(July Term, 1817.)
1. A grant of land covered by an arm of the sea only at high water will entitle the grantee to an action of trespass quare clausum fregit for taking oysters from the rocks within the grant.
2. In an action of trespass for entering the plaintiff's close and taking his oysters and making profit of the shells, the proper rule of damages is the clear profit made by the defendant.
TRESPASS quare clausum fregit, tried before SEAWELL, J., at NEW HANOVER. Plea, not guilty, and a special justification that the locus in quo is an arm of the sea, etc. The facts were that the plaintiff's testator claimed under a grant. The defendant had taken oysters, in the lifetime of the testator, from the oyster-rocks included within the lines of the grant, which rocks, and the earth on which they grow, are covered with water at high tides and bare at low tides, and extend from the mainland to the banks which separate the sound from the ocean, occasionally interrupted by marsh land and channels for the water. The navigation of the sound, even for small boats, is almost impracticable, except at flood-tide, when, the oyster-rocks being covered, the communication between the different parts of the main is more direct. The mainland along the western boundary of the grant is the property of (614) different persons. The banks included in the grant are not covered by high water, but the marshes generally, but not entirely, are. The channels through the sound and between the marshes and oyster-rocks are frequently changed by violent storms, and new channels broken through the oyster-rocks. The defendant was in the habit of making a profit from burning the shells taken from these oyster-rocks.
The court, under the evidence, instructed the jury that the defendant had committed a trespass, and directed them that the amount of the damage sustained by the plaintiff was the clear profit made by the defendant. The jury found accordingly, and a new trial was moved for on the ground of misdirection as to both the points.
The case was submitted without argument.
This case does not call for an opinion as to the right of every citizen to fish in an arm of the sea, but only as to the right of taking oysters within the bounds of another's patent, although between the high and low water marks. These rocks, form in many instances, a part of the permanent value of the freehold, become the source of profit to the owner by converting the shells into lime, and are sometimes the foundation of lucrative establishments, of which Shell Castle is an instance. The right of taking fish in the sea, or the arms thereof, belongs to every one as a common of piscary; but even this may be restrained where an individual hath gained exclusive property. Hale, de Jure Maris, 11. And this may be acquired by grant or prescription, ibid., 43; but it being considered as a royalty, it would not pass without special and express words. 2 Bl., 39. Where a grant abuts upon the sea or a navigable river, it stops, according to the common law, at the ordinary high-water mark; and the shore — that is, the ground between the high and low water marks — belongs of common right to the king. Hale, de Jure Maris, 12. But it seems to be well settled that whatever is below the high-water mark may be granted by the king, of which many instances are put in the book already cited. The charter of Car. II. to the lords proprietors is an illustration of the form used by the crown in the grant of royalties. As the grant under which the plaintiff claims actually (615) takes in these oyster-rocks, I am of opinion that as to them he has an exclusive property, and that the defendant has committed a trespass in taking them away. In a late case the common-law right to take sea-fish is recognized, subject, however, to abridgment or restriction; but the courts say, as no case has been cited to support the claim of taking shells, they would pause before they established it. Bagott v. Orr, 2. Bos. and Pul., 479.
The rocks and marshes in the sound, which are covered with water at flood-tides and bare when the tides ebb, are subject to the operation of the entry laws. "The shores may not only belong to subject in gross, which may possibly suppose a grant, before the time of memory, but it may be parcel of a manor." 5 Cro., 107, Sir Henry Constable's case. So it may be parcel of a ville or parish. Ba. Ab., Prerogative, B. 3. The Parson of Sutton, about 14 Car. I., had a verdict for the tithes of Sutton Marsh in Lincolnshire, although it was the main shore of the sea, covered at ordinary tides, and without the old sea banks. 4 Bac. Ab., 499. (Gwill. Ed.; Batture case; Livingston v. Jefferson, Law Journal.
I do not see any inconvenience the public can sustain in permitting the place mentioned in the present case to be patented. The navigation is not, nor cannot be, obstructed by works or fixtures which the plaintiff may place upon it. Jones v. Jones, 2 N.C. 489.
On the second point I am of opinion the charge of the court, as to the grounds upon which the jury should assess the damages, was correct.
The rest of the Court concurred.
SEAWELL, J., gave no opinion.
NOTE. — See Tatum v. Sawyer, 9 N.C. 226.