
    Charles S. Mott et al., App’lts, v. William Underwood et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 1, 1893.)
    
    Oystebs—Tenants in common.
    An action cannot be maintained by the licensee of one tenant in common of a natural oyster bed to dispossess by injunction the other tenant in common.
    
      Appeal from a judgment in favor of defendant
    
      Strong & Spear, for app’lts; Nicholl Floyd, for resp’t.
   Barnard, P. J.

There is a natural bed of oysters in the great South Bay in the town of Brookhaven, Suffolk county, known by the name of “ Beef and Swash.” The right to take oysters from this bay is owned by the town of Brookhaven and by the heirs of Robert B. Smith, deceased, equally, as tenants in common. By an agreement between the owners the control and management of the common property was committed to the town in 1767, and this management was acquiesced in until June, 1892, when the owners were restored by, a judgment of this court to their individual rights. Before the filing of the judgment the Smith heirs executed a lease of a portion of the joint property. In August, 1892, the town gave leases of the right to take oysters from the common property. This action is brought by the licensees of the town to enjoin the defendant from taking oysters from the Beef and Swash ” oyster bed. Such an action will not be supported. The right of each tenant is to the use and enjoyment of the common property. The right can only be qualified by an agreement between the parties that one of the joint owners "may occupy exclusively the whole or a portion of the common property. Zapp v. Miller, 109 N. Y., 57; 14 St. Rep., 77; LeBarron v. Babcock, 122 N. Y., 153; 33 St. Rep., 285.

The planting of oysters in the Swash gave the plaintiffs no right greater than the Smith heirs could exercise themselves without the assent of the town authorities. Bone such is claimed in the case. The plaintiff’s- lease therefor gave them no exclusive right to take oysters from the property in question even though he had expended money and labor in making the oyster bed productive. The town had uniformly refused to give any exclusive right of fisheries in and upon the bed. The cases of Hand v. Newton, 92 N. Y., 88; and Robins v. Ackerly, 91 N. Y., 98, do i-not hold that a lease by one tenant in common of a natural oyster bed excludes one who is an owner in common without his consent. A right of action for a proportion of rents received by one owner who receives it for all without relevency upon the question whether such owner hiay be dispossessed by injunction-without his consent. If the possession of the plain tiffs’‘licensees was proven it was a possession of a moiety only. Wood v. Phillips, 43 N. Y., 152.

The case of LeBarron v. Babcock, 122 N. Y., 153, only holds that where a tenant in - common who occupies a farm exclusively with the assent of his co-tenant, owns the products from it while he occupies. Under the case if the plaintiffs licensees had gathered oysters from the leased premises, he could not be held liable for the same at the suit of a co-tenant in common.

The judgment should, therefore, be affirmed with costs. _  