Letter on the Oyster Question of Virginia, Part II

FINALITY OF THE SURVEY.

To the credit of Connecticut, be it said, that she has created a splendid industry out of nearly destroyed resources, which, whether viewed from the standpoint of methods employed, or success attained, or both, challenges admiration and inspires hope. She has published her methods in splendid
array, so that he who runs may read how she accomplished these results. Nothing stands out more prominently than the importance she attaches to the survey and mapping of her water area.

She has made her survey final. Her Supreme Court has passed upon and sustained it. (Conn. Report of 1893, page 24.) She now furnishes the sine qua non of oyster planting -- a secure title.

Our survey embracing 160,000 acres of oyster deposits, made under the supervision, and almost under the direction, of oystermen who know the waters as well as an Apache scout knows a mountain trail, is to be kept open because some oyster rocks may have been omitted.

Ergo: 6000,000 acres, much of which is available for oyster culture, and which can be leased if a secure title is offered, must remain a waste because a few oyster rocks may have been omitted from our survey.

The preposterousness of this objection should sweep it out of existence.

Some jurists believe that a title obtained under the present law will stand the test of our courts. Few may care to run the gauntlet. The question which a planter must consider is, not what is comparatively safe, but what is absolutely secure. Upon the solution of this question depends the creation of the planting industry.

TO ESTABLISH A LOW-WATER MARK LINE.

To determine with any degree of accuracy just what water area is embraced within the limits of a survey, or the low-water mark, baffles the most experienced.

It has always been an important and perplexing subject, and in its relation to the oyster-planting industry its difficulties are intensified. So long as low-water mark remains undetermined, so long will a large area of the best bottoms at the disposal of the Commonwealth, which would otherwise yield an early revenue, remain unavailable.

If ever a man needed a certain, fixed line, it is the planter. If his oysters are found on another planter's bottoms by virtue of an error of lines, they are lost -- not like a cow or horse which its owner can identify by mark and reclaim -- unless by courtesy he is permitted to take them up. If they chance to be on the Commonwealth's area they become public property at once. I believe this to be the law. In this way we are able to realize why the planter cannot afford to lease bottoms in localities where boundaries are undetermined. The suggestion is therefore made that it would perhaps be a wise thing if it were enacted into a law that:

In consideration of the cession by the riparian owner to the Commonwealth of all his claim to the oyster bottoms beyond his low-water mark when the same shall be legally established, the Commonwealth agrees,

1st, to ascertain total area of water within the limit of the survey, both above and below low-water mark.

2d, to fix the actual boundaries of low-water mark for the owner.

3d, to give to said riparian owner the same exclusive right to plant oysters within said line which would inure to him if he held a lease for said water area within said line under the planting laws of Virginia.

4th, that notwithstanding the establishment of said line of low-water mark, the riparian owner shall continue to have, use, and retain all rights he may have to the soil under the water and to the water itself in front of his property outside of said low-water mark line, when so established, except the right to plant oysters. The Commonwealth shall have exclusive right to plant oysters and make leases for such planting outside of said low-water mark line, when so established.

6th, but that the Commonwealth shall not use, lease or dispose of said area included within such survey outside of said established line for any other purpose than oyster planting.

It is believed on good authority that the Department of the Coast and Geodetic Survey would, on the application of the
authorities of the Commonwealth, make a calculation of areas of low-water mark, on the basis of surveys the Department has already made, which would place this feature in the keeping of specialists trained in accurate work, and for the same reason likely to be acceptable to all concerned. Should the line to be established, if a straight line, run over natural rock, it can be deflected and still be made a regular and well-defined line.

The establishment of proper agency to execute this law may not prove a difficult matter.

A satisfactory settlement of this question would, it is believed, prove invaluable to the Commonwealth.

THE CHESAPEAKE BORDER.

Our newspapers have given much publicity to the outrages committed by non-resident depredators upon the peace and dignity of the Commonwealth by the seizure of public and destruction of private property, and by threats and acts of violence towards her citizens. It is difficult to compute how much of our oyster property they have looted; it must amount to a large sum. It were degrading, however, to suggest the protection of our Chesapeake border for the reason of property rights alone. There is a principle involved beside which this consideration fades out of sight.

