SH 1»> X "6 '. * < 565 .NsCfc OYSTER CULTURE IN NORTH CAl^OLINA. By Robert E.CokQr. Glass SH^^ THE NORTH CAROLINA GEOLOGICAL SURVEY. JOSEPH HYDE PRATT, Acting State Geologist. Economic Paper No. 10. OYSTER CULTURE NORTH CAROLINA ROBERT E. COKER. RALEIGH : E. M. UzzELL & Co., State Printers and Binders. 1905. Monograpt). I THE NORTH CAROLINA GEOLOGICAL SURVEY. JOSEPH HYDE PRATT, Acting State Geologist. Economic Paper No. 10. OYSTER CULTURE NORTH CAROLINA ROBERT E. COKER. RALEIGH : E. M. UzzELL & Co., State Printers and Binders. 1905. APR 2 1913 2 ^ TABLE OF CONTENTS. PAGE. Letter of Transmittal 6 Introduction 7 Objects of the investigation 8 Can oysters be profitablj' cultivated in North Carolina waters? 8 Is oyster cultivation now an indiistry of importance in North Caro- lina? 8 Can a State, by investigation and legislation, encourage the develop- ment of this industry? 10 An incontestable title 10 How may existing conditions be remedied? 12 Protection of the natural rocks 1.3 Protection of natural clam beds 1.5 Liberty of lessee and seed culture 1.5 Maximum area 17 Rental of bottoms 18 Reversion of bottoms to the State 19 Term of lease 19 Conclusion 19 Present laws I'elating to leasing of bottoms 20 North Carolina laws relating to oysters 22 Oyster beds 22 Natural, defined 22 Planted in certain territory 22 How license is obtained 22 County commissioners to cause survey to be made 23 Under control of the State 23 How beds are entered 24 How leased 24 Secretary of State to issue grant ; amount granted limited 25 Price paid for franchise 26 Liable to taxation 26 Books of records of grants kept 26 Form of grants approved by attorney-general 26 Catching oysters 26 Close season, exception 26 At night or on Sunday 27 . Illegal dredging 27 Catching oysters without license 27 Using boats not licensed 27 Displaying false number on boat 27 Failure to stop and show oyster license 28 False statement in application for oysterman's license 28 Dredging in prohibited waters 28 4 TABLE OF CONTEXTS. Xortb Carolina laws irlatiii.;^ to oysters — contmved. Catching oj'Sters — continued. page. Selling oy.'^ters not culled :i8 Oysters where purchased to be carried out of the State 2S Unloading oysters on Sunday or at night 20 Dealing in oysters without license 29 Dealer failing to keep record 29 Evidence of illegal dredging 29 Arrests without warrant, when and how made 30 Using illegal measures for oysters :J0 Catching oysters for lime 3(» Larceny of oysters on private beds 30 Oysters caught at night ; injury to private beds 30 Oyster Industry Regulated 31 Commissioner and assistant, bow appointed, removed; term; salary ; bond ; oath of office 31 Inspectors, how appointed; term; salary; l)ond; oath of office. ... 31 Duties of the oyster commissioner 32 Duties of the assistant commissioner 32 Duties of inspectors 32 AVho may be licensed to catch oysters 33 How license obtained to catch oysters ; who may issue ; form of . . . 33 License for boat used in catching oysters 34 License to oyster dealers 35 Licenses reported monthly 3," Dredging, when allowed; prohibited territory 35 Governor may suspend right to dredge 36 Oysters culled on grounds 36 Oysters not culled and put on public grounds 36 Dimensions of oyster measure 37 Dealers to keep records 37 Purchase tax 37 Vessels with oysters, when allowed to go through canals ;j8 Shells scattered on oyster beds 38 Oyster funds kept separate, how paid out 38 Clams 38 Sale of oysters and clams on the streets : 38 Oysters misbranded or adulterated 39 GEOLOGICAL BOARD. Governor R. B. Glexn. cr officio Chairman Raleigh. Henry E. Fries Wiustou-Salem. Frank R. Hewitt Asheville. Hugh MacRae Wilmiugton. Frank Wood Eclenton. Joseph Hyde Pratt, Acting State Geologist Chapel Hill. LETTEE or TKAA^SMITTAL. Ealeigh, K C, December 1, 1!)05. To His ExceJJency, Hox. Robert B. Glenx, Governor of North Carolina. Sik: — I have the honor to submit for publication, as the tenth of the series of Economic Papers, a special report on Oyster Culture in jSTorth Carolina. In connection with the development of our ovster industry there are certain questions that are constantly being raised, and an attempt has been made to answer these in this paper. Yours obediently, Joseph Hyde Pratt, Ading State Geologist. OYSTER CULTURE IN NORTH CAROLINA. By Robert E. Cokee. INTRODUCTION. Ill connection \vitli the experimental work of the Fisheries Labo- ratory establislied at Beaufort, Carteret County, Xorth Carolina, investigations have been conducted by the North Carolina Geologi- cal Survey in conjunction with the United States Bureau of Fish- eries relative to the possibilities of oyster culture in Korth Carolina waters. From the first manj^ courtesies were extended by Mr. W. M. Webb, State Oyster Commissioner, and in the present year (1905) the Oyster Conimission has entered into cooperation with the Bureau and the Survey in continuing the experiments. These investiga- tions have extended over a period of years, and at first were carried on near Beaufort in N^ewport and iSTorth rivers ; but, owing to the success that was attained at these points, it was deemed advisable to try larger plants and a gTeater variety of bottoms, and for this purpose there was chosen the large and varied field offered by Pamlico Sound. In order to ascertain by actual trial what methods best suited particu- lar regions or bottoms, plants were made on different bottoms and in various localities. By visits at intervals of a few months these experi- mental beds have been kept under observation, and data have been accumulated regarding the set of "spat," rate of growth, and other biological and physical conditions. Such investigations, however, did not seem entirely adequate for the needs of the case, and, therefore, in order to gain as practical a view of the situation as possible, and in order to profit by all experiments of whatever nature and by whomsoever made, the work has been supplemented by obtain- ing the results and experience of those who have actually planted with a view to financial profit. It is not within the scope of the present paper to treat the direct results of the experiments and field observations, but rather to pre- sent certain observations and considerations which seem necessary to a proper understanding of the situation in regard to oyster culture. It was intended that this paper should be in print by January, 1905, and ready for distribution at the convening of the Legislature, but owing to unavoidable circumstances its publication was delayed. *Prepared in co-operation with the U. S. Bureau of Fisheries and published with the consent of Hon. George M. Bowers, U. S. Commissioner of Fish and Fisheries. The Commissioner is not, how- ever, responsible for any of the views expressed herein. S OYSTER CULTURE. It was practicable only to bring the manuscript to the attention of some of the members of the legislative committees concerned with the matter of legislation relating to the oyster industry. The acts of the Legislature of 1905 in respect to the leasing of bottoms for the culti- vation of the oyster made such an improvement in the situation as seemed to require a thorough revision of the report. When, however, the full purpose of the paper is considered — the intention to give the people of the State some acquaintance Avith the condition of the indus- try of oyster cultivation and with some of the reasons for its want of development — it is thought best to present the paper essentially as originally prepared. The laws relating to the leasing of bottoms, as enacted by the Leg- islature of 1905, are given on page 20. OBJECTS OF THE INVESTIGATIONS. It has been the aim of the investigation to answer by experiment and personal inquiry the following questions : 1. Can oysters be profitably cultivated in North Carolina waters ? 