136 Mass. 456 | Mass. | 1884
This is an indictment under the Pub. Sts. c. 91, § 101, alleging that the defendant dug oysters from certain flats described in a license granted under the provisions of § 97 of the same chapter, without the consent of the persons licensed. There was evidence that the defendant, in digging quahaugs, disturbed and destroyed oysters; that his purpose was to dig quahaugs; and that he took no oysters from the water, and that he did not move or disturb them with intent to take them away. The defendant contends that the digging intended in the statute referred to is an act done with intent to remove and appropriate the oysters; and that taking them from their beds, or destroying them, without such intent, would come within § 93, and not § 101. Section 101 expressly refers to oysters in artificial beds, and the provision in question is intended to protect the private rights of the owners of such beds. Section 93, in view of the subject matter, and of the history of legislation thereon, must be held to refer to oysters in natural beds, and as intended to regulate the exercise of the common right of taking oysters from such beds.
The St. of 1795, c. 71, § 1, provided that “it shall not be lawful for any person to take any oysters from their beds, destroy them, or wilfully obstruct their growth therein, in any part of this Commonwealth, except as is hereinafter excepted,”
It seems plain, from an examination of these statutes, that when the Legislature provided for private ownership in oyster beds, there ceased to be any public or common right to take oysters from such beds, and the provisions intended to regulate the exercise of the common right do not apply to them; and that the provision in the act creating the right against digging and taking away oysters is all the protection intended to be given by the statute to licensed owners of oyster beds; and it is not reasonable to suppose that no protection was intended to them against any wrong but taking and carrying away oysters. The language of the statute does not require this construction; it is “ dig, take, or carry away; ” and the reason of it forbids it.
These statutes were brought together in the Gen. Sts. c. 88, and in the Pub. Sts. c. 91, but there is nothing to indicate a different construction. Section 93 does not impliedly authorize persons having a permit from the selectmen, or inhabitants of towns, or Indians, or fishermen, to take oysters from a licensed place, because it does not apply to licensed beds, and imposes no penalty for the invasion of the private right of the licensed person; and for the same reason it does not impose a penalty upon a person, not within its exception, who takes oysters from a licensed bed with the consent of the person licensed. The provisions of §§ 99 and 101 were intended to protect the licensed person from injury to his oysters from digging them, as well as from the appropriation of them by a stranger.
It is further contended by the defendant, that the digging was not within the prohibition of the statute, because it was in the exercise of his private right to dig quahaugs. But he had no such private right. Whatever right of that kind he had was a public right. Weston v. Sampson, 8 Cush. 347. Dill v. Wareham, 7 Met. 438. Commonwealth v. Bailey, 13 Allen, 541.
Exceptions overruled.