CHAP. 363.--An ACT to amend and re-enact sections 2131, 2133, 2134, 2135, 2137, 2148, 2151, 2153, and to repeal sections 2141, 2142, 2143, 2144, 2145 and 2147 of chapter 97 of the code of Virginia, in relation to oysters, and to add independent section...
Approved February 25, 1892.
1. Be it enacted by the general assembly of Virginia, That sections twenty-one hundred and thirty-one, twenty-one hundred and thirty-three, twenty-one hundred and thirty-four, twenty-one hundred and thirty-five, twentyone hundred and thirty-seven, twenty-one hundred and forty-eight, twenty-one hundred and fifty-one and twentyone hundred and fifty-three of chapter ninety-seven of the code of Virginia, be amended and re-enacted so as to read as follows:
§ 2131. Inspectors of oysters; appointment and removal, term, qualification and bond.--The county court of each county, or the judge thereof in vacation, in which oysters are caught or planted, shall, on or before the first day of May next, appoint for the county one or more inspectors of oysters, whose term of office shall commence on May first, eighteen hundred and ninety-two, and who shall continue in office for the term of two years, but may be removed by the court for, any malfeasance, misfeasance, incompetency, or gross neglect of official duty, and such removal shall be deemed a vacation of the office. All the vacancies in the office shall be filled by the court, or the judge thereof in vacation. Every inspector shall before the court which appoints him, or the judge thereof in vacation, take the oaths and give bond prescribed by chapter thirteen of the code of Virginia. The bond shall be in a penalty not less than two thousand dollars. The clerk of the court shall transmit a copy of the bond to the auditor of public accounts within thirty days after its execution. An inspector appointed under this section shall be skilled in and acquainted with the oyster industry.
§ 2133. Each inspector shall be allowed all the fees allowed under this chapter to him and a commission of ten per centum on what is collected by him under the following section.
§2134. He shall collect all fines and taxes imposed by this chapter within the limits of which he is assigned except the tax on planted oysters, and to enable him to collect the same, together with his fees, according to preceding section, he shall have the same power which a county treasurer or other collectors of the state has for the collection of taxes.
§ 2135. Reports required of inspectors, to be recorded
when to pay what they owe; what entries to make in their books.--He shall report quarterly on oath to the commissioner or commissioners of fisheries the amount of fines, fees, rents and taxes collected by him and his deputies during the preceding three months, and the names of the persons from whom the same were collected, with the respective dates of collection, and also the number of boats registered under this act, whether tonger, patent tonger, or dredger; also the number of acres of planting ground rented and the location thereof. The commisioner or commissioners of fisheries shall examine the report, and, if in due form and correct in other respects, shall certify to the auditor of public accounts the amount due on account of such fines, fees, rents, and taxes by the inspector, who shall, within thirty days thereafter, pay the same into the public treasury, to the credit of the oyster fund. These reports shall be transmitted by said commissioner or commissioners of fisheries to the clerk of each county in the waters of which there may be oysters, which said reports shall be filed by the clerk of said court in his office, and shall be open at all times to public inspection. The inspector shall give receipts for all fines, fees, rents, and taxes collected by him, an entry for which shall be made in a book to be kept by him for the purpose, which receipts, in addition to other facts stated therein, shall give the name of the county in the clerk's office of which his report is to be recorded. If any inspector fail to discharge any duty imposed on him by this section, he shall be deemed guilty of a misdemeanor, and, on conviction thereof, be fined not exceeding five hundred dollars, and be removed from office, and for the amount of said fine be and his sureties shall be liable on his official bond.