What would happen were pirates to land anywhere on terra firma in Virginia? A call to arms, never to be laid down until the last malefactor had been extirpated! Is the Chesapeake border less our soil because, forsooth, it is covered with water? Delay of action can only be accounted for by the remoteness of the scene and unfamiliarity with the conditions which prevail. Let our people but for a moment realize that the desecration of our Chesapeake border is the desecration of the Commonwealth, and it will be defended as Virginia soil ever has been.

For this purpose two steamers, properly equipped and efficiently handled, are imperatively needed. These afforded,
the pirate gang which infests our border will be dispersed. Once accomplished, its surveillance will be attended with less cost.

THE NEW NAVY.

A new navy is indispensable, for the reason that the old has outlived its usefulness. It is not a new inspiration. Gov. Wise recommended the purchase of four steamers for police purposes in his message of 1857. (Documents, Session 1857-58, Part I, page cxxxv.)

The personnel of the officers to command should be a matter of the greatest concern; success or failure hinges upon it.

The gallant exploits of our tars of 1776 and 1812 are a precious memory. Yet our love for them would not prompt us to employ the same type in our navy of today. Each era demands its own type. It were wise policy to made the Shell-fish Commissioner commander. It would be his duty to establish a system and enforce it.

A boon would be conferred if our police captains were made committing magistrates. A legal record made up immediately on arrest might prove a bar to perjury. It may not be out of place here to say that the persistent violator of oyster laws draws the line of fear and respect somewhere near the place where a judge presides. Therefore it were better that this class were never tried before a justice of the peace.

One of the sorest trials suffered by those living on shores remote from police surveillance is caused by bold and defiant trespassers. It is this class which is rapidly decimating wild water-fowl, terrapin and other game, using every illegal means to accomplish their purposes. No duty more honorable can be assigned to our police captains than the preservation of our game; if to this be added the execution of the law of trespass peace may come to us.

OYSTER CULTURE IN ENCLOSURES.

This form of culture is warmly recommended by the able chief of the U.S. Fish Commission, which of itself arrests attention. In certain localities of the Chesapeake large areas of shallow water exist, which will remain a waste unless made productive by the method advocated by Col. McDonald.

By ceding these to parties who may wish to invest money in this kind of oyster culture, the Commonwealth may promote the creation of taxable wealth. France has produced notable results in this way. Dams, ponds nor other enclosures should be permitted to obstruct the fronts of riparian owners.

USE OF LEASED AREAS.

Two years' experience in a section where every form of contention exists convinces me that the planter must have a control of the area he leases.

It is pretended by many who follow the water that the planter's right to the area he leases is confined to oysters alone; that if anything else can be found therein it may be taken by him who chooses.

This is not all, the same class not only claims the right of the taking but the right of searching for products other than oysters. Suppose a farmer buys or leases a tract of land, on the condition that any product not enumerated in his deed or lease shall be the property of the public, with free access thereto; suppose, farther, the farmer had a stand of wheat, what would become of it if the public had the right to undermine it for the purpose of searching for moles or medicinal roots? If the law does not give the planter undisturbed possession, it ought to be changed. A lease which confers no right which the public need respect is no lease at all; it has no value.

LEGAL STATUS OF THE PLANTING INDUSTRY.

An industry yet in its swaddling clothes may not be quite ready to be brought into the fold of the law; but since no human endeavor can fructify outside of its beneficent confines, those who hope to see this promising child invested with rights necessary to its existence, and burdened with proper obligations, trust that our law-makers may investigate its needs. The 5th Conn. Rep., page 26 and 6th, page 28, contain interesting legislation on this subject.

REVENUE.

The contentment of the tonger and the success of planting depend upon the wise solution of this question. Assuming that dredging shall be suppressed, the tonger remains the sole and undisturbed worker of the natural rock. The exclusive use of a property at once so vast and so rich ought to provoke the tonger to furnish a sufficient revenue for its protection and preservation. Those who have given this subject much study believe that the tonger should not be asked for any other form of contribution. He should cheerfully pay this; by so doing, he will increase his claim to the consideration of the Commonwealth.

