The complainant, J. W. Hurleyasks that the Commission of Fisheries and the two inspectors named in the bill be enjoined from removing the stakes and opening to’ the public two parcels of natural oyster land on the Rappahannock river, containing 31.90 acres, until he has been allowed time to remove the oysters planted by him thereon. The injunction is sought on the ground that the complainant is about to be deprived of his property (1) without due process of law, and (2) without compensation.
The Constitution of Virginia (section 175) provides:
“The natural oyster beds, rocks, and shoals, in the waters of this state, shall not ho leased., rented or sold, but shall he held in trust for the benefit of the people of this state, subject to such regulations and restrictions as the General Assembly may prescribe, but the General Assembly may, from time to time, define and determine such natural beds, rocks or shoals, by surveys or otherwise.”
The statute law of the state prohibits under penalty the occupancy and the planting of oysters and oyster shells in natural oyster beds, and requires each inspector to demand the removal of all stakes and other obstructions from such beds, rocks, or shoals in his territory, and upon failure of the trespasser to comply to remove them himself. 1 Pollard Code 1904, § 2153, act of 1916. The statute of 1892, amended by the act of 1894, provided for a survey of all natural oyster beds, to be conclusive evidence that all land within the survey was natural oyster land, and all without was not natural oyster land. The survey made under these statutes, known as the “Baylor Survey,” is now the authoritative representation of the natural oyster lands of the state. Statutory provision was made for the leasing of other submerged lands and planting or propagation of oysters thereon. The person desiring to lease was required to obtain a location by application to the inspector and having it “ascertained and designated and surveyed” and “marked with suitable stakes,” “or by other metes and bounds, courses and distances, having their places of beginning and ending designated by permanent objects on the shore agreed upon between the applicant and inspector.” 1 Pollard Code 1904, § 2137, *118amendment of 1916. Complainant in 1903 obtained by assignment leases of several parcels of submerged lands covering, as he claims, 47.48 acres.
The assignments and plats obtained by the original lessees, except one very small assignment, were duly recorded. Upon representation that the complainant had his stakes so set as to include natural oyster lands embraced in the Baylor survey, and that he was planting and gathering oysters thereon to the exclusion of the citizens of the state contrary to law, the commission of fisheries, in compliance with the statute, had the Baylor lines resurveyed by F. E. Ruediger, the engineer for the commission. There is no1 question of the accuracy of this survey of the Baylor lines, or of the demonstration by it that complainant has in possession two parcels of natural oyster ground within the Baylor survey, one of 26.90 acres and the other of 5 acres.
[1] If this were all, obviously the complainant would have no ground whatever to assert'ownership of the oysters planted by him on the natural oyster rocks of the state. The rule of the common law is well settled that one who in good faith plants oysters on submerged land which is not natural oyster land — on which oysters do not grow naturally — has the ownership of them, and may remove them, although he has not leased the land from the state; but it is equally well settled that one who plants oysters on natural oyster lands, and thus mingles them with the oysters growing naturally, is conclusively held to have abandoned them to the public. Grace v. Willets, 50 N. J. Law, 414, 14 Atl. 559; Payne et ah v. Providence Gas Co., 31 R. I. 295, 77 Atl. 145, Ann. Cas. 1912B, 65, 73; People v. Morrison, 194 N. Y. 175, 86 N. E. 1120, 128 Am. St. Rep. 552; State v. Taylor, 27 N. J. Law, 117, 72 Am. Dec. 347.
The complainant at the hearing admitted, as was demonstrated by the resurvey of the Baylor lines, that he had planted the oysters on the state’s natural oyster grounds; and it followed as a mattér of law that they became the property of the state, open to the public, unless the complainant could bring himself within the terms of the statutes of 1899 and 1910 hereinafter referred to. In Commission of Fisheries v. Hampton Roads Oyster Packers’ & Planters’ Association, 109 Va. 565, 64 S. E. 1041, tire Supreme Court of Appeals, reviewing all of the statutes passed prior to 1909 on the subject, held (1) that the Baylor survey was made by statute conclusive evidence of the area of the natural oyster grounds of the state; (2) that the statutory enactment to that effect was constitutional; (3) that, though the duties of an inspector are quasi judicial, neither he nor any other official can confer exclusive rights to oyster land within the survey by assignment or otherwise. The correctness of these conclusions is made so clear, both on principle and authority, by the reasoning of the court and the authorities cited, that further discussion would be superfluous. The complainant, having under the common law no legal interest in the land or the oysters, could not allege the statute under which the commission of fisheries ordered the natural oyster land opened to the public to be unconstitutional, on the ground that it did not provide that he should have notice and a hearing. Having by the common law no *119property in the oysters planted, complainant had nothing to be compensated for, or to be protected by due process of law, unless he can show a property right conferred by the statute law of Virginia.
In this situation he invoked and relied upon the following statutes of 1899 and 1910, under which he applied to the commission of fisheries to be allowed to remove the oysters:
“When, by any resurvey of oyster-planting grounds or survey made to reestablish 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 furl her appear that such holder has oysters or shells planted on the 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 the said ground.”
After two full hearings, in which testimony was taken and argument made, the commission of fisheries decided that complainant had not brought himself within the conditions imposed by the act of 1910, and refused to allow him to remove oysters from the natural oyster land occupied by him.
