Collins v. Benbury

• Decision Date: 31 December 1842
• Citation: 3 Ired. 277,25 N.C. 277,38 Am.Dec. 722
• Court: North Carolina Supreme Court
• Parties: JOHN D. COLLINS v. THOMAS BENBURY AND OTHERS.

3 Ired. 277

25 N.C. 277

38 Am.Dec. 722

JOHN D. COLLINS

v.THOMAS BENBURY AND OTHERS.

Supreme Court of North Carolina.

December Term, 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, at 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 the 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 Albemarle 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 H. 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 the fisrt time, as a coparner 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 Benbury 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 of 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 Benbury 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 of 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 case. 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 Sandy Point 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 incident 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 Fishery, the 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...