105 Va. 463 | Va. | 1906
delivered the opinion of the court.
On the sixth day of June, 1904, the Cape Henry Syndicate, a corporation chartered under the laws of this State, and J. H. Buchanan filed their hill in the Circuit Court for Princess Anne-county, in which it is alleged that the Cape Henry Syndicate is the owner of a tract of land known as “Cape Henry,” extending from Lynnhaven Inlet to the Atlantic Ocean and down the coast for a distance of about three miles, together with all riparian rights and fisheries; that for more than fifty years there have been located along those shores fisheries and seine-hauls, which the owners of the shore have been accustomed to-operate or lease from year to year, and that in the year 1904, hy a contract in writing, the Cape Henry Syndicate had leased all of the said fisheries to J. H. Buchanan; that in the last thirty days one Charles Whitehead, an irresponsible and insol
Whitehead demurred to and answered the bill. He dis-claimed any knowledge of the title of the complainant corporation to the land claimed and called for strict proof thereof, but admitted that if the syndicate had title to the land it had exclusive control of it down to the low-water mark, but no further; he alleged that the soil under the waters opposite the land claimed by the syndicate and below low-water mark is owned By the State of Virginia, for the benefit of all the people of the Commonwealth, to be disposed of and regulated by the State in accordance with the will of the Legislature of the State; that by section 2086 of the Code of 1887, and amendments thereto, residents of the State desiring to fish with a pound net
An injunction was granted in accordance with the prayer of the bill, and-upon a hearing of the cause was made perpetual. From that decree this appeal was granted.
The right of the complainants, the appellees here, is based upon two grounds, as stated in their brief, viz:
(1) That the Gape Henry Syndicate is the grantee of an exclusive right of fishery in the waters of the Chesapeake Bay, .at the point in controversy, derived from the State under an
(2) That as an ordinary riparian owner of ancient seine-hauls in the waters of the Chesapeake and Lynnhaven Bays, between Cape Henry and Sewell’s Point, the syndicate is protected by the prohibition contained in section 2120 of the Code.
The Circuit Court held that the grant of the State, under which the Cape Henry Syndicate acquired title to the land in front of which the appellant’s pound net was located, did not ■convey any exclusive right of fishery below the ordinary low-water mark.
By section 1338 of the Code it is provided that “All the beds of the bays, rivers, creeks and shores of the sea within the jurisdiction of the Commonwealth and not conveyed by special grant or compact, according to law, shall continue and remain the property of the Commonwealth of Virginia, and may be used as a common by all the people of the State for the purpose of fishing and fowling and taking or catching ■oysters and other shell-fish, subject to the provisions of chapters '95, 96 and 97, and any future laws that may be passed by the General Assembly; . . .” and section 1339, subject to the provisions of section 1338, “extends the limits or bounds of the several tracts lying on the said bays, rivers, creeks and shores, and the rights and privileges of the owners of such lands, to low-water mark, but no further.” Taylor v. Commonwealth, 102 Va. 759, 47 S. E. 875, 102 Am. St. Rep. 865.
The conveyance made by the Board of Public Works to John M. Frazier and Thomas L. Hall, February 4, 1869, of the “Cape Henry” or “Desert Tract” of land, and under which the appellee syndicate derives title, does not attempt to convey, .and that board was not authorized to convey, an exclusive right
The contention of the appellant is that section 2120, which was passed by the General Assembly at its session of 1872-’73 (Acts 1872-’73, p. 174), is in conflict with subsequent legislation on the subject of fish and oysters, and is no longer in force.
