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(123 Md. 356)

set aside for fraud on mere proof that the land COX et al. v. BENNETT et al. (No. 26.) in fact constituted a natural oyster bed. (Court of Appeals of Maryland. May 12, 1914. Dig. Så 9, 10, 15; Dec. Dig. 8 7.*]

[Ed. Note.-For other cases, see Fish, Cent. Rehearing Denied June 26, 1914.)

Appeal from Circuit Court, Somerset Coun1. EQUITY ($ 430*)-DEFENSES-FRAUD.

Where a suit was instituted to set aside an ty, in Equity; Robley D. Jones, Judge. order declaring a specified section of a bar un "To be officially reported." der water to be barren bottom, and excluding Bill by George W. Bennett and others it from a survey of natural oyster beds, bars, against George A. Cox and others, to vacate and rocks, for fraud in obtaining the order, any defense that might have been presented in an order declaring a certain bar to be barren the original proceeding could only be raised by bottom, and excluding it from a survey of answer, and not by plea.

natural oyster beds, bars, and rocks under [Ed. Note. For other cases, see Equity, Cent. Code Pub. Civ. Laws, art. 72. Decree for Dig. $$ 1034-1047; Dec. Dig. § 430.* ]

complainants, and defendants appeal. Re2. FISH ($ 7*)-SHELL FISH-LAND UNDER versed and dismissed.


Argued before BOYD, C. J., and BURKE, Code Pub. Civ. Laws, art. 72, § 93, pro- THOMAS, URNER, STOCKBRIDGE, and vides for the classification of land under water CONSTABLE, JJ. for the propagation of oysters, etc., on a petition filed either for including bars within or exclud Alonzo L. Miles, of Salisbury (H. Fillmore ing barren bottoms from the lines of a sur- Lankford, of Princess Anne, on the brief), for vey, declaring that a plat designating the loca

appellants. James E. Ellegood, of Salistion shall be filed, or, in the absence of a plat, the location shall be designated with reasonable bury (Harry C. Dashiell, of Princess Anne, certainty by landmarks. Held, that where a pe- on the brief), for appellees. tition for the exclusion of certain barren bottoms contained a sufficient description of the land sought to be excluded, it was immaterial

CONSTABLE, J. This appeal involves the to the court's jurisdiction that no plat thereof validity of certain leases of oyster planting was filed.

grounds made by the board of shellfish [Ed. Note. For other cases, see Fish, Cent. commissioners to the appellants, under the Dig. $S 9, 10, 15; Dec. Dig. $ 7.*]

provisions of article 72 of the Public General 3. ATTORNEY AND CLIENT ($ 77*)-SURVEY OF Laws of Maryland. By said article the said

LAND UNDER WATER-EXCLUSION OF BAR- board was authorized and directed to have

made a survey of the natural oyster beds, Where a petition, in the name of at least bars, and rocks of the state, and to designate, 24 residents of a county for the exclusion of upon charts, the limits and boundaries of the certain alleged barren bottoms from a survey of natural oyster beds, bars, and rocks, as provided natural beds, bars, and rocks, as established by Code Pub. Civ. Laws, art. 72, $ 93, was sign- by the survey. By section 93, of said article, ed by attorneys of the court, it sufficiently com- Bagby's Code, it was provided that: plied with the statutory requirement that if

“If residents of any county, exceeding twentyresidents of any county, exceeding 24 in num- four in number, shail, within four months after ber, within four months after the filing of a sur, the filing of said survey and report in such vey and report, shall file in the circuit court county, file in the circuit court for said couna petition in writing, attested by some one or ty a petition, in writing, attested by the oath more of the petitioners, alleging that five acres of some one or more of the petitioners, allegor more of adjacent oyster beds, bars, or rocks ing that five or more adjacent acres of oyster have been omitted, or that any such quantity beds, bars or rocks, in such county, have been of barren bottoms have been included, etc., the omitted from such survey, or that five or more determined, without the actual signing of the acres of barren bottoms have been included in

and petition by the petitioners.

