"In examining all of the plats that I have been able to find, bearing upon this question, I have not found a single one which indicates that any oyster inspector, or surveyor, ever undertook to convey, or assign, or lease to an applicant, any portion of any of the ground held by Mr. Hurley to the northward of the dotted line of the Baylor survey. In making these researches, I have done so with the sole purpose of ascertaining the facts. My instructions from the commission have been to get all the information on this subject possible, and to verify it, if possible, so that a correct conclusion could be reached by the commission upon the true facts in the case. I have surveyed virtually every tract of oyster planting ground in the Rappahannock river, except in the county of Essex, which I have not yet reached in the work I am doing, and I have found almost innumerable cases just like the case now under discussion, and in doing this work I have not found that Mr. Segar, or his predecessor, Mr. Hart, ever assigned an acre of ground within the Baylor survey, either through mistake or otherwise. Their assignments all indicate that they were made with care, and with due regard to the rights of the public as defined by the Baylor survey. I have found that their assignments as a general thing come up to the Baylor line, or very close to it, but not in a single instance have I found that they erred in crossing that line and assigning to private individuals public rock which they were prohibited by law from assigning."

The conclusive proof that the natural oyster ground held by complainant was never assigned nor surveyed, as ground leased to complainant or his predecessors, and that his occupancy was not due to mistake of an officer, leaves the complainant outside of the confines of the statutes of 1899 and 1910 and without any right he can assert under them. The testimony is far from convincing that complainant has been himself without default, inasmuch as the assignments and plats were matters of public record; but it is not necessary to decide that point, since he has failed to meet the other two conditions of the statute.

The case, then, comes to this: When the complainant planted oysters on the natural oyster land, they became the property of the state under the common law. To relieve from possible hardship, the state by the statute last quoted conferred the right of a holder to remove the oysters on conditions set out in the statute. The statute does not take away any property, or injure any property right; on the contrary, it confers rights on the conditions set out. When the state creates and confers rights not before in existence, it may attach to them any conditions, and those who claim the benefits of the statute must accept its conditions. Cooley's Constitutional Limitations, 181. Since the bill, affidavits, and exhibits show that the complainant has no property right, either at common law or under the statute, to be taken without compensation or without due process of law, he is not injured by any of the statutes relating to the matter, and will not be heard to assert their invalidity. McCabe v. Atchison, Topeka & Santa Fé Railway Co., 235 U. S. 151, 35 Sup. Ct. 69, 59 L. Ed. 169; Louisville & Nashville R. R. Co. v. Finn, 235 U. S. 601, 35 Sup. Ct. 146, 59 L. Ed. 379; Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571, 35 Sup. Ct. 167, 59 L. Ed. 364; Hendrick v. State of Maryland, 235 U. S. 610, 35 Sup. Ct. 140, 59 L. Ed. 385; Mallinckrodt Works v. State of Missouri ex rel. Jones, 238 U. S. 41, 35 Sup. Ct. 671, 59 L. Ed. 1192.

Fortunately this conclusion works no hardship on the complainant.

(264 F.)

Taking the most favorable possible view of his case, he has no substantial equity. The land from which he has unlawfully excluded the public has never been assigned to him or his predecessors, and no rent has been paid for it. The total area claimed by him and in his possession, as ascertained by Ruediger's survey, is 91.05 acres. The bill alleges he has been paying rent on 47.48 acres, in two tracts, 21.98 acres and 25.5 acres. This, taken from the 91.05 in his possession, leaves more than the 36.5 acres of natural oyster ground in his possession for which he has paid no rent.

Nor will there be any unjust advantage to the state or the public on opening this natural oyster ground to the public. True, complainant planted the oysters and will be deprived of the exclusive right to gather them; but it is also true that he has for 15 years appropriated to his own use all the natural oysters on the land which were the property of all the people of the state.

The injunction is denied, and the temporary restraining order revoked.

WADDILL, District Judge (dissenting). I regret my inability to concur with my Brethren in either their determination of the facts or their conclusions as to the law properly applicable and controlling upon the application for the injunction prayed for.

From my view of the case, the very least the complainant is entitled to is to be allowed a reasonable time within which to remove his oysters and oyster shells planted by him within the disputed area; that is, upon the natural oyster rocks found to be within the land as staked off and rented to the complainant-the defendant's contention being that these stakes had been changed since they were originally placed, and extended out into territory forbidden to be leased, or to be used other than by the public generally, for tonging oysters naturally grown thereon.

