
    The People, Resp’ts, v. Stanley H. Lowndes, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 10, 1890.)
    
    1. Criminal law—Oysters—Penal Code, § 441.
    An offense under § 441, Penal Code, is made out by the mere planting of oysters by a non-resident without the consent of the owners of the waters or shore. (Dykman, J., dissents.)
    3. Title—Land under water.
    Title to the waters of Huntington Bay is in the trustees of the town of Huntington.
    3. Same—Cannot be acquired by adverse possession.
    Ho title to land under water can be acquired solely by the planting of oysters for any length of time.
    Appeal from judgment of conviction upon an indictment charging defendant with being a non-resident and unlawfully planting oysters in the waters of Huntington Bay in violation of § 441, Penal Code.
    The planting was admitted and the non-residence was shown. Defendant was allowed to show that he planted the oysters as an employee of his father, who had for many years planted oysters on and staked in part of the premises in question. Ho consent of the trustees of the town was shown.
    
      Martin J. Keogh, for app’lt; Charles R. Street and N. S. Ackerly, for resp’ts.
   Barnard, P. J.

By § 441 of the Penal Code it is made a misdemeanor for a person who is not an actual inhabitant and resident of the state to plant oysters in the waters of the state without the consent of the owner of the same or of the shore. The same section makes it a misdemeanor for a non-resident to gather oysters from a bed of natural growth for his own benefit or for the benefit of a non-resident employer.

There is no connection between the two offenses. One is made out by mere planting without the consent required; the other prevents non-residents from getting oysters from natural beds for their own benefit. A non-resident may not plant. A non-resident may be employed by a resident to gather from natural beds for the resident, but he may not gather for himself or employ another to do so. The indictment is therefore good, as it charges an offense under the section cited for planting without consent of owner, being a non-resident. If this be the proper reading of the statutes the offense was proven by the planting without consent, and the question'whether the defendant intended'to violate the law is immaterial. The planting was in Huntington bay, and the question of fact whether the bay was within the grant from Governor Hicoll and from Governor Dongan and from Governor Pletcher was put in evidence.

These several colonial grants have been confirmed by the state of Hew York, and the question was one of description. It was proven by witnesses who were acquainted with the premises that Huntington bay was within the description of the grants in these patents, and the jury have so found. The planting was in this bay, and the indictment charges that the act of planting was without the consent of the trustees of the town of Huntington.

The title to the town is fully proven and is a good title. Brookhaven v. Strong, 60 N. Y., 72.

The legislature, by chapter 270, Laws of 1888, ceded to the trustees of the town of Huntington all its right in Huntington bay. There was no proof in the case which permitted the jury to find otherwise, and there was therefore nothing upon which to base the usual charge that all doubts are to be cast in favor of the accused so far as evidence related to the town of Huntington title.

The only other defense was a title by user for over twenty years in the defendant. Ho title to land under water can be acquired by the planting of oysters for any length of time without any other title than is acquired thereby.

The conviction should be affirmed.

Pratt, J., concurs.

Dykiian, J.

(dissenting.)—The defendant was indicted under § 441 of the Penal Code, which reads as follows: “A person who, not being at the time an actual inhabitant and resident of this state, plants oysters in the waters of this state, without the consent of the owners of the same or of the shore or gathers oysters or any other shell fish from their beds of natural growth in any such waters on his own account or for his own benefit or the benefit of a non-resident employer, is guilty of a misdemeanor punishable by imprisonment not exceeding six months, or by fine not exceeding one hundred dollars, or both.”

The cultivation of oysters in this state and especially in the waters of Long Island Sound in the vicinity of the city of Hew York, has come to be a very large and lucrative industry, and it has received encouragement and protection from the legislature in various ways and the courts have never hesitated to effectuate the salutary purposes of the laws which have from time to time been enacted for such purposes.

The indictment against the defendant accuses him of the crime of planting oysters in the waters of the state of Hew York, without the consent of the'owners of the same, and without being at the time an actual inhabitant and resident of the state of Hew York, at the town of Huntington in the county of Suffolk aforesaid, on the 14th day of July, 1888, by wilfully and wrongfully planting oysters in the waters of Huntington Bay, in the said town and county, without the consent of the owners, to wit: The board of trustees of the town of Huntington.

The statute under which this defendant was prosecuted makes it criminal to plant oysters in the waters of this state without the consent of the owner of the same or of the shore, or to gather oysters or other shell fish from their beds of natural growth in any such waters, on his own account or for his own benefit or the benefit of a non-resident employer, and an indictment under the statute must contain all the facts essential to constitute the crime.

It is necessary under this statute to do more than charge and prove that a defendant wilfully and wrongfully planted oysters in the waters of Huntington bay without the consent of the owners.

An essential element of a crime under this statute is the planting of oysters on the account of the defendant, or for his own benefit, or the benefit of a non-resident employer, and without that ingredient there is no guilt and no crime.

We are not dealing with an act which is wrongful of itself, but one which is wrongful because it is prohibited by positive law, and therefore all facts necessary to constitute the offense must be specifically stated and charged in the indictment, People v. Clements, 42 Hun, 353; 3 N. Y. State Rep., 700; People v. Monteverde, 43 Hun, 447 ; 6 N. Y. State Rep., 759.

The objection to the indictment was distinctly raised by demurrer, and we think the demurrer should have been sustained.

This conclusion renders an examination of the merits unnecessary, but we feel justified in saying that the proof fails to bring the defendant within the mischief against which the statute in question was aimed. He was only a hired man, and did nothing for his own benefit. He claimed the right to go on these grounds and plant oysters for his father, and his father claimed the right to occupy the grounds, and he was never warned off or disturbed in any manner.

Upon the first ground examined, the conviction should be reversed and the defendant discharged.

Conviction affirmed.  