#### LEWIS AND JACKSON, v. JOHN W. KEELING.

The right of fishing in a navigable river is subordinate to the right of navigation.

A boat upon a navigable stream has a right to go to the bank when and where it is necessary to do so, and is not liable for damage done to seines drawn across the way, if such damage was done without malice or wantonness.

ACTION in the the case for negligently running into and injuring a seine, tried before his Honor Judge Ellis, at the Spring Term, 1854, of Hertford Superior Court.

As the correctness of the instruction given by the Court to the jury rests mainly on the evidence produced in the cause, it is deemed expedient to set it forth fully. The plaintiffs called one Taylor, who swore that they were engaged in fishing on Chowan river; that at the time of the alleged injury, the seine was partially drawn into the shore, the farthest part of it extending about four hundred yards outwards into the river; that the river was unobstructed for three fourths of a mile beyond the outer part of the seine, over any part of which outside space, the defendant could have gone with his boat. At this juncture, the hands at the fishery were engaged in taking in the seine, the two ends upon the shore being two hundred yards apart: A flat boat was stationed at the upper end, the bow of which was on the shore, and the stern towards the stream, at which they were taking in the seine and placing it in the boat, While thus situated, the steamboat of the defendant came *300down the river, and when first seen, was on a course which would have taken her outside of the seine, had she kept it. As she approached, however, she turned suddenly in towards the shore, at the signal of a passenger standing on the beach near the fishing boat; she continued this course until within fifteen feet of the shore, when she came up against the stern of the fishing boat (upon which, in the meantime, the passenger had gone;) she was there entangled in the seine, which was lying and floating in the water near the stern of the boat, and it was thus torn. The steamer having taken the passenger from the flat, passed over the seine, tearing it apart, and proceeded down the river, passing over the lower part of the seine, and tearing that also s This was in the day time, the wind blowing freshly down the river. The plaintiff, Lewis, was upon the beach at the time, and after the boat’s getting within the seine, expostulated with those in charge of the boat against running over his seine, to which he received no reply. The boat made no stop after taking in the passenger, and no effort to back up the river after she became entangled with the seine. This was not a public landing place, but passengers occasionally got on and off the steamboat at this point, always using for such purposes a small boat, while the steamboat stopped out in the river.

Another witness for the plaintiffs, Mr. Smith, stated that the fishery could .be seen from a point two or three miles up the river ; that the steamboat floated sidewise down against the stem of the fishing boat; that she got into the seine with her right wheel, but witness did not see how she got entangled. Her bows were at this time pointing out towards the stream, and if she had gone straight-forward, she would not have gone over the lower part of the seine, but she turned down the stream and went into it. Her stern was on the shore. No steam was put on as she drifted against the seine. Both these witnesses said they had no knowledge of the management of steamboats.

The defendant introduced a witness, Mr. Halsey, who said, that he had commanded vessels for thirty years, and was in *301•charge of this steamboat at the time referred to, and had been bo for several years, as agent for the defendant; that it was a regular passenger boat on the riyer, which was a large navigable stream. He stated that he had previously agreed with the passenger spoken -of, to take him in the boat at this place. As he approached the fishery of the plaintiffs, he saw the signal of the passenger on the beach near by, and turned to take him off. On approaching the shore, he called to the passenger to get on board the fishing boat, and informed him at the same time that their small boat was lost. His aim was to run the bows of the steamboat up against the flat, but he did not intend to injure the plaintiff’s seine. He saw the hands taking in the seine, but thought he could run the steamboat up against the flat without injuring it. He succeeded in stopping the steamboat just as she •touched the flat, having shut off the steam just before, hut immediately the seine became entangled with the wheels of his boat : He sent a hand down to disengage it: As soon as the passenger was taken in, he passed down over t'he seine carefully, sinking the lower corkline below the water, so as to enable the boat to pass without injury. He could not then go any other way, as the stern was towards shore, and her bows down the stream. The witness was not aware that the seine was injured. When he first became entangled with the seine, he attempted to back the boat off by using poles, and reversing her engines, but could not do so, as the stern was against the shore. He ■used all the skill and care possible to avoid doing an injury. The witness had frequently taken passengers on and put them off at this place, with the knowledge of the plaintiff, Lewis, and without objection from him, and did so at other points on the river, commonly using a small boat for the purpose. The wind was blowing freshly down the river.

Witnesses Freeman and Irvine, for the defendant, stated that •care was used to keep off of the seine, and that the boat could not have been managed otherwise, after she ran up to the shore.

The Chowan river was admitted to be a navigable stream.

*302Defendant’s counsel objected to a recovery upon tbe grounds:

1st. That in tbe exercise of tbe paramount right of navigation, tbe defendant had liberty to run over any part of the river, without being liable for any other than wilful injuries, and that, in the present case, his purpose was to take in a passenger in the usual course of his employment, and that the injury complained of was accidental and unavoidable.

