FISH, OYSTEES. 31 



In a New Jersey case it is said : "Oysters, though usually 

 included in that description of animals [i. e., ferce natures] do 

 not come within the reason or operation of the rule. The 

 owner has the same absolute property in them that he has in 

 inanimate things or in domestic animals. Like domestic ani- 

 mals they continue perpetually in his occupation and will not 

 stray from his house or person. Unlike animals fercE natures 

 they do not require to be reclaimed and made tame by art, 

 industry or education ; nor to be confined in order to be within 

 the immediate power of the owner. If at liberty they have 

 neither the inclination nor the power to escape. For the 

 purpose of the present inquiry they are obviously more nearly 

 assimilated to tame animals than to wild ones, and perhaps 

 more nearly to inanimate objects than to animals of either 

 description. ... If then the oysters interfered in any way 

 with the defendant's right of fishing or with the right of navi- 

 gation or any other right of the public in the waters, it is not 

 claimed that the defendant had not a right to remove or de- 

 stroy them. . . . But admitting, as may be done, that the 

 planting of the oysters in the public waters was a clear case 

 of nuisance and encroachment upon the public right, it could 

 give the defendant no right to steal them or appropriate them 

 to his own use." ^^^ 



But it has been held in England that though oysters are so 

 placed in a channel as to create a public nuisance, a person 

 navigating is not justified in damaging such property by run- 

 ning his vessel negligently against them if he has room to pass 

 without so doing; as an individual cannot abate a nuisance 

 if he is not injured by it otherwise than as one of the 

 public.^ ^^ 



And the fact that the planting of oyster shells is a public 

 nuisance is no justification for converting the property to 

 one's own use, was reasserted in a later New Jersey case. It 



' State V. Taylor, 27 N. J. L. 117, 119. 



' Mayor of Colchester v. Brooke, 7 Q. B. 339. 



