President of the Delaware & Maryland Rail Road v. Stump

8 G. & J. 479

• Court: Court of Appeals of Maryland
• Decided: June 15, 1837
• Status: Published

Opinion

Spence, Judge,

delivered the opinion of the court.

The complainant in his bill charges, that heretofore John Stump, the father of this complainant, being seized in fee under grant by patent from the state of Maryland, of a tract of land called Perry Point, situate in Cecil county, at the mouth of the Susquehanna river, established upwards of twenty years since certain fisheries on said property, and at which by means of seines hauled over certain portions of said river, large quantities of shad and herring were annually taken.

That afterwards the said John Stump departed this life, having by his last will and testament executed in form and manner, sufficient to pass real estate, devised said estate, with all and singular its rights and advantages of fishery to your orator, under which said devise he entered, &c.

That on the second day of March, 1811, the said John Stump leased and demised to one Martha Coffield, of Cecil county, for the term of ninety-nine years, with covenants for the renewal thereof, eight acres of said estate, binding on the said public road, leading from the Susquehanna river to Ches-tertown, and along said river, &c.

The bill also charges the river Susquehanna to be a public navigable river, and that the erecting this wharf, and the employment of steamboats, will be destructive of the paramount interest of general navigation and fishing, and that any obstruction of those rights would be void.

In this cause it is the object of the complainant to establish his right to a several fishery, and he alleges, that the uninterrupted'use and enjoyment of the same for more than twenty yéars, is sufficient in law to raise the presumption of a grant of a several fishery. There is not to be found, in the bill any allegation of an exclusive possession and use of this fishery, by the complainant, and those under whom he claims, nor is it averred, that others did nót use and enjoy this right of fishing in the locus in quo, in common with this complainant. The bill charges this to be a public navigable river, where this several fishery is attempted to be established by presumption, and upon these allegations this court is called upon to decide, that a grant is to be presumed of an éxclusive fishery.

We know of no principle of law, and we have seen no adjudicated case, which sanctions such a conclusion. That a presumption can be raised of a grant of a several fishery in a public navigable river, from the fact of an individual using the same in common with, others, is at this day a strange doctrine: -and the bill in this case does not allege, that.the complainant, and those under whom he claims, had an exclusive possession : and it is the uniform language of the courts, that they will not presume a ■ grant of land under navigable ■ waters, to the owners of the adjacent soil, without evidence of long exclusive possession and use, to warrant such presumption. Palmer vs. Hicks, 6 John. Rep. 133. If it be law, that a court will not presume a grant of a several fishery in a public navigable river, without proof of long exclusive possession and use, it follows as an irresistible conclusion, ■that the omission to make such averment is fatal to this bill.

The allegation in the bill, that the erecting the wharf, and the employment of steamboats, will be destructive of' the paramount interests,of general navigation and fishing; and any grant destructive of those rights, though void, furnishes no ground for injunction; but it, the remedy by injunction, is applicable only to special injuries, in violation of private right; and individuals are not authorized to redress public grievances at their own suit, either at law or in equity.

In the above decision we do not desire to be considered as expressing the opinion, that if there had been an averment of an exclusive fishery from long adverse enjoyment, that by the laws of this state, a legislative grant might or might not be presumed; but leave that question open for future decision when it shall arise.

INJUNCTION DISSOLVED.