It is not necessary to decide in this case whether the owner of oysters, who plants them where oysters fit for use do not naturally grow, in a place the title to which is vested in the state, but who, without infringing upon the property of others, so marks and designates the place and keeps up a continued assertion of ownership by such evidence as excludes the possession of any other person, thereby relinquishes his right to them, so that he cannot maintain trover or trespass against a person who takes them. In the case of Shepherd v. Leverson (Penn. R. 391) the place where the oysters were planted does not appear to have been in any way staked off or designated, and they were in no wise to be distinguished from those which grew there naturally. The question in the case of Arnold v. Mundy (1 Halst. 1) was as to the right of property and possession to the land covered with water where the oysters were planted. In the case of Brinckerhoff v. Har
The state of the case submitted to us does not show that the oysters claimed were so separate and distinct from those which grew naturally within the enclosure of the stakes, as to show that the plaintiff who planted them had not abandoned his possession of them by placing them among those of natural growth. The claim of the plaintiff has not been founded on his continued possession of the particular oysters taken, but rests on the right he undertook to assert by virtue of the 14th section of “An act for the preservation of clams and oysters.” (Rev. Stat. 495.)
That section provides, “that it shall be lawful for any person or persons owning flats or coves along certain shores (within which the locus in quo is situate) to mark out, by fixing stakes across or around the same, at the distance of two rods from each other, and of such length as to be at least two feet above the ordinary high water, and plant or lay clams, oysters, or other shell-fish within or above the same, provided said stakes shall not include any natural oyster beds always covered with water beyond low water mark; and provided also, it shall not be lawful to stake out beyond the ordinary low water mark nor injure any navigation publicly used.”
Supposing the place staked off to be “beyond the ordinary low water mark,” as would seem to be the meaning of the facts stated, it then becomes a question what is meant by the last proviso above quoted. On behalf of the plaintiff, it is insisted that we ought so to construe it as to make it consistent with the preceding proviso. But the language employed is too plain and distinct to justify a departure from its express meaning. To read this proviso as if the word “nor” was “and,” so as to make it mean that the stakes below low water mark should not injure the navigation, would be to take a liberty with it for which there does not seem to be any necessity. In the case of The Att’y General v. Governor of Chelsea Water Works (Fitzg. 195, Bac. Ab., Stat. I. 2,) it was held, “that
Being of opinion that the facts stated in the case do not show any exclusive right of the plaintiff to either the planted, or the natural oysters, for the taking of which he claims da= mages, our judgment must be for the defendant.