Smack v. Jackson

Hornby, J., delivered the opinion of the Court. Pursuant to Code (1957), Art. 66C, § 708(a)—wherein it is provided that land beneath the waters of the State may be leased for the purpose, among others, of cultivating oysters or shell fish—the appellant sought to lease an area in Chincoteague (on Sinepuxent) Bay for the cultivation of oysters. The appellees, protesting the issuance of the lease, brought this action contending that the area in question was a natural clam bar and therefore not leaseable under § 708(b). Article 66C of the Code (1964 Cum.

Supp.), § 708(c), provides that natural oyster or clam bars shall be construed to mean and include all oyster or clam beds or bars wherein the natural growth of oysters or clams is of such abundance that the public have resorted thereto for a livelihood either continuously or at intervals within a five year period. The appellees produced several watermen who testified they had worked in the area which is the subject of this controversy on windy days or when weather conditions were otherwise unfavorable for work in the open bay. On such occasions they had caught from 200 to 300 clams per hour. The appellant, on the other hand, undertook to show that there was a scarcity of clams in the area and that the clammers who resided in the neighborhood used the area only at intervals of no more than once or twice a year during the five year period preceeding the application for the lease.

At the close of the whole case, the trial court denied the motion of the appellant for a directed verdict and submitted the twin issue concerning the abundance of clams in the bed or bar and the use of the area by the public for a livelihood to the jury on appropriate instructions to which no objection was made. The jury found a verdict for the appellees and the court entered the judgment for costs from which this appeal was taken. The question presented by the record is whether or not the ³⁷ lower court erred in refusing to grant the motion for a directed verdict in favor of the appellant. In this case, where there was a conflict in the evidence as to whether the area sought to be leased was or was not a natural clam bar within the meaning of the statute, we agree with the lower court that the question was one of fact for the jury to decide.

Under Maryland Rule 552 a, a party is