This is a replevin suit instituted by the plaintiffs, Henry & Strong, citizens of Pcnnsjdvania, to recover about 8,000 logs from the possession of the defendant, Roberts, a citizen of Maryland, the logs being upon defendant’s island, called “Roberts’ Island,” in the Susquehanna river, in Harford county, Md., and appraised at $5,706. The defendant has tiled a special idea, in which he sots up that in June, 1889, the logs in controversy were cast by wind and tide upon the said island, and remained until November following', when they were taken away by the plaintiffs under the writ of replevin in this case; that by the Maryland acts of 1870 and 1872, and Maryland Code, art. 34, the defendant, at the time of the taking under the writ of replevin, had a lien on the logs to secure compliance with the terms of said acts, and had a right to the possession thereof. The Maryland act oí 1870, c. 229, was entitled “An act for the protection of the owners of land bordering upon the Chesapeake bay and its tributaries:” and the act of 1872, c. 258, was entitled “An act for the better protection of landowners bordering on the Chesapeake bay and its tributaries.” They have been codified in the Maryland Codo as parts of article 84, which treats of estrays, vessels adrift, and drift logs. The pertinent sections are as follows:
“Sec. 12. All persons claiming logs cast by wind and tide upon any shore bordering upon the Chesapeake bay and its tributaries are hereby prohibited from removing the same without the payment to tiro owner of the said shore the sum of twenty-five cents for each log so removed. Sec. 13. The owner of any shore upon which logs are so cast may advertise such logs by one insertion each week for three successive weeks in some newspaper published in the state of Maryland, of a public notice calling upon the owner of said logs to remove them alter the payment of t wonty-iive cents for each log so removed, and the cost of said advertisement in addition therewith. Sec. 14. If the said logs are not removed after such publication, the owner of any shore may sell such logs to the highest bidder by giving notice of his intention so to do by an additional advertisement for three successive weeks as aforesaid, mentioning the time and place of sale. Sec. 15. Any owner of a shore, so selling, shall be responsible for the excess of such sale over the sum of twenty-five cents for each log sold and the cost of the aforesaid advertisement and sale. Sec. 16. Mothing herein contained shall be construed to deny to the owner of any shore right to an additional compensation for special damages, such as the destruction of fences, the lodging of logs upon cultivated fields, or other similar injuries.”
Other provisions of the law enact penalties against any one removing logs without complying with the foregoing provisions and for willfully marking such logs, and that any judgment against the landowner for such logs shall be null and void, unless the claimant has actually paid the landowner the prescribed 25 cents for each log. The plaintiffs have demurred to the defendant’s special plea, and urge in support of their demurrer that the Maryland act is unconstitutional and void (1) because it
The authority of the state to legislate upon this subject is based upon its supposed right to enact regulations with regard to property cast upon the lands bordering upon the navigable waters of the state. The right to regulate highways, both the natural waterways and rivers, as well as roads, is a recognized and comprehensive branch of state sovereignty, usually classed as a part of the police power. Wharves and ferries, and the charges for the use of them, the building of dams and other structures on navigable streams, the manner in which logs and rafts shall be floated and guarded, the preservation of the shores, the construction of embankments and levees, are ail subjects of regulation by state legislation under its police power. Harrigan v. Lumber Co.,
The last ground of demurrer is based upon the contention that the Maryland act subjects the owner of the logs to the deprivation of his property without due process of law. The objection is taken that the proceedings prescribed by the statute to enable the landowner to sell the logs for the payment of the charges, after notice by publication, without any judicial determination of the amount payable, fails to amount to due process. It seems to me that in the present case it is not necessary to consider this question. If the state has a right to regulate the charges, it has a right to enact that the landowner upon whose 1'and the logs have boon cast shall have a lien on them for the prescribed charge, and that he may retain possession until the amount is paid. This is all that is enacted by the first section of tin; statute. The right to hold possession of a chattel until a charge which is a lien upon it is paid is a most common legal right. What proceedings to enforce such a lien resulting in a sale are sufficient to pass a good title, and to deprive the owner of his property by due process of law, is a separate question. In the present ease the defendant has done nothing, so far as appears, to enforce his lien. The logs remained in his possession upon his land from June to November, when the plaint!it's, refusing to pay the charges, took them under this replevin. There has been no attempt to deprive the owner of his property in the logs, and objection to the statutory proceedings for a sale are not proper to bo considered in this case.
Another suggestion under this head is that the compensation of 25 cents for each log is such an unreasonably excessive exaction, and that in some cases it would amount to depriving the owner of his property. To this it is sufficient reply that nothing appears in this case tending to show it to be a fact, and every presumption is in favor of the reasonableness of the legislative enactment. The demurrer is overruled.