People v. Morrison, 108 N.Y.S. 262

108 N.Y.S. 262 | N.Y. App. Div. | 1908

G-aynoe, J.:

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 question of larceny did not depend on the existence of' snch a lease. Even though the prosecutor liad no lease, it was unlawful to knowingly take his clams. Having once reclaimed them, he did not make them feres natures again by planting them in a bed sufficiently enclosed to mark them as private property, and in which there was no natural growth of clams, as we have already seen. The oral testimony of the prosecutor that he had a written lease from the city, and - also another from the state, was therefore irrelevánt and harmless. It follows that, the- exception to allowing oral evidence to prove such leases instead of the lease.being produced,- presents only an immaterial error. The same is the case in respect of the exception to the exclusion of the colonial patents offered by the defendants to show that the title to the portion of the said hay already mentioned was in the said town. That was an immaterial fact. Whether title was in the state or in the town, the prosecutor’s clams were the subject- of larceny. That the lease from the state was void for the reason that the state officials have no jurisdiction to grant the like (Denton v. Bennett, 102 App. Div. 454), does not matter, as the question of larceny did not depend on a lease.

The judgment should be affirmed.

Woodward, Jenics, High and Hiller, JJ., .concurred.

Judgment of the Court of Special Sessions affirmed.