CHAPTER 393

An Act to amend and reenact §§ 28.1-52, 28.1-58, 28.1-74, 28.1-79, 28.1-82,
28.1-89, 28.1-92, 28.1-98, 28.1-101, 28.1-108, 28.1-109, 28.1-116, 28.1-
120, 28.1-124, 28.1-128, 28.1-184, 28.1-140, 28.1-146, 28.1-165 and
28.1-174 of the Code of Virginia, relating to license tax for fishing
in tidal waters, register marks, fishing structures, penalty for failure
to obtain license, displaying of tags, removal of stakes, taking of
oysters, export tax, records and tax of oysters taken from public
grounds, lines of Baylor survey, assignment of planting grounds,
rights of owner to waters within lawful survey, taking of clams and
oysters for household use, culling of oysters, carrying of dredges on
board boat, dredging on private oyster grounds, sale of oysters and
clams, permits to dredge oysters, amount of tax when crabs taken
and crabs for household use; and to repeal § 28.1-101.1 of the Code of
Virginia relating to the Baylor survey. rH 99]

Approved March 31, 1964

Be it enacted by the General Assembly of Virginia:

1. That §§ 28.1-52, 28.1-58, 28.1-74, 28.1-79, 28.1-82, 28.1-89, 28.1-92,
28.1-98, 28.1-101, 28.1-108, 28.1-109, 28.1-116, 28.1-120, 28.1-124, 28.1-128,
28.1-184, 28.1-140, 28.1-146, 28.1-165 and 28.1-174 of the Code of Virginia
be amended and reenacted as follows:

§ 28.1-52. No single fishing structure shall have a total length
greater than 1,200 feet, except in waters on the Eastern Shore south of
the entrance to Eastern Bay, where the allowable lengths of single struc-
tures shall be not more than 1,800 feet. Between successive fishing struc-
tures in the same row, clear and unobstructed intervals of at least 200 feet
shall be maintained, and adjoining rows of fishing structures shall be at
least 800 yards apart. In addition, a clear passageway at least 200 feet
wide shall be maintained, reaching from all regular navigable channels
0 all established boat landings. All stakes shall project not less than four
feet above the surface of the water of all stages of the tide. Any stake
10t complying with this condition shall be withdrawn.

No fishing device shall be placed within three hundred (300) yards
f the side or end of any other fishing device, unless in the same row. *

§ 28.1-58. It shall be unlawful to take, catch or round up with
purse net for the purpose of manufacture into guano, fish meal, or oil,
or buying or selling for such purpose, food fish, to an amount greater
than one per cent of the whole catch without immediately opening the
net and turning loose any such food fish while yet alive; or for any steamer
or other vessel licensed for the purpose of menhaden fishing to catch any
food fish for the purpose of marketing the same; or for any person, firm
or corporation to have in its possession food fish, to a greater amount than
one per cent of the bulk for the purpose of manufacturing them into
guano, fish meal, or oil, or for any person to use in any manner any food
fish, to a greater amount than one per cent of the bulk for the purpose
of fertilizing or improving the soil.

Any person, firm, corporation and/or any captain or master of any
vessel licensed for the purpose of menhaden fishing, violating any pro-
visions of this section or having in possession more than one per cent
of food fish among menhaden or buying, selling or transporting the same
shall upon conviction of violating any provision of this section be punished
by a fine of not less than five hundred dollars, nor more than two thousand
dollars and confined in jail for not less than thirty days, nor more than
six months, either or both.

_ § 28.1-74. Such metal plates or tags shall be furnished by the Com-
mission of Fisheries to the various inspectors of this State, who shall
furnish the same to the owners and operators of every boat used and
employed in the taking of fish or shellfish in the tidal waters of this State,
and the same shall thereupon be attached by the owner or operator of
such boat to such boat, in such a position thereon as may be designated by
the Commission of Fisheries as the proper place to display such metal
plate or tag, when the same cannot be attached to the device. It shall also
be the duty of each inspector, when issuing a license to any person to
operate or set a pound net, fyke net, gill net or other device for the taking
of fish, to furnish such licensee with a metal disc or tag, which such licensee
shall display upon such part of such pound net, fyke net, gill net or other
device*. Each of the aforesaid nets set in the water shall be marked by a
buoy or stake easily visible on the surface which must display the tag or
tag number herein provided. Any of the aforesaid nets in the water not
identified in this manner may be seized by a duly authorized inspector to
be held for any forthcoming legal proceeding.

