Collins v. Benbury, 27 N.C. 118, 5 Ired. 118 (1844)

Dec. 1844 · Supreme Court of North Carolina
27 N.C. 118, 5 Ired. 118


All waters, which, are actually navigable for sea vessels, are to be considered navigable waters under the laws of this Stale.

No one can be entitled to a several fishery or the exclusive right of fishing in any navigable water, unless such right be derived from an express grant by the sovereign power, or, perhaps, by such a length and kind of possession, as will cause a presumption of such grant to arise.

The mere circumstance of fishing the waters at any particular place, no matter for how long a time, raises no presumption of such a grant, because the person so fishing, exercises, prima fade, only a right, which belongs to him in common with all others.

For the purpose of presuming a grant of an exclusive right in any person, it should appear that all others have been kept out by him and his grantors, not only from fishing with a seine, but from fishing in any manner in the waters to which he lays claim.

It is not competent to examine a witness as to the meaning of a plain word in a contract, for that is a question of law determinable by the court.

The case of Collins v. Bmibxiry, 3 Ired. 277, cited and approved.

Appeal from the Superior Court of Law of Chowan County, at the Fall Term, 1844, his Honor Judge Settle presiding.

This was an action on the case brought by the plaintiff for the purpose of recovering damages, which he alleged he had sustained by the interference of the defendant with his seine, whilst he was enjoying his exclusive right of fishing in the waters of the Albemarle Sound. The plaintiff proved and read in evidence a lease of an undivided half of the premises from Benbury, one of the defendants, to H. W. Collins. He then showed a conveyance of the term from H. W. Collins to Josiah Collins, and a conveyance from Josiah Collins to tbj plaintiff. The plaintiff then called upon Joseph B. Skinnem who stated, that, in 1807, he, in connection with another geiS tleman, established the first large fishery on the waters of th« Albemarle Sound; that, at the place which the plaintiff fish* ed, a small seine was, employed in 1798, but was after that *119time discontinued; that in 1817, a company of gentlemen employed a seine at the same place, about 1300 yards long, but which was small in comparison with the length of the seines now used on the waters of the Albemarle; that a seine of about the same length was employed at this beach for several years in succession, but how many, he could not state; thatfor several years, no person fished, with a seine, the waters opposite this beach, when another seine was hauled there; but whether a seine had been regularly hauled at that place since, he could not state. The witness further stated, that he had always understood, that the owners of the land upon the Albemarle Sound had the exclusive right to fish the waters opposite the land, but he did not know whether they proceeded out, at right angles to the shore, to the channel or not; that many years ago, a difficulty arose between several fishermen on the Chowan river, about the rights of fishing, which was adjusted between them, but in what way, he did not state.

