11 Barb. 248 | N.Y. Sup. Ct. | 1851
By the Court,
The return to the certiorari which was issued in this cause, shows that a witness, called on the part of the plaintiff below, testified that about four or five years previous to the trial, the plaintiff planted oysters in the mouth of Le Roy Bay, adjoining Long Island Sound; but the
Upon this state of facts, a verdict and judgment were rendered for the defendant below. A writ of certiorari was then issued from the court of common pleas of Westchester county, and the judgment rendered by the justice was reversed. The case now comes before us upon a writ of error.
The questions which were raised by the parties, on the trial, do not very clearly appear from the error book. It was contended upon the argument, that the error which justified the reversal of the judgment of the justice before whom the cause was tried, was to be found in his charge to the jury. But even that does not, distinctly, present the questions which were discussed before us. The only legal proposition contained in the justice’s charge is, that no person can acquire an exclusive right to the tide waters of Long Island Sound, by staking or buoying a piece of ground, under those waters, for planting oysters therein, without legislative enactment. This is, in substance, nothing more than the general rule which is to be found in the hooks, and which certainly of late years has not been doubted, that no person can acquire an exclusive right, in navigable wa
The amount in controversy in this suit is insignificant, but the principles involved in it are of the highest importance.
The defendant in error contends, that the proof offered by him established such a possession of the property taken as to entitle him to recover its value in an action of trespass. It is not doubted that oysters are animals ferm natures; nor that the sea, or navigable bays and rivers, are their natural element. It is contended, however, that in this case the oysters were reclaimed, and that the plaintiff below had acquired a qualified property in them, which had not been abandoned, or lost, by planting them in the manner and at the place stated. In the case of Fleet v. Hegeman, (14 Wend. 42,) which was particularly relied upon by the defendant in error, it appeared that the plaintiff had gathered a quantity of oysters when small, about two years before the trial, and had planted them in a bed in Oyster Bay, about fifteen rods from the adjoining shore, of which he was the proprietor; and that he enclosed them with stakes ; that no oysters grew there at the time, and that none had grown since, outside of the bed. Upon this state of facts, the supreme court reversed the judgment of the court of common pleas, which had been given in favor of the defendant. The ground of this decision was that the oysters had been reclaimed.
The only right which a person can acquire to animals ferœ natures, is a qualified property in them; that is, they are his property while they continue in his keeping, or actual possession. But if they escape, or if he permits them to go at large, his
Although we consider the case of Fleet v. Hegeman as an authority which we are -bound to follow, still, it seems to us, that the court overlooked the idea, that the principle established by them, if carried out, will, in effect, authorize an exclusive appropriation of public navigable waters for fishing purposes; for there is no limit fixed to the extent to which an individual can make his oyster beds, and so long as he has oysters there no other person can lawfully plant his in the same bed; so that the result might be the exclusive appropriation, by a few indi
Edmonds, Edwards and King, Justices.
We are of opinion that the judgment of the court of common pleas should be reversed.