CHAPTER 55, REVISED CODE, AS AMENDED.
For the Protection of Fish, Oysters and Game.
SECTION 1.Itshall be unlawful for any person, not being, a citizen of this State, to catch, or take oysters, clams, or terrapins in the Delaware Bay, within the limits of this State, without having fist obtained from the clerk of the peace of one of the counties, a license therefor, which license shall, be granted on paying to said clerk, for the use of the State, fifty dollars, and shall be in force for one year from its date, and shall be confined to one boat, or vessel, named therein: Provided, that transient vessels may catch oysters, or clams, for their own immediate use.
If any master of a boat, or vessel, or other person, shall violate this Section, he shall be deemed guilty of a misdemeanor, and shall pay to the State a fine of fifty dollars; and the boat or vessel used in such violation of the law, with all her tackle, apparel and furniture, and all her implements for taking oysters, and all oysters, clams, or terrapins so taken, shall be forfeited and may be seized and detained for trial by any officer or person.
Such trial may be had before any justice of the peace, and if condemned, the property seized shall be sold by his order; and the proceeds, deducting costs and charges, be equally divided among the captors: Provided, that an appeal shall be allowed from the judgment of the justice, if applied for within ten days, to the court of General Sessions of the Peace and Jail Delivery, on security being given by bond, and sufficient surety, in the full value of the property condemned, conditioned to be void if such judgment shall be reversed by said court. Upon such appeal, a jury trial shall be had on the issue whether the boat or vessel seized has been used in violation of this chapter; and if it be found in the affirmative, the court shall affirm the judgment of the justice; otherwise such judgment shall be reversed, and the property seized shall, thereupon, be sold, or released, accordingly.
The attorney general shall appear for the captors and defend the appeal.
Any justice of the peace, shall upon affidavit made that a boat or vessel is violating this chapter, issue his warrant to the sheriff, commanding his to seize and detain such boat, or vessel. The sheriff may, if necessary, summon to his aid the posse comitatus, armed with fire arms and ammunition, and may require the assistance and use of any other boat, or vessel, on paying, or tendering, just compensation. It shall not be necessary that the affidavit shall state the name of the vessel, or of her master; such names may be inserted in the proceedings after the seizure.
The sheriff shall be entitled to five dollars per day, and each person summoned by him and rendering him aid to one dollar per day, to be paid out of any property seized and condemned, or, if not so paid, by the State.
If any owner, master, or person belonging to, or on board of any boat or vessel, shall oppose, or resist the sheriff, or other person, in the execution of such warrant, or shall resist any lawful seizure of such boat, vessel, or other property, such person shall be deemed guilty of a misdemeanor, and shall pay to the State a fine of one hundred dollars. It shall be the duty of the attorney general to cause any person indicted under this chapter, and who is out of the State, to be demanded and brought to trial.
SECTION 2. It shall be unlawful for any person, not being a citizen of this State, to catch or take oysters, claims, or terrapins, in any river, creek, or pond, within this State, and put them on board of any boat, or vessel, not wholly belonging to and owned by citizens of this State; and the violation of this section shall subject the party offending to the same forfeitures and penalties, to be prosecuted in the same way, as is provided in section 1, of this chapter.
SECTION 3. All oysters caught in any such river, creek or pond shall be culled at the place where they fire caught; the young and refuse oysters there deposited, under penalty of forfeiting ten dollars for every violation of this section.
But no person shall cull oysters in Mispillion creek, above the upper end of the “broad reach”, under penalty of five dollars.
SECTION 4. It shall be unlawful, for any person to carry at any one time, in any vessel or boat, wagon, cart, or, carriage from any of the waters of this State, any quantity of oysters or clams, exceeding twenty bushels, which have been caught in any river, creek, or pond thereof, under penalty of forfeiting twenty dollars.
