Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1968 No. 4 -
Attorney General John J. O'Connell


In view of the respective definitions of "real property" and "personal property" for ad valorem tax purposes, oysters in their beds should be regarded as personal property and taxed as such.

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                                                                 January 24, 1968

Honorable George Kinnear
Department of Revenue
General Administration Building
Olympia, Washington 98501

                                                                                                                   Cite as:  AGO 1968 No. 4

Dear Sir:

            By letter previously acknowledged you have requested the opinion of this office on the following question:

            Are oysters in their beds to be considered as real property or as personal property for ad valorem tax purposes?

            We answer your question as explained in the analysis.


            At the outset, we refer you to the previous consideration of this question by this office in AGO 1899-1900:148, a copy of which is attached.  Although that opinion is concise and correctly states the law, as we view it, its brevity demands a review of pertinent authorities.

            The problem presented in your question is an apparent result of the definition given real property for ad valorem tax purposes:

            "The term 'real property' for the purposes of taxation shall be held and construed to mean and include the land itself, whether laid out in town lots or otherwise, and all buildings, structures or improvements or other fixtures of whatsoever kind thereon, except improvements upon lands the fee of which is still vested in the United States, or in the state of Washington, and all rights and privileges thereto belonging or in any wise appertaining, except leases of  [[Orig. Op. Page 2]] real property and leasehold interests therein for a term less than the life of the holder;and all substances in and under the same; all standing timber growing thereon, except standing timber owned separately from the ownership of the land upon which the same may stand or be growing; and all property which the law defines or the courts may interpret, declare and hold to be real property under the letter, spirit, intent and meaning of the law for the purposes of taxation."  (Emphasis supplied) RCW 84.04.090.

            For the same purposes, personal property is also statutorily defined:

            "'Personal property' for the purposes of taxation, shall be held and construed to embrace and include, without especially defining and enumerating it, all goods, chattels, stocks, estates or moneys; all standing timber held or owned separately from the ownership of the land on which it may stand; all fish trap, pound net, reef net, set net and drag seine fishing locations; all leases of real property and leasehold interests therein for a term less than the life of the holder; all improvements upon lands the fee of which is still vested in the United States, or in the state of Washington; all gas and water mains and pipes laid in roads, streets or alleys; and all property of whatsoever kind, name, nature and description, which the law may define or the courts interpret, declare and hold to be personal property for the purpose of taxation and as being subject to the laws and under the jurisdiction of the courts of this state, whether the same be any marine craft, as ships and vessels, or other property holden under the laws and jurisdiction of the courts of this state, be the same at home or abroad:  Provided, That mortgages, notes, accounts, certificates of deposit, tax certificates, judgments, state, county, municipal and taxing district bonds and warrants shall not be considered as property for the purpose of this title, and no deduction shall hereafter be made or allowed on account of any indebtedness owed."  (Emphasis supplied) RCW 84.04.080.

             [[Orig. Op. Page 3]]

            As your question indicates, portions of each statute would appear to apply to oysters.  Before discussing the applicability of these two provisions, a brief dip into the fields of marine biology and oyster culture would appear necessary.

            The oyster is an animal.  It is a marine mollusk of the class called Llamellibranchia.  It reproduces itself by hermaphroditically propagating microscopic larvae, which "set," attaching themselves to submerged objects, known as cultch, such as pebbles, rocks, or old oyster shells.  At this stage, the creature commences its development as "spat" and loses the locomotive powers it once possessed.  (Cf. "oyster" Enc. Brit., 1964 Ed., Vol. 16, p. 997.) This does not, however, mean that each oyster, after the larval stage, is necessarily and permanently affixed to and located in its original resting place.  When grown, it can be picked up, without digging or prying, and in fact may be raked up and transplanted to new beds for fattening.

            Having determined that the oyster biologically is an "animal," the body of law relating to animals would apparently be available for utilization in this analysis.

            In general, the law considers animals which have been domesticated, or at least captured, to be personal property.  2 Lewis, Blackstone, Commentaries, § 389, p. 848.  This consideration has been adopted by this office in respect to ad valorem taxation, 1927-28 AGO 88.  In that opinion, referring to RCW 84.04.080, supra, (the definition of personal property), we said, speaking of live foxes held in captivity:

            "This is the statutory authority upon which the right to tax domestic animals is based, and we think it also broad enough to authorize the taxation of wild animals which have been reclaimed from a state of nature.  No private right of property exists in animals ferrae [sic] naturae so long as they are in a state of nature, but when they are reclaimed and confined within one's own immediate power, a property right exists, which, among other things, is protected by the constitution, survives to one's executor or administrator, and is the subject of larceny. . . ."

