Peninsula Enterprise, September 17, 1892

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reprinted from Cape Charles Pioneer.Tourists and sportsmen -- Other recreation - Resorts

Cobb's Island was on Tuesday leased for a term of five years to Messrs. Thomas Spady, Lucius Cobb and J. B. Williams, all of this county, for seventeen hundred dollars per year.

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Moral -- Firearms

Mr. S. Downing Major of Cape Charles, while out sedge-hen hunting Tuesday, 13 inst., accidentally shot himself in the head. He is not expected to recover from the wound.

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Infrastructure -- Public - Government : Maryland-Virginia boundary

The sub-Legislative Committee on the Maryland and Virginia boundary line met at Crisfield last Thursday. The general committee will meet in Washington early in November.

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Moral -- Property crime

Joseph Sears, colored, a counterfeiter of the dollars of Uncle Sam, was arrested near Bayview, Northampton, last Saturday.

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Infrastructure -- Commercial - Real estateProfessionals -- Realtors and developers

F. H. Dryden, real estate agent, Pocomoke City, has sold for A. J. Lilliston, the Drummond farm, situated on the line of Maryland and Virginia, near New Church, to Isaac N. Hearn, of Wicomico county, Md., for $3,500.

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Moral -- Vandalism

A fire of incendiary origin, it is thought, destroyed last Saturday morning, the barn, stables, carriage house, one horse, box of carpenters tools and many other articles, worth from $300 to $400, belonging to Mr. James F. Parks, near Parksley.

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Infrastructure -- Public : Schools

Mr. James Madison, of Orange county, Va., will open the tenth session of his private school at "Blenheim," as tutor in the family of Mr. Henry Battaile, on Monday, 19, inst. Board for one boy, can be obtained in the family of Capt. John Mister, living near Pungoteague, and within half a mile of the school.

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Infrastructure -- Public : CemeteriesInfrastructure -- Commercial - MillineriesTourists and sportsmen -- Other recreation - Baseball

Belle Haven.

Mr. Norris Brown died at his home on Mathews Island, on Sunday last, and was interred in the family burying ground near this place on Tuesday, aged about 40 years.

It is reported that arrangements are being made to have a large millinery store opened at this place.

In a game of base ball played at Craddockville, on last Saturday, between the Craddock and 0747 clubs -- the latter were the victors by score of 7 to 24.

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Tourists and sportsmen -- Field sports - DogsFields -- Livestock - HorsesInfrastructure -- Commercial - Hotels

Chincoteague.

Mr. O. M. Jones has sold his setter dog to Wallop's Island club for fifty dollars.

One of the four year old wild ponies sold by W. J. Matthews to F. A. Mitchell, a horse man of Wilmington, Del., ten days before the Fair held there last week, took the first premium for beauty. The present owner says he would not take ten times what he paid for him. After ten days handling, the newspapers report: "He will lie down, kneel, sit on his haunches, put his foot in your pocket and do most anything you can reasonably want a horse to do, either for utility or fun."

Mr. J. Emory Massey has resigned as proprietor of Island Hotel and will vacate same October 15th. Capt. George W. Burch will succeed him, having leased same for a term of years.

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Forests -- Forest products - BarrelsForests -- Barrel factories Infrastructure -- Commercial - NewspapersTransportation -- Water - Freight

Onancock.

Messrs. Taylor and East are now manufacturing very fine oak stave truck barrels. The shippers from here are pleased with them.

A handsome job press for the "ENTERPRISE office" landed on our wharf by the steamer Pocomoke Wednesday morning, was much admired.

The sail vessels of Powell & Waples, Boggs & Groton and Crockett & Winder, left Onancock, Tuesday, at 12 o'clock with good loads of sweets for Baltimore.

Corner-Stone Laying of M. P. Church.

Infrastructure -- Public : Churches

A festival and corner-stone laying of the new M. P. Church, at Parksley, will take place Wednesday afternoon, September 21st, services to commence at 1 o'clock p.m. Rev. N. L. Elderdice and others, will make addresses on the occasion. A brass band is expected to entertain the audience with their usual strains. Confectioneries, ice cream, etc., will be for sale. A supper with oysters and other delicacies will be served also at the usual hour.

