Sollers v. Sollers

Page, J., delivered the opinion of the Court. This case was probably instituted for the purpose ■of trying the title to certain land, covered by water, ¹⁵⁰ within the ebb and flow of the tide. The evidence contained in the record, however, is so meagre, and evidently so imperfectly set out, that we are unable to ascertain with reasonable accuracy what the facts were-upon which the instructions asked for by the parties, or granted by the Court were predicated. We are confined, however, to that which the record furnishes, and must render our decision in accordance with what there appears.

By the first prayer of the plaintiff, the Court was asked to instruct the jury, that if they found the defendant caught the fish of the plaintiff, “while confined and without the permission of the plaintiff.” and appropriated them to his own use, their verdict must be for the plaintiff. The evidence to support this prayer was that the plaintiff “caught and confined” large quantities of fish in Terrapin Cove. This cove, it is stated, “was an arm of Mearses’ Cove, Avhich emptied into the Patuxent River through a channel made by John J. Sollers.” It is uncertain from this statement, whether the “channel” thus referred to was an entirely artificial way, or whether before it was made, the waters of Mearses’ Cove had flowed through a natural outlet to the river. It must be inferred, however, that if Mearses' Cove Avas an “arm” of the Patuxent, there must have been a natural way through which the tide had always ebbed and flowed.

The evidence further shows that Terrapin CoAe contained about one and a half or two acres of land, all of it covered by water, within the ebb and flow of the tide; that the deepest water in it was about eight feet, and that the fish taken by the defendant were confined therein by a Avire fence “extending across its mouth thirty yards Avide. ” Now to complete the right of property in fish, an actual appropriation or “mancupation” must be made. The possession must be complete; and, if when taken, they are voluntarily restored to their native element, so that they can only ¹⁵¹ be regained in like manner to that by which they were originally taken, the right of property is lost. Angell on Tidewaters, 137. This prayer does not require the jury to find, as one of the conditions of the plaintiff's recovery, that the plaintiff had title to the soil covered by the water of Terrapin Gove; and we do not think that it can properly be maintained that by the construction of a fence across the mouth of the cove, the plaintiff had so confined the fish, as to retain the title to those he had caught and placed therein.

By so restoring them to their native element, he relinquished the possession of them and thereby lost such right of property as he may have had in them. This prayer was therefore properly rejected. The plaintiff’s second prayer raises the question whether a continuous and adverse possession for twenty years, prior to 1890, of land covered by water, within the ebb and flow of the tide, will confer such a title to the soil as will enable a party to maintain trespass against one who enters thereon and catches fish without permission from the person claiming it. Since the passage of the Act of 1862, ch. 129, there can be no difficulty on this point.

That Act, which is codified in the present Code, Article 54, sec. 46, provides, that “no patent shall hereafter issue for land covered by navigable waters.” “All the soil below high