majority">Lathrop, J.

The plaintiff was duly licensed “to plant, grow and dig oysters ” on the locus in question, under the Pub. Sts. c. 91, § 97. By § 99, this gave him the exclusive use of the flats described in the license for these purposes. Commonwealth v. Manimon, 136 Mass. 456. While the case just cited was an indictment under the Pub. Sts. c. 91, § 101, and while the defendant in this case may not have committed the specific offence pointed out in that section, and may not be subject to prosecution under the St. of 1885, c. 220, § 5, yet if he has infringed the rights of the plaintiff, he is liable to a civil action. Keene v. Gifford, 158 Mass. 120.

The question remains whether the rights of the plaintiff have *229been interfered with. This depends upon the construction to be given to the language of § 99, “ The person so licensed, his heirs and assigns, shall for the purposes aforesaid have the exclusive use of the flats,” etc. We are of opinion that the words used were not intended to be a limitation upon the use of the flats, but that they grant an exclusive use and designate the purpose for which the flats are to be used. Any other construction would lead to endless disputes and difficulties.

It is a well known fact that quahaugs are found in the mud and oysters above it. If, therefore, any one has the right to get the quahaugs, he must disturb the oysters; and the contention of the defendant in this case is that, if he can do so in a manner not made criminal, he is within his right, and may damage the bottom and everything upon the same, if necessary to the exercise of this right. We cannot agree with his contention; and are of opinion that the Legislature clearly regarded oysters as more valuable than quahaugs, and intended that a licensee should have an exclusive right to the flats included within his license.

Judgment for the plaintiff.

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