57 F. 719 | U.S. Circuit Court for the District of Eastern Virginia | 1893
Three citizens of Maryland — William W. Marsh, Robert L. Wharton, and Severn Kelson — are before the court on writs of habeas corpus issued upon petitioners' severally alleging that they have been unlawfully prosecuted for violating certain laws of Virginia relating to oysters, and have been unlawfully convicted and imprisoned by the county court of Accomack county, Va., for the offenses charged. Marsh was convicted of violating section 2156 of the Code of Virginia, which forbids all persons from taking or catching oysters with a dredge, scraper, or any other instrument than ordinary oyster tongs, in any of the waters of the commonwealth, except as prescribed by other sections of the Code. Wharton and Kelson were convicted under section 2147 of the Virginia Code, which forbids any person other than a resident of Virginia, who has paid a tax and obtained a license as prescribed by law, from taking or catching oysters in any manner in the waters of the state. The indictments in the cases of Wharton and Kelson charge that the offenses were committed on Ledge rock, in that part of Pocomoke sound which lies within the limits of Virginia. The indictment in the case of Marsh charges that the offense was committed on Hurley’s rock, in Tangier sound, within the limits of Virginia. It is conceded that all of the offenses were committed within the limits of Virginia; but it is contended in defense that, by reason of Wharton’s and Kelson’s offenses having been committed in Pocomoke sound by citizens of Maryland, the courts of Virginia cannot take cognizance of them, and that by reason of Marsh’s offense having been committed at a place near the boundary line between Virginia and Maryland, running from Smith’s to Watkins’ point, where the line is “doubtful,” the Virginia courts have no jurisdiction to try him as a citizen of Maryland. We shall deal, in treating the question raised, more directly with the cases of Wharton and Kelson, and afterwards with that of Marsh.
A great mass of documentary evidence and historical literature has been filed by counsel on both sides as evidence in these causes. We have studied it with great care, and as thoroughly as the importance of the question involved seemed to require. The extraordinary volume and diffusiveness of this evidence renders' necessary a more elaborate discussion and decision than is usually submitted from the bench in ordinary litigation. We will first describe in some detail, as matters of common knowledge, the oyster' properties of Pocomoke sound, and the laws of Virginia enacted for the protection generally of her oyster interests.
Pocomoke sound has an area of about 90 square miles, and is one of the largest subdivisions of Chesapeake bay. According to the survey recently made by Capt. Baylor under an act of the legislature of Virginia, 52 square miles (28,52S acres) of this area are natural oyster rocks, beds, or shoals. It is common knowledge that the natural growth of oysters in this sound at one time was nearly depleted by constant and imprudent dredging; but some 10
It is shown by public documents that Pocomoke sound supplies the main — almost entire — support to at least 3,000 of the inhabitants of Accomack county, Va., counting only those engaged in the oyster industry, and the members of their immediate families. Of that part of tlie population dependent upon their labor in this sound for the maintenance of themselves • and families, five-sixths rely upon taking oysters directly from the places of their natural growth, and selling the catch. The remaining sixth plant alone, or combine planting with tonging'. The planters have their grounds, upon application, assigned to them, and marked by stakes, by the oyster inspector of the district, who is an officer of the state of Virginia. Then they are surveyed by the county surveyor, and the survey returned to and recorded in the county court clerk’s office. This, if exceptions arc not filed and sustained, authorizes the planters to hold their assignments so long as they pay the annual rent to the state. The planter prepares his ground by depositing shells upon it, and placing a limited quantity of oysters thereon, to facilitate its seeding. If no oysters Are placed upon the bed, still, the spawn will attach itself to the shells, and produce a growth; hut this process is hastened by placing seed oysters upon the prepared bed, as before stated. In a few years the oysters grow so large and thickly that it becomes difficult to distinguish the artificial beds from the natural rocks. At maturity (in about three years, if the location is suitable) the oysters are removed from the beds, and marketed; the quality being superior to, and the oysters commanding a better price than, those taken from the natural rocks.
