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quire that he shall not be permitted to assert his legal rights to the prejudice of the person whom his silence has misled. This doctrine has its natural limitations. Without expanding this inquiry, we shall content ourselves with a quotation from a decision of this court:

“The doctrine that where one stands by and sees another laying out money on property to which he himself has some claim or title, and does not give notice of it, he cannot afterwards, in equity and good conscience, set up such claim or title, does not apply to an act of encroachment on land, the title to which is equally well known or equally open to the notice of both parties, but the principle applies only against one who claims under some trust, lien, or other right not equally open and apparent to the parties, and in favor of one who would be misled or deceived by such want of notice.” Casey v. Inloes, 1 Gill. 502.

In the present case Schaidt had full knowledge of Blaul’s claim to the right of way, and knew that he did not intend to relinquish it. There is some evidence of a feeble objection made by Blaul to these obstructions. Our opinion, however, is not founded on this evidence, but on the general principle applicable to a case of this kind.

The decree of the circuit court required Schaidt to remove the wall and stable, and perpetually enjoined him from placing any other obstructions in the alley. We affirm it. Decree affirmed, with costs.

NOTE.

An injunction will be granted to restrain the erection of a building across a way of necessity that has existed for over40years, French v. Smith, (N. J .l 3 Atl. Rep. 130; and to restrain any encroachment one right of way, Nye v. Clark, (Mich.) 22 N. W. Rep. 57; or any other encroachment on the quiet enjoyment of an easement, Northern Pac. By. 00. v. Garland, (Mont.) 3 Pac. Rep. 134; Ware v. Allen, (Mass) 5 N. E. Rep. 629.

As to the rights of the owners of the servient estate, see Sutton v. Groll, (N. J.) 5 Atl. Rep. 903, and note.

The owner of a right of way over an alley is entitled to its unobstructed use for its full width, and to remove therefrom anything interfering with such use. Freeman v. Sayre, (N. J.) 2 Atl. Rep. 650; Dickinson v. Whiting, (Mass.)6 N. E. Rep. 92.

As to the right of forciblv removing obstructions to a right of way or other easement, see Smith v. Langewald, (Mass) 4 N. E. Rep. 573; Lachman v. Barnett, (Nev.) 3 Pac. Rep. 38; Hayes v. De Vito, (Mass) 4 N. E. Rep. 829.

As to what circumstances will entitle a private party to maintain an action to remove an obstruction from a highway, or to recover damages therefor, see Hogan v. Central Pac. By. 00., (Cal.) 11 Pac. Rep. 878, and note.

Hnss 12. Mom and others.
(Court of Appeats of Maryland. June 24, 1886.l
For report of this case, see 5 Atl. Rep. 540.

Separate opinion.

ALVEY, C. J. This case presents for decision questions of more than ordinary importance; and, while I fully concur with my brother judges in affirming the order appealed from, and in dismissing the bill, I prefer to state the reasons for my opinion, with some reference to the authorities bearing upon the questions involved.

The bill is filed by an owner of land bordering on navigable tide-water

v.6A.no.7—43

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of this state, seeking an injunction against the defendants, who are charged with interfering with and obstructing the use and enjoyment of what are alleged to be the rights of the plaintiff in the water in the immediate front of his land. It is conceded that the plaintiff is a non-resident of the state, and was such at the time of the alleged acquisition of the rights supposed to be violated by the defendants. It is charged in the bill that the plaintiff is owner of land bordering on the shores of two navigable streams, in which the tide ebbs and flows, and that, as riparian owner, he is entitled to the exclusive right of making improvements into the water in front of his land, and that such exclusive right embraces the right of laying Off oyster lots, and planting the same with oysters, in front of his land, for his own use and profit, to the exclusion of all other persons from such use of that locality; or, if such be not his strict rights as riparian owner according to the principles of the common law, and as those principles have been extended and defined by the act‘ of 1862, (chapter 129,) yet he alleges and contends that the former owner of the land acquired exclusive right to the 34 oyster lots mentioned and described in the bill, by a kind of presumption, secured to him by the act of 1874, (chapter 181, § 23,) by reason and virtue of the fact that such lots were actually located by and for such owner; and, the plainti having become owner of the land, he claims to hold all those lots as assignee of the former owner, to the exclusion of the right of the defendants, or any of them, to make any such locations of oyster lots in the water in front of his land as will in any way interfere with the lots previously located. It is not alleged or pretended that the lots claimed by the plaintiff have ever been seeded with oysters, but it is claimed tha it is the exclusive right of the plaintiff so to use them at his pleasure, and that his right in this respect has been interfered with and Obstructed by the defendants.