same by a plat, or as near as may be with rea[Ed. Note.-For other cases, see Attorney and sonable certainty by such landmarks as will Client, Cent. Dig. $S 88-90, 132, 136, 148, 149; locate and designate the beds alleged to have Dec. Dig. $ 77.*]

been omitted or included, a judge of the cir4. FISII (8 7*)--SHELL FISH-LAND UNDER cuit court for the said county, after due notice

WATER-NATURAL OYSTER BEDS, BARS, AND given to the board of shell fish commissioners, ROCKS-BARREN GROUND-SURVEY-AMEND- shall proceed to hear testimony and decide the ED PLAT-FILING.

case, as provided in the succeeding section.” Where certain alleged barren bottoms were The succeeding section, 94, provided that: severed from a survey of natural oyster beds, bars, and rocks, as authorized by Code Pub. under the preceding section, the judge shall de

"Upon hearing a case presented by petition Civ. Laws, art. 72, $ 93, the fact that an termine the question whether the ground reamended plat, showing the changes in location ferred to in said petition is a natural bed or by reason of such order, was not filed in the barren bottom, and his finding on said question office of the clerk, as required by section 94, shall be final, and shall be entered upon the was not a jurisdictional defect.

records of the board of shell fish commissioners [Ed. Note.-For other cases, see Fish, Cent. in their office in the city of Annapolis, and Dig. SS 9, 10, 15; Dec. Dig. $ 7.*]

properly marked on the copies of the plats as

hereinbefore required." 5. FISH ($ 7*)–OYSTER BEDS-ORDER-VACATION-FRAUD-EVIDENCE.

Provision was therein made for the leasing Where an order severing certain alleged of the barren bottoms for the purpose of

a beds, bars, and rocks, was passed after full and oyster culture. Within four months after the open hearing, on ample testimony that the land filing of the said survey in Somerset county, was barren, the order could not thereafter be 37 residents of that county filed a petition

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

in the circuit court for that county, attested petition was filed without the knowledge or by the oath of three of the petitioners, alleg- consent of at least 14 of the petitioners, none ing, in substance, that the board of shell of whom signed the petition. The prayers fish commissioners had, on the 1st day of were that the order of 1908 be vacated, that July, 1908, filed in the office of the clerk of the leases to the appellants be vacated and the circuit court of Somerset county the annulled, and that the appellants be enjoined charts of the natural oyster beds in that from obstructing the appellees and all resicounty and the adjacent waters, and a writ- dents of the county in the exercise of the ten report of the survey made by it of the privilege of catching oysters on said bars. natural beds, bars, and rocks, describing the The board of shell fish commissioners ansame by courses and distances; that on one swered, setting up the proceedings under the of the charts a large body of barren bottom, petition and the leases made in pursuance containing more than five acres of adjacent thereof. The appellants filed a plea of res adlands covered by water, had been included as judicata to so much of the bill as alleged a part of a natural bar, and describing said that the lots of ground covered by the leases alleged barren bottom as:

were natural bars, and an answer, under "All that section of Carmol Bar as laid down oath, supporting the plea and especially denyon said chart No. 7 and described in said reporting the fraud. Answers were filed by 12 of of survey which lies southeasterly of a straight line connecting a position six hundred yards the original petitioners, admitting that the

northwest by west of Carmol Point and a posi-bottoms, declared to be barren by the 1908 tion five hundred yards west northwest of a proceedings were natural bars, and denying point known to these petitioners and the gen- that they ever admitted, or intended to eral public as well as to the said board, of shell admit, that all of said bottoms were barren. fish commissioners as St. Pierre Point."