Official records show that 139 assignments and surveys have been made in Pocomoke sound upon applications of planters, and these surveys embrace a little more than 1,000 acres. The rec
The laws of Virginia regulating the oyster culture are found in the Code and statutes. The owner of a boat to be used in t king or catching oysters from the natural rocks is required to have the boat registered by the oyster inspector of his district every year, and pays the inspector for his'Services a fee of 50 cents, annu l'y. Each registered tongman is required to report weekly the amount of his sales of oysters, and to pay thereon an amount equal to the amount of tax levied by the state on any other species of property; but, at the time of registering, any tongman can commute the tax on his sales by paying two dollars for the entire season. This the tongers invariably do, because it relieves them from the trouble of making weekly reports, and the amount of commutation is less than the tax on sales would amount to. The planter pays an annual rent of one dollar per acre for the land assigned to him, and he also reports to the commissioner of the revenue, where he lists his property for taxation, the amount of his sales of planted oysters for the preceding year, upon which sales is assessed a tax, the same as upon other taxable property. These are the only taxes collected from tongers or planter's.
Two truths are obvious from the foregoing recital: First, that unless laws are passed, and1 stringently enforced, for the protection of the oyster rocks, beds, and plants in Pocomoke sound, the oysters which are produced in profusion there will soon be destroyed; and, second, that in order preserve and cultivate the oyster, and increase its production in those waters, it is necessary to allow private proprietorship in the oyster plants, subject, at the pleasure of Virginia, to such taxation as entails upon the state the duty of protecting these taxed oyster properties by police and penal laws. These truths very broadly distinguish the oystering industry from that of catching running fish in the waters of the Chesapeake and its tributaries, in which there can be no private property until they are caught, and invalidate any claim that may be made, by inference, to the right of oystering, from grants, in general terms, of the right of fishing. We think, moreover, it may be -laid down as a proposition of natural law that, inasmuch as oysters are becoming more and more valuable and necessary every year, with the growth of populations, as human food, any state possessing great and productive oyster deposits owes it as a duty to humanity, no less than to her own citizens engaged in the oyster culture, to -protect these deposits from such depredations as destroy their valuable product. In order to give effectual encouragement to this ■industry, Virginia has enacted laws, some of which have been described above,' which confer private rights in oyster beds, and which impose taxes ¡upon cultivators of oystérs; which are expended in
We turn now-to the Potomac river, on the western side of the Chesapeake bay. The tide-water portion of this great stream,, for 120 miles from the Great Palls at Georgetown to the Chesapeake hay, constitutes the boundary line for that entire distance between Maryland and Virginia. Its fisheries for herring, mackerel, shad, and other running fish were for a long time highly valuable, and are quite so still. There are oysters in the more brackish waters near its mouth, but the oyster interests of the Potomac have always been very inconsiderable. The relations of the tide-water portions of the Potomac river to the two stales made it necessary that there should be some compact as to its use between Maryland and Virginia. Accordingly, on the 28th day of March, 1785, under the auspices of Gen. Washington, and at Mt. Vernon, a compact was entered into, which had the effect of a solemn treaty, between these states. That compact is still in force, except so far as the subsequent ratification by Virginia and Maryland of the constitution of the United States may have modified and changed it.