1. With respect to the question of the extent and nature of the rights that can or could have been exercised by the plaintiff, or those under whom he claims as riparian owner of the land bordering on tide-water, I do not propose to add much to what has been said in the opinion of the court. There is nothing in the terms of the act of 1862 (chapter 129) that would seem to justify, by any fair construction, the contention of the plaintiff whereby he asserts the right in the riparian owner to locate oyster lots, to an indefinite extent, in front of his land, to the exclusion of the right of all other persons to lay off oyster lots in such locality, as being in derogation of his proprietary rights. The mere right of accretion, when formed, whether by the recession of the water, or by natural causes or otherwise, as provided in the act of 1862, (chapter 129,) certainly does not embrace the right to stake off any number of oyster ‘lots in front of his land which may be, and in this case are, entirely disconnected with the shore line of the stream. Nor does the exclusive right to make improvements into the water in front of his land, conferred by another section of the act of 1862, embrace the right to lOcate, and appropriate to his own exclusive use, oyster lots in front of his land. The right given to improve out from the shore into the water was designed, manifestly, to embrace only structural improvements, such as wharfs, piers, warehouses, or the filling out from the shore, and reclaiming the land from the inundation of the water. Indeed, until this case, I am not aware that it has ever been supposed that this right of improving out into the water could be construed as conferring upon the (land-owner the exclusive privilege of appropriating and using the bed of the sea or river in front of his land for purposes of seeding and cultivation of oysters; and, to support such a claim as that now set up, the terms Of the statute should be plain and unmistakable. It is very clear, I think, that the legislature never intended, by anything in the act of 1862, (chapter 129,) to disturb, or in any manner restrict, the common right of fishery, further than the strictural improvements, when made, might be an obstruction to the exercise of that common right.

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2. It is contended, however, that, notwithstanding the claim and pre"tension of the plaintiff may not be sustainable under the provisions Of the act of 1862, (chapter 129,) defining the rights Of riparian Iowners, 'yet his claim to protection of rights acquired under the act of 1874 (chapter 181, § 23) is well founded. This latter act is one of a series of acts that have been passed, from time to time, within the last 20 years, for the protection of oysters, and the better regulation and encouragement of their cultivation and increase in the waters of this state. The section of the act upon which reliance is placed, provided “that the owner or owners of any land bordering on any Of the navigable waters of this state, the lines of which extend into and are covered by said waters, shall have the exclusive privilege of using the same for protecting, sowing, bedding, or depositing oysters or other she'll-fish within the lines of their own land; and any owner or owners of land lying and bordering upon any Of the waters of this state shall have power to locate and appropriate, in any of the waters adjoining his, her, or their lands, 'five acres, for the purpose Of protecting, preserving, depositing, bedding, 'or sowing oysters or other shell-fish; and that any other citizen of the state shall have power to locate and appropriate five acres in any waters in said state not located or appropriated: provided, 30 days’ notice in writing shall be given the owner or occupant of land bordering on said water proposed to be located, that the owner or occupant may have priority of claim; and, if they shall fail to locate or appropriate the water mentioned in said notice within thirty days after receiving the same, then it shall be open and free to any one under the provisions of this section,” etc.

The principal provisions of this section of theact of 1874 seem to have had their origin in the act of 1865, (chapter 181 ,§ 22,) passed for the purpose of regulating the taking of oysters in the waters Of this state. By that act the rights and privileges granted, of seeding and cultivating oysters, were, by express terms, confined to citizens of the state. But that express restriction appears to have been omitted in subsequent legislation upon the subject, though the provisions of section 22 of the act Of 1865-were substantially re-enacted, with some modifications and enlargements. ‘I‘lrisappears from the act of 1867 , (chapter 184, § 29,) the act of 1868, (chapter 406, § 27,) and the act of 1870, (chapter 364,§ 27.) It was also omitted in section 23, Of the act of 1874, (chapter 181,) except, possibly, the restriction may have been retained by implication; and i1 is under the provisions of this latter act, as we have seen, that the plaintiff makes claim. The provisions of this act of 1874 (chapter 181) have been repealed, and re-enacted with material changes and modifications, by subsequent acts, and especially in respect to the rights and privileges that were granted by the section 23. This will appear by reference to the acts of 1880, (chapter 198,) 1884, (chapter 518, § 24,) and 1886, (chapter 296, § 44.) And this being so, it is a settled principle that the judgments and decrees of this court, as well as those of the courts below, must be in accordance with the law as it may exist at the time of the judgment or decree rendered, except in those cases where rights have become vested under laws that have since been changed or repealed. Dag, v. Day, 22 Md. 530, 539; Montague v. State, 54 Md. 483; Steam-ship ()0. v. Jolifi'e, 2 Wall. 450; Memphis v. U. S., 97 U. S. 293. We must therefore look to the law as it now exists, as well as to the act of 1874, (chapter 181,) in order to determine the rights and standing of the plaintiff in court.

