
    Richard D. Robens, Resp’t, v. Charles R. Barrett, Impleaded, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 22, 1892.)
    
    1. Injunction—Fish m private pond.
    Fish enclosed and propagated in a private pond are the property of him
    • who places them there.
    2. Same.
    In such case, an injunction will not lie to restrain their removal, even if the title be in dispute, or concededly in the plaintiff, but the proper remedy would be either an action for trespass or replevin.
    Appeal from judgment in favor of plaintiff for possession of land and granting injunction against the removal of fish from a pond thereon.
    
      French & Smith (W. B. French, of counsel), for app’lt; J. W. Crane, for resp’t.
   Mayham, P. J.

This is an appeal from a judgment in favor of the plaintiff for the recovery of the possession of the real estate described in the complaint, and also granting a perpetual injunction against the defendant restraining him from the removal of fish from a pond on the premises so recovered.

The complaint in this action alleged that the plaintiff was the owner in fee of the land described in the complaint, and that on the 7th day of March, 1881, he entered into a contract in writing with the defendant, William H. Hillman, for the sale of such premises to him at a sum specified in the contract, to be paid as therein specified, and giving the purchaser the right to immediate possession, with condition that on default by the purchaser in the payment of the purchase price or performance of any of the covenants contained in the contract, he would deliver to the plaintiff the possession of the premises. The complaint also alleged that the purchaser, the defendant William II. Hillman, went into possession under such contract, and that before the commencement of the action the purchaser made default in payment, and was at the time of the commencement of the action unlawfully withholding the possession of said premises from the plaintiff.

The complaint also alleges that the other defendants in this action have, or claim to have, some interest in the premises sought to be recovered.

The complaint also alleges that there is upon the premises a large pond of water in which the defendants have placed a large quantity of fish called German carp, and that as an inducement for the plaintiff to forbear from enforcing his rights under the .contract, the defendants agreed that as soon as said fish became of marketable size the same should be sold, and the proceeds thereof applied on the payment of the money due .on the land contract, and the complaint alleges that in violation of that agreement the defendants are removing said fish to other premises, and that the premises without such fish are not worth the sum due on the contract, and the complaint asks for a perpetual injunction, enjoining and restraining the defendants from removing such fish.

Upon this complaint and affidavits served with it, a temporary injunction was obtained, restraining the removal of the fish from the pond on the premises in question.

The answer of the defendants, William L. and Walter W. Hill-man, allege in substance that at the time of making the contract there was no pond on the premises contracted to be sold, and that since the contract they, with the other defendants, had constructed a dam across a stream on said land by which the pond thereon was created. They also allege in their answer that the contract mentioned in the plaintiff’s complaint had been mutually abandoned by the parties thereto, so far as the time of payment was concerned, and the time of making the payment was by such agreement extended until April 1, 1892, and so much longer as the parties shall then agree.

The answer also alleges a payment at the time of such extension agreement. The answer also denies that as a consideration for, or an inducement to, the plaintiff to extend the time of payment, they agreed that they would sell the fish in said pond and apply the proceeds in payment of the money due on the land contract.

The defendant, Charles B. Barrett, admits that he has an interest in the pond of water on the premises mentioned in the complaint, and that he has placed therein a large quantity of valuable fish, called German carp, and that he has removed some of such fish to an adjoining pond as he had (as he alleges) a lawful right to do.

He denies that he wrongfully withholds the possession of the premises, and that he ever agreed to apply the proceeds of the sale of the fish upon the land contract, as an inducement for an extension of the time of payment of the plaintiff.

On these pleadings and the affidavits used by the plaintiff in procuring the temporary injunction, and the affidavits prepared and served on a motion to dissolve the same, it was stipulated that a motion to dissolve should stand over and be heard by the judge who should try the issue in the case, and the same accordingly came on with the trial, at which time said motion was made and denied, and on the hearing of the action, upon the merits, the judgment and relief demanded in the complaint was granted, and from that judgment and decree, as well as from the order denying the motion to dissolve the injunction, the defendant, Charles B. Barrett, alone appeals.

While the recovery of the possession of the real estate, agreed to be sold by the plaintiff to the defendant William L. Hillman, was a proper subject of recovery in this action, after default in the payment of the contract price, we do not see upon what principle an action for injunction restraining the taking of fish from this pond can be maintained, either as an independent action or as an adjunct of the action of ejectment, and it is from the judgment and decree enjoining the defendant Barrett from removing the fish and the recovery of costs against him that he appeals.

The action of ejectment is not prosecuted against him that he is in possession, solely or jointly with the other defendants and wrongfully withholding the same from the plaintiff, and the complaint as to him would be entirely insufficient to authorize a recovery in ejectment.

The complaint sets up the contract with William L. Hillman for the purchase of this land, and alleges his default and charges that he is in possession and wrongfully withholding the same.

The complaint does not show, nor does the evidence establish that the removal of fish, placed in this dam, was a part of the real estate, contracted by the plaintiff to the defendant, William L. Hillman, or that their removal by the defendant Barrett was waste or irreparable injury to the freehold.

The case shows that the defendant Barrett assisted the defendant, Morgan Hillman, one of the defendants, in constructing the dam, and that Barrett stocked the same with fish. The fish, under such circumstances, while the property was in the possession of the defendant Hillman, were clearly the private property of the defendant Barrett, if so far reclaimed as to be within his control, and if unreclaimed, and in their wild state, and not within the control or dominion of Barrett, then they were ferae naturae, creatures in which no one could claim or maintain any valid title.

It is quite true, that had the subject of the injunction been a barn upon the premises at the time of making the contract of purchase, or windows in the house, or shelves or drawers in a store, the vendor, after default, could prevent their removal by the vendee or a stranger, on the ground that'their removal would be a waste, or destruction of the freehold. Tabor v. Robinson, 36 Barb., 483. But this would not be so of sheep upon the premises, doves in a dpve-house, or fowls in a hen-house, placed there by the purchaser, and which by corral, cage or house, were within the dominion of the person placing them on the premises, and the same, we think, is true of Herman carp, enclosed and propagated in a private pond.

In Fleet v. Hegeman, 14 Wend., 42, it was held that oysters planted by an individual in a bed clearly designated and marked, in a bay or arm of the sea which is a common fishery,' are the property of him who plants them. And the same doctrine was repeated in Decker v. Fisher, 4 Barb., 592, and to the same effect Lowndes v. Dickerson, 34 Barb., 586, also in Post v. Kreischer, 103 N. Y., 110; 2 St. Rep., 795, and these cases hold that interference with the owner’s right is a trespass for which an action of trespass will lie.

That being so, an injunction would not lie to restrain its removal, even if the title was in dispute, or concededly in the plaintiff. ‘ In that case trespass, or an action at law to recover the value of the property taken, or replevin, an action to recover the possession of personal property wrongfully taken or detained, would be the proper remedy.

The extraordinary power of a court of equity could not be invoked in such case, for the reason that the party has an adequate remedy at law.

This rule is too familiar to require citation of authorities. It is not sufficient to authorize the remedy by injunction that the violation of a naked legal right is threatened, there must be some special ground of jurisdiction, and when the injunction is the final relief sought, the facts entitling the plaintiff to it must be averred in the complaint and proved.

We think that neither of these essential requisites exists in this case, and that the judgment and decree for an injunction, as to the defendant Barrett, should be reversed, with costs.

Putnam and Herrick, JJ., concur.  