dissenting. I cannot concur in the result to which the court has come.
There are cases in which persons may acquire prescriptive rights and even titles by adverse possession against the public. In Tracy v. The Norwich & Worcester Railroad Co., 39 Conn., 382, Seymour, J., speaking for. this court, says :— “ It is settled law in Connecticut that the title to an island, emerging as this did, in navigable waters, vests in the state, and is also settled law "that a grant from the state may be presumed in favor of long continued exclusion and adverse possession.” In Town of Derby v. Alling, 40 Conn., 410, this court, through the same learned judge, he then being Chief Justice, says :—“ There is no statute of limitations which as such is applicable to the case. The public could not be technically disseized, but public as well as private rights may be lost by unreasonable delay in asserting them.”
As I view this case it is not true that the state is the party beneficially interested. The title to the land covered by the sea is in the state, but it is a mere naked title. The state as such has never put it' to any use. It builds no wharves or other structures, makes no use of it for purposes of navigation, and has never engaged-in cultivating oysters. Within the last fifty years it has been discovered that Long Island Sound is a field in which a large and important in*521dustry may be developed; and it has been the policy of the state to foster it, not by engaging directly in the business, but by allotting the ground in suitable lots to individuals, thereby encouraging and stimulating private enterprises, by which means a business of immense proportions has been built up. This has not been done merely by giving a license, which may be revoked at pleasure, but each proprietor over the area allotted to him has absolute dominion, as much so for all practical purposes as a proprietor in fee of the upland. That must be so, for in no other way could there be such an exclusive right as the statute calls for. And there must be permanency in the interest gran teds otherwise the business would be too uncertain and hazardous. I cannot believe that the state intended that the grantee should take anything less than a fee so long as he, his descendants or assigns, should continue to cultivate oysters. To that extent, for the time being at least, the state parted with all its interest. I think this will not be disputed as to any ground not a natural oyster or clam-bed.
But in this case it is found that the ground allotted to the defendant was a natural oyster-bed; and the statute expressly prohibits the designation of such grounds; and therefore it is claimed that the designation is void. Even if this is so, it does not follow that the designation for all purposes is wholly inoperative. It gave to him a primá facie title, which must be regarded as good until determined by a judicial decree to be void. And after such a judgment it still would remain true that until then he had a colorable title and occupied under a claim of right. Now the exception in the statute was not for the benefit of the state at large, but for the benefit of the people who had been accustomed or desired to take natural oysters.
Neither is this suit prosecuted in behalf of the state. The action is special, under a special statute authorizing it in the name of the town and in behalf of the local public. The state needed no enabling act to vindicate its rights. It was competent to sue, and had its agents under existing *522laws. It had no occasion to bring a suit in the name of the town.
Nor do I believe that the state of its own motion originated the act under which this suit was brought. We can hardly close our eyes to the fact that this act was passed, as such acts usually are, at the instigation of parties specially interested. While the suit relates to a public matter in this, that a portion of the public is interested in its object, yet it is in law, in name, and in reality, a suit between private parties. If therefore the subject matter had been upland of which any one had been disseized, the statute of limitations would have applied. But it is oyster ground. Nevertheless it is property; it is owned, bought, sold, and taxed. It is permanent and fixed, and therefore in the nature of real estate ; and the laws governing real estate are to a great extent applicable to it.
In this case it is true that the plaintiff was not strictly disseized; yet it, and those it represents, were deprived of a right which they previously had, under a claim of title, accompanied with exclusive possession, for twenty-two years before this suit was brought. The case seems to me to be directly within the principle recognized as “ well-settled law ” in Tracy v. The Norwich & Worcester Railroad Co. and Town of Derby v. Alling, supra.
I cannot recognize as wise or just a decision which de prives the defendant of his property under such eircum stances.