And further alleged that no part of the sec- Answers were filed by 22 of the original tion of Carmol Bar southeasterly of said petitioners, denying that the petition was filstraight line was a natural bed, bar, or rock, ed without their knowledge and consent. It but that that section was composed entirely appears that in several instances the same of barren bottom. The prayer of the petition defendant signed both classes of answers. was that that section of Carmol Bar might The appellees had the plea of the appellants be declared to be barren bottom, and be ex. set down for argument, and the court overcluded from the said survey of natural bars. ruled the plea, with leave to file an amended The board of shellfish commissioners ap- answer. peared, through its attorney, and filed an [1] We have no doubt but that this was a answer, admitting all of the allegations, and proper ruling. It will be noticed that the readinitting specifically that the section of Car- lief prayed in the bill did not embrace any mol Bar alleged to be barren bottom was in prayer that the bars, declared in the proceedfact barren bottom, and consenting that an ings of 1908 to be barren, should be determinorder be passed as prayed in the petition. Oned to be natural bars, but that the order dethe 5th day of August, 1908, the circuit court claring them to bé barren should be vacated, for Somerset county, “after hearing testi- because procured through fraud. The effect, mony," passed an order declaring that section upon such relief being granted, would have of Carmol Bar, as described in the petition, to been merely to set aside the original order be barren bottom, and excluding it from the and the leases made in pursuance thereof. It survey of natural oyster bars, beds, and was not proper, therefore, to raise any defense rocks. In April, 1912, the appellants herein they might have had under the proceedings made application to the board of shell fish of 1908 by a plea thus presenting a question commissioners for leases to each of 30 acres of law, but to have availed themselves of of the land declared in the proceedings of 1908 this defense by way of an answer. See Millto be barren bottom, for the purpose of culti- er's Equity, § 147. vating oysters. In May, 1912, leases were reg. In our opinion the only question presented ularly granted to them each for a tract of 30 by the pleadings is whether the court had acres and for a period of 20 years. On the jurisdiction to pass the order of 1908, and, 22d day of November, 1912, the appellees filed if so, were the proceedings free from fraud? a bill against the original petitioners and the The act conferring jurisdiction provided that board of shell fish commissioners, alleging, in the finding of the court should be final, and substance, that they were residents of Somer- therefore this court would have no power to set county and directly and indirectly in- review the findings therein unless the lower terested in the oyster industry of said court exceeded its jurisdiction. Of course a county, and in the security and protection of court of equity is always open when a charge their common right of fishery in the waters of fraud' is raised, and all the more so when thereof; that the tracts leased to the appel- it is charged that the court itself has been lants were natural bars, beds, and rocks; imposed upon by false representations, but that the appellants applied for said leases the question then presented is, shall the act, well knowing they covered natural bars, but the consequence of the fraud, stand? If the fraudulently pretended the bottoms applied fraud is established, of course there can be for were barren; that by false and fraudu- but one answer to that. lent representations the court and shell fish [2-4] The appellees contend that the lower commissioners were imposed upon; that the court had not jurisdiction for three reasons:

(1) Because the petition contained insuf- the petition had asked the court to determine ficient location; (2) because it was not signed in an open proceeding, and which that court by the petitioners; and (3) because the had so determined as recited in its order "afchanges in location were not marked upon the ter hearing testimony.” To have the court chart, and the amended chart not filed in the say, because certain witnesses now testify office of the clerk of the court. The first of that this section is contrary to what the court the reasons is, in our opinion, without merit. previously found it to be, that that in any way Section 93 of article 72, quoted in full above, gives ground or reason for imputing fraud provides that upon a petition being filed, to those who previously alleged, and now either for including bars within or excluding support, the court's original view, would be barren bottoms from the lines of the sur-to permit fraud to be shown in a way difvey, a plat designating the location shall be ferent from any adjudged case that has filed, or in the absence of a plat, the loca- come to our attention. But we are not to tion shall be designated with reasonable cer- be understood as saying that fraud must tainty by landmarks. A plat was not filed, necessarily be shown by direct evidence alone. but the designation contained in the petition It appears from the evidence that before was a full compliance with the alternative the petition was presented to the court 40 requirement. As to the second contention, residents of Somerset county, practically all we are of the opinion that, when a petition, of whom were those mentioned as the petiin the name of at least 24 residents of the tioners, signed a paper of the following tencounty, is signed by attorneys of the court, or: the requirement that the petition should be

“We, the undersigned tongmen, reside in Somfiled in writing is met without the actual erset county and are engaged in tonging for signing by the petitioners. The presumption oysters in Manokin river and vicinity. We is that the attorney has authority to act, and hereby affirm that the ground located between the court thereupon assumes jurisdiction. now designated by the shell fish commission as

