136 N.C. 603 | N.C. | 1904
There was evidence on the part of the State tending to show that the waterway in. question leads off from Currituck Sound and is about four hundred yards wide and six feet ten inches deep in the channel at its mouth, and the following widths at these, distances from its mouth: Eive hundred yards wide, one mile; four hundred yards wide, a mile and a half, and sixty yards at Ship-yard, about two miles above; that the obstructions were placed in the stream at a point three 'hundred and fifty yards from the mouth of the creek. At this point Jean Guide Creek is about three hundred and fifty yards wide, and boats drawing five or six feet of water could sail up to the point where the obstructions were placed and a mile and a half above the mouth of the stream. The water-course in question has been used by the public for thirty-five years “for fishing and harboring and as a passway and for landing purposes” and “as an harbor for protection in time of storms,” and “as a thoroughfare by the public as long as the witness could remember, and by persons coming in from the sound who would go up to the head of the creek at Ship-yard, leave their boats and then go by land, and has seen boats carrying freight land at the pier.” Barges drawing three and a half feet of water and transporting timber can go to Ship-yard, turn and come out. This witness also testified that he had seen a sloop two hundred yards above the point at which the obstructions were placed.
There was also evidence tending to show that the land covered by the waters of Jean Guide Creek is claimed by Hannah M. Lyons of New Jersey, who acquired her alleged title through mesne conveyances from a grant from the State of North Carolina, to one Hodges Gallop, dated 30 May, 1812. It also appeared that land on both sides of the creek belongs to Hannah M. Lyons and that no public road leads from the creek, but only a private road for the use of the owner
Tbe defendants excepted to tbe refusal of the Court to charge: 1. That if tbe jury believed the evidence the- creek is not navigable, and to find tbe defendants not guilty. 2. That as tbe obstructions were placed by tbe defendants under orders “of tbe owner of tbe land on both sides of tbe creek and title to tbe stream belongs also to ber, to return a verdict of not guilty.” 3 and 4. That as tbe creek leads from tbe sound to tbe land of tbe employer of tbe defendants and not to any public place, and there is no public road adjoining or touching tbe creek, and any one landing at any point on tbe creek must go over the land .of said riparian owner, to find tbe defendants not guilty. 5. That if the evidence is believed, tbe creek is not navigable and is owned by Hannah M. Lyons and she had a right to place the posts in tbe creek, and the defendants acting under her orders were not guilty.
Tbe Court charged tbe jury, among other things: “If this stream or bay is properly described and generally known as Jean Guide Greek, and is wide enough and deep enough for navigation by boats ordinarily used for carrying traffic and commerce on tbe sound waters and was required and used for such purposes by tbe necessities and conveniences of persons generally engaged in such traffic, it would be an indictable nuisance to obstruct it; and if the jury are satisfied beyond a reasonable doubt it was that character of
If a stream is “navigable in fact (as the jury found under the above instructions) it is navigable in law.’ Gould on Waters (3 Ed.), sec. 61. The capability of being used for purposes of trade and travel in the usual and ordjnarv modes is the test and not the extent and manner of such use. State v. Eason, 114 N. C., 787, 23 L. R. A., 520, 41 Am. St. Rep., 811; Hodges v. Williams, 95 N. C., 331, 59 Am. Rep., 242; Ingram v. Threadgill, 14 N. C., 59; Wilson v. Forbis, 13 N. C., 30. The same ruling is maintained in the United States Supreme Court, The Daniel Ball, 77 U. S., 557; The Montello, 78 U. S., 411; S. C., 87 U. S., 430.
Navigability is a question of fact dependent upon the depth of water and other circumstances and was properly submitted to the jury in the charge. Navigability cannot be affected by the condition on the adjacent land, such as there being a large town on the shore with numerous streets and wharves, or whether, as here, one riparian owner has a monopoly of the land, with no public road to the water, thus
Land covered by navigable waters was not subject to entry at the date of the grant to Gallop, and is not now, and the grant of the land covered by Jean Guide Greek is void. Bat. Rev., chap. 41, sec. 1 (1); The Code, sec, 2751 (1); Skinner v. Hettrick, 73 N. C., 53; Blount v. Spencer, 114 N. C., 777; Bond v. Wool, 107 N. C., 139; Wool v. Edenton, 115 N. C., 10; Holley v. Smith, 130 N. C., 85. Even if the grant passed a title to the land covered by the waters of the creek, the title became vested in the owner subject to the public easement — the right of navigation. Broadnax v. Baker, 94 N. C., 675, 55 Am. Rep., 633; Hodges v. Williams, 95 N. C., 331, 59 Am. Rep., 242; Gould on Waters (3 Ed.), sec. 87.
The above test, the capacity for navigation, is laid down in State v. Club, 100 N. C., 477, 6 Am. St. Rep., 618, as follows: “Navigable waters are natural highways — so recognized by government and the people — and hence it seems to be accepted as part of the common law of this country, arising out of public necessity, convenience and common consent, that the public have the right to use rivers, lakes, sounds and parts of them, though not strictly public waters, if they be navigable in fact, for the purposes of a highway and navigation, employed in travel, trade or commerce. Such waters are treated as publici juris in so far as they may be properly used for such purposes in their natural state.”
Mr. Justice Douglas in a more recent case, State v. Baum, 128 N. C., 600, says that in early days “the navigability of a stream depended more upon the temper of those living
The evidence tends to show that Jean Guide Creek has been used by the public for thirty-five years for the purposes of fishing, as a passway and as an harbor for protection in time of storms. “These conditions constitute ample evidence of a navigable stream.” State v. Baum, supra. The defendants’ contention that to make a waterway, it must have a public termination, cannot be sustained. That may come later, but that will not make the stream deeper or more navigable when it comes. This stream is an arm or part of Cur-rituck Sound, from which sound there is a passage way through the waters of Albemarle and Pamlico Sounds and up various rivers to many towns in the State. If above evidence is true, the stream is in itself navigable in fact, and its navigation is certainly “in some degree required by the necessity or convenience of the public.” The right to anchor is essential in navigation, and Jean Guide Creek, according to the evidence in the case, has been used “as an harbor of protection in time of storms.” In Gould on Waters (3 E.d.), sec. 95, it is said: “The, right of navigation includes the right to anchor as incidental to its beneficial enjoyment.”
The whole matter is thus summed up by Shaw, C. J., in Attorney-General v. Woods, 108 Mass., 436, 11 Am. Rep., 380: “If water is navigable for pleasure-boating it must be regarded as navigable water, though no craft has ever been put upon it for the purpose of trade or agriculture. The
Nor is it material that tbe former riparian owner charged people one-fourth of tbe catch for fishing in the creek and that some in their ignorance submitted to tbe exaction. This no more proves ownership of a navigable stream than tbe exaction of toll by feudal barons on the Ehine proves ownership of that great artery of commerce to-day by those who have succeeded them in the ownership of the lands on which their castles once stood. Navigable waters are free. They cannot be sold or monopolized. They can belong to no one but the public and are reserved for free and unrestricted use by the public for all time. Whatever monopoly may obtain on land, the waters are unbridled yet.
No Error.