§ 28.1-79. * Any person, firm or corporation fishing a pound net
or any other type fishing * device requiring the use of fixed poles or *
stakes, shall remove all such abandoned poles or stakes from the bottom
of the water where located; provided that one pole or stake may be left
standing at least four feet above mean high water at old stands as * az
identification marker.

Abandoned poles or stakes are considered to be such poles or stakes
which are not used for fishing.

The Commission may revoke any or all fishing licenses issued tc
such person, firm or corporation, as set forth in § 28.1-86, if abandoned
poles or stakes are not promptly removed. If any person, firm or corpo:
ration fails to remove such poles or stakes, he shall be guilty of a mis.
demeanor and punished as provided in § 18.1-9 of the Code of Virginia
The person, firm or corporation responsible for removal of such poles
or stakes shall be the person, firm or corporation who held the last licens.
for such fishing device.
§ 28.1-82. The season for taking oysters from the natural, or public
oyster beds, rocks, or shoals in any of the waters of this Commonwealth
shall be as follows:

By shaft tongs or by hand:

(1) James River seed area, from October first until June first.
diva (2) Seaside of the Eastern Shore, from November first until April

(8) All other areas of the waters of the Commonwealth, from October
first until April first.

By patent tongs:

(1) Chesapeake Bay, between Smith’s Point and Wolf Trap Light-
house, from October first to March first.

(2) Anywhere else in the Commonwealth where patent tongs are not
prohibited, from October first to January first.

It shall be unlawful for any person to take or catch oysters from
any of the natural, or public rocks, or shoals of this Commonwealth at
any time other than that provided above except the date for removal of
shellfish from restricted areas as set forth in Chapter 7 of this title. The
having of patent tongs and oysters in a boat at any time other than the
season for patent tongs as specified above, shall constitute prima facie
evidence of violating this section.

If any person be found upon the natural, or public rocks, beds or
shoals of this Commonwealth taking oysters or with tongs or other device
for taking or catching of oysters other than during the season listed above,
it shall constitute prima facie evidence of violation of this section.

§ 28.1-89. In addition to all other taxes imposed by law, there shall
be an export, or out-of-state tax of * ten cents per bushel imposed on all
oysters, including seed oysters, taken from any of the public oyster grounds
of this State and shipped unshucked from this State. A record shall be
kept on all out-of-state shipments.

§ 28.1-92. The Commission shall issue to licensed oyster buyers in
this State forms for use in reporting to the Commission. Except as pro-
vided in § 28.1-98, on or before the * fifth day of each month the oyster
buyer shall send to the Commission a complete report of all oysters
purchased the preceding month on the form above described setting forth
the total number of bushels of oysters taken from the public grounds,
the general area from which taken, * and the price paid together with
all taxes collected by them as required by § 28.1-93; provided, however,
the information provided herein shall be used only for the collection of
taxes mentioned in this section and for information to the Virginia Insti-
tute of Marine Science.

§ 28.1-98. There is imposed upon all oysters taken from the public
rocks, beds, or shoals the following replenishment tax: Oysters selling
for $1.50 per bushel or less, * 5 cents per bushel; oysters selling for $1.51
through $2.50 per bushel, 10 cents per bushel; oysters selling for $2.51
through $3.50 per bushel, 15 cents per bushel; oysters selling for $3.51
through $4.50 per bushel, 20 cents per bushel; oysters selling for $4.51
through $5.50 per bushel, 25 cents per bushel; oysters selling for $5.51,
or more per bushel, 30 cents per bushel.

The tax shall be collected by the oyster buyer from the person taking
or catching said oysters from the public rocks, beds, or shoals at the
time said oysters are purchased. All buyers of oysters from the seed area
of the James River shall file with the Commission the complete report as
specified in § 28.1-92 and shall pay to the Commission the proper amount
of taxes due and collected. Both the report and the taxes due shall be filed
and paid to the Commission at the time they pass the inspection point
located * in the area and before leaving the area.

The permit or license of any person purchasing, buying or selling
oysters taken or caught from public rocks, beds or grounds who fails
to comply with the requirements of this section shall be subject to re-
vocation by the Commission.

§ 28.1-101. _The Commission of Fisheries may re-establish, relocate
and remark all lines of the Baylor survey which cannot be otherwise re-
located because of the loss or destruction of marks which formerly existed.
In re-establishing any such lines of the Baylor survey the line surveyed
by Fred E. Ruediger shall be followed wherever such line exists or was
surveyed. Where no former line can be re-established the Commission
may establish a new line.