Another portion of the boundary between the two states has always been a subject of much interest, to wit, that extending from the mouth of the Potomac across the Chesapeake hay and the eastern shore or peninsula to the Atlantic ocean. Until the final sell lenient, in 1877, of this boundary line, by Arbitrators Black and Jenldns, which was accepted by the two states, and was ratified by congress by the act of 'March 3, 1879, (see 20 Slat. 481,) this, line was the subject of much controversy, more or less acrimonious,, between the two states and their respective citizens. One of the original subjects of contention was the exact locality of Watkins’’ point, which was ambiguously mentioned in Lord Baltimore’s charter. This was fixed, however, at a very early date. It was determined by Commissioners Scarborough, of Virginia, and Calvert, of Maryland, in their report of March 28, 1668, defining its position, and that position has never been changed; certainly, not very largely changed. (The act of congress just cited, and the Code of Virginia, page 62, § 13, strangely refer to the Scarborough-Calvert line as marked by them in 1868, which, of course, are misprints.) Watkins’ point, thus determined, has remained from 1668 till now a cardinal point in the boundary line of Maryland and Vir
“After a full and perfect view taken of the point of land made by the north side of Pocomoke bay and the south side of Annamessex bay, we |have and do conclude the same to he Watkins’ point, from which said point, so called, we have run an east line, agreeable with the extremest part of the westeimost angle of said Watkins’ point, oyer the Pocomoke river, t¡o the land of Robert Holston’s,” etc., and “on into a marsh of the seaside.”
That is to say, after fixing Watkins’ point, they ran a line from that point on Pocomoke bay, to and “over Pocomoke river,” eastward to the Atlantic ocean.
Not only is Watkins’ point, as fixed, or nearly as fixed, by Scarborough and Oalvert, still a cardinal point in the boundary, but the point at which these commissioners crossed over the Pocomoke river also remains an undisputed point of the line, as it was fixed by them. In modern times this crossing has been ascertained to he at latitude 37° 59' 37", longitude 75° 37' 4". The line from Watkins’ point to Pocomoke river, fixed by Scarborough and Calvert, skirted the irregular northern shore of Pocomoke sound, taking in no navigable water except what is in the five miles of Pocomoke river below its intersection with the line; a fact which will be seen, in the sequel, to have given a good deal of annoyance to some of the citizens of Maryland. One of our objects in quoting exact language from the report of Scarborough and Oalvert is to show that at that day, and by those two men of pre-eminent intelligence, the hay and. the river Pocomoke were spoken of, and regarded, as two distinct bodies of water. Prom what has been said, it is plain that while the two states had very important common interests in the Potomac river, which was a common boundary for 120 miles, they had comparatively trifling common interests in the Pocomoke river; a stream that from 1668 to 1877 constituted no part whatever of a boundary between them, and whose course in Virginia was less than five miles.
The petition of Wharton and Nelson, praying for the writs of habeas corpus under which they are before this court, recites, among other things, as follows:
“By the seventh section of [the compact entered into on the 28th day of March, 1785, between the states of Maryland and Virginia,] it is provided that: Sec. 7. ‘The citizens of each state, respectively, shall have full property in the shores of Potomac river adjoining their lauds, with all emoluments and advantages, thereunto belonging, and the privilege of making and carrying out wharves and other improvements, so as not to obstruct or injure the navigation of the river; hut the right of fishing in the liver shall be common to and equally enjoyed by the citizens of both states; provided, that such common right be not exercised by the citizens of one state to the hindrance or disturbance of the fisheries on the shores of the other state; and that the citizens of neither state shall have a right to fish with nets or seines on the shores of the other.’ By the eighth section of said compact, it is provided that: Sec. 8. ‘All laws and regulations which may be necessary for the preservation of fish, or for the performance of quarantine in the*725 river Potomac or £or preserving and keeping open the channel and navigation thereof, or of the river Poeomoke, within the limits of Virginia, by preventing the throwing out of ballast, or giving any other obstruction thereto, shall be made wiih the mutual consent and approbation of both states.’ ”
The petitioners now before this court, by their counsel, contend that—
“By the true interpretation ot' the said seventh and eighth sections of the compact of 1785, the citizens of Maryland are lawfully entitled to possess and enjoy and exercise a. common rigid of fishery, including the light to catch and lake oysters in the Potomac river and in the Poeomoke river, including wliat is called 'Poeomoke Sound,’ which is a part of said river, being in fact really the mouth thereof.”
