
    DAVIS v. DAVIS.
    (Supreme Court, Appellate Division, Second Department.
    May 29, 1902.)
    •Shellfish—Cultivation—Lease fbom State—Maeking Plat—Convebston.
    Where a lessee from the state of land under water for the purpose of shellfish cultivation does not plainly mark the ground by stakes, buoys, or monuments, as required by his lease, and another, without knowledge of such lessee’s rights, plants clams on such land, such lessee has no right to appropriate such clams to his own use, and, if he does so, he is liable to the owner for the conversion.
    
    Appeal from municipal court, borough of Brooklyn, Fifth district.
    Action by George W. Davis against James V. S. Davis. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Arglied before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and JENKS, JJ.
    Fred L. Gross, for appellant.
    William R. Wilson, for respondent.
    
      
       See Fish, vol. 23, Cent. Dig. § 12.
    
   WILLARD BARTLETT, J.

On January 9, 1900, the state of New York, acting through the commissioners of forest, fish, and game, leased to the defendant a plot of about nine acres of land under water in Jamaica Bay for the purpose of shellfish cultivation. The lease provided that the lessee should at once cause the said ground to be plainly marked by stakes, buoys, ranges, or monuments. In April, 1900, there being at that time no visible stakes or monuments to indicate the lessee’s right of possession, the plaintiff, who was then ignorant of the defendant’s lease or claim to any right of possession •on his part, planted a quantity of clams upon this plot. In December of the same year the defendant removed lg}4 bushels of the clams thus planted, and converted them to his own use. It is for this conversion that the defendant has been held liable in the present action. The proof was conflicting upon two points: First, as to whether there were any stakes or monuments, indicating that the ground had been leased to the defendant, at the time when the plaintiff deposited his clams thereon; and, second, as to whether the plaintiff had been informed of the defendant’s claim of title at the time when the clams were deposited. Upon the evidence, however, considered as a whole, the municipal court judge was authorized to find the facts as I have stated them. Under these circumstances the defendant had no right to appropriate the clams. They were the property of the plaintiff, notwithstanding their deposit upon land under water which did not belong to him. McCarty v. Holman, 22 Hun, 53. While the plaintiff might have' been compelled to remove the clams, and while the defendant, under his lease, might have removed them himself, the fact that they had been placed on a lot leased to the defendant by a person who neither knew of the lease nor was chargeable with any knowledge of it did not forfeit his property in the shellfish, or justify the lessee in appropriating the clams to his own use. Sutter v. Van Derveer, 47 Hun, 366, 370. The case differs materially from Rexroth v. Coon, 15 R. I. 35, 23 Atl. 37, 2 Am. St. Rep. 863, cited in; behalf of the appellant. There Rexroth had placed a beehive in woods belonging to Green. A swarm of bees found their way into this hive, and were discovered there by Coon, who carried away the bees and the honey which they had produced. In an action of trover by Rexroth against Coon it was held that Rexroth could not recover, because the plaintiff, being a trespasser upon the lands of Green, had not established any title in himself coupled with possession or the right of immediate possession. The case is quite distinguishable from the case at bar. Rexroth knew that he was a trespasser, and the property sought to be recovered—to wit, the bees and the honey —had never been in the possession of the plaintiff, and therefore could not be deemed to be his property. In fact, the plaintiff never knew that the swarm had occupied the hive until after .the defendant had taken the bees and honey away. The judgment below was right, and should be affirmed.

Judgment of the municipal court affirmed, with costs. All concur.  