No doubt the right of fishery in the navigable waters of the State is common to all its citizens. Equally clear, however, is the *55right of any citizen to acquire an exclusive property in oysters which he has planted upon beds, distinctly designated by stakes,where no oysters were growing at the time. (Fleet v. Hegeman, 14 Wend., 47; Decker v. Fisher, 4 Barb., 595; Lowndes v. Dickerson, 34 Id., 589.) The right of property in such oysters rests upon the same principle as that which governs that in animals JercB naturae, which have been caught and reclaimed. Indeed, it is a misdemeanor to take and carry away' oysters so planted. (L. 1866, ch. 753.) We are of opinion also, that the same right of property extends to, and embraces the offspring of parent oysters ¡so planted, which remain within the bed so designated, and is not restricted to the identical oysters planted. .Young oysters, when expelled, are about of an inch in length, and about two millions are capable of being closely packed in a cubic inch. (Chamb. Enc.) Fishermen call them spat. They are wafted away by currents, 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 oysters, and we are of •opinion that their property in the oysters grown from the spat so preserved is quite as good as that in the parent oysters, whether the spat proceeded from oysters which they planted, or from other oysters. Upon the questions of fact involved the verdict of the jury rests upon sufficient evidence, and it must bé held to be conclusive.
• The question put to the witness, Chapman, was properly excluded, because it was not limited to a period prior to the planting of the plaintiff’s oysters. We have already answered the first •exception to the charge of the judge. The second one is not ,-specific enough to raise the question as to the effect of planting •oysters upon a bed of natural oysters.
The judgment and order denying a new trial must be affirmed with costs.
Present — Barnard, P. J., and Gilbert, J.; Dykman, J., not • ¡sitting.Judgment and order denying new trial affirmed with costs.