Carmen Point and San Pierre Point, which is Henck v. Todhunter, 7 Har. & J. 275, 16 Am. natural oyster bar, is not properly designated as Dec. 300; Kelso v. Stigar, 75 Md. 376, 24 Ati. such, but should have been made subject for 18; Benton v. Stokes, 109 Md. 117, 71 Atl. lease for oyster culture.” 532. The third reason assigned why that Carmen Point was admittedly meant for court did not acquire jurisdiction does not Carmol Point. This plain and unequivocal raise a jurisdictional fact at all. The amend-statement was prepared by the secretary of ed plot, under the terms of the act, is not to the commission at the request of one of the be filed until after the finding of the court, appellants, and circulated for signatures by and then is to be considered as conclusive evi- another appellant. And although several of dence. The failure to file cannot vitiate the the signers testified they signed it under a finding.

misrepresentation of facts, yet it is dif[5] We have examined all the testimony ficult to see how there could be any such mismost carefully, to ascertain whether the representation as to induce any one to attest charge of fraud has been so established as to such a plain statement of fact as was conto induce a court of equity to set aside its tained therein, unless at the time of so signdecree, passed almost five years previously, ing they believed the truth of the written and have reached the conclusion that fraud statement. Several of the petitioners testihas not been shown in anything like the sat-fied that the misrepresentation consisted of isfactory and clear manner in which, un- the appellant, who circulated the paper, statder all of the decisions of this court, it must ing that he wanted to take up 10 acres for be shown in order to obtain the drastic re- a dumping ground. While that appellant delief prayed for in this bill.

nied having stated such a reason, yet if The greater part of the testimony is up- we assume he did, one is met with the fact on the question, of whether the lots in ques that at that time, under the law then in eftion are composed of natural bars or barren fect, one person was limited to a lease of bottoms. This was not the point to be de- 10 acres. The testimony establishes that termined in the inquiry. That had been set- shortly after the filing of the survey one of tled by the proceedings of 1908, and was to the appellants visited the commission at its be considered as final, unless the charge of office in Annapolis, at a full meeting of the fraud was established, and in that event it board, and informed the members of the miswas an open question to be later established take he thought had been made; that he as a fact by appropriate proceedings. Was was advised by them to file the petition as or not the action of the appellants so tinged the only way of correcting the survey. It with fraud in those proceedings as to viti- also appears that the engineer of the comate the finding therein, was the question mission gave in writing the description of the to be determined, and the testimony should location which was later embodied in the fiehave had bearing upon that phase. The fact tition. This writing was filed as an exhibit.' that testimony could be and was produced to It would be difficult to have a proceeding the effect that this section was a natural bar more open and frank than this one, from the would not show that these appellants were record, appears to have been, and we thereguilty of fraud because they had alleged the fore are of the opinion that the appellees contrary as a fact. That was the fact that have failed to establish fraud.

We do not deem it necessary to prolong this Argued before BOYD, C. J., and BRISCOE, opinion with a discussion of the constitution- BURKE, THOMAS, PATTISON, URNER, al questions raised, other than to say we do STOCKBRIDGE, and CONSTABLE, JJ. not think any objection well taken, for the

Robert F. Leach, Jr., Asst. City Sol., and constitutionality of this class of legislation Robert P. Graham, both of Baltimore (S. S. has been recognized since Jackson v. Bennett, Field, City Sol., of Baltimore, on the brief), 80 Md. 76, 30 Atl. 612.

for appellant. Wm. Pepper Constable and Decree reversed and bill dismissed; with Thomas G. Hayes, both of Baltimore, for costs to the appellants.