__ When such ground or grounds, line or lines shall have been re-estab-
lished and relocated, the same shall be taken and accepted as conclusive
evidence in all courts of the Commonwealth that the grounds so ascertained
to be natural oyster rocks, beds, or shoals are such; and that all grounds
lying outside of such boundaries are grounds open to rental under the
laws of this State. Plats shall be made under the direction of the Com-
mission showing the re-establishment of such lines, and shall be recorded
in the appropriate clerk’s office.

The Commissioner of Fisheries shall have available at all times copies
of the Baylor survey charts and plats, to be offered for sale to the public
wn such manner as the Commissioner may determine and a fee of three
dollars per copy shall be charged therefor.

§ 28.1-108. Any owner of land bordering on a body of water in the
oyster growing area of this State whose shore front measures at least
one hundred five feet at the low water mark, who has not had as much
as one-half acre of ground already assigned him on such front, or whose
lease has terminated and is not to be renewed, may make application
for planting grounds to the inspector for the district in which the land
lies, who shall assign to him such ground wherever such owner may
designate in front of his land not exceeding in area one-half acre, to be
not less than one hundred five feet wide along the shore and beginning
at low water mark, extending out not more than two hundred ten feet,
or to the middle of the body of water, or to the middle of the channel,
whichever is the shorter distance; the same to be surveyed, plotted, marked,
assigned and recorded in all respects as provided for assignments to per-
sons in § 28.1-109 of the Code of Virginia. There shall be no rent due or
collected on ground assigned pursuant to this section, and such owner
shall have the exclusive right to the use thereof for the purpose of planting
or gathering oysters and other shellfish. The assignment made pursuant
to this section shall pass with the transfer of the adjacent highland to the
subsequent owner of highland and cannot be held separated from said
highland.

If any portion of such waterfront be assigned to a riparian claimant
under this section, which at the time is occupied by others with oysters
actually planted thereon, the person occupying the same shall have eighteen
months in which to remove such oysters and such riparian claimant shall
pay all survey and assignment and recording charges incurred in con-
nection with the transfer of said riparian oyster planting ground.

This section shall, on and after July 1, 1962, be applicable in all
counties and cities of the State bordering such bodies of water, except
it shall not be applicable to riparian lands located above the James River
Bridge in the James River or its tributaries. In any county or city in this
State where more than one-half of ground per water front tract has
heretofore been assigned to a riparian owner, after July 1, 1962, saic
ground in excess of one-half acre shall be deemed to be ground under ¢
regular lease and assignment, and not a riparian assignment.

This section, so far as the quantity of land to be assigned to and helc
by riparian owners is concerned, shall not apply to the county of Northamp.-
ton, but section six of chapter two hundred and fifty-four, acts eighteen
hundred and eighty-three and eighteen hundred and eighty-four, shall
continue in force as to such county, but nothing herein contained shall be
construed as authorizing a rental of a lesser amount per acre than that
provided by law for riparian owners in the above-named county of the
land assigned them as such riparian owners; provided, that nothing in
such section which restores to riparian owners in such county one-fourth
of their respective waterfronts, suitable for planting oysters, shall be so
construed as to permit the owners of waterfronts to compel occupants
of such fronts to remove their oysters from any fourth of such shores,
if the residue of the shore be already in his, the landowner’s possession,
or be unoccupied.

Nothing in this section shall be construed to prevent the erection by

riparian land owners of wharves, landings or other structures as otherwise
permitted by law.

§ 28.1-109. (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 those within the limits of navigation projects adopted
and authorized by the Congress and those required for the disposal of
materials dredged incident to the maintenance of such projects, and 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, and may be leased by the Commission upon
proper application therefor.

(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 provided that at least sixty per cent of the stock of any such
corporation must be wholly owned by residents of the State of Virginia.
Provided further that 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. Applications shall be given
priority in the same order in which they are received by the inspector;
the applications shall be signed by the inspector when he receives them
showing time and date received and the method by which he received them.
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) Posting of notice of applications.—Notice of the application shall
be posted by the inspector for not less than sixty days at the courthouse
of the county or city in which the ground applied or [for] lies, and in at
least two or more prominent places in the vicinity of such ground.

(5) Advertisement of application—No assignment shall be made of
any piece of ground containing more than ten acres until notice of appli-
cation has been published in the county or city wherein the ground lies;
and if no newspaper be published in the county or city, then it shall be
published once a week for at least four weeks in some newspaper having
general circulation in the county within which the ground lies. This
publication shall be done in addition to the posting of the notices as re-
quired in paragraph (4) above, however, said publication may be done
within the same sixty-day period that the application is posted.