2. Is oyster cultivation now an industry of any importance in ISTorth Carolina '. 3. Can the State by investigation or legislation encourage the de- velopment of this industry ? 1. Can oysters he jirofitahhj cultivated in North Carolina waters? When we consider the abundance of the yield of the natural oys- ters and the very fine quality of the oysters of many places such as Harbor Island, Lar Creek, Judith's Island, and 'Ne^x River, or if we regard the demand for jSTorth Carolina oysters in wholesale markets of Xorfolk and other points, we find strong evidence in favor of an affirmative ansAver to the first question. The results that have been obtained in the experimental work in ISTewport River, which are de- scribed in the report of Dr. Grave,* are in accord with the verdict given above, as is also the general opinion of planters -who have taken up the cultivation of oysters from a financial standpoint. Of all the planters who have been interviewed, there is but one who did not speak encouragingly in reference to this question. 2. Is oyster cultivation now an industry of any importance in North Carolina? At the present time this question would have to be ansAvered nega- tiA'ely. At some points it was learned that there Avere many hold- ings, and at others that there had been, but that the claims had been •Bulletin N. C. Geological Survey. In press. OYSTER CULTURE. 9 practically relinquished. Careful inquiries have been made at a number of points from Beaufort to Roanoke Island, but at no place was it found that the quantity of oysters planted per year or the amount marketed from private grounds was, from an economic point of view, worthy of consideration. One planter holds ten acres of bottom on which he annually plants, by estimate, 200 bushels of oysters, or not half the quantity that might safely be planted an- nually on one acre. Another planter uses 30 acres, held by himself and two other members of his family, and plants about 300 bushels of oysters one year, but plants none the next year. Still another planter had, formerly, still larger holdings, held through subleases, on which he at one time made very extensive plantings ; but since it was found impracticable to protect his oysters, or for some other reason, he has not for a number of years planted or marketed to any extent. The same stories, slightly varied, are heard again and again. But the fact should not be overlooked that at several points throughoiit the oyster district there are a few oystermen who annually make their small plants, and by this means not only do they add appre- ciably to their own income, but, better, they are demonstrating that the cultivation of the oyster is a feasible and profitable undertaking. There is, however, no community in ]^orth Carolina in which the industry is of such importance that, were all planting to stop abruptly, the fortunes of the community would be seriously dam- aged ; and this refers to an industry which, in other States, yields a product valued at hundreds of thousands of dollars. ISTo reason is found for believing that the cultivation of the oyster may not be profitable in the waters of ISTorth Carolina. The gTowth of oysters in this State is more rapid than in more northerly States and the conditions for seed production are more favorable. During the past few years, when Virginia planters have been in serious need of seed, when in Connecticut the oyster industry has been seriously menaced by dearth of spat,* the ISTorth Carolina waters have shown each year a satisfactorv set. * "A year ago it was the hope of the commissioners that the three years of partial and unsatis- factory set would be succeeded in 1903 by a full set which would re-seed the public grounds and re- stock Connecticut waters, but this has not been the case. The failure of the natural oyster beds of Connecticut in 1903 was more general and discouraging than that of the three years next preceding. * * * What a difference four poor years may make to the planters can be readily imagined, and to the worker on the natural ground it is simply destruction." (Report of the Shell-fish Com- mission of the State of Connecticut, 1903, pp. 11 and 12). " There has been no general set in New York waters since the year 1899. The abundance of that year has ever since furnished the trade with market stock and will carry the dealers over another year, during which, however, higher prices may be looked for. Should the next season not prove more bountiful in this particular, the planters will be in dire straits." (Ninth Annual Report of the Forest, Fish and Game Commission of the State of New York, transmitted to the Legislature, Jan. 18, 1904, p. 102). " For the last two years there has been no oyster set, not only in our waters, but in waters adjoining us. As a very large supply of seed oysters which are planted in our State are produced in our neighboring State of Connecticut, we make the following extract from the last annual report of the Shell-fish Commissioners of that State as to sets there." (Then follows a quotation including the extract used above). (Annual Report of the Commissioners of Shell Fisheries made to the Gen- eral Assembly (of the State of Rhode Island or Providence Plantations) at its January session, 1904). 10 OYSTEE CULTUEE. 3. Can the State hy investigation or tefjt.sJa/ion encourage the dcretopment of this industry? As has been siig:gesteJ in the answer given to the first qnestion, the iincleveloi)ed condition of oyster cnltnre in North Carolina is not to be attribnted chiefly to natural conditions ; and the investigations that have been carried on during the past few years encourage the belief that oyster culture can be made a profitable industry, if the legisla- tive conditions governing the leasing of the bottoms can be changed so as to give the planter an incontestable title to the bottoms upon which he is making his plants. The physical and biological condi- tions are treated in detail in Dr. Grave's report and will not, there- fore, be discussed here ; but consideration will be given principally to the legislative conditions governing oyster culture. Some of the conditions that have persistently and insistently pre- sented themselves as provisions necessary for the development of oyster culture in North Carolina are taken up in detail under the fol- lowing heads : 1. An incontestable title. 2. Protection of the natural rocks. 3. Protection of the natural clam beds. 4. The liberty of lessee as regards methods and seed culture. 5. Maximum area. 6. The annual rent of bottoms. 7. The reversion of bottoms to the State. 