The Oyster Question.

Sea -- Shellfish - Oystering : BaysideSea -- Shellfish - Oystering : LegislationInfrastructure -- Public - Government : Maryland-Virginia boundary

Review of the Claim of Maryland of the right of her citizens to fish in the waters of Pocomoke Sound.

The claim of a right in the citizens of Maryland to fish in the waters of Pocomoke Sound, in common with the citizens of Virginia, is based upon still another ground, -- that is, the right acquired by prescription. Mr. Elligood says, "It is conceded that the citizens of Maryland and Virginia have exercised from time immemorial the common right of taking oysters in this Sound, both North and South of the boundary line, until 1884, since which Virginia has by her oyster police deprived us of it." "Now in laying aside the Compact, we have this right by immemorial usage and prescription." He then argues that "the length of time which creates a right by prescription in a private party raises a presumption in favor of a State, that is to say twenty years. The same principle is applied to the exercise of a privilege of the enjoyment of what the common law calls an easement. Now if Maryland has exercised the right of fishing in the Virginia waters of the Pocomoke from time immemorial, then on the application of the foregoing principles she had acquired, aside from the Compact, the perception of a profit and an easement." Senator Hayes, in his closing argument, says, "it is conceded by the Virginia committee that the common right of catching oysters and fish in the Pocomoke was enjoyed by Maryland until 1884. That gives us a right to the easement by prescription." If the concession here mentioned was made by the Virginia committee, it does not appear in any speech made by a member of that committee as reported; and furthermore, if made it shows a lamentable ignorance on their part of the legislation of their State. Mr. Elligood claims the right to take oysters in Pocomoke Sound by prescription on two grounds; first, upon the exercise of this right from time immemorial, -- and second, upon a presumption in favor of the State of Maryland arising from the exercise of the privilege for twenty years. The gentleman is too good a lawyer not to know that these two kinds of prescription rest upon entirely different grounds. The first rests upon the presumption that a grant was once made, and by a lapse of time the evidence of such a grant has been lost; and therefore, the exercise of the right must have been from time immemorial, that is time whereof memory of man runneth not to the contrary, which is from the beginning of the reign of King Richard I. As all of the Colonies were settled long after this time, it has been determined by the Courts in this Country, over and over again, that prescription of this first class does not exist with us. The other kind is the prescription arising out of the several acts of limitation barring the recovery of property after a continual possession for a certain number of years. It is upon the last kind the gentleman must rely. The possession necessary to constitute a title by such prescription must have been uninterrupted, pacable and adverse, if not exclusive. An examination of the oyster legislation of Virginia will throw light upon the claim of Maryland to take oysters in the waters of Pocomoke Sound. These bivalves were considered of such little value that prior to 1819 the Virginia waters were open to the whole world; no person, resident or non-resident, being interdicted from taking them, except a prohibition against the taking for the purpose of being converted into lime. In 1819 the Virginia Legislature passed an Act prohibiting any person who was not a citizen and resident of the State from taking oysters in any of the waters thereof, excepting from the waters of the Potomac and Pocomoke, WHERE THOSE RIVERS ARE COMMON TERRITORY to the States of Maryland and Virginia. In 