(December Term, 1846.)
At common law land covered by water was the subject of grant except where the tide ebbed and flowed, and so it was in this State in the year 1839, the former legislative restrictions having been repealed by the act of 1839, and not reenacted until the session of 1839-40.
APPEAL from CURRITUCK Spring Term, 1846; Pearson, J.
This proceeding was for $10 penalty for hunting on land of the plaintiff. The plaintiff proved that the defendant had gone with a gun and killed geese at a blind in Currituck County on a shoal at the head of the channel which led to Currituck inlet, which is now closed. The blind was about 1 mile from the marshes on the banks. The plaintiff, to show title, read two grants, one for 496 acres, the other for 346 acres, dated in 1839. These grants are located so as to take in a small quantity of the marshes at the banks and then run out with the channel about 1 1/2 miles into the sound. One of the grants included the place where the defendant had, by concealing himself in the blind, been very destructive to the wild geese, as appeared from the evidence. The part of the sound included in these grants was mostly shoal, intersected at irregular distances by small slues or channels. The water usually covered these shoals, and was from 10 to 12 or 18 inches deep. In the slues or channels the water was usually 2 to 4 feet deep; in high tides the whole was so deep that boats could pass on the shoals; but occasionally, when there was a strong wind from the north or northeast of several days duration, some parts of the shoals were entirely dry, and would continue so until the wind ceased or changed its direction; and the blind in question had been made on the shoal where the water was in cold weather some (140) 10 inches deep, by depositing large blocks of marsh-grass and stuff so as to make a mound about 6 feet square at top, which was some few inches above the level of the water. A blind stood at this place many years ago. The present blind was erected on the ruins of the old one, some six years ago. Currituck inlet closed in the year 18.., since which time the sound has been much more shallow. These shoals were not fit for any purpose save that of hunting grounds for wild fowl, that resort there in large numbers to feed on the water grass and moss. The court was of the opinion that the sound, although shoal as described, since the inlet closed, was not the subject of entry; in submission to which opinion the plaintiff suffered a nonsuit and appealed.
Heath for plaintiff.
No counsel for defendant.
His Honor probably founded his opinion that the grants to the plaintiff were void upon Laws 1715, Rev. Code, ch. 6, sec. 3, and of 1777, ch. 114, sec. 10, which directed how land lying on a navigable water should be entered and surveyed, not adverting to the circumstance that those provisions were not in force in 1839, when the grants were issued. Whether the locus in quo would have been the subject of entry or not, under those acts, it is not material to inquire; for the Revised Statutes, ch. 42, omits the actions under consideration, and so left the matter at common law. Now, at common law this land could clearly be granted by the sovereign, for this case does not state any regular flood and ebb of the tide in Currituck Sound since the closing of the inlet. The omission in the act of 1836 has been supplied by an act at the late session of the Assembly which reenacts those parts of the acts of 1715 and 1777; but while they were dormant, and the common law alone in force, the grants to the plaintiff (141) were valid.
The judgment must, therefore, be
PER CURIAM. Reversed.
Cited: Ward v. Willis, 51 N.C. 184; Bond v. Wool, 107 N.C. 149; S. v. Eason, 114 N.C. 791; Land Co. v. Hotel Co., 132 N.C. 522.