The petition thus claims that the provision of the seventh section, of the compact, giving a common right of fishery, in which the Potomac river, only, is mentioned, and the reasons for which provision were so strenuous as to make them necessary in respect to a great river, forming for 120 miles the boundary between the two states, is to be construed to apply also to a small liver, not mentioned in the section, not then forming any part of the boundary, and as to which no such reason for the provision then existed, in any degree. It founds this pretension on no conceivable ground, other than the fact that the Poeomoke river is mentioned in section 8 of the' compact, in a clause subsequent to another clause requiring all laws and regulations for the preservation of fish in the Potomac, particularly described in that section, to be made with the mutual consent and approbation of both states.
It is apparent from the language of the petition that the validity of the defense in these cases depends upon the truth of several propositions, viz.:
(1) That the seventh section of the compact of 1785 granted a common rig] it of fishery to citizens of both states in the Poeomoke liver, despite the nonmention of that river therein.
(2) That even if the seventh section did not, by omitting the mention of Poeomoke liver, contain the grant, yet the eighth section did, by implication and construction.
(3) That the grant of a common right of fishery, thus contained in sections 7 or 8, or both, in the Poeomoke river, carried the right into Poeomoke sound, as part of Poeomoke river. And,
(4) That the grant of a common right of fishery thus derived in Poeomoke sound — that is to say of fishing for running fish, which, unfit caught, are ferae naturae, and not the subject of private ownership — -embraces the right to scrape and dredge for oysters, not only on natural rocks in Poeomoke sound, but on the private plantations granted and taxed there by the state of Virginia, who owns the water and the soil.
Section 7 defines two classes of subjects, in relation to which the laws and regulations made by these states shall be of mutual consent and approbation. The first class embraces laws and regulations necessary for the preservation of fish and for the performance of quarantine in the Potomac river. The second embraces laws and regulations for preserving and keeping open the channel and
After the adoption of the compact of 1785, the two states enacted laws for the preservation of fish, and regulations for fishing, in the Potomac river, having the sanction of mutual consent and approbation. They have not done so in respect to the Pocomoke river. Virginia has never enacted such laws, and it has not been shown in the‘evidence or argument that Maryland has ever proposed them. We áre inclined to believe that Maryland has never enacted or proposed them. Por 108 years, Virginia, certainly, and we believe Maryland, also, by their nonaction, have given practical refutation to the contention of counsel for petitioners that any grant of a common right of fishing in the Pocomoke river was intended in sections 7 and 8 of the compact.
On this subject, Mr. I. ISTevett Steele, of the Maryland bar, in an opinion written at the request of the governor of Maryland, in respect to the present validity of the compact of 1785, remarks, after quoting section 8, as follows:
“The ordinary and grammatical construction of the section would manifestly limit the mutual or joint legislation over the river Pocomoke to the preserving and keeping open of the channel and navigation, and would not extend it to the preservation of fish in the river. If this construction be correct, there is nothing at all in the compact on the subject of fish in the Pocomoke, and consequently nothing upon which any claim of Marylanders to fish there could he founded. The compact, by its previous clauses, having given to Marylanders no right to fish in that part of the Pocomoke river belonging to Virginia, there seems to be no reason, why it should give to Maryland the power to legislate for the preservation of fish on that part of the river.”
We cannot accede, therefore, to the contention that, because the state of Maryland has never consented to or approved the law
Though it is unnecessary, after this ruling, to consider the point so strenuously urged by counsel for the petitioners, — that the exemption, by operation of the eighth section of the compact of 1785, of offenses committed in .Pocomoke river by citizens of Maryland, extends to those committed in Pocomoke sound, which is claimed to he part of the river, — yet it is due to the subject, in view of the elaborateness with which the point has been pressed, to examíne this claim of identity between the river and the sound, Pocomoke.