(6) Survey and marking of ground.—Sixty days after posting of the
notice of application, the inspector shall require the chief engineer of the
Commission of Fisheries to designate a surveyor to proceed to survey the
grounds, and said surveyor so designated shall survey said grounds and
make a plat in duplicate of the same. The surveyor shall forward the
plat of survey to the office of the Commission of Fisheries to be approved
by the engineer of the Commission within thirty days. If no protest to
the application or surveying of ground is made before the expiration of
thirty days after the plat of survey is recorded in the office of the Com-
mission of Fisheries, the ground applied for shall be assigned by the
inspector provided:

(a) That the application and assignment complies with all applicable
provisions of law and if in the judgment of the Commission of Fisheries
it shall be wise to do so.

(b) All fees, costs, and the annual rental has been paid for the lease
of said ground. The ground shall be marked at the expense of the appli-
cant, at the time the survey is made, and at the direction of the surveyor,
with suitable stakes or other such markers, as may be permitted and
approved by the Commission of Fisheries; and such suitable stakes or
markers 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, knocked 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 in-
spector 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) Application, surveyor’s fee and recording fee—Any applicant
for oyster-planting ground or for riparian oyster ground shall pay an
application fee of twenty-five dollars and in addition shall pay to the
surveyor for his services ten dollars for the first five acres or less; two
dollars per acre or fraction thereof for each acre more than five and up
to and including ten acres; one dollar per acre or fraction thereof for
each acre more than ten and up to and including thirty acres; fifty cents
per acre for each acre and fraction thereof more than thirty acres up to
and including fifty and twenty-five cents per acre for all over fifty acres;
and for drawing plat of ground (original and one duplicate), two dollars
per corner for each corner, up to and including four corners, and one
dollar per corner for all additional corners over four. Before assignment,
the applicant shall pay ten dollars for each assignment to the inspector
for surveying and recording fees. No ground shall be assigned until
surveyor’s fees have been paid.

(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 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
bequeath [bequest], 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 be less than seventy-five
cents per annum per acre.

(11) Payment of annual rental to inspector; penalty for default.—
Such an applicant shall pay to the inspector the annual rental for such
ground at the rate of one dollar and fifty cents per acre or any fraction
thereof, per annum, except as provided for the Chesapeake Bay, and for
bathing ground; such rental to be due on the first of September of each
year after the date of assignment; and if not paid on or before December
fifth, a ten per centum penalty shall be added to the annual rental charge,
and the inspector may proceed to levy for rental and penalty.

(12) Duration of lease-—Each assignment shall continue in force for
a period of twenty years from the date of assignment, unless said assign-
ment is terminated in one of the manners provided by law. At the end of
the twenty-year period, the holder shall continue to hold the same and
it shall continue a new and renewed assignment unless the holder notified
the district inspector or the Commissioner of Fisheries, that said assign-
ment is not to be renewed. 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 representative, or resident heirs if there be no qualification on
the estate, who shall notify the Commission office of the death of said
renter within one year. The rights of a nonresident heir or any other
person, in a lease, whose address is unknown and who cannot be located,
shall be deemed null and void after a period of twelve months. At the
expiration of the twelve months’ period, the Commission shall transfer
such lease to the person or persons who in its judgment it deems entitled
thereto.

If there be no such person, or persons, entitled thereto, the Com-
mission shall void the lease on its books and may accept applications
from the general public.

A nonresident heir must within twelve months transfer such rights
as he may have to a resident of Virginia. If such transfer is not recorded
in the Commission office within twelve months, whatever rights such
heir may have inherited shall become null and void. _

(12a) Upon the death of a lessee of record with surviving resident
heirs the Commission shall notify the personal representative of the said
deceased lessee or the resident heir or heirs to apply for a transfer of the
lease pursuant to § 28.1-112 and the Commission may require a survey or
resurvey should they deem it necessary.

If such application is not made within twelve months after receipt
of such notice, then whatever rights the personal representative, heir
or heirs may have in the lease shall cease and terminate and the Com-
mission shall cancel the lease on its books and may accept applications
therefor from the general public.

(12b) If the Chief Engineer and the Commission should determine
that in any past assignment of oyster ground or when there is any attempt
to transfer oyster ground, that there has not been a survey and/or a
recorded plat acceptable to the Commission and, in their opinion, does not
accurately describe the metes and bounds of the leased ground, the Com-
mission shall require the lessee and/or the transferor to have the ground
surveyed and the plat recorded.

