Prentis, J.,
delivered the opinion of the court.
The appellant filed his bill against the appellee, basing his claim for relief upon the fact that he is the lessee from the State of very valuable oyster planting grounds located in Hampton Roads, on the northern side thereof near the city of Newport News, and that a considerable portion, thereof has already been damaged and the oysters thereon polluted because • of the sewer system of the city, which conducts sewage into Salter’s creek and thence into the tidal waters of Hampton Roads, across appellant's oyster beds, and that other and greater damage therefrom is probable. To this bill the appellee filed a demurrer, which the lower court sustained because of opinion that the case of Hampton v. Watson, 119 Va. 95, 89 S. E. 81, L. R. A. 1916F, 189, is controlling upon the main question involved.
In this conclusion of the trial court we concur. The syllabus of that case fairly states the conclusions of this court as follows:
“1. There is a marked and well defined distinction between the pollution of a small non-navigable stream, and the pollution of large tidal navigable bodies of salt water, for the reason that in the first case the bed of the stream and the waters are owned by the riparian owners while in the latter case the bed of the navigable, tidal salt water and the waters themselves are owned and controlled by the State, for the use and benefit of all the public, subject only to navigation. It is for the State to say what uses shall be made thereof and by whom, subject always to the right of the public, ,and for the State, through the legislative branch of the government, to say how much pollution it will permit to be emptied into and upon its waters, [17]*17so long as the owners of the land between low water and high water mark are not injured.
“2. A municipal corporation situated on an arm of the sea, adjacent to tidal waters, has the right to use such waters for the purpose of carrying off its refuse and sewage to the sea, so long as such use does not create a public nuisance, and any injury occasioned thereby to private oyster beds is damnum, absque injuria.”
Additional authorities to those cited in City of Hampton v. Watson, supra, (all relating, however, to the Federal government) to the effect that the power of the sovereign State or nation is perpetual, not exhausted by one exercise, and that all privileges granted in public waters are subject to that power, the exercise of which is not the taking of private property for public use, but only the lawful exercise of a governmental power for the common good, are: Scranton v. Wheeler, 179 U. S. 141, 21 Sup. Ct. 48, 45 L. Ed. 126; Greenleaf Johnson Lumber Co. v. Garrison, 237 U. S. 251, 35 Sup. Ct. 551, 59 L. Ed. 939; Willink v. United States, 240 U. S. 572, 36 Sup. Ct. 422, 60 L. Ed. 808; State v. Cleveland, etc., Ry. Co., 94 Ohio St. 61, 113 N. E. 677, L. R. A. 1917 A, p. 1014.
The appellant relies upon Huffmire v. Brooklyn, 162 N. Y. 584, 57 N. E. 176, 48 L. R. A. 421, and this case appears to sustain his contention, though it is observed that the New York statute, under which the owner of the oyster bed claimed there, provided that he should have “the exclusive property in the oysters so planted and the exclusive use of such oyster beds” (Laws 1868, c. 734), while the Virginia statute employs different language and provides that the oyster beds may be occupied “for the purpose of planting or propagating oysters thereon,” and that so long as the rent is paid annually in advance the State will guarantee to the renter for twenty years, “the absolute right to continue to use and occupy such grounds, sub[18]*18ject only to the right of fishing in the waters above the said bottom.” Secs. 6 and 9, General Oyster Law. (Acts 1910, p. 543).
In Seaman v. New York, 176 App. Div. 608, 161 N. Y. Supp. 1002, the pollution of tidal waters by sewage is held damnum absque injuria, as to a riparian owner who had his oysters, over which, while stored in his cellar, the polluted waters of Jamaica Bay ebbed and flowed.
The authorities upon the general subject are collected and summarized in the note to Winchell V. Waukesha, 110 Wis. 101, 85 N. W. 668, 84 Am. St. Rep. 921, and in 9 R. C. L. 682.
