CHAPTER 183

An Act to amend and reenact § 28-124, as amended, of the Code of Vir-
ginia, relating to public oyster-planting grounds. CH 485]

Approved March 4, 1958

Be it enacted by the General Assembly of Virginia:

1. That § 28-124, as amended, of the Code of Virginia, be amended and
reenacted as follows:

§ 28-124. (1) Grounds comprising.—The residue of such water
front in excess of what is already assigned or is reserved for the riparian
owners, and the residue of the beds of the bays, rivers, creeks, and shores
of the sea other than natural oyster beds, rocks or shoals, as defined
by law and included in the Baylor survey, may be occupied for the purpose
of planting or propagating oysters thereon.

(2) Eligible applicants; provisions of section incorporated in lease.—
Application for assignment of oyster-planting ground may be made by
any resident of the State, or by any firm, or corporation chartered under
the laws of this State for the purpose of oyster culture and the oyster
business; and it shall be lawful for nonresidents to be stockholders in
such a firm or corporation provided such firm or corporation employ only
resident labor in planting, cultivating, selling and marketing the oysters
grown on the ground or land so occupied, and provided its principal place
of business for selling and marketing such oysters be maintained within
this State; and the provisions of this section shall be incorporated in any
lease of oyster ground to any such firm or corporation, and the violation
thereof shall forfeit the lease.

(3) Application for assignment.—All applications for assignment of
oyster-planting grounds shall be made in writing to the inspector of the
district wherein the ground lies, in duplicate. The application shall state
as near as may be the number of acres applied for and definite location,
with the name of one or more prominent points or objects adjacent to
such ground. A duplicate copy of this application shall be immediately
forwarded to the office of the Commission of Fisheries by the inspector.
It shall be the duty of any resident, firm or corporation desiring to obtain
a location for planting or propagating oysters to apply to the inspector
of the district in which such land lies to have the location ascertained,
designated, surveyed and assigned.

(4) Publication of notice of application—No assignment shall be
made of any piece of ground containing more than ten acres until notice
of application has been published once a week for at least four weeks in
some newspaper published in the county wherein the ground lies; and if
no newspaper be published in the county, then it shall be published once
a week for at least four weeks in some newspaper having general cir-
culation therein. This provision is in addition to the sixty-day posting of
the application required.

(5) Posting notice of application.—Notice of the application shall
be posted by the inspector for not less than sixty days at the courthouse
of the county in which the ground lies, and at two or more prominent
places in the vicinity of such ground.

(6) Survey and marking of ground.—Sixty days after posting of the
notice of application, the inspector shall notify the county surveyor, or
such surveyor as may be designated by the Commission of Fisheries, to
proceed to survey the ground, conforming to the rules and regulations
of the Commission of Fisheries, and make a plat in duplicate of the same.
The surveyor shall forward the plat of survey to the office of the Com-
mission of Fisheries to be approved by the engineer of the Commission
within thirty days, before same is assigned by the inspector. The ground
shall be marked at the expense of the applicant, at the time the survey is
made, and at the direction of the surveyor, with suitable stakes, smooth and
free from snags and spurs; provided that where the War Department of
the United States Government forbids the use of such stakes on account
of interference with navigation, such other markers, as may be permitted
by the War Department and approved by the Commission of Fisheries,
may be used instead of stakes; and such suitable stakes or other markers,
as aforesaid, shall be kept by the lessee in their proper places at all times
during the continuance of such lease, so as to conform accurately to the
survey. Should such stakes or other markers be removed, rot down, or be
carried away, the lessee shall replace them in their proper places; and if
he fails to do so within thirty days after being notified by the inspector
of the district in which the ground lies, the lessee shall have no claim
against any person for trespassing on the ground in any manner.

(7) Fees of surveyor.—Any applicant for oyster-planting ground
shall pay to the surveyor for his services five dollars for the first five
acres or less; one dollar per acre or fraction thereof for each acre more
than five and up to and including ten acres; fifty cents per acre or fraction
thereof for each acre more than ten and up to and including thirty acres;
twenty-five cents per acre for each acre and fraction thereof more
thirty acres up to and including fifty acres, and ten cents per acre for all
over fifty acres; and for drawing plat of ground (which shall be in dupli-
cate), one dollar per corner for each corner up to and including four
corners, and fifty cents per corner for all additional corners over four.
The surveyor shall have the same privileges and rights as to the collection
of his fees as does the inspector. .

(8) Restrictions on assigned acreage and applications.—No assign-
ment, except in Chesapeake Bay, shall exceed two hundred and fifty acres.
No applicant, after having had as much as two hundred and fifty acres of
oyster ground assigned to him, shall again make application for another
assignment of oyster grounds within six months from the day his assign-
ment was recorded and completed as the statutes hereinafter provide. If
an assignment be not made within six months after the expiration of the
notice required by statute to be posted for sixty days, such application
shall, upon the expiration of the six months, lapse and become null and
void, unless an extension is allowed by the Commission, of not more than
ninety days, provided, however, that in cases where a protest has been
filed with the Commission against the granting of an application, the
application shall not lapse until the commission has finally acted upon
the application.

(9) Restriction on acreage owned or operated.—No person, firm or
corporation shall own or operate more than three thousand acres of oyster
grounds in the waters of this State other than the Chesapeake Bay; and
should ground in excess of three thousand acres be acquired by original
assignment to the assignee, or be assigned to him or them by a lawful
holder of such oyster ground, or as heir or distributee, or by devise or be-
quest, he or they shall, nevertheless, have a right to lawfully hold the
same for and during the period of one year and shall have a legal right
to assign the same. Should no assignment be made within one year, the
oyster-planting ground so acquired, in excess of three thousand acres,
shall revert to the Commonwealth of Virginia, and may be applied for by
any person having a legal right to do so.

