
    The People, Resp’ts, v. Wm. Henry Hazen, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed May 9, 1890.)
    
    1. Fisheries—Owners of private oyster beds may use drags—Laws 1870, chap. 284, 11.
    Laws 1870, chap. 284, § 1, which reads that “no person shall catch or take any oysters, clams, mussels or shells in the waters of South Bay, in Suffolk county, with a dredge or drag,” does not apply to persons taking their own oysters out of their private lots or beds in. the waters of the bay in question.
    2. Same—“ Private beds.”
    To constitute a “private bed,” the oysters must have been planted by the individual claiming them, or by those from whom he derives the right to take them, the place must have been in a bed clearly marked out and defined, and where there were no oysters growing spontaneously at the time. |
    
      Appeal from judgment of the supreme court, general term, second department, affirming judgment of conviction rendered in the court of sessions for Suffolk county.
    
      A. A. Spear, for app'lt; Wilmot M. Smith, district attorney, for resp’ts.
    
      
       Reversing 24 N. Y. State Rep., 423.
    
   Peckham, J.

The defendant was convicted upon an indictment charging him with the crime of catching or taking oysters in the waters of the South Bay, in the county of Suffolk, with a dredge or drag, against the form of the statute, etc. The defendant pleaded not guilty, and upon the trial it was proved that in the town of Brookhaven, in the waters of the Great South Bay, in Suffolk county, on the 11th of May, 1888, he dredged with a steam dredge for oysters in the day-time. It further appeared that the place where the defendant thus dredged was upon a private oyster lot, held by one Thomas Otis under a lease from the town of Brookhaven, and that defendant acted under a power of attorney from the lessee to take up and carry away the oysters. The lot contained about four acres; it had been known for eight years; it was examined when leased, and there were no oysters of natural growth upon it. The boundaries of the lot were definitely known, and it had been planted with from $3,000 to $5,000 bushels of oysters. It would seem that the defendant had planted his oysters on this private lot leased to Otis, with the consent of the latter, and was gathering them under the authority which he had from Otis.

It also was shown that the use of a steam dredge was not injurious to the propagation or growth of oysters on defendant’s lot nor did it injure them. Upon this evidence the case was submitted to the jury under a charge that the case for the people had been made out and that the rendering of a verdict was a mere matter of form. An exception was taken to the direction of the court. The conviction was affirmed at the general term and from the judgment of affirmance the defendant appeals here.

It is claimed that the act of the defendant is prohibited by § 1 of chap. 234 of the Laws of 1870, which chapter is entitled: “An act for the preservation of shell fish in the waters of South bay, in Suffolk county.”

The first section reads as follows: “ No person shall catch or take any oysters, clams, mussels or shells in the waters of South bay, in Suffolk county, with a dredge or drag.” The defendant urges two defenses; the first, that the act does not apply to persons taking their own oysters out of their private lots or beds in the waters of the bay in question; and the second, that if the act do so apply, it is unconstitutional. It seems to us that the first objection is a good one. It has been held for a long number of years that an individual can, under certain conditions, be the owner of oysters in a bay or arm of the sea. The oysters must have been planted by the individual claiming them, or by those from whom he derives the right to take them. The place where they were planted must have been in a bed clearly marked out and defined and where there were no oysters growing spontaneously at the time, and in such cases the private property in the oysters exists where the lot lies in the tide waters of a bay or arm of the sea, which may be a common fishery to all the inhabitants of the state or the town. Fleet v. Hegeman, 14 Wend., 42; Lowndes v. Dickerson, 34 Barb., 586; Post v. Kreischer, 103 N. Y., 110; 2 N. Y. State Rep., 795.

Ho claim is made that the defendant did not bring himself within all the conditions necessary to make the lot where the oysters were taken a private lot and the oysters themselves his private property. The legislature, following the principle main ■ tained by the courts, has recognized and protected this individual ownership of oysters so planted, and by an act, chap. 753, Laws of 1866, has provided for the punishment of any person who should unlawfully take and carry away the oysters of another, planted upon the bed of any of the rivers, bays, sounds or other waters within the jurisdiction of the state. The defendant being thus the absolute owner of the oysters which he had planted in his private lot, can it be claimed with any plausibility that the legislature meant to deprive such an owner of his right to take his own oysters from the bed of his private lot by means of a dredge or drag? We think not.

The title of the act in question is a general one, “ for the preservation of shellfish in the waters of South bay in Suffolk county.” It seems to us clear that the intent of the legislature, to be gathered from the title, is an intent to provide a role of conduct for all persons engaged in the work of dredging for oysters, etc., of a natural growth, and which do not belong as private property to some individual, and which are not contained in a private lot. The title of course cannot control the clear meaning of the words actually used in the statute, but where the question arises as to the meaning of the language used, reference is not prohibited. It may well be that this method of taking oysters had been found to be inconsistent with their due propagation in, and their continued supply from the public waters described in this act Inconsistent with their propagation because taken in such quantities that no time was allowed for it. Such a reason would have no force in the case of a private bed, because the owner is under no obligation to await any such result, and his right of property would permit him to ignore it. But as to the public waters which included the oysters of a natural growth, the question is very different

To preserve them, the act prohibits such a means of taking them. If preserved, they would propagate and thus continue a source of supply to the public. The oysters of the private owner belong to him to do what he likes with them. He may leave them there and refuse to dig them himself or to permit others to dig them. He could cover them over with earth and thus forever rain them. In brief he could exercise the usual rights of an owner over his own property. How could the act in question tend to preserve such oysters '? To say that the owner shall not take them by this means, when he has the absolute power of entire destruction over them, would be idle. It would accomplish nothing towards the preservation of the oysters, if the owner were intent upon their destruction. Gan it be supposed that such a case was in the mind of the legislature when there is a sufficiently wide field for the proper application of the language used by it, by confining it to the case of the public waters and to the rights of the public to the natural oysters therein growing? The answer is we think quite apparent.

There is no claim made that by the use of a dredge or drag in a private lot any possible injury could be inflicted upon oysters outside such lot, and if a claim of that character were made it would seem to us to be one most difficult to be substantiated.

The third section of this act, we think, strengthens our view. It is therein provided that no person shall take oysters, etc., from any public or private bed, or in any of the waters of the South bay, except between sunrise and sunset on any day. Thus where the provision is one which might, perhaps, be claimed to be of a general police character, the private bed is specifically, and in terms, included within the prohibition. Without further discussion, we think it enough to say we are convinced that the act is not applicable to the defendant’s case. This leaves out of the controversy the question whether, if applicable, the statute would be a constitutional exercise of legislative power, upon which we express no opinion.

The judgment should be reversed and the defendant discharged.

All concur, except Gray, J., absent.  