Middlekauff v. Le Compte

Bond, O. L, delivered the opinion of the Court. The appellants, some of whom are residents of Washington County, Maryland, and the remainder of whom are residents of West Virginia, have been maintaining, fish-pots in the upper, unnavigable portion of the Potomac River, and upon a threat of destruction or opening of the pots by the Maryland Game Warden and the Deputy Game Warden, under the assumed authority and direction of Maryland statutes on the subject, they 'applied to the Circuit Court of Washington County for an injunction to restrain such action; and from a decree refusing it, and dismissing their bill of complaint, they have prosecuted this appeal. An act of the General Assembly of Maryland in 1924, ■chapter 340, amending' sections 73 and 80 of ¡article 39 of the Code on the subject of “Fish and Fisheries,” prohibits the taking of ány of the species of fish named in the act, “in any of the waters of this State above a point where the tide ebbs and flows with * * * fish pots * * * or by any means or contrivance in the nature of a seine or net or trap,” and the obstructing of “any stream above where the tide ebbs and flows, so that fish shall not have free access up and down said stream.” Fish pots are contrivances in ⁶²³ the nature of screens and traps placed at the junction of low dams or walls extending out from each shore and somewhat down stream in such a way as to,collect the water and send it through the pot, so that the fish may he screened out there. Tt is an old Indian method of fishing in shallow streams, used by white men since the early history of the colony.

Such contrivances would seem to leave little or’ no chance for escape of any fish going doWn stream, and the evidence shows that they do screen off all kinds of fish, including bass and others specifically mentioned in the statute. We find the contention that the pots violate the statute amply sustained. The appellants contend, however, that this statute is not effective because the 'Compact of 1785 between the State of Virginia and Maryland, in the eighth section, provided that, “All laws and regulations which may be necessary for the preservation of fish * * * in the river Potomac, * * shall be made with the consent and approbation of both States.” Both this Court and the Supreme Court of the United States have held the Compact to be still binding, except in so far as provisions of the United States Constitution have superseded it. State v. Hoofman, 9 Md. 28 ; Wharton v. Wise, 153 U. S. 155, 172 .

And it is conceded that the Maryland Act of 1924 has not been concurred in by the State of Virginia. The appellees contend, however, and the trial judge has agreed, that the 'Compact of 1785 had no reference to fishing in the upper, rmnavigable portion of the Potomac. We have come to the same conclusion. The Compact of 1785 appears to have been the last of three efforts to settle some definite controversies which arose between the two states during the American Revolution, and which continued until the Compact was effected.

The chief grounds of controversy were differences in tolls on shipping and duties, and conflicting views on the jurisdiction of the courts of one state and the other. The Continental Congress, on November 22nd, 1777, recommended a conference ⁶²⁴ of Maryland, Virginia and Forth Carolina, to meet in the following January to consider a wide range of subjects; the price of labor, manufactures, internal produce and commodities imported from foreign countries. That specific recommendation came to nothing; but Virginia, by an act of December 9th, 1777, appointed commissioners to meet like commissioners from Maryland “to consider the most proper means to adjust and confirm the rights of each to the use and navigation, and jurisdiction over the Bay of the Chesapeake, and the rivers Potomac and Pocomoke, in order to prevent any difference on these subjects which may interrupt that desirable harmony between the two countries, Which is equally the interest of both to cultivate.” On December 22nd, 1777, the General Assembly of Maryland appointed commissioners in turn; and gave them instructions on the grounds of controversy. The general question of jurisdiction to be settled was described in the instructions as “the point of jurisdiction over that part of the Bay lying within the limits of Virginia.” And the commissioners were to endeavor to settle the point by an agreement that piracies, crimes or offences committed on that part of the bay by Maryland subjects or by persons not subjects of Virginia, against subjects of Maryland, should be tried in Maryland; that those committed by subjects of Virginia;, or by persons not subjects of Maryland, against •subjects of Virginia, should be tried in Virginia; that any person flying from justice from either state, might be taken upon said water by process from that state, and that piracies, crimes and offences committed by persons not subjects •of either state against other persons not subjects of either state should be tried in the state in which the offender should be first caught.

That conference came to nothing;. The final, successful convention was started by the appointment of commissioners in Virginia by an act passed on June 28th, 1784, “to frame such liberal and equitable regulations touching the jurisdiction and navigation of the waters of Chesapeake Bay, and the rivers Potomac and ⁶²⁵ Pocomoke, as may be mutually advantageous to the two States.” The General Assembly of Maryland, at its November Session, 1784, responded with a resolution appointing commissioners to meet those of Virginia, “for the purpose of settling the navigation of, and the jurisdiction over, that part of the Bay of Chesapeake whieh lies within the limits of Virginia, and over the rivers Potomac and Pocomoke, and that the said commissioners, or any two of them, have full power, in behalf of this State, to adjust and settle the jurisdiction to be exercised by the said States, respectively, over the said waters and the navigation of the same, * * * and that the said Commissioners be directed to govern -themselves in the execution of the trust reposed in them by the instructions of the general assembly, of the twenty-second day of December, seventeen 'hundred and seventy-seven, and the instructions which shall be given by this .assembly.” See Instructions to the Commissioners of Maryland, Votes and Proc. House of Delegates, 22 Dec., 1777, Resol. 1784, No. 22; Scharf’s History of Maryland, vol. 2, pages 519, 520, 528, et seq.” It -would seem from these preliminaries, then, that the only waters -with which the