McCready v. Commonwealth

• Decision Date: 17 February 1876
• Citation: 68 Va. 985
• Parties: MCCREADY v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

68 Va. 985

MCCREADY v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

February 17, 1876

1. The act of April 18, 1874, Sess. Acts of 1874, ch. 214, s. 22, p 243, which forbids the planting of oysters in the waters of the state by any person not a resident of the state, is a constitutional act; not in conflict with either article 1 section 8, or article 4, section 2, of the constitution of the United States.

2. The navigable waters and the soil under them within the territorial limits of the state are the property of the state, to be controlled by the state at its own discretion for the benefit of the people of the state; only so as not to interfere with the authority of the government of the United States in regulating commerce and navigation.

3. The immunities and privileges secured to all citizens of the United States by the constitution, are the right to protection by the government; the enjoyment of life and liberty; to acquire and possess property of every kind; and to pursue happiness and safety. But they do not include the right to share the property belonging to the people of the state.

At the November term, 1874, of the county court of Gloucester, the grand jury indicted J. W. McCready, for that on the 1st of September 1874, in the said county, the said J. W. McCready being then and there other than a citizen of this state, did unlawfully plant oysters in the waters thereof, to wit: in Ware river.

Though McCready was regularly served with process, he did not appear; and after several continuances of the case, the court, at its July term 1875, directed the plea of not guilty to be entered for him; and on the trial the jury found him guilty, and assessed his fine at five hundred dollars; and the court rendered a judgment thereon. McCready thereupon applied to the circuit court of the county for a supersedeas to the judgment; which was allowed; but when the case came on to be heard in that court, the judgment of the county court was affirmed. He then applied to this court for a writ of error; which was awarded.

Ould & Carrington, for the appellant.

The Attorney General, for the commonwealth.

OPINION

ANDERSON, J.

By an act of assembly approved April 18, 1874 (§ 22, chap. 214, p. 243, Sess. Acts 1874), " If any person (other than a citizen of this state) shall take or catch oysters, or other shell fish, in any manner, or plant oysters in the waters thereof," & c., " he shall forfeit $500 and the vessel, tackle and appurtenances." This is an indictment against the plaintiff in error, who is other than a citizen of this state, for planting oysters in the waters thereof, to wit: in Ware river, in violation of said 22nd section.

The prosecution is resisted upon the ground that the above section is an infringement of the constitution of the United States; because it is contrary, first, to article 4, section 2, " The citizens of each state shall be entitled to all privileges and immunities of citizens of the several states; " and second, to article 1, section 8, " The congress shall have power to regulate commerce with foreign nations and among the several states," & c.

It seems to be well settled, that the states respectively, are entitled to the navigable waters within their several territorial limits, including both the water and the land under the water. In Martin v. Waddell, 16 Peters R. 367, 407, Ch. J. Taney, speaking for a majority of the court, says, " We do not propose to meddle with the point, as to the power of the king since Magna Charta, to grant to a subject a portion of the soil covered by the navigable waters of the kingdom; for when the revolution took place the people of each state became themselves sovereign, and in that character hold the absolute right to all their navigable waters and the soils under them, for their own common use; " as expressed by Ch. J. Kirkpatrick, of the supreme court of New Jersey, " The people of the state since the revolution being invested with the regal rights as sovereign, and having themselves both the legal estate and the usufruct, may make such disposition of them, and such regulations concerning them, as they may think fit; " " subject only," Ch. J. Taney adds, " to the rights since surrendered by the constitution to the general government." We will after a while consider what they are.

In Smith v. State of Maryland, 18 How. U. S. R. 71, it was held by the supreme court of the United States, Mr. Justice Curtis delivering the opinion, that whatever soil below low-water mark is the subject of exclusive property and ownership, belongs to the state on whose maritime border and within whose territory it lies, subject to any lawful grants of that soil by the state, or the sovereign power which governed its territory before the declaration of independence." He goes on further to say: " The state holds the property of the soil in some sense in trust for the enjoyment of the public rights, among which is the common liberty of taking fish, as well shell fish as floating fish, and may regulate the modes of enjoyment, so that they may not render the public property less valuable, or destroy it altogether." " And this power (he says) results from the ownership of the soil, the legislative jurisdiction of the state over it, and from its duty to preserve those public uses for which the soil is held." Among those public uses is the right of the people of the state to take and plant oysters subject to the regulations of law. Chief Justice Marshall says, speaking for the court, in Johnson v. McIntosh, 8 Wheat. R. 543, 584: By the treaty which concluded the war of our revolution, the powers of government and the right to soil, which had previously been in Great Britain, passed definitively to these states. Great Britain by that treaty relinquished all claim, not only to the government, but to the proprietary and territorial rights of the United States.

Chief Justice Taney, 16 Peters, supra, p. 416, says: " When the people of New Jersey took possession of the reins of government, and took in their own hands the powers of sovereignty, the prerogatives and regalities which before belonged either to the crown or the parliament became immediately and rightfully vested in the state." In the City of Mobile v. Eslava, 16 Peters R. 234, 254, Mr. Justice Catron said: " That the original states acquired by the revolution the entire rights of soil and of sovereignty in the navigable waters within their territory is most certain." And " that each and all of the states have sovereign power over their navigable waters above and below the tide no one doubts." (P. 259.)

Mr. Justice Washington said, in Corfield v. Coryell, 5 Wash. C. C. R. 381, a several fishery, either as the right to it respects running fish, or such as are stationary, such as oysters, clams, and the like, is as much the property of the individual to whom it belongs, as dry land or land covered by water, and is equally protected by the laws of the state against the aggressions of others, whether citizens or strangers. Where those private rights do not exist to the exclusion of the common right, that of fishing belongs to all the citizens or subjects of the state. It is the property of all, to be enjoyed by them in subordination to the laws which regulate its use. They may be considered as tenants in common of this property, and they are so exclusively entitled to the use of it, that it cannot be enjoyed by others without the tacit consent or the express permission of the sovereign, who has the power to regulate its use. Grotius says (b. 2, ch. 2, sec. 5), the sovereign who has dominion over the land or waters in which the fish are, may prohibit foreigners from taking them.

It is the right to the use of land covered with water that is in question here, rather than the water which covers it--of land which may be applied to the planting and growing of oysters and which may be used for that purpose, just as other lands are used for the purposes for which they are peculiarly adapted. The lands which may be used for the purpose of growing and cultivating oysters, as...