The authorities sustain the position 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 aim of the is situated, where there are no oysters growing spontaneously at the time, are the property of the person who plants them, and the taking of 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., 589.
This planting of oysters in tide-waters, and the right of property in the person planting them, is not regarded as an' exclusive appropriation of the right of fishery 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 owner. Laws 1866, chapter 404; id., chapter 753.
The space on which the 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 *797the land-office granted to Baltazer Kreischer, the owner of the adjacent upland, the land under water, embracing the oyster-bed of the plaintiff. The defendants justified 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 Baltazer 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 New 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, etc., and the making, by filling in, of land authorized by the laws of this state. It is n*ot claimed that the defendants, m covering the plaintiff’s oyster-bed, were exercising any right other than that conferred by the grant to Baltazer 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 in the oysters thereon, was not eo instanti terminated on the execution and delivery of the grant.
It is unnecessary to inquire what the right 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 uses to which the land was then appropriated, or with the common rights of fishery and navigation, until the granted premises should be “actually 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 plaintiff’s 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 plaintiff’s counsel asked to have the question, whether, *798under 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 plaintiff’s 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 thé 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 loose 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 plaintiff’s oyster bed was with a bona 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. But for the error upon the point suggested, the judgment should be reversed, and a new trial granted.
All concur except Hiller, J., absent.