If the lessee fails to order the survey or resurvey within six months
after date of notification to the lessee or transferor, by certified mail, the
Commission shall cancel the lease on its books and may accept applications
therefor from the general public.

(12c) The cost of any surveys and recording fees required under
paragraphs (12a) and (12b) hereof shall be borne by the lessee or trans-
feror and the cost and fees for same shall be the same as for surveys made
by the Commission.

(18) 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.

(14) Recordation of plat.—The plat and assignment, as soon as prac-
ticable 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
or city by the Commission of Fisheries. The county or city clerk shall
forthwith record the assignment and plat in a well-bound and substantial
book, such recording to be indexed in the name of the assignee. 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 six
dollars for each assignment. After the same has been recorded, the assignee
is entitled to withdraw the original from the clerk’s office.

(15) 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 to: (a) subsection (12)
of this section; (b) riparian rights; (c) the right of fishing in waters
above the bottoms, provided that no person exercising such right of
fishing shall use any device which is fixed to the bottom, or which, in any
way, interfered [interferes] with such renter’s rights or damages such
bottoms, or the oysters planted thereon; and (d) established fishing
stands, but only if said fishing stand license fee is timely received from
the existing licensee of said fishing stand and no new applicant shall
have priority over the said oyster lease. However, such fishing stand
location, assigned prior to the lease of said oyster ground, is to be con-
sidered a vested interest, a chattel real, and is an inheritable right which
may be transferred or assigned whenever the current licensee complies
CH. 393] ACTS OF ASSEMBLY 653

with all existing laws.

(16) Payment of rent by person who does not hold lease.—In any
case where the inspector has personal knowledge that the person in whose
name the lease was made, is dead, or unknown, and there is no one
actually claiming said property as an heir of the former lessee, and
there is a person personally known to the inspector who has paid the
rent on the ground for at least five years, the inspector shall notify the
person paying said rent that the ground may be assigned to someone
else, provided that the person paying the rent shall have thirty days
priority in which to perfect his application.

_ (17) Delinquent ground.—Any ground or area which becomes de-
linquent shall be open and available to be leased, after the following
conditions have been complied with:

(a) The Commission must have notified the person in writing on
or about September first of that year of the amount of rent due. If the
rent becomes delinquent, a second notice must be mailed by certified mail
on or about June first of the following year.

(b) If the person holding the lease does not pay all rents and penalties
due on or before June thirtieth of the following year the land may be
assigned if there is a valid application; provided that if the holder of the
lease is deceased said delinquent lands shall not be open for application
until one year has transpired from the time of the death.

(c) If the Commission has posted a list of delinquent oyster ground
in that county for thirty days at the court house and three public places
in the district in which the ground is located.

(18) Effect of proposal for navigation project.—From and after the
date on which the Commissioner of Fisheries receives information to
the effect that with regard to a specified navigation improvement project,
the Secretary of the Army has been authorized by congressional action
to cause a survey to be made on any such project, the Commissioner
shall obtain the consent and approval of the Governor before leasing
any public oyster-planting grounds which probably will be required for
dredging operations or spoil disposal areas in connection with such project.
If after the completion of the survey and a submission of the District
Engineers’ report thereon to the Chief of Engineers, U. S. Army, the
proposed navigation improvement project is not authorized, the affected
ground will again become available for lease and assignment.

Nothing in the above shall prohibit the renewal of any lease already
in existence at the time the Commissioner of Fisheries receives infor-
mation as to the authorization of a survey, as above set out.

§ 28.1-116. If any creek, cove or inlet within the jurisdiction of this
Commonwealth makes into or runs through the lands of any person, is
less than one hundred yards in width at mean low water and is comprised
within the limits of his lawful survey, such person or other lawful oc-
cupant shall have the exclusive right to use such creek, cove or inlet for
sowing or planting oysters or other shellfish; provided, however, that in
the county of Mathews the owners or lawful occupants of land on both
sides of any creek, cove or inlet, except Horn Harbor and Milford Haven,
suitable for the planting of oysters, above the point where such creek,
cove or inlet is one hundred yards in width, shall have the exclusive right
to use such creek, cove or inlet for planting oysters therein, the right of
the owners or occupants of land on the opposite sides of such creek, cove
or inlet to extend to the middle of the channel, wherever that may be from
time to time.

§ 28.1-120. (1) Application for license——Any resident of this State
wwho shall be duly qualified, and desires to take or catch oysters, clams or
scallops from the natural oyster beds, rocks, shoals or any other waters
of the Commonwealth, or water under the jurisdiction of the Common-
wealth, not leased for planting purposes, by hand or with ordinary or
patent tongs, or any instrument allowed by law other than a scrape or
dredge, shall first apply in writing to the inspector for a license.