1831, an Act was passed which forbids all except actual inhabitants and residents of Virginia, from taking oysters in the waters of Virginia except IN SUCH RIVERS AND SUCH PORTIONS THEREOF AS ARE COMMON PROPERTY to this and some other State. The Act of 1846 forbids all persons, other than actual residents and inhabitants of Virginia, from taking oysters in the waters of ACCOMAC COUNTY, except IN SUCH RIVERS AND PORTIONS THEREOF AS ARE COMMON to Virginia and other States. The Virginia Code of 1849 forbids any person other than a citizen of Virginia from taking oysters and terrapins in the waters thereof, or in the rivers Pocomoke and Potomac -- but not to be construed to extend to a citizen of Maryland taking oysters or terrapins in said mentioned RIVERS. Act of 1852 makes it lawful for any citizen of Virginia to take oysters with dredges in the waters of Tangier and Pocomoke Sounds, or any waters adjacent thereto in the County of Accomack. By the Act of April 23, 1867, Virginia went so far as to forbid any person, other than one of her residents, to take or plant oysters in the waters of the State, or in the RIVERS OF POCOMOKE OR POTOMAC. Admit that this legislation transcended the power of the State so far as it applied to the Potomac; yet it shows that she did think she had never conferred upon any non-resident a right to oyster in the Pocomoke river much less in Pocomoke Sound. In the year 1870 numerous captures were made by the Virginia Oyster Police Force of citizens of Maryland for the violation of the oyster-laws of Virginia, committed some in Tangier Sound and others in Pocomoke Sound; and eminent Maryland counsel, at one time Hon. John W. Crisfield and Hon. James U. Dennis and at another times the Attorney General of the State, appeared before the Virginia tribunals to defend these captured parties. They were committed for final trial, and the vessels and boats used by them in violating the law were held for confiscation. On October 24, 1870, a message was sent by the Governor of Virginia, to her Legislature, announcing that the Governor of Maryland had pledged his State to the observance and maintenance of the temporary line agreed upon by the Police Commander of the respective States, and asked for the [illegible] of the Marylanders arrested for trespassing; whereupon, the Legislature passed the following joint resolution: "Resolved, that the Governor of Virginia be authorized to discharge from arrest the citizens of Maryland who were arrested for violation of the laws of Virginia, in trespassing upon her territory and gathering oysters within her boundaries, and to release the vessels seized." Thereupon, under this resolution, the arrested parties were discharged from custody, and the captured property was restored. On April 18, 1874, the Virginia Legislature passed an Act relative to oysters, Sec: 23 of which was, "If any person (other than a citizen of this State) shall take or catch oysters or other shell fish in any manner or plant oysters in the waters thereof, or in the rivers Potomac or Pocomoke, he shall forfeit &c. But this section shall not extend to citizens of Maryland taking oysters in the said mentioned rivers. Under this Sec: several of the citizens of Maryland, were arrested for taking oysters in Pocomoke Sound, and were tried therefor and convicted in the County Court of Accomack, at the next session of Legislature; on February 3, 1875, an Act was passed, in preamble to which it was recited that the Governor in the annual message had asked that the true meaning and construction of Sec: 22 of the Act of April 18, 1874, should be declared; and that he had communicated the correspondence between him and the Governor of Maryland, in which the last named proposed that a temporary line of division between the two States, pending the decision of the Arbitrators as to the true boundary line of the States, should be established, which Act enacted;

