91 N.Y.S. 51 | N.Y. App. Div. | 1904
Lead Opinion
The -plaintiff cultivated oysters on forty acres of land under the waters of Long Island sound, upon the supposition that the tract was within the bounds of lands granted to his licensors for such pursuit by the State. For six years he took out a large quantity of oysters. The defendants had acquired from the State a similar franchise in lands adjacent to those of the plaintiff. In fact the said forty acres were within the bounds of the defendants’ lands, although there was no indication thereof. This fact was ascertained by an official survey obtained by the defendants six years after the plaintiff had begun cultivation. Thereupon, in the face of the plaintiff’s protest and explanation, the defendants took up for their own use the oysters from this tract. This action is for a conversion, and the plaintiff has gained the judgment.
The court found that the oysters taken up by the defendants were the result of the plaintiff’s cultivation, and I think that the evidence justifies this finding.
The judgment should be affirmed, with costs.
All concurred, except Woodward, J., who read for reversal.
Dissenting Opinion
I am unwilling to concur in the opinion about to be handed down by this court, because, in my judgment, it is fraught with great mischief, and is intended to defeat the policy of the State in respect to its oyster fisheries. It is undoubtedly true that at common law oysters planted in tidal waters on a well-marked and clearly defined bed, where there were no natural oysters before, were the personal property of the planter and he might maintain an action for their conversion (Sutter v. Van Derveer, 47 Hun, 366, 368, and authorities there cited), but in the year 1887 tile State of Hew York undertook to “ promote and protect the cultivation of shell-fish within the waters of this State” (Laws of 1887, chap. 584), and by the provisions of this act the common law, in so far as it relates to this subject, was abrogated, and the rights of oystermen became regulated by this act. If I am right in this proposition, all of the cases decided before the modification of the common law, and which have been relied upon to support the subsequent decisions, are important only as affording a knowledge of what the law was, and not what it
Ohapter 584 of the Laws of 1887 provided in its 1st section that the commissioner of fisheries theretofore appointed, and his successor in office, shall be “knownas the Shell-fish Commissioner,” and it was his duty to “ finish and complete the survey now being made under his direction of all the lands under the waters of the State suitable for use for the jplanti/ng and cultivation of shell-fish, and shall make a map thereof as heretofore provided. He shall finish and complete the survey now being made of all the beds of oysters of natural growth located in the waters of the State, and such beds of oysters of natural growth shall be set apart and preserved, and shall not be deemed to be included in the lands for which franchises are to be sold under the provisions of this act. Said commissioner shall ascertain the occupants of all lands claimed to be in the possession or occupation of any person or persons, and no grant of lands so occupied or possessed shall be made, except to the actual occupant or possessor thereof; provided said occupant or possessor, within one year from the passage of this act, shall make application for, and purchase the same.” That is, the State assumed dominion over all of the waters of this State suitable for oyster culture, undertook to preserve to the public the natural oyster beds, and to guarantee to those who had staked out claims under the common law the light to purchase a franchise for the same at a nominal figure, provided application was made within one year. This act, by necessary implication, denied the right of any individual to mark out and appropriate to, his own use any of the lands under the waters of this State suitable for the planting and cultivation of shell-fish, at least in so far as such waters were embraced within the boundaries of the map which was authorized and directed to be made of such waters. In other words, the common-law right to plant and cultivate oysters was denied to individuals generally, and in its stead a special privilege was granted to such as should comply with the conditions of the statute. The act, after providing in section 2 for the appointment of an additional commissioner, who should be an expert oysterman, and in section 3 for a meeting of such commissioners for the purpose of formulating such rules and regulations as shall be deemed necessary as preliminary to hearing and granting appli
The plaintiff in this action acquired all of his right to plant and cultivate oysters under the provisions of this statute, by reason of the original grant made to Elizabeth V. Merrill on the "8th day of December, 1891, which right was assigned to John H. Post in 1896, and the plaintiff and his uncle, Joseph Vroom, under a license from Post, undertook to locate the Merrill tract, and subsequently deposited a quantity of shells upon the Housman tract, which had been granted by the State to ¡Nicholas P. Housman at the same time that the Merrill grant was made, upon the mistaken theory that they were making the deposit upon the latter tract. Later the' plaintiff took an assignment of the Merrill tract from Post, as well as an assignment of his uncle’s interest, and brought this action for the conversion of 1,600 bushels of oysters by the defendants, who claim to be the owners of the Housman grant. The plaintiff had absolutely no right to plant or cultivate oysters anywhere within the public waters of this State, except upon the lands under water which were granted to Elizabeth V. Merrill; he was her successor, and the statute made it his duty to maintain the “ stakes, buoys or monuments ” which the grantee under the statute was bound to place “ immediately after the receipt of the aforesaid instruments of conveyance.” (Laws of 1887, chap. 581, § 6.) This was one of the conditions of his right to undertake oyster culture, and if he failed to stake out and indicate the lines of his franchise, as provided by law, and thus carried his operations over his line, he has only himself to blame, and he cannot plead good faith as a justification, for he was bound to know the law. The fact that the owners of the Housman tract had failed to erect stakes, buoys or monuments defining their boundaries can give the plaintiff no rights, where he has himself failed to comply with the requirements of the law. The Housman tract is hounded on the north by the south line of the Merrill tract, as well as by a township line, and if we assume that the Housman tract had been abandoned or forfeited to the State by reason of a failure to define it and to use it for the purposes provided by the statute, the plaintiff can
I find no evidence in this case to warrant the conclusion that the plaintiff has ever planted any seed oysters upon this tract; all that appears to have been done was to scrape the surface, to distribute
It should be the purpose of the court, not so much to do abstract justice in a particular case, as to establish and make certain the law and the public policy of the State, and in the present instance I am of opinion that both purposes will be served by a reversal of the judgment. The plaintiff, by a disregard of duty in ascertaining and marking the limits of his own franchise, has trespassed upon the franchise of another, and the mere fact that this trespass has resulted in improving the value of the defendants’ franchise does not justify the trespass, nor give the plaintiff any right of property in the catch of oysters which has resulted. The plaintiff had rights within the limits of his own franchise which it was the duty of the State to protect, but when he disregarded his duty and became a mere trespasser the law owed him no further obligation, and the courts should now refuse to grant him a remedy against those who have merely exercised their rights under their franchise and have gathered the oysters which have been developed within the limits fixed by the grant. To do otherwise is to defeat the policy of the State, which places upon such holder of a franchise the duty of knowing and designating the limits of his franchise, and makes each case depend upon the evidence of good faith on the part of the trespassers, when, as I have pointed out, there can be no such good faith, because it constitutes a violation of a duty imposed by law
The judgment appealed from should be reversed.
Judgment affirmed, with costs.