(2) License taxes.—The license taxes shall be as follows:

(a) For each pair of patent tongs, fifteen dollars and seventy-five cents.

(b) For each person taking oysters or clams by hand, or with ordinary
tongs, five dollars and twenty-five cents.

A license issued for patent tongs shall entitle the holder, without the
payment of an additional license tax, to use ordinary tongs while not
using patent tongs. When such person shall have paid to the inspector
the amount of license required of him the inspector shall register such
person, and shall issue to him a license, which shall entitle him during
the season for which such license shall be issued to take or catch oysters,
clams or scallops from the natural oyster rocks, beds, or shoals, or any
other water of the Commonwealth or within the jurisdiction thereof, for
the period during which he is not prohibited by law from working on any
such natural rocks, beds or shoals.

If any person is found oystering, clamming or scalloping upon the
natural rocks, beds, shoals or other waters of the Commonwealth not as-
signed for shellfish culture without having been so licensed, or after having
his license revoked, or if he violates any provision of this section, such
person shall be guilty of a misdemeanor.

The license issued under the above provision of this section shall
entitle the holder to take either oysters, clams or scallops from the waters
of this Commonwealth, or from waters under the jurisdiction of this
Commonwealth, for and during the open oyster season; and shall, in
addition thereto, permit the holder of such license to take or catch clams
or scallops during the season prohibited by law for the taking of oysters,
from the public clamming bottoms of the Commonwealth.

(3) Tax for taking clams.—For each person desiring to take or catch
only clams by hand or with ordinary tongs the license tax shall be three
dollars and seventy-five cents and for any person desiring to use patent
tongs for the purpose of taking clams only, he shall pay to the inspector
a specific tax of eight dollars and twenty-five cents for each pair of such
tongs to be used; provided that these licenses for the taking of clams by
hand, or with tongs, ordinary or patent, shall entitle the holder thereof
to take only clams from the public clamming bottoms in the waters of this
Commonwealth and in the waters under its jurisdiction, and not from the
public oyster rocks, beds, and shoals, and is not to be construed, in any-
wise, to permit or authorize the taking of oysters at any time.

(4) Possessing oysters while taking clams.—If any person shall have
in his possession any oysters while taking or catching clams or scallops
under the preceding subsection during the season in which it is unlawful
to take or catch oysters from the natural rocks, beds or shoals, he shall
be prima facie guilty of violating the law of taking or catching of oysters
therefrom during the prohibited season.

(5) Taking clams in certain areas.—It shall be unlawful to take or
catch clams at any time, or by any means, in Pocomoke Sound above a line
drawn from Drum Bay Point, in the County of Accomack, and running
a north-northwest course to the line between the State of Maryland and
Virginia, except upon such grounds in those waters as may be set aside
for public clamming or scalloping purposes by the Commission of Fisheries.

(6) Restriction on size of clams.—It shall be unlawful for any person
to ship any clams measuring less than one and seven-sixteenths inches in
length from hinge to mouth, or to take or catch clams under such size
other than for seed or planting purposes. _

(7) Digging mussels.—Any person desiring to dig mussels from the
natural oyster rocks, beds and shoals shall pay an annual license of three
CH. 393 | ACTS OF ASSEMBLY 655

dollars and fifty cents, provided that if he holds a license to take or catch
clams or oysters he may dig mussels under the same license.

(8) Oysters and clams for household use exempted.—This section
shall not apply to the taking or catching of oysters or clams for immediate
household use but not for planting or for sale, provided that no one may
take more than * one bushel of oysters or two hundred fifty clams in any
one day without having a license.

(9) Any person violating the provisions of this section shall be guilty
of a misdemeanor.

§ 28.1-124. All oysters taken from any public natural rocks, beds, or
shoals in the waters of this State shall be culled on their natural rocks,
beds, or shoals as taken; and oysters whose shells measure less than three
inches in length, except those oysters taken from Russ Rock and Little
Carter’s Rock, in the Rappahannock River, whose shells shall be not less
than two and one-half inches in length, and all shells shall be included in
such culling, and replaced upon such rocks, beds or shoals. If oysters
from leased grounds and oysters from public grounds are mixed in the
same cargo on a boat or motor vehicle the entire cargo shall be subject
to cull under this section.

All oysters once passing from the culling board to the inside of the
boat when found to include oysters less than the size above prescribed,
and all shells, the entire cargo shall be considered as not having been
culled as taken, according to the provisions of this section.

