By section 441 of the Penal Code, it is made a misdemeanor for a person who is not an actual inhabitant and resident of the state to plant oysters in the waters of the state without the consent of the owner of the same or of the shore. The same section makes it a misdemeanor for a non-resident to gather oysters from a bed of natural-growth oysters for his own benefit, or for the benefit of a non-resident employer. There is no connection between the two offenses. One is made out by mere planting, without the consent required. The other prevents non-residents from getting oysters from natural beds for their own benefit. A non-resident may not plant. A non-resident may be employed by a resident to gather from natural beds for the resident, but he may not gather himself, or employ another to do so. The indictment is therefore good, as it charges an offense, under the section cited, for planting without consent of owner, being a non-resident. If this be the proper reading of the statutes, the offense was proven by the planting without consent, and the question whether the defendant intended to violate the law is immaterial.
*909The planting was in Huntington bay, and the question of fact, whether the bay was within the grant from Gov. Nichols, and from Gov. Dougan, and from Gov. Fletcher, was put in issue.
These several colonial grants have been conferred by the state of New York, and the question was one of description. It was proven, by witnesses who were acquainted with the premises, that Huntington bay was within the description of the grants in these patents, and the jury have so found. The planting was in this bay, and the indictment charges that the place of planting was without the consent of the trustees of the town of Huntington. The title to the town is fully proven, and is a good title. Brookhaven v. Strong, 60 N. Y. 72. The legislature, by chapter 279, Laws 1888, ceded to the trustees of the town of Huntington all its right in Huntington bay. There was no proof in the case which permitted the jury to find otherwise; and there was therefore nothing upon which to base the usual charge, that all doubts are to be cast in favor of the accused, so far as evidence related to the town of Huntington title.
The only other defense was a title, by user for over 20 years, in the defendant. No title to land under water can be acquired by the planting of oysters for any length of time, without any other title than is acquired thereby. The conviction should be affirmed.
Pkatt, J., concurs.