Considered either as a question of strict law, or of historical fact;, this contention — this claim of identity between these two bodies of water — is equally untenable. We have already shown, by quoting from the repoH of Commissioners Scarborough and Calvert, made as far back as 1(568, that they spoke of the hay and the river as two distinct bodies of water. We have examined all of the early maps of the waters and region embracing this sound and river, and we do not think that in any of them the name “river” is laid upon the sound. In one of the oldest and best of the maps, — that of Augustin Herman, published in 1673, five years after the settlement of the boundary by Scarborough, and Oalverf, — (he hay and the river Pocomoke are laid down with considerable accuracy as distinct from each other, and are separably designated, the one as “Pocomoke Bay” and the other its “Pocomoke Itiver.” Coining down to modern maps, the case is the same; distinct designations appearing in them as “sound” and “river,” as in Herrman’s map. The first edition of the chart; made by the United States coast survey, published between 1850 and 1860, gives a clear delineation of Pocomoke river, and a distinct one, from careful surveys, of Pocomoke sound, placing the name of “Pocomoke Sound” upon the bay. Every biter edition of this map of the coast survey exhibits this bay as a. distinct; body of water, separately designated and distinguished from the river.
It is true that Maryland has long manifested a decided dissatisfaction with the boundary line of 1668, prescribed by Scarborough and Calvert, hut her chief contention was that the line should not have been placed so far north as to have left the whole of Pocomoke sound in Virginia. As the result, in part, of this dissatisfaction, a commission was finally appointed to readjust; the boundary lines, generally,' between Maryland and Virginia. The commissioners were Jeremiah Í8. Black, Charles A. Jenldns, and James B. Beck, — all men of distinction, and enjoying the confidence of the public in the highest degree. The boundaries of the two states were settled by them in an award dated January 16, 1877. This award was accepted by the two states, and was ratified by
“From Watkins’ point the boundary line runs due east 7,880 yards, to a point where it meets a line running through the middle of Pocomoke sound which is marked ‘O’ on the accompanying map, and is in latitude 37° 54' 38", longitude 75° 47' 50"; thence, by a line dividing the waters of Pocomoke sound, north, 47° 30' east, 5,220 yards, to a point in said sound marked ‘D’ on the accompanying map, in latitude 37° 56' 25", longitude 75° 45' 26"; thence, following the middle of the Pocomoke river by a line of irregular curves, as laid down in the accompanying- map, until it intersects the westward protraction of the boundary line marked by Scarborough and Oalvert, May 28th, 1868, at a point in the middle of Pocomoke river, and in the latitude 37° 59' 37", longitude 75° 37' 4"; thence, by the Scarborough and Calvert line, which runs 55° 15' north of east, to the Atlantic ocean.”
The misprint of “1868” for “1668” bas already been adverted to.
This language of the Black-Jenkins award of 1877 has been quoted for two purposes — First, in order to show that this latest historical document relating to this boundary — just as that of 1668 had done — particularly distinguishes the sound from the river Pocomoke, by two distinct mentionings of each; and, secondly, to show that the settlement of 1877 left no part of this portion of the boundary between the two states “doubtful.” It is proper to observe that the United States coast survey, in its maps, has extended the river, so-called, westward of its proper mouth,- to the narrows abreast of Meramscot creek, which is 12 miles south and southwest of the crossing of the river by the Scarborough-Oalvert and Black-Jenkins line. It is to be also observed that the Black-Jenkins award-adopts the map of the United States coast survey in designating the boundary line east of Watkins’ point, and, in designating the river as distinct from the bay, makes the river commence nearly abreast of Meramscot creek. In concluding this part of the subject, we think we can say, with truth, that there is no map of these waters, and no joint official document existing in relation to them, which has confounded the river with the sound, or cláimed that the -sound is the river, or any part of the river, Pocomoke.