SECTION 5. It shall be unlawful for any person to catch, or take oysters in any creek or pond in this State, between the first of May and the tenth of August in any year; or at any time to use a dredge in taking oysters in any such creek, or pond: or to export or carry from this State, for sale, any oysters taken or caught in any such creek, or pond; under penalty of forfeiting ten dollars. Any boat, or vessel, taking, such oysters out of this State, shall be liable for the aforesaid penalty; and any boat, or vessel, using a dredge in any such creek or pond, shall be forfeited, together with her tackle, apparel and furniture, and may be seized, prosecuted and sold as provided in section 1, with the same mode of proceeding, and under the same penalties.
SECTION 6. If any person shall sell more than five bushels of oysters, caught in Mispillion creek, to any one, with intent that they shall he taken out of this State, such person shall forfeit and pay twenty dollars.
SECTION 7. Any citizen Of this State may appropriate to his own use a part, not exceeding one acre, of the bottom of any of the streams or waters of this State, for planting oysters; and, having marked the same by stakes, or other visible freed boundaries, and planted oysters, therein, it shall be unlawful for any other person to catch, or take the oysters therein growing, under penalty of forfeiting twenty dollars to the owner of such plantation. But no place shall be so appropriated where oysters are already growing, or so as to impede navigation; nor shall more than forty feet square of Lewes creek, opposite Lewes, be appropriated by any person. Section 4 of this chapter shall not apply to oysters so planted.
SECTION 8. It shall be unlawful for any person, not a citizen of this State, to lay out, or bed oysters in any of the waters of this State, or on the flats, shore, or banks of any river, or creek thereof, for any purpose whatever, under penalty of forfeiting twenty dollars; and any oysters, so laid out, or bedded shall be forfeited, and may be lawfully taken and carried away by any person whatever.
SECTION 9. No person shall take, or destroy any terrapin eggs found, or collected, on or near the shore of any bay, river or stream in this State, where the water is salt or upon any salt marsh, or beach, under penalty of forfeiting ten dollars; and any one having possession of such eggs, Shall be deemed to have taken them there, unless he proves the contrary.
Game, wild fowl & c.
SECTION 10. It shall be unlawful for any person not being a citizen of this State, to catch, take or kill, by himself or by his agent, or as the agent for or in the employment of any other person, whether such other person be or be not a citizen of this State, any fish, wild goose, wild duck, or other wild fowl upon any of the waters of this State, or upon any marsh or land bordering thereon, or to enter upon such waters, land or marsh for such unlawful purpose, and any person offending against the provisions of this section, shall be deemed guilty of a misdemeanor, and shall pay a fine of not less than fifty dollars and not more than one hundred dollars, any boat or vessel with her tackle, apparel and furniture and any gun, decoy-geese or decoy-ducks, used with the consent or knowledge of the owner thereof, shall be forfeited, and may be seized, condemned and sold as hereinafter provided.
But this Section shall not prohibit a citizen bf this State, nor any person, being a citizen thereof, regularly in his employment, from catching, taking or killing any such fish or wild fowl, upon any of said waters or land and marsh.
it shall be the duty of any Justice of the Peace upon affidavit made that a person has violated this Section, forthwith to issue his warrant directed to the sheriff, or in his absence to any constable, commanding to arrest the person so charged and to bring him forthwith before any such trial. If upon such trial the said justice shall find that the person arrested has violated this Section, he shall thereupon fine such person a sum not exceeding one hundred dollars, and not less than fifty dollars, and shall commit him to the custody or said sheriff or constable, who made the arrest, until said fine and costs are paid: Provided, that if the person so arrested shall, upon appearing before the justice, elect in writing, to be tried by a jury in the Court of General Sessions of the Peace and Jail Delivery and shall enter into a recognizance to the State of Delaware, with one or more sufficient sureties in the sum of two hundred dollars for his appearance at said court for trial, then and in that case the said justice shall have no further jurisdiction, and shall return the said affidavit, election and recognizance to the Clerk of the Peace in and for the County in which such offence is alleged to have been committed.
The said Clerk of the Peace shall on the first day of the Term of said court to which they are returned, deliver the said affidavit, election and recognizance to the Attorney General, who shall cause the person charged to be prosecuted as in other cases of misdemeanor.
