
    POST v. KREISCHER.
    N. Y. Court of Appeals;
    
    October, 1886
    [Reversing 14 Abb. N. C., 38.]
    
      'X. Title to oysters planted in a bed in tide-waters.] By the common law, oysters planted in a bed, clearly marked' out and defined, in the tide-waters of a bay or arm of the sea, which is a common fishery to all the inhabitants of the State where the bay or arm of the sea is situated, where there are no oysters growing spontaneously at the time, ate the property of the person who plants them, and the taking of them by another person is a trespass for which an action lies; and this right is recognized by the statute (L., 1866, c. 404, Id., c. 753), which prohibits any person to interfere with oysters so planted without the consent of the owner.
    2. The same; effect of grant by Stated] By a grant by the Commissioners of the Land Office, to the defendants, of the land under water upon which oysters have been so planted by the plaintiff, which contains a reservation to the people of the State of the right to enter upon and use the premises in as ample a manner as if the grant had not been made “until the same shall have been actually appropriated and applied to the purposes of commerce by erecting a dock or docks thereonthe plaintiff’s right to the continued use of the oyster-bed, and his property in the oysters therein, is not eo instanti terminated ; it confers upon the grantees no right to interfere with the oyster-bed by depositing dredging material thereon, until the premises have been “actually appropriated and applied,” by the grantee to the purposes mentioned in the grant.
    8. The saíne; what constitutes appropriation for dock.] Where the evi-' dence and circumstances do not clearly show whether the dredging material was so deposited with the view to making a dock, or simply as a convenient way of getting rid of the material, the question should be submitted to the jury.
    William Post sued Charles Kreischer and another for damages caused by the destruction of oysters by the deposit upon an oyster-bed in Staten Island Sound, an arm of the sea between high and low water-mark, of mud and other refuse.
    The material facts appear in the report of the decision below, in 14 Abb. N. (7., 38, and in the opinion of the court on this appeal.
    
      Benjamin Patterson (Calvin, D. Yarn, Name, attorney), for the plaintiff, appellant.
    
      David MeClwre (Turner Lee & McClure, attorneys), for the defendants, respondents.
   Andrews, J.

The authorities sustain the proposition asserted by the plaintiff, that by the common law oysters planted in a bed clearly marked out and defined in the tide-waters of a bay or arm of the sea, which is a common fishery to all the inhabitants of the State where the bay or arm of the sea is situated, where there are no oysters growing spontaneously at the time, are the property of the person who plants them, and the taking them by another person is a trespass for which an action lies. Fleet v. Hegeman, 14 Wend., 42; Decker v. Fisher, 4 Barb., 592; Lowndes v. Dickerson, 34 Barb., 586, 589.

This planting of oysters in tide-waters, and the rights of property in the person planting them, is not regarded as an exclusive appropriation of the right of fishing common to all the inhabitants of the State, but as a legitimate exercise of the common right not inconsistent with its reasonable enjoyment by others. (Cases supra.) The right to plant oysters in the tide-waters of bays and arms of the sea upon the lands of the State adjacent to the County of Richmond, not being a natural oyster-bed, is now recognized by the statute which prohibits any person to interfere with oysters so planted, without the consent of the owners. (L. 1866, c. 407; Id., c. 753.)

The space on which plaintiff’s oysters were planted had been used as an oyster-bed for more than fifty years, and there can be no doubt that, both by the common law and the statute, the plaintiff was in the lawful use of the oyster-bed on April 28, 1881, when the Commissioners of the Land- Office granted to Balthazer Kreischer, the owner of the adjacent upland, the land under water, embracing the oyster bed of the plaintiff. The defendants justify their act in depositing the material dredged from other premises upon the plaintiff’s oyster-bed, thereby covering and destroying the oysters thereon, under the grant of the State to Balthazer Kreischer. Unless the defendants are protected by this grant, there can, we think, be no doubt that their act in depositing this material in the waters of the bay, was unlawful, and that upon familiar principles, the plaintiff is entitled to recover damages for the special injury occasioned to him thereby.

Chapter 346 of the Laws of 1881 prohibits the depositing in the waters of the port of Hew York of any dredging or other material within certain limits, which include the locus in quo, except in the erection or construction of any pier, &c., and the making by filling in of land authorized by the laws of this State.

It is not claimed that the defendants, in covering the plaintiff’s oyster-bed, were exercising any rights other than that conferred by the grant to Balthazer Kreischer. That grant contains the following material exception : “ Excepting and reserving to all and every the said people the full and free right, liberty and privilege of entering upon and using all and every part of the above described premises in as ample a manner as they might have done had this power and authority not been given, until the same shall have been actually appropriated and applied to the purposes of commerce by erecting a dock or docks thereon, or for the beneficial enjoyment of the same by the adjacent owner.” It is clear from the words of the exception that the plaintiff’s right to the continued use of the oyster-bed and his property of oysters thereon, was not eo instcmti terminated on the execution and- delivery of the grant.

It is unnecessary to inquire what the rights of the plaintiff would have been, if the grant had been absolute and unqualified. It is sufficient for the present purpose to notice that it did not. confer any right to interfere with the use to which the land was then appropriated or with the common right of fishery and navigation until the granted premises should be 4,&c tually appropriated and applied ” by the grantee to the purposes mentioned in the grant.”

It was claimed on the trial, in behalf of the defendants, that the filling in in June, 1881, over the plaintiffs oyster-bed, was with a view to the construction of a dock for the beneficial enjoyment of the premises embraced in the grant, and was. therefore, a lawful act constituting an actual appropriation of the premises within the exception. The plaintiffs comi-sel asked to have the question whether, under the evidence, there had been an actual appropriation of the premises under the grant, submitted to the jury. The court refused the request, and thereupon directed a verdict for the defendants, to which the plaintiffs counsel excepted. We think the exception was well taken.

We do not intend to intimate any opinion as to what conclusion should have been reached by the jury upon the question whether this deposit was made with a view to the improvement of the land embraced in the grant. It seems quite clear that the primary object of the dredging was to deepen the water in front of other premises occupied by the defendants. One of the defendants testified that they deposited the material with a view to making a dock on the premises embraced in the grant. It appears, however, that nothing was done in execution of this purpose, beyond depositing this louse material, which was left subject to the action, of the winds and tides; and the purpose of building a dock, if originally entertained, was evidently abandoned.

Under the circumstances, it was, we think, for the jury to say whether the depositing of the material from the dredging over the plaintiffs oyster-bed was with a Iona fide view to the improvement of the premises, or was done simply as a convenient way of getting rid of the material, and without any intention of making an actual appropriation of the premises within the grant.

The question whether the defendants, assuming that the material was deposited with a view to the improvement of the granted premises, were chargeable with notice of the existence of the oyster-bed, and were bound, before covering it, to notify the plaintiff, and give him an opportunity to remove the oysters, is not presented by any exception, and need not now be considered.

Exit, for the error upon the point suggested, the judgment should be reversed, and a new trial granted.

All concur, except Milleb, J., absent.  