## Facts

- Leverson placed oysters in a public river where any person was permitted to fish.
- Once set in the sand, oysters generally remain in place, but they can reproduce and spread beyond the original placement.
- Leverson established an oyster bed in a particular area and argued the oysters were not part of the river’s common stock because he kept the bed separate and regularly returned to take oysters.
- Leverson had no grant, title, or other private right to the underwater area where he placed the oysters, and he claimed no exclusive right to fish there.
- Shepard and Layton removed about 1,000 oysters from the area where Leverson had placed his bed.
- Leverson sued Shepard and Layton in trover and conversion, claiming ownership based on occupancy and arguing his right would continue unless he abandoned the bed.
- Evidence indicated others also maintained oyster beds in the river, and local participants had a mutual understanding not to disturb one another’s beds because leaving them intact benefited all by allowing oysters to reproduce.
- The trial court ruled for Leverson, and Shepard and Layton appealed.

## Issues

1. Whether a person who places oysters in a public river, without any grant or title to the soil or exclusive fishery, gains a property interest by occupancy sufficient to maintain trover for conversion against others who take those oysters.
2. Whether a local practice or mutual understanding among fishers not to disturb oyster beds can create an enforceable exclusive right in a public fishery.

## Decision

- The Supreme Court of New Jersey reversed the judgment for Leverson.
- The court held that, absent a grant or other legally recognized exclusive right, oysters placed in a public river remain subject to the public’s common right of fishery and are not converted into private property enforceable by trover merely because one person placed them and later returned to take some.
- The court rejected the argument that a private property right could be established against the public through occupancy alone where the alleged possession depended on use of a public fishery open to all.
- The court treated the community’s informal noninterference practice as insufficient to create legal title or an exclusive right enforceable through an action for conversion.

## Legal Principles

- In a public fishery, the public retains the right to take fish and shellfish unless the claimant shows a lawful, exclusive right created by grant, statute, or other recognized source of title.
- A person cannot obtain an exclusive property right in resources placed in public waters by occupancy alone when the resources remain in a setting open to common use and not subject to the claimant’s exclusive control.
- Trover (conversion) requires that the plaintiff have a property interest or an immediate right to possession superior to the defendant’s; a common right shared with the public is not enough to exclude other lawful fishers.
- Informal local practices or mutual understandings may explain behavior in a fishery but do not, without more, establish a legally enforceable private right against members of the public.

## Conclusion

*Shepard v. Leverson* rejected a claim that placing oysters in a public river, without any exclusive grant or title, creates private ownership enforceable by trover against others exercising the public right to fish; the court treated the oysters as remaining within the public fishery and held that local noninterference practices did not supply legal title.


Shepard v. Leverson, 2 N.J.L. 392 (1808)