The said recognizance shall be according to the form prescribed in Section 8 of Chapter 97 of the Revised Code, except that after the word "answer" in the ninth line of said form it shall be as follows: "a certain charge made in and by the affidavit of C. D., that he the said A. B., has violated Section Ten of Chapter fifty-five of the Revised Code of the State of Delaware, entitled "For the protection of fish, oysters and game," and shall not depart the Court without leave thereof; then this recognizance to be void; otherwise to be and remain in full force and virtue. Taken, signed and acknowledged before me, a Justice of the Peace for said county, the day of A. D. 18 ."
It shall be the duty of any Justice of the Peace upon affidavit made that a boat or vessel, gun, decoy-geese or decoy-ducks, is or are used or have been used in violation of the provisions of this Section forthwith to issue his warrant to the sheriff, or in his absence to any constable, commanding him to seize and detain such boat or vessel, and all guns and decoys used as aforesaid, for trial before said Justice; and if upon such trial the justice shall find that such boat, vessel, gun or decoys have been or are used with the consent or knowledge of the owner thereof, in violation of this Section, he shall thereupon issue his warrant to the sheriff or constable who seized such property, commanding him to sell the same at public auction, upon five days notice, posted at five several places in the county where said property is to be sold, and to divide the proceeds of such sale, after deducting costs and charges, among the captors and informers: Provided, that in case of the condemnation of such property, an appeal shall be allowed, if applied for within ten days to the Court of General Sessions of the Peace and Jail Delivery, on security being given by bond and sufficient surety, in the full value of the property condemned, conditioned to be void if such judgment shall be reversed by said court. Upon such appeal a jury trial shall on the issue whether the property seized has been used in violation of this Section; and if it be found in the affirmative, the Court shall affirm the judgment of the justice, otherwise such judgment shall be reversed, and the property seized shall be sold or released accordingly.
The Attorney General shall appear for the captors and defend the appeal.
The Sheriff or constable, in the execution of either or both captors of said warrants, may if necessary summon the posse-comitatus armed with fire-arms and ammunition, and may require the assistance of any other boat or vessel, on paying or tendering just compensation therefor. It shall not be necessary that either of the affidavits or warrants herein provided shall state sites of or we name of the person charged, nor of the boat or vessel, nor of the owner or owners of such boat or vessel or other property; such name or names may be inserted in the proceedings after the arrest or seizure. If any person shall resist or oppose the sheriff or constable, or other person in the execution of said warrant or warrants, or shall resist the lawful seizure of such boat, vessel or other property, such person shall be deemed guilty of a misdemeanor, and shall pay to the State a fine of one hundred dollars. The said sheriff or constable to whom such warrant is delivered for execution may execute the same in either county of this State, and if after due diligence the sheriff or constable cannot arrest the person charged as aforesaid because of his absence from the State, he shall return said warrant or warrants to said justice with the endorsement "non est inventus" thereon, whereupon the said justice shall forthwith deliver the said affidavit and warrant to the Clerk of the Peace, for the county wherein such offence is charged to have been committed. It shall be the duty of the Attorney General to cause the person therein charged to be indicted, and with all others indicted under this Chapter who are out of the State, to be demanded and brought to trial. The sheriff or constable shall be entitled to five dollars per day, when the person charged shall be brought for trial and each person summoned by him and rendering him aid to one dollar per day, but if the person charged shall not appear before said justice, the said officer shall be entitled to two dollars per day, and the persons summoned and rendering him aid, to fifty cents per day each.
The Justice of the Peace shall be entitled to fifty cents for taking and filing said affidavit and issuing said warrant, and one dollar for each trial and judgment under this Section, all which fees and costs shall be paid by the person convicted, or the property condemned and sold as aforesaid or by the State in case of acquittal.
SECTION 11. No person shall kill, take or destroy, in either of the counties of Kent or Sussex, any partridge, pheasant, or rabbit, between the first of February and fifteenth of October, nor in the county of New Castle between the first day of January and the fifteenth of October, nor any woodcock, in either of the said counties, between the first of February and the first of July, in any year, under penalty of forfeiting, for every one so killed, or taken, one dollar; and every person having such game in possession, shall be deemed to have taken; or killed it, unless he proves the contrary: Provided, that this section shall not prohibit any person from killing game on his own land at any time.