§2137. Assignment to riparian owners and others of locations for planting oysters; appeal from decision of inspector; locations to be marked with suitable stakes; payment of fees and rent to inspectors.--If any owner or occupant of land having a water front thereon suitable for planting oysters, shall desire to obtain a location thereon for planting oysters, he may make application to the inpector for the county or district in which the land lies, who shall assign to him on such location as such owner or occupant may designate in front of his land. No assignment shall exceed one-half acre, and a survey and plat whereof to be made by the county surveyor, which shall indicate the metes and bounds, courses and distances, starting from fixed and prmanent objects on the shore, as accurately, as may be, the same to be recorded as provided for recordation of other plats, the cost of survey and plat, and recordation, to be paid by the riparian owner or occupant. The surveyor's fee shall be one dollar. It shall be the duty of such owner or occupant to cause the location to be marked with suitable stakes, according to the assignment, and thereafter he shall have the exclusive right to the use thereof for the purpose aforesaid, and the privelege is accorded to the said owner in consideration of extra valuation ordinarily assessed upon such land for the water privileges supposed to attach thereto. The inspector making the assignment of reservation shall be paid by such owner or occupant a fee of fifty cents; said assignment to the riparian owner or occupant to pass with the land to the subsequent owner or occupant. If any portion of said water front herein reserved or provided for said riparian owner or occupant of land, shall be occupied by others with oysters actually planted thereon at the time a location is made of said reservation, the person so occupying the same shall have eighteen months to remove the said oysters so planted. The residue of said water front in excess of what is herein reserved for the riparian owner, and the residue of the beds of the bays, rivers, and creeks, other than natural oyster beds or rocks, may be occupied by any persons for the purpose of planting or propagating oysters thereon: provided, that no assignment hereafter made shall exceed two hundred and fifty acres; but this limit shall not affect assignments heretofore made, in excess of that amount, and provided further, that no limit herein provided for shall affect assignments made in the Chesapeake bay. It shall be the duty of any such person desiring to obtain a location for planting or propagating oysters in any portion of the water-fronts and beds aforesaid, not located or reserved as hereinbefore provided for owners and occupants of land aforesaid, to apply to the inspector of the district in which the land lies, to have his location ascertained and designated, and surveyed, and the same shall be marked with suitable stakes, smooth and free from snags and spurs, or by other metes and bounds, courses and distances, having their places of beginning and ending designated by permanent objects on the shore, agreed upon between the applicant and inspector, and he shall pay the inspector for his services a fee of one dollar; and he shall also pay to the inspector rent for the land assigned him at the rate of one dollar per acre for each and every year of his rental: provided, however, that on the ocean side of the counties of Accomac and Northampton, he shall pay a rental of fifty cents per acre, the same to be payable on the first day of September of each year, and so long as he continues to pay such rent, he shall have the exclusive
right to occupy said land for a period of twenty years, subject to such rights, if any, as any other person or persons may previously have acquired. If any portion of said water-fronts or beds or bays, rivers and creeks, be occupied with oysters actually planted thereon or held by any person under proper assignment, evidenced by the receipt or certificate of the inspector, at the time a location is made or sought to be made, under this section, the occupant shall have the prior right against all others to have the land so occupied by him assigned to him by the inspector: provided, the said occupant shall have the land so occupied by him ascertained and designated, and surveyed within thirty days from the time the inspector is called on to locate the same. This section, so far as the quantity of land to be assigned to and held by riparian owners is concerned, shall not apply to the counties of Richmond, Northampton, Northumberland and Westmoreland; but section six of chapter two hundred and fifty-four, acts of eighteen hundred and eighty-three and eighty-four, shall continue in force as to the said counties: provided, that nothing in the said section which restores to riparian owners in said counties one-fourth of their respective water-fronts suitable for planting oysters, shall be so construed as to permit the owners of water-fronts to compel occupants of said fronts to remove their oysters from any fourth of said shore, if the residue of said shore be already in his (the land-owner's) possession or be unoccupied; and provided further, that all applications for assignments of oyster planting-grounds, other than for the ground reserved for riparian owners, shall be made to the oyster inspector of the county or district in which said grounds are located, stating as near as may be the number of acres applied for, the name of the waters in which located, and the name of one or more prominent points or places convenient to said ground; thereupon the said inspector shall cause notices of said applications to be posted for at least thirty days, at the court-house of said county, and at two or more prominent places in the vicinity of said grounds; said notices shall contain the name or names of applicants, the probable number of acres applied for by each, the name of the waters where located, and the name of one or more prominent points convenient to said grounds; after the expiration of the thirty days' notice as aforesaid, the inspector shall proceed to survey and assign the ground so applied for: provided, he ascertains it is not a natural bed, rock or shoal within the meaning of this act.
