74 N.C. 402 | N.C. | 1876
Justices READE and RODMAN dissenting. The defendant was held to answer for a misdemeanor, under act of 1872-73, Bat. Rev., Chap. 32, Sec. 154. On his trial in the court below, the jury returned a special verdict, finding certain facts, upon which the presiding Judge pronounced him guilty.
From this judgment, the defendant appealed.
The verdict of the jury and all other facts, necessary to an understanding of the case, are fully stated in the opinion of (403) the court. It is found by the verdict in this case, that the obstruction was placed in the stream after the passage of the act.
The prohibition to the owners of running streams, is not the taking of private property for public use; but is a proper general police regulation prescribing the mode or manner of using their property. "The government may, by general regulations, interdict such uses of property as would create nuisances, and become dangerous to the lives, or health, or peace, or comfort of the citizens." See 2 Kent's Com. (top) p. 415, (edition in this library).
By the act under consideration, the Legislature wisely forbids the wanton obstruction of running steams, and regulates the use of them for fishing, leaving their utilization for motive power free, but subject to the common law of nuisance. For Act, see Bat. Rev., p. 323, Secs. 154, 155.
Whether the Legislature used its powers wisely or otherwise, the court will not consider.
Attorney General Hargrove, for the State, cited and relied on the following authorities: State v. Glen,
The jury found the following facts as a special verdict:
1. That the bed of the creek at the point named, and the waters of the creek, and the land upon each side of the stream were duly (404) granted by the State in 1749 to one Nathaniel Giles, and that from him the title has regularly descended to the defendant.
2. That the said creek is not navigable, and has never been so declared by the Legislature.
3. That the dam was built within two years prior to the finding of the indictment, and that by reason of its construction the natural flow of the water is retarded.
4. That the stream is forty-five feet wide at the point where the dam and trap are erected.
Upon these facts found by the jury, the court below, as a matter of law, declared that the defendant is guilty.
The indictment is founded upon an act incorporated in Battle's Revisal, Chap. 32, Section 154, which was enacted in 1872-73, and is as follows: "If any person shall wilfully fell any tree, or wilfully put any obstruction, except for the purpose of utilizing water as a motive power, in any branch, creek or other natural passage for water, whereby the natural flow of water through such passage is lessened or retarded, or whereby the navigation of such course by any raft or flat may be impeded, delayed or prevented, the person so offending shall be guilty of a misdemeanor, and on conviction shall be fined not exceeding fifty dollars, or imprisoned not exceeding thirty days."
It will be observed that the indictment charges the offence to be in "retarding the natural flow of the water through Swift Creek" by the obstruction of the dam, and therefore no question arises under Section 155, which relates to fish dams. The construction of Section 154 then will determine the case.
The prosecution insisted that by the use of the disjunctive conjunction, "or," in the section just cited, every wilful obstruction of a creek or branch, in any part of the State, which may retard the natural flow of the water, is indictable. And so it is, with that construction. (405) But it cannot be supposed that an intelligent Legislature, meant, that every obstruction of a stream, no matter, how insignificant, private, or removed from public access or use, shall be indictable and subject the offender to fine and imprisonment. The statute has no degrees, and but the single exception, to-wit: where the water is utilized as a motive power. So that it is equally a crime to build a dam, to wash the extensive gold deposits and other minerals of the State, or to *309 pond water to save ice for domestic or commercial use. A man may not construct a pond for raising fish, but he may, to run an illicit distillery, for that is utilizing water as a "motive power." Many of the streams, in the western part of the State, are hardly accessible to man, are remote from habitations, and of such rapid fall, that no obstruction can create a nuisance or affect the public. In that region, dams are often built and water diverted to dwellings and lots for domestic uses, and sometimes for the irrigation of meadows and gardens. In many portions of the mountain district, large volumes of water are thus conducted from dams, for many miles, in canals, and trunks, to the surface mines, where the water is used for working away the dirt, preparatory to collecting the gold or other metals.
Certainly the act does not intend to make such obstructions and the like, unlawful, and if it does, the least that can be said of it, is, that it is of questionable constitutionality, apart from its impolicy. State v.Glen,
Whenever an act of the Legislature can be so construed and applied, as to avoid conflict with the Constitution, and give it the force of law, such construction will be adopted by the courts. Cooley, 185; Newlandv. Marsh,
Such a change of "or" into "and," is often resorted to in order to effect the intent of the parties, and prevent the entire avoidance of the instrument. Parker v. Carrow,
By the finding of the jury, the creek at the dam, was unnavigable for any purpose, and was strictly private property. The only right possessed by others, was to the use of the running water, above and below the lands of the defendant, ad potandum et lavandum. The verdict establishes that no such right of others was disturbed.
Take the case in the strongest possible aspect for the State: Suppose the Legislature had enacted that Swift Creek should be considered to be a public highway and a navigable stream. If, in fact, it was neither, the Legislature cannot by a simple declaration, make it so. Because if it is private property, the Legislature cannot appropriate it to public use without compensation. Cooley, Const. Lim., 590; Morgan v. King, 33 Pa. Stat., 301. If the use or enjoyment of a thing, not in itself immoral, or injurious to others or their rights, is prohibited, it is unconstitutional, and opposed to the genius and spirit of our institutions.
In the State v. Glen,
3. "All the rivulets, brooks and other streams, which from any cause, cannot be used for intercommunication by inland navigation, are entirely the subjects of private ownership, are generally included in the grants of the soil, and the owners may make what use of them they think proper, whether it be for fishing, milling or other lawful trade or business. The only restriction upon this right of ownership arises,ex necessitate, from the nature of running water; and it is, that the owner shall so use the water as not to interfere with the similar (408) rights of other proprietors, above or below him, on the same stream. Pugh v. Wheeler,
In the subsequent case of Cornelius v. Glen,
The court then observes that "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 River, Deep River, Uharrie, South Yadkin and the like; which was well enough until the beds of these streams were entered and grants taken out; after which those streams were left out of the fish acts," and parties were content with the rights of riparian ownership, the privilege of going to the middle of the stream, as contra-distinguished from the ownership of those where grants actually cover the bed of the stream. PEARSON, C.J., in delivering the opinion of the court, thus sums up the law: "Not being navigable, the defendant, by (409) 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 away any other piece of land, which he had bought and paid for, and for which the State had been paid." See alsoPugh v. Wheeler,
There is error. Judgment reversed.
PER CURIAM. Venire de novo.
Cited: S. v. Pool,