8. Term of lease. I. AN INCONTESTABLE TITLE. The most essential condition relating to the development of oyster cultivation in North Carolina waters is that the title of the lessee to tjottoms for oyster culture shall he incontestable for the period of time for which the lease is granted, unless forfeited hy the failure of the lessee to fulfill his part of the contract. Some have, in good faith, entered bottoms for oyster culture with full conformity to the law and have invested their time and money in planting on these bot- toms, only to have their title destroyed as soon as the beds became productive ; as a consequence, yet without fault on their part, they suf- fered serious losses. These people cannot be expected to reinvest their time and money in oyster cultivation or to give any encouragement to others to attempt the same thing. Our present laws were intended to give an incontestable title to the lessee and at the same time to pro- tect the State from any fraud; but these laws did not fulfill what was expected of them, as is evident from the results of the cases in court in which has been questioned the validity of the lease to certain pro- ductive ])lanted grounds. OYSTER CULTURE. 11 From a perusal of the sections of the ^N'orth Carolina Code relating to oyster cultivation, it is seen that the entry of bottoms is permitted, provided they do not include natural rocks. This is of course a wise jDrovision. But what means are provided for ascertaining, before granting the lease, whether or not the particular bottom in question is a natural rock ? The grant is issued and the question of natural rock remains unanswered until perhaps several years later, when a trespasser is being prosecuted, he defends his act by denying the validity of the lessee's title, or claiming that the bottom in ques- tion is a natural rock, and a number of witnesses are introduced to prove in court that when the ground was entered by the lessee sev- eral years before, there was such and such a quantity of oysters on that particular bottom, sufficient, say, for an ordinary oysterman to earn a daily wage.* Whether or not the lessee intended to deal in good faith, his holdings and all his labor may be lost in a moment. It is thus very important that the question, whether a bottom is a natural rock or not, should be definitely and finally settled before the lease is made. The people would not then be deprived for a period of time of the uses of productive oyster bottoms which rightfully belong to the public ; nor, on the other hand, would the investor be liable to throw away his labor and capital on bottoms which he cannot control. For some years there has been in court a case of the State against a private planter, of Hyde County, for the recovery of oyster bottoms which M^ere granted to the planter by the State, but which, it is now maintained, could not have been taken up legally, because it can be shown by witnesses that the bottoms in question were, at the time they were entered, natural beds. In the meantime, however, thou- sands of dollars had been spent by the lessee in ]3lanting and protect- ing his holdings. Assuming that the planter was sincere in declar- ing the bottoms he desired to enter were not natural oyster beds, he • Illustrative law case regarding title to oyster bottoms: THE STATE v. ELIJAH D. WILLIS (104 North Carolina, p. 764). " This v/as a criminal action ti-ied on appeal from the Justice of the Peace before Shipp, J., at Spring- Term, 1899, of Carteret Superior Court." The defendant was charged "with taking oysters from the oyster gardens of one John D. Chadwick, on or about 20th day of February, 1888, without permission of said Cliadwick first had." The defendant pleaded "Not guilty," contending that the said bed staked off and enclosed was a "natural oyster bed " and "any citizen had a right to take oysters therefrom." * ♦ * "The jury returned the following special verdict : " That the prosecutor, John D. Chadwick, has had his oyster garden made and staked out in Carteret County according to the requirements of the statute, and obtained a license, or grant, from the Clerk of the Superior Court of Catawba County for the same; that the defendant took oysters therefrom, within the stake so laid off, without permission of John D. Chadwick first had ; that there were no oyster rocks within the stakes where the garden was so laid off ; that there were some oysters within the same, but that they were scattering, and oysters naturally grew there ; that the area embraced within the stakes, which was two and three-fourths acres, was not such as would within itself induce the public to resort to it and get oysters, but in connection with the oyster rocks and oysters nearby, the public were in the habit of taking oysters from the said area and adjacent territory for livelihood or for market. " If upon the foregoing statement of fact the Court be of the opinion that the defendant is guilty, then the jury say he is guilty ; but if upon said statement the Court is of opinion that defend- ant is not guilty, then the jury finds he is not guilty. " Whereupon, the Court adjudged that the defendant is not guilty." In the case instanced the decision of the Superior Court Judge was afterwards reversed by the Supreme Court on the ground that the verdict of the jtu;y, by not bringing the case within the defi- nition of a natural rock, did not authorize a verdict of "not guilty." But in other instances, the history of the cases has been different and more disastrous for the planter. 12 OYSTER CULTURE. is yet forced to defend his title in a long and expensive lawsuit, which will result either in showing that the suit is unfounded or in depriving him of large investments that he has made in good faith. On the other hand, however, assuming that his original declaration was insincere, the public has for a period of years been fraudu- lently deprived of the use of the natural oyster bottoms in question, and for the recovery of these bottoms the State is forced to great ex- pense. All such trouble and wasteful litigation may be prevented in future by the State ascertaining before a lease is granted whether or not the particular bottom or bottoms in question are natural. oyster rocks ; so that the lease, once granted, will be incontestable so far as relates to the question whether or not the original bottoms were natural oyster rocks. Thus, in the case referred to above, if the bot- toms were natural oyster bottoms, the lease should never have been granted, whatever might have been the declaration of the interested party; and, on the other hand, if the bottoms were properly subject to lease, the lessee should not at any time, because of uncertainty as to the original conditions of the bottoms in question, have his title threatened or be put to great expense to prove the propriety of his possession. Proper protection to the State from improper entry wall at the same time be a protection to the lessee wdio has made the entry. The question is particularly complicated because the term "natural rock" cannot of necessity be an exact term. One person, in good faith, will affirm that a bottom in question is a natural rock, while another, also in good faith, will affirm that it is not a natural rock, because they differ in their ideas as to the degree of abundance of oysters that is required to form a technical "natural rock." Again a witness may dishonestly affirm or deny that a given bottom was a natural rock. Of course, personal statements regarding a previous condition of a bottom are practically impossible of verification. If oyster planting is to be encouraged in ISTorth Carolina, too many bar- riers must not be placed in the way of entry and investment, although it were far better to have almost insurmountable barriers than to per- mit an investor to enter and build up a business on an entry w-hich, instead of being a solid foundation, may prove to be a delusion. In- contestability of title, as long as the lessee fulfills his part of the con- tract, is a prerequisite of a prosperous oyster-planting industry. HOW MAY EXISTII^G CONDITIOXS BE REMEDIED ? One satisfactory solution of this question is a complete survey of the oyster bottoms, which, by means of charts, stakes and buoys, will render it easy to ascertain what grounds are closed and what are open to entry. This method has in Virginia formed the backbone of an industry which has enriched persons and communities and added OYSTER CULTURE. 