When small oysters are adhering so closely to the shell of the market-
able oysters as to render removal impossible without destroying the young
oyster, then it shall not be necessary to remove it.

In the inspection of oysters under this section, the law enforcement
Officer shall, with a shovel, take at least one bushel of oysters at random,
provided that the entire bushel shall be taken at one place in the pile of
oysters. If as many as one Virginia oyster gallon measure of undersized
unshucked oysters and/or shells are found per bushel inspected, it shall
constitute a violation of this section. In the inspection of seed oysters
taken from the James River seed area, or any other area designated as
seed area by the Commission of Fisheries, if as many as one and one-half
Virginia oyster gallon measure of shells are found per bushel inspected,
it shall constitute a violation of this section.

It shall be unlawful to have more than one-half gallon of shucked
oysters kept on board of a boat tonging on the public rocks.

Any violation of any provision of this section shall constitute a mis-
demeanor. Any person charged with violating any provision of this section
shall be required, by the officer making said charge, to scatter the entire
cargo of oysters on the public rocks under the supervision of an inspector
and at the expense of the person charged with the violation. Provided that
in lieu of throwing said cargo overboard the person charged with said
violation may post cash bond with the officer making the charge in an
amount approximately equal to the value of the entire load as determined
by the officer making the charge. The refusal to either dump the oysters
overboard or post a cash bond shall constitute a distinct and separate
offense from any other violation. A person who has posted a cash bond
who is acquitted shall be refunded said cash bond, if found guilty said
cash bond shall be forfeited and deposited to the credit of the special oyster
replenishment fund.

The aforesaid requirement to scatter the entire cargo of oysters on
the public rocks shall only apply to a cargo of oysters taken by any
catcher from the public oyster grounds and shall not apply to oysters
which have been purchased by a buyer and in the buyer’s possession.

§ 28.1-128. It shall be unlawful for any person at any time to take
and catch oysters with dredges and scrapes from any public rocks, beds,
or shoals in this State; provided, however, that the Commission may
authorize the use of dredges upon the public rocks, beds and shoals of
Tangier Sound, to-wit: Johnson’s Rock, Thoroughfare Rock, Fox’s Island
Rock, John’s Rock, Klondike Rock, and the California Rock, during the
months of December, January and February.

It shall be unlawful for any person to have on board a boat a dredge
or equipment normally used for dredging, unless he has a permit to dredge,
or a license to dredge, and has said license or permit available for in-
spection on board of said boat.

It shall be unlawful for any dredge or any equipment to be used in
dredging, approved by license or permit, to be carried or transported
on board a boat of the licensee or permittee, or his employee, except when
actually in use, or going to or coming from the grounds on which the
dredging is permitted or licensed to take place or to and from one dock
to another dock for maintenance and repairs to such boat and/or
equipment.

§ 28.1-134. (1) It shall be lawful for any resident of this State
holding under legal assignment oyster-planting ground * of at least three
acres in one tract or adjoining tracts and having paid the rent therefor,
to dredge or scrape the same at any time, except on Sunday or at night;
provided he obtain from the Commission of Fisheries a permit for each
boat which is used to dredge or scrape such specified private oyster ground,
such permit shall show the name of the lessee and the name or number
of the boat, date of issue and date of expiration, which expiration date
shall not be more than twelve months from date of issue and may be re-
newed for like periods from time to time; and provided, further, that the
Commission may after a hearing refuse to grant a permit or renew the
same to dredge or scrape any oyster-planting ground unless it be proved
that the holder thereof has planted seed oysters or shells thereon and is
using said planting ground for the cultivation of oysters and may refuse
to grant said permit if it appears to the satisfaction of the Commission at
said hearing that the holder of said ground is an habitual violator of the
seafood laws; provided, further, that applicant for said permit shall have
the right of appeal from any decision of the Commission of Fisheries re-
fusing to grant said permit as provided in chapter two of this title. The
Commission shall receive one dollar for each such permit issued.

(2) It shall be unlawful for any person to have on board a boat, a
dredge or equipment normally used for dredging, unless he has a permit
to dredge, or a license to dredge and has said license or permit available
for inspection on board of said boat.

