Parks v. Benning

Mitchell, J., delivered the opinion of the Court. The appeal in this case is from a decree of the Circuit Court for Anne Arundel County, enjoining the Conservation Commission of Maryland from executing a lease to Griffith G. Parks for six acres of land located under the waters of Tenthouse Creek, in said county, in accordance with the provisions of section 116 of article 72 of the Code of Maryland, as amended by Laws 1927, ch. 610. Under that section, provision is made for the leasing by the commission, on behalf of the State of Maryland, of land beneath the waters of the state located within the territorial limits' of any county, of not less than one acre or more than thirty acres; and it is expressly provided that leases for such lands shall be made only to residents of the State of Maryland. It is uncontradicted that Parks is a bona fide resident of the state; and his unqualified testimony is to the effect that his principal vocation in the past has been that of an oysterman, engaged in planting and tonging oysters.

Recently he was employed by Arthur E. Otto, who in May, 1935, purchased a small tract of land bordering on Tenthouse Creek from the appellee, Harry Benning. It appears that Otto has for several summers been spending three months in Anne Arundel County, and that he has made a declaration of his intention to become a citizen of the county for voting purposes; but it is admitted that he is not a resident of the county at this time, and, ³²⁸ to the contrary, that he spends the greater part of his time in Washington City, where he is engaged in the practice of law. At the time of his purchase, there was in front of his and adjoining property an area beneath the waters of Penthouse Creek open for lease of at least six acres. This land had never been leased by the appellee, and, after the sale was effected, an application for a lease of it was, on May 27th, 1935, filed by Parks, at which time the preliminary costs were deposited with the commission.

This application was regularly executed by Parks, in that it was signed and sworn to by him, and was accompanied by a check of Lusby Motor Company, Inc., for the costs, and mailed to the commission. Subsequently the appellee personally filed an application for three acres of the land applied for in the first application, which he stated to Charles E. Ebberts, assistant chief clerk of the commission, was “part of the ground Mr. Otto or Mr. Parks was applying for.” Upon being advised by Ebberts that the commission could not grant a lease to the- appellee unless it had a waiver or release from Otto, the appellee told Ebberts “Mr. Otto was going to give him it”; whereupon Ebberts agreed to hold the matter up until he communicated with Otto, and that, if it was satisfactory, he would then reduce the original application of Parks, and accord the appellee three acres of the same land originally applied for by Parks. The assistant clerk then wrote to Otto, acknowledging a check for six dollars, representing the rental on the oyster area applied for in the name of Griffith G. Parks, and calling his attention to the fact that the appellee had called at the office of the Conservation Commission, stating that he had made an agreement with Otto to the effect that three acres of the six acres applied for by Parks could be applied for by Benning; that Benning had deposited the initial costs of his application; and that the same had not been accepted, and would not be accepted until the commission had received authority to reduce the acreage applied for by Parks. ³²⁹ The record further shows that, upon receiving this letter, Otto discussed the matter with Parks, and that Parks advised him that he did not want to do anything towards eliminating any of the area embodied in his application, and requested that Otto reply to the letter as far as it concerned Parks. Thereupon, under date of June 3rd, 1935, Otto wrote a letter to the Conservation Commission, requesting that the commission proceed with the legal requirement of the advertisement of the application of Parks, and stating that he was unable to give approval to a release of any part of the area applied for in the Benning application.

The letter also discusses an interview between Otto and Benning, in which the former explained to the latter that his position as a newcomer, who had invested substantial moneys in the purchase of the property for the purpose of establishing a home in Maryland, was naturally to reserve his rights, and that under the laws of the state it was the privilege of any resident of the state to acquire a lease of oyster ground. Upon the tenor of this letter, the theory of the plaintiff’s case is based. In other words, it is argued that in the same is contained an express admission on the part of Otto, an admitted nonresident of the state, of his intention to claim the Parks application for a lease as being his own; notwithstanding, however, that in his testimony in the case before us Otto denies that he had any part in the filing of the application of Parks; and, as has been shown, the check accompanying the application came entirely through other sources. In answer to a query as to whether he was directly or indirectly interested in the proposed lease to Parks, Otto testified as follows: “My interest