(dissenting).
It is not surprising, in view of the law of Virginia, that the claim of the plaintiff to recover' damages in this case finds no support in any precise legal category with which the court is familiar. The truth is that the provisions of the Constitution and statutes of Virginia and the- decisions of the Supreme Court of Appeals of the State and of this court, relevant to the point in issue, are so clear as to leave little doubt that the plaintiff’s right is non-existent.
The plaintiff has- a recorded claim to two-tracts of submerged natural oyster grounds under the waters of Hampton Roads, Virginia, to which no person may acquire title or right of possession under the laws of the State. The acreage was assigned by mistake by a state officer to the plaintiff’s predecessor in two assignments in 1929 and 1936 respectively; but whether the mistake was attributable to the state officer without fault of the assignee, we- do not know as there is no evidence on the point. The Constitution of Virginia, Section 175, provides that the natural oyster beds in the waters of the State shall not be leased, rented or sold, but shall be held in trust for the benefit of the people of the State, and the statute law prohibits the occupancy and planting of oysters in natural oyster beds and requires the removal of all stakes and other obstructions from such beds. The resulting situation was summarized by this *795court in Hurley v. Commission of Fisheries of Virginia, D.C., 264 F. 116, 118, in the following words: “* * * 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.” This decision was quoted from at length and approved in Blake v. Marshall, 152 Va. 616, 148 S.E. 789. See also Commission of Fisheries v. Hampton Roads Oyster Co., 109 Va. 565, 64 S.E. 1041.
In conformity with the Virginia Constitution and statutes a survey of the natural oyster lands of the State has been made, and in this case it has been found that the oyster beds claimed by the plaintiff are within the prohibited territory. How then can the plaintiff recover in this suit the value of the oysters which under the Virginia law it abandoned when it planted them in the public grounds? First it is said that the recovery should be allowed because the statutes provide, Virginia Code of 1950, Section 28-113, that if by the mistake of an officer of the State any person has been assigned a portion of the natural oyster beds without fault on his part, and has planted oysters in the ground, and shall file a petition with the Commission of Fisheries for leave to remove the oysters and the Commission, after hearing the evidence, shall find that the assignee has planted oysters and that the assignment was made through the mistake of the officer, and without default on the part of the assignee, then the Commission may allow the assignee a reasonable time not exceeding two years to remove the oysters. It is admitted that the plaintiff has not complied with this statute; but the court assumes that the Commission will grant the petitioner the right to remove the oysters upon a showing of the required statutory conditions. This argument is obviously untenable. The plaintiff has not shown in this case that the assignment to his predecessor was granted through mistake of a state official and without fault on the predecessor’s part. But even if this point had been proved, this court has no power to arrogate to itself the authority to decide a question which is conferred by statute upon the State Commission of Fisheries. The controlling factor is that the plaintiff has no title and no possession because it abandoned the oysters when it planted them on the natural grounds and has not complied with the conditions upon which alone its right to retake them depends.
There is nothing in the decision of this court in Hurley v. Commission of Fisheries of Virginia, supra, to the contrary. Judge Woods in his opinion quoted the constitutional and statutory provisions above noted and then pointed out that to relieve from possible hardship the statutes confer the right of a holder to remove the oysters on conditions set out in the statute. He added that the statute does not take away any property or injure any property right but on the contrary confers right on the conditions set out. The last statement was made because the plaintiff in that case was endeavoring to show that he had been deprived of his properly without due process of law. It was not made to indicate that the statute confers any rights whatsoever unless its conditions are complied with. The possibility or even probability that the plaintiff might have obtained a favorable decision from the Commission of Fisheries, if it had applied to it and offered the requisite proof, is of course not enough to support the plaintiff’s case. This court is without power to pass upon the question.
Secondly, it is said that although the Supreme Court of Appeals of Virginia has never definitely passed on the question before us, it may be inferred that it would regard the plaintiffs case favorably by reason of its refusal to grant petitions for writ of error in Miles v. Standard Dredging Co. and Thorns v. Standard Dredging Co., decided in favor of .the plaintiffs in the Circuit Court of the City of Norfolk on July 24, 1931. It is said that these cases in*796volve the same point as the pending case and were decided in favor of the plaintiff. An examination of the record does not sustain this statement. The point was not raised in the Thorns case since there was no showing that the oysters were planted in public grounds. The point was raised in the Miles case but it was not decided. The defendant in that case tried to show that the plaintiff’s oysters were planted on public grounds and hence he was not entitled to damages for their loss since he had not applied to the State Commission and received leave to remove them; but the evidence was that the grounds had not been surveyed and the witness could only testify that he thought the grounds were to some extent within the Baylor Survey, but how much he could not say.
The cases from other states involving the rights of persons to sue for damages to oyster properties which were not acquired in strict accordance with state law are not pertinent here. The natural oyster beds of Virginia belong to the people of the state and one who plants oysters in them abandons them and has neither title nor possession.