13 largely, both directly and indirectl}', to the revenues of the State. Although such a survey calls for a considerable outlay on the part of the State at one time, yet as it would be the most satisfactory, it is believed that the State would be justified in making the expenditure that the survey would entail. A more economical method than the above would be as follows: The bottoms to be entered should be personally examined by an offi- cer or officers appointed or elected with the duty and power of deter- mining positively whether the bottoms in question are or are not natu- ral rocks. When a bottom is applied for, the application and the date set for examination and hearing of objections should be duly adver- tised, and full opportunity given for those who desire to do so to present objections to the granting of the lease. The official verdict, when rendered, should be final. It is clearly important that this duty of the examination of oyster bottoms should be assigned to some officer or officers who have more than a casual acquaintance with oyster bottoms and oyster cultiva- tion. It might properly be assigned to the Oyster Commissioner and his assistants, or to responsible boards in the several counties appointed or elected for the purpose. If delegated to the Oyster Commission, such duties w^ould doubtless be taken up chiefly during the closed season (April 1 to September 30, inclusive), thus making a greater demand upon the time of the Commissioner. If the duty of examination pertained to a county board, the members should be allowed a fixed compensation and reimbursement for necessary ex- penses. The services of an official (State or county) surveyor would be required. All fees and expenses should be paid by the applicant, and in consideration of this expense the rental for the first year of the lease might be remitted. II. PROTECTION OF THE NATURAL ROCKS. "A 'natural oyster bed,' as distinguished from an "^artificial oyster bed,' in the sense in which those terms are emplo,yed in The Code, is defined to be 'one not planted by man, and is any shoal, reef or bot- tom where oysters are to be found growing, not sparsely or at inter- vals, but in a mass or stratum in sufficient quantities to be valuable to the public' " (Sec. 2371 N"orth Carolina Code, page 701). Briefly, a ''natural led" or "natural roch" is a hotiom ivliereon oysters occur natumlly and in sufficient abundance for an ordinary oysterman io make a daily tvage. Grounds where oysters are found more seatter- ingly are not to be considered as "natural rocks" or "beds." Probably if no restriction whatever were made and all bottoms were thrown open for entry, the final result might be quite advan- tageous, and we would have in the end wonderfully j)roductive bot- 14 OYSTER CULTURE. toms which would give employment to thousands of oystermen and yield large revenues both to the planters and to the State. The ob- jection to such a procedure is that in the meantime thousands of oystermen, who are now accustomed to earning their winter's living from the public oyster grounds, would be temporarily thrown out of employment. Then again, most of the fertile public bottoms would fall into the hands of a few, who would not be able to improve them so that their yield would be greatly increased. As a consequence, much harm and sulfering would result in the readjustment to these new conditions. It must, therefore, be accepted tluit the natural rocks shall be left o]ien to the public. However definite a law may be regarding the delimitation of the natural rocks or beds, a great deal, of necessity, will have to be left to the judgment and discretion of the officials appointed for this work. Thus, in a given bay there may be many small patches of oysters scattered here and there, the oysters being abundant in each little patch ; but the beds taken collectively cover but a very small area of the bay. The question at once arises, shall the whole bay be closed to entry, or shall each small bed be plotted off as closed gTOund and the rest left open for entry, or shall the whole bay be left open ? The officer's decision must depend largely on the abundance and size of the patches. A search of the laws of other states shows no attempt to lay down a more definite rule, nor can any be suggested. In rendering the decision from which the above definition was quoted. Justice Shepherd said : "While it seems impossible to give a more particular definition, it is be- lieved that the one that we have adopted reflects the true spirit of the law and may be of some practical use in ascertaining where grants may be made." With that definition and by the use of careful judg- ment, the officer need make no serious mistake. In this connection the following suggestions for working rules may be given : a. In general, the benefit of the doubt should be given to the natural rock; as the least friction and trouble for all parties concerned will result from an error of keeping closed certain grounds that might have been left open, than from the mistake of leaving open grounds that should properly be closed. h. A small area should be left around each natural bed and straight lines should be used in bounding them. This will save trouble to the oysterman working on public grounds, annoyance to the jilanter, and needless litigation on account of trespassing. The planter would find it difficult to protect his oyster bottoms from malicious or uninten- tional marauders if his ground was separated from the natural beds by irregular lines. OYSTER CULTURE. 15 III. PROTECTIO^"^ OF K^ATURAL CLAM BEDS. Ill what has been said so far, no reference has been made to the matter of natural clam bottoms. The interest of the clammer is no less worthy of consideration on the part of the State than is that of the oysterman. The hard clam or "little-neck" clam (Venus mer- cenaria) is the object of an extensive fishery in this State. Important canning industries are developing, yielding various products, and clam "bedding" is being done on an increasing scale. The fishing of natuiral clam bottoms is perhaps at its maximum now, while the pos- sibilities of clam culture are as yet problematic. It is therefore important that the proper officials should examine bottoms with reference to the natural gTowth of both oysters and clams. The question to be decided would then be, is the bottom in question either a natural oyster bed or a natural clam bed ? The test of a bottom for clams is essentially the same as for oysters. A natural clam bottom might be defined as one whereon clams occur naturally and in sufficient abundance for an ordinary clammer to make a daily wage. IV. LIBERTY OF LESSEE AND SEED CULTURE. llie lessee should be unrestricted in his methods of working his leased ground or in the place or manner of marlxeting the products from his grounds. The restrictions applying to the fishing of oysters on the public grounds, in order that the oystermen of small means shall not be placed at a disadvantage with the larger oystermen, and to prevent rapid