Smoot Sand & Gravel Co. v. Columbia Granite & Dredging Corp.

*385 PattisoN, J., delivered the opinion, of the Court. John Swift, the owner, in fee simple, of a farm in P’rince George’s, County, Maryland, containing 91.6 acres called "Ferry Farm,” and situated on the Potomac River, caused the same to be sub-divided into seven lots, numbered one to seven inclusive. Lots 1, 6 and 7 border upon the Potomac River, while the others are located some distance therefrom,. John Swift, with his wife, by deed, dated December 13, 1913, conveyed in fee simple lot 1 to Charles Swift, lot 6 to William F. Swift and George Swift, trustees, and lot 7 to Mary Kintz; and by other1 deeds of the same date he conveyed lots, 2, 3, 4 and 5 to the respective grantees therein named, but as these last named lots are not in any way involved in, or connected with, the controversy under consideration, no further reference will bei made to them. The deeds for lots 1, 6 and 7 were duly executed, acknowledged, and recorded among! the land records of Prince George’s County, Maryland on the sixth day of January, 1914, and each of them described the land thereby conveyed by metes and bounds,, courses and distances. Mary A. Kint.i and husband, thereafter, by deed dated September 7th, 1920, conveyed lot 7 to Wilmer E. Swift, in fee simple, which deed was duly executed, acknowledged .and recorded among said land records. Lots; 1, 6 and 7, which we have said border upon the Potomac River, constitute the whole front thereon of “Perry Farm.” . Thereafter on July 1st, 1921, George, William E., Charles H., and Wilmer E. Swift, by an instrument of writing called a lease, did “grant and convey unto the party of the second part (the appellee, the Columbia Granite and Dredging Corporation), its successors or assigns, for the term, of five years from the 24th day of June, 1922, the exclusive right, to- dig, dredge and carry away sand, gravel and other like materials from that portion of the bed of the P'otomae River up to low water mark, extendi rig and lying in front of the property of the party of the first part (the lessors or grantors) situated in Prince George’s County, State; of Maryland, said property *386 being known as ‘Ferry Farm,’ * " * together with the right to exercise 'any and all privileges with respect hr dredging and carrying away materials from the said portion of the bed of the Potomac River which the parties of the first part, their heirs or assigns, have or may have by virtue of the ownership of the said tract of land or otherwise,” with the further privilege to the lessees or grantees “to renew the within lease upon the same terms and conditions upon the expiration of the said term of five years for a further term of three or five years.” After the execution of the purported lease, the appellee started to dredge and remove sand and gravel from the bed of the river a,t the place described in said lease or writing, and continued to dredge and remove sand and gravel therefrom, when, on the 14th day of April, 1923, the appellant, the Smoot Sand and Gravel Corporation, by valid conveyances from the owners thereof at that time, became seised and possessed, in fee simple, of the “Ferry Farm,” including lots 1, 6 and 7 which, as we have said, constitute the entire front of said farm on the Potomac River; and after becoming so seised and possessed of said farm, the appellant, by virtue of its supposed riparian rights, dredged and removed and continued to dredge and remove sand and gravel from the river bed between low water mark on the shores of lots 1 and 7 and the outer line of the channel of said river, whereas the exclusive right to dredge and remove sand and gravel there^ from had been granted by the so-called lease to the appellee, and the appellee, to prevent the appellant from further ■interfering with its alleged right, filed its bill in this case alleging the facts stated and asking that the appellant corporation be enjoined “from digging, dredging, taking or removing any sand or gravel, or both, in or upon the said bed or bottom of the said Potomac River opposite said lots 1 and 7 of said ‘Ferry Farm,’ ” as described in the bill. The defendant corporation filed its answer to the bill, in which it admitted the material facts alleged therein. The case was then heard upon bill and answer and a decree was *387 passed granting the injunction its prayed. From that decree the defendant' has appealed to this Court. The plaintiff based its claim to an injunction upon its alleged exclusive right to dredge and remove sand and gravel from the bed of the river off the shore of the “Ferry Farm,” .at the place named in the bill, granted to it by George Swift and others under the aforesaid instrument of writing called a lease, executed by them on said first day of July, 1921, at which time they were the owners of lots 1, 6- and 7 of the “Ferry Farm.” The power and authority of said grantors or lessors to grant such right was conferred upon them, as claimed by the plaintiff, by section 433 of article 27 of the Code of Public General Laws, of this State, which is as follows: “It shall not he lawful for any person to dig, dredge, take and carry away any sand, gravel or other material from the hed of any of the navigable rivers, creeks or branches of this State, under a penalty of a fine not exceeding three hundred ($300) 'dollars, and confiscation of the boat, vessel, dredge