HALIFAX,

APRIL TERM, 1797.

#### Jones v. Jones.

Rocks in a river above the surface of the water, are vacant property, and the subjects .of our entry laws.

Trespass, quart clausum fregit. Issues, liberum tene-mentum, and justification. On (he trial, the Defendant admitted he had repaired a stand, erected in the river Roanoke to catch fish, and that he had fished there. It was stated by' the Plaintiff’s counsel, that this action was brought for the purpose of trying the right of fishing a-mongsl the islands at the falls. The Plaintiff deduced his title ns follows : First by a grant from the Governor to Griffith, for thirty-seven small islands — Griffith conveyed to P. Johnston, and she to the Plaintiff. Also he produced a State grant for (hese Islands, rocks and stands, issued under the act of 1787. He also produced a grant for an adjacent tract, the boundaries of which included 'one bank of the river. His counsel stared, that the stand in question was in the middle of the river, that the Plaintiff had a title to these islands, rocks and stands, prior to 1787; also a title under the act of 1787, and atitletoone of the bank'by another grant. The Defendant’s counsel rested his defence on the long possession the Defendant had of ttiis stand prior to tin* State grant; and that as the river above the falls was not navigable, the bed thereof, and the right of fishing, belonged to the proprietors of the adjoining lands on each side. He then gave *564evidence of the antiquity of this stand, and that the rock w¡.m. it ip, has been rendered an excellent place for fish-ini’’, and stands two hundred yards from the islands, and on the smith side of the river.

The counsel for the Plaintiff grounded his argument on the following points : Observing that this rock or stand, as it was not opposite to any island claimed by the Plaintiff, may render (he judgment to be givpn in this ca«e, less decisive of * lie general question respecting the islands and stands adjacent to them, than was a' first intended, he prop--sod first to consider, how the common law stood, and ’Tut right the. Plaintiff had, prior to the grant of 1787, as to which he sued. The soil or bed of a navigable river belongs to the public. Doug. 429. 1 Mo- 105. And the cot red idea of a navigable river is, one which ebbs and flows, so far as it ebbs and flows. Doug. 427, 441. Cowp. 86. Ye.i notwithstanding the general right is in the public in navigable rivers, a private man may acquire a right to a free fishery-. 4 Com. 448. 3 Term 253. 4 Burr. 2162 — and hence it follows, that even in in navigable rivers or arms of tfafe sea, one of our citizens may acquire an exclusive right offishipg by a grant from the State. Whoever is the owner of tiie soil or bed of the river, has the'exclusive right of fishing ; and that ownership of the. soil or bed of the river, may be granted by the State, and has been conveyed to us under the grant of 1787. This secures the exclusive right of fishing to the grantee. 2 B. Com.' 40. 1 Inst 122. In this country there is no such thing as title by prescription, and therefore, it cannot be pretended that a title may be acquired by it to the overturning of our grant. Í Inst. 122 note 7. A right, as it is sometimes acquired in England, by long «sage, against the owner of the soil, cannot apply here. F. JV*. B. 200. And then there remains no other means of acquiring an exclusive right of fishing, but by a title , -derived under the owner of the soil, 5 Burr. 2814 — and this the Defendant does not pretend to.

Counsel for the Defendant-

This river is either navigable, or it is not. If it is a navigable, ri ver, the right of fishing in it is common to all the citizens — the bed or soil of it cannot be granted at this day, nor can anj citizen be disturbed or restrained of his right by any State grant. The Crown in England was long ago restrained froto making such grants. 6 Mo. 73, 4 Bac. Jib. 156. 1 Mod, *565If ifc'is not a navigable river, ihen tin* !>ed of the river belongs to the owners.on each side ; each rlaimitig lo the middle of flie water. 4 Burr. 2 62 4 Bnc. Jib. 153.— Doug. 427. 4 Btic. Jib 15G. Vaitel 104, sec. 246 — and then it: is not subject to be granted by the State, being already appropriated. All that the Legislature can do with respect to the rights of fishing in navigable rivers, is, to pass laws prescribing the mode in which that right is to be exercised by the citizens. Vattel 104, sec. 246. ■In England, a franchise of free fishery, must have been granted before the charter of King John — for all such grants in future are prohibited by that charter.

Admit ilie islands may be granted, yet a grant of them will not pass the rock, which stands in the river at a great distance from either of them — but in truth the islands are not grantablc — they belong to the owners of the nearest adjacent lands ; even the grant of 1753, comprising the islands, did not extend to this rock, nor was legally cóm-prele tided in the State grant, issued under the act of 1787. That act says, that ail and every person and persons owning lands on said river, at and against and contiguous to any. rocks or islands not yet entered and taken up, shall have the privilege and liberty of taking up the same agreeably to 'the laws for taking up land now in force, provided thev enter and take up such islands, rocks and stands ‘within six months &c. The rock in question,, was nearer to the lands of another person than the grantee: — his lands are not at, adjoining and contiguous to (his rock, in comparison with the lands of that other.. The grantee was not a person intend.-d by the act to have the right of pre-emption, The grant ha, issued upon wrong suggestions, and is therefore, void., Bull. 76. 1 Co. 44, 45_ The Governor was not authorised to execute such a grant. Thus the grant is not only void, because the rock belonged to the owner of the land nearest to it, hut also for this other reason, that it issued without authority given by the State to issue it.

Counsel for the Plaintiff

They rely upon their possession, but possession cannot ripen into title unless ¡the a Continued and constant possession — the possession of the Defendant has been for five or six weeks' only in a yeai, therefore it cannot avail him. It is admitted on. the other side, that no right can be acquit ed in this country by prescription — I shall therefore say nothing more-*566on these points. It is argued, that this is a navigable river, and therefore could nqt be granted, and I Bl. Coin. 386. 2 BL Com. 3,9, is relied on. If. is true, in England such grants were restrained by particular laws, intending to restrain tbe prerogative ; but these laws are not in force here — our Legislate e body is-only restrained and regulated by the Constitution. Acts passed by them for the public good, and not repugnant to that Constitution, must be enforced. It is not a true position, that in caseofpi'ivate rivers,or rivers not navigable, the islands belong to tbe owners of the adjacent land. Such islands, . either on navigable or unnavigable rivers, contain land and territory, and must be entered before they become private property. This appears by our entry laws, 1777, c. .1, s. 10, and if islands are to be entered and do not follow tbe adjoining lards, then upon the principle of the Defendant’s counsel, the owners of the islands are entitled to a part of the bed of the river on each side of the islands. The act of 1787, is founded in good policy, and does not exceed the powers of the Legislature. It was made to prevent strangers, not citizens of North-Carolina, from stopping up the river with their stands, and depriving the laud holders'of the benefit of fishing ; such persons trespassed upon the adjoining lands, committed injuries and transgressed the laws of the country, and immediately withdrew themselves into Virginia before they were taken by process issued for the purpose; or if they were by accident apprehended, they were generally unable to make compensation. Under the directions of 1 the court, the jury gave a verdict for the Plaintiff.

Note. — This case ex relatione, and I haw been informed that the judgment of the court, (Wiiiums and Macax, Judges,) proceeded upon the ground, that the rocks tn the river above the surface of the water, were vacant property, and the subjects of our entry-laws.