            These principles have been applied specifically to oysters.

             [[Orig. Op. Page 4]]

            "It is not doubted that oysters are ferae naturae [Of a wild nature].  A person who plants oysters in navigable waters opposite the land of another person, without asserting any other right of ownership or establishing any other evidence of actual possession, cannot thereby acquire such possession as will enable him to maintain trespass against the owner of the adjacent land for taking them away.  Brinckerhoff v. Starkins, 11 Barb. (N.Y.) 249, 252 (1851).  But oysters, though usually included in animals ferae naturae [Of a wild nature], do not come within the reason or operation of the rule.  They have neither the power nor inclination to escape.  If planted in waters where they do not grow naturally, and stakes driven to designate the situation so that they may be readily found and identified as private property, the person who planted them has the same absolute property in them as in inanimate things or domestic animals.  The State v. Taylor, 3 Dutcher (N.J.) 117-119 [[3 Dutch. (N.J.) 117-119]](1858)."  2 Lewis, Blackstone, Commentaries, § 392 (23), p. 850.

            Further, oysters have consistently been held to be personal property for other purposes by the courts in other states.  Fleet v. Hegeman, 14 Wend. 42 (N.Y.) (1835); Payne & Butler v. Providence Gas Co., 31 R.I. 295, 77 A. 145 [[77 Atl. 145]](1910); People v. Morrison, 194 N.Y. 175, 86 N.E. 1120 (1909).  The United States Supreme Court has held that mussels (which, like oysters, are bivalve mollusks) are not a part of the real property on which they were situated.  McKee v. Gratz, 260 U.S. 127, 43 S.Ct. 16, 67 L.Ed. 167 (1922).  The supreme court of this state has indicated that it considers oysters to be personal property.  Edison Oyster Co. v. Pioneer Oyster Co., 22 Wn.2d 616, 157 P.2d 302 (1945);Wiegardt v. State, 27 Wn.2d 1, 175 P.2d 969 (1947).1/

             Our conclusion that oysters in their beds are personal property is consistent with RCW 84.04.090, which includes "all substances in and under" the land in its definition of real property for purposes of ad valorem taxation.  The natural inclination of the oyster is to make its home "upon"  [[Orig. Op. Page 5]] the ground or bed, not "in" or "under" it.2/   Further, in view of the fact that the oyster is an animal, its inclusion within any definition of the word "substance" is in defiance of the general understanding of that term as it is used here.

            "It would require an unrestrained excursion in mental gymnastics to arrive at the conclusion that a crop of oysters (animals) constitute a part of the realty in any situation.  Unlike shrubs and other plants which under certain circumstances have been held to be a part of the realty, oysters are not in any way rooted to the soil and indeed obtain their sustenance from the water surrounding them and not from the land."  Coos Bay Oyster Cooperative v. State, 219 Ore. 588, [[219 Or. 588 or 219 Oreg. 588]]348 P.2d 39 (1957).    In view of the facts, therefore, that the statutory definition of personal property, for tax purposes, incorporates property legally determined to be personalty, and that the statutory definition of real property does not clearly include oysters as within its scope, we are of the opinion that oysters in their beds are personal property for the purposes of ad valorem taxation.3/

             We trust the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/The specific question of taxation of oysters as personal property has, to our knowledge, been litigated only once, and that with inconclusive results.  Murray v. Skinner, 1 Wood, Tithe Causes [[Tithe Cases]], 541 (1913).

2/In fact, with a new method of growing oysters, consisting of hanging them from rafts, oysters are being grown in a manner that is not "upon" any ground or bed at all.  See Layton "All of Puget Sound for the Oysters?"  Daily Olympian, August 25, 1967, page 1, column 6.

3/Lest the mistaken impression arise that the general maxim, Quicquid plantatur solo, solo credit, is being ignored here, we should point out that the verbplantatur is passive, rendering the maxim inapplicable to oysters, which accomplish this fixation themselves.  If the maxim were to read,Quicquid se plantat solo, solo cedit, it could conceivably be applicable to oysters.