108 N.Y.S. 262 | N.Y. App. Div. | 1908
The defendants were convicted in the borough of Brooklyn in the court of" special sessions of petit larceny for stealing clams in that part of Jamaica bay adjacent to that part of the said borough which was formerly the town of Flatlands. The prosecutor had planted clams in a bed to grow and mature, and he accused the defendants of stealing them.- There was sufficient evidence for the trial court to find that no natural clams grew at that place.
The law is long settled that shell fish planted under public waters where they do not grow naturally, and where therefore they cannot lose their identity by becoming mixed with those local to the place, are. the subject of conversion and larceny. But the person taking them must have notice of their private ownership to make such taking larceny. This notice is usually given by enclosing the bed in which they are planted by stakes or otherwise (People v. Wanzer, 43 Misc. Rep. 136, and cases there collected; and see Vroom v. Tilly, 184 N. Y. 168). There was sufficient evidence for the trial court to find that the prosecutor’s bed was so enclosed.
Chapter-J34 of the Laws of 1868 authorized the supervisor and justice of the peace of the town of Flatlands to give exclusive leases in writing to inhabitants of the town for the planting of shell fish in the waters of Jamaica bay mentioned above, except in natural beds, and that authority passed to the city of New Fork when the said town became a part of the said city. But the ques
The judgment should be affirmed.
Woodward, Jenics, High and Hiller, JJ., .concurred.
Judgment of the Court of Special Sessions affirmed.