25 A.2d 196 | Md. | 1942
The appellant, E.N. Culley, was the holder of a ten-acre oyster bed located on Swan Creek, in Kent County, which he held under a lease from the Conservation Department of this State to George F. Satterfield, dated January 2, 1926. The appellee, Dr. Charles B. Hollis, is the owner of a parcel of land, triangular in shape, the longest side bordering on Swan Creek about 360 feet. Dr. Hollis had let a contract to his co-defendant, Irving L. Crouch, to build a pier extending 220 feet into Swan Creek, which was practically finished before the bill was filed. The water frontage of Dr. Hollis' lot was not a straight line, and the pier was projected about 100 feet from the northerly end of the property. The plaintiff does not complain of the location of the pier, so far as his shore property is concerned, but because it is projected into his oyster bed, the lease on which was assigned to him by George F. Satterfield.
It is conceded that Swan Creek is a navigable stream, the title to which is in the State. There is no contention that the jurisdiction of the War Department of the United States does not also extend over the stream, and that the consent of that department was necessary before the pier could be built. Dr. Hollis did have the consent of the War Department, but it has been held that such permit does not pretend to give any property rights to the permitee, nor authorize any injury to private property, nor obviate the necessity of the consent of the State, but merely expresses the assent of the federal government so far as the public rights of navigation may be affected. Cummings v.Chicago,
Dr. Hollis' claim to the right to erect a pier from his property out into the creek is derived from Code, 1939, Art. 54, Sec. 47. Mr. Culley's claim is by virtue of an oyster planting lease granted by the Conservation Department of the State, made under the provisions of the Act of 1906, Ch. 711, Code, 1939, Art. 72, § 93 et seq. And the question here is the priority or superiority of one over the other. The ten-acre oyster lease of Culley extends over the entire water front of Hollis, so that if it gives him the superior right in the waters of Swan Creek, Hollis will be denied the right attached to his property by Section 47 of Article 54 of the Code, 1939, Act of 1862, Ch. 129, Sec. 38.
The statute defining the riparian rights of water front owners on navigable waters, Art. 54, Secs. 47 and 48 of the Code, 1939, Act of 1862, Ch. 129, Sec. 38, is:
"47. The proprietor of land bounding on any of the navigable waters of this State shall be entitled to the exclusive right of making improvements into the waters in front of his said land; such improvements and other accretions as above provided for shall pass to the successive owners of the land to which they are attached, as incident to their respective estates."
"48. No patent hereafter issued out of the land office shall impair or affect the rights of riparian proprietors, as explained and declared in the two preceding sections; and no patent shall hereafter issue for land covered by navigable waters." Phipps v.State,
In Garitee v. Baltimore,
In the case of Hess v. Muir,
Every question involved in this case was decided and every right defined in the case of Hodson v. Nelson,
The plaintiff's (appellant) contention is that under his oyster lease from the State, he has a property right which cannot be invaded or taken except by due process of law. *376
The defendant, Dr. Hollis, cannot avail himself of the right of emiment domain, so that whatever rights he has are derived from the Code, 1939, Art. 54, § 47. "Until * * * `improvements' are made to the land in the sense we have described, the mere right to construct them, although still subsisting, is not incompatible with licensing of the soil covered by water for uses not subversive of such right, or irreconcilable therewith, and which must yield to the paramount right of making improvements when actually exercised." Hess v. Muir,
The plaintiff offered evidence, which was disputed by evidence of the defendants, that the end of the pier projected to a point opposite the easterly end of his property, though it does not interfere with any improvements which he has made. The only complaint in the bill is that the defendants have seriously injured the oysters on the plaintiff's lease by the driving of piles and the building of the pier. That is the only question submitted, and we think that the chancellor was right in denying an injunction and dismissing the bill.
Decree affirmed, with costs. *377