
    HOUSMAN v. WEIR.
    
      N Y. Supreme Court, Second District, Special Term ;
    
      November, 1884.
    Action for Conversion, &c.—Oysters ; interest in grounds STAKED OUT.-PARTNERSHIP; JOINT VENTURE.
    Parties jointly engaged in the planting and sale of oysters, do not, by staking out land under the public waters surrounding Richmond county, acquire, by virtue of chapter 404 of the Laws of 1866, any interest in such land independent of its occupation for the purpose of oyster planting; and, hence, if the parties sell their oysters on the land, and they are taken up, their right to use the land ceases, and any person finding the ground entirely unoccupied, has the right to place oysters upon it, and claim the protection of the statute.
    
    The fact that ovstermen have been accustomed, as between themselves, to assert or acknowledge an exclusive right to possession of land staked out, cannot have the effect to create or vest any title in or right of possession to the land in any person.
    An agreement, by which plaintiff was to furnish the capital, and defendant to give so much of his time and labor as was necessary in planting and gathering oysters for the market, the profits of ' each venture, after deducting expenses, to be divided equally between them,—Held, not to make them partners, but merely parties to a joint venture.
    Trial by the court without a jury.
    The complaint in this action, brought by Jacob I. Housman against Winant W. Weir, alleged a former partnership between the parties in the business of planting oysters, and that during the partnership, and with the joint funds and labor of the parties, there was staked oat and appropriated for their business purposes certain land under the public waters of this State, in Prince’s Bay, in Bichmond county, which had not been before staked out or occupied for oyster planting ; that they continued to use this land for the business until dissolution of the partnership, and that defendant then took the absolute- and exclusive possession of all the land, and excluded the plaintiff wholly therefrom ; that there had been no accounting between the parties in regard to the land, and defendant had not paid the plaintiff nor accounted to him for the value thereof. The plaintiff asked that the land, or the right to the use thereof; be adjudged to be joint property of the parties as copartners, and equitably partitioned, or that the same be sold and the proceeds divided, or that defendant be required to account to the plaintiff for the value of the land.
    The court found that the parties to the action were not partners in the said business, but conducted-their joint ventures therein under an agreement to this effect: The plaintiff furnished the capital for the purchase of seed oysters, and defendant furnished his skill and labor in planting, caring for, and gathering the oysters for the market. When the oysters were ready for the market, the plaintiff purchased them of defendant, charging himself the wholesale rates therefor, and at the close of the season, after deducting expenses, the profits of each venture were equally divided between them. The joint oysters only were subject to this agreement, and only so much of defendant’s time and labor as was necessary to procure, plant and market the oysters, was to be devoted to the joint enterprise. The locating, staking in or acquiring of oyster grounds for their joint benefit, was no part of their joint venture.
    The defendant, in 1873, staked out the land described in the complaint, shifted joint oysters from other grounds to the land in question, and thereafter used it for the joint venture, and charged the expense of maintaining the premises to joint account. After July, 1880, the parties did not engage in any new venture, but defendant continued to care for the joint oysters until Jnly, 1882, when plaintiff and defendant sold them to third persons, to whom defendant also sold his individual oysters on the premises, and all the right, title and interest, which plaintiff and defendant, or either of them had in the grounds, and the possession thereof.
    Defendant afterwards, in February, 1883, purchased of such persons all the oysters then on the land, and their right, title and interest therein, if any. Defendant has ever since remained jointly with another person, in possession of said land, and has kept it properly staked in in the usual manner for the cultivation, of oysters, and has wholly occupied it for that purpose.
    
      De Groot, Rawson & Stafford, for the plaintiff.
    Custom and use for many years have made these 6‘ oyster grounds” of commercial value. They are bought and sold, and have a marketable value. The grounds in question are protected by a special act for Richmond county (L. 1866, c. 404), and under this act, oyster planters are licensees of the State at will, having a right of property, until revoked, in the ground. Compare the general statutes passed for the protection of this industry: L. 1866, c. 753 ; L. 1872, c. 483 ; L. 1878, c. 302 ; L. 1879, c. 87 ; L. 1880, c. 453 ; L. 1881, c. 704 ; Penat Code, %% 441, 442. And see the decisions upon this subject: Fleet v. Hegeman, 14 Wend. 42 ; Decker v. Fisher, 4 Bart. 592; Lowndes v. Dickerson, 34 Id. 586.
    A prescriptive right of fishery may he obtained which is a right of property (Rogers v. Jones, 1 Wend. 
      237 ; Gould v. James, 6 Cow. 369 ; Trustees of Broohaven v. Strong, 60 N. Y. 56). The right of a licensee or lessee of the State is therefore much more a right or-property for the recovery of which, or an injury to which, or the conversion of which an action will lie. See Mumford v. Whitney, 15 Wend. 392, per Savage, Ch. J.; see also, Wolfe v. Frost, 4 Sand. Ch. 72; Powell v. Waldron, 89 N. Y. 328 ; Robins v. Ackerly, 24 Hun, 499.
    It is not a new scheme to bring a-partition suit for personal property (Prentice v. Janssen, 79 N. Y. 478 ; aff’g 14 Hun, 548). The exclusion of plaintiff was admitted, and the case thus came within the rule in Osborn v. Schenck, 83 N. Y. 201; see also, Van Doren v. Balty, 62 How. Pr. 158; Potter v. Neal, 11 Hun, 239. And the rule is the same as to land. Trespass will lie (Dubois v. Beaver, 25 N. Y. 123). Considering this right as a partnership asset, it is precisely within the exception named in Arnold v. Arnold, (90 N. Y. 581).
    Incorporeal hereditaments are property, and the law has always given a remedy for interference with them (3 Kent Com. 419). A trade-mark -of a firm is an asset to be sold as such (Hazard v. Caswell, 93 N. Y. 259). A seat in the Cotton Exchange is property (Powell v. Waldron, 89 N. Y. 328). A lease cannot be acquired by a partner as against his copartner. It becomes an asset (Spiess v. Rosswog, 63 How. Pr. 401; Struthers v. Pearce, 51 N. Y. 357; Mitchell v. Reed, 61 N. Y. 123). In the case at bar there is. something of value, whatever it may be called, which is an asset belonging to the parties jointly, which one has converted.
    There is nothing in Post v. Kreischer (14 Abb. N. C. 38), inconsistent with these views.
    