Upon cross examination, Mr. Skinner stated, that according to the usage, by which the right of fishing was enjoyed on the Albemarle Sound, if the owner of any part of the land on the sound wished to establish a fishery, and he found it necessary to his interest, to fish water opposite the lands of the next proprietor, he had a right to do so, provided no fishery was then established, and used by such proprietor. But if the owner of the adjacent lands afterwards established a fishery on his lands, then the owner of the land had the right to fish the water opposite his lands, though the water had been before occupied by the seine of another person — that, in the case of two fisheries established near the line dividing two tracts of land, each one of them had the right to shoot his seine into and fish the water opposite the lands of the other, whenever it became necessary to do so by reason of the current running up or down; that, in the case last mentioned, when the current was running down, the owner of the lower fishery would shoot his seine into, and fish the water opposite the land of the owner next above ; and so, when the current was running up, the owner of the upper fishery would shoot *120his seine into and fish the water opposite the land below; that until the owner of land lying on the Albemarle Sound established a fishery by building the necessary houses, clearing the „ 6 , .,.7 . ’ 6 ... water oí stumps, logs, &c. and providing a seme, every citizen of the State had a right to fish the water opposite the land, and between the shore and the channel; and after a fishery had been thus established, whenever the owner ceased to fish it, the citizens of the State had the right to fish the waters which had been occupied by the seine. The witness was enquired of, if he knew any custom regulating the rights of fishing, where two fisheries were so situated upon an indented position of the shore of the sound, that each would be obliged to occupy the same water in fishing the water opposite their respective shores. He said, he did not know of any custom regulating the rights of fishermen, whose fisheries were so situated, as he knew of no fisheries so situated. In such a case, he supposed they would have to come to some understanding. He further stated, that many years ago, during a very dry summer, the waters of Albemarle sound at the Eden-ton bay, were so brackish, that stock would not drink it; that about 22 miles below Edenton, on the Albemarle sound, where he was born, he knew the waters of the sound were quite brackish, and they then afforded an abundant supply of sea fish and oysters, but whether the water at that point ebbed and flowed at regular intervals of time, he did not know; that since his recollection, several inlets, through which the water flowed from the sea into the sound, had closed up. The plaintiff then read to the witness parts of the lease from Benbu-ry to Collins, and which has been made a part of this case, and enquired of him whether the words in that lease do or do not include the privilege of using the houses and the beach, and the exclusive right of fishing in the waters opposite the beach, and whether fishermen do not so understand them ex vi termini. The defendant’s counsel objected to the question; and his Honor ruled that the question was improper.

Cullen Capehart proved, that he was, and had been a fisherman for many years upon the Albemarle sound; that his *121fishery was so situated, that no seine would interfere with his, and that, as respects seines, he knew of no usage, except that' the owner of the land fished the water opposite his land; that many years ago, he had some acquaintance with the custom of fishing in the Cashie riverj that on that river, the owners fished the waters opposite their lands, but when the Current was running down, as it sometimes did in that river with considerable rapidity, then the fishermen would shoot their seines up the river, so as to draw them by the time the current would drift them down to the place of landing; that in thus shooting them up, each would sometimes go abofe the land line dividing the fisheries ; that on one occasion he knew of a person, who was about to establish a seine on Salmón creek, which is a narrow stream/ emptying into the Albemarle sound, and that Mr. Tredwell, who owned the laud opposite the shore, and who himáelf had a fishery already established, where the fishery was about to be established, objected to it, and the business was abandoned.

John II. Leary stated, that h¿ had been a fisherman on the Albemarle sound for several years;' that one of his fisheries was just above a fishery owned by the defendant Benbury; that when the water was calm, and there was little or no current, both he and Benbury shot their seines in the water directly opposite their land, but if the eurrent was running up, he, the witness, would lay out his seine in water opposite Ben-bury’s land, and Benbury would lay out his seine below his landingand so, when the current was running down, the witness would shoot his seine higher up the sound, and Ben-bury,' whose fishery was below that of the witness, would shoot his seine up the sound and opposite the land of the witness. His testimony as to the time when Sandy Point fishery was established, and the years for which it has been occupied as a fishery, was the same with'that given by Jos. B. Skinner.

The witness further stated, that he had no doubt that the establishment of ths fishery by the .defendant injured the value of the fishery at which the plaintiff, fished, as the establishing a fishery just below another, must in all cases have'the'effect *122to divert the fish in greater or less quantities from the fishery above it; that there was a fishery still lower down than the fishery occupied by the defendant, which was established ^ jq yy. Collins, whilst he occupied the fishery of the plaintiff, which the witness, thought injured the Sandy Point fishery; that it was usual for persons owning land on the waters of the Albemarle, to fish the water opposite their land; that he knew of no particular custom regulating the rights of fishing, where from the indented form of the shore, each one would necessarily, in fishing the water opposite his land, be obliged to fish the same water.

