OYSTERS. 2261

any natural bed or bar hereinbefore prohibited, the question may be at
once submitted by any person interested to the judge of the circuit court
for the county where such question shall arise, who, after having given
notice to the parties interested, shall proceed to hear the testimony and
decide the case; and if his decision be in favor of the party locating said
five acres, said decision shall be recorded with the original record of said
five acres and shall in all cases be conclusive evidence of title thereto;
provided also that if any stakes or bushes used as bounds shall be removed
by accident or design, it shall not excuse any person from wrongfully tak-
ing such oysters if he knew the grounds to have been located and appro-
priated ; but 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; 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; and in case of
the death of any citizen who may have located and appropriated any lot
under the provisions of this section, his executors or administrators shall
have the exclusive use, possession and control of such lot as fully as the
person so dying had, for the purpose of protecting, cultivating and remov-
ing the oysters planted on said lot for the period of three years from the
date of the death of the person appropriating such lot; and any person
or persons taking or attempting to take oysters thus planted or bedded shall
be deemed guilty of a misdemeanor and upon conviction before a justice
of the peace trying the case shall be fined a sum not less than fifty dollars
nor more than one hundred dollars and be imprisoned in the house of cor-
rection for a period of three to six months, one-half of said fine to be paid
to the informer and the other half to be paid to the county commissioners
for the use of the public schools. This section not to apply to Somerset,
St. Mary's and Calvert counties, for which special laws are enacted.

The provision of this section with reference to no one person owning more than
one lot of five acres, cannot be evaded. If an evasion is attempted, the party gets
no title to additional lots, nor do his assignees. The privilege given, by this section
has no element of a grant or patent, but is simply a revocable license. It is neither
inheritable nor assignable. The oysters planted in pursuance of this section remain
personal property of planter. Hess v. Muir, 65 Md. 599. See also Powell v. Wilson
85 Md. 357; Windsor v. State, 103 Md. 613; Phipps v. State, 22 Md. 380.

The three classes of proprietors under this section and sec. 50, distinguished. The
priority given is not an incident of the estate of riparian owner, but is a mere
privilege which is essentially different from rights conferred by art. 54, sec. 47, et seq.
Construction of the words " lying and bordering." To whom the notice under this
section must be given; when notice is dispensed with, and when it may be posted.
Handy v. Maddox, 85 Md. 550.

Under act of 1894, ch. 380, the only question that can be summarily determined
by judge of circuit court in accordance with this section is whether five acres
located constitute a natural bed. The judge is without jurisdiction to determine
other matters and if he undertakes to do so, court of appeals may review his order.
Travers v. Dean, 98 Md. 75.

No appeal lies from the determination of circuit court that an appropriated bed
is a natural bed, and setting aside location. Jackson v. -Bennett, 80 Md. 77.
There is no conflict between this section and sec. 51. Powell v. Wilson, 85 Md. 358.
For a case construing and declaring constitutional a similar section in the Code of
1860, see Phipps v. State, 22 Md. 380.

For a case involving the act of 1829, ch. 87, see Baltimore v. McKim, 3 Bl. 469.
Quaere, as to whether the portion of this section denying its benefit to non-
residents is valid. Hess v. Muir, 65 Md. 606 (separate opinion).
See notes to sec. 51.