Keene v. Gifford

• Decision Date: 12 January 1893
• Citation: 32 N.E. 946,158 Mass. 120
• Parties: KEENE v. GIFFORD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

158 Mass. 120

32 N.E. 946

KEENE v. GIFFORD.

Supreme Judicial Court of Massachusetts, Barnstable.

January 12, 1893

This was an action of tort for acts of the defendant, in entering in and upon certain flats in the tide waters of the town of Bourne, on which the plaintiff had a license to plant, grow, and dig oysters, at all times of the year, for the term of 10 years from April 26, 1890, and digging up and carrying away therefrom 25 bushels of oysters there lying.

COUNSEL

C.F Chamberlayne, for appellant.

H.P Harriman, for appellee.

OPINION

BARKER J.

The agreed facts show that the defendant took oysters from flats in the tide waters of Bourne, in Buzzard's bay, at a time when those flats were under license to the plaintiff. The license was issued April 26, 1890, and the oysters were taken in the following October; but the defendant had had license of the same flats, which had expired by its own limitation in June, 1889, when there were on the flats about 500 bushels of oysters, which he had placed there. He applied for a renewal of his license, but, although notified by the selectmen that they had concluded to grant it, he did not take it out; and the license to the plaintiff was upon an application made several months subsequently. The contention of the defendant is that the oysters which he took were his own property which he had a right to take, and that the plaintiff's lease, if not void, certainly could not impair the defendant's private right to recover his own oysters from the sea.

The oyster has no power of locomotion, and, after the spat has once acquired a shell, remains in its original bed, unless forcibly removed. It thrives only if constantly covered by the tide, and cannot, therefore, be taken, except by disturbing, to a greater or less extent, ground, the ownership of which is in the commonwealth or the town, and not in private persons. The oyster fishery has been regulated by statute from early times. By the statute of February 28, 1765, (4 Prov.Laws, p. 743,) all persons were forbidden to take oysters in any of the bays, ports, or rivers of the province without leave of the selectmen, except that an inhabitant might take oysters for his own eating, or for market in his own town. This statute seems to have been continued in force until the adoption of St.1795, c. 71, the provisions of which are yet substantially in force. See Rev.St. c. 55, §§ 11-17; Gen.St. c. 83, §§ 11-13, 15; Pub.St. c. 91, §§ 93-96. The statute of 1795, c. 71, was discussed in Dill v. Wareham, 7 Metc. (Mass.) 438-446, and in Com. v. Manimon, 136 Mass. 456. An examination of the statutes shows that the fishery has not been an open one, in our waters, since 1765, and that no provision was made, until 1848, by which, if an individual artificially created oyster beds on public flats, he could be protected in their enjoyment, and allowed to take oysters from them at pleasure. The original provisions for licensing of flats to individuals were contained in an act concerning the planting of oysters, (St.1848, c. 152,) the provisions of which were continued in Gen.St. c. 83, §§ 16-18 and in Pub.St. c. 91, §§ 97-99. Other provisions have been from time to time added. See St.1878, c. 179; Pub.St. c. 91, §§ 100, 101; St.1884, c. 284; St.1885, c. 220; St.1886, c. 299. The plaintiff's license was regularly issued under these provisions. They contemplate a written and recorded license, and whatever right the defendant might have had, if he had called for his second license upon receiving notice that it had been awarded to him, his failure to call for it left it open for the selectmen to grant a license to the plaintiff, and the license so granted was valid.

It remains to consider whether the fact that oysters planted by the defendant remained upon the territory gave the defendant any right to gather them after the plaintiff obtained his license. The facts that the place licensed is not to contain a natural oyster bed, and the low price charged in fees, make it apparent that the purpose of the statute is to encourage the artificial propagation of oysters. Young oysters or spat brought by the currents into contact with any solid material upon the sea bottom adhere, acquire shells, and grow. In this way new beds are made. If oysters which have shells are removed from one locality to another, they increase in size and improve in quality. It was expected that licensees would in one or both of these ways, make artificial oyster beds on the flats licensed to them. The exclusive occupation of the territory for a considerable time is essential to the profit of the...