| N.C. | Jun 5, 1852
Trespass quare clausum fregit, to which the defendant pleaded the general issue and license. Upon the trial it appeared that the alleged trespass was committed upon a tract of land to which the plaintiff showed title, and of which he was then in possession. The defendant then showed that a brig, called the Justitia, was wrecked upon the said land, and a sale of her cargo was regularly advertised by the wreck master for the district, and that he and many other persons attended the sale, which was on the said land, and that he bought some of the articles *270 at the said sale and carted them, together with articles purchased by other persons, across plaintiff's said land, along the most convenient route to the nearest point where they could be put on boats on Currituck Sound, and the said route was mostly over a barren sandbank and a small portion of marsh, all unenclosed. It appeared in testimony that property thus purchased on the said beach could be taken off by means of the sea, but with much inconvenience and risk, and that it might be carried along the beach at great inconvenience, and that the shortest and most convenient route by which the defendant could carry off the articles so purchased was across plaintiff's land to Currituck Sound. It appeared further that plaintiff and defendant had a dispute during the sale, whereupon the plaintiff forbade the defendant from carting across his land; but the defendant did afterwards cross the said land with his carts, as before stated.
Defendant's counsel contended that as wreck sales were made under the authority of the law, every person had a right to attend them, and to carry off such articles as he might purchase by the most convenient route across the lands of the adjacent proprietors, even though they should forbid it.
(396) The court instructed the jury that, upon the facts proved, the plaintiff was entitled to recover at least nominal damages. The jury found a verdict for nominal damages, and from the judgment thereon the defendant appealed. The sovereign has a right to wrecks and all property stranded on the sea beach, and in many countries this right is exercised so as to be a source of considerable revenue.
North Carolina has a seacoast great in extent and very dangerous, and there are probably more wrecks upon her coast during the year than upon that of any five of the other states. She has, from a very early period, adopted a humane, liberal, and enlightened policy in reference to wrecks, and may well challenge a comparison of her policy with that of any other nation on earth.
The whole extent of her seacoast is laid off into "wreck districts" of convenient size. It is made the duty of the courts of pleas and quarter sessions of the several counties in which such districts are situated to appoint a "commissioner of wrecks" in each district, who shall reside in the district and enter into bond with good security in the penalty of $15,000 for the proper discharge of his duties. It is made his duty, "on *271 the earliest intelligence" of any vessel being in danger of being stranded, or being stranded, to command the sheriff or any constable of the county to summon as many men as shall be thought necessary to the assistance of such vessel. If the vessel is stranded, it is made his duty to see that the goods are collected and taken care of; should the captain or owner desire it, he is at liberty to reship the goods; if they are lost or broken, it is his duty, after advertisement, to sell the goods at (397) public auction, to make a full return of the sales to the next court, and to pay into court the amount of sales, which fund is to be held for the owner or insurer. But if, after due advertisement, and after the expiration of one year and one day, no person applies for the fund, it is to be transmitted to the Public Treasurer of the State, for the use of the State. And the statute makes it a felony to embezzle or steal any stranded property, or to conceal the same knowing it to have been stolen. Rev. Stat., ch. 123, title "Wrecks."
"The banks" is a narrow strip of land, mostly sand banks, from which the name is derived, interposed between the ocean and the sounds, and in the locality concerned in the case before us extending from the Virginia line to Ocracoke Inlet, without a single harbor; so that neither vessels nor boats can "live" in the ocean, and boats are only preserved by hauling them up on the banks; consequently, it is impossible for the commissioner of wrecks to go with his men to the assistance of a vessel in distress or to collect and take care of wrecked or stranded property, or to expose the same to public auction, unless there be a right of way over the banks, and a right of ingress, egress, and regress, as often as may be necessary to preserve, take and carry away such property as may be exposed to public auction in pursuance of the laws of the State.
The question is, Where a grant issues for the land on the banks, is there a reservation of this right of way by necessity or by necessary implication? Does the State, by a grant of the land, deprive herself of the ability to carry into effect the provisions of this humane and noble statute, by which she has undertaken to assist the unfortunate and to take care of and hold wrecked and stranded property as a "trustee" for the owner or insurer?
A public statute cannot thus be abrogated by a grant of land, (398) and there is, by necessary implication, a reservation of the right of way, or, in other words, the right of way exists of necessity. If one is shipwrecked he has, of necessity, a right of way to go on "the banks," and of egress and regress, as often as may be necessary to take away his property, doing no unnecessary damage.
Baron Comyns, in his digest, informs us that a right of private way may be acquired by prescription, by grant, or "for necessity"; and among *272 other instances he puts this: "So, if a man has title to a wreck, he has a right to have a way over the land of another, where the wreck lies, to take it, of necessity." 3 Comyns Digest, 39, title "Private Way."
In 6 Modern Cases, 212, it is said: "Originally, all wrecks were in the crown, and the king has a right of way over any man's ground for his wreck; and the same privilege goes to a grantee thereof."
Lord Holt says: "He who gives up the way of coming at a thing gives up the thing itself."
Plaintiff does not insist that, by a grant of the land, he acquired a right to all wrecked or stranded property; and yet, if this action is sustained, he will, in effect, be the owner and have a franchise and "peculiar privilege" to take all such property as may be wrecked or stranded upon "his banks"; for he has only to say, "No one, except by my permission, has a right to cross over the bank," and thus all of the property becomes his at his own bid. Such a state of things is not and ought not to be tolerated.
It is said a right to fish or to bathe in the ocean is a public right, and belongs to every one, and yet there is no right of way reserved, or "existing of necessity," by which every person has a right, in order to fish or bathe, to pass over land adjacent to the beach belonging to a third person. For this are cited Blondel v. Caterel, 5 Bar. Al., 51; Ball v. Herbert, 3 Term, 253.
(399) We concur in the principles of the cases cited, but there is an obvious distinction. Here there is a right in the sovereign, to the exercise of which the right of way is necessary, as occasion may require; therefore it is implied or exists of necessity. There the right of fishing or of bathing belongs to every one; it is not a right of the sovereign, but belongs to every one. We all, by nature, have a right to see by the light of the sun, and to breathe the air of heaven, to bathe in the sea, and to catch fish; but there is no necessity and nothing from which to imply a right to go over another's land for these purposes. There is this further and very obvious ground of distinction: A right of way for the purpose of assisting a vessel in distress, or of collecting, taking care of, and selling property wrecked or stranded, is consistent with a grant of the land, because the right only exists as occasion may call for it; whereas, if every person has a right of way over land adjacent to the ocean, at alltimes and at all places, such an unlimited right is inconsistent with a grant of the land, and it does not exist "of necessity."
PER CURIAM. Venire de novo.
Dist.: Caroon v. Doxey,
(400)