Opinion
(June Term, 1831.)
1. Although by the Acts of 1715 and 1777 (Rev., chs. 6 and 114), the beds of rivers and creeks are not subject to entry, yet, where the river or creek is not navigable in the ordinary meaning of the term, the owners of the banks have a several fishery opposite their land, to the middle of the stream.
2. The ebb and flow of the tide is not a proper criterion to determine whether a river of this State is navigable.
3. It seems that a fishery in a river which is not affected by the ebb and flow of the tide, but which is in fact navigable, belongs to the riparian proprietor.
TRESPASS, for fishing in the plaintiff's several fishery.
Badger for plaintiff.
Devereux for defendant.
Upon not guilty pleaded, the jury returned the following special verdict:
"That the plaintiff had title to and was in possession of a tract of land, bounded by the Pee Dee River; that the defendant had title to and possession of a tract of land adjoining the plaintiff's immediately below, and also bounded by the Pee Dee; that the defendant, at the time alleged by the plaintiff in his declaration, drew his seine, and did fish with the seine in the channel of the river, and between the channel and the (60) shore, and near the shore where it formed the boundary of the plaintiff's land on that side; that the locus in quo is the main Pee Dee River, about thirty-five miles above the point to which the river is navigable for steamboats; that at the locus in quo the river is about three hundred yards wide and about four and a half feet deep; that heretofore the river has been navigated with batteaux and flats to a point above the plaintiff's land, but that there has been no navigation of that kind for the last twenty years; that about fourteen miles below the locus in quo the river is nearly a mile wide, and is never navigable for batteaux, except in time of high water, and then with difficulty."
Upon this verdict, his Honor, Martin, J., rendered judgment for the defendant, from which the plaintiff appealed.
The Act of 1715 (Rev., ch. 6) declares that where a survey is to be made upon a navigable river or creek, the surveyor shall run a full mile in a direct course into the woods, and each opposite line shall run parallel with the other, if it can be admitted, for other people's lines, or rivers or creeks. It is provided, also, that not more than six hundred and forty acres shall be laid out in one tract. The Act of 1777 (Rev., ch. 114, sec. 10) declares that where any survey shall be made upon any navigable water, the water shall form one side of the survey. The same act provides the mode of entering and surveying islands in navigable waters. It appears from these acts that the beds of navigable waters, and of navigable rivers and creeks, cannot be the subject of entry and survey. Therefore, the plaintiff in the present case cannot derive title to the fishery in question by grant from the State, as he might do for lands, under those acts of Assembly. And if he has title, it must (61) be derived by some other mode of acquisition.
In England a river is said to be navigable where the tide flows and reflows. Where that is not the case, they are said not to be navigable. In the latter case, the proprietors of the land on the river have the right of fishing on their respective sides, to the middle of the stream — ad filum medium aquae. Carter v. Murcot, 4 Bur., 2162; Rex v. Smith, Doug., 441.
This definition of a navigable river seems not to be applicable to rivers in this State. They are in fact navigable for all the purposes of public convenience, in many places beyond the influence of the tide. But perhaps, at a point beyond the purposes of navigation, they may not be so considered; that is, to be free fisheries. In England, the reason why the king has an interest in a navigable river, as far as the sea ebbs and flows in it, is because such a river participates of the nature of the sea, and it is said to be a branch of the sea as far as it flows, and consequently he is entitled to the fishery in it. For it is said the king hath dominion over the sea, and that every subject hath a right to fish in the sea, and in a navigable river belonging to the king. Davis Rep., 252; Warren v. Matthews, 6 Mod., 73. From these premises it would result that the fishery in a river which was navigable, but which was not identified with the sea, by being subject to the ebbing and flowing of the tides, would belong to the riparian proprietor. On such a case, however, it would be improper to give an opinion. Such is not the case before the Court. The Pee Dee River, at the place where the trespass is alleged to have been committed, is not a navigable river, but a private one. And the owners of the land on each side of it have a right to the middle of it. The same may be said of rivers which divide nations. Handly v. Anthony, 5 Wheat., 374.
Although these franchises or fisheries are not granted by the State as lands are by law granted, yet when the lands adjoining such rivers are granted, the right of fishing vests in such grantees, and gives them the right of fishing to the middle of the stream, in the water opposite their land, but not the right of fishing in water above or below the (62) banks which belong to them.
PER CURIAM. Judgment reversed.
Cited: Williams v. Buchanan, 23 N.C. 540; S. v. Glen, 52 N.C. 334; Hodges v. Williams, 95 N.C. 338; S. v. Twiford, 136 N.C. 606; Wall v. Wall, 142 N.C. 389; Council v. Sanderlin, 183 N.C. 258.