The -plaintiff cultivated oysters on forty acres of land under the waters of Long Island sound, upon the supposition that the tract was within the bounds of lands granted to his licensors for such pursuit by the State. For six years he took out a large quantity of oysters. The defendants had acquired from the State a similar franchise in lands adjacent to those of the plaintiff. In fact the said forty acres were within the bounds of the defendants’ lands, although there was no indication thereof. This fact was ascertained by an official survey obtained by the defendants six years after the plaintiff had begun cultivation. Thereupon, in the face of the plaintiff’s protest and explanation, the defendants took up for their own use the oysters from this tract. This action is for a conversion, and the plaintiff has gained the judgment.
The court found that the oysters taken up by the defendants were the result of the plaintiff’s cultivation, and I think that the evidence justifies this finding.
*517The learned counsel for the appellants concedes that “ the rule governing ownership of oysters, wrongfully planted or placed on the lands under water belonging to anotlzez-, is that a man does not lose title to personal property, which can be identified, by the fact that he is a trespasser,” but he insists that there is a distinctiozi between the case of a man planting or placing oystez-s on such lands and a znan who, like the plaintiff, siznply prepaz-es such land and, as a result of such preparation, gathers the genns floating in the watez-, which, under his care and culture, develop into oysters. I think, however-, that these oystez-s were the property of the plaintiff. (Grace v. Willets, 50 N. J. Law, 414; McCarty v. Holman, 22 Hun, 53.) In Grace v. Willets (supra) Willets deposited a boatload of oyster shells and marked the deposits by stakes, and the germs of oystez-s floating in the water attached themselves to the shells. The court, per Van Syckel, J., says: “ Assuming, as we must, from the case as presented, that it was necessary to deposit the natural shell in order to attract the germ or sprout, and thez-eby in the order of natural growth pz-oduce the oystez-, it seems as incontrovertibly to follow that the full-grown oyster is the property of him who planted the shell, as that the oyster when of marketable size belongs to him who planted it in its infant state, or as that the title to the colt is not lost by its growth and development into the horse.” In McCarty v. Holman (supra) the plaintiffs planted both seed oysters and many scallop shells. Hilbert, J., speaking of the spat, said : “ They are wafted away by cuz-rents, and would be lost unless they found an object to which they could adhere. The plaintiffs provided means within the bed, which they planted, to save the spat of oystez-s, and we are of opinion that their pz-operty in the oystez-s grown from the spat so preserved is quite as good as that in the parent oysters, whether the spat proceeded fz-om oysters which they planted, or from other oystez-s.” Ownership of the land whereon the oystez-s aré deposited is not a prerequisite to ownez-ship in the oysters. (Damis v. Davis, 72 App. Div. 593; McCarty v. Holman, supra; Fleet v. Hegeman, 14 Wend. 42; State v. Taylor, 27 N. J. Law, 117; Post v. Kreischer, 103 N. Y. 110.) If the plaintiff wez*e guilty of trespass in planting or cultivating oysters on the lands of another-, such fact does not authorize the owner to take those oysters to his own use *518(Davis v. Davis, supra), although the owner might compel him to take them up or might remove them as a nuisance. (State v. Taylor, supra; Sutter v. Van Derveer, 47 Hun, 366.) Oysters reproduce by eggs, from which there hatches out a small free-swimming larva, becoming in a few days spat. These seek and attach themselves to some solid support, where they remain. (Ency. Am.) The property right in such oysters has been said to be akin to that gained over animals feroz naturae (McCarty v. Holman, supra; Fleet v. Hegeman, supra), though this principle has been sharply criticised by the Supreme Court of Hew Jersey in State v. Taylor (supra). If we regard them as feraz naturae, then the plaintiff has reclaimed them so far as is possible to such animals, in that he has caught them and confined them, and, therefore, the defendants cannot thereafter appropriate them, even though they are upon their lands. This question is well discussed by Helson, J., in Fleet v. Hegeman (supra).
The judgment should be affirmed, with costs.
All concurred, except Woodward, J., who read for reversal.