Holt v. Follett, 65 Tex. 550

Holt v. Follett

65 Tex. 550 | Tex. | 1886

Willie, Chief Justice.

Unless it was necessary that Follett should stake off the oyster-beds claimed by him, in order to give himself exclusive ownership of them, the entire case of the appellant, as presented to this court, falls to the ground.

The act of March 8, 1879, “for the preservation of oysters and oyster-beds, and for protecting the rights of persons to the same, and affixing penalties,” seems to provide for four classes of cases :

1. Where the cove, bayou, or lake is not navigable, and runs through the lands of any person, such person has the exclusive right to plant or sow oysters in such stream or body of water.

2. Where land borders upon such lake, bayou, or cove, the owner has an exclusive right to sow or plant oysters to the center or middle of the water.

3. Where the lake, bayou, or cove is public, navigable water, any person owning land bordering upon it has the exclusive right to locate oyster-beds for a distance of one hundred yards from low-water mark.

4. Where a person wishes to obtain a location for planting oysters within any public, navigable waters, he can do so by designating a square space, not exceeding two hundred yards square, intended by him for such purpose, by not less than four stakes planted at each corner of the reservation.

It is clear that the provisions, as to this last class, are not intended to apply to any of the preceding, for many reasons. In the first place, its provisions apply only to navigable waters. In the next place, *553they cannot be referred to any waters, except such as lie beyond a distance of one hundred yards from the shore, for all persons are expressly prohibited from locating any private oyster-beds in public, navigable waters, within that distance from low-water mark. And, again, no one can, by staking, derive a right to more than two hundred yards of square space, whereas, the law expressly gives to the riparian proprietor an exclusive right for the whole distance his land fronts upon the water. The necessity, too, of designating, by stakes, the space claimed in water distant from the shore is very apparent. It must be marked in some way to designate it, so that the claimant may know where his beds are located, and others may be able to avoid trespassing upon them. But the space intervening between low-water mark and a line one hundred yards distant therefrom, is easily ascertained ; the riparian owner has no difficulty in knowing the extent of his privilege, and all others have fair warning that they must keep beyond the designated limits. Should the owner of the land wish to secure an additional right beyond these limits, he must stake off his claim, of no more than two hundred yards square, like anyone else; but, so long as he is content with what the law gives him by virtue of his riparian ownership, he is protected by the imaginary line running one hundred yards from low-water mark along the whole length of his shore.

These views lead us to the conclusion that Follett was the true and legal owner of the oyster-beds, upon which the appellant trespassed, and for taking oysters from which, the latter was subject to a criminal prosecution. The whole weight of the testimony went to show that the cove in which these oysters were bedded was not public, navigable water. But, admitting that it was, the uncontradicted evidence showed that the oysters were taken within less than one hundred yards from land bordering upon the cove, which was owned by the appellee.

These oyster-beds were, under the statute, the exclusive property of Follett, and the taking of oysters from these beds, without his permission, was theft, by the very terms of the statute. The statute does not require that the taking should be done secretly, and the open and defiant manner in which the appellant trespassed upon the property of Follett does not, therefore, lessen his offense.

The appellee, under the uncontroverted facts of the case, had not only probable but just cause for ■ instituting against appellant the prosecution which formed the ground of this action, and, under any proper charge, the jury were bound to find for the defendant. There is nothing in any charge of the court, or any refusal of the *554court to instruct for the appellant, of which he can complain. As Follett had probable cause for prosecuting Holt, it matters not whether he consulted an attorney or not, or what advice he received from the attorney. The advice he received was correct, no matter whether stakes were planted or not, and he was justified in acting upon it.

As to the principle contended for, that the prosecution was necessarily malicious, because instituted for the purpose of testing whether or not the appellee had exclusive ownership of the oyster-beds, counsel mistakes the law upon that subject, as also the decisions of this court, to which he refers as authority. In order to sustain a suit for malicious prosecution, both malice and probable cause must combine. The former may be inferred from the latter, but it is not a legal inference. Where want of probable cause is first shown, then malice may be established by proof that the prosecution was not commenced for any other purpose except to subserve the private interests of the prosecutor. But, if probable cause is shown, no matter what evidence of malice may be introduced, the suit must fail. The two elements necessary to make out the case have not been shown to exist. The court gave the charge asked by the appellant on this subject, making it, in effect, essential, however, that want of probable cause should have been proved. As the proof was wholly lacking in this respect, and the positive and undisputed evidence was all to the contrary, the verdict was correct, and the judgment is affirmed.

Affirmed.

[Opinion delivered February 23, 1886.]