§2148. Limitation as to time of taking oysters.--Hereafter it shall not be lawful for any person to take or catch oysters from any of the natural oyster beds, rocks, or shoals, in any of the waters of this commonwealth with tongs, or in any other way, from the first day of April to the first day of September, except that in the waters of the Pocomoke sound, Tangier sound, and their tributaries, the prohibited time shall be from the first day of May to the fifteenth day of September; and on the ocean side of Accomac and Northampton counties, the prohibited time shall be from the thirty-first day of May to the first day of September; and in Broad bay, Long creek, Linkhorn bay, or in any of the tributaries thereof, in the county of Princess Anne, the prohibited time shall be all of the year except the months of October and November. Any person violating the above provisions shall be fined not less than ten dollars nor more than fifty dollars for each offence. This section shall not be construed as prohibiting the owner of planted oysters from working on, or changing the location of said planted oysters, or from shipping the same to market at any time at the option of the owner thereof. But no dredging to be permitted on their private oyster-grounds even by the owner of said planted oysters at any time provided, however, that nothing in this clause shall be construed to prevent the occupant of planting-grounds in the Chesapeake bay, or the occupant or lessee of not less than one hundred contiguous acres, in Tangier sound, and Hampton Roads, from dredging his planted oysters during the lawful season for dredging in this state. It is further provided, that if any person carry, or attempt to carry, any seed oysters out of this state at any time, except from the ocean side of Northampton county, he shall be deemed guilty of a misdemeanor, and upon conviction thereof, be fined not exceeding five hundred dollars for each offence.
§2151. Sale out of shell to be by wine measure.--When oysters are bought or sold out of the shell, it shall be by wine measure, according to the standard prescribed for such measure by section nineteen hundred and eleven of the code of Virginia, eighteen hundred and eighty-seven. Any person violating this section shall, upon conviction thereof, be fined not less than ten nor more than fifty dollars for each offence.
§2153. Natural oyster beds not to be used for planting or depositing oysters or oyster shells.--It shall not be lawful for any person to stake in or use for the purpose of planting oysters or shells, or for depositing oysters while making up a cargo for market, any natural oyster bed, rock or shoal, or any part thereof, nor shall any person who may have occupied and staked off such natural bed, rock or shoal, continue to occupy the same; and any person violating this provision shall be fined not less than fifty nor more than one thousand dollars for each offence. Each inspector shall require any such person within his district to remove all stakes, watch-houses, or other obstructions from said natural beds, rocks, or shoals, and ifafter notice such person refuses to remove his stakes or other obstructions, the same shall be removed by the inspector at the cost of the offender, who shall also be fined for failure to remove such stakes, watch-houses, or other obstructions not less than ten nor more than one hundred dollars.
2. That sections twenty-one hundred and forty-one, twenty-one hundred and forty-two, twenty-one hundred and forty-three, twenty-one hundred and forty-four, twenty-one hundred and forty-five, and twenty-one hundred and forty-seven of the code of Virginia, eighteen hundred and eighty-seven, be, and the same are hereby, repealed.
3. Any resident of this state owning a boat to be used in taking or catching oysters from the natural rocks, beds, or shoals shall apply to the inspector of the county or district where he resides, on or before the first day of September of each year, and have said boat registered. The inspector shall register said boat, and prescribe for said boat a number corresponding with the number of boats registered, which number of boats, and number of district, he shall cause to be plainly marked or stamped upon the prow of said boat. For each registration annually, the owner of the boat shall pay to the inspector a fee of fifty cents. Any boat used or engaged on the oyster rock, as above named, after the first day of September next not registered, shall be taken in charge by the inspector, and if the owner can be found, he shall be fined not less than five nor more than twenty dollars, to be recovered before a justice of the peace; if the owner cannot be found, the inspector is directed and hereby authorized to advertise said boat for thirty days, and if no person claims said boat, the inspector is authorized to sell said boat at public auction, and turn over the proceeds of sale, less the costs of advertising and expenses of sale, to the auditor of public accounts, together with a report of his action in the matter.