exhaustion of the public beds, should not be ap- plicable to the private bottoms. Thus, if two persons are working side by side on public grounds, one may be placed at a disadvantage by certain methods employed by the other ; but if one is at work on his own gTound where the other cannot enter, his methods cannot in any way hamper or concern the other. The wisdom of leaving every oyster farmer liberty to work his bottoms in the most economical way, as long as he carries out the provisions of his lease, will be just as well recognized as the wisdom of permitting every cotton or tobacco farmer liberty to work his lands in the most economical manner. It is a wise provision of the general oyster law that prevents the shipping into other States of seed oysters taken from the natural rocks or bottoms. The clause should, however, be so framed that it would not prevent the exi^ortation of seed grown on shells or other cultcli artificially .planted on leased gTOunds. With our present knowledge of the natural history of the oyster", it is believed that the spat which sets on certain shells would probably have been entirely IG OYSTER CULTURE. lost had not this cultch presented itself. Certainly the future of the oyster industry is in no way menaced by shipping out of the State seed from private gTOunds. The Commissioners of New Jersey de- plore the fact that their planters swell the profits of Connecticut oyster cultivators by buying seed from them;^ Avhile they boast that they do in some regions (Newark Bay) grow a seed that they can ship^ to the Pacific Coast, and urge that their State should supply other States with seed.^ Connecticut supplies Ehode Island with seed."* It is easy to distinguish between the folly of shipping out of the States seed oysters from the productive natural rocks — thus depleting our own beds — and the wisdom of shipping excess seed from artificial beds — thus utilizing that which might otherwise be waste. It would, however, become necessary that the inspectors at South Mills and Coinjock have some means of assuring themselves that a given cargo of seed oysters is from private rather than public beds. The burden of proof may well be placed on the captain of the vessel carrying the seed, and there may be provided by law a means by which this proof can readily be obtained. It is very probable that the raising of seed oysters may offer a particularly good opportunity for oystermen of small means, as they can purchase shells at l^/o cents per bushel, and, by furnishing their own labor, plant them at odd times without extra expense. To grow large oysters might require rehandling and more care than they could afford to give ; but they could, after a year or two, market the seed at probably 10 cents, 15 cents or even 20 cents per bushel, which, with a liberal discount for loss of shells, will leave a good margin of profit. Although it cannot be positively stated at the present time, without further practical demonstration, that the grow- ing of large oysters will prove profitable, it is a practical certainty that seed oysters can be grown successfully. The experimenting planter will, therefore, have two opportunities for profit in his oyster cultivation. There are some who cannot afford to wait three or four years for the first returns from their investment, but who can plant and await the greater profits of the cultivation of large oysters, pro- vided they mqy have at least a small return during each of the first few years, and such planters might accomplish this end by planting a portion of their holdings for seed oysters. Therefore, if there is any argument advanced against shipping out of the State seed oys- ters raised from private bottoms, it would yet be strongly advisable 1. Report of the Commission for the Investigation of the Oyster Industry. New Jersey, 1902, pp. 14, 17, 20. 2. Report of the Commission for the Investigation of the Oyster Industry. New Jersey, 1902, pp. 7, 10. 3. Report of the Commission for the Investigation of the Oyster Industry. New Jersey, 1902, p. 17. 4. Annual Report of the Commissioner of Shell Fisheries. State of Rhode Island and Providence Plantations. January, 1904, p. 4. OYSTER CULTURE. 17 that no such restriction be placed until the industry has passed the exj)erimental stage. In this connection it is well to call attention to the fact that in the upper waters of Roanoke Sound there is a larg'e area which is not suitable for the growing of large oysters, but which can be made use- ful for the gTOwing of seed. Almost every year the abundant young- oysters are killed out by the influx of fresh water from Albemarle Sound ; yet these young oysters might have been of great economic value if they had been shipped as seed. It is reported that lower down in this Sound each annual set is overcrowded- the next year and the growth rendered valueless for market purposes. Thus, there are regions, and not only in Roanoke Sound, but in other places (on shoals, etc.), which have great potential value, not, however, for the growth of large oysters, but only as grounds for the production of seed oysters. For these reasons it can be seen that great care should be taken that whatever restrictions are made relative to the shipping of seed oysters do not interfere with the cultivation and shipment of seed from such bottoms as are not capable of raising large oysters and also with the cultivation and shipment of seed from private gardens. It is difficult to get at the bearing of present laws on this matter of shipment of seed. Express provision could be made that sections 3, 11 and 17 of chapter 516, Public Laws 1903, or any other law, should not be construed to prohibit the cultivation and shipment of seed as described above. Sec. 3. Provides for seizure of vessels or trains on which ai^e loaded oysters not properly culled. Offering unculled oysters for sale a misdemeanor. Sec. 11. Provisions for culling oysters. Sec. 17. Provisions for purchase of oysters to carry out of State by vessel. The possibilities of the cultivation of clams are unknown. But experiments on this line are to be encouraged. Hence, a lessee should be authorized to use his grounds for the cultivation of either oysters or clams. V. MAXIMUM AREA. The maximum area a lessee may enter under our present law is ten acres. In most cases such a limit is unduly small. Ten acres might be a reasonable limit in creeks and small bays ; also, where an individual does all of his own work, planting, cultivating, tonging and marketing, he will undoubtedly find that ten acres will be all that he can take care of to carry out the full provisions of his lease. On the other hand, however, it seems unnecessary that a ]')lanter who is so situated that he can handle a greater acreage and give employment to ovstermen and boatmen should be limited to ten acres. In no other 18 • OYSTER CULTURE. State with ;m important ovster-plaiitinii,' industry is tliis maxiuium limit so low, and such limitation of area is not justified by expediency or economy. It is an error, too, to apply in the open waters of Pamlico Sound the same limit that is adapted to bays or shore bottoms. 