(123 Md. 290)

URNER, J. The Forest Park Company is MAYOR AND CITY COUNCIL OF DALTI- the proprietor of a residence development in MORE et al. V. FOREST PARK CO. the suburbs of Baltimore city. The properOF BALTIMORE CITY. (No. 38.)

ty included in the project consists of a tract (Court of Appeals of Maryland. April 9, 1914.) of land containing about 42 acres, bounded by 1. WATERS AND WATER COURSES ($ 158*)– Liberty Heights avenue on the south and by CONSTRUCTION OF DRAINAGE AGREEMENT- Garrison avenue on the east. An important RIGHTS OF CITY-INJUNCTION.

feature of the development was the establishPlaintiff company, engaged in residence de- ment of a sewerage system. As the natural velopment in defendant city, entered into a written contract with two other development slope of the ground was towards the south, companies, reciting that plaintiff had construct it was necessary to conduct the drainage in ed a storm and waste water drain, and that a that direction. On the southern side of connection with the lower drainage system of the other two companies was subject to the Liberty avenue were other suburban developterms of the agreement, and for the sole purpose ments under the ownership of the Park Land of providing a drain for storm and waste water Corporation and the West Forest Park Comoriginating upon the property of plaintiff company. The two last-mentioned corporations pany the area of which was particularly de- had jointly installed a system of concrete fined, that no other property should be permitted to drain through, over, or under the prop- and terra cotta drains, extending southwarderty of the plaintiff company, into its drains, ly through their properties from Liberty and that no one should connect with or use Heights avenue to an outlet in an open water such drains without the written consent of the other two companies and a resolution by plain- course. The Forest Park Company, in contiff company authorizing the same.

Thereafter structing the sewerage system for its propdefendant city entered into an agreement with erty north of the avenue, depended upon the the other two companies, authorizing it to con- use of the drains and outlet of the two nect a drain connecting with the system below the point where it was joined by plaintiff's companies operating to the south. An agreedrain. Held, in an action to enjoin the city ment for such user was effected upon terms from acting upon such permission, on the ground which are set forth in an instrument dated that the system was not of sufficient capacity June 1, 1909, executed by the three companies to carry the additional flow, and that if overcharged the utility of plaintiff's system would and duly acknowledged and recorded. be destroyed, that the agreement did not pre It was recited in the written agreement vent the other companies from permitting a con- that the Forest Park Company had connection by the city, or require the consent of structed a concrete storm and waste water plaintiff company thereto, and hence that injunction would not lie.

drain along and across the Liberty turnpike [Ed. Note.-For other cases, see Waters and road (now know as Liberty Heights avenue) Water Courses, Cent. Dig. $$ 184, 186–188; to connect with the drainage system south Dec. Dig. § 158.*]

of the highway belonging to the other cor2. WATERS AND WATER COURSES ($ 15812*)- porations, and that permission for the mak


In such action, where the defendant city es given upon the understanding that its use tablishes a right to connect with the drain, its by the Forest Park Company should be subevidence, offered to meet plaintiff's contention ject to the terms of the agreement, and “for that the utility of its system would be thereby the sole purpose of providing a drain for the destroyed, to the effect that the system was of disposal, carriage and emptying of the storm plaintiff's right, was material and admissible. and waste water as now used that would

[Ed. Note. For other cases, see Waters and originate upon the property of the party of Water Courses, Cent, Dig. & 189; Dec. Dig. 8 the third part (the Forest Park Company! 15872.*]

and of George R. Webb," the area of which Appeal from Circuit Court of Baltimore was particularly defined. There was a reCity; Henry Duffy, Judge.

cital also that: "To be officially reported."

"It was understood and agreed between the Action for injunction by the Forest Park parties hereto that no other property except

as aforesaid, should be permitted to drain · Company of Baltimore City against the through, over or under the property of the said Mayor and City Council of Baltimore City Forest Park Company or of George R. Webb and the Sewerage Commission of Baltimore as aforesaid, into its said storm and waste waCity. Judgment for plaintiff, and defendant ter drains, nor permission granted any other

person or body corporate whatsoever except appeals. Reversed and remanded.

as aforesaid, to connect with, use or drain in

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

to said storm and waste water drains without | Company just above its junction with the the written consent of the board of directors sewer belonging to the developments south of the Park Land Corporation of Baltimore city and the written consent of the board of of the highway.