4. For the purpose of registering boats as aforesaid, the oyster portion of the state shall be laid off into districts so that when a boat is properly registered, the registration can be recognized by all the inspectors in the state. The districts shall be as follows: Accomac, number one to number seven inclusive; Elizabeth City, number eight; Essex, number nine; Gloucester, number ten; Isle of Wight, number eleven; James City, number twelve; King George, number thirteen; King and Queen, number fourteen; King William, number fifteen; Lancaster, number sixteen; Mathews, number seventeen; Middlesex, number eighteen; Nansemond, number nineteen; New Kent, number twenty; Norfolk county, number twenty-one ; Norfolk city, number twenty-two; Northampton, number twenty-three; Northumberland, number twenty-four; Portsmouth city, number twenty-five; Princess Anne, number twenty-six; Richmond county, number twenty-seven; Warwick county, number twenty-eight; Westmoreland, number twenty-nine; York, number thirty. The inspector of each district shall, with a stamp, place on the prow of each boat the number of boats registered, and under the number of the boat the number of his district, for example 1/1 shows that the boat is numbered one, and registered in district number one in Accomac.
5. The inspector shall, moreover, require each and every tong-man in his district to state to him, on oath, at the time of receiving his registration and number, that he will not, during the ensuing season, violate any of the laws of this state in regard to taking of, oysters from their natural beds, rocks, or shoals, and that he will make such true and accurate returns as are hereinafter provided for. The inspector shall require each tong-man registered in his district to make to him, on the Saturday of each week, or within three days thereafter, during the lawful season, a true and accurate return of the amount of sales made by him during the week preceding; and the inspector shall collect from said tong-man on the aggregate amount of said sales for that week an amount equal to the amount of tax that may be levied by the state on any other species of property; but if at the time of registering his boat, any tong-man shall prefer, and elect to pay, and pay to the inspector the sum of two dollars, the inspector shall give him a receipt therefor, in which he shall state that the said payment is a discharge of, his obligation under this section for the entire season for which his boat is registered, so far as the weekly returns and the amount to be paid thereon, is concerned: provided that this section shall not apply to the ocean side of Accomac and Northampton. If any tong-man shall fail to make such report as is provided in this section, he shall be deemed guilty of a misdemeanor, and upon conviction thereof he shall be fined not less than ten dollars nor more than fifty dollars.
6. Any resident of the state who is now occupying oyster-planting grounds, or desires to occupy any oyster-planting ground, shall notify the inspector of his desire to continue to occupy, or his desire to occupy, certain oyster-planting grounds, and the inspector shall notify the county surveyor, or his deputy, who shall survey said ground, and make a plot of the same--the surveyor to receive for surveying and making plot twenty-five cents per acre up to thirty acres, and fifteen cents per acre over thirty to fifty acres, and ten cents per acre for all over fifty acres--the cost of survey and plot to be paid by the rentor--this survey and plot to remain good so long as the rent is annually paid, and the ground occupied by the party paying for survey and plot. The said survey and plot shall indicate the metes and bounds, courses and distances, having their beginning and ending marked by fixed and permanent objects on the shore, as accurately as may be, and the same, as soon as possible after completion, shall be filed by the inspector in the clerk's office of his county, then to be forthwith recorded in a well-bound and substantial book, and indexed in the name of the assignee, and thereupon, at once, a written memorandum thereof to be posted by the clerk at the front door of the court-house, stating the name of the assignee, the date of the record, the number of acres assigned, and the general location of the grounds.
7. Any person holding oyster-planting ground, who has not had it assigned, or paid any rent for the same, shall forthwith apply to the inspector of his county to have said ground surveyed, assigned, and pay the rent; and if he fail to do so, the inspector shall serve notice on said occupant, giving him thirty days to comply with the law, and then if he fail or refuse to rent as the law directs, the inspector shall rent out said ground to the first applicant.
8. It shall not be lawful for any person to rent oyster-planting ground and afterwards sub-rent or sub-let the same to another person. Any person violating this section shall be fined not less than fifty nor more than one hundred dollars, and the ground sub-rented or sub-let shall be taken away from him by the inspector.