(10) Application for planting ground in Chesapeake Bay; acreage
allowed; annual rental—Application for planting ground in Chesapeake
Bay in waters from fifteen feet or more in depth shall be made to the
Commission of Fisheries, which shall have the right to accept or reject
any such application as it may deem best for the public interests; and the
number of acres to be assigned to any applicant shall not exceed five
thousand acres, provided that such assignment shall not interfere with
the established fishing rights. Any such application, surveying, and mark-
ing shall conform to the law pertaining to oyster-planting grounds. The
annual rental per acre in the Chesapeake Bay, in waters from fifteen feet
or more in depth, shall be such an amount per acre as the Commission of
Fisheries may designate, but in no case shall it be less than fifty cents per
annum per acre.

(11) Application for other planting grounds.—After notice of an
application has been posted and/or published for sixty days as herein-
before required, the ground surveyed, and plat made in duplicate, the in-
spector shall assign the ground to the applicant; provided that. if in the
judgment of the Commission of Fisheries it shall be wise to do so; and
further provided that the applicant pay to the inspector the surveying
charges, if the survey is made by an agent of the Commission of Fisheries,
and the annual rental prorated from the date of the assignment to the
next rental year, this proration to be computed on the total number of
acres to be assigned, and a recording fee of two dollars for each assign-
ment of not in excess of ten acres; two dollars and fifty cents for each
assignment in excess of ten acres but not in excess of twenty-five acres,
and three dollars for each assignment in excess of twenty-five acres. When
these provisions have been met, the inspector shall then assign the ground
to the applicant, and no person, firm, or corporation shall be considered
a lawful renter of oyster-planting ground until he shall have first complied
with these provisions.

(12) Payment of annual rental to inspector; penalty for default—
Such an puplean’ shall pay to the inspector the annual rental for such
ground at the rate of one dollar per acre per annum, except as provided
for in the Chesapeake Bay, and for bathing ground and riparian rights;
such rental to be due on the first day of September of each year after the
date of assignment; and if not paid on or before December fifth, a five
per centum penalty shall be added to the annual rental charge, and the
inspector may proceed to levy for rental and penalty.

(18) Duration of assignmnet; renewal of lease.—Each assignment
shall continue in force for a period of twenty years from the date of
assignment; and if such applicant shall hold such ground for the full
period of twenty years and at the expiration thereof decide to continue to
hold the same and to have the lease renewed, then, provided such ground
is still open to lease under the then existing law, such applicant shall have
prior right over all others for a renewal of the lease of the ground; subject
to any such laws or regulations as the General Assembly may enact or
prescribe, and to such rental as may be then fixed by law. The interest in
such ground shall be construed as a chattel real, and at the death of the
renter pass into the hands of the personal representatives for the benefit
of any creditors or heirs of the decedent. Should any lessee of oyster-
planting ground have his ground, or any portion thereof resurveyed or
should he reassign any or all of the ground, such resurvey or reassignment
shall not be construed to be a twenty-year renewal of his lease, or as a
new assignment of such ground, but shall be deemed to be a continuation
of the original assignment, subject to all the limitations and conditions
under which such ground was originally assigned.

(14) Possession gives no preference as to assignment.—Any person,
firm, or corporation in possession of any oyster-planting ground which
has not been assigned according to law shall have no preference as to
having the same assigned to him, but such ground shall be open to the first
applicant.

(15) Recordation of plat and assignment.—The plat and assignment,
as soon as practicable after completion, and after such ground shall have
been assigned to the applicant, shall be filed for record by the inspector in
the office of the Commission of Fisheries, and in the office of the clerk of
the county by the Commissioner of Fisheries. The county clerk shall
forthwith record the assignment and plat in a well-bound and substantial
book, such recording to be indexed 1n the name of the assignee, and there-
upon at once a written memorandum shall be posted by the clerk of the
court at the front door of the courthouse, stating the name of the assignee,
the date of recordation, the number of acres assigned, and the general
location of the ground. The clerk of the court shall receive the said plat
and assignment and record the same, and shall be paid by the Commission
for his services a fee of * siz dollars for each assignment. * After the
same has been recorded, the assignee is entitled to withdraw the original
from the clerk’s office.

(16) Monthly reports of assignments.—Each inspector shall send in
to the office of the Commission of Fisheries not later than the fifth of each
month all assignments made by him during the preceding month, such
assignments to be reported on blanks provided the inspector by the Com-
mission, and these forms to state the name of applicant to whom assigned,
the waters where, the number of acres, the date of assignment, and the
address of the applicant. a

(17) State guarantees rights of renter subject to right of fishing.—
To any person, after having complied with all requirements, as set forth
in the statutes necessary to have ground assigned to him, the State will
guarantee the absolute right to the renter to continue to use and occupy
such ground for the term of the lease; subject only to the right of fishing
in waters above the bottoms and riparian rights, so long as the rent for
each year is paid not later than December fifth of such year. No person
exercising such right of fishing shall use any device which is fixed to the
bottom, or which, in any way, interferes with such renter’s rights, or
damages such bottoms, or the oysters planted thereon.

(18) Abandonment without liability for future rent—The lessee of
any oyster-planting ground, the rent of which is to be paid to the following
September of any year, may abandon his or her holdings at any time with-
out being liable for the payment of the rent for the following year, provid-
ed they notify the inspector, deputy inspector or the Commission of Fish-
eries in writing of their intention so to do before September first. Such
notice, when received by the inspector or deputy inspector, shall be im-
mediately forwarded by such inspector or deputy inspector to the office of
the Commissioner.