Mott v. Underwood

• Decision Date: 18 February 1896
• Citation: 148 N.Y. 463,42 N.E. 1048
• Parties: MOTT et al. v. UNDERWOOD et al.
• Court: New York Court of Appeals Court of Appeals

148 N.Y. 463

42 N.E. 1048

MOTT et al.

v.UNDERWOOD et al.

Court of Appeals of New York.

Feb. 18, 1896.

Appeal from supreme court, general term, Second department.

Action by Charles S. Mott and another against William Underwood and others to enjoin the taking of oysters from an oyster bed. From a judgment in favor of defendants (26 N. Y. Supp. 307), plaintiffs appeal. Affirmed.

TENANTS IN COMMON-LEASE BY ONE-EXCLUSIVE RIGHT OF LESSEE.

A lease by one tenant in common of the right to take oysters without the consent of his cotenant does not give the lessee an exclusive right as against subsequent lessees of the cotenant; and it is immaterial that the first lessee expended money in making the bed productive. 26 N. Y. Supp. 307, affirmed.

A. A. Spear, for appellants.

Nichol Floyd, for respondents.

MARTIN, J.

On the 1st day of July, 1891, a large portion of Great South Bay, in the county of Suffolk, N. Y., was owned by Helen T. and William S. Smith, the infant heirs of Robert R. Smith, and the town of Brookhaven, under its corporate name of the ‘Trustees of the Freeholders and Commonalty of the Town of Brookhaven,’ as tenants in common. The heirs of Robert R. Smith and the town of Brookhaven each owned an undivided one-half. The entire property contained about 40,000 acres of land under water, nearly all of which was suitable for oyster culture. Much of it was capable of nourishing and maturing oysters when plainted upon it, and some of it, known as ‘oyster beds,’ produced spontaneously both marketable and seed oysters. The oyster beds were much the most valuable part of the land. On or about the day mentioned, Cornelia T. Smith, as widow of Robert R. Smith, and Cornelia T. Smith and Thomas S. Strong, as general guardians of Helen T. and William S. Smith, made a lease to the plaintiffs of about 70 acres of the land, for the purpose of planting, cultivating, and growing oysters thereon. The lease was for the term of 10 years, at an annual rent of $175. The premises leased was an oyster bed known as the ‘Reef and Swash Bed.’ It was equaled in the quantity and quality of oysters it produced by but few beds in the bay. Its yield was, with few exceptions, regular each year, and comprised both seed and marketable oysters. The portion known as the ‘Reef’ contained about 35 acres, and the ‘Swash’ about the same. The lease purported to rent the whole of the 70 acres. In it the oysters planted or growing upon the premises were excepted from the covenant therein for the peaceable possession and enjoyment of the premises. Upon the delivery of the lease, the plaintiffs staked and buoyed the premises. During the season from the fall of 1891 to the spring of 1892, they permitted the baymen to go upon the beds, and take all the natural oysters they could obtain, and they took substantially all that could be taken at the time. In the spring of 1892, marketable oysters were growing thereon, and the usual amount were taken from the premises. In September of that year, seed and native marketable oysters of two and three years' growth were growing there to the usual extent. In June, 1892, the plaintiffs resurveyed the premises, reset the stakes and buoys thereon, and dredged the reef. In the latter part of that month, and early in July, the plaintiffs spread 1,100 bushels of shells and 100 bushels of Virginia seed oysters over the whole premises. The quantity of shells required to properly cover the premises for the propagation of oysters was 35,000 bushels. On September 1st there was a fine set of young oysters over the whole of the premises, which was largely the result of the plaintiffs' cultivation. The defendants, at the times hereinafter mentioned, were inhabitants of the town of Brookhaven; as such, were permitted by the town to take oysters from the premises; and all the defendants but Abram Smith were duly licensed by the town to take oysters from the undivided half of the land under water in the South Bay belonging to the town, for which they paid a license fee. Between the 1st and 19th of September, 1892, the defendants entered upon the premises leased to the plaintiffs, and took and disturbed, to a slight extent, the oysters that were planted by the plaintiffs. All the oysters proved to have been taken by any of the defendants from the leased premises were marketable oysters of two or three years' growth, and it was impossible to gather the natural product from the premises without, to some extent, taking or disturbing the oysters planted by the plaintiffs. The defendants were men of small means, and unable to respond in damages to the plaintiffs. The town, for many years before this action, and up to the time of this trial, had purposely permitted the premises in question and other beds in South Bay to be used by the inhabitants of the town for taking seed and marketable oysters as a means of subsistence, and had refused to lease to any one the exclusive use of any of the oyster beds. When the lease to the plaintiffs was given, they had notice and full knowledge that it was given against the will of the town of Brookhaven. The oysters taken by the defendants up to September, 1892, were taken for market purposes. When the lease was given, the town was not cultivating the premises. The foregoing are substantially the facts found by the court.

As conclusions of law, the court held that the premises so leased were held and owned by the town of Brookhaven and the heirs of Robert R. Smith as tenants in common; that the lease to the plaintiffs was valid; that the plaintiffs possessed the rights in common in the property in question which the heirs of Robert R. Smith had, and the defendants possessed those which the ...