Metzger v. Post

44 N.J.L. 74

• Court: Supreme Court of New Jersey
• Decided: February 15, 1882
• Status: Published

Opinion

The opinion of the court was delivered by

Reed, J.

The question mooted upon the argument of the issue raised by the demurrer to the declaration in this case was the following: Does a person who places oysters upon land belonging to the State of New Jersey, lying under tidal waters, where oysters will naturally grow, retain title so as to be able to maintain an action against a person who takes them ?

The entire discussion was built up upon a condition of fact which is not disclosed by the declaration. The declaration sets out that the defendants dredged through a bed of oysters of the plaintiffs lying under the waters of Earitan bay, upon grounds marked so that the defendants knew they were held as private property, &o., and converted and disposed of the said oysters to their own use.

The declaration, therefore, states that the property of the plaintiffs was taken and used by the defendants. Any right which the defendants claim as a justification for this act must, as the pleadings stand, appear upon the face of the declaration.

, Assuming that this court will take judicial notice that the waters of Raritan bay are tidal waters, and the land under them is the property of the state, the only fact in the case which distinguishes the pleadings of the plaintiffs from an ordinary declaration in an action for trespass de bonis asportatis, is that the property of plaintiffs was lying in navigable waters.

If any presumption of abandonment of property would arise from this fact alone, that it was so placed, (which is not admitted,) yet the averment of the marking of the ground refutes any notion of an abandonment arising from that cause. The circumstance that the property of the plaintiffs was deposited in tidal waters would, at best, fix upon it the character of a nuisance, but that would not confer upon any person the right to take and convert the property to his own use.

The law is clearly and correctly stated in the case of State v. Taylor, 3 Dutcher 117, 123. Said Chief Justice Green: “ Admitting that the planting of oysters in the public waters was a clear case of nuisance and encroachment upon the public right, it could give the defendant no right to steal them or appropriate them to his own use.”

. In the ease of Mayor of Colchester v. Brooke, 7 Q. B. 339, the doctrine announced by the court was still broader, and denied the right of a private person to interfere with the property for the purpose of abating a public nuisance.

It was an action for injuring the plaintiff’s oyster-beds in the river Colne. The defendant’s vessel grounded on the oyster-bed, doing damage. The defendant pleaded that that part of the river was a public navigable river. Upon the trial the jury found that the defendant had been negligent. The court held that the defendant was liable for damages, although, the oysters were placed in the channel of a public navigable river so as to create a public nuisance. Lord Den-man said : “ However wrongful the act of the plaintiffs, yet as the defendant suffered no special inconvenience thereby, he certainly could not have been justified in wilfully impinging upon or destroying the oysters, even for the purpose of abating the nuisance.”

If the fact in this case be that the ground where these oysters were is a natural breeding-ground for oysters, and the defendants are of the opinion that this fact alone, or in connection with other facts, justifies the taking and converting of these oysters, such facts must be pleaded specially.

Judgment for plaintiffs, with leave for defendants to plead over.