#### JOHN D. COLLINS vs. THOMAS BENBURY AND OTHERS.

December 1842.

No person has a several or exclusive right of fishery in any of the navigable waters in this State.

What is a navigable stream in this State does not depend upon the common law rule; but waters, which are sufficient in fact to afford a common passage for people in sea vessels, are to be taken as navigable.

The case of Wilson v Forbes, 2 Dev. 30, cited and approved.

Appeal from Chowan Superior Court of Law, al Fall Term, 1842, his Honor Judge Bailey presiding.

This was an action on the case, brought for the purpose of recovering damages for interrupting the plaintiff in fishing his several fishery. On the trial it was in evidence that thé defendant Benbury was the co-tenant, with Mrs. Harvey, of the Sandy Point Fishery, on the Albemarle Sound — that by several demises the two co-tenants Benbury and Harvey leased the said fishery to H. W. Collins, who transferred it to Josiah Collins, and by him it was assigned to the plaintiff. The lease of Thomas Benbury, the defendant, to H. W. Collins, witnessed “ that for and in consideration of the rents, covenants, provisoes and agreements hereinafter mentioned and contained, the said Thomas Benbury has demised,' leased, set and to farm let, and by these presents doth demise, lease, set and to farm let unto the said Hugh W. Collins, his executors, administrators and assigns, one half of a certain fishery situate and being in the county of Chowan and State of North Carolina, and lying on Albeniarle Sound, about ten miles below Edenton, and known by the name of the Sandy Point Fishery, to have and to hold the one half of the aforesaid fishery, with all the privileges and appurtenances thereunto belonging or in any wise appertaining, to him, the said *278H. W. Collins, his executors, administrators and assigns, for and during the full term of ten years, &c.” This lease was dated Nov. 15, 1838. After Benbury had leased the fishery to Collins, he purchased a tract of land adjoining the fishery; and in the Spring of 1841, for thefisrt time, as a co-parner with the other defendants, established a fishery on the shore of that tract of land and fished thereat. The evidence shewed that, when Benbury fished at the fishery, which he leased to Collins, he fished the waters of the said fishery with a seine about 1300 yards long — that he had leased it to a company of fishermen two years previously to his lease to Collins, who fished with a seine 1600 yards long, and that Collins, after he leased it, fished with a seine between 1800 and 2000 yards long. The seine, with which Benbury and the other defendants fished, at their fishery in 1841, was about 1100 yards long. The evidence proved that the centre stake^ by which Collins laid out his seine, stood in about the same place in which it was when Benbu-ry fished the Sandy Point Fishery, and that a line drawn from Collins’s fishery to his centre stake would be nearly at right angles with his shore. The plaintiff, after offering evidence tending to prove that the water, which had before been occupied by those who fished at the Sandy Point Fishery previous to the lease from Benbury to Collins, was occupied in part by the seine which the defendants used in fishing from their beach, offered evidence to prove the number of hauls which he lost by reason of this interference — the imperfect character of the hauls he made, in consequence of such interference — and the number of fish which had been caught at the Sandy Point Fishery several Springs preceding the Spring of 1841 — and that during one day, when the seine of the defendants was not hauled, he caught 30,000 more fish than he had caught previously on any one day — as furnishing evidence of the amount of damages. The defendants objected to this evidence, and insisted, that the damages should be a compensation for the loss sustained and not for the profits that he might have made. The Judge overruled the objection and admitted the evidence, because in his opinion the evidence shewed the product and not the profits *279of the fishery. The evidence proved that the general course of the Albemarle Sound is a little north of east and south of west. It was also proved that the nearest direct course from the Sandy Point Fishery to the channel of the Sound was nearly south, and that if his, Collins’, seine had been laid out in this direction, no interference of the other seine with his could have taken place; but that in thus laying it out, it would have to pass over a sand shoal, which would have prevented the owner from catching the fish that he could take by fishing deeper water; and that in fact it could not be drawn across the shoal, It was also proved that Benbu-ry and those who had occupied the Sandy Point Fishery never pursued the most direct course to the channel of the Sound, but had shot their seine in nearly the same direction in which Collins shot his. I was also proved that the dividing line between the two fishing beaches, extended into the Sound, was, when Collins’ seine was laid out, transcended by him about two hundred yards towards Benbury’s fishing shore, and that the staff of Benbury’s seine was frequently seen between Collins’centre stake and his fish house, which would be beyond the said line several hundred yards. It was also in evidence that if the defendants had laid out their seine in the most direct course from their beach to the channel of the Sound, they would necessarily have swept a larger portion oí the fishing ground claimed by the plaintiff than they now did. About the interference of the one seine with the other there was conflicting, testimony. The defendants’ counsel submitted that the form of the action, if any could be maintained, should be trespass and not ease. The Judge ruled that case was the proper form of action. The plaintiff’s counsel insisted that, as Benbury had leased this fishery to H. W. Collins, as between Benbury and the plaintiff, who claimed under H. W. Collins, he was estopped from using the right of fishing to the injury of the Sturdy Points Fishery. Upon this part of the case the Judge charged the' jury, that the State had never granted the beds of the navigable streams, and that, therefore, Benbury having no title to the Sound, the Sound not being a proper subject of grant, his lease to Collins conveyed the fishing beach, and, as inci*280dent to that, the several right of fishing in the waters opposite his shore — that if the defendants did fish water that was formerly fished by those who occupied Sandy Point Fisher7> hie plaintiff would have no cause to complain, unless the defendants carried their seine beyond the dividing line between the two fisheries, extended into the Sound — that if the defendants transcended this line, they were wrong-doers, and the plaintiff would be entitled to recover of them the value of the fish he was thereby prevented from catching. The defendants’ counsel insisted that the plaintiff was obliged, in laying out his seine, to pursue the nearest and most direct course to the main channel of the Sound, as were also the defendants — that, each having a right thus to fish the waters opposite their lands, if, in the exercise of this right, the seines of both swept over the same ground, neither had the right to use the ground beyond the point of intersection to the exclusion of the other, and that, in the use of the ground thus common to both, each was compelled to make that use of it, in the prosecution of the fishing business, that would be the least injury to the other; and further too, that, supposing the dividing line between the two beaches extended, to be the dividing line between the fishing grounds of the two fisheries, the action could not be maintained, unless the interference proved proceeded from neglect or was wilful. Upon these questions thus raised his Honor instructed the jury that, if the seine ofthe defendants reached over the dividing line between the beaches, extended into the Sound, and the seine of the plaintiff was thereby actually interfered with, either by being delayed in the hauls or rendering the hauls which were made imperfect, the plaintiff would be en_ titled to recover.