'No one has undertaken or can be expected to undertake to cultivate a ten-acre garden several miles off-shore in Pamlico Sound, for one could not afford to use, in planting and working such a small garden, the meth- ods that such a location Avould require. The jilanter would not even be able to employ a watchman. Clearly it is not wise to have a limit so small that, if the object that the law intends to further is carried out, it is done only by evasion of the law. In the open waters of Pam- lico Sound one hundred acres would be a small enough limit — and then far smaller than the limit in any other State with a prosperous oyster-planting industry (Virginia, Khode Island, Connecticut, New York). Even in bays, twenty-five acres would be sufficiently small. The conditions of the lease can be so adjusted, as will be seen below, that a planter, entering more acreage than he can successfully take care of, will have to give up his excess acreage and allow it to revert to the State. VI. RENTAL OF BOTTOMS. There are a number of reasons why an annual rental should be charged for the leased grounds. This rental should be large enough to be a source of revenue to the State, yet not so large as to prevent a man of small means from taking up sufficient land to employ him- self and his family. It should be in lieu of any other tax on oyster grounds. At present such grounds are assessed for taxation at a valuation usually of one dollar per acre; so that the State receives but a few cents in return for the franchise granted. One of the good features of a rental fee is that it will discourage a lessee from enter- ing, or retaining after a trial, greater acreage than he can successfully cultivate. But it may properly be urged that a prospective planter should re- ceive every encouragement to undertake oyster culture. - For this reason the suggestion has been made tThat no rental be charged for the first year of the lease, in consideration of the expenses devolving on the lessee in connection with the examination and survey of the bot- tom. During succeeding years the annual charge may be fixed at fifty cents or more per acre; for, if the planting proves profitable enough to justify its continuance, the planter can afford to pay the State for the privileges enjoyed. OYSTER CULTURE. 19 VII. REVERSION OF BOTTOMS TO THE STATE. Provision slioukl be made for the reversion of the bottoms to the State, provided planting is not done within a definite time or is not continued on a reasonable scale. The exact nnmber of bushels of oyster shells that should be planted per acre each year cannot be stated ; for this will vary with the character of the bottom and other conditions ; also with the plan that the planter's judgment may ap- prove as the best to use in developing his grounds ; but a minimum number of bushels per acre should be decided upon. This should not be more than 100 bushels of seed or of oyster shells or an equal amount of other cultch per acre, to be planted within two years. VIII. TERM OF LEASE. The lease or franchise should be granted, not for an indefinite time, but for a term of years — say, twenty-five years. It is expedient that at the end of a period of years the State may have opportunity to revise the provisions of the lease, if it seems advisable, in order to adapt them to the state of the industry and other conditions prevailing at that time. CONCLUSION. In the preceding pages the fundamental legislative conditions that seem necessary for the building up of the oyster-jilanting industry, which at the present time is practically undeveloped, have been indi- cated and briefly discussed. The cultivation of the oyster offers em- ployment and profits to individuals who will undertake planting; it will be not only a source of direct revenue to the State, but indirectly, through the resulting increase of taxable properties, should cause a large revenue. During the past year, 1901, there has been more oyster planting than during any recent year, and this is to be attributed in considerable measure to the results of the investigations that have been carried on by the ]N"orth Carolina Geological Survey in conjunction with the United States Bureau of Fisheries. There are other per- sons interested in the cultivation of the oyster who would plant if they could be assured of an incontestable title to the bottoms that they leased from the State. At no time in the history of the State has there been such a good opportunity as at the present time for the building up of a remunerative industry in the cultivation of the oyster; and with proper legislation, this industry should, within the next few years, become a profitable business throughout rnany districts alone- the coast of Xorth Carolina. PRESENT LAWS RELATING TO LEASING OF BOTTOMS. The laws relating to the leasing of bottoms, as enacted by the Legislature of 1905, are as follows: [Public Laws of North Carolina, 1905, Chapter 52.j.] AN ACT TO AMEND AND SUPPLEMENT CHAPTER 516 OF THE PUBLIC LAWS OF 1903, IN RELATION TO THE OYSTER INDUSTRY. Sec. 2. That auy person who is and has been continuously for two years a hona fide resident of the State of North Carolina and over twenty-one years of age may lease or enter not more than fifty acres of any bottom where oysters do not naturally grow, or on any ground where there is not a sufBcieut growth of oysters to justify at the time of leasing the gathering of the same for profit. When any person desires to lease or enter any such ground he shall advertise the fact at the court-house and three other places for four weeks in the county where said bottom desired to be leased is located, and advertise in some news- paper published in said county for four weeks, and if there be none published in said county, then in a newspaper published in an adjoining county. Appli- cation for such land shall be made to the Clerk of the Superior Court, who shall appoint a man, and the applicant shall choose another, which two so chosen shall appoint a third man, and the three shall constitute a board of arbitration, and the said board of arbitration shall inspect the bottom desired to be leased, and if they find the same subject to lease and so report to the clerk, then it shall be the duty of the said clerk to issue a lease as herein pro- vided, and for such service the clerk shall receive the following fees, to-wit : Twenty-five cents for the application, twenty-five cents for the appointment and twenty-five cents for filing the report of arbitration, and copy-sheet fees for recording such lease and other papers necessary to be recorded. Such bottom shall be surveyed by the County Surveyor ; all cost and expense to be paid by the lessee, who shall also pay a yearly rental of fifty cents per acre, which rental shall be paid to the Oyster Commissioner and go to the benefit of the oyster fund. A failure to pay rental for two years shall render the lease null and void. No bottom whicli has been surveyed prior to the passage of this act need be resurveyed where such leases are plainly marked at the time of the passage of this act. That the County Surveyor shall furnish the lessee a map or plot free of charge. No lease shall be issued for any ground closer than two hundred yards to any natural oyster bed. It may be noted that under this law now in effect : 1. Bottoms are subject to lease, which do not have a natural growth of oysters, or on which "there is not a sufficient growth of oysters to justify at the time of leasing the gathering of the same for profit" : Provided, the bottoms be not "closer than two hundred yards to any natural bed." 2. The limit of area is increased to fifty acres. 