In support of their contentions based on section 8 of the compact of 1785, which have been shown to he inadmissible in the foregoing paragraphs, counsel for the petitioners cite the language used by one of the judges in the decision of the supreme court of appeals of Virginia in the case of Hendricks v. Com., 75 Va. 934. In that case. George Hendricks, a citizen of Maryland, was indicted in the county court of Fairfax county for “unlawful fishing” in the Potomac river. He contended that he vras entitled to he tried in a court; in Maryland, and could not be tried in a court; of Virginia, because the law which he was charged with violating lmd been passed by the mutual consent and approbation of both, states for the regulation of fishing in the Potomac river, and because another law’, passed by like mutual consent, had given citizens of Maryland violating the first-named law the right of trial in a Maryland court. His contention was perfectly sound, and the Virginia court of appeals sustained this defense. The trial related exclusively to the Potomac river. It involved the question of the common right of fishery in that river, given by the seventh section of the compact of 1785. It also involved certain, laws and regulations passed by both states for the protection of that common right of fishing in the Potomac river, passed in pursuance of the first clause of section 8 of that compact. There was no question in the case concerning Pocomoke river. Hut the justice delivering the opinion of the
‘"‘By article 8, all laws and regulations which, may be necessary for the preservation of fish in the river Potomac or the river Pocomoke, within the limits of Virginia, shall be made with the mutual consent and approbation of both states. The effect of this article is to give to the state of Virginia concurrent jurisdiction with the state of Maryland over the Potomac from shore to shore, and over that part of the Pocomoke river which is within the limits of Virginia, to enact such laws, with the consent and approval of Maryland, as may he deemed necessary and proper for the preservation of fish in said waters.”
The court here refers to section 8 of the compact of 1785 without quoting it, although the mere quotation of it would have shown the fallacy of its language in respect to the Pocomoke river. So far as the Pocomoke river was concerned, the language of the court was obiter dictum, upon a point.not argued or even mentioned in tbe case; and Mr. Steele, in Ms opinion written for the governor of Maryland, before referred /to, very naturally'says:
“I think it may well he doubted whether the court of appeals of Virginia would consider what is there said about the Pocomoke river as a binding decision of that learned tribunal.”
New instances can be cited in wbicb tbe obiter of a court has .sown the seeds of greater mischief than this of the Virginia court of appeals in the Hendricks Case. It has instigated the depredations of Marylanders upon the private oyster properties of Pocomoke sound, of which the newspapers are full. It has brought these cases before this court. Yet, in using the language of the obiter part of its decision,-that court did not hold that Pocomoke sound was Pocomoke river; and its obiter has no application to the case at bar. Nor did the court say that the eighth section, in which -it stipulated in regard to a c imon right of fishery, “Included the right to take oysters in the Pocomoke river.”
The petitions of Wharton and Nelson must be disallowed, and tbe prisoners remanded to the custody of the sheriff of Accomack county.
Coming now to the consideration of the case of Marsh, it is to be observed that his offense is charged to have been committed on Hurley’s rock, which the indictment alleges to he within the limits- of Virginia, near .the line of boundary lying between Smith’s point, on the Potomac, and Watkins’ point.. The defense is that that part of the boundary is “doubtful,” and that the prisoner is entitled to the privilege granted by the tenth section of the compact of 1785, which stipulates that offenses committed by citizens of Maryland .within the limits of Virginia on that part of Chesapeake bay where the line of division between Smith’s point and Watkins’ point may he doubtful, shall be tried in a court of Maryland. As a matter of historical fact, no part of the line between Maryland and Virginia was at the date of the compact of 1785 more doubtful than the part between Smith’s and Watkins’ points, and no law could he
It is useless, in this opinion, to set out the careful language of the award in defining this line. The duty of the arbitrators was to make it cease to be doubtful, and to establish the line with precision and certainty. They performed that duty, and accomplished that purpose. The line is no longer doubtful, and the defense of the prisoner Marsh is inadmissible. It was competent for the Virginia court by which he was convicted to try him, and he must be remanded to the custody of the sheriff of Accomack county, Va.