of the highway. That proceeding has not directors of the West Forest Park Company yet been brought to a conclusion. Since through whose lands the aforesaid storm and it has been pending the city and its sewerwaste water drains are extended and a resolution passed by the board of directors of the age commission have entered into an agreeForest Park Company, authorizing the same." ment with the companies owning the lower

After a further statement in the preamble, drainage system by which the city was to the effect that it was to the interests of authorized to connect its drain directly the parties that their rights with respect with the system below the point where it to the drains should be accurately defined, was joined by the drain of the Forest Park the agreement proceeded to formally provide, Company; all the questions involved in in consideration of the premises, and of the the condemnation suit being reserved withsum of $1 paid by each of the parties to the out prejudice for future judicial determiother, that the Forest Park Company, its suc- nation. The Forest Park Company seeks cessors and assigns, should have and enjoy, to have the city restrained from acting at all times thereafter, the right to maintain upon the permission thus secured, and it has and use the connection existing between its filed the present bill for that purpose. The concrete storm and waste water drain with bill objects to the proposed connection on the the system of drainage to the south for the ground that the drains of the companies opsole and exclusive purpose of carrying and erating to the south are not of sufficient cadisposing of the storm and waste water orig. pacity to carry the flow from the city drain in inating upon its property and that of George addition to that contributed by the Forest R. Webb, as previously described. It was Park and other properties originally intended further agreed that the Forest Park Com- to be served, and that if the conduits should pany, its successors and assigns, should “not be allowed to be thus overcharged, the efpermit nor allow any other person or body ficiency and utility of the plaintiff's sewerage corporate, except as aforesaid, to connect system would be destroyed. It is stated in with, use, or drain any other property the bill that the right of the city to connect through, over or under its property, or in any with the drain of the plaintiff or of the other other manner, into its said storm and waste companies, and the compensation to be paid water drains as now or hereafter construct for such a privilege, are questions which can . ed, without the consent in writing of the properly be decided in the pending condemnaboard of directors of the Park Land Corporation suit. The answer of the city and the tion of Baltimore city and the West Forest sewerage commission avers that the drain Park Company, through whose lands the which has been constructed by the commisaforesaid storm and waste water drains are sion under the bed of Liberty Heights avenue, extended, and a resolution of the board of and for which an outlet is desired through directors of the Forest Park Company of the existing sewers of the development comBaltimore city, authorizing the same.” panies, was intended for the relief of objecThere was a stipulation that if the Forest tionable drainage conditions in that vicinity, Park Company, its successors or assigns, and that the capacity of the drain furnishing should violate any of the terms or conditions an outlet to the south is more than sufficient of the agreement, “or allow any person or to accommodate the flow from the city sewer body corporate, except as aforesaid, to drain and the present tributary systems as well, their property through, over or under its and that no damage or injury would result property, or in any other manner, into any of to the plaintiff from the connection which the its storm or waste water drains,” the other bill seeks to prevent. The right of the city to contracting companies should have the right, connect its drain with the sewer of the upon 30 days' notice, to discontinue the con- Park Land Corporation and the West Forest nection between the two systems. The final Park Company while the condemnation proprovision in the agreement was to the effect ceedings are pending is predicated in the that the Forest Park Company and George answer on the agreement to which we have R. Webb, and those who succeeded them in already referred. title, should have the right and privilege to In the trial of the case below the plaintiff authorize any purchasers of lots included in proved its right to use the sewer of the two their respective properties to connect with neighboring companies as an outlet for its and use the drains in the manner and for the own drain, and offered evidence tending to purposes specified.

show that the probable flow from the city The city of Baltimore, through its sewer- sewer, when added to the volume of drainage age commission, has constructed a storm already receivable by the lower system, water drain under the bed of Liberty Heights would overtax its capacity. The city then avenue, and has instituted condemnation pro- sought to sustain the defense stated in its ceedings, under Act 1912, c. 117 and Act 1904, answer by producing evidence that the disc. 319, against all the corporations interested charge from its drain would not overcharge in the sewerage systems described, with a the system upon which the plaintiff is dependview to acquiring the right to connect the ent, and by proving the agreement under city drain with that of the Forest Park / which the city was authorized by the cor

91 A.-10

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