158 Mass. 120 | Mass. | 1893
The agreed facts show that the defendant took oysters from flats in the tide waters of Bourne, in Buzzard’s Bay, at a time when those flats were under license to the plaintiff. The license was issued on April 26, 1890, and the oysters were taken in the following October; but the defendant had had a license of the same flats, which had expired by its own limitation in June, 1889, when there were on the flats about five hundred bushels of oysters which he had placed there. He applied for a renewal of his license, but, although notified by the selectmen that they had concluded to grant it, he did not take it out; and the license to the plaintiff was upon an application made several months subsequently. The contention of the defendant is, that the oysters which he took were his own property, which he had a right to take, and that the plaintiff’s lease, if not void, certainly could not impair the defendant’s private right to recover his own oysters from the sea.
The oyster has no power of locomotion, and after the spat has once acquired a shell remains in its original bed unless forcibly removed. It thrives only if constantly covered by the tide, and cannot, therefore, be taken except by disturbing to a greater or less extent ground the ownership of which is in the Commonwealth or the town, and not in private persons. The oyster fishery has been regulated by statute from early times. By the Prov. St. of 1764-65, 4 Prov. Laws, (State ed.) 743, all persons were forbidden to take oysters in any of the bays, ports, or rivers of the Province without leave of the selectmen, except that an inhabitant might take oysters for his own eating, or for market in his own town. This statute seems to have been continued in force until the adoption of the St. of 1795, c. 71, the provisions of which are yet substantially in force. See Rev. Sts. c. 55, §§ 11-17; Gen. Sts. c. 83, §§ 12, 13, 15; Pub. Sts. c. 91, §§ 93, 94, 95, and 96. The St. of 1795, c. 71, was discussed in Dill v. Wareham, 7 Met. 438, 446, and in Commonwealth v. Manimon, 136 Mass. 456. An examination of the statutes shows that the fishery has not been an open one in our
The original provisions for licensing of flats to individuals were contained in an act concerning the planting of oysters (St. 1848, c. 152), the provisions of which were continued in the Gen. Sts. c. 88, §§ 16, 17, 18, and in the Pub. Sts. c. 91, §§ 97, 98, 99. Other provisions have been from time to time added. See St. 1878, c. 179; Pub. Sts. c. 91, §§ 100, 101; St. 1884, c. 284; St. 1885, c. 220; St. 1886, c. 299. The plaintiff’s license was regularly issued under these provisions. They contemplate a written and recorded license, and whatever right the defendant might have had if he had called for his second license upon receiving notice that it had been awarded to him, his failure to call for it left it open for the selectmen to grant a license to the plaintiff, and the license so granted was valid.
It remains to consider whether the fact that oysters planted by the defendant remained upon the territory gave the defendant any right to gather them after the plaintiff obtained his license. The facts that the place licensed is not to contain a natural oyster bed, and the low price charged in fees, make it apparent that the purpose of the statute is to encourage the artificial propagation of oysters. Young oysters or spat brought by the currents into contact with any solid material upon the sea bottom adhere, acquire shells, and grow. In this way new beds are made. If oysters which have shells are removed from one locality to another, they increase in size and improve in quality. It was expected that licensees would in one or both of these ways make artificial oyster beds on the flats licensed to them. The exclusive occupation of the territory for a considerable time was originally essential to the profit of the undertaking, and is secured by making the license for so long a term as twenty (now ten) years, and by giving during the term the exclusive use of the territory. It does not appear for what term the defendant’s license had been granted, but if for less than the maximum, it was at least for a term satisfactory to himself, and of which he knew the limit. During that term he had for his private use a part of the public domain, without any payment in the nature of rent, and certainly with
Judgment affirmed.