The complainant, and those under whom he claims, have for a period of more than 20 years been engaged in planting and raising oysters in the waters of the Rappahannock river, upon certain small lots of land formerly leased and set aside to them by the state, paying for said lands a yearly rental of $1 per acre. The land was regularly surveyed, plotted, and staked off by the state's representatives, and from that time until the beginning of this controversy, some 2 years ago, the rent was regularly paid each year, and the work of planting and propagating oysters thereon, and catching, marketing, and disposing of the same, was openly carried on, always under the eyes and with the full knowledge of the state's oyster inspectors, and others properly having the right of supervision and direction of what was being done. The controversy over the right to occupy all the lands claimed by the complainant, came about this way: After he had held and uninterruptedly occupied the same, paying regularly his rentals therefor for many years to the state, a proceeding was inaugurated by ten citizens before the defendant board of fisheries, pursuant to the provisions of section 39 of the state's General Oyster Law, approved March 17, 1910, asking a resurvey of the lands of the public oyster grounds within

the territory occupied by the complainant, with the result that the board, without perhaps giving either the formal notice to those to be affected, or according them such a full and formal hearing as the law contemplated, found that portions of the ground within complainant's boundary, as staked off, was a part of the natural oyster rock or bed, and hence not subject to be leased to, or used by, the complainant. Upon the board's action being announced, the complainant, pursuant to another provision of the State Oyster Law (section 15), asked to be allowed a reasonable time within which to remove from the disputed territory his oysters and oyster shells planted thereon, which request the board denied. Sections 39 and 15 are as follows:

“39. Surveying and Resurveying Planting Grounds, and Marking Lines of Geodetic Survey.-The commission of fisheries is hereby authorized and empowered to select and appoint, on such terms as may be agreed upon, any surveyor, or surveyors, to survey, or resurvey, any oyster planting grounds, either in his own or any other county, and to re-establish and permanently mark any line or lines of the Baylor geodetic survey, which, in the judgment of the commission of fisheries, it may be necessary to define; or an application may be made to the commission of fisheries by ten citizens of the county to have any line or lines of the Baylor geodetic survey re-established and permanently marked: Provided a bond and security be given to the commission of fisheries that the applicants will pay all costs for surveying and marking: And provided further, that ten days' notice of such survey shall be given to all parties whose legal oyster tenures might be directly affected thereby; and if it should turn out that it was not necessary, in the opinion of the commission, to have said line or lines re-established, then all costs of the survey and marking shall be borne by the applicants; but if it shall appear that the Baylor geodetic survey had been encroached upon, then the cost shall be borne by the commission of fisheries and the bond given be void."

"15. Resurveys of Planting Grounds.-When, by any resurvey of oysterplanting grounds or survey made to re-establish the lines of the state survey of natural oyster beds, rocks or shoals which shall hereafter be made under the direction of the commission of fisheries, it shall appear that any holder, without his own default, and by mistake of any officer of the state, has had assigned to him and included in the plat of his assignment any portion of the natural oyster beds, rocks or shoals as defined by law, and it shall further appear that such holder has oysters or shells planted on the said ground, then, before the stakes shall be removed from said ground or the same opened to the public, the said holder shall be allowed a reasonable time, the length of which is to be determined by the commission of fisheries, in their discretion (and duly advertised), within which to remove his planted oysters or shells from the said ground.

In reaching its conclusion, the defendant board, among other things, recited:

"From the evidence, introduced in this case, this commission is of opinion that the applicant did not show such a case as to entitle him to the relief asked for in his petition. It is admitted that the applicant is on a very considerable portion of the natural rock. It appears that the right to use this ground was purchased by Mr. Hurley from a company that bad purchased this right from the original assignees, and that the stakes, at the time Mr. Hurley purchased, were in substantially the same position they now occupy; but it does not appear that the stakes were placed in that position either by Mr. Hart, the former inspector, or by the county surveyor, who made the surveys of the various small tracts which, now united in one holder, form the subject of this petition. Just how the stakes were moved out upon the public rock does not appear. The best evidence introduced on this subject indicates

(264 F.)

that a former owner moved these stakes out about 20 years ago, and that he not only moved them out, but extended them a long distance to the eastward, into a place where they are almost surrounded by the natural rocks; the public ground being on the two longest sides, and one of the short sides of this extension. This ground appears to have been taken in this way about 5 years before Mr. Hurley purchased the rights of the persons or of the corporation occupying the ground. It has never been reassigned, and is still held by Mr. Hurley under the original assignments."

