By the Court, Strong, P. J.
The plaintiffs, who were partners, had for several years previous to 1844, planted oysters in a part of Prince’s Bay, which they had designated by stakes, and had subsequently dredged them for market, so far as appears, without obstruction from others, until they were interrupted by the defendants Elias and James Fisher. It appears that in February, 1844, the oysters which had been previously planted by the plaintiffs, had been principally removed. It is stated by one of the defendants’ witnesses, that they deposited oysters on the ground previously occupied by the plaintiffs, some time during that month. That fact is rendered somewhat doubtful, however, by the statement of another of their witnesses, who testified, that when the defendants threw out oysters on the ground, in May, 1844, one of them observed that some body had thrown out oysters on his ground. The remark would not have been made, if he had done that himself. It was proved that the plaintiffs had filled the ground with oys*595ters, in April, 1844, and that two of the defendants threw one load on the same ground, in May, 1844, and then said, that the ground was filled, and they would throw some on it and have their share. In the summer of 1844, the defendants Elias and James, against whom the verdict was rendered, took five or six skiff loads, containing twenty bushels each, of oysters from the ground in question, and carried them away. From all the testimony, I think it clear, that these were the oysters which had been deposited there by the plaintiffs in April, with the exception perhaps of a small quantity which had been intentionally mingled with them by.the defendants. There is a contrariety of evidence as to some of these facts, but the jury were, I think, warranted in drawing the inferences which I have stated. The question is, whether, upon these facts, the plaintiffs can maintain this suit. It was decided in Fleet v. Hegeman, (14 Wend. 42,) that oysters planted by an individual in a bed clearly designated and marked out in a bay or arm of the sea, which is a common fishery to all the inhabitants of the town in which the bay is situated, are the property of him who planted them, and for any interference with them, trespass lies. The reasons upon which that case was decided, are equally applicable to navigable waters which are free for all the inhabitants of the state. It is not against the common privilege to say that while any one may fully exercise it, that does not give him the right to take property which another has reclaimed from its native wild state, and confined within his immediate power, so as to prevent its escape. If oysters had previously existed in their native state on this ground, the plaintiffs could not have deprived others of the right to take them by depositing others in the same place. But if there had been none there before, the privilege had been created by the plaintiffs, and had never belonged to the public. The defendants, could not impair the plaintiffs’ title to the oysters by depositing a few others in the same place, knowing that the plaintiffs had at the time similar property there, and with an intent so to mingle the two together that neither could be identified, and *596thus enable them to appropriate the property of others to their own use. (2 Kent's Com. 365, and the cases there cited.)
The learned judge charged the jury, that trespass would not lie against the defendants, for taking the oysters in the public waters, but that the action could be maintained, if they subsequently appropriated them to their own use. If there was any error in the charge, it was in favor of the defendants, and for that they cannot obtain a new trial.
New trial denied.