Under these instructions the jury found a verdict for the plaintiff, and the court rendered judgment accordingly; from which the defendants appealed.

Badger & Kinney for the plaintiff.

A. Moore for the defendants.

*281Ruffin, C. J.

The case does not state explicitly that Albemarle Sound is or is not a navigable water, in its technical sense, nor any facts from which the court can see that it is, to all practical purposes, navigable, as the term is un-destood among us, at least, in common parlance. But it is apparent that the Sound was assumed upon the trial to be navigable, if not strictly speaking, at least within the meaning of the entry laws of 1765 and 1777. For the learned Judge instructed the jury, that as the State had never granted the beds of navigable streams, Benbury had no title to the Sound, which was not the subject of grant;. and-,, therefore, that his lease to Collins- conveyed the fishing beach only. But to that was added the further instruction that “ as incident to that,” namely, the beach — “the several right of fishing in the waters of the Sound, opposite his shore,” was also conveyed ; and thus his Honor proceeded to- designate the lines within which this several right of fishing, incident to the riparian ownership, must be exercised by the proprietors of adjoining parcels of the shore. The case seems chiefly to have turned, in the diseussion below, on this latter point. But it will not be material to consider that subject here, with the view of ascertaining the extent to which the several fishery of these parties respectively goes, if neither party has such several right; and such is the opinion of the court. The co rrectness of this opinion depends upon the enquiry, whether Albemarle Sound is to be regarded by us as being a navigable water and public highway or not; for if it be, it seems to be well established upon authority, that there can be no exclusive and several right of fishery in if, more than in the Ocean.