The board further certified that the complainant was ignorant of the fact that a portion of the public grounds had been taken in and was turned over to him. In passing upon the complainant's request, the defendant board held, in effect, that before the same could be granted, it was incumbent upon the complainant to show, first, that he was in possession of such natural oyster rock, bed, or shoal, without his own default; and, secondly, that he must have been placed in possession of the same by the mistake of some officer of the state, whose duty it was to assign planting grounds to him, properly applied for; and the board thereupon required the complainant to remove the stakes back to the line as prescribed by it, and thus throw open the grounds within the disputed territory to the public. There is no question as to the complainant having large quantities of oysters and oyster shells planted upon these grounds, variously estimated at from $8,000 to $15,000 in value, and that the same will be a total loss to him, if the defendant board's action stands.

The reasons assigned by the board for its action in thus sum narily depriving the complainant of his property are too flimsy and unreasonable to receive serious consideration. In one breath, it required that he should show his freedom from fault in his occupancy of the natural oyster rocks, and in another it certifies that he was ignorant of the fact that a portion of the public grounds had been taken and turned over to him. The board further certified, as shown from the fore going excerpt from their opinion, that the extension of the stakes in question occurred about 20 years before, and some 5 years before the complainant purchased the rights of the persons and companies occupying the grounds, and that there had never been any reassignment, and the complainant still held under the original assignment. The suggestion that it be shown that the possession of the disputed grounds was secured by a mistake on the part of some officer of the state, whose duty it was to make assignment of oyster-planting grounds, is even more untenable, when it is certified by the board that the stakes were improperly extended a quarter of a century ago, without knowledge of the complainant, and 5 years before he acquired the oyster grounds.

The claim is further made, in effect, that the complainant ought to suffer as a result of a wrong committed by his predecessor in title, although he was entirely innocent thereof, and the intimation is also conveyed that the complainant, because of his general knowledge regarding the complaints of persons in the section of the country as to encroachments upon the public grounds or natural oyster rocks, should have, in some manner not specified, known of the erroneous lo cation of the ancient title. The defendants apparently forgot the po

sition they occupy, when they seek to justify their action by these unreasonable claims. With what degree of propriety, of fairness, of justice and right, can they, and the state and its officers, make these contentions? The stakes have remained in their present position for more than a quarter of a century, marking and indicating the lands in question, and year in and year out during that entire period, acting by and through their accredited representatives, cognizant of the location of the oyster grounds subject to lease, they have yearly rented to and received from the complainant the rent specified by law for the premises in question, and he, in good faith, openly, and with their full knowledge, has planted oysters and oyster shells upon the lands so staked off and leased to him, and he has been so engaged and employed on quite a large scale, pursuant to the state's policy, and the law respecting the development of its vast and valuable oyster grounds and rights.

To summarily sever this relationship by reason of a change of the boundary lines under the water, upon a resurvey, as prescribed by law, without according to those to be affected thereby the rights secured to them to remove the oysters found within the territory affected by the change of line or boundary, certainly under circumstances such as exist in this case, would be both unjust and unconscionable. Such action can only be likened to that of a landlord, dispossessed of premises he had leased in good faith to a tenant, objecting to the tenant's taking with him his property, carried to and placed upon the leased premises. Some possible claim or equity might be set up by the true owner against the removal of property from premises shown to be his; but surely those placing a tenant in such an unfortunate position would not be heard to further add to the embarrassments and losses to which he had been subjected, by seizing what he had thereon.

However commendable the course of the defendant board may be in securing to the general public the right to the free use of the public oyster lands of the state, it should not allow its belated activity in this respect to make it do injustice to those with whom the state and its officers have done business in good faith and in a perfectly proper manner for so many years. No citizen should expect the state, in order to secure him in any right he may have in its oyster bottoms, to do more than fairly and justly deal with those to whom it has been leasing the same, in furtherance of its policy in respect thereto, and section 15, supra, as regards the very matter under consideration, was intended to afford such protection. To fritter away those rights on one technical pretext or another would be a travesty upon justice.

Considering the question of the constitutionality of the two provisions of the state Oyster Law, sections 15 and 39 above quoted, assailed by the complainant, the writer can but believe that the same are invalid, if what has been done in this proceeding can be successfully accomplished, in that they do not afford due process of law. to those who may be deprived of their property thereunder. Due process of law contemplates always adequate notice, a fair hearing, at which shall be accorded and enforced the equal protection of the laws, and that jurisdiction shall have been reposed in the tribunal