[2] The complainant cannot be heard to allege the unconstituticnality of a statute he has himself invoked and re.lied on. Williams v. Eggleston, 170 U. S. 304, 18 Sup. Ct. 617, 42 L. Ed. 1047; Chicago, etc., Railroad v. Nebraska, 170 U. S. 57, 18 Sup. Ct. 533, 42 L. Ed. 948; Kansas City, etc., R. R. Co. v. Stiles, 242 U. S. 111, 37 Sup. Ct. 58, 61 L. Ed. 176; Kryger v. Wilson, 242 U. S. 171, 37 Sup, Ct. 34, 61 L. Ed. 229.
[3] The clause we have italicized shows that the state has conferred on a holder the right to remove oysters which he has planted on natural oyster ground on these express conditions: (1) The natural oyster ground must have been assigned to him and included in the plat of his assignment; (2) it must have been so included without his fault; and (3) it must have been so included by the fault of an officer of the state.
The evidence relied on to show assignment of the ground to complainant’s predecessor under the lease is contained in affidavits to the effect that Hart, who was inspector at the time, was a very careful and diligent official; that tile stakes were never removed from their original location; and that Hart would not have allowed them within the Baylor line, if he had not made the mistake of assigning the ground within the stakes to the lessees. Against this affidavits were submitted by the defendants to the effect that before complainant got the leases the stakes had been intentionally placed further out, within the Baylor survey, and that the stubs of the old stakes nearer the shore are still to be found. Any possible doubt on this point, however, is entirely dispelled by the affidavit of Ruediger, the engineer, in which he states:
*120“In examining all of the plats tliat I have been able to find, bearing upon this question, I have not found a single one which indicates that any oyster inspector, or surveyor, ever undertook to convey, or assign, or lease to an applicant, any portion of any of the ground held" by Mr. Hurley to the northward of the dotted line of the Baylor survey. In making these researches, I have done so with the sole purpose of ascertaining the facts. My instructions from the commission have been to get all the information on this subject possible, and to verify it, if possible, so that a correct conclusion could be reached by the commission upon the true facts in the case. I have surveyed virtually every tract of oyster planting ground in the Bappahannock river, except in the county of Essex, which I have not yet reached in the work I am doing, and I have found almost innumerable cases just like the case now under discussion, and in doing this work I have not found that Mr. Segar, or his predecessor, Mr. Hart, ever assigned an acre of ground within the Baylor survey, either through mistake or otherwise. Their assignments all indicate that they were made with care, and with due regard to the rights of the public as defined by the Baylor survey. T have found that their assignments as a general thing come up to the Baylor line, or .very close to it, but not in a single instance have I found that they erred in crossing that line and assigning to private individuals public rock which they were prohibited by law from assigning.”
The conclusive proof that the natural oyster ground held by complainant was never assigned nor surveyed, as ground leased to complainant or his predecessors, and that his occupancy was not due to mistake of an officer, leaves the complainant outside of the confines of the statutes of 1899 and 1910 and without any right he can assert under them. The testimony is far from convincing that complainant has been himself without default, inasmuch as the assignments and plats were matters of public record; but it is not necessary to decide that point, since he has failed to meet the other two conditions of the statute.
The case, then, comes to this: When the complainant planted oysters on the natural oyster land, they became, the property of the state under the common law. To relieve from possible hardship, the state by the statute last quoted conferred the right of a holder to remove the oysters on conditions set out in the statute. The statute does not take away any property, or injure any property right; on the contrary, it confers rights on the conditions set out. When the state creates and confers rights not before in existence, it may attach to them any conditions, and those who claim the benefits of the statute must accept its conditions. Cooley’s Constitutional Limitations, 181. Since the bill, affidavits, and exhibits show that the complainant has no property right, either at common law or under the statute, to be taken without compensation or without due process of law, he is not injured by any of the statutes relating to the matter, and will not be heard to assert their invalidity. McCabe v. Atchison, Topeka & Santa Fe Railway Co., 235 U. S. 151, 35 Sup. Ct. 69, 59 L. Ed. 169; Louisville & Nashville R. R. Co. v. Finn, 235 U. S. 601, 35 Sup. Ct. 146, 59 L. Ed. 379; Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571, 35 Sup. Ct. 167, 59 L. Ed. 364; Hendrick v. State of Maryland, 235 U. S. 610, 35 Sup. Ct. 140, 59 L. Ed. 385; Mallinckrodt Works v. State of Missouri ex rel. Jones, 238 U. S. 41, 35 Sup. Ct. 671, 59 L. Ed. 1192.
Fortunately this conclusion works no hardship on the complainant. *121Taking the most favorable possible view of his case, he has no substantial equity. The laud from which he has unlawfully excluded the public has never been assigned to him or his predecessors, and no rent has been paid for it. The total area claimed by him and in his possession, as ascertained by Ruediger’s survey, is 91.05 acres. The bill alleges he has been paying rent on 47.48 acres, in two1 tracts, 21.98 acres and 25.5 acres. This, taken from the 91.05 in his possession, leaves more than the 36.5 acres of natural oyster ground in his possession for which he has paid no rent.
Nor will there be any unjust advantage to the state or the public on opening this natural oyster ground to the public. True, complainant planted the oysters and will be deprived of the exclusive right to gather them; but it is also true that he has for 15 years appropriated to his own use all the natural oysters on the land which were the property of all the people of the state.
The injunction is denied, and the temporary restraining order revoked.