It is to be regretted, perhaps, that the date is not given of the patent by which the land was granted, of which this fishing beach is a part; and that there was no evidence offered as to the period, at which- the regular ebb and flow of the tide in the Sound ceased, in consequence of the closing of Roanoke Inlet. As the lands on the Albemarle were amongst the earliest taken up after the settlement of the Colony, it is extremely probable, that, at the emanation of the *282patent, there was a flux and reflux of the tide from the Ocean high up as the land in question ; and if so, it seems agreed by all, that, at common law, the proprietors of the land adjacent have no propriety of soil in the land covered by the water or fishery, as a several right. But whether there was any tide or not in the Sound, when this patent issued, we do not think material; for we concur in the opinion of his Hon- or, that this is “a navigable water,” in the sense of our statutes. In Wilson v Forbes, 2 Dev. 30, it was held, that a stream, comparatively short, narrow and shallow, was a navigable water course for the purpose of rendering the water’s edge the line of a tract bounded on the creek, and not the thread of the channel. Judge- Hendeeson, in commenting on the English rule, pronounced it entirely inapplicable to our situation, and by way of exemplifying the absurdity of applying it as the rule of construction for our statutes, he remarked- that,.“by that rule, Albemarle and Pamlico Sounds, which are inland seas, would not be deemed navigable waters, and would be the subject of private property.” He certainly could not, by direct affirmation more forcibly have stated-his opinion,, that they were to be deemed1 in our law navigable waters, as bounding the grants of land lying on them. If this vast body of water, actually navigated throughout by sea vessels of a large class, be not a navigable water,, it is difficult- to conceive to what waters those terms were intended by the Legislature to apply, though used twice in the act of 1765-and in-that of 1777; for there are but a few miles near the months of some few of our rivers, among the w-hole of them, in which there is a regular tide from the Ocean. The Legislature must be supposed to have used them in- reference to the nature and actual state of our own streams, riveisand sounds, rather than in the sense of the common law, which would render them inapplicable to our condition. And it would seem, therefore, to be the fair construction of the acts, that any waters, which are sufficient in fact to afford a common passage for all people in sea vessels,, are to be taken as navigable, and in that sense the act has commonly been received. If so, the statutes direct that the water shall form one side of the survey, *283and that the lines shall run from the water landward. The result of this construction is, that the patent could coyer only the land to the water’s edge, and did not pass the soil, nor, as we think, any sole or exclusive right of fishing in the waters of the Sound. It was laid down by his Honor» that neither the soil nor the water of the Sound was included in the patent, but only the land up to the water. Yet he held, that the right of a several fishery was acquired as incident to the grant of the land adjacent to the Sound ; and it is in that part of his opinion that we cannot go along with him. The grounds of the difference we will now proceed to state.

