Fagan v. Armistead, 33 N.C. 433, 11 Ired. 433 (1850)

Dec. 1850 · Supreme Court of North Carolina

33 N.C. 433, 11 Ired. 433

FRANKLIN F. FAGAN vs. THOMAS S. ARMISTEAD.

Where several cases have been decided upon the' same question, after argument the Court will not reconsider the grounds of those decisions, especially upon a case presented without argument.'

■That “all waters, which are actually navigable for sea vessels, are to be considered navigable waters, without regard to the ebb and flow of the tide, and that no one is entitled to 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,’' must now be deemed the settled law of this State.

A common informer cannot recover a penalty, unless he sue within the period allowed by the act imposing the penalty. As where a penalty is imposed on persons fishing iu the Roanoke river at certain times, and any person may sue for the same, provided he does so within one month from the forfeiture, and if no such suit is brought within that period, the law-officer of the State is directed to sue for the use of the State, (actof 1827, eh 54,) it was held that, after the expiration of the month, the right of the common informer was gone.

The cases of Wilson v Forbes, 2 Dev. 30, and Collins v Bcnbury, 3 Ire. 277 and_5 Ire. 118, cited and_approved.

Appeal from the Superior Court of Law of Washington County, at the Fall Term 1849, his Honor Judge Bailey presiding.

This is debt for @250, claimed as a penalty for fishing in Roanoke river with a seine, contrary to the act of 1827, C. 54, entitled “an act to prevent the obstruction offish passing up the Roanoke andCashie rivers and their waters.’-’ Pleas; nil debet, and statute of limitations. By the act, every person, owning and using a seine for the purpose of catching fish in either of the rivers, is required to take it out of the water and let it remain out from twelve o'clock ou Saturday until 12 o’clock on Monday of cacb week, from the 1st day of March to the 25th, of May in every year, and it is enacted that any person, who shall violate that provision, shall forfeit tor each offence the sum of$250, to be recovered by any person who shall first sue for the same : one half for the use of the informer and the other half for the use of the poor of the County ; with a proviso, that if no person shall sue for the penalty within one month from its forfeiture, then that the Solicitor for the State shall sue for the same in the name of the Governor, for the use of the State.

The writ was sued out on the 24th of May 1819, and on the trial the parties made up the following case agreed. The defendant was seized in fee simple in possession of a tract of land lying on Roanoke river, and consisting entirely of marsh or swamp land, destitute of timber and valuable only for its fishing privilege and used for bo other purpose, to which lie derived title under a patent which issued before the year 1827: Roanoke river in front of said land is a fresh water stream, about 300 yards wide, from ten to twelve'feet deep, and affords, with the sounds, unobstructed navigation for sea vessels to the ocean ; but it lias not there, nor for many miles down the river, any ebb, or flood of the tide. On the 18th day of April 1849, between the hour of 12 o’clock on Saturday, and 12 o’clock ®n Monday next following, the defendant, being the owner of a seine, put it into the water of Roanoke river in front of his said land, and hauled it ashore on his land aforesaid, enclosing, landing, and catching therewith a quantity of shad and herrings. On tins case the opinion of the presiding Judge was in favour of the plaintiff, and judgment was entered for him, and the defendant appealed.

No counsel for the plaintiff.

Heath, for the defendant.

Ruffiít, C. J.

The case has not been argued, but ifc seems probable, that it was framed with a view to obtaining the opinion of the Court upon the questions, whether the land of the defendant is bounded by the Roanoke at the water’s edge or by a line along- the thread of the stream, and, if the former, whether the Legislature can restrict him in the use of it, as enacted in the statute.— The latter point is immaterial to the defendant, if the former be against him, and that it is against him the cases of Wilson v. Forbes, 2 Dev. 30, and Collins v. Benbury, 3 Ire. 277, and 5 Ire. 118, are direct authorities. Although we might have been willing to hear another argument on the point, and to have reconsidered it, if the argument should raise a doubt on it, yet it is too much to expect the Court, without argument, to go over the whole subject of themselves,and reverse a series of adjucations made upon solemn arguments. We think it our duty to adhere to those decisions, under the circumstances, simply upon their authority, and therefore the judgment would be affirmed, if it wore not for another objection, which appears on the record, and is deemed fatal to the action. It is, that the suit was not brought in due time, and therefore cannot be maintained. A common informer cannot recover a penalty, unless he sue within the period allowed him by the act, as it forms a part of his title. The general rule is, that a penalty imposed by statute belongs to the sovereign, unless the right to sue be given to some one else,] Here, the enacting clause gives it to the person first suing for it, subject only' to the limitation in point of time by the general act of 1808. But the proviso makes it the duty of the public law-officers to sue for the use of the State, if no private person shall have sued within one month from the forfeiture. As the right is thus reserved to the State after that period, it is an unavoidable implication, that individuals are excluded from it after the same period. This suit was not brought until the 24th of May, although the forfeiture was on the 16th of April; and for that reason the judgment must be reversed, and judgment entered for the defendant, according to the case agreed. i

Per Curiam. Judgment reversed and judgment for the defendant.