consideration only the asserted invasion of complainant’s rights by the defendants setting up their claims to oyster lots located by them, and which cover the same area occupied by the lots he claims to have acquired a valid title to through John Rutter. By the Act of 1814, chap. 181, which repealed all former general legislation on the subject of oyster licenses as embodied in Article LXXI of the Code of Pub. Glen.

Laws, and was enacted as a substitute for said Article, but five acres of the waters of the State were allowed to be located, and by any citizen of the State only, for the planting, &c., of oysters. This restriction was intended as the limit of the area of each individual’s holding ; the policy of the State being to make the distribution of the benefits of the privilege as wide-spread as possible, both for the promotion of oyster preservation and culture, and ■enhancing the comfort and means of subsistence and livelihood of its citizens. This express limitation as to quantity, cannot be indirectly evaded so as to aggregate in the same person more lots than any one person is in ⁶⁰⁰ terms allowed to hold. John Rutter having no power to hold, even if a resident of the State, more than a single lot, his acquisition of a greater number through the instrumentality of others, was a fraud upon the law, and he derived no valid title to those so acquired, and accordingly no purchaser could take a valid title' to them through him.

The appellant is further incapacitated' from holding any oyster lot whatever, because of his non-residence in the State, the license being expressly restricted to citizens of the State. The Act of 1884, chap. 518, which superseded the Act of 1874, and is the Act under which defendants took up their lots, declares that no non-resident of this State shall be entitled to locate a lot, whether he be sole or part owner of any land in this State, and also that any title or pretended title to more than five acres, or otherwise contrary thereto, held or claimed by any person, is hereby declared to be fraudulent and void. The Act of 1886, chap. 501, which in turn repeals and takes the place of Article LXXI, contains similar provisions. The appellant having therefore no right to the lots derived through Rutter, which he derived through other parties, because both of the invalidity of Rutter’s title •and his own non-residence, and having no standing to dispute the claims of the defendants, the injunction was properly refused, and his bill cannot be maintained.

It is perfectly manifest that as under the decision of Phipps vs. State, above quoted, the privilege of locating oyster lots has no elements of a grant by patent, but is-simply a license, revocable at the pleasure of the Legislature, it is merely a personal privilege to the recipient,, and consequently neither inheritable nor assignable. The power of assignment has not been given, and obviously if exercised, would tend to defeat the purpose of restricting the holding of any one person to five acres, and increase the facilities of non-residents to get possession of' ⁶⁰¹ oyster lots, which is positively forbidden, and result in the aggregation of more lots than the prescribed number in the hands of the same person, thus favoring the absorption by a few of what was intended for the many, and exposing to monopoly what was designed for several or individual benefit. (Decided 24th June, 1886.) The privilege being created simply by license is subject to be terminated by the State whenever it shall deem the public interest requires it. The security of the license is only in the fairness and sense of justice with which it may be assumed, the State will deal with its citizens.

The oysters that may have been deposited by the holder during the continuance of the license, remain, of course,, his personal property, with the right of selling or otherwise disposing of them, but the territory continues subject to the control of the State. Order affirmed, and bill dismissed. Alvey, C. J., delivered the following separate opinion: This case presents for decision questions of more than ordinary importance, and while I fully concur with my brother Judges in affirming the order appealed from, and in dismissing the bill, I prefer to state the reasons for my opinion, with some reference to the authorities bearing upon the questions involved. The bill is filed by an owner of land bordering on navigable tide water of this State, seeking an injunction against the defendants, who are charged with interfering with and obstructing the use and enjoyment of what are alleged to be the rights of the plaintiff, in the water in the immediate front of his laud.

It is conceded that the' plaintiff is a non-resident of the State, and was such at the time of the alleged acquisition of the rights supposed ⁶⁰² to be violated by the defendants. It is charged in the bill that the plaintiff is owner of land bordering on the shores of two navigable streams, in which the tide ebbs and flows, and that, as riparian owner, he is entitled to the exclusive right- of making improvements into the water in front of his land, and that such exclusive right •embraces the right of laying off oyster lots, and planting the same with oysters, in front of his land, for his own use and profit, to the exclúsion of all ether persons from ■such use of that locality. Or, if such be not his strict rights as riparian owner, according to the principles of the common law, and as those principles have been extended and defined by the Act of 1862, ch. 129, yet he alleges and contends that the former owner of the land acquired exclusive right to the thirty-four oyster lots mentioned and described in the bill, by a kind of preemption, secured to him by the Act of 1874, ch. 181, sec. 23, hy reason and virtue of the fact that such lots were actually located by and for such owner; and the plaintiff, having become owner of the land, claims to hold all those lots as assignee of the former owner, to the exclusion of the right of the defendants, or any of them, to make any such locations of oyster lots in the water in front of his land, as will in any way interfere with the lots previously located. It is not alleged or pretended that the lots claimed by the plaintiff have ever been •seeded with oysters, but it is claimed that it is the exclusive right of the plaintiff so to use them at his pleasure, and that his right in this respect has been interfered with