26 N.Y.S. 307 | N.Y. Sup. Ct. | 1893
There is a natural bed of oysters in the Great South hay in the town of Brookhaven, in Suffolk county, known by the name of “Reef & Swash.” The right to take oysters from this bay is owned by the town of Brookhaven and by the heirs of Robert R. Smith, deceased, equally, as tenants in common. By an agreement between the owners the control and management of the common property was committed to the town in 1767, and this management was acquiesced in until June, 1892, when the owners were restored, by a judgment of this court, to their individual rights. Before the filing of the judgment the Smith heirs executed a lease of a portion of the joint property. In August, 1892, the town gave leases of the right to take oysters from the common property. This action is brought by the licensees under the Smith title to restrain by injunction the licensees of the town from taking oysters from the Reef & Swash oyster bed. Such an action will not be supported. The right of each tenant is to the. use and enjoyment of the common property and of all the common property. This right can only be qualified by an agreement between the parties that one of the joint owners may occupy exclusively the whole or a portion of the common property. Zapp v. Miller, 109 N. Y. 57, 15 N. E. 889; Le Barron v. Babcock, 122 N. Y. 153, 25 N. E. 253. The planting of oysters in the Swash gave the plaintiffs no right greater than the Smith heirs could exercise themselves without the assent of. the town authorities. None such is claimed in the case. The plaintiffs’ lease thereof gave them no exclusive right to take oysters from the property in question, even though they had expended money and labor in making the oyster bed productive. The town had uniformly refused to give any exclusive right of fisheries in and upon the bed. The cases of Hand v. Newton, 92 N. Y. 88, and Robbins v.