SECTION 12. If any person not a citizen of this State, shall himself or by his agent, or by acting as the agent for or in the employment of another person, whether such other person be or be not a citizen of this State, kill any Partridge, pheasant, robin or rabbit in this State, upon land not owned by himself, without license from the owner or occupant thereof, he shall forfeit and pay five dollars for each bird or rabbit so killed, and shall be liable as a trespasser.
It shall be the duty of any Justice of the Peace, upon information in writing to him that a person has violated, or is violating this Section, to issue his warrant directed the sheriff or to any constable, commanding him to arrest such person and to bring him before said justice for trial. The said Justice shall fine such person five dollars for each bird or rabbit killed by himself, or by his agent, or by another person for his use, in violation of this Section, and if such person shall fail or refuse to pay such fine and all costs immediately, the said justice shall forthwith commit him to the custody of the sheriff until the same are paid. If such person shall be in the possession of such bird or rabbit it shall be evidence of his killing the same, or that it was killed for his use, in violation of this Section, unless otherwise proved. The one half of said fine shall be paid to the State, and the other half to the informer.
The fee to the said justice for filing said information and issuing said warrant under this Section, shall be one dollar, and the fee to the sheriff or constable for executing said warrant, when the person charged shall appear for trial, shall be two dollars, otherwise it shall be fifty cents, to be paid by the person offending against this Section or by the State when not fined.
If any Justice of the Peace shall refuse or neglect to forthwith issue his warrant as directed in this Section and in Section Ten, as the same are herein amended and supplied, and if any sheriff or constable shall refuse or neglect to promptly execute such warrant, he shall be deemed guilty Of a misdemeanor, and shall upon indictment and conviction be fined fifty dollars.
SECTION 13. To encourage the destruction of crows; the collector of any hundred shall pay four cents, for each crow killed in his county in any year, upon production and delivery Of the scalp, and an affidavit that such crow was killed within said county, as aforesaid; and such payments shall be allowed by the levy court on production of such affidavit, and a receipt for the sum paid.
SECTION 14. It shall be unlawful for any person to shoot, kill, or chase any wild deer within this State, under penalty of forfeiting ten dollars.
Fish.
SECTION 15. No person shall float or set any gill-seine or net, for shad, or herring, in the Delaware bay within this State nearer than one mile from the mouth of any creek, under penalty of forfeiting fifty dollars; and the justice rendering judgment for such penalty, shall issue his 'warrant to a constable to remove and destroy such seine, or net; but the provisions of this section shall not apply to St. Jones' and Murderkill creeks, except so far as to prohibit gill-seines, or net, within one quarter of a mile of the mouth of either stream.
SECTION 16. No person shall place, use, or keep any gill-nets; or seine, across the channel of Indian river, or Rehoboth bay.
Any inhabitant of Sussex county may make, or have wears, hedges, or gill-seines in Indian river, above the mouth of Pepper's creek, if he leave a clear passage, or space, twenty rods wide in the channel or deepest part of the river; but no wear shall be placed in said river above the "ferry" so as to injure the navigation, nor nearer than 'twenty rods to another wear, nor so as to leave less than forty feet wide of the channel, or deepest part of the river, unobstructed, and all such wear shall be taken up entirely, in the month of May of each year.
If any person shall violate any provision of this section, he shall forfeit and pay twenty dollars; and the justice rendering judgment for such penalty, shall issue his warrant to a constable to remove and destroy any net, seine, or wear, set contrary to this section.
SECTION 17. It shall be unlawful to set or make any wear, or net, from one side to the other of the channel of any creek, or river, within this State, or on the south side of Lewes creek, under penalty of forfeiting ten dollar; and such wear or net maybe lawfully destroyed. But this section does, not apply to wears in mill-ponds, or races, nor to any wear, made by person on his own land and so as not to injure others.