It shall be unlawful for any dredge or any equipment to be used in
dredging, approved by license or permit, to be carried or transported on
board a boat of the licensee or permittee, or his employee, except when
actually in use, or going to or coming from the ground on which dredging
is permitted, or licensed to take place, or to and from one dock to another
dock for maintenance and repairs to such boat and/or equipment. |

(3) No person shall have or enjoy the privilege hereinbefore granted
of dredging or scraping his oyster-planting ground unless he shall have
first properly designated and marked the oyster lines of his planting
ground by placing prominent and fixed buoys or stakes thereon, such
buoys or stakes to be so many inches in diameter and to extend so far
above water as the Commission of Fisheries, or the Commissioner, may
direct, and the same shall be kept up and maintained so as to distinctly
mark the outer line or lines of such planting ground. The buoys shall be
painted white, and shall have the initials of the person or firm whose
property they are, placed upon them near the top, in black letters, of not
less than five inches in length. If stakes are used there shall be a sign
painted as prescribed for buoys attached to each corner stake.

(4) Marking boats. Such initials shall also be placed upon each side
of the prow of any boat or craft used or employed in dredging or scraping
such planting ground. .

§ 28.1-140. It shall be unlawful for any person, firm or corporation
to * offer for sale, sell and/or distribute * oysters or clams as Virginia
oysters or clams * unless such oysters and clams * have been in the waters
of the Commonwealth of Virginia or the Potomac River for a period of at
least * six months. *

Any oysters or clams imported into Virginia, either shucked or
unshucked, when sold or distributed, shall not be designated or labeled
in any manner indicating they came from Virginia waters or that they
are Virginia oysters or clams. ;

The name, address and Department of Health certificate number on

the package or container of the packer or distributor shall not be con-
sidered illegal designation or labeling.
_ _§ 28.1-146. It shall be unlawful for any person to dredge for oysters
in the James River during the open season for taking oysters from the
public rocks and shoals; provided, however, that the Commission of Fish-
eries may grant a permit to applicants therefor to dredge in specified
areas.

§ 28.1-165. Any resident of this State desiring to take or catch
crabs for market or profit from the waters of this Commonwealth, or
waters under its jurisdiction, by any of the means hereinafter stated, or
any person desiring to engage in the business of buying or marketing
crabs for packing or canning the same in any way, shall pay to the
inspector of the district in which he resides the taxes and be subject to
the provisions set forth in the other sections of this article and the fol-
lowing subsections:

(1) For each person taking or catching crabs by dip nets, net, ordi-
nary trot line, hand rake, or hand scrape, pushed or pulled, or with any
device other than hand line, three dollars and seventy-five cents; provided
that no boat shall be used to pull or push any rake or scrape except as
provided for in subsections (4) to (8) of this section.

(2) For each person taking or catching crabs with patent trot lines,
fifteen dollars and seventy-five cents.

(3) For each boat operator catching blue crabs by means of a device
made of wire or thread net and commonly known as a crab pot, fifteen
dollars; or if catching crabs with one or more assistants twenty-five
dollars; but no such pot or device shall be used which has a mesh less
than one and one-half inches. A holder of a crab pot license may use
peeler pots, exempt from mesh size limitations, without securing addi-
tional license. A peeler pot is defined as a wire mesh pot baited with only
live adult male (jimmy) blue crabs. Provided, however, that during the
months of June, July and August any person 15 years of age or under
may be an assistant to a boat operator catching blue crabs by means of a
device made of wire or thread net without obtaining a license.

(4) For boat used for the purpose of taking or catching hard crabs
with power-lifted scrapes or dredges, thirty dollars; but such boat shall
not be used as a boat for buying crabs, when the Commission limits the
taking of crabs under § 28.1-168.

(5) (a) For each person, firm or corporation picking * crabs, six-
teen dollars and fifty cents.
dolla’ For each person, firm or corporation shedding crabs, eleven

rs.

Anyone purchasing a license as provided in parts (a) and (b) of this
subsection shall not be required to purchase a crab buyer’s license.

(6) For each boat or motor vehicle in excess of * one used in buying
crabs, and for each person or firm engaged in marketing crabs by barrel
or crate, eight dollars and twenty-five cents; but no person who is licensed
to catch crabs shall be required to procure "further license: for marketing
or shipping his own catch.

(7) For each crab trap or crab pound, two dollars and fifty cents.

P (8) For scraping crabs with a hand scrape, eight dollars and twenty-
ve cents.

§ 28.1-174. Anyone may take or catch by dip net or by one single
crab pot, not exceeding one bushel of crabs per day for household use
only, without obtaining a license.

If crabs are taken or caught in any other manner, for any purpose,
all provisions of chapter 6 of this Title relating to crabs shall apply

thereto.
2. That § 28.1-101.1 of the Code of Virginia is repealed.