Powell v. Wilson

Briscoe, J., delivered the opinion of the Court. The appellants filed a bill in the Circuit Court for St. Mary’s County to vacate and set aside the location of a certain oyster lot, located in the waters of St. Jerome’s Creek, in that county, and to enjoin the appellees from depositing and bedding oysters or other shell-fish therein. The bill alleges that the appellants are the owners of a tract of land lying on St. Jerome’s Creek, called “ Bar Neck,” containing one hundred acres, more or less; that this creek has lately become and is now less than one hundred yards wide at its mouth, and that they are entitled to the exclusive use of the creek adjoining their lands and to the middle of its stream for the purpose of bedding and planting oysters. It further avers that the appellees, on or about the 6th of October, 1887, when the creek was more than one hundred yards wide at its mouth, located four and 16-100 acres of oyster land, opposite the land of the appellants and between .it and the middle of the stream, for ³⁵⁶ the purpose of planting oysters; that notice as to the contraction of the creek at its mouth had been duly given, but the appellees subsequently entered thereon and now assert a title to this located ground under section 46 of the Acts of 1894, chapter 380.

An injunction was granted upon the allegations of the bill, but after a hearing upon bill, answer and proof, it was dissolved and the bill dismissed. It is from this order that the appeal has been taken. There is but little dispute upon the facts, as disclosed by the record, but the main questions involved turn upon the interpretation of sections 46 and 47 of the Act of 1894, chapter 380, known as the General Oyster Law of the State. It is admitted that the mouth of St. Jerome’s Creek was more than one hundred yards wide at its mouth when the oyster lot in question was located in 1887, and it appears from the proof to have contracted to the width of eighty-four yards since that date.

The question then is, are the rights which the appellees acquired to this lot in 1887 superior and paramount to the rights of the riparian owners, the appellants ? And this depends, as we have said, upon the meaning and effect to be given to sections 46 and 47 of the Acts of 1894, chapter 380. By section 46 of the Act of 1894, which.is for the purposes of this case substantially 'the same as the law in force at the time of the location of the lot in dispute, it is provided that “the owner of any land bordering on any of the navigable waters of this State, the lines of which extend into and are covered by said waters, shall have the exclusive privilege of using the same for protecting, sowing, bedding or depositing oysters or other shell-fish within the lines of his own land; and any owner of land lying and bordering upon any of the waters of this State .shall have power to locate and appropriate in any of the waters adjoining his lands one lot of five acres for the purpose of protecting, preserving, depositing, bedding or sowing oysters or other shell-fish ; and any male or female citizen of full age, of the county wherein he or she resides, ³⁵⁷ shall have power to locate, and appropriate, and hold one lot of five acres and no more in any waters in this ' State not located; provided thirty days’ notice in writing shall be given the owner or occupant of land bordering on said waters proposed to be located, that the owner or occupant may have priority of claim, * * and that twelve months peaceable possession of all location of oyster ground, under the laws of this State,- shall constitute good and sufficient title thereto.” And by section 47 it is further provided that “ if any creek, cove or inlet not exceeding one hundred yards at low water in breadth at its mouth make into the land, or if any creek, cove or inlet of greater width than one hundred yards at low water mark make into the lands, the owner or other lawful occupant shall have the exclusive right to use such creek, cove or inlet when the mouth of said creek, cove or inlet is one hundred yards or less in width; and when the said creek, cove or inlet is more than one hundred yards wide at its mouth at low water, the said owner or other lawful occupant shall have exclusive right to use such creek, cove or inlet so soon as said creek, cove or inlet in making into said land or lands shall become one hundred yards in width at low water, for preserving,