Historic Pelham: Jury Finds City Island Oystermen Guilty of Stealing Oysters from Planted Bed in 1878

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Oystering was the earliest successful industry in the Town of Pelham. Indeed, the local history of that industry, centered around City Island in Long Island Sound, extends back to at least the late 18th century with substantial efforts to grow the industry beginning in about the 1830's.

With the rise of oyster planting techniques and as oystering grew more and more lucrative for more and more City Islanders, local oystermen grew more and more insular and protective of their planting grounds. Oyster wars involving Pelham oystermen broke out repeatedly including in 1869, 1877, 1878, 1884, and 1895.

In 1878, some City Island oystermen resorted to the courts to resolve an epic oyster battle. It seems that in September, 1877, a local City Islander named Charles McClennon decided he wanted to break expand into the insular oystering business. He hired a local pro -- Joshua Leviness of City Island -- to help him plant a massive oyster bed in the waters of City Island.

The law at the time distinguished between "planted" oyster beds created by planting live oysters and their spawn on barren underwater land and "natural" oyster beds where oysters grew on their own with artificial planting. Planted beds typically were staked off by their owners and could be harvested only by them. Natural oyster beds were considered a public resource and could be harvested by anyone. According to the law at the time, if an oysterman planted oysters on a natural bed, he gave up his property rights to the planted oysters and the natural bed could still be harvested by anyone.

Ambiguity arose, of course, when a natural oyster bed was exhausted and oysters no longer could grow on their own in that area. If someone came along and planted oysters on the exhausted bed, conflict was almost inevitable. The planter inevitably would consider the bed his own. All others inevitably would consider the bed natural and fair game for all. Therein lies the basis for the dispute involving City Islander Charles McClennon who hired Joshua Leviness to plant hundreds of bushels of live oysters in City Island waters in 1877.

There were a few undisputed facts. In September, 1877, Joshua Leviness planted several hundred bushels of live oysters in waters off City Island and staked off the waters on behalf of Charles McClennon. The same month, "a number of City Island oystermen" entered McClennon's staked-off bed and "removed several hundred bushels of oysters." McClennon and his supporters claimed that the insular fraternity of City Island oystermen were determined to exclude any new entrant. They claimed that the established oystermen would not tolerate the creation of any new plantings and, thus, entered the properly-planted grounds and stole the several hundred bushels of live oysters planted by Leviness on behalf of Charles McClennon.

McClennon was incensed. He brought charges against three of the City Island oystermen. A grand jury was empaneled. It returned an indictment under a statute making it a misdemeanor to remove oysters from a lawfully-planted bed.

There was a fascinating back story to this entire dispute that one simply cannot derive from reading the accounts of the grand jury proceeding or the trial that followed. Charles McClennon was NOT trying to become a local oysterman. Rather, Charles McClennon was a local hotel proprietor and restauranteur who simply wanted to grow his own oysters to serve his patrons without paying City Island oystermen prices. McClennon owned and operated The Minnieford Shore House, an early hotel and service establishment located at the steam boat landing on City Island where it could conveniently serve excursionists and visitors from New York City and the surrounding region. It was one of the few businesses located on City Island in the Town of Pelham during the late 1870's and early 1880's. Robert Bolton, Jr. mentioned the establishment in the second edition of his History of Westchester County published in 1881.

McClennon had several hundred bushels of oysters planted around the dock that served his establishment. According to one account at the time:

"Stephen and Morris Leviness, Eugene Williams and Samuel Billar took oysters from the grounds above referred to, Mr. McClennon brought an action against the parties named, and the case is to come off at White Plains on the 11th inst. We understand the defendants claim that the ground was a natural oyster bed, and if Mr. McClennon planted on it while the natural oysters were there, it was no fault of their's [sic], and he must therefore be the loser." [Citation: City Island, The Chronicle [Mount Vernon, NY], Vol. IX, No. 472, Oct. 4, 1878, p. 2, col. 5.]

The trial that followed attracted attention far and wide. It resulted in an "important decision." Yet, the jury that heard the case took only fifteen minutes to return its verdict. That verdict is revealed in the article below that appeared in the December 5, 1878 issue of The Port Chester Journal.

"The City Island Oyster Case -- Important Decision.
-----

An exchange says: 'The oyster case, of great importance to oystermen and other citizens of this State, was tried at Whites Plains, Monday last. The question involved was, what constitutes a natural oyster bed and when can private persons acquire a right to oyster grounds to the exclusion of the public. In September, 1877, Charles McClennon, of City Island, planted several hundred bushels of oysters on a large tract of land beneath the water at City Island; and at the time staked off the ground to indicate that it was planted. The law is that if there are any natural oysters growing spontaneously on the ground, no private individual can acquire title to it, and if he mingles his private property with them by planting they all become private property and any citizen can remove them.

Last September, a number of City Island oystermen went on the grounds referred to, and removed several hundred bushels of oysters, claiming it was a natural oyster ground, that natural oysters had grown upon it for years. That Mr. McClennon appeared before the grand jury and procured an indictment against three of the men who had removed oysters from his beds, the law ranking it a misdemeanor to remove oysters lawfully planted. Joshua Leviness testified on behalf of the prosecution that he searched the ground for natural oysters before planting any upon it for Mr. McClennon, and that he found none. A colored man named Scarboro testified to the same effect. The defense called about eighteen of the oldest oystermen in Pelham, and they each testified that they knew the grounds for from twenty to fifty years, and that it was always regarded as a natural oyster bed.

P. L. McClellon, Esq., on behalf of the defendants, argued that it had been incontestably proven that the ground was a natural bed, and therefore common to all the inhabitants. Martin J. Keogh, Esq., on behalf of the prosecution, contended that conceding that this ground was once a natural bed, if there were no oysters growing spontaneously upon it 'all the time' (in the words of the statute) when Mr. McClennon planted and staked it off, it became his against the world. Counsel urged the jury to find the defendant's [sic] guilty and it would scatter a combination which oystermen had formed to exclude all outsiders from enjoying the privileges which the State has guaranteed to all citizens who make prolific the barren land beneath the water.

The jury, after fifteen minutes' deliberation, pronounced the prisoners guilty. Hon. Nelson H. Baker and Martin J. Keogh appeared for the prosecution and P. L. McClellon for the defence.'"

Source: The City Island Oyster Case -- Important Decision, The Port Chester Journal [Port Chester, NY], Dec. 5, 1878, Vol. XI, No. 524, p. 2, col. 1.