decided: December 5, 1921.
COMMISSION OF FISHERIES OF VIRGINIA ET AL.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF VIRGINIA.
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MR. JUSTICE McREYNOLDS delivered the opinion of the court.
Appellant sought a temporary injunction restraining the Virginia Commission of Fisheries form removing the stakes and marks which designated the boundaries of certain oyster grounds in the Rappahannock River, planted by him and which he claimed the right to occupy, and thereby opening the same for public use and enjoyment.
He maintained that the Commission was proceeding under a state statute invalid because it failed to provide for proper notice and hearing and that the proposed action would deprive him of property without due process of law contrary to the Fourteenth Amendment.
A majority of the three judges composing the court below concluded -- 264 Fed. 116 -- that the Commission had acted in substantial compliance with the challenged statute, that whatever rights of property appellant claimed in respect of the specified lands, or the oysters thereon, were necessarily based upon the statute itself and that he could not both assail it and rely upon it in the same proceeding. Kansas City, Memphis & Birmingham R.R. Co. v. Stiles, 242 U.S. 111, 117. And further that the evidence showed conclusively that the threatened
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action would not deprive him of any property which he could rightfully claim. It accordingly refused to grant a temporary injunction but did not dismiss complainant's bill. We find no reason to interfere with this decree and it is affirmed.
MR. JUSTICE CLARKE concurs in the result.
1 "§ 15. Resurveys of Planting Ground. -- When, by any resurvey of oyster-planting 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 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 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 said ground . . ."
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