The effect of that section was to prevent, in the waters designated by it, oyster planting or fishing in any manner which required the placing of stakes, which would interrupt or hinder-any person in- the exercise of his rights of fishery. Subsequent legislation was enacted from time to’time which greatly abridged the privileges theretofore exercised by riparian owners or occu
By section 2137 of Virginia Code, 1904, where reference is made to the various acts on the subject, it is provided that any riparian owner of land having a water front suitable for planting oysters, who shall desire to obtain a location therefor, may make application to the oyster inspector of the county or district in which the land lies, who shall assign him such location as the owner may designate in front of his land, not exceeding one-half acre, to be laid off by metes and bounds and marked with suitable stakes, and that the residue of such water front in excess of what is reserved for the riparian owner and the residue of the beds of bays, rivers and creeks, other than natural oyster beds or rocks, may be occupied by any resident for the purpose of planting or propagating oysters thereon; provided no assignment hereafter made shall exceed two hundred and fifty acres—except that no limit is made on the amount that may be assigned in Chesapeake Bay. That section further provides the steps necessary to be taken in order to perfect Such assignment, among which is, that each location assigned shall be marked with suitable stakes.
By section 2086 of the Code of 1904 it is provided that any resident of the State desiring to fish with a purse net, pound net, fyke net, with open bays or funnel-mouth gill nets, used for shad and herring fishing for market or profit; weir or other fixed device, and haul seines, hauled in other manner than by hand, in any of the waters of this Commonwealth, or waters within the jurisdiction of this Commonwealth, shall obtain a license therefor; and provides the manner in which such license may be obtained. The section further provides that certain waters shall be excepted from the operation of the act, which will be hereafter referred to.
Sections 2120 and 2086, as found in the Code of 1887 were not in conflict, but the changes made in the latter section since that Code went into effect render it impossible to reconcile them, as found in the Code of 1904. By the Code of 1887, section 2086 only authorized a license to be issued for fishing with a pound net, purse net, fyke or weir, in waters of the State “wherein and during the time within which Ssuch fishing is not declared to he unlawfulBut by section 2086, as amended by the act of March 1, 1900, which repeals all acts and parts of acts in conflict with that act, a license is authorized to be issued to fish with said appliances and others named, “in any of the waters of this Commonwealth or waters within the jurisdiction of this Commonwealth”; except that the act provides “that nothing in this act shall be construed to permit fishing in portions of York river prohibited by law and in seasons prohibited by law in said river, and in seasons prohibited by law in other sections of the State; and provided, also, that nothing in this act shall be construed to permit fishing in James river, ETansemond river, Elizabeth river, Chickahominy river, or within one mile of the mouth of either, or the tributaries of either, or within one mile of the mouth of Lynnhaven
The exemption of the York and other rivers named, in most of which fishing with such devices was then prohibited by special acts (see sections 2113a, 2114a, 2114d, Va. Code, 1904) would seem to clearly indicate the legislátive intent that no other waters of the Commonwealth were to be exempted from the operation of section 2086, as amended, than those named. While the maxim “Expressio unius esi exclusio alterius” is not of universal application, yet, as Broom says in his Legal Maxims, “Yo maxim of the law is of more general or uniform application, and it is never more applicable than in the construction and interpretation of statutes.” Broom’s Legal Maxims, pp. 663, 607, note.
The object of the Legislature in passing the act of March 1, 1900, as declared in its title, being to extend the provisions of section 2086, as amended, to all the waters within the jurisdiction of the Commonwealth, the exemption by the act of the waters of "certain named rivers from its operation, and the express repeal of all acts and parts of acts in conflict with that act, • would seem to indicate pretty clearly a legislative intent that said act should cover the whole subject and that all acts and parts of acts in conflict with it were to that extent repealed.
But even if section 2120 be considered as still in force, it does not follow that the appellees were entitled to the relief sought. Unless the location of the pound net of the appellant interrupted or hindered the appellees in their rights of fishery, placed, as it was, below low-water mark, the appellant is not shown to have trespassed upon the appellees’ rights.
The record shows that the location of the appellant’s net
We are of opinion, therefore, that tbe Circuit Court ought not to have granted tbe relief prayed for, but should have dismissed tbe bill.
Reversed.