and implements used in digging, dredging and carrying away such sand, gravel or other material, and imprisonment in the county jail for a period not exceeding six months, in the discretion of the court; * * * provided, however, that it shall he lawful for any riparian owner of lands hordering on said rivers, creeks or branches, or for any person or corporation with whom such owner shall have a contract in writing for the purpose, or for the agents, servants or employees of such person or corporation to dig, dredge, take and carry away sand, gravel or other material from the hed of said river opposite said lands from high-water mark on the shore bordering on said lands to the outer line of the channel nearest said shore, subject to the laws of the United States relating to navigation.” It is contended by the appellant that the right, if any, which passed to the appellee, by said alleged grant from George Swift and others, owners, at that time, of the “Ferry *388 Farm,” to dredge and remove sand and gravel from tbe bed of tbe river off its shore, terminated wben the so-oalled grantors ceased to be tbe owners of said farm, or tbe parts of it boldering* upon tbe river, and that tbe appellant, at such time, as purchaser of the farm from tbe owners, succeeded to tbe right given to them, by the statute, to dredge and remove tbe sand ,and gravel off the shore of said property, which right, as claimed by tbe appellant, bad been conferred by tbe owners upon the appellee to be enjoyed by it for a period, at most, not extending beyond tbe time in which tbe land remained the property of said owners, and this contention we think is consistent with the proper construction of the statute. Tbe beds of navigable rivers of this State unquestionably belong to tbe public and unless conferred by special grant from the State, owners of adjacent lands have no exclusive-right thereto below low water mark. Day v. Day, 22 Md. 530. It was to- protect tbe interest of tbe State in the sand, gravel and other materials in the bed of the Potomac River that chapter 262 of the Acts of 1888 was passed. This was the first act passed relating to the subject, the title of which was: “An act to add a new section to article thirty of the Code of Public General Laws, title Crimes and Punishments.” This act prohibited all persons from taking, or removing sand or gravel or other materials from tbe bed of tbe Potomac River. The succeeding Act of 1900, chapter 577, added thereto the proviso, “that it shall be lawful for any riparian owner of lands bordering on said Potomac River, or for any person or corporation with whom such owner shall have a contract in writing for the purpose, or for the agents, servants or employees of such person or corporation to dig, dredge, take and carry aWay sand, gravel or other material from the bed of said river opposite said lands from high water mark on tbe .shore bordering on said lands to the outer line of the channel nearest said shore, subject to the laws of the United States relating to navigation.” *389 Tbe last act, chapter 426 of tbe Acts of 1906, the one now in force, differs from tbe Act of 1900, chapter 677, only in that it is made to apply to all rivers, creeks, etc., of tbe State. It will thus be seen that tbe act which contains the above proviso, and the act upon which the appellee relies in support of the alleged exclusive right conferred upon it by the aforesaid instrument of writing or lease, is a criminal statute. In the first act (chapter 362 of the Acts of 1888) all persons were included in the prohibitory clause of the statute, while in the second and last acts the riparian owner and those having a written contract with him were permitted to do the act or thing forbidden by the statute without becoming amenable to its provisions. This permissive right was extended to him as the owner of the land and was to be exercised by him only so long as he remained the owner of it, and when it ceased to be his, the light, so conferred upon him as a riparian owner, passed to the succeeding owner, and this is true, though he, while owner of it, had allowed another, under the terms of' the statute, to exercise the right, for1 he could not confer upon such person or corporation a right greater than that which he had acquired under the statute. Moreover, it is hardly conceivable, if it were the intention of the Legislature to grant to a class of citizens of this State an exclusive right of the character claimed by the appellee for the one under consideration, that it would have done so by an amendment of a long standing criminal statute, by adding thereto a proviso, which it is said contains such grant, in that said class of citizens are permitted by it to do that which all other citizens of the State .are prohibited from doing under the penalty above mentioned. The right conferred by the statute in question is in tbe nature of a license or privilege to the riparian owner and those with whom he has a, contract in writing, which may be revoked at any time by the Legislature. Phipps v. State, 22 Md. 380; Hess v. Muir, 65 Md. 587; Powell v. Wilson, 85 Md. 347; Handy v. Maddot, 85 Md. 547. *390 For tibe reason stated the learned court below we think erred in granting the injunction, and we will therefore reverse the decree appealed from and dismiss the bill. Decree reversed and hill dismissed, the costs to he paid hy appellee.