SECTION 18. It shall be unlawful for any person to stretch a gill-seine across the channel of Duck creek, or to disturb the waters of said creek below "Holding's mill," or in the "Thorofare," for the purpose of driving fish into a seine, net, or wear, under penalty of forfeiting ten dollars; and any person may destroy any gill-seine, set contrary to this section.
SECTION 19. If any person shall make, have, or use any wear, hedge, gill-seine in St. Jones' creek, or river, he shall forfeit and pay ten dollars; and it shall be lawful for any one to destroy any such wear, hedge, or gill-seine.
Upon complaint made to any justice of the peace, under oath, the justice shall issue his warrant to a constable, directing him to remove and destroy, any wear, hedge, or gill-seine, illegally placed in said creek or river.
SECTION 20. Wear and fikes for taking fish, may be placed in Spring creek, above the Frederica bridge; under the direction of a justice of the peace; but they shall not extend further than half across the channel, nor within three hundred yards of each other, nor be in any way concealed, nor be within three hundred yards of any bend of the creek, nor remain down longer than four months in a year, and when taken up, the owner shall clear the bottom of the creek at the place they stood, under penalty in either case of forfeiting twenty dollars.
SECTION 21. No person shall make or have any hedge in Murderkill or Mispillion creek, or shall disturb the waters thereof; or of Broadkiln creek, for the purpose of driving fish into any net, seine, or wear, under penalty of forfeiting ten dollars.
SECTION 22. Wears, gill nets and seines may be placed in any part of Love's creek, in Sussex county; but they shall not extend more than half way across the creek, nor within twenty feet of the opposite side, nor within one hundred yards of each other; under penalty, in either of forfeiting five dollars; and the justice rendering judgment for such penalty, shall issue his warrant to a constable to remove and destroy such wear, gill net, or seine; and it shall be lawful for any one to destroy such wear, met, or seine.
SECTION 23: All penalties and forfeitures, incurred under this chapter shall, if not otherwise herein appropriated, belong to the informer, and be for the use of anyone who will sue for the same in his own name and the same shall be recoverable before any justice of the peace, if under one hundred dollars.
Chapter 405
An Act to define and prevent certain nuisances.
SECTION I. Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met, That hereafter, no person or persons, shall cast, put, place, discharge in or permit or suffer to be cast, put, placed, discharged in, or to escape into any running stream of water within the limits of this State, from which stream the inhabitants of any borough, town or city within this State are supplied wholly or in part with water for and as a drink or beverage, any dye-stuffs, drugs, chemicals or other substance or matter of any kind whatsoever, whereby, and by means whereof, the said water so supplied as and for a drink, or beverage as aforesaid, shall be made and become noxious to the health, or disagreeable to the senses of smell or taste.
SECTION 2. Every person offending against the provisions of the preceding section of this Act, shall be deemed guilty Of committing a common nuisance, and upon conviction thereof by indictment in the Court of General Sessions of the Peace and Jail Delivery, shall be fined from one thousand to five thousand dollars at the discretion of the Court and addition to the fine aforesaid, the Court shall issue an order for the abatement of the nuisance twenty days after the verdict of the Jury upon the indictment aforesaid; and the Sheriff of either of the Counties of this State in which said conviction shall take place, shall, under the order aforesaid, unless the said nuisance shall before the expiration of the time allowed for the abatement of the said nuisance, have been abated, have full power to abate the same, and to this end shall enter on the premises from which the said nuisance proceeded and arrest, stop and put an end to the business from the carrying on of which or in the process of which the said nuisance was created or carried on, or premises from which the said nuisance proceeded and issued.
SECTION 3. And be it further enacted, That no person hereafter, shall put or place, or permit to be put, placed or used any privy, hog-pen or slaughter-house over or so hear that the excrement or offal therefrom shall escape or run into any stream of running water within the limits of this State from which the inhabitants of any town, borough, or city within the limits aforesaid, are wholly or in part furnished with water as a drink or beverage, and any one offending against the provisions of this section shall be deemed to be guilty of committing a common nuisance, and upon conviction thereof in the Court Penalty aforesaid, shall be lined the sum of one hundred dollars, and Abatement the Court shall order the nuisance to be abated immediately.
Passed at Dover, February 4, 1864.