#### STATE v. TWIFORD.

(Filed October 4, 1904).

1. NAVIGABLE WATEES — Waters and Water-oourses.

Where a stream is navigable in fact, it is navigable in law, and the capability of being used for the purposes of trade and travel in the usual and ordinary modes is the test, and not the extent and manner of such use.

2. NAVIGABLE WATEES — Grants—The Code, seo. $151, subsec. 1.

Lands covered by navigable waters are not subject to entry.

3. NAVIGABLE WATEES — Evidence.

That the former riparian owner charged people one-fourth of the catch for fishing in a creek, and that some in their ignorance submitted to the exaction, is not proof of the non-navigability of the creek.

4. NAVIGABLE WATEES — Waters and Water-courses — Question for

Jury.

In this prosecution, for the obstruction of a water-course, whether • it is navigable is a question for the jury.

5. NAVIGABLE WATEES — Waters and Water-courses.

The control of navigable water belongs to the public, and is not appurtenant to the ownership of the shore.

INDICTMENT against G. W. Twiford and another, beard by Judge W. A. Holce and a jury, at Spring Term, 1904, of the Superior Court of CueRituctí County. From a verdict of guilty and judgment thereon, the defendant appealed.

Robert D. GilmerAttorney-General, for the State.

E. F. Aydlett and J. F. Minturn, for the defendant.

*604Clark, O. J.

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 *605and ber tenants. Tbe defendants, Twiford and Tate, admitted that they, by tbe orders of said riparian owner, placed tbe obstructions in tbe creek in October, 1902. Tbe stakes constituting the obstructions are strongly driven down and their tops rise three or four feet above tbe surface of tbe water. They are two and a half feet apart. There is a gate near tbe center of tbe stream used exclusively by tbe owner, which is kept locked so as to prevent the general public from using tbe waterway.

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 *606stream so used and' required by public convenience and that defendants put the obstructions in the stream, the defendants would be guilty and you should so return your verdict.” Defendants excepted. “If the stream is not navigable by vessels of the kind described or if the stream was so shut in or is so situated that it was not used or required for traffic or commerce by the convenience of the public or persons generally engaged in traffic with vessels on the sound, then it would be no nuisance to obstruct it or shut it up and the jury should acquit the defendants.” The defendants again excepted. The question was submitted to the jury as one of fact under the above instructions. The rest of the charge, which fully set out the contentions of the parties and the law, was not excepted to. These are the only exceptions and we find no error as against the defendants-.

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 *607■cutting off access by land. It is the navigability of the water that is the test, its accessibility by water and not accessibility by land — else whether bays, estuaries, creelcs and rivers are publici juris would depend upon whether or not riparian owners have monopolized the ownership of the adjacent soil.

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 *608along its banks (Indians) than upon its natural features, * * but that now the public have the right to the unobstructed navigation as a public highway for all purposes of pleasure or profit of all water-courses, whether tidal or inland, that are in their natural conditions capable of such use. The navigability of a water-course is therefore largely a question of fact for the jury and its best test is the extent to which it has been so used by the public when unrestrained.”

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 *609purpose of navigation is not tbe subject of inquiry, but tbe fact of tbe capacity of tbe water for use in navigation.” It would be a serious detriment to tbe public if water, capable of sucb usefulness as bere, can be made private property by buying up the adjacent land. Tbe control of sucb water belongs to tbe public and is not appurtenant to the ownership of the shore. It is not a case “where tbe tail goes with tbe bide.”

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.