Hodson v. Nelson

Boyd, C. J., delivered the opinion of the Court. The appellant filed a bill for an injunction against the appellees to enjoin them “from interfering or intermeddling in any way, directly or indirectly, with the riparian rights of plaintiff, and especially and particularly from erecting, maintaining, occupying or operating any wharf, shanty, pound, or carrying on any crab or other business thereon or therein, in Jenkins Creek between Jenkins Creek bridge and the ³³² mouth of said creek, without the permission, authority and consent of the plaintiff.” The hill alleges, (1) that the plaintiff is the owner and in possession of all the land bordering on both sides of Jenkins Greek, from Jenkins Greek bridge to the mouth thereof; (2) that under the laws of Maryland and the provisions of the Code relating to riparian rights, the plaintiff is 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, and is entitled to the exclusive right of making improvements into the water in front of his land, provided that said improvements do not interfere with the navigation of the stream of water, into which said improvement is made; that all such accretions and improvements, however, whenever or by whomsoever, made, and when made, belong to him as an incident to his estate in the land on the shore and that other persons, without his consent cannot lawfully destroy or interfere with his rights; (3) “that along the shores aforesaid of said Jenkins Greek, on both sides thereof,- and within the limits aforesaid on said creek, there have been erected and now stand without the authority and consent of the plaintiff and against his protest and warning, certain structures, consisting of piling driven permanently into the ground under the waters of said creek, having wharves supported thereon, above said waters, and on' the said wharves houses or shanties for the purpose of carrying on the crab packing business therein, which said wharves and shanties are at or near the edge of the channel of said creek; while between the said wharves and shanties and the adjacent shore are erected and maintained large pens or ‘pounds’ formed by driving poles into the soil under the water and connecting them with rails and scantling, or a" stockade entirely of poles, for the purpose of enclosing or impounding the ‘crab floats’ in which hard crabs are confined and kept until they shed and become ‘soft crabs’ as they are known to the trade. That each of said wharves, shanties and pounds-stands in said creek, between the shore belonging to the plain ³³³ tiff and the channel of said creek, in front thereof, but not reaching to said shore, and constitute improvements in front of plaintiff’s said land, and, in them, the occupants of one or more of them have for several years before the bringing of this suit conducted a crab business in hard and soft crabs or one of them, and that there are many other available sites along said shores, similarly situated and suitable for crab packing, now unoccupied;” (4) that the defendants occupy and are maintaining one of the aforesaid improvements consisting of wharves, shanties and crab pounds and are carrying on the crab business, etc. An order nisi was passed that an injunction be issued, unless cause to the contrary be shown by the time therein named. The defendants filed an answer, in which they stated: (1) That they are informed that the plaintiff had recently acquired title to the land bordering on both sides of Jenkins Creek, and they therefore admit that he is the owner and in possession of said land, the same being low and boggy marsh land of little value.

(2) That they admit the matters and things set forth in the second paragraph of the bill. (3) “Answering the 3rd paragraph of plaintiff’s said bill of complaint, these defendants say: That while they are the owners and occupants of only one crab house or ‘shanty’ on said Jenkins Creek, and the owners of certain ‘crab pounds’ or crab floats, contiguous thereto, they are aware of the fact and freely admit that there are a number of other crab houses or small shanties similar to the one owned by the defendants, standing out in the waters of the said creek, which have, been used by their owners, for more conveniently pursuing their occupation as crabbers, for many years before the plaintiff by patent acquired title to the marsh lands bordering on both sides of said creek; but these defendants allege and charge that these crab houses and crab pounds or floats are not along the shores of said creek in the sense that they are attached to or alongside of the shores ,of said creek, but, on the contrary, they are distant from said shores, out in the navigable waters of said creek, and entirely separated from the land on ³³⁴ both sides thereof; that these crab houses are not wharves bnt simply fishermen’s shanties, supported on poles, driven in the mud in the bed of the creek, in or near the channel thereof; that these crab houses, crab pounds and crab floats, so as aforesaid erected or maintained, do not constitute improvements of the plaintiff’s land, in part or in whole, but are entirely separated therefrom and have no- relation thereto. (4)Answering the 4th and 5th paragraphs of plaintiff’s said bill these defendants admit that without the consent of the plaintiff they are occupying and doing business in one of the aforesaid crab houses and have occupied the same for a period of about eight years during the crabbing season of each year; that they also own certain crab pounds or floats contiguous to their said crab house and crab pounds (which) are situated between Jenkins Creek bridge and the mouth of said creek, in the channel of said creek, about one-hundred yards from the closest shore, and separated therefrom by navigable waters.” It was agreed that the cause be set down for hearing and submitted for final decree on the bill and answer. The important question in the case is whether the structures referred to in the bill and answer, and erected and 'located as therein admitted, were in violation of or an interference with such riparian rights as plaintiff is entitled to under sections 47 and 48 of Article 54 of the Code (1912).