"1. That the true meaning of the said 22d Sec: of the said Act was to confer upon citizens of Maryland the privileges of taking oysters in the Potomac and Pocomoke rivers, and not Pocomoke Bay or Sound.

2. That insisting and declaring that the true line between this State and the State of Maryland, East of the Chesapeake bay, is the line known as the Calvert and Scarborough line, and that a part of the County of Somerset, claimed by the State of Maryland, is South of that line, and of right part of the territory of Virginia; yet in a spirit of comity and good will to a sister State, be it further enacted, that the privilege of taking oysters in Pocomoke Bay shall be enjoyed by citizens of Virginia North of a right line running from Cedar Straights to the intersection of the Calvert and Scarborough line with the Pocomoke river.

3. The privilege conferred by this Act may be withheld at the pleasure of the General Assembly."

From an examination of this whole legislation, is any recognition found on the part of Virginia, or an assertion by Maryland, of the right of the citizens of Maryland to take oysters in Pocomoke Sound. It is true that Virginia, in the most of her laws relative to oysters from 1819 to 1874, excluded from the operation of these laws citizens of Maryland taking oysters in the Potomac or Pocomoke rivers. But our Maryland friends no doubt will say, that if the privilege was accorded by Virginia of taking oysters in the Pocomoke river that is all they claim, as the Sound is the river. It has already been shown that Maryland in 1681, and both Maryland and Virginia in 1668, recognized Pocomoke Bay or Sound as a distinct body of water from Pocomoke river; and it can hardly be supposed that Virginia had forgotten this fact in framing her legislation from 1819 to 1874. She certainly remembered it when she passed the Act of 1852, because she therein expressly names Pocomoke SOund. Why in 1870 did the Governor of Maryland ask of Virginia the release of citizens of his State captured for taking oysters in Pocomoke Sound, and not demand such release, if these citizens had the right to oysters in that Sound? Why if such right existed did the Governor of Maryland in 1874 propose a temporary line of division between the two States, pending the decision of the Arbitrators as the true boundary line? If under the Compact of 1785, or by prescription, or in any other manner, Maryland had acquired the common right to fishery in the Pocomoke river, and that river embraced Pocomoke Sound, what need was there for agreeing upon a line until the Arbitrators had determined the true boundary; for it mattered not where the boundary was determined to be this right existed, even if the whole of Pocomoke Sound was, as it always had previously been, found to be within the limits of Virginia. Why did the Governor of Maryland accept so small a portion of Pocomoke Sound as was granted by the Virginia Legislature as a privilege to Maryland citizens by the Act of February 3, 1875, if the citizens of his State were entitled to a right in the whole Sound. The Virginia Legislature showed by this enactment that it recognized no right of Maryland in the Sound, and that the privilege of taking oysters by Maryland citizens in any part thereof was accorded in a spirit of comity and good will to a sister State, and that even this privilege might hereafter be withdrawn at its pleasure. In 1882, committees appointed of the two States met in Richmond. This was after the Black and Jenkins award had been made, and ratified and confirmed by both States, and approved by the Congress of the United States. Among other subjects considered by these committees was the fixing of a line across Pocomoke Sound, a part of which by the award had been given to Maryland. They determined "that common rights of fishing and oystering shall be enjoyed by the citizens of both States in that part of Pocomoke Sound North and East of a straight line, commencing at Watkins point and running thence in a Southeasterly direction to buoy R., number 4, as then located upon coast chart number 33 of the U. S. coast survey (sheet number 3, Chesapeake Bay), thence with a straight line to the Northern boundary of Messongo Creek." South of this line no right or privilege was conceded to citizens of Maryland to take oysters in Pocomoke Sound. If the right had previously existed in the citizens of Maryland to take oysters in the whole of Pocomoke Sound, no matter how acquired, how was it that the Governor of Maryland and her Legislative committee were willing to accept and acquiesce in the assignment to her of the privilege of oystering in so small a portion of the Sound? Were they ignorant of their rights, or derelict in the exaction of them? How did it happen when, in accordance with the Compact of 1785, the several Legislatures of the two States came to frame and adopt concurrent legislation for the regulation of oystering in the Potomac river, that we find an entire absence of a word as to the regulation of a similar right in the Pocomoke river and Pocomoke Sound, if such right existed? In view of the separate legislation of Virginia, the joint legislation of the two States, and the action of Maryland officials and representatives, it may well be asked where is the evidence of the right in the Pocomoke Sound now claimed by Maryland? Has Maryland from time immemorial to 1884 exercised the right in common with Virginia of taking oysters in Pocomoke Sound? Has she for twenty years, uninterruptedly, peaceably and adversely, exercised such right? Where is the proof that such right has ever been conceded to her by Virginia? Virginia has accorded to Maryland the temporary privilege of taking oysters in a part of the Sound; but this was accompanied with the reservation of liberty to her to withdraw this privilege at her pleasure. She has at all other times forbidden by her laws any person, other than one of her citizens, to take oysters in that Sound, and has vindicated her laws by the arrest and punishment of their violators.

All of the grounds urged by Maryland for the contention of her part of the existence of this right in Pocomoke Sound have now been examined and endeavored to be met. Whether the effort to answer them had been successful, or a failure, must be left to the judgement of others.