We think a several fishery can only be acquired by a grant of the soil covered by the water in which the fishing is done, or by a grant, from the owner of the soil, of the fishery distinct from the soil. Mr. Blackstone, indeed, lays it down, that the ownership of the soil is essential to a several fishery. 2 Bl. Com. 39. In that, however, he differs from Lord Coke, who says, Co. Lit. 4, b., that if a man be seised of a river, and by deed do grant separatum piscar turn in the same, and maketh delivery of seisin secundum formam char-lee, the soil doth not pass, but only a particular right, that is, of fishing. And afterwards, Co. Lit. 122 a., he says, a man may prescribe to have a several fishery in such a water, and the owner of the soil shall not fish there. It seems to be yet an unsettled point, which of those great authorities is right—Seymour v Courtenay, 5 Bur. 2814; Hinnarsby v Orpe, Doug. 56 — though the learned annotator, Mr. Har-grave, maintains Lord Coke’s position with apparently good reason. If Mr. Blackstone be right, then the plaintiff here, not being owner of the soil, cannot be entitled to the fishery. But if Lord Coke is to be followed, we do not see that the plaintiff is better off. All he holds, is, that the rights of fishery and soil are not so absolutely united, that the owner of both cannot grant the fishery without the land. But it plainly follows from what he does say, that the fishery can be acquired only by a grant from the owner of the soil or from the sovereign ; for a prescription supposes a grant original-. *284ty, though it cannot now be shewn. But here is no such grant shewn, nor prescription, nor use on which a presumption of a grant may rest. On the contrary, there can be no doubt, that no right of soil in the land covered by the Sound ever did exist in any private person, who could convey the right ol fishery; for it has at all times been unlawful to take out such a grant. We do not doubt, that the right of fishing in navigable streams, cither as a common or several right, is a proper subject of legislative regulation, and may be granted to the proprietors of adjoining land, or to others, upon such terms as may seem meet to the General Assembly. There are many acts of the kind, such as those regulating lay days, and the like. But there has been no such grant of a several fishery in the Albemarle Sound to the plaintiff, or to any one from whom he could have derived it. Being a navigable water, a several fishery in it does not arise as an incident to riparian ownership., for in sueh waters the right of fishery is “ prima facie in the King, and is public.” It is only in rivers not navigable or little streams, that, as an incident to the ownership.of the soil adjacent, the right of soil in the stream and of the several fishery therein, is acquired. Seymour v Courtenay, 5 Bur. 214. Carter v Murcot, 4 Bur. 2162. Thomas’Coke, 231, note. And Lord Hale mentions, De jure mavis, 5, “ that fresh rivers do, of common right, belong to the owners of the soil adjacent, so that the owners of one side have, of common right, the propriety of the soil, and, consequently, the right of fishing usque ad fi-lum aquae, and the owners of the other side the right of soil or ownership, and fishing unto the JUinn aquce on their side; and, if aman be owner of the land on both sides, in common presumption, he is the owner of the whole river, and hath the right of fishing according to the extent of his land in length.” From which, it appears that in Lord Hale’s opinion, the right cf fishing depends upon the right of soil, and, consequently, a grant of the soil must be shewn, or a grant of the fishery from the owner of the soil. Neither is pretended in this case ; for it is admitted, that the law has at all times forbidden a grant of the soil, and the right of the fish*285ery is claimed, not by a grant of it as an independent right, but as an incident to the propriety of the soil adjacent.

It is said, however, that one of the defendants made the grant to the plaintiff’s assignor, and that as against him, it is to be assumed to be valid. To this there are several answers. From the terms of the contract, taken in the whole, it is rather to be inferred that the subject of the lease was the land adjacent to the Sound, the beach, fish-houses, and other erections on “ the premises,” and not the right ot fishing, as such. The right to land, cure, and store the fish, was the important privilege contracted for. But, however that may be, it is very clear that a grant of a several fishery in the ocean or other navigable water by an individual, who could not acquire it from the State, must be merely void ; and therefore it cannot estop.

LTpon the whole, then, the court is of opinion, that the action must fail for the want of title in the plaintiff to the several fishery claimed by him; which is not merely the right of drawing his seine to his beach in exclusion of others, but is the sole right of fishing, independently of all others, in a certain portion of the waters of Albemarle Sound. To such an action it is a good plea, that being a navigable water, every citizen of the State of right has the liberty and privilege of fishing. 3 Chit. Pl. 1108.

We agree with the plaintiff’s counsel, that the industry and enterprise of many of our fellow-citizens in some parts of the State may be seriously checked by thus holding fisheries in our large waters not to be sole proprietory rights ; as, to some extent at least, we learn, they have been considered and treated by those engaged in fishing, among themselves. We doubt not, that they will so continue to deal with each other as not unnecessarily or materially to interfere with their operations. Indeed, the court would have gone far to sustain any long and established usage between the different fisheries, if such had been shewn. And if experience should prove the necessity or utility of further regulations upon the subject, there is a ready access to the legislature ; by whose wisdom every mischief can be remedied. *286But as a question depending on the mere right, the court can do no less than decide by the existing law ; by which the right of fishery in Albemarle Sound is, we think, common and not several.

Per Curiam. Judgment reversed, and venire de novo.

*288L