Inasmuch as the ease was submitted on bill and answer the latter is to be accepted as true in regard to matters which are susceptible of proof by legitimate evidence. Miller's Eq. Proc. 711, 317-321. So far as there is any conflict between them we nrast be governed by the facts set out in the answer.

The third paragraph of it above quoted will therefore show the real situation we are to deal with somewhat differently from that alleged in the bill, although for the most part the parties differ but little as to the facts. The statute relied on was passed in 1862, being Chapter 129 of the laws of that year, and the sections were numbered 37, 38 and 39. They are now sections 47, 48 and 49 of ³³⁵ Article 54 of Code of 1912, and are as follows: “47. The proprietor of land hounding on' any of the navigable waters of this State shall he entitled to all accretions to said land by the recession of said water, whether heretofore or hereafter formed or made hy natural causes or otherwise, in like manner and to like extent as such right may or can be claimed by the proprietor of land hounding on water not navigable. 48.

The proprietor of land hounding on any of the nagivahle waters of this State shall he 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 such improvement shall he so made as to interfere with the navigation of the stream of water into which the said improvement is made. 49. 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.” As section 47 relates to accretions and 48 to improvements the latter is the one with which we are specially concerned. Sometimes the distinction between the right to make improvements and the right of accretion is not kept in mind, as for example hy the Circuit Court in its opinion in Goodsell v. Lawson, 42 Md. 364 , which was referred to in Linthicum v. Coan, 64 Md. 453 .

The case of Goodsell v. Lawson is the authority mainly relied on hy the appellant, hut there are some marked differences between the facts in that case and those in this. In that case there was a solid structure built, out of oyster shells in the water in front of the plaintiff’s property. The record does not clearly show whether the pier built hy Goodsell was connected with the shore, hut however that may have been he had filled up part- of the lot leased to him and it either was already or was to be connected with the main land. There ought not to have been the least- hestit-ation to grant relief in that case, for the lessee after placing ³³⁶ the oyster shells in the water, under an agreement with the owner of the land, undertook to get a patent on the land so reclaimed.

He would have materially obstructed the use of the water by the owners of the shore, under whom he went into possession, and the improvements were already in part made. We have seen above the character of structures in this ease, which are described in the parts of the answer above quoted. It might perhaps have been better to have described more accurately what are spoken of as crab houses and crab pounds or floats than is done in the bill or answer. The learned judge below concluded his opinion by saying: “Without dwelling further on the plaintiff’s contention in this cause, it seems clear to us that the defendants’ alleged structures and use thereof interfere in no way with the plaintiff’s right to build a wharf, pier or warehouse out from the shore and into the water, or with his right of filling out from the shore and reclaiming his land from the inundation of the tide, nor does the plaintiff allege that it so interferes, or that he intends now or hereafter to so improve his land; it is no more an interference with such right than would a houseboat, with pounds attached, anchored out in the stream; and is no more such than would be an ordinary fish pound and net, attached as they generally are with stakes or poles driven into the soil under the water; it is in fact no such accretion or improvement as is contemplated by the statute or defined by the Court of Appeals as such.” If we either accept that as an accurate description of the structures or simply rely on the answer to get the description from, there can be no doubt that the facts in this case are wholly different from those in Goodsell v. Lawson, with which the Court was there dealing.

There was not only not any question in that case about the improvements being of a permanent character, but they were erected by the defendant with the owner’s consent, and with the distinct understanding that they should at the end of the ten-year term become their property. The appellant was actually in possession of the ³³⁷ premises, under and by virtue of the contract made between him and the owners, and the improvements had already been at least in part made. His possession of them as tenant was in law the possession of his landlord. But in this case nothing whatever has been done by the appellant in the exercise of the right conferred on him by section 48 of Article 54 of the Code, and, so far as appears from the record, he has no intention or desire to make any improvements in. the water in front of his land, for the present.

Grant that an owner has such rights vested in him by that section as will entitle him to the protection of a Court of Equity against the erection of any improvements of such character as must interfere with him when he wants to make them, is he to have such control of the waters in front of his land as will enable him to prevent anyone from using them for purposes such as these appellees use them, even though he does not intend to use them himself ? If he is, then all he has to do is just what the appellant has attempted to do, acquire the ownership of the shores of a creek where the crabbing or similar business has been carried on, and without making any improvements himself, notify those who have been engaged in the business to stop it or pay him rent. What was said in Hess v. Mu-ir on page 596 of 65 Md., is very applicable : “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