The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1881-02-04
Property In Oyster Beds.

Ed FOR WITH CONSIDERABLE lNIEhfSi'
In the Supreme Court OF Appeals vester-
day Judge Anderson delivered the follow
ing opinion Of the court In case which Is
of interest 10 those claiming property in
oyster.betls OF the Commonwealth, though
II will be observed that one OF The most i'm
portant points raised they did not deem
proper TO pass upon at this time:
The complaint Of Stafford G.. Cooke, cx-
ecutor OF William Andrews, deceased, The
defendant In error. Is that "the defendant,
! the plaintiff In error here, is in possession
OF and unawfulv withbolds from the
plaintiff certain piece or parcel Of The pot
tom Of York river, opposite the land OF L..
j. Stuart. and public land at Cappaboslc,
used and occupied by defendant Tor the
purpose OF planting oysters, and adjoining
the oyster planting grounds OF Wiliiam y:
Duiton above and Hezcklah Tuttie below:
The defendant moved the County Court IN
which the cause was depending 10 quasn
the writ, which motion was sustained D.
the Court, and judgment was rendered
agains, the plaintiff for costs. To the 1udg-
ment OF the County Court quasbng the
writ. a writ of error aud SuperSededS was
awarded by the Circuit Court Of Glou
ce,ter, in whlch the said judgment OF the
County Court was reversed, and the cause
was retained by the Circuit Court for trial
10 be Dad therein, and upon the trial of the
cause the defendant moved the circuit
Court TO qua,h The writ, which motion was
oyerruied And this j. assigned as error.
II IL was error il il an end OF the case. Is
il error!
II involves the question whether an action
OF unlaUful delalner would lie III any clSe
Ia euforcc the rights of the piaintih III the
suii Ct IN controversy. In Power " kel-
loe as. TsZwells (25 Graft, p. 1867 1t was
held that II DainIiti has acquired an eX.
elusive right TO the use and occupation oI
he ds or SPORES OF cre'k h. &c., the summary
ac,iOn of unlawful entry and detancr Is an
apDronrIaie remedy t. assert and enforce
hi, exclusive right against any one Who uu-
lawfully withh0id> it from hin. The COM
plan, in Tbs case is tuat The ddendanl IN
iulrfuUu witDholds from the plalnll1 the
premises described III ihc writ According
to the decision aforesaid, from what appears
on The face Of the writ. 1t was Ms apprOprl-
ale remedy. II conld not be unliwiuiy
withheld from the plainiii unless he hau
an exclusive right 10 The possession, anu
that ,s cha, ged in the writ. The action OF
unlawful entry ana detaner being an ap-
propI i;lie remedy to assert and enforce the
plaint that The defendant unlawfully with.
holds il fl Om the plinlifl is a sufficient aver
ment of the plaintiffs tight 10 the action,
and to put the defendant upon his defence.
The Court j. OF opinion, therefrIe, that
the Court did not err in Oyerrnling the
defendlnt's motion L quIsb. To have d(-
cided otberWl.e would have been 10 have
held that in no case would the action lie by
a party to recover 0y yster-pllnliDg grounds
when were unliwiulv'Wlthbeld from him,
which would have been contrary TO the de-
ciSiOn Of this Court IN tue case above clteO.
Upon the trial of the cause upon lis
merits the Jury found bg special verdict
that in the alter part Of 1872 contract I'M
der seal was made by 5 G. Cooke. executor
of William Andrews and Mrs. Emily An
drews, and j. l.. stuart, TIE defendant,
whereby the said Stuart rented the oys'
ter-planriDg ground M controversy from :.
q. Cooke, executor, aS rfOIeshd, ana NJ :.
Emily Andrews for the period oi three
wears from tue ist Of January, 1873, Tor tbe
sum Of S75 per annum, TO he paid semi
annually IN advance, ana that StuaIt
bound himself legally and morally 10 de-
liver t. the plaintiff the SAID oysler-plant'
ing ground at the expiration OF three years,
which was the termination or the Iea>e
that Stuart TOOK pO>se>sIon on the Isl oi
January, 1873. under the contract, and was
in possession a ibe institution OF this sun /;
that be made tnree or four pay ments, and
afterwards, upon application, refused tc
pav the balance OF The rent, and refused tC
give up the >ier-uIaniUg ground al
the expiration OF ihr three years, but
continued in the possession at the time
Of the institution OF this suit. The lease
ha tg1 nf
this suit WAS commenced on the 2l,t OF No
vember, 1917.
Mrs. Emily Andrews died in The latter
part of The year Is 3; aud II appearing by
the will OF her hI. band that >he h1d onIy
ife.nterest in the premises, all ber Interest
in The contract ceased IA htr death.
MANY interesting points were made by
the learned counsel in the argument OF tho
case, chief, To the e1ect, dr't, that t6t
plaintiff had no right, TILE, or interest III
the subject Of The suit that would entltlC
him 10 maintain this action; and secondly,
that the proprietary right ana lille 10 Inc
bed Of the York river was vested IN tht
commonwealth for The bered OF all The
peop!e of The Commonwealth; that the de-
fendant had a ri9ht TO participate In thos,
beneti :, ana that the planfff hid no eX
cln>lye right tO the possession ana enjoy
ment OF the same.
, But the Court is Of opinion hat the Ge
fendani, the plaintiff here having ackDow'
Iedgcd the pllinltl's right ny solemn con
tIact under his hand and SEAL. under
which contract lie came iG'o the posses
sion and enjoyment thereof, aud obi
gated himself to return the same tC
The plainritf at the expiration OF the lease
by The Iaw ~ established Tor ages he i
csr0pped 10 deny his title and is bound by
his solemn covenant 10 surrender 10 lin TIT
possession.
The Court is of opinion, therefore, thai
the question cannot aIiSe IN thl> clst
Whether the plaintiff under the laws OF The
S sle has any exclusive right to the posses
sion Of 'he property in controversy. Ih'
defendant, BY his acceptance OF the lease
land covenant 70 retu n the property to tht
nlsintifr. Is prccudpd from iaislug the ones
tlon. and only the rights NJ tue parties under
said contract can be decided in this case.
The court i OF opinion. therefore, tC
affirm the judgment Of The Circuit Court.
CoUNCIL BRIEFS.-Mr. John NJ. Higgins
has pi iepared an ordnance N relation Il
cleaning the snow from the sidewalks. II
provides that twelve nOur> OF diylIght shal
be allowed within which TO clean 1t on
II has met the approval OF the Ordinance
Committee, aud will doubtless pass tht
Common Council Monday evening.
The Committee on Ordinances havi
agreed TO recommend that the Streei-R1il
way clrs be allowed 10 run six miles al
hour.
The trustees OF Pine-Sreet Blplls
church have pcIitiOned the Council 10 nave
Pine street graded. They propose To eiec