46 So. 757 | Ala. | 1908
So much of section 3155 of the Civil Code of 1896 as is essential to a discussion of the question involved is as follows: “The owners of land fronting on any bay, river, bayou, or creek within this state, are granted the right to plant oysters, and gather the same, in the waters in front of their land to the distance of six hundred yards from the store; but where the distance from shore to shore is less than twelve hundred yards, the owners on either shore may plant and gather to a line equidistant between the two shores, but no person shall plant in any natural channel so as to interfere with navigation.” That the enactment of this statute was within the power of the Legislature there can be no doubt.- — State v. Harrub, 95 Ala. 176, 10 South. 752, 15 L. R. A. 761, 36 Am. St. Rep. 195. The complainant derives whatever right or title he has to the oyster bed involved through conveyances from the respondents of the land fronting said bed, as well as through a special clause therein found, conveying “all oysters and riparian rights,” and upon the averment of the bill that said oysters were planted by the respondent John G. Cleveland-individually, or by Cleveland and Rolston together, and that Cleveland purchased the interest of Rolston before he conveyed to complainant. It is clear, under the law, that ownership of the property fronting the water in which the oysters are planted, and opposite to said beds, is essential to the right to gather the oysters. It is equally clear that, after the-owner plants, he would have such a right in the oysters as would be the subject of transfer or assignment, or which would enable his personal representative or heir- to gather and market in case of his death. — Jones v. Oemler, 110 Ga. 202, 35 S. E. 375.
The law, however, limits the boundaries within which the oysters may be planted and gathered; the space being 600 yards from the shore, unless the distance from
While the respondents are not estopped by the deeds from interfering with an oyster bed not thereby conveyed, yet the bill avers that the oyster bed in question (whether within the statutory boundaries or not) was leased from the complainant by J. G. Cleveland, that the lease has terminated, and that said Cleveland is acting in defiance of complainant’s rights and has made no restoration. He is therefore estopped from denying complainant’s right or title to the oysters, whether within the statutory boundary or not. The wife, not being a party to the lease, is not estopped from denying complainant’s title, if the oysters are beyond the dead line and were not embraced in the deeds executed by her, and as to her the bill is defective in not locating the bed within the proper boundaries. But, as there was no severance in the assignments of error, the chancellor will not be reversed for overruling the demurrers, unless well taken as to both appellants.
Counsel for appellants, by their brief, do not question the equity of the bill or the propriety of continuing the injunction, in case the complainant had the right to the oysters, but seek a construction of the statute and
The decree of the chancery court is affirmed.