By section 24 of the act of 1874 (chapter 518) and section 44 of the act of 1886, (chapter 296,) which are the corresponding sections in those acts to section 23 of the act of1874, (chapter 181,) it is expressly pro vided that “any title or pretended title to more than five acres, or other wise contrary to this section, held or claimed by any person, is hereby declared to be fraudulent and void; and provided that no non-resident of this state shall be entitled to avail himself of the provisions Of this section, whether he be sole or part owner of any land in this state."

Whether it be competent to the legislature to restrict or deny to a non resident owner of land bordering on any of the tide-waters of this state and where the lines thereof extend into and are covered by the water the exclusive right of using his land, so extending into the water, for tht purpose of planting and cultivation of oysters therein, as would appea to be attempted by the acts of 1884 and 1886, in the sections before re ferred to, certainly admits of great doubt, to say the least of it. But tha is not the question presented by the bill in this case. Here the questior is as to the nature and extent of the supposed rights or privileges ac quired by the plaintiff, if any have been acquired by him, in the bed 0 navigable tidal streams, the title to which is conceded to be in the state The right to the 34 oyster lots in question, to the preclusion of the de fendants and all other persons, is claimed by the plaintiff, not as owne of the bed of the river, but, as we have seen, as assignees Of a party wh located the lots by virtue of what is supposed to have been a kind 0 pre-emptive right, secured to him by the statute law of the state. It therefore, such right in the owner of the adjoining land to the river ti locate or have located the 34 oyster lots in the bed of the river, and ti assign the same, cannot be maintained, then, clearly, there is not th slightest ground for the pretension set forth in the bill in this case.

It is not open to question that all the soil below high-water mark, withii ;he limits of this state, where the tide ebbs and flows, that is the subject )f exclusive propriety and ownership, belongs to the state, subject only :0 such lawful grants of such soil as may have been heretofore made. ‘But this soil is held by the state, not only subject to, but in some sense .n trust for, the enjoyment of certain public rights, among which is the :ommon liberty of taking fish, as Well shell-fish as floating fish.” Smith v. State, 18 How. 71, 75, and the cases there cited. The state holds the propriety of this soil for the conservation of the public rights of fishery ;hereon, and, representing the sovereign rights of the people, it may reg.ilate the modes of the enjoyment of the common right, and may adopt such rules and regulations as may be deemed best for the protection of that right, and for the encouragement of the cultivation and improvement of ;he fish—oysters as well as all other fish—in the waters within its jurisdiction. This right of protection and regulation by the sovereign power of the state is not only recognized by the common law, but is v'ounded in principles of general jurisprudence having for their object the oromotion of the common welfare of the people. Hence Vattlel, in his ;reatise on the Law of Nations, (book 1, c. 20, § 246,) lays it down as me of the settled principles of general jurisprudence and government ;hat the sovereign may make all needful laws to regulate the manner in which the common property may be used by the citizens. He says:

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“He [the sovereign] cannot, indeed, take away their right from those who lave a share in that property; but the care he ought to take of the public repose, ind ot‘ the common advantage of the citizens, gives him, doubtless, a right to :stablish laws tending to this end, and consequently to regulate the manner in which things possessed in common are to be enjoyed. This affair might give room for abuses, and excite disturbances, which it is important to the state ;0 prevent, and against which the prince is obliged to take just measures. [‘hus, the sovereign may establish wise laws with respect to hunting and fishng: forbid them in the seasons of propagation, prohibit the use of certain lets, and of every destructive method, etc. But, as it is only in the character )f the common father, governor, and guardian of his people that the sovereign ias a right to make those laws, 'he ought never to lose sight of the ends which he is called upon to accomplish by enacting them; and if, upon those illbjOCtS, he makes any regulation with any other view than that of the public welfare, he abuses his power.”

In the case of Garfield v. Coryell, 4 Wash. 371. an oyster law of the tate of New Jersey was brought under examination, and by the terms )f the statute the taking of oysters between certain periods of the year vas prohibited; and no person who was not, at the time, an actual iniabitant and resident of the state, was allowed to take oysters, at any ime, on board any vessel, etc. That statute was held to be valid, and he full and elaborate opinion of Mr. Justice WASHINGTON delivered in hat case has received the fullest sanction and approval of the supreme ourt of the United States upon more than one occasion. In the course f his opinion the learned judge said:

“Where private rights do not exist to the exclusion of the common right, hat of fishing belongs to all the citizens or subjects of the state. It is the roperty of all, to be enjoyed by them in subordination to the laws which reglate its use. They may be considered as tenants in common of this property;

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