Grants in' derogation of the common or public right are always strictly construed against the grantee. Nothing passes except what is granted specifically or by necessary implication.
As Mr. Justice Shiras states the rule in his dissenting opinion in the case of Illinois Central R. Co. v. Illinois, 146 U. S. 468, 13 Sup. Ct. 124, 36 L. Ed. 1048: “It must be conceded, in limine, that, in construing this grant, the State is entitled to the benefit of certain well settled canons of construction that pertain to grants by the State to private persons or corporations, as, for instance, that if there is any ambiguity or uncertainty in the act, that interpretation must be put upon it which is most favorable to the. State; that the words of the grant, being attributable to the party procuring the legislation, iare to receive a strict construction as against the grantee; and that, as the State acts for the public good, we should expect to find the grant consistent with good morals and the general welfare of the State at large and of the particular community to be affected.”
Applying this rule to the grants made under the Virginia oyster law, we find that the lease is made only “for the purpose of planting and propagating oysters thereon,” and it [19]*19is for this purpose alone that the planter is authorized to use and occupy such ground—that is to say, that while any citizen might have taken oysters therefrom before the grant, afterwards he only may do so and all others are excluded from either planting or taking oysters from such ground during his term; this marks the limit of his right, for there is nothing to indicate that any other public or private right is withdrawn, limited or curtailed. He does not take a fee simple title, nor can he use the property for any other purpose except for that stated in the statute, and hence every other right theretofore in the public is preserved. Nor is there any language in the statute indicating any intent to destroy or impair any of the ancient rights of the riparian owners.
In Prior v. Swartz, 62 Conn. 132, 25 Atl. 398, 18 L. R. A. 668, 36 Am. St. Rep. 333, it is expressly decided that the right of the riparian owner to build wharves and dig channels to connect his high land with navigable waters is superior to the right of the oyster planter. This right of the riparian owner to build wharves is everywhere recognized. Miller v. Mendenhall, 43 Minn. 95, 44 N. W. 1141, 8 L. R. A. 89, 19 Am. St. Rep. (note) 231; Norfolk City v. Cooke, 27 Gratt. (68 Va.) 485.
It is a matter of common knowledge and, therefore, must have been within the contemplation of the general assembly when the law was enacted, that there are vast areas of land in the tidal waters of Virginia remote from the centers of population and suitable for oyster culture.
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Prentis, J.,
delivered the opinion of the court.
The appellant filed his bill against the appellee, basing his claim for relief upon the fact that he is the lessee from the State of very valuable oyster planting grounds located in Hampton Roads, on the northern side thereof near the city of Newport News, and that a considerable portion, thereof has already been damaged and the oysters thereon polluted because • of the sewer system of the city, which conducts sewage into Salter’s creek and thence into the tidal waters of Hampton Roads, across appellant's oyster beds, and that other and greater damage therefrom is probable. To this bill the appellee filed a demurrer, which the lower court sustained because of opinion that the case of Hampton v. Watson, 119 Va. 95, 89 S. E. 81, L. R. A. 1916F, 189, is controlling upon the main question involved.
In this conclusion of the trial court we concur. The syllabus of that case fairly states the conclusions of this court as follows:
“1. There is a marked and well defined distinction between the pollution of a small non-navigable stream, and the pollution of large tidal navigable bodies of salt water, for the reason that in the first case the bed of the stream and the waters are owned by the riparian owners while in the latter case the bed of the navigable, tidal salt water and the waters themselves are owned and controlled by the State, for the use and benefit of all the public, subject only to navigation. It is for the State to say what uses shall be made thereof and by whom, subject always to the right of the public, ,and for the State, through the legislative branch of the government, to say how much pollution it will permit to be emptied into and upon its waters, [17]*17so long as the owners of the land between low water and high water mark are not injured.
“2. A municipal corporation situated on an arm of the sea, adjacent to tidal waters, has the right to use such waters for the purpose of carrying off its refuse and sewage to the sea, so long as such use does not create a public nuisance, and any injury occasioned thereby to private oyster beds is damnum, absque injuria.”