      George J. Greenfield, for the defendant.
    There is 
      no title or property in the oyster grounds in question, of which the court can take cognizance, but a mere right of use, and to be protected in that use while oysters are planted upon them and properly staked out, in favor of the owner of the oysters. Under the common law there is no exclusive right to use or appropriate any of the lands under water, where the tide ebbs and flows, in favor of any citizen. Oyster beds staked out are not protected (Trustees of Brookhaven v. Strong, 60if. Y. 56, 67 ; Brinckerhoff v. Starkins, 12 Barb. 248, 253; Lowndes v. Dickerson, 34 Barb. 586, 591 ; Arnold v. Mundy, 1 Halsi. 1). Property in oysters reclaimed and planted, and properly staked out, has been maintained in Fleet v. Hegeman, (14 Wencl. 42); Decker v. Fisher (4 Barb. 592). The act or 1866 (c. 404) is intended solely for the protection of planted oysters, and confers no right to the use of the ground, except to the owner of the oysters, so long as they remain upon the ground staked out and used for the purpose.
    When the legislature intended to give such right, it expressed itself in very plain language, as in L. 1866, c. 399, and L. 1866, c. 306. See Robins v. Ackerly, 24 Hun. 499; Lowndes v. Dickerson, 34 Barb. 586 ; Trustees of Brookhaven v. Strong, 60 N. Y. 56, Construing these statutes.
    The mere occupation and clearing out of a fishing place in a river, gives no exclusive right of fishery (Westfall v. Van Anker, 12 Johns. 425),
    The court will not concern itself with uncertain or indefinite claims, as to which it can give no judgment which can be enforced. Defendant is in adverse possession. Partition cannot be had. There is no property which the court could direct to be sold.
    
      
       Compare Post v. Kreischer, 14 Abb. N. C. 38.
    
   Pratt, J.

This case presents many difficulties both of fact and law, but considering all the facts and circumstances, I feel constrained to dismiss the comjplaint.

It is true the grounds in controversy were staked out after the commencement of the venture and for the joint use of the parties, and were so used during the continuance of the business.

Whether the stakes were paid for by Housman’s money, does not clearly appear. The time or labor of the defendant did not belong to Housman, except so much thereof as was necessary to procure, plant and market the oysters.

While the parties had oysters upon "the grounds, they were entitled to the protection of the statute {Laws 1866, ch. 404), but when they ceased to have any oysters upon the grounds, their title, if it may be so termed, ceased.

One object of the statute was to encourage the planting of oysters ; and it cannot be that a party can forever exclude every other person from a parcel of such land by merely staking it out. The law looks to the protection of parties in respect to their rights in oysters planted by them and not to creating any interest in the land, independent of its occupation for the purpose of oyster planting.

Neither does the claim of a local custom, help the plaintiff’s case. No custom could give the plaintiff'any prescriptive right as against the State and unless he has some color of title, he can maintain no action for recovery of possession of the ground. , In fact neither party has- any title to the land, but the defendant having placed oysters thereon, can maintain his possession under the statute. It cannot be said that this is á lease, nor is it an asset of the firm in any sense. So long as these parties jointly owned oysters upon this land, each had the same protection, but this, it seems to me, only extended to the oysters and the statutory right or license, whatever id may be called, to occupy the ground for the oyster business.

But the obvious answer io the claim that this land, or lease was a partnership asset, is, that there was no partnership. It was a mere joint venture under a special agreement and whatever cash expenses there were incurred, the same were deducted at the end of each year, before any division was made of the profits ; so that I cannot see, that it makes any difference in the result, whether Housman paid for the stakes or not. The joint agreement had reference alone to the planting and raising of oysters, and not to the acquisition of any rights in land.

When the oysters planted by the parties jointly were taken up, the exclusive right to use the land, of both the parties, ceased, and any person finding the ground entirely unoccupied, had a right to place oysters upon it and claim the protection afforded by the statute.

The fact that oystermen have been accustomed, as between themselves, to assert or acknowledge an exclusive right to possession, of land staked out, cannot have the effect to create or vest any title in or right of possession to the land in any person. The purpose of the stakes, is to designate where oysters are planted and not to show any ownership in the land. When the parties parted with all ownership in the oysters, they surrendered all their right to possession of the land.

I do not think the defendant established his counter-claim.

There should be a judgment for defendant, dismissing the complaint upon the merits, with costs.  