Travers v. Dean

Jones, J., delivered the opinion of thé Court. This case presents a peculiar question, and arises upon the construction to be given to Section 46 of Article 72 of the Code of Public General Laws as enacted by the Act of 1894, chap. 380. The Act was evidently intended to encourage ⁷⁶ and regulate the cultivation and planting of oysters by private individuals, citizens of this State. After preserving to the owner of land bordering upon any of the navigable waters of the State “the exclusive privilege of using the same for protecting, sowing, bedding or depositing oysters and other shell fish within the lines of his own land,” where these lines “extend into and are covered by said waters;” and to the owners of land “lying and bordering” on any waters of this State a priority of right “to locate and appropriate in any of the waters adjoining his lands one lot of five acres” for a like purpose, the Act among other things provides that “any male or female citizen of full age, of the county wherein he or she resides, 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 or appropriated; 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.” Then after certain other provisions there is this proviso; “that no natural bar or bed of oysters shall be so located or appropriated, and that twelve months’ peaceable possession of all locations of oyster grounds under the laws of this State, shall constitute a good and sufficient title thereto; but should any one within twelve months be charged with locating or appropriating any natural bed or bar hereinbefore prohibited,the question may be at once submitted by any person interested to the Judge of the Circuit Court for the county where such questions shall arise, who, after having given notice to the parties interested, shall proceed to hear the testimony and decide the case; and if his decision shall be in favor of the party locating said five acres, said decision shall be recorded with the original record of said five acres, and shall in all cases be conclusive evidence of title thereto.” From the record it appears that on the 17th of March, 1903, the appellee filed with the Judge of the Circuit Court for Dorchester County, a petition alleging that the appellant had recently and “within twelvemonths last past located and ⁷⁷ appropriated five acres in the waters of the Nanticoke River, in Dorchester County, - for the purpose of protecting, depositing, bedding or sowing oysters or other shell fish;” that said five acres was at the time of filing the petition and at the time of its location and appropriation a natural bar or bed of oysters ; that the appellant was not at the time of so appropriating the said five acres the owner of any land bordering on the said river the lines of which extended into and were covered by the waters thereof wherein the said five acres is so located; that the said lot of five acres is not located in any waters adjoining lands owned by the appellant and bordering on said waters; that the appellant was a non-resident of Dorchester County wherein the said five-acre lot is located; and alleging that the appellee was, by the act of the appellant complained of, seriously injured in his right to take oysters, prayed “that the location and appropriation of the said five acres by the appellant might be annulled and vacated.” The appellant answered the petition admitting his location of the five acres as alleged but denying that the said lot of five acres was a natural bed or bar of oysters as charged; admitting that he was not the owner of any land bordering on the Nanticoke river; averring that the allegation that he was not a resident of Dorchester County was insufficient in law; and denying the jurisdiction of the Judge to inquire into any question other than that whether or not the five acres located and appropriated by him as described in the appellee’s petition is a natural bed or bar of oysters.

The Judge passed in the case the following order: “Evidence having been heard upon the allegations in the above entitled case, and being of opinion that the lot described in the certificate is located in Dorchester County and is not a natural bed or bar of oysters, but it being admitted that the said John E. Travers (appellant), is and always has been a non-resident of Dorchester County and a resident of Wicomico County, as alleged in said petition and that he owns no land in Dorchester County, and was not the owner of any land in Dorchester County at the time the said lot was located ⁷⁸ .and appropriated, and is not the owner of any lands bordering on the Nanticoke river, the lines of which extend into and are covered by the said waters wherein the said lot was so located and appropriated, said lot being located and appropriated within the