3. It is provided that the applicant shall properly advertise his application. -t. The lessee pays the expenses of the survey and papers and an annual rental of fifty cents an acre. 5. A "Board of Arbitration" is provided for. 6. This board shall consist of three members, one ap]3ointed by the Clerk of the Superior Court, one chosen by the applicant, and a third appointed by the first two. LAWS RELATING TO LEASING OF BOTTOMS. 21 Only the last mentioned provision requires discussion. Each bot- tom applied for is examiiied by a board appointed for the examina- tion of the particular bottom in question. The board ceases to exist after examining the bottom, and the responsibility of the board and its members then terminates. When another application is made another board acts. There will not, therefore, be uniformity in the decisions, and no one has any permanent responsibility in the matter. The arrangement seems to leave room for the play of local sentiment, and for irresponsible decisions. In the case of the only application so far made in Carteret County, September, 1905, persons appointed by the Clerk of the Superior Court and by the applicant have de- clined to serve, and after a number of weeks, a board has not been formed. While the workings of the law may yet prove otherwise, the law seems defective in the matter of provision for the formation of the Board of Arbitration. It would seem more satisfactory to have the responsibility regarding the leasing of bottoms vested in a perma- nent commission appointed or elected in the several counties, or as- signed to a commission already in existence, such as the Oyster Com- mission. If the former alternative were followed, and the duty of examination assigTied to boards appointed by the Governor for a term of years, the members of a board should receive a fixed compensation and necessary expenses while making an examination, the entire ex- pense to devolve on the applicant. While this would considerably increase the initial expense of the applicant, it has been previously suggested that the rental for the first vear be remitted in considera- 111 tion of this first cost. Either of the arrangements suggested would bring about approximately uniformity of decisions and would increase the responsibility of the officials concerned. It should be expressly stated that the lease when granted shall he incontestable except in the event of failure on the part of the les- see to fulfill his part of the contract, and that the removal of shell-fish from leased bottoms without authority from the owner shall be re- garded as larceny. The need for such express provision may be under- stood from remarks previously made (pp. 10-13 above with foot- note, p. 11). It may be well to call attention to important points not touched by the present law. These are — The protection of the natural clam beds from entry. Matter of seed culture. The permission to use the leased bottoms for either oyster or clam culture. NORTH CAROLINA LAWS RELATING TO OYSTERS. There is given beloAy all the laws relating to oysters as given in the llevisal of 1905 of the Laws of North Carolina : II. Oyster Beds. 2371. Natural, defined. A natural oyster or clam bed, as distin- guished from an artificial oyster or clam bed, shall be one not planted by man, and is any shoal, reef or bottom where oysters are to be found growing in sufficient quantities to be valuable to the public. 1893, c. 287, s. 1. 2372. Planted in certain territory. Any inhabitant of this state may make a bed in any of the waters of this state, except that part designated as lying south of Roanoke and Croatan sounds and north of Core sound, and lay down or plant oysters or clams therein, hav- ing first obtained license as hereinafter directed from the superior court clerk of the county wherein such bed may be, and he may stake out the grounds so as to include not exceeding ten acres with good and substantial stakes, extending at least two feet above high water- mark, and placed at such intervals as to make the boundaries of such bed or garden distinctly kno\vn ; and every person who shall obtain such license shall hold the same and have exclusive privilege thereof to him, his heirs and assigns. But no person may have more than one such bed in the same county : Provided, nothing herein shall be con- strued to affect the rights of any owner or proprietor of lands in which there may be creeks or inlets, or which may be adjacent to any navigable waters, or to authorize any person to appropriate to his own use, or to stake off and enclose any natural oyster or clam bed, or in anywise to infringe the common right of the citizens of the state to any such natural bed or to obstruct the free navigation of the waters aforesaid. Code, s. 3390; 1883, c. 332, ss. 1, 2. 2373. How license is obtained. Whenever a license is desired according to the preceding section the clerk of the superior court of the county wherein the proposed oyster or clam bed may be may, in his discretion, grant a license to make such oyster or clam bed to any inhabitant of this state who shall apply therefor as herein provided ; such applicant shall first stake off the proposed oyster or clam bed as provided in the preceding section, and shall publish a notice for thirty days at the courthouse door of the county wherein said bed is pro- posed, designating the location thereof as near as may be and the day when he will apply for the issuing such license. Upon the day named in said notice, upon which application for such license is to be made, any inhabitant of such county shall have the right to appear LAWS RELATING TO OYSTERS. 23 before said clerk and object to the issuing of such license by filing an afiidavit stating that the proposed oyster or clam bed is a natural oys- ter or clam bed. If the said applicant shall refuse to file an affidavit denying the proposed oyster or clam bed is a natural bed, the said clerk shall refuse to grant such license. If such applicant shall file an affidavit denying that such proposed bed is a natural bed, it shall be the duty of such clerk to transmit said affidavits to the next term of the court of said county, and at said term the issue shall be tried to determine whether the proposed bed is a natural bed, and after such trial the said clerk shall grant or refuse said license in accordance with the judgment rendered upon the determination of such issue. Code, s. 3391; 1893, c. 287, s. 2. 2374. County commissioners to cause survey to be made. The board of county commissioners may in their discretion cause to be made, not oftener than once in twelve months, a survey and exam- ination of any and every such oyster or clam bed or garden in their county, the result of which examination or survey shall be reported under oath to the clerk of the superior court ; and if it be found that the holder of such license as aforesaid has included within his stakes any natural oyster or clam bed, or a space containing more than ten acres, he shall forfeit such license and all the rights and privileges thereto belonging; further, if the holder of such license fail for the space of two years either to use such bed or to keep it properly des- ignated by stakes, he shall forfeit such license and all the rights and privileges therein granted. Code, s. 3392; 1883, c. 332, s. 4. 