Additional authorities to those cited in City of Hampton v. Watson, supra, (all relating, however, to the Federal government) to the effect that the power of the sovereign State or nation is perpetual, not exhausted by one exercise, and that all privileges granted in public waters are subject to that power, the exercise of which is not the taking of private property for public use, but only the lawful exercise of a governmental power for the common good, are: Scranton v. Wheeler, 179 U. S. 141, 21 Sup. Ct. 48, 45 L. Ed. 126; Greenleaf Johnson Lumber Co. v. Garrison, 237 U. S. 251, 35 Sup. Ct. 551, 59 L. Ed. 939; Willink v. United States, 240 U. S. 572, 36 Sup. Ct. 422, 60 L. Ed. 808; State v. Cleveland, etc., Ry. Co., 94 Ohio St. 61, 113 N. E. 677, L. R. A. 1917 A, p. 1014.
The appellant relies upon Huffmire v. Brooklyn, 162 N. Y. 584, 57 N. E. 176, 48 L. R. A. 421, and this case appears to sustain his contention, though it is observed that the New York statute, under which the owner of the oyster bed claimed there, provided that he should have “the exclusive property in the oysters so planted and the exclusive use of such oyster beds” (Laws 1868, c. 734), while the Virginia statute employs different language and provides that the oyster beds may be occupied “for the purpose of planting or propagating oysters thereon,” and that so long as the rent is paid annually in advance the State will guarantee to the renter for twenty years, “the absolute right to continue to use and occupy such grounds, sub[18]*18ject only to the right of fishing in the waters above the said bottom.” Secs. 6 and 9, General Oyster Law. (Acts 1910, p. 543).
In Seaman v. New York, 176 App. Div. 608, 161 N. Y. Supp. 1002, the pollution of tidal waters by sewage is held damnum absque injuria, as to a riparian owner who had his oysters, over which, while stored in his cellar, the polluted waters of Jamaica Bay ebbed and flowed.
The authorities upon the general subject are collected and summarized in the note to Winchell V. Waukesha, 110 Wis. 101, 85 N. W. 668, 84 Am. St. Rep. 921, and in 9 R. C. L. 682.
Grants in' derogation of the common or public right are always strictly construed against the grantee. Nothing passes except what is granted specifically or by necessary implication.
As Mr. Justice Shiras states the rule in his dissenting opinion in the case of Illinois Central R. Co. v. Illinois, 146 U. S. 468, 13 Sup. Ct. 124, 36 L. Ed. 1048: “It must be conceded, in limine, that, in construing this grant, the State is entitled to the benefit of certain well settled canons of construction that pertain to grants by the State to private persons or corporations, as, for instance, that if there is any ambiguity or uncertainty in the act, that interpretation must be put upon it which is most favorable to the. State; that the words of the grant, being attributable to the party procuring the legislation, iare to receive a strict construction as against the grantee; and that, as the State acts for the public good, we should expect to find the grant consistent with good morals and the general welfare of the State at large and of the particular community to be affected.”
Applying this rule to the grants made under the Virginia oyster law, we find that the lease is made only “for the purpose of planting and propagating oysters thereon,” and it [19]*19is for this purpose alone that the planter is authorized to use and occupy such ground—that is to say, that while any citizen might have taken oysters therefrom before the grant, afterwards he only may do so and all others are excluded from either planting or taking oysters from such ground during his term; this marks the limit of his right, for there is nothing to indicate that any other public or private right is withdrawn, limited or curtailed. He does not take a fee simple title, nor can he use the property for any other purpose except for that stated in the statute, and hence every other right theretofore in the public is preserved. Nor is there any language in the statute indicating any intent to destroy or impair any of the ancient rights of the riparian owners.
