way thus prohibited, was in the town of Flushing, and called Little Neck Bay ; and was the common property of the freeholders and inhabitants of the town; and that Palmer, the plaintiff in error, on the 25th June, 1808, did rake clams, within the bounds above mentioned,whereby an action had accrued, &c.
The plaintiff below produced an authenticated copy of the rule or regulation, and proved that Palmer raked clams in Little Neck Bay, within the boundary line of Flushing, after the 1st June, 1809, and within the place above decided.
The defendant below admitted that he had raked clams in the place mentioned, but denied the right and power of the town of Flushing to prohibit any person from catching clams below the ordinary low water mark. He did not plead any title, or demand any proof of the authority of the town : and the justice, thereupon, gave judgment for the plaintiff.
It was admitted, that the place where the clams were raked by the plaintiff in error, was within the limits of the town of Flushing, and below the ordinary low water mark, in Little Neck •Bay, which communicates with the East, River or Sound.
R. Riker,
for the plaintiff in error, stated two objections. 1. That the town of Flushing had no right to pass .a law to regulate the raking of clams.
2. That if it had such right, it could not be exercised below the ordinary low water mark.He cited Act 24 sess. c. 78. s. 11. (Rev. Laws, vol. 1-. p. 331.) and c. 123. s. 2. (Lazes, vol. 2. p. 2.) as to the bounds of Queens county; Haig. Law Tracis, 11, 12. 5 Bac. Air. Prerog. 498. (B. 3.) 6 Mod. 73. 4 Burr. 2162. Davie’s Rep. 149.Baldwin, contra,
cite,d 5 Bac. Abr. 498. the note, as to a several fishery in an arm of the sea.The town of Flushing must show a right of property to the lands below low water mark, in the bay, on the Sound, in order to entitle them to make rules to regulate the use of those lands. W e will not presume a grant of lands under navigable waters, to the owners of the adjacent soil, without evidence of long exclusive possession and use, to warrant such presumption. No grant has been shown, nor was any fact proved, from which a grant was' to be presumed.
The act, extending the bounds of the town over the bay, and into the" Sound or East River, so as to include the islands southward of the- main channel, was merely for the purpose of jurisdiction, and is no evidence of a grant of property in the soil covered by the water. All the ground under the navigable waters of the Hudson river, is within the boundaries of some town, for the pur-, poses of civil and criminal jurisdiction; but it does not follow that the lands under the water, belong to the towns situated on the river. The judgment below must be reversed.
Judgment reversed.