Cornelius v. Glen, 52 N.C. 512, 7 Jones 512 (1860)

June 1860 · Supreme Court of North Carolina

52 N.C. 512, 7 Jones 512

WILLIAM J. CORNELIUS v. TYRE GLEN.

The Yadkin river not being a navigable stream, a grant from the State of the bed of the river passes it as does any other grant of land, and the Legislature has no power to take it way, either for private or public purposes, without making compensation to the owner.

This was an action of debt for a penalty, brought up by an appeal from the judgment of a justice of the peace, and tried before Bailey, J., at the Spring Term, 1859, of Yadkin Superior Court.

The penalty declared for is given by the act of Assembly, passed at the session of 1858, entitled an act, to open the Peedee and Yadkin rivers for the passage of fish. It was agreed by the parties, that the defendant resides in the county of Yadkin, and owns a mill on the Yadkin river ; that eight or ten years ago he built a dam entirely across the said stream, at his mill, for the purpose of raising the water to propel his machinery; that in the fall of 1857, he rebuilt the dam to the height of five feet entirely across the stream, and that thereby the free passage of fish is obstructed ; that the dam in question abuts on one side at a point known as Glen’s ford, and; on the other side at a point about seventy-five yards above-the said ford ; that the river is the dividing line at this locality between the counties of Forsyth and Yadkin ; that in the-year 1791, a grant from the State issued to one Joseph Phillips and his heirs, bounded as- follows: beginning- at a white oak below Glen’s ford ; runs north up the Yadkin river 50-chains; west, crossing the river 10 chains; south, down the river 50 chains, and then east to the beginning;: that the white-oak tree, mentioned as said beginning corner, is still standing, and that the entire dam aforesaid is included within the boundaries of the said-grant; that, by a regular chain of title from the said Phillips, the-right and title to all the lands included in tire said grant, became vested in the defendant, one-half in the year 1812, and the other in 1853 ; that the defendant is now owner of the fee simple of the lands on both sides of the Yadkin river, at each end of the dam, by a regular chain of title from the State; that the original grants.to the laud.on both sides of the river aforesaid, issued, more than, fifty years ago, and have been possessed and cultivated during all that period ; that the boundaries of the tracts of land on both sides of the river, in all the conveyances, call for the Yadkin river and along- the river opposite to each end; of the dam ; that the said dam crosses the river at least 14© miles above- any point on the said river, where the same is navigated by any vessel, except by flats and canoes; which are used at the ferries in crossing; that for the whole distance, on the said river, there are Tn»nyS)bstructions. to navigation, «viz., falls, shoals and large rocks; that in many places, in the stream, the water is very shallow — only the depth of a few inches during a large portion of the year; that where the dam crosses the river it is about 160 yards wide; that for about half a mile below the dam in question, the average depth of the water is about 18 inehes, and is shoaly.with a great many projecting rocks.

Upon the foregoing facts agreed, the Court being of opinion with the plaintiff, gave judgment accordingly, from which the defendant appealed.

No counsel appeared for the plaintiff in this Court.

Fowle, B. B. Moore and McLean, for the defendant.

Pearson, O. J.

This case .is governed by the decision State v. Glen, ante 321. According to the principle laid down in that case, there is error in the j udgment rendered in the Superior Court. *

It is set out in the statement of the case, “ that in 1794, a grant from the State issued to one Joseph Phillips and his heirs, bounded as follows: beginning at a white-oak below Glen’s ford, runs north up the Yadkin river 50 chains, west crossing the river 10 chains, south down the river 50 chains, and then east, to the beginning; that the white oak tree, mentioned as a corner, is still standing; that the dam is included within the boundaries of the grant, and that the defendant has derived title by a regular chain of mesne conve3rances from Phillips, the original grantee.” The defendant has, therefore, title to the bed of the river on which the dam stands, provided it was the subject of entry; and that depends upon whether the Yadkin river is a navigable stream or not. Many persons are of opinion that it is susceptible of being made nmigable, but upon the facts, set out in the case, it is certainly not now a navigable stream, and the cases cited in State v. Glen, show that it has been repeatedly, heretofore, so decided.

Not being navigable, the defendant, by virtue of the grant to Phillips, is the owner of the bed of the river, and the Legislature had no more power to impair his right of ownership, either for public or private purposes, without making compensation, than it had to take awajr any other piece of land that he had bought and paid for, and for which the State had been paid.

■ This suggests, what probably has led to an erroneous impression ; that is the distinction between the absolute ownership, which is acquired to the bed of the river, when it has been actually granted and paid for, and the limited ownership, which is acquired where a grant calls for a “ corner on the bank of a river, then with its meanders to another corner, &c.;” in which case, although by implication of law, the grant extends to the middle of the river, and confers ownership, for certain purposes as appurtenant to the land granted, yet, as it has not been actually granted and paid for, certain rights, by like implication, are still in the State. This will seem to account for the many acts of the Legislature, that have been passed in former years, in regard to the passage of fish ; extending, at first, down to small streams, such as Haw Biver, Deep Eiver, Uwharie, South Tadkin and the like; which was well enough until the beds of these streams wei’e entered and grants taken out; after which, those streams were left out of the fish acts, until the Eoanoke, lower part of Neuse, Cape Fear, Tadkin and Catawba, became the only streams to which the acts applied; and the Tadkin is now excepted so far as its bed has been actually granted, of which there seems to have been few instances; for, in most cases, the grantees, not wishing to cross and pay for the bed, stop-ed at the bank, and were content with the appurtenance, or privilege of going to the middle of the stream, under what is termed the right of riparian ownership, or the right of those whose grants stop at the bank as contradistinguished from the ownership of those whose grants actually cover the bed. There is error.

Per Curiam,

Judgment reversed and judgment for the defendant.