William Ingram v. Hull Threadgill.

Altliougli by tlie acts of 1715 and 1777 (Rev. c. 6, 8c 114) the beds of livers and creeks are not subject to entry, yet where the rive» or creek is not navigable, in the' ordinary meaning of the term, the owners of the banks have a several fishery oppdsite their land, to the middle of the'stream.

Trespass, for fishing in the plaintiff’s several fishery.

Upon not guilty pleaded, the jury returned the following special verdict:

“ That the plaintiff had title to, and was in posses- ‘ sion of a tract of land, bounded by the Pedee River— “ that the defendant had title to, and possession of a “ tract of land adjoining the plaintiff’s, immediately be- ; k low, and also bounded by the Pedee — that the defend- “ ant, at the time alleged by the plaintiff in his decla- “ ration, drew his seine, and did fish with the seine in •£ the channel of the river, and between the channel an.d' *60 ■“ the shore, and near the shore where it formed the u i)0un(iary fif the plaintiff’s land on that side-*-that the u ^oc)ts £w qU0 majn pedee -River, about thirty-five n miies above the point to which the river is navigable-(l for steam-boats — that at the - locus in quo, the river is “ about three hundred yards wide, and about four and “ a half feet deep — that heretofore the river has been na- “ vigated with batteaux and flats to a point above tl¡ie “ plaintiff’s land ; but that there has been no navigation “ of that kind for the last twenty years — rthat about “ fourteen miles below the locus in quo, the river is nearly a mile wide, and is never'navigable for batteaux, ex- “ cept in timé of high water, and then with difficulty.” Upon this verdict, his Honor Judge Maktin rendered judgment for the defendant, from which the plain* tiff appealed.

Badger, for the plaintiff,

referred to' Hooker v. Cam-inings (20 John. Rep. 90).

Bevereux, for the defendant,

cited Wilson v. Forbes (ante 2 vol. 30) act of 1715 (Rev. c. 6) &' act of 1777, (Rev. c. 1-14, s. 10).

Hah., Judge.-

The act of 1715 (Rev. c. G) declares, that where a survey is to be made upon a navigable river or creek, the surveyor shall run a full mile in a direct course into the woods, and each opposite line shall run parallel with the other, if it can be admitted, for other people’s lines, or rivers or creeks. It is provided also, that not more than six hundred and forty acres shall be laid out in one tract. The act of 1777 (Rev. c. 114, s. 10) declares, that where any survey shall be made upon any navigable water, the water shall form one side of the survey. The same act provides the mode, of entering and surveying islands in navigable waters. It appears from these acts, that the beds of pavi-gable waters, and of navigable rivers and creeks, cannot be the subject of entry and survey. Therefore, the plaintiff, in the present case, cannot derive title to the fishery in question, by grant from the state, as he might do for lands, under those acts of Assembly. And if he *61has title, it must be derived by some other mode of acquisition*

The ebb. and-flow of the tide is not a proper criterion to determine whether a river of this state is naviga* We.

It seems, tha£-a fishery in a ri-i ver which is not affected by the ebb and flow of the tide, but which is in fact navigable, belongs to the riparian proprietor.

In England, a- river- is- said to be navigable, where the tide flows and reflows. Where that is not the case, they are said not to be navigable. In the latter case, the proprietors of the land on the river, have the right of fishing on their respective sides, to the middle of the stream' — ad filum medium aquce (Carter v. Murcot 4 Bur. 2163 Rex v. Smith Doug. 441).

This definition of a navigable river seems not to be applicable to rivers in this state. They are in fact navigable fbr all the purposes of public convenience, in many places beyond the influence of the tide. Eut perhaps, at a point beyond the purposes of navigation, they may not be so considered, that is, to bo free fisheries. In England, the reason why the king has an interest in a- navigable river, as far as the sea ebbs and flows in it, is because such a river pax’ticipates of the nature of the sea; and is said to be a branch of the sea as far as it flows ; and consequently he is, entitled' to the fishery in it; For it is said the king hath dominion over the sea,; and that every subject hath a right to fish in the sea, and in a navigable river belonging to the king. (Davin Rep. 252, Warren v. Matthews 6 Mod. 73.) From these premises it would result, that the fishery in a river which was navigable, but which was not identified with the flowing of the sea, by being subject to the ebbing and tides, would belong to the riparian proprietor. On such a case, however, it would be improper to give an opinion. Such is not the case before the court. The Pcd.ee River, at the place where the trespass is alleged to have been committed, is not a navigable river, but a private one. And the owners of the land on each side of it have a right to. the middle of it. The same may be said of rivers which divide nations. (Handly v. Anthony, 5 Wheat. 374.)

Altho’ these franchises or fisheries are not granted by the state as lands are by law granted, yet when the lands adjoining such rivers are granted, the right of fishing vests in such grantees, and gives them the right, of fish*62ing to the middle of tbe stream, in the water opposite their land; but not the right of fishing in water above or below the banks which belong to them.

Per Curiam. — Judgment reversed.*.