*404The opinion of the Court was delivered orally at a subsequent day in the same term and afterwards reduced to writing by
Shepley J.The close, on which the trespass is alleged to have been committed, is described in the writ as “ the Thatch Islands in Scarborough or Black Point River and near the mouth of Jonas’ creek, and the same purchased by the said plaintiff of flunking Leavitt.” In the conveyance from Leav-itt to the plaintiff it is described as “ the Thatch Islands situate on the western side of Black Point river in Scarborough aforesaid, opposite Patterson’s marsh at the mouth of Jonas’ creek, containing about six acres.” Whatever title Leavitt had, was acquired by possession. That possession consisted only in cutting annually for many years the coarse grass commonly called thatch, and found upon the islands as they are called. The plaintiff has continued to occupy them in the same manner. These islands are situated between the marsh land and low water mark on the southwesterly side of the river. They are covered by the water at every ordinary flood tide. The testimony shows, that the defendant dug and carried away several loads of mud manure composed of marsh mud, muscles and raskweed, from the flats or shore on the southwesterly side of the river, and from four to ten rods northerly, and distant from these Thatch Islands. This was the trespass alleged. The testimony shows, that the distance from the marsh land across the flats to low water mark, was less than one hundred rods.
If the title of the owner of the marsh land extended by virtue of the colonial ordinance of 1641, to low water mark, the Thatch Islands were a part of the estate owned by the person who had a legal title to the Patterson marsh, unless he had been deprived of his title to the islands by an exclusive and adverse possession. Admitting the title of the plaintiff to them to have become perfect by such a possession .for more than twenty years, that title would not thereby be extended beyond the line of the actual occupation by cutting the grass; and that line would not include the place, from which the mud *405manure was taken by the defendant. It is contended, that the plaintiff’s title to the islands was extended over the adjoining flats by virtue of the ordinance. The effect of that is to declare, that the proprietors of the lands adjoining tide waters shall become the owners of the flats or shore to low water mark, where the tide does not ebb and flow above one hundred rods. The land adjoining must be regarded as the land, to which the tide flows, and from which it ebbs ; and not land, if such it may be called, elevated so far above the common level of the flats, that it is not entirely covered by the neap tides. If the ordinance should be considered as applicable to a small island elevated above the common level of the shore and as extending the title of the owner to low water mark, it might happen, that flats would be owned by virtue of it by the owner of the main land and of the island to a greater distance than one hundred rods from high water mark ; and yet the ordinance declares, that it shall not be extended more than one hundred rods, where the tide ebbs and flows further than that distance.
If the plaintiff’s title to the Thatch Islands could be extended by the ordinance to low water mark, he would not thereby acquire any title to tire flats, from which the mud manure was taken by the defendant. For the ordinance would extend his title only over the flats lying between them and low water mark. It would not extend the title to the islands up or down the river at all over the adjoining flats. To allow the ordinance to have the effect to do this would be to deprive the owners of lands adjoining the river above and below the islands of all benefit to be derived from it. In whatever aspect the plaintiff’s title may be viewed, he does not appear to have become the owner, or to have been in possession of the flats, where the acts complained of as a trespass were done.
Plaintiff nonsuit.