
    EXECUTORS of M‘KENZIE against HULET.
    A grant of anLal'm 0f W¡11 enti to an acuonoftres-^iauJimfretit stfc-⅜ f ora ¡i.e rocks witlun
    THIS was an action of trespass quare clausum fregit, tried before Seawell, J. at Nexu-Hanover SuperiorCourt; plea, Not guilty, and a special justification that the in quo vs au arm of the sea, &c. The facts were, that the Plaintiff’s testator claimed under a grant. The Defendant had taken oysters, in the lifetime of the testator, from the oyster-rocks included within the lines of the grant, which rocks, and the earth on which they grow, are • ’ ' jai. ered wi;h water at high tides and bare at low tides, and extend from the main land to the' banks which the Sound from the Ocean, occasionally interrupted by marsh land and channels for the water. The navigation of the Sound, eyen for small boats, is almost impracticable, except at flood tide, when the oyster-rocks, being covered, the communication between the different parts of the main is more direct. The main land along the western boundary of the grant is the property of different p- rsons. The banks included in the grant are not covered by high water, but the marshes generally but not entirely are. The channels through the Sound and between Ijhe marshes and oyster-rocks are frequently changed by violent storms and new phapnels broken through thp oyster-rocks. The Defendant was in the-habit of making a profit .from burning the shells taken from these oyster-rocks.
    The Court, under the evidence, instructed the jury that the Defendant had committed a trespass, and directed them that the amount of the damage sustained by thg Plaintiff was the clear profit made by the Defendant* The jury found accordingly ; and a new trial was moved $or*on the ground of misdirection as. to the points^
    The case was submitted without argument*
    
      
      
        5 Co. 107. Sir Henry Constable's case.
      
    
   Tas%or, C. J.

This case does not call for an opinion as to the right of every citizen to fish in an arm of the ⅞€3, but only as to the right of taking oysters within the pounds of another’s patent although between the high and low water marks. These rocks form, in many instances, a part of the permanent value of the freehold, become the source Of profit to the owner by converting the shells into lime, and are sometimes the foundation of lucrative establishments, of which Shell Castle is an instance. The right of taking fish in the sea, or the arms thereof, belongs to every one as a common of Piscary ; but even this may be restrained, where an individual hath gained exclusive property. And this may be acquired by grant or prescription ; but it being considered as a royalty, it would not pass without special and express words. Where a gj.ant; abqtS upon the sea or a navigable river, it stops, according to the common law, at the ordinary highwater mark j and the shore, that is, the ground between the high and low water marks, belongs of common right, to the king. But it seems to be wejl settled, that, whatever is below the bighwater mark may be granted by the king, of which many instances are put in the book already cited. The charter of Car. 11, to the lords’ proprietors is an illustration of the form used by the crown in the grant of royalties. As the grant under which the Plaintiff claims, actually takes in these oyster-rocks, I am of opinion, that as to them, he has an exclusive property, and that the Defendant has committed a tr^pass in taking them away. In a late case, the common law right to take sea fish is recognized, subject however to abridgment or restriction; but the Courts say, as no case has been cited support the claim of taking shells» they would pause before they established it.

Dañieí,, J.

The rocks and marshes in the Sound, which are covered with water at flood tides and bare «rhpn the tides ebb, are subject to the operation of th$ fntry laws. “ The shores may not only belong to subject in gross, which may possibly suppose a grant, before the time of memory, but it may be parcel of a manor.” So it may be parcel of a ville or parish. The Parson of Sutton, about the 14th Car. 1, had a verdict for the ' tithes at Sutton. Marsh in Lincolnshire, although it was the main shore of the sea, covered at ordinary tides, and Without the old Sea banks.

I do not see any inconvenience the public can sustain in permitting the place mentioned in the present case, , . ■ ™ ... , . be patented. 1 ne navigation is not, nor cannot be ob-strutted, by works or fixtures which the Plaintiff may place upon it.

Gn the second point, I am of opiniop, the charge of the Court, as to the grounds upon which the jury should assess the damages, was correct.

The rest of the Court concurred. 
      
      
        Hale, de Jure Maris, 11.
     
      
       Ibid 43.
     
      
      
        2 Bl. 39.
      
     
      
      
        Hale de Jure Maris, 12
      
     
      
      
         Bagott Orr, 2 Bos. & Pul. 479
      
     
      
      
         Ba Ab.Prerogative, B 3.
     
      
      
        4 Bac Ab. 499 (Gwill. edit.) Batture case.
      
      
        Livingston v. Jefferson, Law Journal
      
     
      
       1 Hayw. 489.
     
      
       Seawell, J. gave no opinion.
     