Brother v. Page

• Decision Date: 31 January 1880
• Citation: 82 N.C. 65
• Court: North Carolina Supreme Court
• Parties: HETTRICK & BROTHER v. H. H. PAGE.

82 N.C. 65

HETTRICK & BROTHER

v.H. H. PAGE.

Supreme Court of North Carolina.

January Term, 1880.

APPLICATION for an Injunction heard at Chambers in Elizabeth City on the 1st day of November, 1879, before Gudger, J.

Upon the facts set out in the opinion of this court, His Honor refused the plaintiffs' motion for an injunction and dissolved the restraining order theretofore granted, and the plaintiffs appealed.

Messrs. W. A. Moore and A. M. Moore, for plaintiffs :

This is not the case of an ordinary injunction in aid of and secondary to another equity. It is to prevent irreparable injury. Purcell v. Daniel, 8 Ired. Eq., 9. The relief here sought is to stay waste and destructive trespass, 6 Jones Eq., 83. See also 4 Jones Eq., 29; Eborn v. Waldo, 6 Jones Eq., 112.Messrs. Pruden & Shaw and Gilliam & Gatling, for defendant :

Any exclusive appropriation of these waters for the purpose of fishing is unlawful, and is a nuisance which may be abated by any one interested. Collins v. Benbury, 3 Ired., 279 and 5 Ired., 118; Skinner v. Hettrick, 73 N. C., 53. There is no repugnancy between the act of 1875 and the former law--both had the same general purpose, the protection of the common right. Upon the nuisance created by plaintiffs driving down stakes, see State v. Parrott, 71 N. C., 311; State v. Dibble, 4 Jones, 107.

SMITH, C. J.

This action was commenced on the 12th day of September, 1879, and its object is to restrain the defendant by injunction from removing or interfering with certain stakes put up in the waters of Albemarle sound upon which the plaintiffs propose to hang their pod and poundnets to catch fish. The stakes commencing opposite the plaintiffs' shore and extending about one thousand yards out into the water, are about three by six inches in size, and separated from each other by short intervals, in a line, are driven some four or more feet into the bottom or bed of the sound, and the net is stretched out and fastened to them, with several pounds or enclosures into which the fish, arrested in their migratory movement up the waters, and seeking an outlet, enter; and being unable to find their way out are taken up with dip-nets. The defendant has purchased the shore on which an old but long disused seine fishery was operated and purposes to re-open it. Preparatory to commencing his fishing operations, the defendant finds it necessary to clear out the obstructions, among which are the plaintiffs' stakes, in the adjacent waters through which his seine must be drawn, and threatens and has directed his servants to take up the stakes and carry them away from his seine-ground. The stakes were placed in their present position several years ago by the plaintiffs, and have since remained and been used to stretch their nets upon, and are necessary for that purpose. The defendant has only recently become the owner of the land, of which the beach forms a part, on which the fishery is to be operated. The aim and scope of the suit is to forbid and prevent the removal of the stakes, or any interruption of the plaintiffs in their use, and the aid of the court is asked upon the ground that the consequence of the threatened act, if done, would be an irreparable mischief to them.

These are substantially the facts presented in the complaint, answer and replication, so far as deemed material to the proper understanding of the action of the court in vacating the temporary restraining order previously issued, and denying the motion for an injunction, pending the suit.

The appellant's first exception is to the refusal of His Honor to place the cause on the summons docket, in order to a jury trial of disputed facts, and his proceeding, himself, to pass upon the evidence. The essential averments in the complaint upon which the equitable claim to relief depends, are not controverted in the answer, and there is no such repugnancy in the allegations of the parties as requires the elimination of issues and the intervention of a jury, at least in this preliminary stage of the proceeding, and it was entirely proper for the court to act upon the case presented in the complaint and to refuse the interlocutory order. But were it otherwise, the action of the court is sustained by the decision in Jones v. Boyd, 80 N. C., 258. In that case the defendant appealed from an interlocutory judgment, awarding an injunction and appointing a receiver to take possession of the property in dispute, and the court discussing the effect of the late constitutional amendment enlarging its jurisdiction, say: “Without undertaking to define the limits to which our appellate power is carried by this change, it is sufficient to say, it embraces the present appeal and requiresus to examine the evidence and to determine the facts, as well as the law arising thereon, in revising the subject matter of the appeal.” The decree was accordingly reviewed and reversed.

The plaintiffs' second and principal exception involving the merits of their application, is to the refusal of the court to continue in force the restraining order until the final hearing of the cause.

It does not appear that the plaintiffs were engaged in catching fish when they began the action, or then had any immediate need of the stakes for spreading their nets, and that they could not replace any which should be removed, in ample time for the fishing season, and at a price easily ascertained and measurable in damages, and if so, they could in a proper action for the injury recover full and adequate compensation. Without, therefore, conceding the plaintiffs' right to the remedy sought, even upon the assumption of the truth of the matters set out in their complaint, or that they show a case of irreparable injury, entitling them to the exercise of the preventive power of the court, according to the usages of equity practice, we proceed to consider their claim to protection upon its merits.

Since the decision in the two appeals in Collins v. Benbury, 3 Ired., 277, and 5 Ired., 118, the law has been considered settled in regard to the right of fishing in the navigable waters of the state, and the results are summarized and approved in Skinner v. Hettrick, 73 N. C., 53, in these words:

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