Smoot Sand & Gravel Co. v. Columbia Granite & Dredging Corp.

³⁸⁵ PattisoN, J., delivered the opinion, of the Court. John Swift, the owner, in fee simple, of a farm in P’rince George’s, County, Maryland, containing 91.6 acres called "Ferry Farm,” and situated on the Potomac River, caused the same to be sub-divided into seven lots, numbered one to seven inclusive. Lots 1, 6 and 7 border upon the Potomac River, while the others are located some distance therefrom,. John Swift, with his wife, by deed, dated December 13, 1913, conveyed in fee simple lot 1 to Charles Swift, lot 6 to William F. Swift and George Swift, trustees, and lot 7 to Mary Kintz; and by other1 deeds of the same date he conveyed lots, 2, 3, 4 and 5 to the respective grantees therein named, but as these last named lots are not in any way involved in, or connected with, the controversy under consideration, no further reference will bei made to them.

The deeds for lots 1, 6 and 7 were duly executed, acknowledged, and recorded among! the land records of Prince George’s County, Maryland on the sixth day of January, 1914, and each of them described the land thereby conveyed by metes and bounds,, courses and distances. Mary A. Kint.i and husband, thereafter, by deed dated September 7th, 1920, conveyed lot 7 to Wilmer E. Swift, in fee simple, which deed was duly executed, acknowledged .and recorded among said land records. Lots; 1, 6 and 7, which we have said border upon the Potomac River, constitute the whole front thereon of “Perry Farm.” . Thereafter on July 1st, 1921, George, William E., Charles H., and Wilmer E. Swift, by an instrument of writing called a lease, did “grant and convey unto the party of the second part (the appellee, the Columbia Granite and Dredging Corporation), its successors or assigns, for the term, of five years from the 24th day of June, 1922, the exclusive right, to- dig, dredge and carry away sand, gravel and other like materials from that portion of the bed of the P'otomae River up to low water mark, extendi rig and lying in front of the property of the party of the first part (the lessors or grantors) situated in Prince George’s County, State; of Maryland, said property ³⁸⁶ being known as ‘Ferry Farm,’ * " * together with the right to exercise 'any and all privileges with respect hr dredging and carrying away materials from the said portion of the bed of the Potomac River which the parties of the first part, their heirs or assigns, have or may have by virtue of the ownership of the said tract of land or otherwise,” with the further privilege to the lessees or grantees “to renew the within lease upon the same terms and conditions upon the expiration of the said term of five years for a further term of three or five years.” After the execution of the purported lease, the appellee started to dredge and remove sand and gravel from the bed of the river a,t the place described in said lease or writing, and continued to dredge and remove sand and gravel therefrom, when, on the 14th day of April, 1923, the appellant, the Smoot Sand and Gravel Corporation, by valid conveyances from the owners thereof at that time, became seised and possessed, in fee simple, of the “Ferry Farm,” including lots 1, 6 and 7 which, as we have said, constitute the entire front of said farm on the Potomac River; and after becoming so seised and possessed of said farm, the appellant, by virtue of its supposed riparian rights, dredged and removed and continued to dredge and remove sand and gravel from the river bed between low water mark on the shores of lots 1 and 7 and the outer line of the channel of said river, whereas the exclusive right to dredge and remove sand and gravel there^ from had been granted by the so-called lease to the appellee, and the appellee, to prevent the appellant from further ■interfering with its alleged right, filed its bill in this case alleging the facts stated and asking that the appellant corporation be enjoined “from digging, dredging, taking or removing any sand or gravel, or both, in or upon the said bed or bottom of the said Potomac River opposite said lots 1 and 7 of said ‘Ferry Farm,’ ” as described in the bill.

The defendant corporation filed its answer to the bill, in which it admitted the material facts alleged therein. The case was then heard upon bill and answer and a decree was ³⁸⁷ passed granting the injunction its prayed. From that decree the defendant' has appealed to this Court. The plaintiff based its claim to an injunction upon its alleged exclusive right to dredge and remove sand and gravel from the bed of the river off the shore of the “Ferry Farm,” .at the place named in the bill, granted to it by George Swift and others under the aforesaid instrument of writing called a lease, executed by them on said first day of July, 1921, at which time they were the owners of lots 1, 6- and 7 of the “Ferry Farm.” The power and authority of said grantors or lessors to grant such right was conferred upon them, as claimed by the plaintiff, by section 433 of article 27 of the Code of Public General Laws, of this State, which is as follows: “It shall not he lawful for any person to dig, dredge, take and carry away any sand, gravel or other material from the hed of any of the navigable rivers, creeks or branches of this State, under a penalty of a fine not exceeding three hundred ($300) 'dollars, and confiscation of the boat, vessel, dredge and implements used in