In Prior v. Swartz, 62 Conn. 132, 25 Atl. 398, 18 L. R. A. 668, 36 Am. St. Rep. 333, it is expressly decided that the right of the riparian owner to build wharves and dig channels to connect his high land with navigable waters is superior to the right of the oyster planter. This right of the riparian owner to build wharves is everywhere recognized. Miller v. Mendenhall, 43 Minn. 95, 44 N. W. 1141, 8 L. R. A. 89, 19 Am. St. Rep. (note) 231; Norfolk City v. Cooke, 27 Gratt. (68 Va.) 485.
It is a matter of common knowledge and, therefore, must have been within the contemplation of the general assembly when the law was enacted, that there are vast areas of land in the tidal waters of Virginia remote from the centers of population and suitable for oyster culture. Hampton Roads (in which the appellant occupies 1800 acres of oyster-planting ground, of which .100 acres is alleged to be polluted) is a large, tidal, navigable body of salt water, formed by the confluence of the waters of the Atlantic Ocean, Chesapeake Bay, the James, Elizabeth and Nansemond rivers, Hampton creek,, and other smaller streams. That some of its waters have been long polluted and unfit [20]*20for the planting of oysters for human food is also apparent from City of Hampton v. Watson, supra. Upon its shores, or closely adjacent thereto, are the cities of Norfolk,. Portsmouth, Newport News and Hampton, the towns of Phoebus and Kecoughtan, and great railway terminals and coaling stations. There is also- the large population at Fortress Monroe, the National Soldiers’ Home, and in fact along the entire adjacent coast. There the Federal government has recently located large military and naval stations, and is building an immense freight terminal for military purposes. Upon its waters innumerable ships of war and commerce, domestic and foreign, constantly float. From all of these sources the waters of Hampton Roads are constantly subject to pollution and contamination such as is necessarily incident to- all such roadsteads. This large population is destined still further to increase, and hence the probable sources of contamination will be increased.
If it be. true that the private right of the appellant to continue to use and occupy this territory for' the planting of oysters has been so guaranteed by the State as to make his rights superior to the interest of the large public otherwise entitled (within proper limits) to use the waters of Hampton Roads for its sewage, then the burden is clearly upon him to show that this is true. Until this is shown, it is unnecessary to discuss the proposition so urgently and well presented in the dissenting opinion—that is, that the General Assembly possesses unlimited power to grant absolute property rights in the lands of the State lying under the tidal waters.
That the right claimed by the city clearly existed before the enactment of the oyster law cannot be doubted, and the legislature cannot be presumed to have intended to destroy this ancient and undoubted public right in the absence of a clear and explicit statute indicating such purpose. We [21]*21think the more reasonable view of the statute is that it was not conceived that it would be thought desirable to continue to plant oysters in an area so certain ultimately to be polluted, and so likely upon inspection by the Federal and State authorities to be condemned as unsuitable for that purpose.
This construction is not, as the dissenting opinion suggests, the substitution of the will and judgment of this court for the will and judgment of the legislature, but bn the contrary ascertains and declares the true meaning of the statute in acor dance with the will and judgment of the General Assembly, which not only seeks to encourage oyster culture, but has also expressly authorized cities and towns to construct sewers within or without their limits. Acts 1908, p. 624. This conclusion effectuates both of. these purposes. The bill seeks to deny to the city of Newport News a privilege which is freely exercised by every ship which sails on these waters, and, except as restrained by local law, by every individual on these shores.
Under the Virginia statute, then, as construed by'this court, the oyster planter takes his right to plant and propagate oysters on the public domain of the Commonwealth in the tidal waters, subject to the ancient right of the riparian owners to drain the harmful refuse of the land into the sea, which is the sewer provided therefor by nature; while another statute (Acts 1916, p. 51) provides for the examination of such oyster-planting grounds so as to discover polluted areas, and prohibits the taking of oysters therefrom except for the purpose of removing them to unpolluted waters/ there to remain until cleansed, purified and made suitable for human food.
Affirmed.