14 Wend. 42 | N.Y. Sup. Ct. | 1835
By the Court,
It has before been decided that the right of fishing in this harbor or bay, belonged exclusively to the inhabitants of the town of Oyster Bay, derived by grant from
Both parties in this case probably are inhabitants of the town, and therefore are entitled to the common right of fishing in the bay. At all events, no question of the kind is raised in the case, and we assume such right belonged to the defendants. The plaintiff had gathered the oysters when small, some two years before the trial, and planted them in a bed in the bay, about 15 rods from the shore ; none grew there at the time, nor have any grown since outside of the bed. That a qualified property in the oysters was acquired by the plaintiff is admitted; but it is contended that the planting them in the bay, where a common right of taking them existed, was an abandonment of them to the public use. If so, it must be by force of law ; for the case fully discloses that no such intent in point of fact existed. On the contrary, they were deposited there by the owner, to improve or rather give value to them, and with reference to an ulterior use. As to all inanimate things, an absolute property in possession may be acquired in them—such as goods, plate, money; and if the article in question could be considered as falling within that description, there could be no doubt the defence taken would be untenable, unless there was an abandonment in fact. Oysters have not the power of locomotion any more than inanimate things, and when property has once been acquired in
It is clear, from the principles and cases above mentioned, that the right to appropriate property of the description in question does not depend exclusively upon the place where they are found, but upon the fact that they are ferce natures unreclaimed ; for though the deer should be found browsing in his own forest, and the pidgeon flying in the air, or any of the class reclaimablc, at large, if they have been in fact domesticated and possess the animus revertendi, they are not common property, and the occupant who takes them gets no title; and if he takes them, knowing their condition, he be
Judgment reversed.