The only revenue for general purposes ever to be derived from the oyster must be furnished by the planter; whether it shall be large or small depends upon the system adopted.

Two offer:

A short lease at a high rental;

A long or perpetual lease at a low rental.

The effect of the first will confine planting to creeks and other localities easily accessible from shores and habitations of present dwellers, this area bearing but a slight ratio to the vast area beyond; the revenue to be derived from it, either with respect to the sum total of rental, or taxable wealth to be created out of it, can never be large.

The effect of the second must ultimately lead to the culture of every acre fitted for planting purposes, the rental of which at a low price will aggregate a large sum. When we come to consider, in addition, the great amount of taxable wealth which may be created out of the use of so vast an area, and compare all, with the restricted results which are sure to follow from a system of short leases at a high rental, it ought not to take long to decide which to adopt.

LEASES TO NON-RESIDENTS.

Much diversity of opinion exists concerning this subject. It seems possible to adjust it satisfactorily. If for a period of two years the area within two miles from shore were reserved for our citizens, they would have the first choice of the most available and often most valuable bottoms in the Commonwealth.

The larger areas outside might be thrown open to non residents at once. To develop these may take more money than our people may be able at all times to furnish. In spite of our prejudices we shall find that corporations employing heavy capital are best equipped to make these great spaces productive; nor do I see why oyster-planting corporations, under proper restrictions, should not give the same satisfactory results wrought by aggregated capital in other industries.

After the lapse of two years, that portion of the reserved area not take up by our citizens can be disposed of.

It may be prudent to except a certain area south of the line of the border from the operation of this plan. There is danger that the lawless class infesting our border, once kept out of our territory by means of an efficient navy, may find their way back thought the avenue of citizenship, by virtue of which they may severally acquire a few acres of water area from which to operate after their present fashion. If no legal obstacle exists, a law might be passed which shall for two years prevent the acquisition by non-residents of leases
within that portion of the reserved two-mile strip lying in Accomac Co. and throw open the large area outside to non-residents in lots of not less than 200 acres. This may overcome the difficulty. If strongly-equipped corporations should take up the stated area, they would prove valuable auxiliaries against depredators, the good effect of which would be felt by no one more than our tongers.

THE TONGER.

This class of oystermen is the only one which is interested in so working the rock that it may be perpetuated. The reason is simple. He is a man of family; he makes a permanent home near the rock upon which he is accustomed to work, and in his line of action is one of the most capable men the waters support. So long as our natural oyster wealth must be free to the public, it cannot be worked by a more deserving class of oystermen. The impression that the use of the tongs will never exhaust the rock is in the main correct, but strict compliance with the law is necessary. The tongers' rock will stand no extra pressure, least of all that which the dredger applies. The most beneficent legislation in the tongers' behalf would be the suppression of dredging. Next to this, the strict enforcement of the law of closed seasons; of the limit of size of oysters to be caught; of the culling law.

Ordinary restraint on the part of the tonger in the desire for gain will help to preserve the rock he works for a long period, and will result in a comfortable livelihood for him and those depending upon him.

The relations between the tonger and the planter are almost sure to become friendly. The suspicion with which the former regarded the latter is disappearing. The tonger in many instances has joined planting to the field of his operations; he also realizes that during the closed season, work on the natural rock being over, he may dispose of his time to the planter.

A SHELL-FISH DEPARTMENT.

The value of such a department, presided over by an honest and able chief, has passed the stage of investigation. Whether the truth of this statement be sought in the splendid achievement wrought by Connecticut, through her Shell-fish Department, or in that achieved in a still higher field by the Department in Washington, presided over by a gifted son of Virginia, and which has (I say it with no irreverence) reproduced the miracle of the fishes, we shall find it indisputably true that our great resources must be developed by similar agencies.

Trusting that these views may commend themselves to your approval, I am, my dear sir,

Very respectfully, your obedient servant,

William Ellinger.