OYSTER. The right to take shell fish be low high water mark from natural beds in tide waters is common to all citizens of the state, except as restrained by positive law or grants from the state ; Brown v. De Groff, 50 N. J. L. 409, 14 Atl. 219, 7 Am. St. Rep. 794; Allen v. Allen, 19 R. I. 114, 32 Atl. 166, 30 L. R. A. 497, 61 Am. St. Rep. 738 ; Cook v. Raymond, 66 Conn. 285, 33 Atl. 1006. "A natural oyster-bed" is one not planted by man; State v. Willis, 104 N. C. 764, 10 S. E. 764. There is a right of property in artifi cial oyster beds planted in public or naviga ble waters, In spots designated by stakes or otherwise; State v. Taylor, 27 N. J. L. 117, 72 Am. Dec. 347; McCarty v. Holman, 22 Hun. (N. Y.) 53; the owner must, clearly mark out and define his beds; Brinckerhoff v. Starkins, 11 Barb. (N. Y.) 248; this right is in the nature of a license from the state, which the state may revoke; Fleet v. Hege man, 14 Wend. (N. Y.) 42; Hess v. Muir, 65 Md. 586, 5 Atl. 540, 6 Atl. 673.
A state has power to .regulate the oyster industry although carried on under its tidal waters; Lee v. New Jersey, 207 U. S. 67, 28 Sup. Ct. 22, 52 L. Ed. 106. It may forbid the lease of oyster beds lying under certain tidal waters within the state to any person not a citizen and resident of such state unless he was using such bed at the time of the passage of the act, the right to cultivate and plant oysters not being a privilege or im munity, but a property right ; State v. Cor son, 67 N. J. L. 178, 50 Atl. 780; but it was held that an act making it a misdemeanor for one not a citizen of the United States and a resident and tax payer of the state to take oysters was invalid as in violation of the Texas bill of rights ; Gustafson v. State, 40 Tex. Cr. R. 67, 45 S. W. 717, 48 S. W. 518, 43 L. R. A. 615.
An act requiring everyone engaged in packing oysters to pay a tax, which applies to oysters taken in and shipped from another state, is within the police power of the state. It is not an interference with interstate com merce ; Applegarth v. State, 89 Md. 140, 42 Atl. 941. Deepening the channel, by which oyster beds were injured, is not a taking of the oyster beds within the fifth amendment of the United States constitution; Lewis B.
P. 0. 0. Co. v. Briggs, 229 U. S. 82, 33 Sup. Ct. 679, 57 L. Ed. 1083.
The state, subject to the paramount right of navigation, is the owner of the oyster beds in its waters and can prohibit their taking by any but its own citizens, and pre scribe the times, instruments, and conditions of taking them ; Dize v. Lloyd, 36 Fed. 652; Boggs v. Com., 76 Va. 989.
One who plants oysters on a natural bed cannot recover against one who removes them with the natural growth; Cook v. Ray mond, 66 Conn. 285, 33 Atl. 1006.
One who plants a bed of oysters in a bay on an arm of the sea, designating the bed, does not interfere with the common right of fishing, and may maintain trespass for an invasion of his property ; Robins v. Ackerly, 91 N. Y. 98; 7 Q. B. D. 106. Oysters deposit ed artificially may obstruct navigation and be a nuisance ; 7 Q. B. 339.
An act requiring oyster packers to pay a tax is constitutional, though they are ship ped from another state; Applegarth v. State, 89 Md. 140, 42 Atl. 941.
An- act authorizing the state oyster com mission to fix the license tax imposed on boats entitled to engage in oyster planting in certain tidal waters within the state ac cording to the tonnage measurement of the boats does not violate the constitutional prohibition against levying tonnage duties, the tax being imposed on the business of oyster planting and not on the ship as an in strument of commerce ; State v. Corson, 67 N. J. L. 178, 50 Atl. 780; so in Maryland ; Dize v. Lloyd, 36 Fed. 651.
Oysters, although shipped unopened, as taken from the water, may come within the prohibition of the Food and Drugs Act, see. 2, when, by reason of the condition of the waters in which they are grown, they con tain harmful bacteria which constitutes adulteration within the act; U. S. v. Sprague, 208 Fed. 419.
A riparian owner has not the right to bed oysters along his entire water front; Hess v. Muir, 65 Md. 586, 5 Atl. 540, 6 Atl. 673.
See FISHERY; NAVIGABLE WATERS ; IN SPECTION LAWS; LICENSE.