2375. Under control of the state. The state shall exercise exclu- sive jurisdiction and control over all shell-fisheries which are or may be located in the boundaries of the state south of Roanoke and Croa- tan sounds and .north of Core sound, and for the purposes of this chapter the southern boundary line of Hyde county shall extend from the middle of Ocracoke inlet to the Royal Shoal lighthouse, thence across Pamlico sound and with the middle line of the Pamlico and Pungo rivers to the dividing line between the counties of Hyde and Beaufort, and the northern boundary line of Carteret county shall extend from the middle of Ocracoke inlet to the Royal Shoal lighthouse, thence to the Brant Island Shoal lighthouse, thence across Pamlico sound to a point midway between Maw point and Point of Marsh, and thence with the middle line of the ISTeuse river to the dividing line between the counties of Carteret, Craven or Pamlico, and that portion of Pamlico sound and the jSTeuse and Pamlico rivers not within the boundaries of Dare, Hyde or Carteret (jounties, and not a part of any other county, shall be in the county of Pamlico, and for the purposes of this chapter and in the execu- 24 LAWS RELATING TO OYSTERS. tion of the requirements thereof, the shore line as now defined by the United States coast and geodetic survey shall be accepted as correct. 1887, c. 119, ss. 1, 2. 2376. How beds entered. Any person a citizen and bona fide resident of the state desiring to raise, plant or cultivate shell-fish upon any ground in the county, and within the territory described in the preceding section, which has not been designated as public ground by the board of shell-fish commissioners and Avhich is not a natural clam or oyster bed, may make application in writing, in which shall be stated as nearly as may be the area, limits and loca- tion of the ground desired, to the entry-taker of the county in which the said area for which application is made is situated, for a fran- chise for the purpose of raising or cultivating shell-fish in said grounds, and the said entry-taker having received said appli- cation shall proceed as with all other entries as provided in the chapter entitled Grants, except that the warrant to survey and locate the ground or grounds shall be delivered to the engineer appointed by the secretary of state and not to the county surveyor; and the said engineer shall m'ake such surveys in accordance with the pro- visions of the chapter entitled Grants, except that it shall not be nec- essary to employ chainbearers nor to administer oaths to assistants, nor to make surveys, according to the priority of the application or warrant. ISTo entry shall be made to cover any natural oyster or clam bed as defined in this chapter, nor of any land lying more than two miles from the main land or from any island. 1887, c. 119, s. 5; 1893, c. 272. 2377. How leased. Any person who is and has been continuously for two years a bona fide resident of the state of ISTorth Carolina and over twenty-one years of age may lease or enter not- more than fifty acres of any bottom where oysters do not naturally gTow or on any ground where there is not a sufficient growth of oysters to justify at the time of leasing the gathering of the same for profit. When any person desires to lease or enter any such ground he shall adver- tise the fact at the courthouse and three other places for four weeks in the county where said bottom desired to be leased is located, and advertise in some newspaper published in said county for four weeks, and if there be none published in said county, then in a newspaper published in an adjoining county. Application for such land shall he made to the clerk of the superior court, who shall appoint a man and the applicant shall choose another, which two so chosen shall ap- point a third man and the three shall constitute a board of arbitration, and the said board of arbitration shall inspect the bottom desired to be leased, and if they find the same subject to lease and so report to the clerk, then it shall be the duty of the said clerk to issue a lease as LAWS RELATING TO OYSTERS. 25 herein provided, and for such service the clerk shall receive the fol- lowing fees, to-Avit: Twenty-five cents for the application, twenty-five cents for the appointment and twenty-five cents for filing the report of arbitration, and copy-sheet fees for recording such lease and other papers necessary to be recorded. Such bottom shall be surveyed by the county surveyor ; all cost and expense to be paid by the lessee, who shall also pay a yearly rental of fifty cents per acre, which rental shall be paid to the oyster commissioner and go to the benefit of the oyster fund. A failure to pay rental for two years shall render the lease null and void. 'No bottom which has been surveyed prior to sixth day of March, one thousand nine hundred and five, need be re-surveyed where such leases are plainly marked at that time. The county surveyor shall furnish the lessee a map or plot free of charge. 1^0 lease shall be issued for any ground closer than two hundred yards to any natural oyster bed. 1905, c. 525, s. 2. 2378. Secretary of state to issue grant; amount granted lim- ited. The secretary of state, on receipt of the auditor's certificate as provided in the chapter on Grants, shall gi-ant to the applicant a written instrument conveying a perpetual franchise for the pur- pose of raising and cultivating shell-fish in and to the grounds for Avhich application is made ; and the said written instrument of con- veyance shall be authenticated by the governor, countersigned by the secretary and recorded in his ofiice. The date of the application for the franchise and a description of the ground for which such fran- chise was granted shall be inserted in each instrument, and no gTant shall issue except in accordance with a certificate from the engineer appointed by the secretary of state as to the area, limits and location of the grounds in which the said franchise is to be granted, and every person obtaining such grant or franchise shall, within three months from the receipt of the same, record said written instrument in the ofiice of the register of deeds for the county wherein the said grounds may lie and shall define the boundaries of the said grounds by suitable stakes, buoys, ranges or monuments ; but no franchise shall be given in or to any of the public grounds as determined by the commissioners of shell-fisheries, or to any natural oyster or clam bed, and all franchises granted under this section or any previous law shall be and remain in the grantee, his heirs and legal represen- tatives : Provided, that the holder or holders shall make in good faith within five years from the day of obtaining said franchise an actual effort to raise and cultivate shell-fish on said gi-ounds. ISTo gTant shall be made to any one person of more than ten acres of any territory, and no person shall hold more than ten acres in any creek unless the same shall be acquired through devise, inheritance or marriage. 1887, c. 119, s. 6; 1893, e. 272. 26 LAWS RELATING TO OYSTERS. 2379. Price paid for franchise. Not less than seventy-five cents per acre shall be paid to the state treasurer for all franchises granted, and in all other respects as to protests of entry and the right of the secretary of state to sell to any one else at an increased price the chapter on Grants shall apply. 1887, c. 119, s. 7. 2380. Liable to taxation. All gTonnds taken up or held for the purpose of cultivating shell-fish shall be subject to taxation as real estate, and shall be so considered in the settlement of the estates of deceased or insolvent persons. 1887, c. 119, s. 9. 2381. Books of records of grants i •Aj-;-;-;;;;';-;-.; l-l.-.V.'.-i'.V;-;- \-:-.ik.VrZ-y/:' ■§>«'"-:l:.-.-:-jv iii^ LIBRARY OF CONGRESS 002 896 8 40