
    (73 Hun, 509.)
    MOTT et al. v. UNDERWOOD et al.
    (Supreme Court, General Term, Second Department.
    December 1, 1893.)
    Tenants in Common—Lease by One—Exclusive Right of Lessee.
    A lease by one tenant in common of the right to take oysters without the consent of his cotenant does not give the lessee an exclusive right as against subsequent lessees of the cotenant; and it is immaterial that the first lessee expended money and labor in making the bed productive.
    Appeal from special term, Suffolk county.
    Action by Charles S. Mott and George H. Shaffer against William Underwood, John W. Bransford, Benjamin Moger, David Smith, John McGregor, George Albín, Abraham Smith, Aaron Newins, Elijah Brown, Samuel Bland, Samuel Rowley, John Rowley, James Douglass, George Douglass, Charles Ferguson, James Albin, Dewitt Newins, Samuel Cheshire, and Thomas Kamp to enjoin the taking of oysters from an oyster bed. From a judgment dismissing the complaint, plaintiffs appeal.
    Affirmed.
    Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    Strong & Spear, (A. A. Spear, of counsel,) for appellants.
    Nicoll Floyd, (Wilmot M. Smith, of counsel,) for respondents.
   BARNARD, P. J.

There is a natural bed of oysters in the Great South hay in the town of Brookhaven, in Suffolk county, known by the name of “Reef & Swash.” The right to take oysters from this bay is owned by the town of Brookhaven and by the heirs of Robert R. 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 under the Smith title to restrain by injunction the licensees of the town from taking oysters from the Reef & 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 and of all the common property. This 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, 15 N. E. 889; Le Barron v. Babcock, 122 N. Y. 153, 25 N. E. 253. 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. None such is claimed in the case. The plaintiffs’ lease thereof gave them no exclusive right to take oysters from the property in question, even though they 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 Robbins v. Ackerly, 91 N. Y. 98, do 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 is without relevancy upon the question whether such owner may be dispossessed by injunction without his consent. If the possession of the plaintiffs’ licensees was proven, it was a possession of a moiety only. Wood v. Phillips, 43 N. Y. 152. The case of Le Barron v. Babcock, 122 N. Y. 153, 25 N. E. 253, only holds that a tenant in common, who occupies a farm exclusively with the assent of his cotenants, owns the products from it while he occupies. Under the. case, if the plaintiffs’ licensees had gathered oysters from the leased premises, they could not be held liable for the same at the suit of a cotenant in common. The judgment should therefore be affirmed, with costs. All concur.  