*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 by the oath of three of the petitioners, alleging, in substance, that the board of shell fish commissioners had, on the 1st day of July, 1908, filed in the office of the clerk of the circuit court of Somerset county the charts of the natural oyster beds in that county and the adjacent waters, and a written report of the survey made by it of the natural beds, bars, and rocks, describing the same by courses and distances; that on one of the charts a large body of barren bottom, containing more than five acres of adjacent lands covered by water, had been included as a part of a natural bar, and describing said alleged barren bottom as:

petition was filed without the knowledge or consent of at least 14 of the petitioners, none of whom signed the petition. The prayers were that the order of 1908 be vacated, that the leases to the appellants be vacated and annulled, and that the appellants be enjoined from obstructing the appellees and all residents of the county in the exercise of the privilege of catching oysters on said bars. The board of shell fish commissioners answered, setting up the proceedings under the petition and the leases made in pursuance thereof. The appellants filed a plea of res adjudicata to so much of the bill as alleged that the lots of ground covered by the leases 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 the original petitioners, admitting that the line connecting a position six hundred yards 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. Answers were filed by 22 of the original petitioners, denying that the petition was filed without their knowledge and consent. It appears that in several instances the same defendant signed both classes of answers. The appellees had the plea of the appellants set down for argument, and the court overruled the plea, with leave to file an amended answer.

fish commissioners as St. Pierre Point."

[1] We have no doubt but that this was a proper ruling. It will be noticed that the relief prayed in the bill did not embrace any prayer that the bars, declared in the proceedings of 1908 to be barren, should be determined to be natural bars, but that the order declaring them to be barren should be vacated, because procured through fraud. The effect, upon such relief being granted, would have been merely to set aside the original order and the leases made in pursuance thereof. It was not proper, therefore, to raise any defense they might have had under the proceedings of 1908 by a plea thus presenting a question of law, but to have availed themselves of this defense by way of an answer. See Mill

And further alleged that no part of the section of Carmol Bar southeasterly of said straight line was a natural bed, bar, or rock, but that that section was composed entirely of barren bottom. The prayer of the petition was that that section of Carmol Bar might be declared to be barren bottom, and be excluded from the said survey of natural bars. The board of shell fish commissioners appeared, through its attorney, and filed an answer, admitting all of the allegations, and admitting specifically that the section of Carmol Bar alleged to be barren bottom was in fact barren bottom, and consenting that an order be passed as prayed in the petition. On the 5th day of August, 1908, the circuit court for Somerset county, "after hearing testimony," passed an order declaring that section of Carmol Bar, as described in the petition, to be barren bottom, and excluding it from the survey of natural oyster bars, beds, and rocks. In April, 1912, the appellants herein made application to the board of shell fish commissioners for leases to each of 30 acres of the land declared in the proceedings of 1908 to 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 acres and for a period of 20 years. On the 22d day of November, 1912, the appellees filed a bill against the original petitioners and the board of shell fish commissioners, alleging, in substance, that they were residents of Somerset county and directly and indirectly interested in the oyster industry of said county, and in the security and protection of their common right of fishery in the waters thereof; that the tracts leased to the appellants were natural bars, beds, and rocks; that the appellants applied for said leases well knowing they covered natural bars, but fraudulently pretended the bottoms applied for were barren; that by false and fraudulent representations the court and shell fish commissioners were imposed upon; that the

by the pleadings is whether the court had jurisdiction to pass the order of 1908, and, if so, were the proceedings free from fraud? The act conferring jurisdiction provided that the finding of the court should be final, and therefore this court would have no power to review the findings therein unless the lower court exceeded its jurisdiction. Of course a court of equity is always open when a charge of fraud is raised, and all the more so when it is charged that the court itself has been imposed upon by false representations, but the question then presented is, shall the act, the consequence of the fraud, stand? If the fraud is established, of course there can be but one answer to that.

[2-4] The appellees contend that the lower 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 of whom were those mentioned as the petitioners, signed a paper of the following tenor:

we are of the opinion that, when a petition, in the name of at least 24 residents of the county, is signed by attorneys of the court, the requirement that the petition should be filed in writing is met without the actual signing by the petitioners. The presumption is that the attorney has authority to act, and the court thereupon assumes jurisdiction. Henck v. Todhunter, 7 Har. & J. 275, 16 Am. Dec. 300; Kelso v. Stigar, 75 Md. 376, 24 Atl. 18; Benton v. Stokes, 109 Md. 117, 71 Atl. 532. The third reason assigned why that court did not acquire jurisdiction does not raise a jurisdictional fact at all. The amended plot, under the terms of the act, is not to be filed until after the finding of the court, and then is to be considered as conclusive evidence. The failure to file cannot vitiate the finding.

[5] We have examined all the testimony most carefully, to ascertain whether the charge of fraud has been so established as to induce a court of equity to set aside its decree, passed almost five years previously, and have reached the conclusion that fraud has not been shown in anything like the satisfactory and clear manner in which, under all of the decisions of this court, it must be shown in order to obtain the drastic relief prayed for in this bill.

"We, the undersigned tongmen, reside in Somerset county and are engaged in tonging for oysters in Manokin river and vicinity. We hereby affirm that the ground located between Carmen Point and San Pierre Point, which is now designated by the shell fish commission as natural oyster bar, is not properly designated as such, but should have been made subject for lease for oyster culture."

Carmen Point was admittedly meant for Carmol Point. This plain and unequivocal statement was prepared by the secretary of the commission at the request of one of the appellants, and circulated for signatures by another appellant. And although several of the signers testified they signed it under a misrepresentation of facts, yet it is difficult to see how there could be any such misrepresentation as to induce any one to attest to such a plain statement of fact as was contained therein, unless at the time of so signing they believed the truth of the written statement. Several of the petitioners testified that the misrepresentation consisted of the appellant, who circulated the paper, stating that he wanted to take up 10 acres for a dumping ground. While that appellant denied 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 have had bearing upon that phase. The fact that testimony could be and was produced to the effect that this section was a natural bar would not show that these appellants were guilty of fraud because they had alleged the contrary as a fact. That was the fact that

location which was later embodied in the petition. This writing was filed as an exhibit. ' It would be difficult to have a proceeding more open and frank than this one, from the record, appears to have been, and we therefore are of the opinion that the appellees have failed to establish fraud.

2. WATERS AND WATER COURSES (§ 1582*)-porations, and that permission for the makDRAINAGE AGREEMENTS-ACTION TO ENJOIN -ADMISSIBILITY OF EVIDENCE.

Appeal from Circuit Court of Baltimore was particularly defined. There was a reCity; Henry Duffy, Judge.

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

Since

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. That proceeding has not directors of the West Forest Park Company yet been brought to a conclusion. 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, 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 Corpora- tion 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 authorize any purchasers of lots included in their respective properties to connect with and use the drains in the manner and for the purposes specified.

The city of Baltimore, through its sewerage commission, has constructed a storm water drain under the bed of Liberty Heights avenue, and has instituted condemnation proceedings, under Act 1912, c. 117 and Act 1904, c. 349, against all the corporations interested in the sewerage systems described, with a view to acquiring the right to connect the city drain with that of the Forest Park 91 A.-10

In the trial of the case below the plaintiff proved its right to use the sewer of the two neighboring companies as an outlet for its own drain, and offered evidence tending to show that the probable flow from the city sewer, when added to the volume of drainage already receivable by the lower system, would overtax its capacity. The city then sought to sustain the defense stated in its answer by producing evidence that the discharge from its drain would not overcharge the system upon which the plaintiff is dependent, and by proving the agreement under which the city was authorized by the cor