The witnesses all proved, that when a fishery was established on the shore of the Albemarle sound, the value of the land was greatly increased ; that the fishing beaches when rented out, yielded large rents to their owners, and were valued at high prices upon the tax list. One of the witnesses purchased a farm on the Albemarle sound for $22,000, upon which there was a fishery, and he stated he would not have given more than half that sum, if it were not for the fishery. The witness also stated, that in consequence of the facility of shipping produce, all the lands on the Albemarle sound were more valuable than lands of the same fertility at a distance from the sound. Exum Newby proved, that he had made a survey of the beaches occupied by the parties to this suit, and stated, that if Collins’ seine was to be laid out in the most direct course for the channel of the sound, it would not occupy the water which the defendant fished with his seine, but that in laying it out in this direction, it would reach, and probably cross, a sand bar, and that they would take very few fish; that from the form of the shore of the sound where these two fisheries were, it was impossible for them to shoot their seines at right angles with their beaches, without intersecting before they reached the channel of the sound; that the shore of the sound upon which the fisheries were established, was curved, and that the water fished by the plaintiff lay opposite the defendant’s land, as did the water fished by the defendant-]ay opposite the plaintiff's land.

*123The evidence proved, that the plaintiff laid o.ut his seine in the same .direction in which the seines used at that fishery had' been Lid out by the persons who had occupied the same fishery previously, except that the plaintiff had increased the length of the seine at that place to 1800 yards, and that the fishery occupied by the plaintiff, had been occupied by Ben-bury immediately before his lease to H. W. Coll,ins; the evidence proved that the defendant sometimes shot his seine in a portion of the water, which the plaintiff fished, and that the plaintiff was thereby hindered in laying out and hauling in his seine, whereby his number of hauls was lessened. There was no evidence that the defendant occupied the water for any other purpose, than that of fishing, or that he interfered .with the plaintiff’s seine when it was in the water.

The plaintiff’s counsel here closed the case, and a motion of non-suit was submitted. It was insisted on the part of .the .plaintiff:

4st. That though the waters of the Albemarle sound have .sufficient depth to float sea vessels, yet it is not navigable in the common law sense of that term.

2nd. That as the defendant leased the fishery to the plaintiff, he has no right to diminish the -value of it, by his own acts.

3rd. That there was evidence .to be left to the jury, from which they might infer a legislative grant.

4th. That the .eyidenee of Messrs. Skinner, Capehart .and Leary, should be left to the jury, as tending to show the universal usage of the fishermen upon the waters of the Albe-marle sound, and that such universal usage has the force of law.

His Honor expressed an opinion against the plaintiff, upon the questions raised; whereupon, the plaintiff submitted to a non-suit, and judgment was rendered in favor of the defendant, from which the plaintiff appealed to the Supreme Court,

Badger and Kinney for the plaintiff.

A. Moore and Iredell for the defendant.

*124Ruffin C. J.

This case, which was before the court at December Term, 1842, 3 Ired. 277, has been brought up again, with some additional facts, which came QUt on a second trial. gu(. t[jey ¿0 not seem t0 vary the case materially.

It was not competent to examine a witness as to the mean- t ing of a plain word in the contract; for that is a question of-) law determinable by the court.

