Thurston v. Hudgins 1

• Decision Date: 24 January 1895
• Citation: 20 S.E. 966,93 Va. 780
• Parties: THURSTON . v. HUDGINS et al.1
• Court: Virginia Supreme Court

20 S.E. 966

93 Va. 780

THURSTON .

v.HUDGINS et al.¹

Supreme Court of Appeals of Virginia.

Jan. 24, 1895.

Mandamus—To Oyster Inspection—Location of Oyster Bed—Exercise of Discretion.

1. Section 2153, Code 1887, makes it unlawful for any one to stake in or use for the purpose of planting oysters any natural oyster bed, and section 2137 provides that when one desires to stake in a bed he shall apply to an oyster inspector to have his location ascertained, and that the inspector must make an examination to see whether the place applied for is a natural oyster bed. Held, that when an inspector has made such examination, and determined in favor of the applicants that the place applied for is not a natural oyster bed, and assigned them the right to use it, mandamus does not lie to compel him to remove the stakes set around such bed by such applicants, as the duties performed are quasi judicial.

2. Where the official duty involves the necessity on the part of the officer of making an examination or investigation and forming a judgment thereon, mandamus will not lie to compel the performance of the act.

Error to circuit court, Mathews county. Petition by James B. Thurston for man-damus to compel Thomas J. Hudgins to require the removal of certain stakes from certain oyster grounds. A demurrer to the petition was sustained, and petitioner brings error. Affirmed.

W. B. Taliaferro, for plaintiff in error.

Johu B. Donovan, Maryus Jones, James N. Stubbs, and Robt. McCandlish, for defendants in error.

BUCHANAN, J. James B. Thurston filed his petition in the circuit court of Mathews county at its October term, 1891, praying for a writ of mandamus against Thomas J. Hudgins, one of the oyster inspectors of that county, to compel him to give notice to Sydney T. Mathews and T. Conkling to remove their stakes and other obstructions from certain oyster ground described in said petition, and, in the event of their failure to remove such stakes and obstructions after they had received such notice, to compel the said oyster inspector to remove the same himself at the costs of said Mathews and Conkling. To this petition there was a demurrer, and the court, at its September term, 1893, sustained the demurrer, and dismissed the petition. That judgment of the circuit court is now before this court upon a writ of error.

The plaintiff in error alleges in his petition that the said Hudgins, oyster inspector, as aforesaid, had assigned (improvidently, as petitioner supposed) to the said Mathews and Conkling, as a reservation for planting oysters and shells, 20 acres, or some part thereof, of the bed of Mobjack Bay, lying in said county, and that the said Mathews and Conkling had proceeded to stake in the said described part of the bay so assigned to them by the said inspector for the purpose of planting oysters or shells thereon, and that they are now occupying the same for that purpose. It further alleges that the said 20 acres so assigned, or some part thereof, is a natural oyster bed, rock, or shoal, and that such natural oyster bed, rock, or shoal cannot be assigned to any person for his exclusive use or enjoyment, but must be held in common for the benefit of all the people of the commonwealth. It further alleges that the petitioner and other citizens of the commonwealth had given notice to the inspector requesting him to give notice to Mathews and Conkling to remove their stakes and other obstructions from the bed so assigned them, and that Hudgins, inspector, refused to give such notice, or to remove the stakes and obstructions himself. Section 2153 of the Code provides that: "It shall not be lawful for any person to stake in, or use for the purpose of planting oysters or 6hells 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. Each inspector shall require any such person within his limits to remove all oysters planted, and all stakes, watch-houses or other obstructions, from said natural beds, rocks or shoals; and if after notice such person refuse or fail to remove his stakes or other obstructions,...