9. Any assignment made by the inspector shall in all proceedings and for all purposes whatsoever, be, and be construed to be, an absolute final adjudication that the ground assigned is not a natural oyster bed, rock, or shoal, unless within two months after the survey and plot are recorded as required by section six, some person or persons shall file a writing in the clerk's office of the county court where the record is, stating that the ground assigned is a natural oyster bed, rock, or shoal. Upon such writing being filed, the clerk shall forthwith issue a rule against the assignee requiring him to appear in said court and show cause why the said assignment should not be revoked. If said writing is filed ten days before the term of the court the rule shall be returnable at such term, otherwise at the term next following. The court, without a jury, shall try and determine whether the ground assigned is a natural oyster bed, rock or shoal, and the person or persons who filed the writing aforesaid shall be regarded as the plaintiff or plaintiffs, and the assignee as the defendant in the issue. The clerk shall notify the inspector, who shall attend the trial. The judgement of the court shall be final, and no appeal, writ of error, or supersedeas shall lie thereto. If the judgment is against the assignee, any rent paid by him shall be returned to him by the inspector; and when any inspector shall be overruled by the county court three times he shall be removed from his office. If the owner of any boat desires to use on said boat the new (patent) oyster tongs on the natural oyster beds, rocks or shoals, he must pay to the inspector of his district the sum of five dollars annually for each pair of patent tongs used on said boat, to be by said inspector paid over to the auditor of public accounts, and one dollar annually as a fee to the inspector for his services. If any one boat is registered for two purposes, the inspector shall also have have a stamp for registering the boat using patent tongs, and that stamp shall be "P. T., and the number of boat registered, and under the number of the boat the number of his district; for example, "P. T. 1/1" shows that the boat is registered for patent tongs number one, and registered in district number one, in Accomac county, and this must also be stamped on the prow of the boat.
10. If any person, other than a resident of this state, take or catch oysters or other shell fish in any of the waters of the state, be shall, upon conviction thereof, be fined five hundred dollars.
11. All oysters taken from any natural rock, bed, or shoal in the waters of this state, except on the eastern side of Accomac and Northampton counties, shall be culled upon their natural bed, rock, or shoal as taken, and all oysters whose shells measure less than two and one-half inches in length, measuring from hinge to mouth, and all shells shall be included in said culling, and replaced upon said rock, bed, or shoal: provided that where small oysters are adhering so closely to the shell of the marketable oyster as to render its removal impossible without destroying the young oyster, then it shall not be necessary to remove it. Any person violating the provisions of this section shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be fined not less than ten dollars nor more than one hundred dollars.
12. When the purchaser or any other person shall have reason to believe that any cargo of oysters has been brought to market in violation of this law, the inspector shall be called in to ascertain the fact, and he shall thereupon cause the contents of every fiftieth tub or measure to be dumped in any convenient place to be agreed on between the vendor and purchaser, and the same shall be kept away, and separate from other oysters, or oyster shells, and after the whole cargo, vessel load, or quantity of oysters so sold shall have been measured, and the quantity ascertained, the inspector shall, in the presence of the vendor, or his duly authorized agent, or employee, proceed to separate from the oysters so set aside all shells and small oysters less than two and one-half inches in length, and he shall proceed to measure the shells and small oysters set aside, as hereinbefore provided, and if said shells and small oysters so set aside, after being so separated from the marketable oysters, shall be found to exceed five per centum of the whole quantity so set aside as aforesaid, then the vendor shall be deemed to have violated this section, and on conviction thereof shall be fined not less than ten nor more than one hundred dollars.
13. All acts and parts of acts inconsistent with this act, be, and the same are hereby, repealed: provided however, that this act shall not be so construed as to affect in any way the riparian rights of any owner or owners of land on the east side of the Elizabeth river lying south of the north line of the property of the Lambert's Point water front company, or to affect in any way the present jurisdiction of the board of harbor commissioners of the port of Norfolk and Portsmouth, nor shall this act be construed to repeal in any way chapter ninety-six of the code of Virginia.
14. This act shall be in force from its passage.