There are no sufficient grounds for the presumption of a grant by either the executive officers of government or by the legislature; even if one could be presumed under any circumstances. To say nothing more, the present plaintiff has much enlarged his seine, so that his use and that'of his grantors is not the same. But there really has been no continued and exclusive use of the fishery, as claimed by the plaintiff. He and those under whom he claims fished the waters at this place, it is true. But in so doing, they only exercised a right which, prima facie, belonged to them in common with all other citizens j and their fishing is referable to that right, and cannot, of itself, be a ground for presuming an exclusive right. To this latter purpose, it is necessary it should appear, that all other persons havé been kept out by the plaintiff and his grantors, not only from fishing with seines, but fishing in any manner in the waters to which the plaintiff lays claim. In that respect, the case is not made out at all. It appears, that it has been the common habit of Ibose, who chose, to fish in any waters of the Albemarle sound before a seine ground was cleared, and “a fishery established,” as it is called, by the owner of the beach ; and it has never been thought, that such fishing was an usurpation. Now, the owner of a several fishery has the property in the fish, and may maintain trespass for taking them. Smith v. Kemp, 2 Salk. 637. Yet it does not appear, that any one was ever sued by any owner of his land for catching fish there, nor, indeed, that such an action was ever brought by any owner of land on Albemarle sound, either before or after he began to fish the water, to which his land was adjacent. The fact seems to be nothing more than that there has been some kind of understanding’among contigu- - *125ous riparian proprietors, for their own convenience, how they could and would exercise the right of fishing to the greatest advantage of, and with the least likelihood of interfering with, each other. But the interference, which they contemplated, was no.t an interference with a right, which one of them had as an exclusive right against all the world, but only an interference with his practical operations, in the exercise of the public right of fishing in this great water. The rest of the community has had very little to say or do in the matter, because, as they had no b.each, they could fish to little profit, and did not fish to the detriment .of the riparian owner to any serious extent. But it is clear, that the public at large have not yielded up the sound to the owners of the shore. The universal custom of fishing in any part of the sound, before the owner of the adjacent shore had there cleared out fishing ground, and doing so without a single action being brought, demonstrates that every body considered the right of such owner to the land to ¡re stopped at the wateres edge; and the forbearance, after the establishment of such fishery, to disturb the operations during the fishing season, is thus shown to be merely the deference of one neighbor to the convenience and greater interest of another. For it is impossible that any one could think, that one who did not, as owner of the adjoining land, also own the land covered by the water, and consequently have the right at all times to exclude persous from fishing within his waters, could, long after his grant for the shore, acquire the right to the land covered by the water, or the right of fishing there, by merely clearing out a bottom for the more speedy and secure fishing by a seine to be hauled up to his own beach. Such a mode of acquiring a several fishery, is novel and untenable. The case, therefore, is, as it was before, dependant upon the question, whether the plaintiff is the owner of the land, over which he hauls his seine, by virtue of his property in the shore adjoining.

