West-Jersey pioneer., 1871-06-16
OYSTER DECISION.


which involved in that particular case a
small amount of money, but very import
ant principle, and, in its results, property
of large amount.
The case came up upon an appeal from
the judgment of William Orr Esquire, JUS
tice of the Peace, at Dividing Creek The
facts of the case sufficiently appear in the
opinion of the court printed below
The case, upon the argument at the last
term, being seen to be one of public impor-
tance, the court reserved its decision for de-
liberation, and that decision has just been
rendered by Judge Van Syckel as follows
CUMBERLAND PLEAS.
Thomas E. Fleetwood, ct al Trespass
David W. Phrampus. ! Appeal.
VAN SYoKEI, Judge
This is an action of trespass in which
state of the case is agreed upon by the par
! ties.
1t is admitted that the plaintiff at the
time of the alleged trespass was the owner
of marsh or meadow land in this state
within the boundaries of whose lands was a
| creek called straight Creek" in which he
had before that time planted oysters, and
| erected fence for the protection thereof.
under section eleven of the act respecting
CLAIMS and oysters, (Nixons Dig. page 1927.
The precise trespass complained of is sta
ted in the case in these words, viz
son the 23d day of March 1871, the de-
iendant was found with his boat above the
aforesaid fence, without leave from the
plaintiff, and there took about bushel and
l.alF nF .,~f,
lie converted to his own use" 1t is admit
ted that the plaintiffs right of action rests
upon section eleven of the act above referred
to, and 1t is therefore necessary to deter
mine exactly what the scope of that section
is. Ii gives the land owner the right to Law
or plant oysters in the creek for his own use
and benefit, and for the preservation there
of to erect a fence to prevent any other per-
son from entering therein. Prior to the
enactment of this section in November 1917
Qaws 1917 page 81, the natural oysters in
these creeks were the common property of
the people of this state, the owners of the
lands bounding the creeks having no s,lpe-
rior right to take them. The section in
question was applied to creeks where oys-
ters did grow, that is to natural oysters as
well as to places where oysters would grow
if planted.
The exclusion of all persons other than
the land owners from such waters or creeks
was necessarily deprivation of the COM
mon right which had heretofore existed of
taking natural oysters, and converted the
right of the landowner into such a sole and
exclusive use as would make the invasion
of it the foundation of action at law. Prior
to 1917 the planting of oysters upon bed
of natural oysters was regarded as an aban-
donment or return of them to the common
stock, for the taking of which by citizen
OF this state no action would lie. but since
the passage of the eleventh section, no such
consequence can flow from the act of plant
ing upon natural bed within the defined
limits
The statutory provision declaring that
the land owner may plant for his own use
and benefit, and erect barrier against all
others, invests him with a right of private
property i'll what would otherwise be com
mon to all the citizens of this state. The
question of right being thus solved in favor
of the plaintiffs, what remedy may they in
woke to redress its violation
The general rule is well settled that where
positive law creates right, the party has
by necessary implication an action at law
to protect it, for it cannot be reasonably
presumed that the law maker intended to
give barren right, incapable of being en-
forced anywhere.
The element of difficulty in this part of
the case is introduced by the fact that the |
twelfth section of the oyster law provides |
that if any person be found with any boat |
above or within the fence erected, without
leave from the owner, or if any person shall
break any such fence, he shall forfeit and
pay for each offence fifty dollars. to be re-
covered by action of debt with costs by any
person who shall prosecute for the same /
one-haf to the use of the land OWNER and !
the other half to the use of the person who |
shall sue.
If statute give remedy for wrong |
which was actionable at common law. the |
statutory remedy is cumulative, and not |
exclusive; it does not take away the common
law from off action unless there are words |
of exclusion.
But where a statute confers right which |
had no prior existence, and prescribes an |
adequate means of protecting it, the rem
edy is exclusive, upon the theory that the
legislature in the act has manifested such
intention. The exceptional cases are those |
where the protection given by legislation is
in the form of penalty to be recovered by
the informer, and no redress is secured to |
the party injured.
The application of these rules which |
think are correctly deduced from the follow
ing authorities, will solve the question dis |
cussed in this case.
Almy VS.. Harris, 5, Johnson, 175; Ed
wards VS.. Davis, 16. johnson, 2S1 Smith |
VS.. Lockwood, 13, Barb, 2O9; Dudley VS..
Mayhem, 3, Comstock, 8; Barden vs. Crod-
ser, 10, Pick. $50 E.von Jones, 2, oaIk,
4I3 Bedford vs. Hold, 7, Term, SEQ: Mi.
ber VS.. Tayler, 4, Burr, 2305; Lake VS.. Rob
bins, 4, Hal, 3e4.
The injury complained of in this cause is
of two-fold character.
First that the defendant was found with
his boat above the fence which was erected
IN the creek to protect the plaintiffs oys-
tiers.
Second, that the defendant took from
that part of the bed of the creek which is
secured to the proprietor of the adjacent
lands one bushel and half of oysters of
natural growth, and wrongfully converted
them to his own use.
For the first injury the twelfth section
provides remedy in denouncing the act as
subject to penalty of fifty dollars, one
half to the informer and the other half to
the party aggrieved. A recovery in this ac-
tion of trespass for this injury would not
bar suit by the informer, who would nee
essarily recover the whole penalty, and thus
the land owner after being satisfied in this
action for the wrong committed would
through the suit for the penalty recover adj
ditional remuneration. 1t is manifest that
such an Interpretation of the law would be
contrary to the intention of the legislature,
and it is not in accordance with the current
of adjudication. For the other injury, the
taking of the oysters, it will be observed
that the twelfth section provides no rem
edy at all, and therefore it must be presumed
that the legislature intended that the newly
acquired property should be protected by
remedies co.extensive with those which
he 1.-1