Councilman v. Le Compte , 179 Md. 427 ( 1941 )

The appellants, John A. Councilman and Margaret K. Councilman, own a farm in Talbot County, Maryland, which has a base line water front, in excess of five hundred yards, on the Choptank River. Immediately adjoining the Councilman property, James H. Keester and wife own a farm which also borders on the Choptank River. At the river the Councilman and Keester properties are divided by a line which runs through the waters of a small creek called "Muddy Creek." At the point on the shore of the river where the two properties are divided, by the line running through the creek, the river takes a decided change of course, which results in both properties fronting on, or being opposite, the same portion of the river. In other words, the Councilman property is East of the river and the Keester property is North.

The appellants secured a license, and erected a duck blind in the waters of the river immediately in front of their property. About the same time as the placing of the appellants, blind, a lessee, of the Keester property, Howard C. Eley, also erected a blind in front of the Keester property. Then, upon complaint to the State Game Warden by a third party, the Warden ordered Eley to move his blind to another location. After the Eley blind was moved and re-located, the Game Warden discovered, through a survey, that the Councilman and Eley blinds were less than five hundred yards apart. He then ordered the Councilman blind removed, and when his order was not obeyed, threatened to have the blind removed. The appellants then filed a bill in the Circuit Court for Talbot County, seeking to restrain the Game Warden from removing the blind. After hearing, the court dismissed the bill, and it is from that decree this appeal is taken.

The statute regulating duck blinds in the waters of this State, Art. 99, § 47(a), is as follows: "(a) Whenever an owner of land bordering on any waters of this State shall desire to erect a booby, brush or stake blind in front of his property, or other person to whom he shall give permission, he shall not place same within 250 yards of the dividing line of any property owned by him and the adjoining property bordering on said waters (* * *), meaning a line extending out over the waters drawn direct from the dividing line of said properties at the shore line, unless with the consent of the adjoining landowner, same being for the purpose of allowing each landowner bordering on any of the waters of the State permission to avail himself of the privilege of setting, erecting or maintaining a booby, brush or stake blind in front of his property."

After the survey had been made under the orders of the Game Warden and a plat prepared, it was disclosed that the Councilman blind was less than two hundred and fifty yards from the line, designated on the plat, as the dividing line between the properties, out over the water.

An important question to be determined in this case is whether the line, designated by the Warden's survey as a dividing line, is properly located.

In considering that question, the manner in which the survey was made, and the information, or date, upon which it was based, are extremely important. The surveyor, Mr. Blain, testified he ran the lines as directed by a Deputy Game Warden, he said: "My instructions from the Game Warden were to take an established line on the map substantially in the middle of the river, and lay off from that what was almost substantially a parallelogram, from the mouth of Muddy Creek, on each side of the Keester property, and that was their interpretation of where the boundary between the properties was. Then, computing that line, I went down on shore and laid off a compass course and staked out those two lines. The Game Wardens themselves picked out what they considered the point of the Creek."

Manifestly, the method followed in running the line, purporting to be a true dividing line between the two properties, was not in accordance with the established rules of making true surveys, and the survey so made has neither weight, nor competency, as evidence upon which to base a decision for, or against, either of the parties who have equal rights over the waters common to both.Marvil Package Co. v. Ginther, 154 Md. 213, 140 A. 95.

The method adopted of extending a line dividing the Councilman and Keester portion over the river was not the method prescribed by the statute. The statute, after prohibiting a blind from being placed nearer than two hundred and fifty yards to a dividing line, expressly describes the manner in which the dividing line should be laid out. The exact language of the statute is "meaning a line extending out over the waters drawn direct from the dividing line of said properties at the shore line." If the accepted definition of the word "direct," which is "straight, not crooked, oblique, reflected or refracted," Oxford Dictionary,Webster's New International, is accepted as the meaning intended by the General Assembly when the statute was passed, then the line dividing the Keester and Councilman properties through Muddy Creek should have been extended straight out over the water of the river. But had that been done, the line would have run directly across the water front of Keester's property, with the result that Keester would have been denied his right to erect a blind in front of his property. Clearly that was not the intention of the statute. The unmistakable purpose of the statute was to protect, and not to deprive, each land owner's right to have a duck blind.

In order to avoid depriving Keester of a space for a blind, the Game Warden adopted the method here used, of running a line substantially at right angles to the center line of the river. The method, it appears, was followed because it had been used in some cases in other jurisdictions. But the circumstances under which that rule was used were not exactly similar to the unusual conditions found in this case. If all rivers followed a straight course, it would be a simple matter to follow either the rule adopted by the Warden, or that prescribed by the statute, and spaces allotted to all properties fronting on the river.

The rule followed in this case had exactly the same effect in depriving Councilman of a space for a blind, as the line, had it been run as directed by the statute, would have deprived Keester of his space for a blind.

Under those circumstances some other method of dividing waters which are common to two properties must be found, and it must be a method which will be equitable, and fair to all parties concerned. But if such a method cannot be found, then the statute cannot be applied against any of the interested parties, and the difficulty must be adjusted by mutual accommodation, as that term was used in Sheehy v. Thomas, 155 Md. 688, 689, 142 A. 506.

It is practically impossible to lay down a fixed rule which will work equitably in all cases. Courses of rivers never are straight, nor do dividing lines of shore properties always run to the river at the same angle. Therefore, any rule adopted must be capable of application to varying conditions. That fact seems to have been recognized by the framers of the statute in this case, because, after directing that the dividing line be extended direct, it says, "unless with the consent of the adjoining landowner, same being for the purpose of allowing each landowner bordering on any of the waters of the State permission to avail himself of the privilege of setting * * * a * * * blind in front of his property."

It must be borne in mind that this is not a controversy between Keester and Councilman in reference to their respective rights, but it is an attempt by Councilman to prevent the State from determining which of two property owners shall be denied a privilege the statute sought to protect. The State cannot, through its agent, award to one, and deny to another, a right to which both, equally, are entitled. When it was discovered that the Councilman and Eley blinds were too near each other, the Game Warden had the authority to order the removal of both blinds until it had been determined, in a proper proceeding, which, if either, of the blinds was improperly located. Had that course been pursued, the matter would have been left to the interested parties to adjust, either by agreeing to use a common blind in their common waters, or by some other method, if one could be found, whereby both could have a blind without infringing on the rights of the other. If the parties cannot adjust the matter, then neither would be entitled to a blind to the exclusion of the other.

There is nothing in the record in this case to show that the blind belonging to Eley or to Bartlett, who first complained of the Eley blind, is properly placed. It may well be that a proper survey will find a means whereby Councilman, Eley and Bartlett, each may have blinds which will not conflict.

Under the particular circumstances in this case, and because of a survey improperly made, the decree must be reversed, and the cause remanded in order that the appellants rights may be protected pending a proper adjustment of the matter, either by agreement of the parties interested, or by the appropriate action of the State Game Warden, as herein indicated.

Decree reversed and cause remanded. Appellee to pay thecosts.

JOHNSON, J., concurs in the result.