That is the proposition laid down in the case before, and we endeavored to shew, that the plaintiff was not such owner, because both thp common law forbad the grant of property in *126land covered by a stream or water, which in .that law was ca^ed navigable, and the statutes of this State, in like manner, forbid such a grant of land .covered by water, which in sfatutes jg denominated navigable; and because Albe-marle sound must certainly be deemed navigable in the sense ,of either the one or the other of those laws, if not of both of them. It has been argued, that the court reasoned illogically by treating things, essentially different, as having the same ■incidents, merely because they have the same name, though the name has different significations. .But that is a misapprehension of the argument, on which the judgment rests. It did not turn on the force and effect of the t,erm “navigable” alone and standing by itself; but upon the fact, that at common law the Zand .covered by navigable water, that is to say, an arm of the sea, or a river in which there is a flow and ebb of the tide, could not be granted, and that by the statute law of North Carolina, the same rule was enacted in respect to streams that were actually navigable by sea vessels, though they might not have a tide. In other words, our judgment Was given and plainly expressed to be given, because to constitute a several fishery, there must be a right of soil, and that no person has in Albemarle sound. There are rights of fishery without a right of soil. There is a right of fishery upon the high seas; but that is public, and belongs equally to all nations, and can be granted or restrained by no one in particular. There is also the right of fishing in navigable waters within the jurisdiction of a particular nation; and this right is prima facie public and common to all people of that nation. But, it seems, that, in England, ¡exclusive rights offish-ery, (merely, and without the right of soil) might be granted in such waters by the King at one time; but it is said, not since Magna Charta. Duke of Somerset v. Fogwell, 5 Barn. & Cres. 875. But the right of several fishery, not derived by a special grant from thejCrown as above, or by prescription, (which supposes a grant) cannot exist independently of the right of soil. It was for that reason, that at common law ¡there could not be a several fishery in a navigable Stream. *127Lord Hale makes the right of fishing the consequence of “the propriety of the soil,” and Coke and Blackstone agree therewith. This plaintiff does not shew a grant, either for the fishery by itself, nor for the land over which he fishes. He shows only a grant for the land up to the water’s edge, as we must take it. Now, if there be a tide in the sound, the grant confessedly, cannot be carried into the water, beyond the special butts and bounds mentioned in the grant. That there is a tide, from the sea into the sound and back, is extremely probable, nay, mathematically speaking, is certain, upon the evidence of the respectable gentleman, who was called by the plaintiff to testify on this point. He proves the water to have been salt at Edenton, and that, at ashort distance below, within his memory, it was commonly so. Though not ordinarily perceptible to a common observer, it is unquestionable, that those must have been the effects of some tide; and any is sufficient within the rule of the common law. Tide is the ebb and flow of the sea; then as high as salt water is found, so high the tide, the flow of water from the sea, ascends. It could get there in no other way but from the sea. Indeed we know, that, although the rise of the water on the bars of our inlets is comparatively much less than in many other parts of the globe, yet there is a regular alternation of high and low water at all of them, varying at different inlets. That water, by the law of nature which makes it seek its level, will pursue its interior course, until it meets with land of an elevation greater than its own at crossing the bar. Its flow through narrow and shallow inlets may not always or generally be obvious, because, before it reaches its final obstruction, it may be, and, it seems, is merged from observation in the contrary currents, in these, immense masses of waters, produced by winds and large quantities of water discharged by long rivers with considerable descent. But the fact, that the salt water from the ocean sometimes reaches Edenton, without an eastern storm, shows mathematically, that that point is not above, .. hut, is below, the level of the rise of tide at the bar over which the waters of the ocean and of the sound intermingle, We *128say this is sufficient within the rule of the common law, which only requires a regular ebb and flow of tide, without distinguishing between the greater or less íisé; as of 100 feet in the ^ay pundy,' 25 or 30 at Bristol, or of 4 to 6 over the bars of North Carolina, or any less rise and fall. But we do not deem it important to insist on that point, because the statute of this State enacts, “ that the water shall form one side of the survey,” when an entry is made on a navigable water; and therefore, the same effect follows as to the right of soil, as if the sound were navigable in the sense of the common law, provided it be such a water as is called navigable in the statute. That it is navigable/ as that term was used by the legislature, is beyond doubt, for if it be not, then, as was asked in Wilson v. Forbes, 2 Dev. 30, what navigable waters have we, which the legislature could have meant? The act prohibits the entry and survey of the land covered by the sound ; and, if it cannot be included in the survey and expressly granted, it must follow,-that it will not pass as an incident to the ownership of the adjacent soil.' Therefore, it is not the court that has transferred to waters, in which there is no tide, a quality or incident that at common law only attached to waters, in which there is a tide; but it is the statute itself, which affixes to the waters, which it deems navigable, and the land covered by them, the quality of not being grantable as private property. But it was said at the bar, that the legislature only meant by this provision to prevent an entry of land covered by such a water, by itself/ and rrot to interfere with the principle, that the owner of the adjoining land goes to the thread of a stream, in which'there is no tide. But that is clearly wrong; for the very subject of the enactment is the survey of iand lying on navigable streams, and “running back from the water,” and the case of Wilson v. Forbes was that of a survey of a tract of land, which called for a navigable creek as a boundary, and for that reason it was held that the Iand stopped at the water’s edge, or did not go to the thread of the stream.

Whether, then, Albemarle sound have or have not a rogu-*129iar tide, or whether we be guided by the rule of the common law, or by the injunction of the legislature, we must say, that there is no exclusive property in that great water, or in the land under it; and therefore, that the plaintiff cannot recover, and the judgment must be affirmed. *

Per Curiam;, Judgment affirmed.