2d. The defendant’s counsel asked the Court to instruct the jury, that as the Chowan river was a navigable stream, the defendant had a right to the use of all its waters, from shore to shore, for the purposes of navigation, and the conveying of passengers, and that where a passenger presented himself on the shore, the defendant had a right to go in with his boat to take him on board, and if he did this bona fide, and in the exercise of the right' all proper care and skill had been used in the management of the boat, the defendant was not liable.

The Court charged the jury, that all navigable waters, above the ordinary ebbing and flowing of the tides, are public highways: upon which steamboats and all other water craft are free to pass and repass at all times, without hindrance by riparian owners or Others. In the same waters, however, riparian owners, and, in Borne instances, others, have a right to fish with nets, seines, and other contrivances, of a like nature. The two rights of navigation and fishing in these waters exist at the same time, but the right of navigation is ever held paramount to the right of fishing — the common good requiring that the private interest should yield to the public convenience, whenever the two may conflict. But when it can be done without such conflict, both rights may be exercised in the same waters, at the same time, and persons using the paramount privilege must respect the interests of those exercising the lesser, to the extent to which the law recog-nises the existence of the privilege itself.

Both rights being thus recognised, neither is left without protection against mere wanton and unnecessary injuries. All persons are protected, though they be in the commission of a wrong; *303but where the law acknowledges a right, it extends still greater protection to those exercising it. Persons engaged in navigating public rivers, like the Chowan, are liable for other than mere wanton and unnecessary injuries to the seines and nets of those engaged in fishing in the same waters; they are required to use reasonable care and diligence to avoid injuries of this character ; they are not confined to the strictest degree of care, but only such as is ordinary and reasonable. And if the evidence offered on the part of the plaintiffs, as to the circumstances under which the injury cqmplained of was inflicted, be true, then there was such negligence upon the part of the agent, in charge of the steamboat, as would render the defendant liable to the action of the plaintiffs.

And, if the version given by the defendant’s witness, Halsey, was true, and the other facts as to the condition of the seine, and the open space on the other side, as spoken of by the plaintiffs’ witnesses, were true, then the defendant would be liable, and the plaintiffs should recover; for, it was unnecessary for any useful purpose of navigation to have turned out of his course, and gone up to the fishing flat, where, according to his statement, even good and skilful management of the boat could not then avoid the injury. There was negligence in going to the flat, when such a result was most likely to follow.

The counsel for the defendant asked the Court to charge the jury, that if they believed, from the evidence, that the commander of the boat saw the seine, and carried the steamer intentionally and wilfully to the stern of the fishing flat, when the injury happened, then, as every man is held to intend the consequences of .iis own act, the defendant could not be liable, as it was a wilful trespass on the part of the servant, the commander of the boat, and that trespass against the servant, and not case against the employer, would be the proper remedy.

The Court refused to give these instructions, remarking that the evidence of the defendant’s own witnesses showed that the action on the case would lie. Verdict for plaintiffs.

*304Rule for a venire de novo for wrong instructions given to the-jury, &c. Rule discharged; judgment and appeal.

Barnes, for the plaintiffs,

argued as follows :

It is- conceded that the public right of navigation is of ». higher character than that of a fishery; the latter must not be exercised in derogation of commerce ; but it does not follow that one, navigating a river,, has the right to run his vessel either wil-fully or negligently upon the seine of another engaged in the lawful employment of fishing, unless the seine obstructed the entire stream, or so mush thereof, that it would subject the navigator to great loss of time in attempting to avoid it. The navigator and fisherman both have rights in the public waters* which may be exercised and enjoyed without any infringement or injury to each other; indeed, they are of mutual advantage, and the public are deeply interested in the protection and preservation of each-. If there were an overruling necessity for the. destruction of either, of course the fishing interest, being' less important, must yield; but this necessity cannot arise while our broad sounds and rivers furnish ample space for the enjoyment and exercise of both rights.

If it were admitted, that the fishery were a nuisance, still the plaintiffs would be entitled to recover for the negligent conduct ©f the defendant's servant in the management of his boat.. There was no. reason for his attempting to land, his boat at that particular part of the river bank. He- might have taken on the passenger a short distance either above or below the seine, or have remained out in the stream until the passenger could have been sent aboard in a small boat, which was the usual mode of landing or taking them aboard on the river.. The defendant negligently destroyed the plaintiffs’ property, and even if it were a nuisance, he is responsible for its value. It is analogous, to the case of Davis v. ManN, 10th Meeson and Welsby’s Reports, page 545, “ Where the defendant negligently drove his horses and wagon against and killed an ass which had been left in the highway, fettered in the fore-feet, and thus unable to get *305out of tbe way of tbe defendant’s wagon, wbieb was going at a smartish pace along tbe road, it was beld that tbe jury were properly directed, that although it was an illegal act on tbe part of the plaintiff so to put tbe animal on the highway, the plaintiff was entitled to recover.”

So again in the case of the Mayoe OR Colchester v. Brook, English Common Law Reports, No. 53, page 339, it was decided thus : “ If property be placed in a public navigable river, .so as to create a public nuisance, a person navigating is not justifiable in damaging such property by running his vessel against it, if he has room to pass without so doing; for an individual cannot abate a nuisance, if he is not otherwise injured by it than as one of the public.”

“ A private individual cannot justify damaging the property of another on the ground that it is a nuisance to the public right, unless it does him a special injury.” — Dimes v. Petley, English Common Law Reports, No. 69, page 275.

The maxim sic wtere tuo lit alienum non Icedas applies with equal force to navigators as well as others.

“ Where a party is passing along a highway, he can only interfere with an obstruction as far as is necessary to exercise his right of passage.” — Woolrych on Waters, Law Library, No. 77, pages 198 and 202.

A fishery may or may not be a public nuisance or obstruction to navigation, according to the circumstances of the particular case, and in the excellent work last quoted, at page 205, the author remarks, “ that if the thing complained of (whether it be an erection of any kind or other fancied hindrance to navigation) be in reality a public benefit, it shall not be considered as an obstruction, nor punishable as such, unless it actually amount to a nuisance.” Now, it will not be denied that our fisheries are a great public benefit. They furnish employment to a large class of our laboring and enterprising citizens, and they furnish also a large number of people with cheap and wholesome food, and give to the farmer abundant materials for *306renovating or restoring to fertility bis exhausted and impoverished lands. This largo and important interest, unless protected in common with others, by the broad shield of the law, will be left to the mercy of careless and malignant navigators and must necessarily languish and perish.

Smith, for defendant.

PEARSON, J.

The case presents a very interesting question, and we have given to it much consideration, wjpfch a view, if possible, to “ mark the line ” dividing the right of navigation, and the right of fishing. Roth rights exist, not as private rights, depending on grant or riparian ownership, but as rights in common, to which one citizen is entitled as well as another. The right of navigation is paramount, because it is of most importance to the “ public weal.” The difficulty is, to lay down a rule by which to allow the free and full exercise of this paramount right, in such a way as to leave room for the other right to stand on, except as a mere matter of sufferance.

Unless the line can be marked distinctly, it is better to have no line at all; otherwise, there will be an infinity of law suits growing out of these conflicting interests.

We have concluded, that the line made by law is a very broad one, and that, in fact, the fishing interest has no ground to stand on, except as a matter of sufferance.

The ownership of the land lying near the water-course confers no right; for that stops at high-water mark, leaving the water and the beach, between high and low-water mark, for a public highway. The State has not, as. the sovereign, made any special grant of the right to fish to the plaintiffs, so they stand like any other citizen, and have a right to catch as many fish as they can, like the rest of us. CollinS v. Benbury, 5 Ired., 119. Note the distinction. In the cases cited from the English books, the right of fishing is specially granted by the crown.

*307It is argued, that it never would do to require a steamboat, or other vessel, to stop or go out of the way, in order to avoid a set-net or seine, because, if obliged to stop for one, they may be obliged to stop for a thousand, and there would» be ^no getting along.

But, it is contended, that the defendant had no right to come to the bank, at the time and place he did, and is therefore bound to pay all of the damage that resulted from the fact of his doing so. Thus, the question is|,had the defendant a right to come to the bank at the time and place he did ? He says that, by reason of the paramount right of navigation, he had a right to come to the bank at any time, and at any place, when and where there was a bona fide necessity for him to do so, in the pursuit of his vocation; that, in this particular instance, without any wantonness or malice, he did only so much as his business required him to do, and took pains to avoid doing any unnecessary damage to the plaintiff.

The fact that the defendant acted without wantonness or malice, is conceded, and there is no allegation that he did any unnecessary damage; but the gravamen of the plaintiffs is, that no skill or care could have brought the boat in without doing damage to the seine, and therefore, it was in contemplation of law, negligence and wrongful, for the defendant to attempt to do it. So we come fairly to the issue; must a steamboat stop until a seine can be drawn out of the way, or has the boat a right to go to the bank at any time, and at any place, when there is a “ bona fide” necessity for doing so, to take in freight or passengers, doing no unnecessary damage ?

We have come to the conclusion, that this is the only line that can be established. A boat on a navigable stream has a right to “take her course,” and to go to the bank, when and where it is necessary to do so — doing no unnecessary damage, and acting without wantonness or malice; and is not obliged to stop or go out of her way, or wait upon the movements of those who are managing a seine or net, which they are permitted to use by *308tbe sufferance of tbe sovereign, and not as a right conferred by grant. This is tbe only line that can be established, plain enough for practical purposes. There must be no wantonness or malice — no unnecessary damage, but a bona fide exercise of the paramount right of navigation.

There is error. Venire de novo.